Comments Off on MURDER VS MANSLAUGHTER

Killing another person is commonly referred to as murder. However, the precise term for the killing of one person by another is homicide. Murder is a form of criminal homicide that has a precise legal meaning. Murder is usually defined as the “unlawful killing of another with malice aforethought (or “an abandoned and malignant heart”). Malice aforethought refers to the perpetrator’s intention of doing harm.

There are different legal variations of murder, known as degrees. Degrees of murder vary by the gravity (seriousness) of the offense (usually measured by the intent of the perpetrator) and the sentence assigned to that offense. For example, murder in the first degree, or first-degree murder, carries the sternest sentences and is usually reserved for murders committed with premeditation or extreme cruelty.

The two main variations of manslaughter are usually referred to as voluntary and involuntary manslaughter.

Crime Scene – Do Not Cross


This is often called a “heat of passion” crime. Voluntary manslaughter occurs when a person:

  • is strongly provoked (under circumstances that could similarly provoke a reasonable person) and
  • kills in the heat of passion aroused by that provocation.

For “heat of passion” to exist, the person must not have had sufficient time to “cool off” from the provocation. That the killing isn’t considered first or second degree murder is a concession to human weakness. Killers who act in the heat of passion may kill intentionally, but the emotional context is a mitigating factor that reduces their moral blameworthiness.

The classic example of voluntary manslaughter involves a husband who comes home unexpectedly to find his wife committing adultery. If the sight of the affair provokes the husband into such a heat of passion that he kills the paramour right then and there, a judge or jury might very well consider the killing to be voluntary manslaughter.


Involuntary manslaughter often refers to unintentional homicide from criminally negligent or reckless conduct. It can also refer to an unintentional killing through commission of a crime other than a felony.

The subtleties between murder and manslaughter reach their peak with involuntary manslaughter, particularly because an accidental killing through extreme recklessness can constitute second degree murder.

People are often confused by the terms homicide, murder and manslaughter.  When reading the newspaper, they wonder why one defendant gets life for murder, while another person gets probation for manslaughter, which, in a way, sounds worse than murder.  It even gets more confusing when people are confronted with terms like felony murder.  After all, aren’t all murders felonies?

Here is a brief explanation of the terms, with some specific references to statutes in South Dakota that may be used as examples, regardless of what jurisdiction you live in.

Homicide is simply the killing of one person by another.  It may or may not be illegal.  Soldiers in battle commit homicide without committing a crime.  Citizens kill intruders without committing a crime.  So, what is it that separates a legal homicide from an illegal murder?  And, what makes one killing a murder and another a manslaughter?

Murder is a homicide committed with “malice aforethought.”  That doesn’t mean it is a malicious killing.  Malice aforethought is the common law way of saying that it is an unjustified killing.  And, for a killing to be a murder, there typically has to be either an intent to kill, or, at minimum, conduct so reckless that it is punishable as murder. 

Murder usually is broken down into degrees.  First degree murder punishes premeditated killings, the killing of especially vulnerable people (such as children), and unintended killings done while intentionally committing another serious felony.  This last kind of first degree murder is called felony murder.

Most people equate premeditation with long term planning.  However, in most criminal codes premeditation doesn’t mean that the killing was planned for weeks or days.  Premeditation often is defined as any planning or design to cause the death before the act of killing occurred.  Second degree murder usually includes all intentional killings that are not premeditated, and some killings that resulted from conduct so reckless it showed a grave indifference to the sanctity of human life or the welfare of others.

As mentioned above, felony murder is a subset of either first degree murder and, in some criminal codes, voluntary manslaughter.  It punishes people who didn’t actually do the killing.  If a person participates in the commission of a felony, and that felony caused someone’s death, all the participants in the felony can be charged with murder.  Common examples of this include the get-away driver in a convenience store robbery who is charged with felony murder after the actual robber shoots the clerk.  Or, the burglar who inadvertently scares a home owner so badly that the home owner dies of a heart attack.