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It's The Law: Homicide 101

Q: I recently saw in the news that a man was charged with manslaughter for killing his neighbor. I've always wondered why some killings are manslaughter and some are murder. What is the legal difference? And what do all the different 'degrees' of murder mean?

A: To help answer your question, I enlisted my associate Michelle White, who formerly worked in the Miami-Dade Public Defender's Office, and consulted the U.S. Department of Justice - Bureau of Justice statistics. Death cases are known as homicides. Homicide is a fascinating topic, not only because of its severity but also because it is a fairly reliable barometer of all other violent crime. In the early 90's the homicide rate in the U.S. declined sharply. By the year 2000, the rate had slowed and has been holding stable ever since. On a national level, homicide is studied more than any other crime and is the most accurately and precisely measured.

People are often confused by the terminology used to describe homicide. TV and newspapers use the words first degree, second degree, manslaughter, and felony murder as if they are interchangeable. In reality, the different degrees of homicide have very unique characteristics.

First degree murder is the killing of another with premeditation. Premeditation is a fully formed, conscious purpose to kill. One common misconception is that premeditation requires a plot or plan to kill. People conjure images of the serial killer stalking his victim for weeks before he finally kills her. While that would clearly be premeditation, the scope is not nearly so narrow. Premeditation can be formed in an instant. All that is necessary is that the person knew what he was doing and knew that the result would likely be death to the other person. That disgruntled employee who 'snaps' and kills his co-worker is guilty of first degree murder.

The other type of first degree murder is felony murder. Felony murder is a killing that takes place while committing a felony, even if the murder is accidental. Only the more serious and violent felonies can create felony murder. For example, if during the commission of a rape the victim has a seizure and dies, the rapist is guilty of felony murder. Even though the rapist did not intend to commit a murder, he is responsible for the death, and guilty of first degree murder. The purpose of the felony murder rule is to protect the public from the dangers inherent when people commit serious crimes.

Second degree murder is the killing of another by an imminently dangerous act and indicating a depraved mind and a disregard for human life, but without premeditation. The depraved mind can be ill will, spite, malice, or hatred toward the victim. Like first degree murder, second degree murder is an intentional act.

A typical scenario is a bar fight. Two men are at a bar. One insults the other and a fight ensues. At some point, one of the men has clearly won the fight and could end the conflict by walking away. Instead of walking away, he beats the other man into unconsciousness. The unconscious man never wakes up. The crime is second degree murder.

Third degree murder is much different. It is the unintentional killing of a person during the commission of a crime, other than those serious felonies covered under the felony murder rule. You may recall a recent case in St. Petersburg, Florida. A father wanted to 'party' with his son, so he provided prescription drugs and alcohol to the 15 year old boy, and showed him how to mix them. The boy overdosed and died. The father was charged with third degree murder. There was no intent to kill, but providing drugs and alcohol was a crime that resulted in death.

Manslaughter is the lowest level death crime. Manslaughter is the killing of another by the act, procurement, or culpable negligence of the actor, without justification. It is not considered murder even though a death results. For example, at a party a group of friends are playing around with what they think is an empty gun. One aims at another, says "you're dead now," and pulls the trigger. A bullet is fired and the victim is killed. The shooter could not be convicted of any degree of murder because he thought the gun was empty, had no premeditation, was not committing a crime, and had no malice toward the victim. He could be convicted of manslaughter because it was negligent for him to aim and pull the trigger without being sure the gun was empty.

Another common scenario for manslaughter is the 'heat of passion' killing. The classic example, is when a man comes home from work and finds his wife in bed with another man. The man in bed then insults the husband and attempts to push him out of the room. Husband in a blind unreasoning fury shoots and kills the other man. Courts have repeatedly found that premeditation and depravity required for a first or second degree murder are impossible in such a state of mind. 'Passion' is used to mitigate the charge from murder to manslaughter.

Many loopholes exist in homicide litigation and the lines between the different degrees are often blurred. Anyone arrested or charged with a crime should consult with an experienced attorney as soon as possible.

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