An unlawful killing of a person without malice aforethought.

(n) manslaughter homicide without malice aforethought (WordNet 3.6)

Manslaughter (Law) The unlawful killing of a man, either in negligence or incidentally to the commission of some unlawful act, but without specific malice, or upon a sudden excitement of anger. (Webster’s Revised Unabridged Dictionary)

(n) manslaughter Specifically—2. In law, the unlawful killing of another without malice either express or implied, which may be either voluntarily, upon a sudden heat, or involuntarily, but in the commission of some unlawful act. Blackstone. Manslaughter differs from murder in not proceeding from malice prepense or deliberate, which is essential to constitute murder. It differs from excusable homicide, being done in consequence of some unlawful act, whereas excusable homicide happens in consequence of misadventure. Manslaughter has been distinguished as voluntary, where the killing was intentional in a sudden heat or passion without previous malice; and involuntary, where it was not intentional, but the slayer was at the time engaged in an unlawful act less than a felony, or doing a lawful act in an unlawful manner. This distinction of name is no longer used in procedure, except in those jurisdictions where it may be enjoined by statute. (Century Dictionary and Cyclopedia)

Reference Desk

People v. Mendoza, 664 N.W. 2d  685 (Mich. 2013)


Manslaughter is an inferior offense of murder because manslaughter is a necessarily included lesser offense of murder.

1. The Elements Of Common-Law Murder And Manslaughter

Common-law murder encompasses all killings done with malice aforethought and without justification or excuse. People v. Scott, 6 Mich. 287, 292-293 (1859). See also People v. Potter, 5 Mich. 1, 6 (1858)(“Murder is where a person of sound memory and discretion unlawfully kills any reasonable creature in being, in the peace of the state, with malice prepense or aforethought, either express or implied.”).

First-degree murder is defined in M.C.L. § 750.316.[6] All other murders are murders in the second degree. MCL 750.317. See also People v. Goecke, 457 Mich. 442, 463-464, 579 N.W.2d 868 (1998), which enumerated the elements of second-degree murder as (1) death, (2) caused by defendant’s act, (3) with malice, and (4) without justification.

Manslaughter is murder without malice. See Potter, supra at 9 (noting that without malice aforethought, “a killing would be only manslaughter, if criminal at all”). See also People v. Palmer, 105 Mich. 568, 576, 63 N.W. 656 (1895), remarking:

“Manslaughter is perfectly distinguishable from murder, in this: That though the act that causes death be unlawful or willful, though attended with fatal results, yet malice, either expressed or implied, which is the very essence of murder, is to be presumed to 690*690 be wanting in manslaughter.” [Quoting the trial court jury instructions.]

The common law recognizes two forms of manslaughter: voluntary and involuntary. People v. Townes, 391 Mich. 578, 589, 218 N.W.2d 136 (1974).

Common-law voluntary manslaughter is defined as:

[T]he act of killing, though intentional, [is] committed under the influence of passion or in heat of blood, produced by an adequate or reasonable provocation, and before a reasonable time has elapsed for the blood to cool and reason to resume its habitual control, and is the result of the temporary excitement, by which the control of reason was disturbed, rather than of any wickedness of heart or cruelty or recklessness of disposition….[Maher v. People, 10 Mich. 212, 219 (1862).]See also Townes, supra at 590, 218 N.W.2d 136 (“A defendant properly convicted of voluntary manslaughter is a person who has acted out of a temporary excitement induced by an adequate provocation and not from the deliberation and reflection that marks the crime of murder.”). Thus, to show voluntary manslaughter, one must show that the defendant killed in the heat of passion, the passion was caused by adequate provocation, and there was not a lapse of time during which a reasonable person could control his passions. See People v. Pouncey, 437 Mich. 382, 389, 471 N.W.2d 346 (1991).[7] Significantly, provocation is not an element of voluntary manslaughter. See People v. Moore, 189 Mich.App. 315, 320, 472 N.W.2d 1 (1991). Rather, provocation is the circumstance that negates the presence of malice. Scott, supra at 295.

Involuntary manslaughter is the unintentional killing of another, without malice, during the commission of an unlawful act not amounting to a felony and not naturally tending to cause great bodily harm; or during the commission of some lawful act, negligently performed; or in the negligent omission to perform a legal duty. See Townes, supra at 590, 218 N.W.2d 136. See also People v. Heflin, 434 Mich. 482, 507-508, 456 N.W.2d 10 (1990)(opinion by RILEY, C.J.).


An examination of the historical development of homicide law informs this Court that manslaughter is a necessarily included lesser offense of murder because the elements of manslaughter are included in the offense of murder.


In early English common law, a killing was either justifiable homicide; excusable murder committed by misadventure or accident, or in self-defense; or capital murder, characterized by “malice aforethought” and punishable by death. See 2 Pollock and Maitland, The History of English Law (Cambridge: University Press, 1952), ch. VIII, Crime and Tort, § 2, p. 485. However, during the fourteenth and fifteenth centuries, an exemption called the “benefit of clergy” was widely used as a device to mitigate mandatory death sentences. Hall, Legal fictions and moral reasoning: Capital punishment and the 691*691 mentally retarded defendant after Penry v. Johnson, 35 Akron L. R. 327, 353 (2002).

The “benefit of clergy” was an exemption that allowed an offender to be sentenced by the ecclesiastical courts, which did not impose capital punishment.[8] Though it was initially intended to benefit clergy, it also benefitted persons who could satisfy its literacy test. See Kealy, Hunting the dragon: Reforming the Massachusetts murder statute, 10 B. U. Pub. Int. L. J. 203, 205-206 (2001). Thus, it was not long before persons other than clerics claimed the exemption, so that the “benefit of clergy” exemption benefitted anyone who could read. See Justice Harlan’s discussion in McGautha v. California, 402 U.S. 183, 197, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971), noting that although all criminal homicides were prima facie capital cases, the “benefit of clergy” was available to almost any man who could read.

In response to the exemption’s widespread availability, statutes were passed throughout the fifteenth and sixteenth centuries proclaiming the exemption unavailable for homicides committed under particularly reviled circumstances, collectively termed “murder with malice aforethought.” Moreland, The Law of Homicide (Indianapolis: The Bobbs-Merrill Co., Inc., 1952), ch. 2, The Development of Malice Aforethought, p. 9. The “benefit of clergy” remained available, however, for offenders convicted of less culpable homicides. Id. Thereafter, unjustified and unexcused homicide was divided into two separate crimes: “wilful murder of malice aforethought”, a capital offense for which the “benefit of clergy” was unavailable, and manslaughter. Plucknett, A Concise History of the Common Law (New York: The Lawyers Co Operative Pub. Co., 1927), ch. 2, The Felonies, pp. 395-396. The critical difference between murder and manslaughter was the presence or absence of “malice aforethought.” Moreland, supra at 10.


The phrase “malice aforethought” has evolved over the centuries. During the late fifteenth and early sixteenth centuries, “malice aforethought” meant that one possessed an intent to kill well in advance of the act itself. Id. at 10. Notably, the emphasis was on “aforethought,” so that the critical difference between capital and noncapital murder was the passage of time between the initial formulation of the intent to kill and the act itself. Moylan, Criminal Homicide Law (Maryland Institute for Continuing Professional Education of Lawyers), ch. 2, § 2.7. The term “malice” alone had little significance beyond meaning an intent to commit an unjustified and inexcusable killing. Id. The purpose of the “malice aforethought” element was to distinguish between deliberate, calculated homicides and homicides committed in the heat of passion. Kealy, supra at 206.

As more and more defendants claimed they lacked an intent to kill before the act was committed, juries and courts increasingly rejected this argument. The result was a case-by-case “semantic erosion” of the term “aforethought,” until “malice aforethought” meant nothing more than the intent to kill had to exist at the time the act was committed. Perkins & Boyce, Criminal Law (3rd ed.), Murder, § 1, p. 58 (“[a]s case after case came before the courts for determination … there came to be less and less emphasis upon the notion of a well-laid plan. And at the present day, the only requirement in this regard is 692*692 that it must not be an after thought”). There was, consequently, a parallel erosion of the distinction between capital murder, for which aforethought was required, and noncapital homicide, for which it was not.

Interestingly, although the English courts grew weary of the oft abused “lack of aforethought” defense, it was nevertheless evident that there was still some interest in distinguishing between a homicide committed in “cold-blood” and one committed under circumstances that mitigated one’s culpability. To express this distinction, the focus shifted from “aforethought” to “malice.” Moreland, supra at 11 (“[t]he law of homicide seems thus to have now progressed from a place where the mental element was of no importance to a place where at the beginning of the seventeenth century it had become a factor of prime importance”).

Because there was a need to distinguish the most serious homicide from the rest, and because “aforethought” no longer had legal significance, malice evolved from being merely an intent to kill to also evidencing the absence of mitigating circumstances. Moylan, supra at § 2.7. Consequently, the presence of malice became both synonymous with the absence of mitigating circumstances and the sole element distinguishing murder from manslaughter.

We glean from our examination of manslaughter’s historical development that manslaughter is defined to reflect the absence of malice. Thus, the only element distinguishing murder from manslaughter is malice.


A necessarily lesser included offense is an offense whose elements are completely subsumed in the greater offense. Cornell, supra at 356, 646 N.W.2d 127.

Regarding voluntary manslaughter, both murder and voluntary manslaughter require a death, caused by defendant, with either an intent to kill, an intent to commit great bodily harm, or an intent to create a very high risk of death or great bodily harm with knowledge that death or great bodily harm was the probable result. However, the element distinguishing murder from manslaughter-malice-is negated by the presence of provocation and heat of passion. See Scott, supra at 295. Thus, we conclude, the elements of voluntary manslaughter are included in murder, with murder possessing the single additional element of malice.

Regarding involuntary manslaughter, the lack of malice is evidenced by involuntary manslaughter’s diminished mens rea, which is included in murder’s greater mens rea. See People v. Datema, 448 Mich. 585, 606, 533 N.W.2d 272 (1995), stating:

“[P]ains should be taken not to define [the mens rea required for involuntary manslaughter] in terms of a wanton and wilful disregard of a harmful consequence known to be likely to result, because such a state of mind goes beyond negligence and comes under the head of malice.”

Unlike murder, involuntary manslaughter contemplates an unintended result and thus requires something less than an intent to do great bodily harm, an intent to kill, or the wanton and wilful disregard of its natural consequences. [Citations omitted; emphasis added.]See also United States v. Browner, 889 F.2d 549, 553 (C.A.5, 1989), stating, “In contrast to the case of voluntary manslaughter… the absence of malice in involuntary manslaughter arises not because of provocation induced passion, but 693*693 rather because the offender’s mental state is not sufficiently culpable to reach the traditional malice requirements.”

Thus, we conclude that the elements of involuntary manslaughter are included in the offense of murder because involuntary manslaughter’s mens rea is included in murder’s greater mens rea.

Accordingly, we hold the elements of voluntary and involuntary manslaughter are included in the elements of murder. Thus, both forms of manslaughter are necessarily included lesser offenses of murder. Because voluntary and involuntary manslaughter are necessarily included lesser offenses, they are also “inferior” offenses within the scope of M.C.L. § 768.32. Consequently, when a defendant is charged with murder, an instruction for voluntary and involuntary manslaughter must be given if supported by a rational view of the evidence.

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