Murder Charges Require Malice Aforethought

Murder really has to do with having an intent and having malice. In other words, when somebody becomes angry at another person and they decide to kill that person and they think it out and they plan it and execute the plan and kill the person, now you're talking first-degree murder.

Then there's the scenario where somebody gets in a quarrel with somebody and all of a sudden, they get that angry and that malice and they decide to kill them very quickly – that would typically be a second-degree murder.

The difference between murder and manslaughter is really the intent and the malice combined. Manslaughter usually is more of an accidental occurrence. If somebody is just driving along and accidentally runs somebody over, that's not going to be a murder.

But if they're driving 100 miles an hour and accidentally runs somebody over, that's probably going to be manslaughter, depending on the circumstances. A hundred miles an hour on a city street might even rise it up to wanton conduct for purposes of murder.

Manslaughter Doesn't Require Malice

So, there are all kinds of rules and tests and laws. But really, if you want to get a grasp on the difference between murder and manslaughter – when you talk about manslaughter, you're talking about more of an accidental situation, but usually, the accident is occurring by some sort of negligent or gross negligent behavior by an individual.

In other words, if you just make a mistake and somebody is killed, a lot of times there is not going to be a crime filed for that. But, if you're being negligent and you're being careless and you're being reckless – even though you don't intend anybody to die – you're going to harbor some responsibility for that.

So, you have to look at the overall scenario and say, okay, did this person really foresee that somebody could die on this behavior? Maybe you thought it could happen if you really sat and thought about but a lot of times people don't even realize that by doing whatever it is they're doing, they could cause the death of another.

Now there is, what I would call, a little carved out an exception here to the way that I'm describing the difference between manslaughter and murder, and I would characterize that as a voluntary manslaughter case, and that's a case where somebody becomes angry.

They intentionally kill somebody. So, normally you'd say that's a murder case, but certain things are going on. In other words, that person has been provoked by the other party and they're in the heat of passion when they kill the person.

Under that scenario, you could get out of murder so-to-speak and end up with a voluntary manslaughter charge, which would obviously be a lot less of a punishment than a murder charge.

Examples of Murder vs. Manslaughter

The prime example that is used all the time is, a husband comes home and finds his wife cheating with his friend, goes crazy, picks up a knife, kills the wife, kills the best friend. There could be an argument made there. Again, depending on all the facts and circumstances, that person was acting in the heat of passion.

He was provoked because he was so surprised and shocked and upset to see his wife cheating on him – not just cheating on him but cheating with his best friend. So, that scenario could be argued a voluntary manslaughter case versus a murder case, versus a second-degree murder case.

There are scenarios where somebody becomes enraged and angry and kills somebody and they're not going to be able to hide behind voluntary manslaughter because the prosecutors will argue, I'm sure they were mad.

I'm sure they might have been in the heat of passion, but a normal reasonable person would not have been provoked by whatever behavior the defendant is saying was going on. So, a lot of times that becomes a gray area issue where it's on the fence, and a jury is going to have to decide whether it's fair to give the person a voluntary manslaughter conviction or whether they deserve a murder conviction.

So, there are all kinds of different angles you could look at these murder and manslaughter cases, and as I indicated earlier, murder can be broken down into the first and second degree. Also, manslaughter can be broken down into degrees.

There's involuntary manslaughter where you accidentally do something. Let's say you make a left turn and someone's coming on a motorcycle and you were kind of careless and not looking to make the left turn and the motorcycle hits you and you kill the person. That's probably an involuntary manslaughter case. It's negligent. You were careless, but you weren't driving crazy like a nut.

But also, let's say you're racing with somebody and you run through a red light and kill a pedestrian. That's probably at least vehicular manslaughter. It could even be murder depending on the circumstances. It's debatable. It's arguable.

But you can start to see that this dividing line between manslaughter and murder really has to do with carelessness versus intentionally doing something, and we haven't even got into when you start using alcohol and drugs and you kill somebody. They can get you for murder.

They say that is such wanton bad behavior that we're going to get you for second-degree murder. We're not going to let you have a manslaughter on that. Again, all these things are arguable. Having a great criminal defense attorney by your side is the key if you want to get the right result.