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Murder v. Manslaughter: What’s the Difference? Murder, Manslaughter, or Homicide?

Murder and manslaughter are somewhat similar crimes. In fact, murder and manslaughter are often confused as being one in the same, especially in movies. The confusion is excusable, after all, murder and manslaughter both involve the non-accidental death of a person (homicide), but there are too many differences between murder and manslaughter to consider them as one in the same.

To make matters a little more confusing, there is the word “homicide” that tends to show up in place of murder or manslaughter, again...especially in movies. The following is a brief discussion of the difference between murder, manslaughter, and homicide. For further information, please visit our individual information pages at Murder, Manslaughter, Involuntary Manslaughter, & Vehicular Manslaughter.

Murder Defined: Murder is defined as the unlawful killing of another human being with malice aforethought and without legal justification. If you break the definition of murder into parts, you can see it has four parts: 1) unlawful killing, 2) another human being, 3) with malice aforethought, 4) without legal justification. Let’s look at these four parts of the definition of murder individually.

Unlawful Killing: The fact that the definition of murder includes the phrase “unlawful killing” means that some killings are not unlawful. These killings include accidental death by another person (non-criminal negligence), a killing in self-defense or defense of others, and legally sanctioned killings or physician assisted suicide by another person allowed in some states (i.e., California's prisoner execution by state in death penalty cases and physician assisted suicide as permitted in the California's End of Life Option Act). All other human deaths are either natural deaths, or the result of homicide (unlawful killing amounting to either murder or manslaughter [See Homicide Defined below]).

Note: Some unlawful killings (homicides) might be defended with an insanity defense, a severe involuntary intoxication that amounts to insanity defense, mistake of facts defense, etc., but those defenses do not render the homicide a non-homicide case. Rather, they are a defense to some murder or manslaughter charges. Those defenses might apply to cases where the district attorney has already filed criminal charges against the defendant. On the other hand, facts that support self-defense and defense of others defense are often clear enough to forgo prosecution in the first place.

Another Human Being: This element of the murder definition is easy to understand. Just keep in mind that some states, like California, include a viable fetus as a human being, and some states do not.

With Malice Aforethought: Malice aforethought is a bit more complicated. This is the part of a murder definition that tricks up most people, including non-criminal defense lawyers. Malice aforethought does not mean “thought out beforehand,” of "premeditated," which the term seems to suggest. Rather, malice aforethought means the defendant killed another person while being under one of four different states of mind. These four different states of mind include:

Intent to kill: For example, malice aforethought is found where a defendant lies in wait to kill another person (also called "premeditation" or "lying in wait.").

Intent to commit great bodily injury (GBI): Malice aforethought may also be shown where the defendant’s intent was to injure a victim with great bodily injury (GBI), but the victim dies from the injury sustain. This type of murder is often called "GBI Murder."

For example, if the defendant's intent was to cut off the victim's hands, but not to kill the victim, and the victim dies from the injuries, then defendant is charged with murder because the defendant intended to commit GBI, and therefore malice aforethought is present.

A killing during the commission of an inherently dangerous felony: Any foreseeable killing during the commission of an inherently dangerous felony may establish malice aforethought.

Note: This type of murder is usually called "felony murder" in California. The term "felony murder" seems to suggest that some murders are classified as misdemeanors. This is not true of course. All murders are classified as felony crimes in California. The term "felony murder" is only used to show that the killing occurred while the defendant was engaged in another felony crime at the time of the killing.

For example, if defendant commits robbery, and a person, who is not the defendant, dies in a shootout with the defendant, then malice aforethought may be established. An “inherently dangerous felony” includes (Robbery, Residential Burglary, Torture, Kidnapping, Arson, Mayhem, Rape, and more).

A killing that occurs while the defendant is acting with wanton disregard for human life: Malice aforethought may be established by showing that a killing occurred because of the defendant's wanton and reckless disregard for human life. This type of murder is often called "malignant heart" murder.

For example, if the defendant does not intend to kill another person while he drives at 100 MPH in heavy traffic, but another person dies after defendant causes an accident by his reckless driving, then the defendant may be charged with murder. The same is true for defendant's who do not intend to kill, but a person dies from the defendant's act when he does any of the following: shoots into a building believed to be abandoned, shoots into a residence, detonates a bomb, sets a field on fire, etc.

Without legal justification: The definition of murder includes the phrase “without legal justification.” This means that some killings, even intentional killings, are not necessarily considered murder. These killings include killings that occur in self-defense and killings that occur in the defense of others. As noted above, when the evidence of self-defense or defense of others, is clear, then the defendant might not be criminal charged with a homicide in the first place.

Degrees of Murder: In some states, murder has four or five "degrees," or levels of severity. In California, there are only two degrees of murder: First Degree Murder and Second -Degree Murder.

1st Degree Murder: Murder in the first degree is charged when the malice aforethought is either intent to kill, or a killing that occurs in the commission of an inherently dangerous felony (Felony Murder) (see Malice Aforethought above); and

2nd Murder: Murder in the second degree is charged for all murders that are not murder in the first degree (See 1st Degree Murder above). Second degree murder includes GBI Murder and Malignant Heart Murder.

Watson Murder

A “Watson” Murder is an unintentional killing of another human being that is the result of the defendant’s driving under the influence of drugs and/or alcohol, and when the defendant was aware that his driving under the influence of drugs and/or alcohol was inherently dangerous to human life.

Note: The defendant is usually made aware that DUI is inherently dangerous to human life at the sentencing hearing for a prior DUI. For example, if the defendant kills another person while the defendant is DUI, but the defendant has never been given a “Watson Advisal,” then defendant may be charged with vehicular manslaughter. However, if defendant kills another person while DUI after conviction of his first DUI (after he received a “Watson Advisal”), then defendant will be charged with murder.

Note: "Watson Murder" is akin to malignant heart murder, which is classified as murder in the second degree with a fifteen-years to life prison sentence in California).

Manslaughter Defined

Manslaughter is defined as an unlawful killing of another human being that is either intentional, or unintentional, but which otherwise does not amount to murder. Just like murder, manslaughter has variations that include intentional killings and unintentional killings. Let’s look at the two California crimes of Manslaughter and Involuntary Manslaughter.

Voluntary Manslaughter: Voluntary Manslaughter is an intentional killing that occurs during a particular mental state. These mental states include:

Heat of Passion: An intentional killing that is committed while the defendant suffered from a “heat of passion,” A heat of passion is a phenomenon that occurs when the defendant is so enraged by a situation that it leads to his killing of another person. The heat of passion must be so severe that it would drive that average person to commit violence against the person who caused the defendant’s heat of passion. A "heat of passion" defense does not work if the person who is killed is not the person who aroused the passion from the defendant. If the defendant is found not to have killed during a heat of passion, then the charge is murder (See Murder Defined above).

Note: Heat of Passion is usually argued in cases where the defendant’s passion to kill was aroused by the victim, the defendant did not “cool off” from the passion, the average person would not have had time to cool off from the passion, and the passion would have been present in an average person in the same or similar circumstances (i.e., discovering the victim was committing lewd and lascivious acts on the defendant’s child, or husband discovery his wife is sexually unfaithful, etc.).

Imperfect Self-Defense: An "imperfect self-defense situation arises when there is an intentional killing that was the result of an unreasonable, but honest, belief that the defendant needed to defend himself with deadly force. If the defendant truly believed that she needed to act with deadly self-defense, but the average person would not have reasonably believed that deadly force was needed, then voluntary manslaughter might be charged against the defendant.

Diminished Capacity: An intentional killing that occurs while the defendant suffers from a diminished mental capacity not amounting to insanity might allow a manslaughter charge in lieu of a murder charge in some states.

Note: California currently does not currently recognize “diminished capacity” as a defense; however, the fact that the defendant intentionally killed another person while suffering from a mentally diminished capacity could impact his chances for early parole at a parole hearing.

Involuntary Manslaughter

Involuntary Manslaughter is defined as an unintentional killing that occurs by the defendant’s gross negligence.

For example, where the defendant unintentionally kills a person in a crosswalk because the defendant was negligent in her driving.

Note: Evidence of simple negligence is not usually enough evidence to support a criminal case against the defendant for involuntary manslaughter. However, in civil court, the defendant may be sued for simple negligence that resulted in the death of another person. Ordinarily, gross negligence on the part of the defendant is required, at a minimum, to be considered criminal conduct.

Homicide Defined: Homicide is defined as the unlawful killing of another human being. Homicide is an umbrella term for all unlawful killings, including murder, Watson murder, voluntary manslaughter and involuntary manslaughter.

Vehicular Manslaughter

Vehicular Manslaughter is defined as the involuntary killing of another human being with a vehicle, which is the result of the defendant’s driving under the influence of drugs of alcohol (DUI). When a defendant is not DUI, but otherwise is grossly negligent when he kills another person with his vehicle, then the crime is usually filed as involuntary manslaughter, as opposed to vehicular manslaughter. Vehicular manslaughter while DUI is usually charged under PC 191.5 in California [Gross Vehicular Manslaughter While Intoxicated].

Note: If the defendant was made aware of the fact that DUI is extremely dangerous to human life, and that a DUI that results in death will lead to a murder charge (Watson Advisal), then the defendant will be charged with a "Watson murder," as opposed to vehicular manslaughter. The "Watson Advisal" is usually given by the criminal court judge at the sentencing hearing for a DUI conviction.

Evidence Difference: Murder and manslaughter are different in many ways. One of those difference is in the type of evidence that is produced in defense to the different charges.

For example, it is a defense to murder in the first degree to show that the defendant did not intend to kill the defendant or that the killing did not occur during the commission of an inherently dangerous felony, but those defenses are not available in an involuntary manslaughter case. This is because involuntary manslaughter may only be charged where the defendant does not intend to kill the victim or where the defendant is not engaged in an inherently dangerous felony.

Note: There are too many differences between murder and manslaughter when it comes to the types of evidence that might be produced to defend. For more information, see Murder, Manslaughter, & Involuntary Manslaughter.

Sentencing Difference: There are huge differences in possible incarceration sentencing that applies to murder and manslaughter.

For example, murder in the first degree in California can lead to life in prison sentence or even a death penalty sentence (if death penalty enhancements are found, such as murder by poisoning, multiple murder, murder of a peace officer, etc.). Voluntary manslaughter has a maximum sentence of eleven years in prison at fifty percent (5.5 years max if defendant serve his incarceration on good behavior). Involuntary Manslaughter is usually charged as a misdemeanor with a maximum sentence of one year in jail (with some exceptions for felony involuntary manslaughter charges).

Note: For the difference incarceration exposure related to these legal topics, including the possibility of probation sentencing, see Murder Sentence, Voluntary Manslaughter Sentence, & Involuntary Manslaughter Sentence.

Defense Differences: Murder and manslaughter crimes might share certain types of defenses, such as insufficient evidence, coerced confession, illegal search and seizure, and more. However, some defenses will apply to murder crimes that will not apply to manslaughter crimes. the most common of these defenses is the defense of insanity. The defense of insanity might be used in cases where specific intent is an element of the charge, but not in involuntary manslaughter or vehicular manslaughter cases.

Associated Crimes: Murder and manslaughter might have similar penalty enhancements or additional related crimes that are charged with the underlying offense, such as a gun enhancement that is charged with a murder or voluntary manslaughter charge. But some related crimes cannot logically be added to manslaughter crimes that, such as conspiracy to commit murder (PC 182(a)(1)/187(a)), or solicitation to commit murder (PC 653f(b)). This is because conspiracy and solicitation crimes are intentional acts, and manslaughter crimes are either unintentional (involuntary or vehicular manslaughter), or the product of a lack of planning (i.e., heat of passion or imperfect self-defense in voluntary manslaughter cases).


Murder v. Manslaughter: Murder and Manslaughter are different in that murder is a much more serious crime than manslaughter. Both murder and manslaughter can be an intentional act, but the “malice aforethought” attributed to murder means that murder is the result of greater criminal culpability on the part of the defendant.

Also, murder can be in “degrees,” but manslaughter comes in different charges, such as involuntary manslaughter, voluntary manslaughter, vehicular manslaughter, etc. Finally, the evidence used to support a defense, and the sentencing range for murder or manslaughter can vary greatly.

Voluntary Manslaughter v. Involuntary Manslaughter: Voluntary manslaughter means the defendant intended to kill another person, but the intentional killing was the result of a heat of passion or imperfect self-defense (See above). Involuntary manslaughter is an unintentional killing of another person, but when the killing involves the defendant’s gross negligent.

Murder v. Homicide: Murder is a type of homicide. The term "homicide" is an umbrella term used to cover all non-accidental unlawful killings, including involuntary, murder, murder in the second degree, etc.

First Degree Murder v. Second Degree Murder: In California, murder is charged in the first or second degree. First degree murder is charged where the defendant intentionally killed another person, or the killing occurred during the commission of an inherently dangerous felony. Second degree murder is all other murders that are not reduced to manslaughter.

Watson Murder v. Vehicular Manslaughter: A “Watson Murder” is a killing by a defendant while the defendant was DUI and while the defendant was aware that DUI was inherently dangerous to human life. Defendant is usually made aware of that DUI was inherently dangerous to human life from a judge at a prior DUI sentencing hearing. Vehicular manslaughter, also called “gross vehicular manslaughter,” is a killing that is the result of defendant’s DUI, but where the defendant was not aware that that DUI was inherently dangerous to human life (no prior DUI with a "Watson Advisal").

Involuntary Manslaughter v. Vehicular Manslaughter: Involuntary Manslaughter is an unintentional killing that occurs because of the defendant’s gross negligence (See above). Vehicular manslaughter is an unintentional killing which results from the defendant’s DUI. Vehicular manslaughter is commonly called “Gross Vehicular Manslaughter."

For more information on the difference between murder and manslaughter, the difference between involuntary manslaughter and manslaughter, and more, please visit our information pages at Murder, Voluntary Manslaughter, Involuntary Manslaughter, or Vehicular Manslaughter, contact our criminal defense lawyers today for a free consultation. Our defense lawyers represent all murder and manslaughter charges in the Inland Empire, including the cities of Redlands, Fontana, San Bernardino, Victorville, Ontario, Rialto, Yucaipa, Highland, Chino, Rancho Cucamonga, Riverside, and more. Call today!


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Murder v. Manslaughter


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