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Chapter 9


Introductory Note: This chapter examines crimes that may be committed against the person, with a main focus on the various types of homicides. Assault, battery, mayhem, rape, and kidnapping are also discussed. Within the category “homicide,” the main one is of course murder, with the two other most important ones being voluntary manslaughter and involuntary manslaughter. Within the category “murder,” keep in mind that there are multiple mental states, any one of which may suffice (e.g., intent to kill; intent to seriously injure; reckless indifference to the value of life; and intent to commit a dangerous felony).


A. Different grades of homicide: Any unlawful taking of the life of another falls within the generic class “homicide.” The two principal kinds of homicide are murder and manslaughter.

1. Degrees of murder: In many jurisdictions, murder is in turn divided into first-degree and second-degree murder. Generally, first-degree murder is limited to murders committed with “premeditation and deliberation,” and to killings committed during the course of certain felonies. See infra, p. 266.

2. Two kinds of manslaughter: Similarly, manslaughter is in nearly all jurisdictions divided into voluntary manslaughter (in most cases, a killing occurring in the “heat of passion”) and involuntary manslaughter (an unintentional killing committed recklessly, grossly negligently, or during commission of an unlawful act.)

3. Other statutory forms of homicide: Additional forms of homicide exist by statute in some states. Many states have created the crime of vehicular homicide (i.e., an unintentional death caused by the driver of a motor vehicle); this crime is generally defined so as to require a lesser degree of culpability than involuntary manslaughter. Similarly, the Model Penal Code creates the crime of “negligent homicide.” See infra, p. 278.


A. Taking of life: Murder, like other forms of homicide, exists only where a life has been taken. Therefore, it is sometimes important to know: (1) whether a particular life has begun; and (2) whether a particular life has ended prior to the defendant’s act.

1. When life begins: Everyone would agree that a baby that has been born is a human being, whose killing can give rise to a murder prosecution. But it is not clear whether a life exists prior to the moment of birth.

a. Birth process begun: If the birth process has begun, but not yet finished, most courts would probably regard the baby as being alive for purposes of a homicide prosecution.

b. Fetus: But where the birth process has not even begun, the courts are reluctant to consider the fetus a human being for homicide purposes. Thus in the well-known case of Keeler v. Superior Court, 470 P.2d 617 (Cal. 1970), D learned that his estranged wife was pregnant by another man, accosted her, said “I’m going to stomp it out of you,” and shoved his knee into her abdomen. The baby was delivered stillborn, with a severely fractured skull. Medical evidence indicated that at the time of D’s attack, the fetus was more than 28 weeks old, and that it was “viable” (i.e., that if it had been born prematurely at that point, it would have had a 75% to 96% chance of survival).

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