§ 31.08 Manslaughter: Criminal Negligence

§ 31.08 Manslaughter: Criminal Negligence264

According to Blackstone, a homicide is manslaughter when "a person does an act, lawful in itself, but in an unlawful manner and without due caution and circumspection."265 Although common law courts have used many terms to explain the italicized language—including "gross negligence," "culpable negligence," and even "recklessness"—the best modern term is "criminal negligence." In states that distinguish between forms of manslaughter, a criminally negligent homicide is "involuntary" manslaughter, a lesser offense than "voluntary" ("sudden heat of passion") manslaughter.

"It is difficult to draw an exact line dividing [criminal] negligence from the lower ordinary [civil] negligence standard, or from the higher depraved-heart [murder] standard."266 As "criminal negligence" is now generally defined,267 however, involuntary manslaughter involves a gross deviation from the standard of care that reasonable people would exercise in the same situation.268 It is "more than the slight degree of negligence" sufficient to justify tort liability; it must be "so gross as to be deserving of punishment."269

On the other end of spectrum, the line most commonly drawn today between criminal negligence (manslaughter) and the sort of risk-taking that justifies a finding of malice aforethought (and consequent murder) is one founded on the consciousness of the actor's risk-taking. One who is aware that she is taking a substantial and unjustifiable risk to human life, but proceeds anyway, manifests an indifference to the value of human life that constitutes malice aforethought; one who should be aware of the risk, but is not, is negligent.

For example, one who playfully fires a gun that she knows has bullets in it, in the direction of another person, may be convicted of murder;270 if the same person performs the same act incorrectly convinced that the gun is unloaded, she is probably guilty of no more than manslaughter.271 Or, if a parent knowingly ignores her child's need for food or medical care to survive, the ensuing death may constitute murder.272 If the parent is unaware of the peril, but should be, the offense is manslaughter.273



[264] See generally Stephen P. Garvey, What's Wrong with Involuntary Manslaughter?, 85 Tex. L. Rev. 333 (2006); A.P. Simester, Can Negligence Be Culpable?, in Oxford Essays in Jurisprudence (4th Series 2000), at 85.

[265] 4 Blackstone, Note 17, supra, at *192 (emphasis added).

[266] State...

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