§ 31.09 Manslaughter: Unlawful-Act ("Misdemeanor-Manslaughter") Doctrine

§31.09 Manslaughter: Unlawful-Act ("Misdemeanor-Manslaughter") Doctrine

An accidental homicide that occurs during the commission of an unlawful act not amounting to a felony (or, at least, not amounting to felony that would trigger the felony-murder rule) constitutes common law involuntary manslaughter.274 This is the analogue to the felony-murder rule and, as such, is often termed the "misdemeanor-manslaughter" rule.

The scope of this doctrine, where it continues to be applied, varies widely by jurisdiction. Some states permit a prosecution for involuntary manslaughter for all non-felony offenses, even when the predicate offense is a minor misdemeanor traffic offense.275 In contrast, some courts limit the doctrine to inherently dangerous misdemeanors.276 Limited this way, the offense will often overlap involuntary (criminally negligent) manslaughter.277 Other courts distinguish between misdemeanors mala in se and mala prohibita, limiting the homicide rule to offenses of the former variety.278

As a historical matter, the unlawful-act doctrine was not always limited to misdemeanor conduct. There is limited historical precedent, seemingly not followed today, for the view that morally wrongful, but non-criminal, conduct may serve as the predicate for a manslaughter conviction: thus, if a person attempts to commit suicide (an immoral act), she could be convicted of manslaughter if a bystander dies successfully preventing the suicide.279



[274] See 4 Blackstone, Note 17, supra, at *192-93; Pfister v. State, 425 P.3d 183, 185 (Alaska App. 2018); Comber v. United States, 584 A.2d 26, 49 (D.C. 1990).

[275] E.g., State v. Weitbrecht, 715 N.E.2d 167 (Ohio 1999) (upholding conviction for involuntary manslaughter and finding no constitutional violation in the maximum penalty of five years' imprisonment, based on deaths resulting from minor misdemeanor traffic offenses).

[276] E.g., Comber v. United States, 584 A.2d at 51 ("if the manner of its commission entails a reasonably foreseeable risk of appreciable physical injury").

[277] State v. Yarborough, 930 P.2d 131, 136, 138 (N.M. 1996) (observing that a majority of jurisdictions now require that the predicate offense in misdemeanor-manslaughter prosecutions involve criminal negligence or recklessness, and holding that criminal negligence is required to convict of involuntary manslaughter in New Mexico).

[278] E.g., Mills v. State, 282 A.2d 147 (Md. Ct. Spec. App. 1971).


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