What Is Homicide?

How Does the Law Define Homicide? What Are the Different Types of Homicide?

The killing of another human being has been considered a crime for most of recorded history. The Code of Hammurabi, estimated to have been written nearly two thousand years before the beginning of the common era, addressed homicide in its first law. Though it did not identify a crime comparable to the modern concept of murder, it did indicate that the penalty for intentionally killing another was death. More than a thousand years later, the Draconian Codes of Athens specifically distinguished between intentional and unintentional killings, with the former being subject to the death penalty.

As the laws of homicide have developed, distinctions have been made, with some types of killings referred to as murder, and others typically identified as some form of manslaughter. Furthermore, some jurisdictions have a criminal offense known as negligent homicide. What are the elements of each type of homicide, and what distinguishes them from each other?

What Is Murder?

Derived from the Old English word for killing, murder refers to the most serious type of homicide offense. The concept of murder originally developed through the common law in court opinions written by judges. Today, all states have enacted some form of statute setting forth the elements of murder, and all states establish different types of murder, though some identify them by degrees and others simply use different names.

Under the common law, murder is defined as an unlawful killing of a human being by another human being, through an affirmative act or omission, with malice aforethought. Let’s break that down element by element:

1. Unlawful—Certain killings may be legal, such as executions or the killing of enemy soldiers in war.
2. Killing—Under modern definitions, death means the termination of all brain function.
3. Of a human being—At common law, a fetus was not a human being until outside the womb. Today, however, most (but not all) U.S. states grant a fetus the status of a human being for purposes of their homicide laws.
4. By another human being—Suicide does not fall under the definition of murder.
5. Through an affirmative act or omission—A person may be charged with murder for either an act or failure to act. An example of murder by omission would be a parent failing to feed or get medical care for their child.
6. With “malice aforethought”—Under the common law, malice aforethought required proof of intent prior to the killing (the term used was premeditated and deliberate). However, under modern interpretations, the requirement of malice aforethought can be established by showing that the defendant committed the act with one of following states of mind:
1. An intent to kill
2. An intent to bring about grievous bodily harm (though not necessarily death)
3. A reckless indifference to the value of human life or unreasonably significant risk to human life (labeled an abandoned and malignant heart in many jurisdictions)
4. An intent to commit a felony

Though laws vary from state to state, most jurisdictions differentiate between so-called first degree and second-degree murder:

• Actions that suggest the killing was planned, premeditated, or considered in advance are indicative of first-degree murder.
• Certain methods of killing are charged as first-degree murder; for example, some states make strangulation or poisoning grounds for a first-degree murder charge.
• Murders that are not planned in advance or premeditated are typically charged as second-degree murders. That includes murders that result from extreme reckless behavior and situations where the intent was to cause grievous bodily harm but not death.
• Most, but not all, states have some form of felony murder statute, allowing a person to be charged with murder for killing a person in the commission of some other type of felony, such as a robbery. Felony murder can be considered either first-degree or second-degree murder, depending on the jurisdiction.

Some states set forth an offense known as third-degree murder. In those few states that do, the charge typically involves intentionally killing someone while committing a dangerous act but without premeditation or planning.

What Is Manslaughter?

Generally, manslaughter is the killing of another person without intent or under circumstances where a reasonable person would be unable to control their emotions, taking action that causes the death of another person. Most states further differentiate manslaughter as either voluntary or involuntary:

• Voluntary manslaughter involves an intentional act committed because of an uncontrollable impulse or in the heat of passion. For example, if a person comes home to find their spouse in bed with another person, intentionally killing that person may be charged as voluntary manslaughter.
• Involuntary manslaughter is typically charged when a person causes the death of another through recklessness, but without intent to kill. Punching another person in a fight may lead to involuntary manslaughter charges if the person suffers a brain injury and dies.

What Is Negligent Homicide?

Most states have laws that allow a person to be charged with homicide for a killing that does not involve intent or recklessness. Typically, the charge involves a defendant who engages in a gross violation of the standard of care expected of a reasonable person. As a practical matter, criminal negligence most often arises in the context of motor vehicle accident deaths, where the defendant was engaged in grossly negligent behavior at the time of the accident. For example, a person who races a vehicle through a school zone or residential neighborhood may be charged with negligent homicide if another person is killed.