28-305. Manslaughter; penalty.

(1) A person commits manslaughter if he or she kills another without malice upon a sudden quarrel or causes the death of another unintentionally while in the commission of an unlawful act.

(2) Manslaughter is a Class IIA felony.

Source

Annotations

1. Involuntary manslaughter

2. Lesser-included offense

3. Malice

4. Motor vehicle homicide

5. Requisite mental state

6. Unlawful acts

7. Voluntary manslaughter

8. Miscellaneous

1. Involuntary manslaughter

Subsection (1) of this section establishes and distinguishes the two categories of manslaughter: an unlawful killing, without malice, "upon a sudden quarrel," which may be characterized as voluntary manslaughter, and an unlawful but unintentional killing, without malice, as the result of the defendant's commission of an unlawful act, which may be characterized as involuntary manslaughter. State v. Pettit, 233 Neb. 436, 445 N.W.2d 890 (1989).

Involuntary manslaughter is not a lesser-included offense of voluntary manslaughter. Involuntary manslaughter is killing without intent and without provocation, while committing an unlawful act. Voluntary manslaughter is killing with intent and with provocation (upon a sudden quarrel), regardless of whether the killing occurs in the course of an unlawful act. State v. Joseph, 1 Neb. App. 525, 499 N.W.2d 858 (1993).

2. Lesser-included offense

First degree assault and attempted voluntary manslaughter are two distinct offenses. First degree assault requires serious bodily injury to occur, and attempted voluntary manslaughter does not require any injury to occur. State v. Smith, 294 Neb. 311, 883 N.W.2d 299 (2016).

Manslaughter is not a lesser-included offense of the charge of felony murder. State v. Palmer, 224 Neb. 282, 399 N.W.2d 706 (1986).

Involuntary manslaughter is not a lesser-included offense of voluntary manslaughter. Involuntary manslaughter is killing without intent and without provocation, while committing an unlawful act. Voluntary manslaughter is killing with intent and with provocation (upon a sudden quarrel), regardless of whether the killing occurs in the course of an unlawful act. State v. Joseph, 1 Neb. App. 525, 499 N.W.2d 858 (1993).

3. Malice

One who has killed without malice upon a sudden quarrel is guilty not of first degree murder but of manslaughter. It is not the assault or provocation alone that reduces the grade of the crime, but, rather, the sudden happening or occurrence of the provocation so as to render the mind incapable of reflection and obscure the reason so that the elements of malice and deliberation necessary to constitute murder are absent. If one had enough time between the provocation and the killing to reflect on one's intended course of action, then the mere presence of passion does not reduce the crime below murder. Whether a killing constitutes manslaughter or murder in the first degree depends upon the state of mind of the killer. The question is whether, under all the facts and circumstances, a reasonable time had elapsed from the time of the provocation to the instant of the killing for the passion to subside and for reason to resume control of the mind. State v. Lyle, 245 Neb. 354, 513 N.W.2d 293 (1994).

4. Motor vehicle homicide

The State has prosecutorial discretion to charge a person for either manslaughter or motor vehicle homicide as the result of an unintentional death arising from an unlawful act during the operation of a motor vehicle where the defendant's conduct constitutes both offenses; but if the State chooses to pursue charges for manslaughter, it must show mens rea. State v. Carman, 292 Neb. 207, 872 N.W.2d 559 (2015).

Traffic infractions are public welfare offenses which do not require a showing of mens rea and, therefore, are insufficient by themselves to support a conviction for "unlawful act" manslaughter or "involuntary" manslaughter. State v. Carman, 292 Neb. 207, 872 N.W.2d 559 (2015).

Motor vehicle homicide is not a lesser-included offense of manslaughter under current statutes. State v. Wright, 261 Neb. 277, 622 N.W.2d 676 (2001).

One who is convicted of manslaughter under this section for a killing involving the use of a motor vehicle must be sentenced in accordance with this section rather than section 28-306, the motor vehicle homicide statute. State v. Burnett, 254 Neb. 771, 579 N.W.2d 513 (1998).

Manslaughter can be committed when someone causes the death of another unintentionally while operating a motor vehicle in violation of the law. The penalty for manslaughter resulting from the operation of a motor vehicle is specified in section 39-669.20. State v. Roth, 222 Neb. 119, 382 N.W.2d 348 (1986).

5. Requisite mental state

Because this section is a codification of the common-law crime of involuntary manslaughter, the State must show all elements of that common-law crime to convict under that section, unless the Legislature expressly dispensed with any such element. Because the Legislature did not specifically exclude mens rea from the language of the offense, the State must show mens rea to sustain a conviction. State v. Carman, 292 Neb. 207, 872 N.W.2d 559 (2015).

To convict a defendant of "unlawful act" manslaughter or "involuntary" manslaughter, the State must show that the defendant acted with more than ordinary negligence in committing the predicate unlawful act. State v. Carman, 292 Neb. 207, 872 N.W.2d 559 (2015).

There is no requirement of an intention to kill in committing manslaughter. State v. Blackson, 245 Neb. 833, 515 N.W.2d 773 (1994).

State v. Pettit, 233 Neb. 436, 445 N.W.2d 890 (1989), holding that manslaughter is an intentional killing of another, is overruled. State v. Jones, 245 Neb. 821, 515 N.W.2d 654 (1994).

One who has killed without malice upon a sudden quarrel is guilty not of first degree murder but of manslaughter. It is not the assault or provocation alone that reduces the grade of the crime, but, rather, the sudden happening or occurrence of the provocation so as to render the mind incapable of reflection and obscure the reason so that the elements of malice and deliberation necessary to constitute murder are absent. If one had enough time between the provocation and the killing to reflect on one's intended course of action, then the mere presence of passion does not reduce the crime below murder. Whether a killing constitutes manslaughter or murder in the first degree depends upon the state of mind of the killer. The question is whether, under all the facts and circumstances, a reasonable time had elapsed from the time of the provocation to the instant of the killing for the passion to subside and for reason to resume control of the mind. State v. Lyle, 245 Neb. 354, 513 N.W.2d 293 (1994).

The test for determining whether there existed adequate provocation so as to mitigate an intentional killing from murder to manslaughter is an objective one; qualities peculiar to defendant which render him particularly excitable, including intoxication, are not considered. State v. Cave, 240 Neb. 783, 484 N.W.2d 458 (1992).

6. Unlawful acts

Whether physical act committed by person responsible for care and supervision of minor is justifiable act or unlawful assault is fact question. State v. Miner, 216 Neb. 309, 343 N.W.2d 899 (1984).

7. Voluntary manslaughter

An intentional killing committed without malice upon a "sudden quarrel," as that term is defined by our jurisprudence, constitutes the offense of manslaughter. State v. Smith, 282 Neb. 720, 806 N.W.2d 383 (2011).

Under subsection (1) of this section, the phrase "sudden quarrel" is a legally recognized and sufficient provocation which causes a reasonable person to lose normal self-control. State v. Morrow, 237 Neb. 653, 467 N.W.2d 63 (1991).

"Accident" is not a defense to the crime of voluntary manslaughter under subsection (1) of this section, but does relate to intent to kill, which is an element of the crime of manslaughter committed "upon a sudden quarrel." State v. Pettit, 233 Neb. 436, 445 N.W.2d 890 (1989).

As used in subsection (1) of this section, the phrase "sudden quarrel" does not necessarily mean an exchange of angry words or an altercation contemporaneous with the unlawful killing and does not require a physical struggle or other combative corporal contact between the defendant and the victim; a sudden quarrel is a legally recognized and sufficient provocation which causes a reasonable person to lose normal self-control. State v. Pettit, 233 Neb. 436, 445 N.W.2d 890 (1989).

Subsection (1) of this section establishes and distinguishes the two categories of manslaughter: an unlawful killing, without malice, "upon a sudden quarrel," which may be characterized as voluntary manslaughter, and an unlawful but unintentional killing, without malice, as the result of the defendant's commission of an unlawful act, which may be characterized as involuntary manslaughter. State v. Pettit, 233 Neb. 436, 445 N.W.2d 890 (1989).

To sustain a conviction for voluntary manslaughter under subsection (1) of this section, that is, a conviction for killing another, without malice, "upon a sudden quarrel," the State, by evidence beyond a reasonable doubt, must prove that the defendant intended to kill, and did kill, another. State v. Pettit, 233 Neb. 436, 445 N.W.2d 890 (1989).

When it is claimed that a killing was upon a sudden quarrel, there are three elements of the crime of manslaughter: the killing of another, upon a sudden quarrel, and without malice. State v. Batiste, 231 Neb. 481, 437 N.W.2d 125 (1989).

The pointing of a gun at another is a reckless act within the contemplation of section 28-310, and as such is an unlawful act, sufficient, should the gun discharge, to support a manslaughter conviction under subsection (1) of this section. State v. Bachkora, 229 Neb. 421, 427 N.W.2d 71 (1988).

Manslaughter is a killing done upon a sudden quarrel, a legally recognized and sufficient provocation, which causes a reasonable person to lose normal self-control. State v. Butler, 10 Neb. App. 537, 634 N.W.2d 46 (2001).

Involuntary manslaughter is not a lesser-included offense of voluntary manslaughter. Involuntary manslaughter is killing without intent and without provocation, while committing an unlawful act. Voluntary manslaughter is killing with intent and with provocation (upon a sudden quarrel), regardless of whether the killing occurs in the course of an unlawful act. State v. Joseph, 1 Neb. App. 525, 499 N.W.2d 858 (1993).

8. Miscellaneous

Admission of evidence of blood test results in a criminal prosecution for manslaughter under this section is not authorized under section 60-6,210. State v. Brouillette, 265 Neb. 214, 655 N.W.2d 876 (2003).

An intentional killing can be manslaughter, if it results from a sudden quarrel. Thus, attempted sudden quarrel manslaughter can be considered a crime. State v. Smith, 19 Neb. App. 708, 811 N.W.2d 720 (2012).

The analysis of provocation which mitigates an intentional killing logically applies to assault cases as well, given that the core difference between the two crimes is generally whether the victim lives or dies. State v. Butler, 10 Neb. App. 537, 634 N.W.2d 46 (2001).

Attempted manslaughter held not to exist under this section, given that a defendant cannot intentionally perform an act toward the commission of an unintentional crime. State v. George, 3 Neb. App. 354, 527 N.W.2d 638 (1995).