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Criminal Law

What is 2nd Degree Murder?

By Recording Law Editorial Team14 min read
What is 2nd Degree Murder?

Second-degree murder is the unlawful killing of another person that requires malice aforethought but lacks the premeditation required for first-degree murder. The prosecution must prove intent to cause serious bodily harm or death, or reckless disregard for human life, without evidence of prior planning.

What is 2nd Degree Murder?

Person seen from behind sitting alone on a wooden bench in a courthouse hallway

In order to be charged with second-degree murder, the prosecution must prove that the defendant had the specific intent to cause serious bodily harm or death to the victim, and that this intent was not the result of a sudden heat of passion or other mitigating factor. Additionally, the killing must have been the direct cause of the defendant's actions, and the defendant must have been aware of the risk that their actions would cause harm or death.

The penalties for second-degree murder vary depending on the state in which the crime occurred, but generally include a lengthy prison sentence, fines, and other legal consequences. Second-degree murder is considered a serious crime, but it is generally less severe than first-degree murder, which involves premeditation and planning.

What States Have 3rd Degree Murder?

An individual may face third-degree murder charges if they inadvertently result in another person's death while engaging in a hazardous act. This charge differs from first and second-degree murder, which typically necessitate intent.

Third-degree murder laws exist in merely three states: Minnesota, Florida, and Pennsylvania. The definition of third-degree murder varies among these states, as outlined below.

Florida:

  • Statute: Florida Statutes Section 782.04

  • Description: The accidental, illegal killing of a person while perpetrating a nonviolent felony (excluding specific drug-related felonies).

  • Consequence: A maximum of 15 years in prison and a fine not exceeding $10,000

Minnesota:

  • Statute: Minnesota Statutes Section 609.195

  • Description: The unintentional death of another due to a highly dangerous act performed with a depraved mind and with no regard for human life. It also encompasses causing someone's drug-related demise by selling, delivering, or administering a Schedule I or II controlled substance.

  • Consequence: A maximum of 25 years in prison and a fine not exceeding $40,000

Pennsylvania:

  • Statute: Pennsylvania Statutes Section 18.1102

  • Description: Any homicide of a person that does not qualify as first- or second-degree murder.

  • Consequence: A maximum of 40 years in prison

What is Homicide?

A homicide is a broad term encompassing *any *killing of another person by an individual. This broad term covers both intentional and unintentional killing which means that all murders are homicides, but not all homicides are murders.

What is Manslaughter?

Manslaughter occurs when there is an unintentional killing of another person. A manslaughter conviction results in much less serious criminal charges than a murder charge. Within the category of manslaughter there are 3 common subcategories - Vehicular, Voluntary, and Involuntary Manslaughter.

  • **Voluntary Manslaughter: ** Typically the most serious of the 3, a voluntary manslaughter charge involves intent, but not planning. Most often voluntary manslaughter occurs in crimes that are in the 'heat of passion'. The intent was to cause harm/murder the other person, but the act was not premeditated (other than in that moment). The difference between a case of second-degree murder and one of voluntary manslaughter comes down to whether an ordinary person would have had a similar response. Killing someone in a barfight over a perceived slight is much more likely to result in a second-degree murder charge than if that same death was the result of an infidelity discovered in the moment.

"The killing of a human being in which the offender acted during the heat of passion, under circumstances that would cause a reasonable person to become emotionally or mentally disturbed to the point that they cannot reasonably control their emotions"

  • Involuntary Manslaughter: This occurs when someones death is the result of gross negligence or conscious disregard for life. The intention in an involuntary manslaughter case was never to have someone die, but it was a result of cutting corners/disregarding safety/taking unneccesary risks/lacking the proper credentials. Examples of involuntary manslaughter include (but aren't limited to) are unlawfully practicing medicine, accidental discharge, unsafe work conditions, selling tainted drugs, and not controlling an animal with a history of attacking people.

Note that intoxication in most states is a negligent act. Meaning it is not a defense for manslaughter.

Learn more about voluntary and involuntary manslaughter.

What is the difference between murder and lawful killing?

If someone threatens your family and you can defend yourself - Killing that person before they cause harm to your person is an act of self-defense. In other words, you have committed a lawful killing. For example, under Idaho title 18-4009 "justifiable homicide by any person," homicide is justifiable if you find yourself in the following circumstances:

  • When preventing any murder attempt, a felony offense, or someone who has the intention to inflict great bodily injury. Great bodily injury refers to any injury that puts the victim at significant risk of death, paralysis, or disfigurement.

  • When defending your habitation from someone who intends to commit a felony.

  • In defense of your family.

  • When lawfully apprehending another for a committed felony

Note: Every state has justifiable homicide laws with minute differences, check your local laws or consult with a criminal defense attorney.

In short, if there is justifiable cause to stop someone from committing a felony against you, your family, or your property, you have a legal right to stop that person even if it means killing the individual. The same applies to law enforcement officers, meaning if a perpetrator threatens the life of a peace officer, that peace officer has the right to defend himself.

Note: In many states there is a 'duty to retreat' which means that you are supposed to retreat if at all possible. This is less true for the 'Castle Doctrine' states which do not necessarily have a duty to retreat (Alabama, Alaska, Arizona, California, Colorado, Connecticut, Florida, Georgia, Hawaii, Indiana, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Mississippi, Missouri, Montana, New Jersey, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, West Virginia, Washington, and Wyoming). As you may not have time in a life and death situtation it is always best to know your local laws prior to being involved in a situation where you may have to defend yourself.

What is intentional killing?

If you are in a war, your country requires you to kill the enemy. There are rules of war contained in the Geneva convention that protect civilians, the wounded, POWs, and the weapons you may use. In other words, intentional killing in a war is justifiable.

However, during peacetime, intentional killing/murder is a criminal offense.

The three levels of murder in the US

State laws vary, but almost all states recognize the degrees of murder below:

Premeditated murder/murder in the first degree

Murder in the First Degree or Premeditated Murder, as the name suggests, refers to the willful and premeditated killing of another human. That means that the actor thought about and planned to kill another. In other words, the crime is willful, deliberate, and premeditated.

You may also be guilty of first-degree murder even if the act was accidental. For example, if you set fire to a building and someone burns to death, you could be guilty of first-degree murder.

What is a conspiracy to murder?

To conspire to murder someone means to plan to end the life of another. For example, Colorado title 18-2-201 defines conspiracy to murder as, quote:

"A person commits conspiracy to commit a crime if, with the intent to promote or facilitate its commission, he agrees with another person or persons that they, or one or more of them, will engage in conduct which constitutes a crime or an attempt to commit a crime, or he agrees to aid the other person or persons in the planning or commission of a crime or of an attempt to commit such crime."

In other words, planning to kill someone and killing are separate offenses.

Murder in the second degree

Murder in the second degree refers to the unlawful killing of another without any planning or premeditation. To be guilty of murder in the second degree, you must have "cause to harm," and you must have malice aforethought.

Murder in the third degree

Murder in the third degree only exists in Florida, Pennsylvania, and Minnesota. These states define murder in the third degree as "non-premeditated killing committed with intent to cause great bodily harm." In other words, if you intended to injure someone and end up killing him, you could be guilty of murder in the third degree.

For example, under Minnesota code section 609.195. Quote:

"Whoever, without intent to cause death, proximately causes the death of a human being by, directly or indirectly, unlawfully selling, giving away, bartering, delivering, exchanging, distributing, or administering a controlled substance classified in Schedule I or II, is guilty of murder in the third degree and may be sentenced to imprisonment for not more than 25 years or to payment of a fine of not more than $40,000, or both."

Note: The difference between murder and manslaughter can be very small, so make sure to consult with an excellent criminal defense attorney prior to speaking with police. Attorney client privilege keeps confidential communications in an attorney client relationship secret.

What are the basic elements of criminal homicide?

As explained above, the three basic elements of criminal homicide are

(1) intention to kill or cause serious injury.

(2) reckless disregard for the safety of others.

What you need to remember is homicide is a broad term that includes justifiable and unlawful killings. Murder is premeditated unlawful killing. What if there was no intention or premeditation?

If the accused did not plan or intend to kill the victim, that individual may be guilty of manslaughter. (See below)

Criminally negligent homicide

"Criminal negligence" refers to acts such as firing a weapon in a public space, leaving a child in a locked car in hot weather, driving while under the influence of drugs or alcohol, and any other negligent act that may result in the death of another. For example, under Colorado title 18-1-501, "criminal negligence refers to quote:

"A person acts with criminal negligence when, through a gross deviation from the standard of care that a reasonable person would exercise, he fails to perceive a substantial and unjustifiable risk that a result will occur or that a circumstance exists."

Depending on state law, criminally negligent homicide may be a felony or misdemeanor.

What is a federal murder?

Murder is a "state crime," but there are scenarios where murder may escalate into a federal crime. For example, lynching is a federal crime under the Emmet Till Anti Lynching Act. It is also a hate crime. The act defines lynching as quote:

"Whoever, whether or not acting under color of law, willfully, acting as part of any collection of people, assembled for the purpose and with the intention of committing an act of violence upon any person, causes death to any person, shall be imprisoned for any term of years or life, fined under this title, or both"

It is also worth noting that you may face federal terrorism charges if you:

· Assault a member of a flight crew.

· Take a hostage.

· Burndown or bomb property.

· Assassinate a government employee.

Penalties:

What is the penalty for murder?

In all states, first-degree murder carries the highest penalty, including execution in some states and or decades to life in prison. Twenty-seven states, including Texas, Montana, Idaho, Oregon, and South Dakota still have the death penalty.

Some crimes that may lead to the death sentence in said states include:

  • First-degree murder charge

  • Attempted murder of a witness, court officer, or juror.

For example, in Colorado, first-degree murder is a class 1 felony. A class 1 felony in Colorado is punishable by life in prison with no possibility of parole under CRS 18-3-102. It is also worth noting that the United States Sentencing commission sentencing guideline states that:

*"*In the case of a premeditated killing, life imprisonment is the appropriate sentence if a sentence of death is not imposed. A downward departure would not be appropriate in such a case. A downward departure from a mandatory statutory term of life imprisonment is permissible only in cases in which the government files a motion for a downward departure for the defendant's substantial assistance, as provided in 18 U.S.C. § 3553(e)."

What to remember:

  • Solicitation and conspiracy to commit murder are felonies in most states.

  • Assault with intent to commit murder may constitute first-degree murder.

  • Lynching and terrorist acts are federal offenses.

  • Injuries sustained may lead to enhanced punishment.

What is the penalty for manslaughter?

It depends on state laws and the facts presented to the criminal justice system. Consequently, manslaughter could be a misdemeanor or felony.

Are there defenses for murder?

Common defenses for murder and manslaughter include:

  • The act was justifiable/self-defense: if someone threatens to commit a felony against you or your family /property, you have the right to defend yourself.

  • Insanity/ diminished capacity: insanity is an affirmative defense if you can prove it. Could be temporary, permanent, or the 'heat of passion'.

  • Intent: Proving that there was not an intent to cause harm or death may result in lesser charges.

  • Identity: The prosecution cannot prove that it was you.

  • Intoxication: Some states allow for this to be used as a defense although most states consider intoxication to be a negligent act.

  • Automatism: This defense can be used if the defendant can prove that they were not in control of their body.

  • Provocation: The charge may be reduced or dropped if it can be proved that the defendant was provoked.

  • Age: If the accused is below 14, the individual may face lesser charges. Anyone above 14 may face trial as an adult depending on state law.

Each case is different, so consult a criminal defense attorney to find the best defense for you or your loved one.

Frequently Asked Questions

What is 2nd Degree Murder?

In order to be charged with second-degree murder, the prosecution must prove that the defendant had the specific intent to cause serious bodily harm or death to the victim, and that this intent was not the result of a sudden heat of passion or other mitigating factor. Additionally, the killing must have been the direct cause of the defendant's actions, and the defendant must have been aware of the risk that their actions would cause harm or death.

What is Homicide?

A homicide is a broad term encompassing *any *killing of another person by an individual. This broad term covers both intentional and unintentional killing which means that all murders are homicides, but not all homicides are murders.

What is Manslaughter?

Manslaughter occurs when there is an unintentional killing of another person. A manslaughter conviction results in much less serious criminal charges than a murder charge. Within the category of manslaughter there are 3 common subcategories - Vehicular, Voluntary, and Involuntary Manslaughter.

What are the basic elements of criminal homicide?

As explained above, the three basic elements of criminal homicide are (**1**) intention to kill or cause serious injury. (**2**) reckless disregard for the safety of others. What you need to remember is homicide is a broad term that includes justifiable and unlawful killings. Murder is premeditated unlawful killing.

Are there defenses for murder?

Common defenses for murder and manslaughter include: Each case is different, so consult a criminal defense attorney to find the best defense for you or your loved one.

Updates

Governing law re-checked for recent changes

Sources and References

  1. 18 U.S.C. § 1111: federal murder statute distinguishing first and second degree(law.cornell.edu).gov
  2. California Penal Code § 189: murder classified by degree(leginfo.legislature.ca.gov).gov
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