2006 Nebraska Revised Statutes - § 28-305 — Manslaughter; penalty.

Section 28-305
Manslaughter; penalty.

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

(2) Manslaughter is a Class III felony.

Source:

Laws 1977, LB 38, § 20

Annotations:

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

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

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

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

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).

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).

~Reissue Revised Statutes of Nebraska