"manslaughter, which is the unlawful killing of a person without malice aforethought."
Someone may correct me, but I also believe it is further qualified as being unintentional--regardless of emotional dislike.
Actually, I believe you're correct.
I believe if it is intentional without aforethought, it's 2nd degree murder. Lack of intention makes it manslaughter.
This is offered as a point of interest rather than a point of dispute. Some lawyer here will set us right. I think you can have plenty of malice yet still be innocent of manslaughter. But the "aforethought" is a squirmy word, isn't it?
THe law id full od squirmy words. Juries, by some magical intuition, are supposed to straighten them out.
But malice aforethought does not equate (in my mind) with intention aforethought. At least, I that that is accurate as an afterthought, if not later. ;-)
Intention results in 1st degree murder. It is assumed to imply malice. Malice with no intenton can result in 2nd degree murder. A fit of anger implies malice and can result in homocide without actual intention to kill and will usually be charged as 2nd degree murder.
CALIFORNIA CODES
PENAL CODE
SECTION 187-199
187. (a) Murder is the unlawful killing of a human being, or a
fetus, with malice aforethought.
(b) This section shall not apply to any person who commits an act
that results in the death of a fetus if any of the following apply:
(1) The act complied with the Therapeutic Abortion Act, Article 2
(commencing with Section 123400) of Chapter 2 of Part 2 of Division
106 of the Health and Safety Code.
(2) The act was committed by a holder of a physician's and surgeon'
s certificate, as defined in the Business and Professions Code, in a
case where, to a medical certainty, the result of childbirth would be
death of the mother of the fetus or where her death from childbirth,
although not medically certain, would be substantially certain or
more likely than not.
(3) The act was solicited, aided, abetted, or consented to by the
mother of the fetus.
(c) Subdivision (b) shall not be construed to prohibit the
prosecution of any person under any other provision of law.
...........................................................
189. All murder which is perpetrated by means of a destructive
device or explosive, a weapon of mass destruction, knowing use of
ammunition designed primarily to penetrate metal or armor, poison,
lying in wait, torture, or by any other kind of willful, deliberate,
and premeditated killing, or which is committed in the perpetration
of, or attempt to perpetrate, arson, rape, carjacking, robbery,
burglary, mayhem, kidnapping, train wrecking, or any act punishable
under Section 206, 286, 288, 288a, or 289, or any murder which is
perpetrated by means of discharging a firearm from a motor vehicle,
intentionally at another person outside of the vehicle with the
intent to inflict death, is murder of the first degree. All other
kinds of murders are of the second degree.
As used in this section, "destructive device" means any
destructive device as defined in Section 12301, and "explosive" means
any explosive as defined in Section 12000 of the Health and Safety
Code.
As used in this section, "weapon of mass destruction" means any
item defined in Section 11417.
To prove the killing was "deliberate and premeditated," it shall
not be necessary to prove the defendant maturely and meaningfully
reflected upon the gravity of his or her act.
........................................................
192. Manslaughter is the unlawful killing of a human being without
malice. It is of three kinds:
(a) Voluntary--upon a sudden quarrel or heat of passion.
(b) Involuntary--in the commission of an unlawful act, not
amounting to felony; or in the commission of a lawful act which might
produce death, in an unlawful manner, or without due caution and
circumspection. This subdivision shall not apply to acts committed
in the driving of a vehicle.
(c) Vehicular--
(1) Except as provided in Section 191.5, driving a vehicle in the
commission of an unlawful act, not amounting to felony, and with
gross negligence; or driving a vehicle in the commission of a lawful
act which might produce death, in an unlawful manner, and with gross
negligence.
(2) Except as provided in paragraph (3), driving a vehicle in the
commission of an unlawful act, not amounting to felony, but without
gross negligence; or driving a vehicle in the commission of a lawful
act which might produce death, in an unlawful manner, but without
gross negligence.
(3) Driving a vehicle in violation of Section 23140, 23152, or
23153 of the Vehicle Code and in the commission of an unlawful act,
not amounting to felony, but without gross negligence; or driving a
vehicle in violation of Section 23140, 23152, or 23153 of the Vehicle
Code and in the commission of a lawful act which might produce
death, in an unlawful manner, but without gross negligence.
(4) Driving a vehicle in connection with a violation of paragraph
(3) of subdivision (a) of Section 550, where the vehicular collision
or vehicular accident was knowingly caused for financial gain and
proximately resulted in the death of any person. This provision
shall not be construed to prevent prosecution of a defendant for the
crime of murder.
This section shall not be construed as making any homicide in the
driving of a vehicle punishable which is not a proximate result of
the commission of an unlawful act, not amounting to felony, or of the
commission of a lawful act which might produce death, in an unlawful
manner.
"Gross negligence," as used in this section, shall not be
construed as prohibiting or precluding a charge of murder under
Section 188 upon facts exhibiting wantonness and a conscious
disregard for life to support a finding of implied malice, or upon
facts showing malice, consistent with the holding of the California
Supreme Court in People v. Watson, 30 Cal. 3d 290.
leginfo.ca.gov |
