Concept

No Misdemeanor-Manslaughter Rule

MPC reckless manslaughter and negligent homicide

No Misdemeanor-Manslaughter Rule

Earlier sections graded unintended killings by what the actor knew about the risk of death. The common law once offered a second route to manslaughter that never asked that question. Blackstone described an involuntary manslaughter committed by accident in the course of some other unlawful act that was not itself a felony, and the Supreme Court's historical account in Mullaney v. Wilbur notes that this category, with some modification and elaboration, was recognized in this country.¹ The doctrine is now called misdemeanor-manslaughter: when a death occurs accidentally during, and is proximately caused by, a misdemeanor or other unlawful act, the actor is guilty of involuntary manslaughter.² The rule works like felony murder, with the predicate offense carrying the weight, but courts have surrounded it with fewer limits. Even misdemeanors that are not dangerous in any real sense have served as the predicate, perhaps because no death sentence is at stake.³

The reason the Code refuses the doctrine can be read off the structure of the homicide offenses. Manslaughter and negligent homicide punish an actor's attitude toward a death, and misdemeanor-manslaughter looks for that attitude in the wrong place. The actor's fault lies in the petty offense, such as vending without a permit, while the death is a separate result that the actor may never have perceived and may not have been careless about. Treating the offense as the culpability for the death makes the grade of the homicide depend on whether some unrelated regulation happened to be violated when the accident occurred. Two people who behaved identically toward the risk of death would then face different charges only because one of them was also breaking a licensing rule. The Code rejects the analog entirely, consistent with its general suspicion of the felony murder doctrine.⁴

Under the Code, a death is manslaughter when it is caused recklessly.⁵ It is negligent homicide when it is caused negligently, meaning that the actor failed to perceive the risk and the failure was a gross deviation from the care a reasonable person would exercise.⁶ Both definitions ask about the actor's mind as to the death. The fact that the actor was committing another offense answers neither question, so the prosecution must still prove conscious disregard of a risk of death, or a grossly unreasonable failure to see one, before either homicide conviction can stand.

Hypothetical Illustration

A street vendor sets up a folding stand on a sidewalk without the required permit, which is a misdemeanor. A passerby trips on one of the stand's legs, falls, strikes the curb at a freak angle, and dies. The vendor never perceived any risk of death and placed the stand where vendors ordinarily do. In a jurisdiction that follows the common-law doctrine, the prosecution can argue that the unpermitted stand caused the death, and if that argument succeeds, manslaughter follows without any proof of the vendor's awareness. Under the Code the result is neither manslaughter nor negligent homicide, because the vendor was neither reckless nor grossly negligent about the risk of death. Change one fact: the vendor stacks heavy crates on the stand directly above a crowded subway stairway, an officer warns that a falling crate could kill someone, the vendor keeps vending, and a crate falls and kills a commuter. The vendor is now guilty of manslaughter under the Code, and the ground is conscious disregard of a substantial and unjustifiable risk of death. The missing permit is not what makes the vendor liable in the second version, and the awareness of the risk is what moved the answer.

Rejecting the doctrine does not make the other offense irrelevant to a Code prosecution. A violated safety rule can show what the defendant knew, and the nature of the predicate conduct bears on whether a risk of death was one the actor must have perceived. In the second version above, the officer's warning is evidence that the vendor was aware of the danger, and awareness is the fact the prosecution still has to establish. The usual exam error is to treat the misdemeanor itself as the missing mental state. A sound answer asks what the defendant perceived about the risk of death and, if nothing was perceived, whether the failure to perceive it was a gross deviation from reasonable care.

No Misdemeanor-Manslaughter Rule

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