The Misdemeanor-Manslaughter Rule

The Misdemeanor-Manslaughter Rule

Under the misdemeanor-manslaughter rule, when a death is proximately caused during the commission of a misdemeanor or some other unlawful act that falls short of a felony, the killing is involuntary manslaughter.¹ The rule is the unlawful-act branch of involuntary manslaughter that this chapter introduced. At common law that branch covered an unintentional killing during the commission or attempted commission of an unlawful act, usually a misdemeanor or a non-felony offense that the felony-murder rule does not reach.² Two features of the statement carry most of the weight. The killing must be unintended, since an intentional killing belongs to murder or voluntary manslaughter. The word proximately signals that the unlawful act must be a legal cause of the death, and not merely a coincidental companion to it. Later sections develop what counts as a qualifying act and how close the causal link must be, so this section concentrates on the bare rule and the reasoning behind it.

What the rule leaves out is as important as what it contains. Ordinary involuntary manslaughter asks about the defendant's state of mind toward the risk of death, because the killing must have been committed recklessly or with a high degree of negligence.³ In a jurisdiction that retains the unlawful-act doctrine, the prosecution therefore holds two theories. Under the first it argues criminal negligence. Under the second it need show only that the unlawful act caused the death, and proof of criminal negligence becomes unnecessary.⁴ A driver who runs a red light and kills a pedestrian shows the choice. The prosecutor can contend that the driving was criminally negligent in the circumstances, or can offer the traffic violation itself as the unlawful act and skip the negligence showing. The second theory is the easier one precisely when the defendant's carelessness looks ordinary rather than gross, because the distance between ordinary and criminal negligence is the distance the rule closes.

The bare rule is clearest when the defendant never saw the danger coming. During an argument, the defendant punches the victim in the nose, not hard and with no intent to cause serious injury, but the victim is a hemophiliac and bleeds to death. Simple battery is a misdemeanor, and a light blow meant to inflict only minor harm that produces an unexpected death is one of the commonest ways the doctrine comes into play.⁵ Because the death resulted from that misdemeanor, the defendant is guilty of involuntary manslaughter even though the defendant neither intended death nor perceived any serious risk of it, so no recklessness is proved and none is required.⁶ The prosecution's whole case on the mental element is that the battery was intentionally committed.

The reason a defendant who never contemplated death can be convicted of a homicide is a substitution of culpability. Involuntary manslaughter ordinarily needs a blameworthy state of mind toward the risk of death, and under this rule the defendant's intentional commission of the unlawful act supplies the culpability that the homicide charge would otherwise require.⁷ The defendant chose to break the law, and that choice stands in for the recklessness or criminal negligence the prosecution would otherwise have to prove, much as breaking a safety statute can establish negligence in a civil suit. The same logic runs through felony murder, where a felony resulting in death supports a murder conviction without proof of malice. The misdemeanor version works the same way one grade down, which is why it is often called the junior-grade counterpart of felony murder.⁸

That comparison should not be stretched into a claim that the defendant's bad intent travels over to the victim's death. Courts do not reach the result by transferring the intent behind the misdemeanor onto the death, as though the defendant had meant to kill. Homicide law simply recognizes more than one route to a conviction, and a death caused in the course of a misdemeanor is one of them, just as felony murder is a form of murder separate from the intent-to-kill form.⁹ The point tells the reader what the prosecution must still prove: the intent that counts is the intent to do the unlawful act, and the link that counts runs from that act to the death.

The rule needs an unlawful act, and without one it has nothing to attach to. A driver who stays within the speed limit and obeys every signal, and who strikes a pedestrian darting into the street, has committed no unlawful act and acted without criminal negligence, so neither route to involuntary manslaughter is open.¹⁰ Change the one fact that matters: if the same driver had been running a red light when the pedestrian was struck, the traffic violation could serve as the unlawful act and the second theory would open, subject to the limits that later sections take up. Liability also reaches a participant in the misdemeanor. At a bar, the defendant urges X to hit V in the jaw, X does, and V falls, strikes his head on the bar, and dies. The defendant aided and abetted the misdemeanor battery and is guilty of misdemeanor manslaughter just as X is.

The rule is old, and its history explains why so much of the doctrine concerns limits. Centuries ago the unlawful-act category reached every killing in the course of a criminal act that was not a felony, which meant any misdemeanor at all, and as time passed the rule came to be considered too harsh, so courts began placing limitations on it.¹¹ The harshness shows in decided cases. In Reed v. State a Texas court found manslaughter where the defendant, discovered committing adultery (a misdemeanor in Texas) with the victim's wife, killed the husband while defending against his murderous attack, reasoning that the attack was a foreseeable reaction to the misconduct. In Commonwealth v. Mink a woman attempting suicide accidentally killed the fiancé who intervened to stop her, and the court found manslaughter because suicide was an unlawful act of a kind wrong in itself.¹² A Delaware driver in State v. Hupf was convicted of involuntary manslaughter for killing a pedestrian after failing to obey a stop sign in violation of a traffic ordinance, although a statute has since superseded that decision.¹³

These results grow harsher as misdemeanors multiply. The number and forms of misdemeanors have increased massively since the early common-law era, and an unqualified rule makes every one of them a potential predicate for a homicide conviction. The District of Columbia Court of Appeals warned in Comber v. United States that this makes the risk of unreasonable application especially pronounced.¹⁴ Courts responded by narrowing the doctrine rather than discarding it, and the sections that follow take up those limits: what kind of unlawful act qualifies, whether the death must have been foreseeable, how closely the act must be tied to the death, and how dangerous the act must be. Some states and the Model Penal Code went further and abolished the rule altogether, a development this chapter reaches in its last section.¹⁵

The third step decides most problems, because the habit trained by ordinary manslaughter analysis is to search the facts for awareness of danger. Where the rule applies, the defendant's ignorance of the fatal risk is no answer, since the misdemeanor itself supplies the culpability, subject to the limits the later sections develop.¹⁶