Concept
Qualifying Unlawful Acts
Misdemeanor manslaughter
Qualifying Unlawful Acts
The doctrine reaches only as far as the phrase unlawful act extends, so the predicate is best taught from its core case outward: ordinary misdemeanors first, then ordinance and regulatory violations, and then felonies that fall outside the felony-murder rule.
Ordinary Misdemeanors
The core predicate is a misdemeanor, and any misdemeanor will serve. At common law, a death proximately caused during a misdemeanor or other unlawful act that did not rise to the level of a felony was involuntary manslaughter.1 The rule takes its popular name from that core case, although the name is only a loose label for the larger unlawful-act category.2 Traffic offenses such as speeding and drunk driving are one frequent source of liability, and simple battery is another, as where the defendant strikes the victim a light blow meaning to cause only minor harm and the victim dies unexpectedly.3 Both share the feature the doctrine needs: the defendant deliberately did something the criminal law forbids, and that deliberate choice is what the doctrine treats as the culpability for the resulting death.
The battery case shows how little the prosecution must prove about the fatal risk. A bar patron slaps a coworker across the face intending only to sting, and the coworker, who has an undiagnosed heart defect, collapses and dies. The slap is a misdemeanor battery, so the prosecution can build the manslaughter case on it without proving that the patron was aware of any danger to life, subject to the causation and foreseeability limits taken up in later sections. Speeding works the same way. A driver doing fifty in a thirty-mile-an-hour zone who kills a pedestrian crossing on a green light may have been careless without deviating grossly from reasonable care, yet the speeding violation still supplies a predicate when the negligence theory falls short.
Two refinements concern what counts as the act. The word act includes an omission where the defendant had a legal duty to act, which is why unlawful conduct is the more accurate label even though unlawful act is the common expression.4 The defendant also need not know that any law forbids the conduct, because there is no requirement of a specific intent to violate the law.5 The reason follows from where the culpability comes from. It lies in choosing to do the forbidden thing, and a knowledge-of-the-law requirement would reintroduce a proof burden that the doctrine exists to remove.
A boundary appears when the violation was committed without fault. Take a statute making it a misdemeanor to drive at night without lights, and a driver whose lights suddenly go out through no fault of the driver's own, so that the car strikes and kills a pedestrian before it can be stopped. On principle, that kind of violation should not help establish guilt of manslaughter at all, and some decisions have recognized as much.6 The premise of the doctrine is that deliberate lawbreaking stands in for carelessness about death, and a driver whose equipment fails unexpectedly chose nothing. How far courts carry that idea for strict-liability offenses generally is taken up in the later section on dangerousness and culpability limits.
Regulatory and Ordinance Violations
The predicate is not confined to offenses defined in the state's criminal code. A violation of a local ordinance may qualify to the same extent as a violation of state criminal law, and because jurisdictions differ on whether an ordinance violation is a crime or only a civil wrong, the first question is how the jurisdiction classifies it.8 The extension follows from the theory of the doctrine. If the unlawful act stands in for carelessness about death because it shows the defendant chose to disobey a binding public command, then the body that issued the command matters little, and a penal ordinance passed by a city council is as much a public command as a statute. Some jurisdictions carry the same reasoning to administrative regulations that carry penal sanctions, and the statutory versions at the end of this chapter show that extension in codified form.
A city ordinance forbids driving faster than fifteen miles an hour in a posted school zone. A driver going thirty-five strikes and kills a child who steps out from between parked cars. If the jurisdiction treats the ordinance as criminal, she has committed an unlawful act, and the prosecution's second theory is open alongside criminal negligence. If the jurisdiction classifies the same violation as a civil infraction only, the predicate becomes much less secure, and the case must be won, if at all, on gross negligence.
Some decisions have gone beyond crimes of any grade. Attempted suicide, though not a crime, has been held an unlawful act for manslaughter purposes, and so have selling liquor to a person already intoxicated and attempting to drive through a toll-gate without paying, although neither of those is a criminal offense.9 The phrase unlawful act is literally broad enough to include a trespass or other civil wrong, and in fact any conduct the deciding court does not like, which is the danger these decisions illustrate.10
Other decisions mark a limit. A defendant picked up a box lying on a pier and threw it into the sea, killing a swimmer beneath the pier, and the court held that the trespass to the box, a civil wrong against its owner, was not an unlawful act that would support a manslaughter conviction.11 Courts also dispute whether a reckless act that is no crime at all can serve as the predicate.12 Because the results are uneven, an answer should treat a criminal violation as the safe predicate and flag noncriminal conduct as available only in some jurisdictions, and only on facts like those of the suicide and toll-gate decisions.
Felonies Outside Felony Murder
The classic statement of the rule describes the predicate as an unlawful act short of a felony, yet the unlawful-act category also catches some felonies.14 Felony murder makes a death in the course of a felony murder, and in some jurisdictions it reaches only certain dangerous felonies.15 A felony outside that group therefore escapes felony murder, and a felony that will not suffice for felony murder may still do for unlawful-act manslaughter.16 The reason is structural. If a misdemeanor, the lesser wrong, can support manslaughter when it causes a death, it would be anomalous for a defendant who committed a graver offense to escape homicide liability altogether because that offense failed a technical requirement of felony murder. The check that keeps this extension from becoming a second felony-murder rule is foreseeability, which asks whether the death was a foreseeable result of the felony, and a later section develops it.
In a jurisdiction that confines felony murder to a list such as arson, robbery, burglary, rape, and kidnapping, a defendant commits grand theft auto by driving off with a stranger's car. While fleeing at ninety miles an hour through a crowded intersection, he kills a pedestrian. Auto theft is not on the list, so the murder charge fails. The theft is still a felony, it can serve as the unlawful act for manslaughter, and the death was a foreseeable result of that flight.
Change one fact and the answer reverses. The defendant instead commits felony forgery by cashing a forged check, and that evening the bank teller is struck by a car and killed on her way home. The forgery is an unlawful act, but nothing connects it to the death, so the causal link the rule demands is missing and neither murder nor manslaughter is available. The felony label alone never supplies the missing connection, a point the section on causation develops.
On an exam, the order of analysis matters. The felony-murder rule has first claim on a death in the course of a felony, so the answer should test it first. Students lose this issue when they conclude that a felony that fails felony murder leaves no homicide liability at all, because in a jurisdiction that retains the unlawful-act doctrine that felony can become the predicate for involuntary manslaughter.17
Ordinary Misdemeanors
The core predicate for the unlawful-act theory is an ordinary misdemeanor, and the doctrine takes no interest in which misdemeanor it is. At common law, a death proximately caused while the defendant was committing a misdemeanor, or another unlawful act short of a felony, was involuntary manslaughter.19 Proximate cause here means that the death must trace to the unlawful act closely enough to be fairly charged to the defendant, a link the causation sections below take up. What the misdemeanor changes is the mental-state inquiry. In Comber v. United States the District of Columbia Court of Appeals explained that where the doctrine applies, liability attaches even though the defendant did not act with the degree of recklessness that manslaughter by criminal negligence ordinarily demands, because the intentional commission of the misdemeanor supplies the culpability for the homicide.20
The reason for that substitution comes from what a misdemeanor is. Traffic and assault statutes exist to keep people from physically endangering one another, so a defendant who knowingly violates one has deliberately done the very thing the law forbids in order to prevent injury. The doctrine treats that deliberate choice as the blameworthy act and does not ask the further question whether the defendant personally saw a risk of death. The structure is an analogue to felony murder, one grade down, and it explains why battery and traffic offenses are the usual predicates: they are the everyday ways in which ordinary people put one another's bodies at risk.21
Traffic violations show the rule at work. In State v. Hupf a driver was convicted of involuntary manslaughter after failing to obey a stop sign, in violation of a traffic ordinance, and killing a pedestrian.22 The decision has since been superseded by statute, but it shows the doctrine at full strength: the violation alone supplied the culpability, so the prosecution had no need to show that the driver's carelessness was gross.23 Modern statutes can push the same logic further. A driver who goes one mile over the limit in a Michigan construction zone and consequently kills a worker may be held strictly liable for manslaughter, with a sentence of up to fifteen years.24 One mile per hour over the limit would rarely be a gross deviation from reasonable care, and that gap between the two theories is exactly why a prosecutor reaches for the unlawful-act route when the negligence showing is thin. Both examples involve offenses that are wrong only because a statute says so, and many jurisdictions demand more before such a violation will support a manslaughter conviction. The later section on malum in se and malum prohibitum develops that limit, so for now the point is what the doctrine does where it applies without one.
Battery supplies the other usual predicate. A battery is an intentional and unwanted touching, so the culpability the doctrine borrows is the intent to touch, and the unlawful act need not have been aimed at causing death or even serious harm. The Comber court treated simple assault as a misdemeanor carrying an inherent danger of physical injury,25 and the same reasoning reaches a light blow struck to cause minor harm that produces an unexpected death.26 The spiked-drink problem from the last section turns on that step: the touching of a nonconsenting victim by a drug is a battery, likely a misdemeanor, and so even the defendant whose negligence was thin might be guilty of manslaughter.27 The predicate also need not involve any assault at all. In United States v. Walker the defendant was carrying a pistol without a license, a misdemeanor, and dropped it in the stairwell of an apartment building, where it discharged and killed a bystander.28 The defense offered expert testimony that the gun would fire on impact only if dropped at a particular angle, yet the court sustained manslaughter liability on the licensing misdemeanor.29
The reach of the predicate is wide because the rule is facially simple, and the decisions show it. In Reed v. State a Texas court sustained a manslaughter conviction where adultery, then a Texas misdemeanor, led the wronged husband to make a murderous attack on the defendant, who killed him in self-defense, reasoning that the attack was a foreseeable reaction to the defendant's criminal misconduct.30 The case shows how little the doctrine asks of the predicate beyond its status as a misdemeanor. A rule that asks only whether the defendant committed some misdemeanor will reach conduct far from what homicide law is meant to punish, which is why the sections that follow add limits on the kind of misdemeanor and on the causal link to the death.
The doctrine has nothing to work with when no unlawful act exists. A commuter hurrying for his train bumps into an elderly passenger on the platform, and she falls and dies. A careless bump is no battery and no other offense, so no misdemeanor is available, and the prosecution must prove criminal negligence or recklessness on the ordinary route. Change one fact and the answer flips: if the commuter had instead shoved her deliberately during an argument, the shove is a misdemeanor battery, the unlawful-act theory opens, and the same fall can support manslaughter without any proof that the commuter appreciated a risk to life, subject to the causation limits discussed below.
On an exam, the analysis therefore asks two questions in order. The first is whether the defendant was committing a misdemeanor at the time of the death, and the second is whether the jurisdiction retains the doctrine. Students lose points by demanding a separate showing of gross negligence from a defendant whose misdemeanor caused the death, because in a retaining jurisdiction the violation supplies the culpability that the negligence showing would otherwise have to provide.31
Regulatory and Ordinance Violations
The ordinary-misdemeanor predicate treats the state's criminal code as the source of the unlawful act, but the doctrine's second name shows that the source can be wider. The misdemeanor-manslaughter rule is also called the unlawful-act doctrine because, in some jurisdictions, it reaches violations of local law or administrative regulations that never rise to the level of a misdemeanor.33 That breadth varies from one jurisdiction to the next, so this section describes what some courts and statutes allow. It does not describe a rule that every retaining jurisdiction follows.
Local ordinances come first. A violation of a local ordinance may qualify as an unlawful act to the same extent as a violation of state criminal law, but jurisdictions disagree about whether an ordinance violation is a crime or only a civil wrong, so the first question is how the jurisdiction classifies it.34 The extension follows from the premise of the doctrine. The unlawful act stands in for carelessness about death because the defendant knowingly disobeyed a binding public command, and a penal ordinance passed by a city council is such a command no less than a statute. The driver in State v. Hupf shows the point: he was convicted of involuntary manslaughter after failing to obey a stop sign and killing a pedestrian, and the rule he broke was a traffic ordinance, although a later statute superseded the decision.35
Administrative regulations are the next step outward. Regulations are usually written to prevent a particular physical harm, such as a blocked exit or an unguarded machine, so a violation can endanger people as seriously as a criminal misdemeanor does. Some statutes say so expressly. Ohio's involuntary manslaughter provision covers a death caused as a proximate result of committing or attempting to commit a misdemeanor of any degree or a regulatory offense that is not criminal.36 A restaurant owner who chains a rear exit shut, in violation of a fire-safety regulation enforced only through administrative penalties, illustrates the effect. A kitchen fire breaks out, a patron cannot escape, and the patron dies. Under an Ohio-style provision the regulatory violation is an unlawful act, and the prosecution need not prove that he was grossly negligent about the risk. In a jurisdiction that confines the doctrine to criminal misdemeanors, the identical violation is a civil administrative matter that cannot serve as the predicate, and the case must be won, if at all, on criminal negligence.
The same Ohio provision also subtracts. It excludes a minor misdemeanor under the state motor vehicle code, and it excludes a municipal ordinance substantially equivalent to such a violation, whatever penalty the ordinance sets.37 The carve-out answers a problem of proportion. Minor traffic infractions are committed daily by drivers who give no thought to danger, and if every fatal collision that followed one became manslaughter automatically, a trivial infraction would carry a homicide sentence. The clause covering equivalent ordinances closes a gap: without it, a city's choice of label or penalty could decide whether a driver faces a homicide charge for conduct the state itself placed outside the doctrine. A driver who commits a minor-misdemeanor failure to yield and strikes a cyclist is therefore outside the unlawful-act provision, and the prosecution must proceed on another theory, such as reckless homicide, if the evidence supports one. The stop-sign facts of Hupf would sit on this side of the line if the jurisdiction classed the violation as a minor misdemeanor.
Kansas limits the predicate by a different technique. Its involuntary manslaughter statute reaches a killing committed in the commission of a misdemeanor enacted for the protection of human life or safety.38 Ohio excludes a named category of offenses, while Kansas asks what the violated law was for. A misdemeanor for operating a business without registering is still a misdemeanor, yet it was not enacted to protect anyone's life, so it cannot carry a homicide charge. The reason runs back to the theory of the doctrine. Substituting an unlawful act for proof of carelessness is most defensible when the defendant disobeyed a rule aimed at the very kind of harm that occurred, because then the disobedience speaks to indifference about physical injury.
A few decisions go beyond regulation and treat noncriminal conduct as unlawful. Attempted suicide, selling liquor to a person already intoxicated, and driving through a toll-gate without paying have each been called an unlawful act for manslaughter purposes, although none is a criminal offense.39 Another court refused to follow that path where a defendant threw a box found on a pier into the sea and killed a swimmer beneath, holding that the trespass to the box was a civil wrong that could not support manslaughter.40 Because the results are uneven, an answer should treat a criminal violation as the safe predicate and mark ordinances, regulations, and noncriminal wrongs as qualifying only where the jurisdiction's cases or statute say so. Students lose this issue when they assume one answer for every jurisdiction, since the classification of the violation and the text of the governing statute decide whether it counts.
Felonies Outside Felony Murder
The unlawful-act category reaches upward as well as outward. The previous section showed it extending below the misdemeanor to ordinances and regulations, but the same label also catches felonies, specifically those that fail to qualify for felony murder. The felony-murder rule treats a death caused during a felony as murder, yet most states confine it to inherently dangerous felonies such as rape, arson, robbery, and burglary, so many felonies sit outside it.43 When a felony falls outside the rule and a death results, the killing is not murder on the felony-murder theory, but it is at least involuntary manslaughter, so long as the death was a foreseeable consequence of the felony.44 The felony supplies the unlawful act just as a misdemeanor would, which is why the doctrine is more accurately called the unlawful-act rule: a felony that for some reason will not suffice for felony murder may suffice for unlawful-act manslaughter.45
A felony can fall outside felony murder for two distinct reasons, and each has its own logic. The first is the merger doctrine, which bars a prosecutor from using assault, battery, and similar crimes of personal violence as the predicate felony, because the elements of those crimes merge into the course of conduct that caused the death.46 In State v. Shock the Missouri court read the first-degree murder statute's reference to another felony as meaning a collateral felony, one that could be completed even if no murder followed, such as arson, rape, robbery, or burglary. Acts of personal violence that are constituent elements of the homicide itself were merged in it and could not serve as the predicate.47 The mechanism is plain once you ask what would happen without the limit. Nearly every fatal beating is also a felonious assault on the person who died, so if that assault could be the predicate, every such killing would become murder by operation of the felony-murder rule, and the distinctions the law draws between murder and manslaughter by looking at the defendant's state of mind would disappear for assaultive killings. Missouri's legislature soon afterward confined felony murder to enumerated felonies, which made the judicial merger rule unnecessary in that state.48
The second reason is that the jurisdiction restricts felony murder to dangerous felonies. At common law the rule admitted no exceptions, and that may have been tolerable when there were few felonies and most of them, like robbery, rape, arson, and burglary, carried an evident risk of death. Modern criminal and regulatory codes have added a wide range of felonies that pose little physical danger, and courts and legislatures answered by limiting felony murder.49 A felony outside the restricted category, such as a felony forgery or a felony fraud, is therefore not a murder predicate however seriously the legislature grades it. The merger limit asks whether the felony is separate from the killing, while this limit asks whether the felony is the kind of crime that makes a death a natural risk, and a felony can fail either test alone.
Without the unlawful-act route, those felonies would produce an anomaly. As the earlier sections showed, in a jurisdiction that retains the doctrine a defendant who causes a death while committing an ordinary misdemeanor can be convicted of manslaughter without separate proof of recklessness. If a graver felony escaped the category merely because it was too intertwined with the killing or too undangerous for murder, the defendant who committed the more serious crime would be treated more leniently than the one who committed the lesser. Treating the killing as involuntary manslaughter closes that gap by keeping serious unlawful conduct inside homicide law while placing it at the tier below murder, where the conditions for murder are not met.
Statutory wording matters here, because jurisdictions do not phrase the predicate alike. Kansas states the safety net in its code: involuntary manslaughter covers a killing in the commission of, attempt to commit, or flight from a felony other than an inherently dangerous one, where the felony is enacted for the protection of human life or safety.50 Its first-degree murder provision takes the inherently dangerous felonies, so the manslaughter provision picks up what murder leaves behind, while limiting itself to felonies aimed at protecting life or safety.51 Michigan's formulation, by contrast, was shaped in recognition of the felony-murder doctrine and describes manslaughter as an unintentional killing in doing an unlawful act not amounting to a felony and not naturally tending to cause death or great bodily harm.52 Because a statute's wording can include or exclude felonies, it controls over the general rule stated here.
The foreseeability condition holds this liability to the risks the felony actually created. The rule requires that the death be a foreseeable consequence of the felony.53 The reason follows from what the unlawful-act theory does: it treats the defendant's deliberate choice to commit a crime as a substitute for proof of carelessness about death, and that substitution is defensible only when the death lies within the danger the crime carried. A death that nobody could have anticipated from the felony has no connection to the culpability the felony supplies.
Two short applications show where the line falls. During a barroom argument a defendant punches the victim in the head, and the statute grades a battery causing serious bodily injury as a felony. The victim falls, strikes the floor, and dies. Felony murder is unavailable because the battery is the very conduct that killed, so it merges into the homicide. A prosecutor who can prove a malicious intent to inflict great bodily harm may still charge murder on that basis, since at common law a willful and malicious infliction of great bodily harm that caused death was murder.54 If the jury finds no malice, the unlawful-act route remains as the floor beneath that charge, because a blow to the head carries an obvious risk of death and the death was a foreseeable consequence of the felony.55
Now change the felony. A defendant forges a deed, a felony in the jurisdiction, and the true owner suffers a fatal stroke on reading a letter about it weeks later. Forgery is not a dangerous felony, so felony murder is out, and the unlawful-act route fails as well, because altering a document carries no foreseeable risk of death to anyone.56 Both felonies fall outside felony murder, so the whole difference between the two cases lies in foreseeability, which is the fact the examiner will vary.
The most common error is treating the failure of felony murder as the end of the homicide analysis, when a felony that falls outside felony murder is exactly where the manslaughter analysis begins. Common-law larceny, for instance, is not a felony-murder predicate,57 so a death during a larceny cannot be murder on that theory. Whether the death is manslaughter then depends on the foreseeability condition if the answer uses the unlawful-act route, or on recklessness or negligence if it uses the ordinary routes, and a good answer names which route it is taking.