Also known as: homicides by misadventure · excusable homicide · accidental homicide
Written by attorneys — see sources below.
An excusable homicide consisting of the unintentional killing of another while engaged in a lawful act without criminal negligence or intent. The classification removes criminal liability because the actor's conduct was authorized or permitted and the death resulted from pure accident rather than fault.
Hunter Hughes lawfully hunted deer on his own property with a valid license. While aiming at a buck, his arrow glanced off a tree and struck a hidden trespasser, killing the man instantly. Because Hughes engaged only in a permitted activity and harbored no intent or negligence toward the victim, the death qualified as homicide by misadventure and carried no criminal liability.
Holly Hayes practiced archery at an approved range on her farm. An arrow she released struck a concealed wild animal that bolted into the path of a neighboring child, causing fatal injury. The act of target practice was lawful and Hayes exercised due care, so the resulting death constituted homicide by misadventure rather than criminal homicide.
On August 6, 1975, defendant Francis Aaron and his cousin Thomas St. Onge went to the home of Aaron's estranged wife Myra in Jackson, Michigan. Aaron was armed with a .22 caliber rifle and intended to frighten his wife into returning to him. When they arrived, Myra was not present, but her mother, brother, and two small children were there. Aaron and St. Onge waited for Myra to return. Upon her arrival an argument ensued between Aaron and his wife. Aaron's mother-in-law called the police. Aaron then shot and killed his wife and also shot and wounded his brother-in-law. Aaron was charged with first-degree murder contrary to MCL 750.316 and with assault with intent to commit murder contrary to MCL 750.83. The prosecutor proceeded on theories of premeditated murder and felony murder with arson as the underlying felony. At the preliminary examination the district judge bound Aaron over on the premeditated murder theory but refused to bind over on the felony-murder theory due to insufficient evidence of arson. The prosecutor appealed to the circuit court which reversed and held there was sufficient evidence of arson to bind over on the felony-murder theory. Aaron was tried before a jury in the Jackson Circuit Court on both theories. The jury returned a verdict of guilty of second-degree murder. Aaron appealed to the Court of Appeals which affirmed the conviction. Aaron applied for leave to appeal to the Michigan Supreme Court. The court granted leave limited to the issue of the continuing validity of the felony-murder doctrine in the state. The consolidated opinion also addresses two other cases. In People v. Thompson the defendant was convicted of first-degree felony murder resulting from a death during an armed robbery after the jury was instructed that intent to rob was sufficient without proving malice. The Court of Appeals reversed due to the lack of a malice instruction. In People v. Wright the defendant was convicted of two counts of first-degree felony murder for setting fire to a dwelling causing two deaths. The trial court instructed that proof the killings occurred during arson was sufficient and the Court of Appeals reversed for removing the malice element from the jury.
View caseHomicide by misadventure occurs during a lawful act performed without negligence or intent to harm, placing it in the excusable category that eliminates criminal liability. Criminal homicide covers all other unlawful killings that lack justification or excuse. The distinction turns on whether the underlying act was lawful and whether fault contributed to the death.
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…in self-defense were only excusable. See, generally, authorities cited supra note 34. The distinction between justifiable and excusable homicide was important because in the latter case the slayer, considered to be not wholly free from blame, suffered a forfeiture of his goods. F. Wharton, Homicide § 3 at 211 (1855). However, with…
…of the park had shot at his own deer, and without any ill intent had killed the boy by the glance of his arrow, this had been homicide by misadventure, and no felony. "So if one shoot at any wild fowle upon a tree, and the arrow killeth any reasonable creature afar off, without any evill intent in him, this is per infortunium…
…the generality of the [felony murder] rule in the United States and the frequency with which it is deemed applicable to even accidental homicide, principled argument in its defense is hard to find"); Proposed New Jersey Penal Code, Vol. II Commentary, 157 (stating the same view as the preceding quotation from the Model Penal…
The actor must have been engaged in a lawful activity, the death must have been unintentional, and no criminal negligence or recklessness may have contributed to the result. Courts examine whether the conduct itself was permitted and whether the actor took reasonable precautions under the circumstances.
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An internal protocol alone does not supply the legal authorization or excuse required for excusable homicide. The common law looks to whether the underlying act was lawful under recognized legal standards rather than private rules, and whether the actor avoided negligence toward known risks.
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Knowledge of a specific person's location in the impact zone typically introduces a duty of care that, if breached by failure to warn or take precautions, removes the killing from the excusable category. Pure misadventure requires absence of fault toward foreseeable victims.
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