Model Penal Code Commentaries, Comment to § 210.3

American Law Institute, Model Penal Code and Commentaries, Comment to § 210.3

(1980), 44–46.

1.     Common-Law Background. Initially, the common law did not distinguish murder from manslaughter. Early statutes, however, sought to differentiate among criminal homicides for the purpose of withdrawing benefit of clergy from the more heinous killings. This initiative led to the division of criminal homicides into murder, which retained its status as a capital crime, and the lesser offense of manslaughter. The courts defined murder in terms of the evolving concept of “malice aforethought” and treated manslaughter as a residual category for all other criminal homicides. Thus, in its classic formulation, manslaughter consisted of homicide without malice aforethought on the one hand and without justification or excuse on the other.

Traditional statements of the English law as it further evolved divided the offense into two types. First, homicide, even if intentional, was said to be without malice and therefore was considered manslaughter if committed in the heat of passion upon adequate provocation. Second, homicide was also manslaughter if it resulted from an act that was regarded as unduly dangerous to life or limb or from an act that was otherwise unlawful. This category thus encompassed conduct that was insufficiently reckless or negligent to constitute “depraved-heart” murder but at the same time exhibited culpability greater than needed for ordinary conceptions of civil negligence. It also included cases where the actor caused the death of another in the commission of an unlawful act, sometimes described as the misdemeanor-manslaughter analogue to the felony-murder rule. Courts commonly referred to the first category as voluntary manslaughter and the second as involuntary manslaughter, although the distinction had no grading significance at common law.

2.      Antecedent Statutory Variations. Virtually every state recognized the crime of manslaughter at the time the Model Penal Code was drafted. The majority of states, however, offered no explicit definition of the offense and hence determined its content by reference to the common law. 

An article in the Baltimore Law Review examines the classifications of common law homicide in detail. In relevant part, the article notes that: 

Common law homicide was classified as justifiable, excusable or felonious. Justifiable homicide included the execution of a lawful death sentence and the slaying of an outlaw resisting capture. Excusable homicide included killings that were accidental, prompted by self-defense or perpetrated by an infant or person of unsound mind. Although criminal, excusable homicide was deserving of a pardon from the king. The third class of homicide, felonious homicide, was divided into two main categories, murder and all other forms of homicide without justification or excuse. 

Although the penalty for felonious homicide was death, anyone who could read was entitled to a commutation of the death sentence under the device known as “the benefit of clergy.” Because of the obvious inadequacy of reading ability as the sole criterion for determining the degree of punishment, the benefit of clergy was abolished by a series of statutes for those homicides committed with malice aforethought. The device was retained, however, for other types of felonious homicides. Thus, the presence or absence of malice aforethought became the criterion for distinguishing murder, or nonclergyable felonious homicide, punishable by death, from felonious homicide subject to the benefit of clergy, later termed manslaughter. The remaining development of common law murder revolves in large part around the evolution of the various meanings of the term “malice aforethought.” 

There were also a few states, typified by Florida, that carried forward the substance of the common-law offense by defining manslaughter as “the killing of a human being by the act, procurement or culpable negligence of another where such killing shall not be justifiable or excusable homicide nor murder.” A more common variation was reflected in the federal manslaughter provision:

Manslaughter is the unlawful killing of a human being without malice. It is of two kinds:

Voluntary—Upon a sudden quarrel or heat of passion.

Involuntary—In the commission of an unlawful act not amounting to a felony, or in the commission in an unlawful manner, or without due caution and circumspection, of a lawful act which might produce death.

Statutes that followed this pattern typically departed from the common law by providing a grading differential between voluntary and involuntary manslaughter.