It is sometimes said that the distinction between voluntary manslaughter, a Class D felony, and involuntary manslaughter, a Class F felony, is a matter of intent. Involuntary manslaughter is frequently described an unintentional killing. That description fails, however, to fully distinguish the offenses since voluntary manslaughter also may be based on a death that the defendant did not intend.
Indeed, unlawfully killing another with the specific intent to do so is murder rather than either type of manslaughter. So what makes some unlawful but unintentional killings voluntary manslaughter and others involuntary manslaughter? It is the intent associated with the underlying act (such as the assault that proximately caused the victim’s death) as well as the nature of that act (was it a felony or inherently dangerous versus simply culpably negligent) that makes the difference.
Voluntary manslaughter. Voluntary manslaughter is the unlawful killing of a human being without malice and without premeditation and deliberation. State v. Norris, 303 N.C. 526, 529 (1981). To prove voluntary manslaughter, the State must establish (1) the defendant killed the victim by committing an intentional and unlawful act that is a felony or that is likely to cause death or great bodily harm; and (2) the defendant’s act was the proximate cause of the victim’s death. See State v. Ray, 299 N.C. 151, 158 (1980); State v. Coleman, 254 N.C. App. 497, 501 (2017).
Voluntary manslaughter includes two specific types of unlawful killings: (1) killing a person in sudden anger or heat of passion, which negates the malice required for second degree murder, and (2) a killing for which the defendant has an imperfect right to self-defense (meaning that the defendant either was the aggressor in the affray or used excessive force). See State v. Hairston, 269 N.C. App. 52, 57 (2019). Even though these types of killings are included, voluntary manslaughter may be based on actions that include neither heat of passion nor self-defense. See Coleman, 254 N.C. App. At 501 (rejecting the defendant’s argument that the trial court should have dismissed the voluntary manslaughter charge because no evidence was presented to suggest that the defendant shot his wife in the heat of passion; explaining that acting in the heat of passion is not an element of involuntary manslaughter).
Examples of unlawful killings that may constitute voluntary manslaughter are:
- stabbing the victim during a fist fight (see State v. Hairston, 269 N.C. App. 52 (2019));
- killing a spouse immediately upon discovering the spouse and a paramour in the act of intercourse (see State v. Simonovich, 202 N.C. App. 49 (2010));
- running over the victim with a car while attempting to ram into a structure near where the victim is standing (see State v. English, 241 N.C. App. 98 (2015)); and
- lethally shooting the victim while not intending to kill him (see State v. Tolson, 229 N.C. App. 682 (2013) (unpublished)).
Classification and punishment. Voluntary manslaughter is a Class D felony, see G.S. 14-18, which generally requires an active sentence of imprisonment, even for a defendant with no prior record, see G.S. 15A-1340.11(1); 15A-1340.17. A defendant with four or fewer prior record points who is convicted of voluntary manslaughter may, however, be placed on probation if the court finds extraordinary mitigation. G.S. 15A-1340.13(g). Cf. State v. Leonard, 258 N.C. App. 129 (2018) (trial court did not abuse its discretion in determining that none of the many mitigating factors were extraordinary in this assisted suicide case in which husband drowned his ailing wife, notwithstanding the “unusual and tragic facts”).
Involuntary manslaughter. Involuntary manslaughter is the unlawful killing of a person without malice, without premeditation and deliberation, and without the intent to kill or inflict serious bodily injury. State v. Powell, 336 N.C. 762, 767 (1994). Thus, the offense encompasses the unintentional killing of a person that is proximately caused by (1) an unlawful act not amounting to a felony nor naturally dangerous to human life, or (2) a culpably negligent act or omission, such as an intentional, willful, or wanton violation of a statute or ordinance designed to protect human life or limb. Id.
Even an unlawful killing carried out with a deadly weapon may constitute involuntary manslaughter so long as the perpetrator acted without any intent to kill or inflict serious injury. See State v. Buck, 310 N.C. 602 (1984) (trial court erred by failing to instruct jury on involuntary manslaughter when defendant’s evidence tended to show that the defendant grabbed a knife because he was scared of the victim who also had a knife, that defendant threw the victim to the floor, that the victim was stabbed with the defendant’s knife as the defendant fell on top of him while holding the knife, and that defendant did not intend to stab the victim); see also State v. Drew, 162 N.C. App. 682, 687 (2004) (involuntary manslaughter instruction supported by evidence that the defendant was surprised in the bathroom of his home by a man whom he did not immediately recognize, that the intruder lunged or swung at the defendant, and that the defendant immediately swung back holding the knife he was carrying in an attempt to keep the victim away rather than to injure or kill the victim).
Additional examples of unlawful killings that may constitute involuntary manslaughter are:
- participating in a fight without weapons and delivering an unlawful blow that causes the defendant’s death (see, e.g., State v. Gomola, 257 N.C. App. 816 (2018));
- driving while impaired and proximately causing the death of another (see State v. Lopez, 363 N.C. 535 (2009));
- assisting and encouraging 19-year-old to possess and consume the alcohol that caused his death (State v. Noble, 226 N.C. App. 531 (2013);
- violating G.S. 14-315.1 by improperly storing firearm, which was accessed by defendant’s three-year-old son who shot himself in the head within ten seconds of discovering it (State v. Lewis, 222 N.C. App. 747 (2012));
- permitting the dogs that killed the victim to run free in violation of a city ordinance (State v. Powell, 336 N.C. 762 (1994)); and
- depositing the victim in an isolated area in an injured, intoxicated, and under-clothed condition on a very cold night (State v. Fisher, 228 N.C. App. 463 (2013)).
Classification and punishment. Involuntary manslaughter is a Class F felony, see G.S. 14-18, for which a defendant with fewer than ten prior record points may be sentenced to probation, see G.S. 15A-1340.11(6); 15A-1340.17.
Lesser included offenses. Both voluntary manslaughter and involuntary manslaughter are lesser-included offenses of first and second-degree murder. See State v. Greene, 314 N.C. 649 (1985). The element common to all four degrees of homicide is that there be an unlawful killing of a human being. Id. at 651. Voluntary manslaughter is the unlawful killing of a person without malice, or premeditation and deliberation. Involuntary manslaughter, a lesser included offense of voluntary manslaughter, is an unlawful killing without malice, without premeditation and deliberation, and without intent to kill or intent to inflict serious bodily injury. Id.
Jury instructions. A trial judge is required to instruct the jury regarding any lesser included offense if the evidence would permit the jury rationally to find the defendant guilty of the lesser offense and to acquit him of the greater. State v. Millsaps, 356 N.C. 556 (2002). In the context of an unlawful killing committed with a firearm, an instruction for the lesser included offense of involuntary manslaughter would require evidence of “‘the absence of intent to discharge the weapon.’” State v. Coleman, 254 N.C. App. 497 (2017) (quoting State v. Robbins, 309 N.C. 771, 779 (1983), and determining that trial court did not err in failing to give involuntary manslaughter instruction where there was no evidence aside from the defendant’s automatism defense, which the jury rejected, that he did not intent to shoot his wife).
The erroneous delivery of an involuntary manslaughter instruction is reversible error if there is a reasonable possibility that the defendant would have been acquitted had the instruction not been given. State v. Ray, 299 N.C. 151, 164 (1980) (determining that it was reversible error to submit involuntary manslaughter as a permissible verdict when all the evidence demonstrated that the defendant intentionally shot the decedent after the decedent had shot and wounded defendant’s brother and had threatened to shoot the defendant; opining that had the charge of involuntary manslaughter not been submitted, the jury would have been forced to determine whether defendant’s intentional shooting of the decedent was self-defense).
There are several pattern jury instructions for both types of manslaughter depending on the nature of the act that led to the death.
NCPI – CRIM. 206.40 VOLUNTARY MANSLAUGHTER INCLUDING SELF-DEFENSE (IN THE HEAT OF PASSION OR IMPERFECT SELF-DEFENSE), ALSO INCLUDING INVOLUNTARY MANSLAUGHTER.
N.C.P.I. – CRIM. 206.41 VOLUNTARY MANSLAUGHTER NOT INVOLVING SELF-DEFENSE, ALSO INCLUDING INVOLUNTARY MANSLAUGHTER.
N.C.P.I.—CRIM 206.50 INVOLUNTARY MANSLAUGHTER-OTHER THAN BY AUTOMOBILE.
N.C.P.I.—CRIM. 206.55 INVOLUNTARY MANSLAUGHTER-(INCLUDING MISDEMEANOR DEATH BY VEHICLE.)
N.C.P.I —CRIM. 206.55A INVOLUNTARY MANSLAUGHTER—(IMPAIRED DRIVING).
Takeaway. The difference between voluntary manslaughter and involuntary manslaughter is a matter of intent. The unlawful but unintentional killing of another can satisfy both statutes. Voluntary manslaughter requires an intentional act that is a felony or that is likely to cause death or great bodily harm. Involuntary manslaughter, in contrast, may be based on an intentional act that is not naturally dangerous to human life or upon an act of culpable negligence.