Second Degree Murder Overview

Second-degree murder is ordinarily defined as: 1) an intentional killing that is not premeditated or planned, nor committed in a reasonable "heat of passion"; or 2) a killing caused by dangerous conduct and the offender's obvious lack of concern for human life. Second-degree murder may best be viewed as the middle ground between first degree murder and voluntary manslaughter.

For example, Dan comes home to find his wife in bed with Victor. At a stoplight the next day, Dan sees Victor riding in the passenger seat of a nearby car. Dan pulls out a gun and fires three shots into the car, missing Victor but killing the driver of the car.

Some jurisdictions make a distinction between different situations that constitute murder and prosecute the charges differently. These states usually break the crime of murder into first degree murder and second degree murder.

First vs. Second Degree Murder

The exact definition of second degree murder varies between jurisdictions, but there are a few common elements that second degree murder shares across jurisdictions. The essential elements of second-degree murder differ from those of first degree murder. The criminal act for both crimes is the same: the killing of another person. What separates the two is the perpetrator's mental state at the time of the killing.

First degree murder involves a premeditated killing, meaning the killer made a plan to kill the victim and then carried that plan out. Second degree murder does not require premeditation, however. Instead, there are three typical situations that can constitute second degree murder:

  • A killing done impulsively without premeditation, but with "malice aforethought"
  • A killing that results from an act intended to cause serious bodily harm
  • A killing that results from an act that demonstrates the perpetrators "depraved indifference" to human life

Impulsive Killings with "Malice Aforethought"

These sorts of killings occur in the heat of the moment, and don't involve any premeditation on the part of the killer. At the moment the murder occurs, the killer definitely intends to kill the victim, but up until that moment, the killer had no intent or plan to commit murder.

For example, Adam and Bill are neighbors, and lately they've been having disagreements over the fence between their properties. Adam pays Bill a visit to discuss the matter, but gets angry in the process, pulls out a gun and shoots and kills Bill.

Adam didn't have any plan to kill Bill when he went to Bill's house that day, so there was no premeditation. At the time of the murder, however, Adam fully intended to kill Bill because of his anger over the fence, so there was malice aforethought. Most states that distinguish between degrees of murder would consider that a second degree murder.

Intent to Cause "Serious Bodily Harm"

A second category of acts that constitute second degree murder are acts where the perpetrator intends to cause serious bodily harm with full knowledge that death could result from the act. The killer might not necessarily intend to kill the victim, but knows that death is a likely outcome.

For example, in the situation above, instead of shooting Bill, Adam grabs a shovel and hits Bill in the head with all his strength. While Adam didn't explicitly intend to kill Bill when he hit him, he did intend to hit him with the shovel knowing that such a blow to the head carried with it a distinct possibility of death. Adam killing Bill in this way would be classified as second degree murder.

"Depraved Indifference" to Human Life

The third main type of second degree murder occurs when a victim dies as a result of the perpetrator's depraved indifference to human life. Depraved indifference to human life may be defined differently depending on the jurisdiction, but it generally means that the perpetrator had an utter disregard for the potential damage their actions could cause to other people.

Going back to Adam and Bill, imagine that instead of hitting Bill over the head with a shovel, Adam grabbed his gun and fired into a crowd of onlookers. Adam didn't necessarily mean to kill anyone, but also didn't give any thought to the harm that his actions could cause to people in the crowd. This demonstrates Adam's depraved indifference to human life. If one of Adams bullets struck and killed anyone in the crowd, then Adam has probably committed second degree murder.

Felony Murder

Some states also classify killings that occur during the commission of another felony as second degree murder, although other states characterize these felony murders as murder in the first degree. An individual can be found guilty of felony murder even if he or she didn't actually kill anyone and only intended to commit the original felony.

For example, if Adam and Bill went into a convenience store intending to rob it at gunpoint (which is a felony), and Adam ended up shooting the store owner, a jury could find Bill guilty under the felony murder rule since he was involved in the commission of the original felony when the killing took place. Whether this felony murder would constitute a first or second degree murder, however, depends on the law in the state in which it took place.

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