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What’s the Difference between Murder and Manslaughter?

The simplest difference between murder and manslaughter is whether or not there was malice aforethought to the act.

Malice aforethought generally means that the person intended to kill another human being. It is when someone acts with an intent to kill by expressing malice or a disregard for human life. When malice aforethought is present, it is murder.

Malice aforethought doesn’t mean someone has to act with hatred towards someone else. It means that someone with an unprovoked disregard for human life acted in a way that would most likely result in the death of someone else.

Malice can be expressed or implied. When it is expressed, it means killing the victim was intentional. When it is implied, it means the killing resulted from an intentional act, the act, or consequences thereof, were dangerous to human life, and the act was intentionally performed with the knowledge of the danger it entailed and with conscious disregard for human life.


First-Degree Murder
First-degree murder requires premeditation and deliberation in addition to malice.

In order to be convicted of first-degree murder one of the following has to be true:

  • The killing was intentional, done consciously, or planned. Example – A man waits inside his ex-girlfriend’s apartment for her to come home. He kills her when she gets home.
  • The killing was committed during certain specified felonies, such as robbery or rape. Example – A person set a house on fire thinking there was no one inside, but there was someone inside and they were killed.

Felony Murder Rule
The felony murder rule applies if someone dies while certain defined felonies are being committed. The murder does not have to be intentional, but it does need to be logically related to the felony committed. For example, if someone sets fire to a building and someone dies in the fire, then the felony murder rule applies. This unintentional death would make the arsonist liable for first-degree murder charges.

First-Degree Felony Murder
The felony murder rule only applies to these felonies:

  • Arson
  • Robbery
  • Burglary
  • Carjacking
  • Train wrecking
  • Kidnapping
  • Mayhem
  • Torture
  • Certain sex crimes (including rape, unlawful acts of sodomy, unlawful acts of oral copulation, forcible acts of penetration, and lewd acts with a minor)

Special Circumstance Murder
Special circumstance murder is first-degree murder for which the possible penalties are the death penalty or life in a state prison without the possibility of parole.

Some of the special circumstances that bring these penalties to first-degree murder include:

  • The murder was intentional and committed for financial gain.
  • There were multiple murder victims.
  • A police officer, firefighter, prosecutor, judge, juror, or elected official was murdered.
  • A witness was murdered to prevent them from testifying.
  • The victim was murdered in the process (before, during, or after) committing any of the felonies under the felony-murder rule.
  • A person was murdered because of their race, religion, nationality, or country of origin.
  • A person was murdered in a drive-by shooting.
  • Murdering someone for the benefit of a street gang.

Second-Degree Murder
Second-degree murder is willful, but it is not premeditated. It means that someone meant to cause or knew that they were causing destruction, but they didn’t necessarily mean to kill someone in the process. Anything that is not considered first-degree murder is considered second-degree murder.


There are two main types of manslaughter: voluntary manslaughter and involuntary manslaughter.

Voluntary Manslaughter
Voluntary manslaughter is when one person kills another person during a sudden fight, in the heat of passion, or in unreasonable self-defense. In order to be guilty of voluntary manslaughter you have to have:

  • Intentionally killed another person with no legal excuse for doing so, or
  • Acted with a conscious disregard for human life.

Involuntary Manslaughter
Involuntary manslaughter is when one person kills another person unintentionally with the following elements:

  • A California infraction or misdemeanor, or a crime that is not an inherently dangerous felony, was committed that led to involuntary manslaughter
  • A lawful act was done in an unlawful manner
  • The crime was committed with criminal negligence
  • The actions caused another person’s death

An experienced local criminal defense lawyer can help you understand the difference between murder and manslaughter. They can also advise you on the legal defenses for murder and manslaughter. A good homicide defense lawyer like Mark Broughton will fight for you and for your right to a fair trial.

Contact Mark Broughton’s office today if you need help.

Disclaimer: The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only. Information on this website may not constitute the most up-to-date legal or other information.