OUJI-CR 4-102



No person may be convicted of manslaughter in the first degree unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, the death of a human;

Second, perpetrated unnecessarily (while resisting an attempt by the deceased to commit a crime)/(after an attempt by the deceased to commit a crime had failed);

Third, perpetrated by the defendant(s).


Statutory Authority: 21 O.S. 1991, § 711(3).

Committee Comments

The Commission has found no cases which rely specifically on subsection 3 of section 711 in discussing the validity of a first-degree manslaughter conviction. Thus, since the parameters of the statute remain unclear, the Commission has relied on common law principles in resolving questions raised by its provisions.

The first question is raised by incorporation of the term "unnecessarily" in the statute. The term could be narrowly construed as synonymous with "unlawfully," so as to negate the applicability of any legal justification for the slaying, such as self-defense or justifiable or excusable homicide. Or the term could be construed as meaning that the slaying was "unnecessary" in order to accomplish successful resistance to the attempted crime. This latter construction should be rejected for two reasons. First, it requires a strained reading of the statute, since "unnecessarily" appears to govern both the resistance to the attempt and the subsequent killing after the attempt has aborted. Second, the latter construction implies that the defendant is justified in slaying another where such killing is "necessary" in order to resist an attempted criminal act by the person slain, a contention that is untenable outside the parameters of the doctrines relating to self-defense and excusable or justifiable homicide. Thus, the Commission has concluded that "unnecessarily" is equivalent to "unlawfully" or "without legal justification." An "unnecessary" killing constituting first-degree manslaughter would thus be found under circumstances where the defendant did not initiate the difficulty, yet honestly but unreasonably believes either that he is in danger of injury, or that slaying is the only way to prevent injury. The defendant's unreasonableness disallows the defense of self-defense, yet the fact that his honest, albeit erroneous, beliefs negate malice aforethought indicates that his crime is first degree manslaughter. Cf. Husband v. State, 503 P.2d 563 (Okl. Cr. 1972) (defendant shot wife who wielded knife and attempted to stab him); Fry v. State, 91 Okl. Cr. 326, 218 P.2d 643 (1950) (defendant stabbed deceased after physical assault); Wingfield v. State, 81 Okl. Cr. 146, 160 P.2d 945 (1945) (defendant killed deceased with shotgun blast after deceased moved his hand to a pocket as though to draw a gun). In many cases, where adequate provocation is found, the defendant may demonstrate that the erroneous beliefs he entertained impelled fear in him, so as to produce a "heat of passion" in satisfaction of section 711(2).

Mammano v. State, 333 P.2d 602 (Okl. Cr. 1958), illustrates lack of necessity in killing after an attempt by the deceased to perpetrate a crime has failed. In that case, the deceased grabbed the defendant's hand and placed it on the deceased's private parts while both were sitting in the front seat of an automobile. The defendant freed his hand and stabbed the deceased with a switch-blade knife. In affirming the defendant's first-degree manslaughter conviction, the court declared:

[T]his homicide was entirely unnecessary.... [T]he assault had already been repelled by the defendant jerking his hand away from the decedent's grasp. ... If [decedent] had persisted in his assault, there was nothing to prevent the defendant from leaving the automobile.... He did not have to kill [decedent] in order to protect his person.

Id. at 604.

The second question raised by the statute is whether the attempted crime must be directed against the person or property of the defendant. The use of the language "resisting" indicates an affirmative answer. However, since section 733 of Title 21 permits use of deadly force where the defendant lawfully attempts to defend enumerated persons from imminent peril (see Committee Comments accompanying OUJI-CR 8-2), it seems reasonable to infer that, in a case where the defendant kills while harboring a belief that his spouse, child, parent, master, or mistress is in imminent peril, although his belief is erroneous, an instruction relating to section 711(3) should be given. The term "resisting" seems to militate against broadening the applicability of section 711(3) to killings committed in an attempt to forestall any crime being attempted by the deceased.

Finally, utilization of the word "crime" necessitates an inquiry as to whether the conduct of the deceased must constitute a felony, and, if not, whether it must be the type of misdemeanor offense which poses a threat to the safety and security of the defendant's person or property. Incorporation of the term "crime," as opposed to "felony," is indicative of a negative response to the former question. Thus, if a murder charge is reducible to manslaughter in the first degree where the defendant kills either to prevent a misdemeanor by deceased or subsequent to the failure of an attempt by deceased to perpetrate a misdemeanor, the term "crime" should be restricted to those offenses which, inherently or potentially, endanger the safety or security of the person or property of the defendant .