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The Crime of Homicide is a very complex area of the Law.   If you or a loved one are charged with a Homicide offense; you should definitely have the servcices of a experienced Homicide Defene Attorney.   I have handled more than twenty Homicide cases and have personally tried more than Five First Degree Murder Trials.  I have also tried eight complex trials concerning Wilfull Deliberate Premiditated Attempted Murder.  I have won aquitalls on Attempted Murder cases, as well as partial acquitals on several First Degree Murder cases.  Lets look at the law of Murder. 

For the prosecution to prove a Murder charge  there must be an Intentional unlawful killing of a human being by another without justification, and Malice.  Lets look at those factors one at a time. 

The killing must be Unlawful  in other words the killing cant be done in self defense or in the defense of another person. 

Self Defense is present when a person reasonably believes he or someone else is in danger of death or serious bodily injury. 

Example: John walks up to Jim with a Gun and points the gun at Jim.  Jim fearing for his life pulls a knife out and kills John this is an example of self defense. 

There must be Malice for a killing to be Murder.

Malice is present when a person intends to kill a person. Or two factors are present the physical factor:  A person did an act IE the physical act that was inherently dangerous to human life.  And   willfully disregarded that danger IE the Mental Element.    

Even if the prosecution has proven Malice beyond a reasonable doubt they still have another Element to prove before a person can be held liable for First Degree Murder, and that is the killing was done with additional elements.

The Murder must have been done with with Deliberation and Premiditation.  Premiditated Muder is what the prosecution must prove.  They do not have to prove any specific period of time.  Premiditation can happen quickly.  However several factors can be taken into consideration as to wether a crime was premiditated or simply a rash impulsive decision.  If a person acted rashly or impulsively it is less likely that they acted with deliberation and premiditation.  


Provocation can reduce a First Degree Murder to Second Degree Murder and Second Degree Murder to Manslaughter lets first look at the effect provocation has on First Degree Murder.  Provocation can reduce a First Degree Murder to Second Degree Murder.  This is because if a person was acting out of provocation than they are less likely to be acting out of deliberation and premiditation.  There is a Jury Instruction that deals with this given to Jurors when deliberating First Degree Murder cases. 


So to recap if a person is acting out of provocation or rashly and impulsively and wihtout deliberation or premiditation the killing is not First Degree Murder. 


Second Degree Murder

Second Degree Murder is the unlawful intentional killing of a human being by another with Malice.  Malice is the same as explained above. 

the main difference from Murder in the First Degree, is that Second Degree Murder does not require deliberation and premiditation, only that the killing was done intentionally not accidentally and that killing was done with Malice.

Defenses to Second Degree Murder

Provocation can reduce a Second Degree Murder to Manslaughter. 

Example any provocation that would make a person act without due cuation.  For example a man suspects his wife is cheating and comes home to find her in bed with another man.


if a person accidentally kills another person he is not acting with malice and cannot be guilty of first or second degree murder. 

Self Defense or Defense of others like first degree murder if you reasonably believe in the need to use deadly force to protect your life or somoene elses life you are not guilty of First or Second Degree Murder. 

There are several other defenses to Murder in the first and Second Degrees this is not meant to be an exhaustive list, rather a basic outlne. 

lets looks that the offense of Manslaghter

Manslaughter is an intentional killing without Malice.

Many Attorneys believe that Manslaughter somehow negates Malice this is not true if somoen is acting out of Provocation uppon Sudden Quarrel or in the Heat of Passion

or in Imperfect Self Defense than they were simply acting out of provocation sudden quarrel or in the heat of passion or in imperfect self defense not out of Malice there is no negation Malice is simply not present. 


Lets start with Provocation

lets continue with the example of the man coming home and finding his wife in bed with another man that is provocation if he kills the man he was acting out of provocation rahter than Malice of course depending on other factors.

Heat of Passion

an intentional Killing that occurs upon provocation that would provoke a reasonable person to act with passion, and that killing occurs before the killers passions have cooled has occured under the heat of passion and is Manslaughter.

Again the example of the man that comes home to find his wife in bed with another man.   If he was to kill the other man before his passions had cooled he has the defense of Manslughter.  However, if he left cooled of talked to his friends for a while the defense may not work because his passions may have cooled.

Imperfect Self Defense

If a person acted out of Imperfect Self Defense rather than out of Malice the crime is Manslaughter.

Imperfect Self Defense is when a person honestly believes that he must use self defense but that belief is unreasonable.

if a persona honestly believes he has the need to use self defense to protect his life or someones elses life from death or serious bodily injury even if he was unreasonable in that belief the crime is Manslaughter

Example:  John sees Mike who he knows does not like him Mike has made previous threats against John, and John knows Mike is capable of carrying out those threats.  they see each other and John kills Mike who he believed was reaching for a gun.  Even though this belief was unreasonable becuase John honestly believed he needed to used deadly force the crime is Manslaughter.       

Gerald Schwab, Jr.


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Law Office of Gerald Schwab, Jr.
Fresno Criminal Defense Attorney
5588 N Palm Ave,
Fresno, CA 93704 View Map
Phone: 559.441.1418