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Is there such thing as being charged with attempted manslaughter? During a scene of a movie where they're reading out another character's rap sheet they mention 'attempted manslaughter'. As I understand it manslaughter is the unlawful but unintentional killing of another person through some sort of criminal negligence. Calling it attempted manslaughter, in my eyes, implies some sort of intent thus attempted and manslaughter seem to contradict each other. I'm just wondering is this some sort of technical mistake in the movie or is there such a crime as attempted manslaughter?

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  • FWIW, U.S. states are divided on this question, in part, because manslaughter is defined differently in different places.
    – ohwilleke
    Jun 26, 2023 at 20:26
  • In some (many?) states vehicular manslaughter can be charged if a person dies during an illegal automotive street race. In those cases other participants can be charged with serious crimes even if they weren't the vehicle that killed the person, and it really just boils down to semantics whether it's called vehicular attempted manslaughter or something else (I believe some states do and others don't), but functionally that's exactly what occurred -- a failed attempt at the even more serious crime of manslaughter.
    – eps
    Jun 27, 2023 at 5:10
  • The definitions of manslaughter vary widely and you probably should narrow down the jurisdiction for an accurate answer. For instance, in some jurisdictions assisted suicide is considered manslaughter. If you setup the device for someone to use and it fails, wouldn't that constitute attempted manslaughter? Jun 27, 2023 at 18:37
  • Since there seem to be different definitions of manslaughter, maybe the question should be changed: If there is a crime that is a crime even without intent, is an "attempt" possible? For example can you attempt to kill someone through unintentional negligence?
    – gnasher729
    Jul 2, 2023 at 18:32

6 Answers 6

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Yes

For example, s270AB of the Criminal Law Consolidation Act 1935 says:

(1) Where—

(a) a person attempts to kill another or is a party to an attempt to kill another; and

(b) he would, if the attempt had been successfully carried to completion, have been guilty of manslaughter rather than murder,

he shall be guilty of attempted manslaughter.

Relevantly in SA, voluntary manslaughter occurs when a victim dies as the result of an offence that would otherwise amount to murder, but the defendant’s liability is reduced because of the presence of mitigating circumstances, such as provocation.

So, in circumstances of provocation (say) where the accused shoots at the victim but misses, attempted manslaughter is a possible charge. Most likely this would be charged as attempted murder but downgraded where the defence of provocation was made out.

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  • 3
    Could you please provide an example. Would an unsuccessfully attempted crime that would have resulted in manslaughter not just result in a charge of GBH, ABH or assult because as far as I understand manslaughter implies there was no malice aforethought or intent to kill?
    – Ethan
    Jun 25, 2023 at 23:33
  • @Ethan scenario provided
    – Dale M
    Jun 26, 2023 at 6:31
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    @Ethan : the main factor is premeditation. If Alice hates Bob, makes a plan to attack him, buys a gun specifically to kill Bob, waits for Bob at a place where she knows he will pass by (or lures him to a desolated place), then shoots at him and misses, it's attempted murder. However, if she never planned attacking Bob, but while talking with Bob, he says something she considers insulting/offensive, and in a fit of rage she pulls out a gun, shoots at Bob, and misses, that would be attempted manslaughter.
    – vsz
    Jun 26, 2023 at 7:29
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    @vsz In many jurisdictions, that rage example would be counted as a 2nd degree (attempted in this case) murder, i.e. a "heat of passion" situation, while manslaughter is generally classed as 3rd degree. Maybe if in the act of pulling out the gun which she never intended to actually fire, just threaten, but I don't know, maybe she dropped it and it went off? That might classify as assault - pointing a gun at someone is considered assault even if it's not loaded, possibly even if it's a fake but convincing toy gun. Jun 27, 2023 at 13:53
  • @DarrelHoffman : indeed, I should have added the standard disclaimer "depending on the jurisdiction and the circumstances" at the end.
    – vsz
    Jun 27, 2023 at 17:54
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Case law is limited, but has taken the view that attempted manslaughter is not possible

This has not been decided by the Supreme Court of Canada, but a court of appeal has said it is not possible. See R. v. Menard (1960), 130 C.C.C. 242 (Q.C.C.A.), leave to appeal to Supreme Court of Canada refused:

I find it impossible to conceive of attempted manslaughter; the French translation expresses my idea even better: how can one suppose that a person can mean to commit involuntary homicide?

While the Criminal Code allows for a provocation defence to reduce an offence of murder to one of manslaughter, one court has said it does not operate to reduce a charge of attempted murder to one of attempted manslaughter (R. v. Campbell (1977), 38 C.C.C. (2d) 6 (Ont. C.A.)).

The Court of Appeals of the State of New York has also accepted that:

An attempt to commit manslaughter is apparently a contradiction because the specific crime of manslaughter involves no intent and accordingly, an intention to commit a crime whose distinguishing element is lack of intent is logically repugnant.

People v. Foster, 19 N.Y.2d 150 (N.Y. 1967), quoting from People v. Brown, 21 A.D.2d 738 (N.Y. App. Div. 1964)

However, in Foster, the Court allowed a plea to attempted manslaughter to stand, in the circumstance where the charge was for attempted murder.

While there may be question whether a plea to attempted manslaughter is technically and logically consistent, such a plea should be sustained on the ground that it was sought by defendant and freely taken as part of a bargain which was struck for the defendant's benefit.

The logic

In these jurisdictions, an attempt requires intention to complete the entire actus reus of the offence. One of the elements of manslaughter's actus reus is the death of the victim. An attempted manslaughter therefore would require an intent to cause the death of the victim. But of course this intention to cause the death makes the crime no longer manslaughter in these jurisdictions, so therein lies the logical contradiction.

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  • Mord (murder) is a homicide with any one enumerated aggravating circumstance.
  • Totschlag (manslaughter) is a homicide without any of those enumerated circumstances.

In both of these, the perpetrator wanted a death to happen.

  • Fahrlässige Tötung (negligent killing) is a homicide with culpable negligence or recklessness, but no intent.
  • Vorsätzliche Körperverletzung mit Todesfolge (intentional battery with lethal results) is an intentional, unlawful injury which causes unintentional death.

So attempted Totschlag is possible (and actually a significant proportion of homicide-type cases), but the definion you gave sounds more like vorsätzliche Körperverletzung mit Todesfolge, where an attempt would be an attempted vorsätzliche Körperverletzung without the lethal results.

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    I would add that there are more crimes which are "mit Todesfolge" (with lethal results): e. g. "Raub" (robbery), "Brandstiftung" (incendiary) and sexual abuse in several ways.
    – glglgl
    Jun 26, 2023 at 8:46
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Yes, but attempted manslaughter/murder (Versuchte Totschlag) is not defined in the German Criminal Code (StGB).

Since Totschlag or a less serious case of murder is a Serious criminal offence (Verbrechen), the attempt always entails a criminal liability and therefore does not need to be expressly stated, because StGB §23 (1) applies.

For Less serious criminal offences (Vergehen), the attempt must be expressly stated to entail criminal liability.


Sources:

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  • I upvoted, but "less serious murder" sounds wrong to my ears, and it could be mixed up with an absence of besondere Schwere der Schuld.
    – o.m.
    Jun 26, 2023 at 16:38
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    @o.m. I agree, but less serious case of murder is the term used in the inofficial translation on the Gesetze im Internet site. Minor case of manslaughter is a more natural translation of Minder schwerer Fall des Totschlags in my mind, but nevertheless I have kept the original wording used in the linked pages. Jun 26, 2023 at 17:10
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As the other answers have pointed out, many jurisdictions have a crime in the books for actively killing a person, and an aggravated version translated as "murder". I'll just add the Finnish law's view on the matter.

Finnish criminal law has a crime called "tappo", literally "killing" but translated as manslaughter. The definition of the crime is simply "Whoever kills another person." Murder is defined by premeditation or the presence of aggravating factors. As with other severe crimes, the sections end with "An attempt is punishable". (Rikoslaki chapter 21, §1 and §2)

For an example, the Supreme Court's resolution 1999:20 was on a case where a person claimed that they simply meant to cut the victim without an intent to kill, and should be sentenced for aggravated assault. The court held that the cut only nearly missed major arteries and therefore was an attempted manslaughter.

There is a fourth crime, "kuolemantuottamus" or "causing death by negligence", which governs situations where neither intent nor a direct harmful act was present. This covers everything from a boss neglecting workplace safety to accidentally running over a pedestrian with your car.

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It looks like there's a path to this in Minnesota.

MN 609.17: "Attempts" says that:

Whoever, with intent to commit a crime, does an act which is a substantial step toward, and more than preparation for, the commission of the crime is guilty of an attempt to commit that crime

MN 609.20: Manslaughter in the first degree, P3 provides that someone is guilty of manslaughter who

intentionally causes the death of another person because the actor is coerced by threats made by someone other than the actor's coconspirator and which cause the actor reasonably to believe that the act performed by the actor is the only means of preventing imminent death to the actor or another

So, there's at least an argument to be made that someone who is being "coerced by threats" into killing someone else an "does an act which is a substantial step toward" that goal could be guilty of attempted manslaughter. That is, to my reading: if Alice puts a gun to my head and says "shoot Bob dead or I shoot you" and I pick up the gun on the table, that action could plausibly be charged as attempted manslaughter.

There's probably a parallel argument to 609.20P1:

intentionally causes the death of another person in the heat of passion provoked by such words or acts of another as would provoke a person of ordinary self-control under like circumstances, provided that the crying of a child does not constitute provocation

... but I strongly suspect that it'd be harder to prove the facts in that case.

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