Offenses Against Persons

ORS 163.118
Manslaughter in the first degree


(1)

Criminal homicide constitutes manslaughter in the first degree when:

(a)

It is committed recklessly under circumstances manifesting extreme indifference to the value of human life;

(b)

It is committed intentionally by a defendant under the influence of extreme emotional disturbance as provided in ORS 163.135 (Extreme emotional disturbance as affirmative defense to murder in the second degree), which constitutes a mitigating circumstance reducing the homicide that would otherwise be murder to manslaughter in the first degree and need not be proved in any prosecution;

(c)

A person recklessly causes the death of a child under 14 years of age or a dependent person, as defined in ORS 163.205 (Criminal mistreatment in the first degree), and:

(A)

The person has previously engaged in a pattern or practice of assault or torture of the victim or another child under 14 years of age or a dependent person; or

(B)

The person causes the death by neglect or maltreatment, as defined in ORS 163.115 (Murder in the second degree); or

(d)

It is committed recklessly or with criminal negligence by a person operating a motor vehicle while under the influence of intoxicants in violation of ORS 813.010 (Driving under the influence of intoxicants) and:

(A)

The person has at least three previous convictions for driving while under the influence of intoxicants under ORS 813.010 (Driving under the influence of intoxicants), or its statutory counterpart in any jurisdiction, in the 10 years prior to the date of the current offense; or

(B)

(i) The person has a previous conviction for any of the crimes described in subsection (2) of this section, or their statutory counterparts in any jurisdiction; and

(ii)

The victim’s serious physical injury in the previous conviction was caused by the person driving a motor vehicle.

(2)

The previous convictions to which subsection (1)(d)(B) of this section applies are:

(a)

Assault in the first degree under ORS 163.185 (Assault in the first degree);

(b)

Assault in the second degree under ORS 163.175 (Assault in the second degree); or

(c)

Assault in the third degree under ORS 163.165 (Assault in the third degree).

(3)

Manslaughter in the first degree is a Class A felony.

(4)

It is an affirmative defense to a charge of violating:

(a)

Subsection (1)(c)(B) of this section that the victim was a dependent person who was at least 18 years of age and was under care or treatment solely by spiritual means pursuant to the religious beliefs or practices of the dependent person or the guardian of the dependent person.

(b)

Subsection (1)(d)(B) of this section that the defendant was not under the influence of intoxicants at the time of the conduct that resulted in the previous conviction. [1975 c.577 §2; 1981 c.873 §6; 1997 c.850 §3; 2007 c.867 §2; 2011 c.291 §2]

Notes of Decisions

Under Former Similar Statute (Ors 163.115)

One cannot "attempt" a crime involving an element of recklessness. State v. Smith, 21 Or App 270, 534 P2d 1180 (1975), Sup Ct review denied

In General

In trial of defendant charged under this section, both state and defendant were entitled to instruction on lesser included offense of criminally negligent homicide under ORS 163.145. State v. Goldsberry, 30 Or App 1087, 569 P2d 646 (1977), Sup Ct review denied

Where defendant, charged with and convicted of murder, requested instruction on "partial responsibility" defense as to this section or ORS 163.125 (manslaughter), proof of intent was not required for conviction of lesser included manslaughter offenses and requested instruction was properly refused. State v. Armstrong, 38 Or App 219, 589 P2d 1174 (1979), Sup Ct review denied

Where there was evidence that victim was instigator of shooting, that he assaulted defendant's girlfriend and defendant's relatives present at the time of shooting and girlfriend testified to extreme fright and concern for small children in vicinity as result of victim's erratic behavior, jury was warranted in not finding the absence of extreme emotional disturbance to have been proven beyond a reasonable doubt as required to convict for attempted murder and instruction on attempted manslaughter was proper. State v. Carson, 292 Or 451, 640 P2d 586 (1982)

Under evidence that defendant was participating in a game of "Russian roulette," his mental state at the time he handed a gun to decedent which discharged and caused decedent's death was vital to manslaughter conviction and refusal of trial judge to give requested instruction focusing on this conduct was error. State v. Van Gorder, 56 Or App 83, 641 P2d 584 (1982), Sup Ct review denied

"Extreme indifference to human life" does not create additional mens rea requirement. State v. Belcher, 124 Or App 30, 860 P2d 903 (1993), Sup Ct review denied

First degree manslaughter is lesser-included offense of murder. State v. Henry, 138 Or App 286, 907 P2d 1133 (1995)

First degree manslaughter is not lesser included offense to aggravated murder. State v. Merideth, 149 Or App 164, 942 P2d 803 (1997), Sup Ct review denied

Where defendant is charged with causing death of dependent person, "recklessly" refers to disregarding risk of causing death and not to disregarding risk of causing circumstance that later results in death. State v. Crosby, 342 Or 419, 154 P3d 97 (2007)

Reversal of conviction for manslaughter was required where use of jury instruction requiring jury to consider circumstances which reflect defendant's lack of concern for social and legal responsibility allowed jury to conclude that recklessness alone was sufficient to prove "extreme indifference to the value of human life" as required under this section. State v. Downing, 276 Or App 68, 366 P3d 1171 (2016)

Law Review Citations

In General

18 WLR 186 (1982); 48 WLR 273 (2011)

§§ 163.005 to 163.145

Law Review Citations

51 OLR 459-493 (1972)

Chapter 163

Law Review Citations

51 OLR 427-637 (1972)


Source

Last accessed
Jun. 26, 2021