Ladas wrote:
Diamondeye wrote:
It exists though, or there wouldn't be a manslaughter charge.
Not quite accurate. The concept of manslaughter as a separate charge from murder is not dependent on the "imperfect defense".
Yes, that's true. I should have said "voluntary mansluaghter". Involuntary manslaughter is different. For example:
http://codes.ohio.gov/orc/2903Code:
2903.03 Voluntary manslaughter.
(A) No person, while under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the person into using deadly force, shall knowingly cause the death of another or the unlawful termination of another's pregnancy.
(B) No person, with a sexual motivation, shall violate division (A) of this section.
(C) Whoever violates this section is guilty of voluntary manslaughter, a felony of the first degree.
(D) As used in this section, "sexual motivation" has the same meaning as in section 2971.01 of the Revised Code.
Amended by 129th General AssemblyFile No.178,SB 160, §1, eff. 3/22/2013.
2903.04 Involuntary manslaughter.
(A) No person shall cause the death of another or the unlawful termination of another's pregnancy as a proximate result of the offender's committing or attempting to commit a felony.
(B) No person shall cause the death of another or the unlawful termination of another's pregnancy as a proximate result of the offender's committing or attempting to commit a misdemeanor of any degree, a regulatory offense, or a minor misdemeanor other than a violation of any section contained in Title XLV of the Revised Code that is a minor misdemeanor and other than a violation of an ordinance of a municipal corporation that, regardless of the penalty set by ordinance for the violation, is substantially equivalent to any section contained in Title XLV of the Revised Code that is a minor misdemeanor.
(C) Whoever violates this section is guilty of involuntary manslaughter. Violation of division (A) of this section is a felony of the first degree. Violation of division (B) of this section is a felony of the third degree.
(D) If an offender is convicted of or pleads guilty to a violation of division (A) or (B) of this section and if the felony, misdemeanor, or regulatory offense that the offender committed or attempted to commit, that proximately resulted in the death of the other person or the unlawful termination of another's pregnancy, and that is the basis of the offender's violation of division (A) or (B) of this section was a violation of division (A) or (B) of section 4511.19 of the Revised Code or of a substantially equivalent municipal ordinance or included, as an element of that felony, misdemeanor, or regulatory offense, the offender's operation or participation in the operation of a snowmobile, locomotive, watercraft, or aircraft while the offender was under the influence of alcohol, a drug of abuse, or alcohol and a drug of abuse, both of the following apply:
(1) The court shall impose a class one suspension of the offender's driver's or commercial driver's license or permit or nonresident operating privilege as specified in division (A)(1) of section 4510.02 of the Revised Code.
(2) The court shall impose a mandatory prison term for the violation of division (A) or (B) of this section from the range of prison terms authorized for the level of the offense under section 2929.14 of the Revised Code.
Effective Date: 01-01-2004
Note that in Ohio, "murder" is a higher offense than a felony of the first degree, and "aggravated murder" higher still. They are unique in that regard; all other felonies in Ohio fall into the range from First to Fifth Degree.
The defense against manslaughter wouldn't be fundamentally different from the defense against murder; in both cases the defense will argue that the killing was entirely justified, or will argue that the defendant was not the one who did the killing (obviously not the case here). The only exception would be if the defense knows they have no chance of avoiding a conviction, but are trying to argue it was manslaughter, not murder, in order to get a lower penalty.
The concept of a lesser included offense isn't there to excuse the jury from reasonable doubt; the lesser included offense must still be met to that standard. It's there so that a defendant can't escape from the consequences of a crime he committed just because there was reasonable doubt about the elements that would have made it a higher offense.
For example, if a man snatches an old lady's purse, that would be robbery in Ohio. If he used a gun, that would be aggravated robbery. Let's say that a man snatches a lady's purse from her hands, and the lady claims he pointed a gun at her, but a police officer sees this happen, chases the robber, catches him, and finds no gun. The prosecution might go with aggravated murder on the basis that the lady claimed she saw a gun, and then claim that the robber ditched it or something, but let's say the cop testifies he never saw any gun. The jury might be convinced that the robbery occured, but not that the gun was used, and thus issue guilty for robbery but not guilty of aggravated robbery.
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