Jim Porter: Murder or manslaughter — what’s the difference? | SierraSun.com

Jim Porter: Murder or manslaughter — what’s the difference?

Charles Elmore is mentally ill. He had repeatedly been institutionalized and diagnosed as psychotic.

On the day of the killing, he hallucinated that 53-year old Ella Suggs was some kind of the threat. He stabbed her with a paintbrush handle sharpened to a point that he had taken from his rehabilitation center. (Sounds like premeditation to me.)

At his trial Elmore admitted stabbing Suggs but then said he did not do it; then said he did not know why he did it. In essence he hallucinated a threat and killed poor Ella Suggs.

Elmore was convicted of first degree murder. He appealed the conviction which resulted in a thorough discussion of the difference between first degree murder, second degree murder and manslaughter, in the context of self-defense. I found the discussion informative and hope you do as well.

The case is similar to Oscar Pistorius’ killing of his girlfriend where he was convicted of culpable homicide, essentially manslaughter, but not murder.


Homicide is the killing of one human being by another. Homicide is not always criminal. Murder and manslaughter are two forms of criminal homicide, murder being “the unlawful killing of a human being … with malice aforethought.”


A killing with express malice formed willfully, deliberately and with premeditation constitutes first-degree murder.

Second-degree murder is the unlawful killing of a human being with malice aforethought but without the additional elements, such as willfulness, premeditation and deliberation, that would support a conviction of first-degree murder.


Manslaughter, a lesser-included offense of murder, is an unlawful killing without malice. There are three kinds of manslaughter: Voluntary, involuntary and vehicular.

Two factors that often preclude the formation of malice and reduce murder to voluntary manslaughter are heat of passion and unreasonable self-defense. Think Oscar Pistorius.

Self-defense, when based on a reasonable belief that killing is necessary to avert an imminent threat of death or great bodily injury, is a complete justification and is not a crime. If a normal person, whatever that is, well, like me, would believe killing is necessary to protect against death or great bodily injury, that’s a reasonable killing and not a crime.

A killing committed when the fear of death or great bodily injury is unreasonable is not justifiable, but it also is not murder.

A person who holds an honest but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury does not harbor malice and commits no greater offense than manslaughter.

Unreasonable self-defense is a shorthand description of voluntary manslaughter.


The case of People v. Charles Elmore is whether a purely delusional perception of threats to his personal safety entitled Elmore to make the claim of unreasonable self-defense, i.e. manslaughter not murder.

Are you entitled to claim you should have been convicted of manslaughter versus murder if your insanity and unfounded, delusional belief of some threat to your personal safety caused you to kill someone?

The Court said no; however, after his conviction Charles Elmore is entitled to make the claim at the post-conviction sanity phase of his case, where the Court makes a ruling on his sanity or insanity, where Elmore will likely be found not guilty by reason of insanity.


The Court analysis got pretty complicated at the end so this column likewise fell apart at the end, but you are now armed for the next cocktail party — to spout off about the difference between murder one, two and all varieties of manslaughter.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee, Tahoe City and Reno, Nevada. Jim’s practice areas include: real estate, development, construction, business, HOAs, contracts, personal injury, mediation and other transactional matters. He may be reached at porter@portersimon.com or http://www.portersimon.com.