In 1987 the Illinois legislature created the offenses of “first degree murder” and “second degree murder.”
First Degree Murder:
A person who kills an individual without lawful justification commits first degree murder if, in performing the acts which cause the death: (1) he either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another; or (2) he knows that such acts create a strong probability of death or great bodily harm to that individual or another; or (3) he is attempting or committing a forcible felony other than second degree murder. 720 ILCS 5/9-1 (a)
Breaking Down the Elements of First Degree Murder.
1) Kills An Individual:
There is no first-degree murder unless the accused kills an “individual.”
2) Without Lawful Justification
The law requires that the killing of another be “without lawful justification,” meaning, if a defendant justifiably killed another in self-defense, he or she could not be convicted of first-degree murder. In order to raise the issue of lawful justification, the accused is required to offer evidence in support of a defense. 720 ILCS 5/3-2(a).
3) Without Mitigating Factors
- If there are certain mitigating factors, making the charge less severe ,then the charge of first degree murder can be reduced to second degree murder.Examples of mitigating factors:• If a defendant kills another while acting under a sudden and intense passion resulting from a serious provocation.
- If a defendant kills another while subjectively believing it is justifiable, such as where he or she believes the killing is in self-defense.
720 ILCS 5/9-2(a)(1)-(2).
The burden of proof is on the defendant to prove either mitigating factor.
Second Degree Murder:
Second Degree Murder may also be referred to as voluntary manslaughter.
A person commits the offense of second degree murder when he or she commits the offense of first degree murder as defined in paragraphs (1) or (2) of subsection (a) of Section 9-1 of this Code and either of the following mitigating factors are present:
(1) At the time of the killing he or she is acting under a sudden and intense passion resulting from serious provocation by the individual killed or another whom the offender endeavors to kill, but he or she negligently or accidentally causes the death of the individual killed; or
(2) At the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code, but his or her belief is unreasonable.
(b) Serious provocation is conduct sufficient to excite an intense passion in a reasonable person.
(c) When evidence of either of the mitigating factors defined in subsection (a) of this Section has been presented, the burden of proof is on the defendant to prove either mitigating factor by a preponderance of the evidence before the defendant can be found guilty of second-degree murder. The burden of proof , however, remains on the State to prove beyond a reasonable doubt each of the elements of first degree murder and, when appropriately raised, the absence of circumstances at the time of the killing that would justify or exonerate the killing under the principles states in Article 7 of the Code. 720 ILCS 5/9-2 (2012)
Second Degree Murder Arises in Two Different Situations:
1) Where a defendant kills another under a “sudden and intense passion.”
“Sudden and intense passion” arises when:
- A sudden, violent impulse supposed to be irresistible that had not been negated during a cooling off period
- Where the defendant endeavors to kill the provoker but instead accidently kills an innocent person 720 ILCS 5/902(a)(1), ILL. ANN. STAT. ch. 38, para. 9-2 (Smith-Hurd 1979)
2) Where a person kills another under the unreasonable belief that his or her actions are justifiable
- For example: If a killing occurs when the defendant is acting under an unreasonable belief that deadly force is necessary to protect himself, or another from death or great bodily harm
Interesting Point: The only categories of provocation that Illinois law considers reasonable and adequate are (1) substantial physical injury or assault, (2) mutual quarrel or combat, (3) adultery with the offender’s spouse, and (4) illegal arrest. People v. Garcia, 165 Ill. 2d 409, 429-30, 651 N.E.2d 100, 110 (1995)
Interesting Point: The different between a justified killing, like self-defense, and an unjustified killing amounting to second degree murder is that in the former instance, the belief that the use of force to defend oneself is reasonable under the circumstances, but in the latter that belief is unreasonable. People v. Parker, 194 Ill. App. 3d 10489, 1055, 551 N.E.ed 1012, 1017 (1st Dist. 1990).
Involuntary Manslaughter and Reckless Homicide
A person who unintentionally kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly, except in cases in which the cause of death consists of the driving of a motor vehicle or operating a snowmobile, all-terrain vehicle, or watercraft, in which case the person commits reckless homicide. A person commits reckless homicide if he or she unintentionally kills an individual while driving a vehicle and using an incline in the road, to cause the vehicle to become airborne. 720 ILCS 5/9-3(a).
Interesting point: Involuntary manslaughter and reckless homicide require proof that an unjustified killing of another was caused by recklessness. If the defendant demonstrates that the killing was justified, there is no crime. People v. Singleton, 41 Ill. App. 3s 665, 669, 354 N.E.2d 464, 477 (3d Dist. 1976)
Lesser Included Offenses:
Where a defendant commences an attack upon his victim, which ultimately results in the victim’s death, a criminal conviction for homicide will preclude the defendant from being convicted of a lesser included offense or battery or aggravated battery. People v. Lyons, 26 Ill. App. 3d 193, 198-99, 324 N.E.2d 677, 681