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)

In the 10 years prior to the date of the current offense the person has been convicted of at least three of any of the following offenses in any combination:
(i)
Driving under the influence of intoxicants in violation of ORS 813.010 (Driving under the influence of intoxicants), or its statutory counterpart in another jurisdiction;
(ii)
A driving under the influence of intoxicants offense in another jurisdiction that involved the impaired driving or operation of a vehicle, an aircraft or a boat due to the use of intoxicating liquor, cannabis, a controlled substance, an inhalant or any combination thereof; or
(iii)
An offense in another jurisdiction that involved driving or operating a vehicle, an aircraft or a boat while having a blood alcohol content above that jurisdiction’s permissible blood alcohol content; or

(B)

Intentionally left blank —Ed.
(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; 2021 c.480 §4]

Source: Section 163.118 — Manslaughter in the first degree, https://www.­oregonlegislature.­gov/bills_laws/ors/ors163.­html.

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
Criminal homicide
163.095
“Aggravated murder” defined
163.105
Sentencing options for aggravated murder
163.107
Murder in the first degree
163.109
Alternative proof of certain victims of murder in the first degree
163.111
Pleading, proof and stipulation regarding previous conviction element in prosecution for murder in the first degree
163.115
Murder in the second degree
163.117
Causing or aiding suicide as defense to charge of murder
163.118
Manslaughter in the first degree
163.125
Manslaughter in the second degree
163.135
Extreme emotional disturbance as affirmative defense to murder in the second degree
163.145
Criminally negligent homicide
163.147
Crime category classification for manslaughter in the second degree and criminally negligent homicide
163.149
Aggravated vehicular homicide
163.150
Sentencing for aggravated murder
163.155
Sentencing for murder of pregnant victim
163.160
Assault in the fourth degree
163.165
Assault in the third degree
163.168
Crime category classification for assault in the third degree
163.175
Assault in the second degree
163.185
Assault in the first degree
163.187
Strangulation
163.190
Menacing
163.191
Intimidation by display of a noose
163.192
Endangering a person protected by a Family Abuse Prevention Act restraining order
163.193
Assisting another person to commit suicide
163.195
Recklessly endangering another person
163.196
Aggravated driving while suspended or revoked
163.197
Hazing
163.200
Criminal mistreatment in the second degree
163.205
Criminal mistreatment in the first degree
163.206
Exceptions to criminal mistreatment
163.207
Female genital mutilation
163.208
Assaulting a public safety officer
163.211
Definitions for ORS 163.211 to 163.213
163.212
Unlawful use of an electrical stun gun, tear gas or mace in the second degree
163.213
Unlawful use of an electrical stun gun, tear gas or mace in the first degree
163.215
Definitions for ORS 163.215 to 163.257
163.225
Kidnapping in the second degree
163.235
Kidnapping in the first degree
163.245
Custodial interference in the second degree
163.257
Custodial interference in the first degree
163.261
Definitions for ORS 163.263 and 163.264
163.263
Subjecting another person to involuntary servitude in the second degree
163.264
Subjecting another person to involuntary servitude in the first degree
163.266
Trafficking in persons
163.269
Victim assertion of defense of duress
163.275
Coercion
163.285
Defense to coercion
163.305
Definitions
163.315
Incapacity to consent
163.325
Ignorance or mistake as a defense
163.345
Age as a defense in certain cases
163.355
Rape in the third degree
163.365
Rape in the second degree
163.375
Rape in the first degree
163.385
Sodomy in the third degree
163.395
Sodomy in the second degree
163.405
Sodomy in the first degree
163.408
Unlawful sexual penetration in the second degree
163.411
Unlawful sexual penetration in the first degree
163.412
Exceptions to unlawful sexual penetration prohibition
163.413
Purchasing sex with a minor
163.415
Sexual abuse in the third degree
163.425
Sexual abuse in the second degree
163.426
Crime category classification for sexual abuse in the second degree
163.427
Sexual abuse in the first degree
163.431
Definitions for ORS 163.431 to 163.434
163.432
Online sexual corruption of a child in the second degree
163.433
Online sexual corruption of a child in the first degree
163.434
Provisions applicable to online sexual corruption of a child
163.435
Contributing to the sexual delinquency of a minor
163.445
Sexual misconduct
163.448
Definitions for ORS 163.452 and 163.454
163.452
Custodial sexual misconduct in the first degree
163.454
Custodial sexual misconduct in the second degree
163.465
Public indecency
163.466
Classification of felony public indecency
163.467
Private indecency
163.472
Unlawful dissemination of an intimate image
163.476
Unlawfully being in a location where children regularly congregate
163.479
Unlawful contact with a child
163.505
Definitions for certain provisions of ORS 163.505 to 163.575
163.515
Bigamy
163.525
Incest
163.535
Abandonment of a child
163.537
Buying or selling a person under 18 years of age
163.545
Child neglect in the second degree
163.547
Child neglect in the first degree
163.555
Criminal nonsupport
163.565
Evidence of parentage
163.575
Endangering the welfare of a minor
163.577
Failing to supervise a child
163.580
Display of sign concerning sale of smoking devices
163.665
Definitions
163.670
Using child in display of sexually explicit conduct
163.676
Exemption from prosecution under ORS 163.684
163.682
Exceptions to ORS 163.665 to 163.693
163.684
Encouraging child sexual abuse in the first degree
163.686
Encouraging child sexual abuse in the second degree
163.687
Encouraging child sexual abuse in the third degree
163.688
Possession of materials depicting sexually explicit conduct of a child in the first degree
163.689
Possession of materials depicting sexually explicit conduct of a child in the second degree
163.690
Lack of knowledge of age of child as affirmative defense
163.693
Failure to report child pornography
163.700
Invasion of personal privacy in the second degree
163.701
Invasion of personal privacy in the first degree
163.702
Exceptions to ORS 163.700 and 163.701
163.705
Polygraph examination of victims in certain criminal cases prohibited
163.707
Forfeiture of motor vehicle used in drive-by shooting
163.709
Unlawful directing of light from a laser pointer
163.715
Unlawful use of a global positioning system device
163.730
Definitions for ORS 30.866 and 163.730 to 163.750
163.732
Stalking
163.735
Citation
163.738
Effect of citation
163.741
Service of stalking protective order
163.744
Initiation of action seeking citation
163.750
Violating a court’s stalking protective order
163.753
Immunity of officer acting in good faith
163.755
Conduct for which stalking protective order may not be issued
163.760
Definitions for ORS 163.760 to 163.777
163.763
Petition to circuit court for relief
163.765
Restraining order
163.767
Hearing
163.770
Appearance by telephone or electronic communication device
163.773
Enforcement of restraining order
163.775
Renewal and modification of restraining order
163.777
Fees or undertaking may not be required
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