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Voluntary manslaughter: when should murder be reduced to manslaughter?

Axelrod & Associates, P.A.

When someone is on trial for murder, their charges could be reduced to voluntary manslaughter by the jury – but only if the trial court gives them a jury instruction on manslaughter and includes voluntary manslaughter as an option on the verdict form.

The court is only required to give a jury instruction on voluntary manslaughter when there is some evidence to support the reduced charge. On the other hand, if there is any evidence that would support a verdict of voluntary manslaughter instead of murder, the trial court must give the jury instruction and put the option of voluntary manslaughter on the verdict form…

In State v. Payne, for example, the SC Court of Appeals reversed Payne’s murder conviction, finding that the trial court should have given the jury the option of voluntary manslaughter.

Although there was conflicting testimony presented at trial, and even the defendant’s testimony may not have supported voluntary manslaughter, the combined testimony of multiple witnesses was sufficient to allow a jury to find that 1) there was sufficient legal provocation and 2) the defendant was acting in the heat of passion when he shot and killed the alleged victim.


“The trial court is required to charge a jury on a lesser-included offense if there is any evidence from which it could be inferred the lesser, rather than the greater, offense was committed.”

When there is conflicting testimony, the judge doesn’t get to decide which witness they believe, and the judge doesn’t get to “weigh” the evidence to decide whether the defendant is guilty of murder or guilty of manslaughter.

That is the jury’s decision, not the judge’s.

So, what is voluntary manslaughter?

SC’s appellate courts have defined voluntary manslaughter as an unlawful killing that was committed 1) in the heat of passion and 2) upon sufficient legal provocation:

Voluntary manslaughter is the intentional and unlawful killing of a human being in sudden heat of passion upon sufficient legal provocation. The sudden heat of passion, upon sufficient legal provocation, while it need not dethrone reason entirely, or shut out knowledge and volition, must be such as would naturally disturb the sway of reason, render the mind of an ordinary person incapable of cool reflection, and produce what, according to human experience, may be called an uncontrollable impulse to do violence. In determining whether the act which caused death was impelled by heat of passion or by malice, all the surrounding circumstances and conditions are to be taken into consideration, including previous relations and conditions connected with the tragedy, as well as those existing at the time of the killing.

If there is any evidence of both legal provocation and heat of passion, the jury gets to decide whether the defendant is guilty or not guilty, and, if the defendant is guilty, whether they are guilty of homicide or voluntary manslaughter:

“To warrant the court eliminating the charge of manslaughter, there must be no evidence whatsoever tending to reduce the crime from murder to manslaughter.” State v. Starnes, 388 S.C. 590, 596, 698 S.E.2d 604, 608 (2010). “If there is any evidence from which it could be inferred the lesser, rather than the greater, offense was committed, the defendant is entitled to such charge.” Id. “Whether a voluntary manslaughter charge is warranted turns on the facts. If the facts disclose any basis for the charge, the charge must be given.” Id. at 597, 698 S.E.2d at 608.

So, what does “legal provocation” mean? And what is the “heat of passion?”

What is Legal Provocation?

Legal provocation usually means “an overt, threatening act or physical encounter.”

Words alone are not enough when the death is caused by use of a deadly weapon – the “words must be accompanied by the appearance of an assault—by some overt, threatening act—which could have produced the heat of passion.”

Fear alone is also not enough for sufficient legal provocation – “the fear must be the result of sufficient legal provocation and cause the defendant to lose control and create an uncontrollable impulse to do violence.”

What is the Heat of Passion?

The “heat of passion” means “an uncontrollable impulse to do violence,” caused by the legal provocation.

If someone assaults me, if I did not do anything myself to cause the situation, if I have a reasonable fear of great bodily injury or death, and if I then kill the person to protect myself, I may be entitled to a jury instruction on self defense. If the jury agrees, the resulting verdict is an acquittal because it was a lawful, justified killing.

If someone assaults or threatens me but I don’t have a reasonable fear of death or great bodily injury, or if I was at fault myself in bringing on the difficulty, and I then kill the other person while “in the heat of passion,” suffering from “an uncontrollable impulse to do violence,” then I may be entitled to a jury instruction on voluntary manslaughter.

If the jury agrees, the resulting verdict is guilty of voluntary manslaughter. It may be small consolation if the judge sentences me to the maximum penalty of 30 years, but it is not murder.


The Court notes that, although they are inconsistent, both self defense and voluntary manslaughter must be included in the jury instructions when there is evidence to support them:

[E]vidence of self-defense and voluntary manslaughter may coexist and . . . a charge on self-defense and voluntary manslaughter may be warranted” under the appropriate circumstances.

If there is any evidence to support legal provocation and heat of passion, the court must charge the jury on voluntary manslaughter and put voluntary manslaughter on the verdict form as a possible verdict the jury can choose.

If there is any evidence to support self defense, the court must also charge self defense and instruct the jury that, if they find self defense, they must find the defendant not guilty.


Payne’s murder conviction is vacated unless the SC Supreme Court reverses the SC Court of Appeals’ decision, which is not likely.

He will be sent from SCDC to the Barnwell County detention center, where he 1) can ask the court to set bond as he awaits trial and 2) will face a retrial on the murder charges. If the testimony at his retrial does not change substantially, a new jury will have the option of acquitting him based on self-defense, convicting him again of murder, or convicting him of the lesser offense of voluntary manslaughter.


If you have been charged with a crime in SC, call the SC criminal defense trial attorneys at Axelrod & Associates now at 843-916-9300 or email us online to speak with a Myrtle Beach criminal defense lawyer on the Axelrod team today.

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