Excusable homicide occurs when a person unintentionally causes a death while doing something lawful, in a lawful way, using ordinary care, and without any intent to harm. Excusable homicide also involves a death that happens by accident during a sudden emotional reaction to serious provocation or during a sudden, unplanned physical confrontation. Excusable homicide is defined in 21 O.S. § 731. Examples of excusable homicide include an accident or misfortune while performing a lawful act, an accidental killing in the heat of passion, an accidental killing during sudden combat, and accidental discharge of a legally possessed weapon. There are circumstances in which excusable homicide is not a valid defense for taking someone’s life such as when performing an unlawful act or when the killer used an unlawfully possessed firearm. Excusable homicide is similar to justifiable, but differs in that it does not involve a legally authorized use of deadly force.
What Is Excusable Homicide?
Excusable homicide is defined as a killing that is excused under 21 O.S. § 731 when a death results from accident and misfortune either while performing a lawful act by lawful means with usual and ordinary caution and without unlawful intent, or when the killing occurs by accident and misfortune in the heat of passion upon sudden and sufficient provocation or sudden combat. The heat-of-passion provision applies when a person reacts immediately to a sudden and sufficient provocation and the fatal result occurs unintentionally during that emotional response. The sudden-combat provision applies when an unexpected, spontaneous physical encounter occurs and a death results accidentally during that brief confrontation.
Under Oklahoma law, the term “misfortune” is legally equivalent to “misadventure,” meaning an unintended death caused during otherwise lawful or legally excused conduct. The Oklahoma Court of Criminal Appeals has stated in OUJI-CR 8-29 that when excusable homicide is claimed under the heat-of-passion or sudden-combat provision, no undue advantage was taken, no dangerous weapon was used, and the killing must not have occurred in a cruel or unusual manner.
What Are Examples of Excusable Homicide?
Examples of excusable homicide include accidents and misfortune that occurs while performing a lawful act, an accidental killing in the heat of passion, an accidental killing during sudden combat, an accidental death caused by misadventure, an accidental discharge or unintended use of a lawfully possessed weapon, and an accidental death during a minor physical altercation initiated by the deceased.
Accident and Misfortune While Performing a Lawful Act
An example of an excusable homicide falls under the “accident and misfortune while performing a lawful act” provision is a homeowner who is lawfully repairing a loose handrail on an interior staircase and uses ordinary, commonly accepted tools and safety practices. While carefully lifting the rail into position, the rail unexpectedly shifts and strikes a nearby guest, who loses balance, falls down the stairs, and later dies from the injuries. The homeowner was engaged in a lawful activity, used lawful means, exercised ordinary caution, and had no intent to harm anyone, but the death occurred unintentionally as a result of the accident.
Accidental Killing in the Heat of Passion Upon Sudden and Sufficient Provocation
An example of excusable homicide that falls under the “accidental killing in the heat of passion upon sudden and sufficient provocation” provision is as follows. During a family gathering, an argument breaks out. One family member loudly confronts another and shoves them in the chest. Reacting instinctively and emotionally, the other person pushes the aggressor away with their hands. The aggressor stumbles backward and strikes their head on the edge of a table. The aggressor later dies from the injury. The death occurs during a sudden emotional reaction to immediate and sufficient provocation. The response remains a lawful physical act. No undue advantage is taken, no dangerous weapon is used, and the fatal result is not the product of cruel or unusual conduct.
Accidental Killing During a Sudden Combat
An example of excusable homicide that falls under the “accidental killing during a sudden combat” provision is as follows. Two coworkers unexpectedly encounter each other in a parking lot after a brief and heated exchange of words about a work-related dispute. The confrontation is not planned, and both individuals immediately engage in a short, spontaneous physical struggle. During the scuffle, one person loses their footing, falls backward onto the pavement, and strikes their head on a concrete parking barrier. The injured person later dies from the head injury. The death occurs during an unexpected and spontaneous physical confrontation, the encounter was not pre-planned, no party takes an unfair advantage, no dangerous weapon is used, and the fatal result is not committed in a cruel or unusual manner.
Accidental Death Caused by Misadventure
An example of excusable homicide that falls under the “accidental death caused by misadventure” provision is as follows. A person is lawfully operating a small fishing boat on a public lake and following posted safety rules and navigation guidelines. While carefully maneuvering to avoid submerged debris, the boat unexpectedly strikes a hidden object and sharply turns. A passenger loses balance, falls overboard, and is fatally injured by the boat’s movement. The operator had no intent to harm anyone, and the death is the unintended result of otherwise lawful conduct that unexpectedly produced a fatal outcome.
Accidental Discharge or Unintended Use of a Lawfully Possessed Weapon
An example of excusable homicide that falls under the “accidental discharge or unintended use of a lawfully possessed weapon” provision is as follows. A person who is lawfully in possession of a firearm is unloading the firearm at home after returning from a trip to the shooting range. They use normal safety procedures while attempting to clear the chamber, but the firearm unexpectedly discharges due to a mechanical malfunction. The round strikes a nearby friend in another room, who later dies from the injury. The person’s possession and handling of the firearm are lawful. The discharge occurs as a mishap during ordinary and careful handling, and the circumstances support a finding of accident and misfortune rather than any intentional use of force.
Accidental Death During a Minor Physical Altercation Initiated by the Deceased
An example of excusable homicide that falls under the “accidental death during a minor physical altercation initiated by the deceased” provision is as follows. An individual is standing in line at a local convenience store when another customer becomes angry and shoves them from behind. The person is in a place where they have a right to be and responds only by turning and briefly pushing the aggressor away to protect themself. No dangerous weapon is used and the physical response is limited. The aggressor loses balance, falls, strikes their head on the floor, and later dies from the injury. The fatal result occurs unintentionally during a minor physical altercation initiated by the deceased.
When is Excusable Homicide Not a Valid Legal Defense?
In Oklahoma, excusable homicide is not a valid defense when the defendant was engaged in an unlawful act at the time of the death, unlawfully possessed the weapon used in the homicide, took an undue advantage, or caused the death in a cruel or unusual manner. Excusable homicide is only warranted when the evidence shows the defendant’s underlying conduct was otherwise lawful. If the conduct itself is unlawful, the excusable homicide does not apply. Individuals charged with a homicide that does not qualify as excusable homicide must contact an Oklahoma criminal defense lawyer for legal representation.
What Are the Differences Between Excusable and Justifiable Homicide?
The main difference between excusable homicide and justifiable homicide lies in whether the death results from an unintentional, lawful act or from a legally authorized use of deadly force. Excusable homicide occurs when someone performs a lawful act that unintentionally causes the death of another person. Excusable homicide is based on accident, misfortune, or limited heat-of-passion situations, and it does not involve a legal right to kill. By contrast, justifiable homicide involves the lawful taking of life as a matter of right, typically in self-defense or other authorized uses of deadly force under 21 O.S. § 733 in Oklahoma. In practical defense analysis, excusable homicide focuses on the absence of unlawful intent and unlawful conduct, while justifiable homicide focuses on whether the use of deadly force itself was lawful under the circumstances.
