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Second Degree Murder

Second degree murder is any murder which is not first degree murder and can include 1) “depraved heart” murder, 2) murder which is provoked, and 3) second degree felony murder.

Depraved heart murder is the unintended killing of another person. It requires 1) a willful and wanton disregard of human life, 2) unreasonable human risk in the act being performed, and  3) the act must result in the death of another. Ordinary or even gross negligence is not enough to satisfy these elements. The defendant’s conduct must involve a substantial or very high degree of risk to human life. The prime example of a depraved heart murder is use of a deadly weapon or application of force which causes a person to die, even if the intent of the defendant was only to injure, as opposed to kill. An example of this would be if someone were to shoot someone in the leg, only intending to wound the victim, however the victim ends up bleeding out and dying because the defendant hit the victim’s femoral artery.  While there was no intent to kill, and thus no deliberation, the act of shooting someone is a reckless act and shows a disregard of risk to human life, which resulted in death, and therefore is second degree murder.  The general guideline in depraved heart murder cases is that if a reasonable man would have realized the risk involved in his actions, then the defendant should be found guilty.

A murder which is provoked by the victim will generally reduce a first degree murder to second degree.  However, provocation is something that is not a concrete legal theory and is ultimately up to a jury to decide whether the provocation of any defendant is sufficient to reduce a first degree murder to second degree.

Second degree felony murder is usually charged when the felony committed is not one of the enumerated felonies listed above, the felony is inherently dangerous, and someone still dies as a result.   The underlying felony’s elements are evaluated by the court in the abstract in order to determine if the felony is inherently dangerous; it is not evaluated based on the facts of a particular case.  As with first degree felony murder, all co-conspirators or participants become liable for the actions of those that they willfully commit the crime with. 

Transferred intent

Transferred intent is the theory that intent to harm one person, will be transferred to whomever it actually harms.  Therefore, if a defendant intends to kill one person by shooting at them, but misses and it hits another, ultimately killing that other person, the defendant is just as criminally liable to the person actually hit.  It will not be a defense to state that the premeditation and deliberation were only concerning one specific person, because the intent formed will transfer to whomever the defendant ultimately hurts when they attempt to harm a specific victim. 

***This article is only meant as a general overview of the crimes falling under the category of homicide. Murder is an extremely complex crime with many nuances and exceptions which can increase or decrease the degree of murder one can be charged with, affecting the possible punishments one can receive, and vary by state and by statute. If you or someone you know is charged with any crime, as always, you should consult a local state attorney, preferably one practicing only criminal law.  You can always look for your local criminal attorney at or contact your state Bar association.  When it comes specifically to any homicide crime, the criminal attorney sought should have some working knowledge and experience in this particular area of criminal law.


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