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CHAPTER 22-16

HOMICIDE AND SUICIDE

22-16-1      Homicide defined.
22-16-1.1      Fetal homicide--Felony--Application.
22-16-2      Corpus delicti--Proof beyond reasonable doubt.
22-16-3      Relationship between accused and victim bearing on degree of homicide.
22-16-4      Homicide as murder in the first degree.
22-16-5      Premeditated design to effect the death defined.
22-16-6      Anger or voluntary intoxication not reducing degree of crime.
22-16-7      Homicide as murder in the second degree.
22-16-8      Lack of intent to injure not reducing degree of crime.
22-16-9      Repealed.
22-16-10, 22-16-11.      Repealed.
22-16-12      Classification of murder.
22-16-13, 22-16-14.      Repealed.
22-16-15      Homicide as manslaughter in first degree--Felony.
22-16-16 to 22-16-19. Repealed.
22-16-20      Manslaughter in the second degree.
22-16-20.1      Lesser included offenses.
22-16-20.2      Lesser included offense instruction.
22-16-21 to 22-16-29. Repealed.
22-16-30      Excusable homicide--Lawful acts.
22-16-31      Excusable homicide--Heat of passion--Provocation--Sudden combat--Limitations.
22-16-32      Justifiable homicide-Law enforcement officers or at command of officer--Overcoming resistance--Capturing or arresting fleeing felons.
22-16-33      Justifiable homicide--Apprehending felon--Suppressing riot--Preserving peace.
22-16-34      Justifiable homicide--Resisting attempted murder--Resisting felony on person or in dwelling house.
22-16-35      Justifiable homicide--Defense of person--Defense of other persons in household.
22-16-36      Suicide defined.
22-16-37      Aiding and abetting suicide--Felony.
22-16-37.1 to 22-16-37.7. Transferred.
22-16-38      Repealed.
22-16-39      Incapability of suicide no defense.
22-16-40      Duty of law officers to report suicide attempts.
22-16-41      Vehicular homicide.
22-16-42      Transferred.


     22-16-1.   Homicide defined. Homicide is the killing of one human being, including an unborn child, by another. Homicide is either:
             (1)      Murder;
             (2)      Manslaughter;
             (3)      Excusable homicide;
             (4)      Justifiable homicide; or
             (5)      Vehicular homicide.

Source: SDC 1939, § 13.2001; SL 1985, ch 176; SL 1995, ch 122, § 10; SL 2005, ch 120, § 150.


     22-16-1.1.   Fetal homicide--Felony--Application. Homicide is fetal homicide if the person knew, or reasonably should have known, that a woman bearing an unborn child was pregnant and caused the death of the unborn child without lawful justification and if the person:
             (1)      Intended to cause the death of or do serious bodily injury to the pregnant woman or the unborn child; or
             (2)      Knew that the acts taken would cause death or serious bodily injury to the pregnant woman or her unborn child; or
             (3)      If perpetrated without any design to effect death by a person engaged in the commission of any felony.
     Fetal homicide is a Class B felony.
     This section does not apply to acts which cause the death of an unborn child if those acts were committed during any abortion, lawful or unlawful, to which the pregnant woman consented.

Source: SL 1995, ch 122, § 3; SL 2005, ch 120, § 151.


     22-16-2.   Corpus delicti--Proof beyond reasonable doubt. No person may be convicted of murder or manslaughter, or of aiding suicide, unless the death of the person alleged to have been killed, and the fact of the killing by the accused are each established as independent facts beyond a reasonable doubt.

Source: SDC 1939, § 13.2006; SL 2005, ch 120, § 152.


     22-16-3.   Relationship between accused and victim bearing on degree of homicide. If the degree of homicide is made to depend upon its having been committed under circumstances evidencing a depraved mind or unusual cruelty, or in a cruel manner, the jury may take into consideration any domestic or confidential relationship which existed between the accused and the person killed.

Source: SDC 1939, § 13.2005; SL 1976, ch 158, § 16-1; SL 2005, ch 120, § 153.


     22-16-4.   Homicide as murder in the first degree. Homicide is murder in the first degree :
             (1)      If perpetrated without authority of law and with a premeditated design to effect the death of the person killed or of any other human being, including an unborn child; or
             (2)      If committed by a person engaged in the perpetration of, or attempt to perpetrate, any arson, rape, robbery, burglary, kidnapping, or unlawful throwing, placing, or discharging of a destructive device or explosive.
     Homicide is also murder in the first degree if committed by a person who perpetrated, or who attempted to perpetrate, any arson, rape, robbery, burglary, kidnapping or unlawful throwing, placing or discharging of a destructive device or explosive and who subsequently effects the death of any victim of such crime to prevent detection or prosecution of the crime.

Source: SDC 1939, § 13.2007 (1); SL 1979, ch 160, § 2; SL 1980, ch 173, § 9; SL 1992, ch 161; SL 2005, ch 120, § 154.


     22-16-5.   Premeditated design to effect the death defined. The term, premeditated design to effect the death, means an intention, purpose, or determination to kill or take the life of the person killed, distinctly formed and existing in the mind of the perpetrator before committing the act resulting in the death of the person killed. A premeditated design to effect death sufficient to constitute murder may be formed instantly before committing the act.

Source: SDC 1939, § 13.2008; SL 1978, ch 158, § 8; SL 2005, ch 120, § 155.


     22-16-6.   Anger or voluntary intoxication not reducing degree of crime. Homicide committed with a design to effect death is not the less murder because the perpetrator was in a state of anger or voluntary intoxication at the time.

Source: SDC 1939, § 13.2009.


     22-16-7.   Homicide as murder in the second degree. Homicide is murder in the second degree if perpetrated by any act imminently dangerous to others and evincing a depraved mind, without regard for human life, although without any premeditated design to effect the death of any particular person, including an unborn child.

Source: SDC 1939, § 13.2007 (2); SL 1980, ch 173, § 10; SL 2005, ch 120, § 156.


     22-16-8.   Lack of intent to injure not reducing degree of crime. Homicide perpetrated by an act imminently dangerous to others and evincing a depraved mind, without regard for human life, is not the less murder because there was no actual intent to injure others.

Source: SDC 1939, § 13.2007 (4); SL 2005, ch 120, § 157.


     22-16-9.   Repealed by SL 2005, ch 120, § 158, eff. July 1, 2006.


     22-16-10, 22-16-11.   Repealed by SL 1976, ch 158, § 16-9


     22-16-12.   Classification of murder. Murder in the first degree is a Class A felony. Murder in the second degree is a Class B felony.

Source: SDC 1939, § 13.2012; SL 1939, ch 30; SL 1955, ch 28; SL 1976, ch 158, § 16-2; SL 1978, ch 349, § 9; SL 1980, ch 173, § 12.


     22-16-13, 22-16-14.   Repealed by SL 1976, ch 158, § 16-9


     22-16-15.   Homicide as manslaughter in first degree--Felony. Homicide is manslaughter in the first degree if perpetrated:
             (1)      Without any design to effect death, including an unborn child, while engaged in the commission of any felony other than as provided in § 22-16-4(2);
             (2)      Without any design to effect death, including an unborn child, and in a heat of passion, but in a cruel and unusual manner;
             (3)      Without any design to effect death, including an unborn child, but by means of a dangerous weapon;
             (4)      Unnecessarily, either while resisting an attempt by the person killed to commit a crime or after such attempt has failed.
     Manslaughter in the first degree is a Class C felony.

Source: SDC 1939, §§ 13.2013, 13.2015; SDCL, §§ 22-16-16, 22-16-17, 22-16-19; SL 1976, ch 158, § 16-3; SL 1977, ch 189, § 41; SL 1995, ch 122, § 11; SL 2005, ch 120, § 160.


     22-16-16 to 22-16-19.   Repealed by SL 1976, ch 158, § 16-9


     22-16-20.   Manslaughter in the second degree. Any reckless killing of one human being, including an unborn child, by the act or procurement of another which, under the provisions of this chapter, is neither murder nor manslaughter in the first degree, nor excusable nor justifiable homicide, is manslaughter in the second degree. Manslaughter in the second degree is a Class 4 felony.

Source: SDC 1939, §§ 13.2016, 13.2023; SDCL, § 22-16-29; SL 1968, ch 32; SL 1976, ch 158, § 16-4; SL 1977, ch 189, § 42; SL 1995, ch 122, § 12.


     22-16-20.1.   Lesser included offenses. Murder in the second degree is a lesser included offense of murder in the first degree. Manslaughter in the first degree is a lesser included offense of murder in the first degree and murder in the second degree. Manslaughter in the second degree is a lesser included offense of murder in the first degree, murder in the second degree, and manslaughter in the first degree.

Source: SL 2005, ch 120, § 436.


     22-16-20.2.   Lesser included offense instruction. A lesser included offense instruction shall be given at any homicide trial whenever any facts are submitted to the trier of fact which would support such an offense pursuant to this chapter. The state and the defendant each have the separate right to request a lesser included offense instruction. The failure to request a lesser included offense instruction constitutes a waiver of the right to such an instruction.

Source: SL 2005, ch 120, § 437.


     22-16-21 to 22-16-29.   Repealed by SL 1976, ch 158, § 16-9


     22-16-30.   Excusable homicide--Lawful acts. Homicide is excusable if committed by accident and misfortune in doing any lawful act, with usual and ordinary caution.

Source: SDC 1939, § 13.2002 (1); SL 1976, ch 158, § 16-5; SL 2005, ch 120, § 161.


     22-16-31.   Excusable homicide--Heat of passion--Provocation--Sudden combat--Limitations. Homicide is excusable if committed by accident and misfortune in the heat of passion, upon sudden and sufficient provocation, or upon a sudden combat. However, to be excusable, no undue advantage may be taken nor any dangerous weapon used and the killing may not be done in a cruel or unusual manner.

Source: SDC 1939, § 13.2002 (2); SL 2005, ch 120, § 162.


     22-16-32.   Justifiable homicide-Law enforcement officers or at command of officer--Overcoming resistance--Capturing or arresting fleeing felons. Homicide is justifiable if committed by a law enforcement officer or by any person acting by command of a law enforcement officer in the aid and assistance of that officer:
             (1)      If necessarily committed in overcoming actual resistance to the execution of some legal process, or to the discharge of any other legal duty; or
             (2)      If necessarily committed in retaking felons who have been rescued or who have escaped; or
             (3)      If necessarily committed in arresting felons fleeing from justice.

Source: SDC 1939, § 13.2004; SL 1976, ch 158, § 16-9; SL 1977, ch 189, § 43; SL 2005, ch 120, § 163.


     22-16-33.   Justifiable homicide--Apprehending felon--Suppressing riot--Preserving peace. Homicide is justifiable if necessarily committed in attempting by lawful ways and means to apprehend any person for any felony committed, or in lawfully suppressing any riot, or in lawfully keeping and preserving the peace.

Source: SDC 1939, § 13.2003 (3); SL 2005, ch 120, § 164.


     22-16-34.   Justifiable homicide--Resisting attempted murder--Resisting felony on person or in dwelling house. Homicide is justifiable if committed by any person while resisting any attempt to murder such person, or to commit any felony upon him or her, or upon or in any dwelling house in which such person is.

Source: SDC 1939, § 13.2003 (1); SL 2005, ch 120, § 165.


     22-16-35.   Justifiable homicide--Defense of person--Defense of other persons in household. Homicide is justifiable if committed by any person in the lawful defense of such person, or of his or her husband, wife, parent, child, master, mistress, or servant if there is reasonable ground to apprehend a design to commit a felony, or to do some great personal injury, and imminent danger of such design being accomplished.

Source: SDC 1939, § 13.2003 (2); SL 2005, ch 120, § 166.


     22-16-36.   Suicide defined. Suicide is the intentional taking of one's own life.

Source: SDC 1939, § 13.1901; SL 1968, ch 31, § 1.


     22-16-37.   Aiding and abetting suicide--Felony. Any person who intentionally in any manner advises, encourages, abets, or assists another person in taking or in attempting to take his or her own life is guilty of a Class 6 felony.

Source: SDC 1939, §§ 13.1902, 13.1903; SDCL, § 22-16-38; SL 1968, ch 31, § 1; SL 1976, ch 158, § 16-7; SL 2005, ch 120, § 167.


     22-16-37.1 to 22-16-37.7.   Transferred to §§ 34-12D-23 to 34-12D-29 by SL 2005, ch 120, § 170, eff. July 1, 2006.


     22-16-38.   Repealed by SL 1968, ch 31, § 1


     22-16-39.   Incapability of suicide no defense. It is no defense to a prosecution for aiding suicide that the person who committed or attempted to commit suicide was not a person deemed capable of committing crime.

Source: SDC 1939, § 13.1903 as enacted by SL 1968, ch 31, § 1.


     22-16-40.   Duty of law officers to report suicide attempts. Any law enforcement officer who has knowledge that any party has attempted to take his or her own life shall immediately notify the state's attorney.

Source: SL 1968, ch 31, § 2; SL 1976, ch 158, § 16-8; SL 2005, ch 120, § 171.


     22-16-41.   Vehicular homicide. Any person who, while under the influence of alcohol, drugs, or substances in a manner and to a degree prohibited by § 32-23-1, without design to effect death, operates or drives a vehicle of any kind in a negligent manner and thereby causes the death of another person, including an unborn child, is guilty of vehicular homicide. Vehicular homicide is a Class 3 felony. In addition to any other penalty prescribed by law, the court shall order that the driver's license of any person convicted of vehicular homicide be revoked for a period of not less than ten years from the date sentence is imposed or ten years from the date of initial release from imprisonment, whichever is later. In the event the person is returned to imprisonment prior to the completion of the period of driver's license revocation, time spent imprisoned does not count toward fulfilling the period of revocation.

Source: SL 1983, ch 176, § 1; SL 1988, ch 186; SL 1993, ch 174, § 1; SL 1995, ch 122, § 8; SL 2000, ch 97, § 1; SL 2000, ch 98, § 1; SL 2006, ch 165, § 5; SL 2006, ch 168, § 16; SL 2009, ch 115, § 1.


     22-16-42.   Transferred to § 22-18-36 by SL 2005, ch 120, § 172, eff. July 1, 2006.


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