WPIC 15.01 Excusable Homicide—Definition

This instruction may be used in any homicide case in which the defense of excusable homicide is an issue supported by the evidence. See further discussion in the Comment.

Use WPIC 25.01 (Homicide—Definition) and WPIC 10.04 (Criminal Negligence—Definition) with this instruction. Use bracketed material as applicable.

RCW 9A.16.030.

Use of instruction. Unlike other defenses, the “defense” of excusable homicide adds little if anything to the jury's analysis. “[T]he statutory definition of excusable homicide is merely a descriptive guide to the general characteristics of a homicide which is neither murder nor manslaughter. The characteristics of excuse do not have to be independently proved or found.” State v. Baker, 58 Wn.App. 222, 226, 792 P.2d 542 (1990). Excusable homicide thus “does not create an affirmative defense.” State v. Henderson, 192 Wn.2d 508, 513, 430 P.3d 637 (2018) (also noting that “excusable homicide … is merely descriptive”). In many cases, an instruction on excusable homicide will confuse the jury without providing any meaningful guidance.

Burden of proof. The State bears the burden of proving the absence of excuse. See State v. Fondren, 41 Wn.App. 17, 701 P.2d 810 (1985); State v. Baker, 58 Wn.App. 222, 792 P.2d 542 (1990). The Fondren court found that the State has the burden of proving the absence of excuse in prosecutions for first degree murder, because a claim of excuse (i.e., accident or misfortune) tends to negate the element of intent. For a general discussion of the burden of proof on defenses, see WPIC 14.00 (Defenses—Introduction).

Availability of defense. An excusable homicide defense “by definition is not available to a defendant who acts recklessly or with criminal negligence, even if otherwise acting lawfully in the exercise of religious belief.” State v. Norman, 61 Wn.App. 16, 28, 808 P.2d 1159 (1991).

An unintentional assault or killing can be excused through the defense of accident, but cannot be justified through a claim of self-defense. State v. Hendrickson, 81 Wn.App. 397, 914 P.2d 1194 (1996).

When the defendant is claiming actions done in self-defense led to an accidental homicide, the appropriate defense is excusable, not justifiable, homicide. State v. Slaughter, 143 Wn.App. 936, 186 P.3d 1084 (2008); see also State v. Henderson, 192 Wn.2d 508, 430 P.3d 637 (2018).

The defenses of accident and self-defense are not mutually exclusive as long as there is evidence of both. State v. Werner, 170 Wn.2d 333, 337, 241 P.3d 410 (2010); State v. Callahan, 87 Wn.App. 925, 931–33, 943 P.2d 676 (1997). But, care should be taken when drafting instructions and assigning the burden proof for cases that include instructions on both defenses. See State v. Slaughter, 143 Wn.App. at 942–43.

Defendant's intent. The WPI Committee has not attempted to deal with potential problems that may arise when the jury is permitted to determine, without further guidance, whether the defendant's intent was lawful or unlawful. The instruction simply is drafted using the statutory language. In using this instruction, the parties may wish to modify or supplement the language of this instruction to address this issue.