Oklahoma Statutes

Okla. Stat. tit. 21, § 701.8 (2026)

Murder in the second degree

✓ current as of July 2026

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Homicide, a Class A1 felony offense, is murder in the second degree in the following cases: 1. When perpetrated by an act imminently dangerous to another person and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual; or 2. When perpetrated by a person engaged in the commission of any felony other than the unlawful acts set out in Section 1, subsection B, of this act. Added by Laws 1976, 1st Ex.Sess., c. 1, § 2, eff. July 24, 1976. Amended by Laws 2025, c. 486, § 5, eff. Jan. 1, 2026.

Notes of Decisions

Cited in 128 cases (12 in the last 5 years), 1978–2024 · leading case: Malaske v. State, 2004 OK CR 18 (Okla. Crim. App. 2004).

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Malaske v. State, 2004 OK CR 18 (Okla. Crim. App. 2004). · cites it 6× “[4] 21 O.S.2001, § 701.8. [5] 581 P.2d at 916 .”

Gilson v. Sirmons, 520 F.3d 1196 (10th Cir. 2008). · cites it 4× “" 21 O.S.1991, § 701.8(1). [Gilson] argues, and the State concedes, that when an individual wilfully [sic] or maliciously injures, tortures, or uses unreasonable force on a child there can be no question but that the individual is acting with a depraved mind.”

Bench v. State, 2018 OK CR 31 (Okla. Crim. App. 2018). · cites it 2× “3d 702 , 712, ( quoting 21 O.S.1991, § 701.8(1) ). The elements of second degree depraved mind murder are: First, the death of a human, Second, caused by conduct which was imminently dangerous to another person, Third, the conduct was that of the defendant's, Fourth, the conduct…”

Smith v. State, 932 P.2d 521 (Okla. Crim. App. 1996). · cites it 4× “" See 21 O.S.1991, § 701.8. However, the opinion went on to find that the facts did not warrant an instruction on this degree of murder because the Petitioner had not chosen his victims randomly.”

Wilson v. Sirmons, 536 F.3d 1064 (10th Cir. 2008). · cites it 2× “" Okla. Stat. tit. 21, § 701.7 (B). Homicide is murder in the second degree when it is "perpetrated by a person engaged in the commission of any felony other than the unlawful acts" set out in § 701.”

Quillen v. State, 2007 OK CR 22 (Okla. Crim. App. 2007). · cites it 10× “21 O.S.2001, § 701.8(1). Homicide is first-degree manslaughter when a killing is committed: 1) during the commission of a misdemeanor; 2) in the heat of passion; or 3) in an unnecessary attempt to prevent the person killed from committing a crime.”

Franks v. State, 636 P.2d 361 (Okla. Crim. App. 1981). · cites it 4× “1, § 2, now 21 O.S.Supp. 1980, § 701.8. Therefore, this conviction is modified from Murder in the First Degree to Murder in the Second Degree and the sentence is reduced from death to life imprisonment.”

Hicks v. Franklin, 546 F.3d 1279 (10th Cir. 2008). · cites it 3× “Gary Lee Hicks pled guilty to murder in the second degree in violation of Okla. Stat. tit. 21 § 701.8 (1976), 1 for which he was sentenced to life imprisonment.”

Nicholson v. State, 2018 OK CR 10 (Okla. Crim. App. 2018). · cites it 2× “Nicholson appeals. FACTS ¶2 Appellant and his girlfriend, Carrie Lira, traveled from Bethany to Tulsa in late October, 2015, hoping to locate Carrie's missing sister, Kelli.”

Eizember v. Trammell, 803 F.3d 1129 (10th Cir. 2015). · cites it 2× “Eizember’s substantial rights. Neither has Mr. Eizember identified any flaw in this reasoning or any Supreme Court authority suggesting that this assessment is a clearly impermissible or unreasonable application of Strickland’s prejudice test and we are aware of none.”

Primeaux v. State, 2004 OK CR 16 (Okla. Crim. App. 2004). · cites it 2× “Hence a punishment of life without parole, upon which Primeaux's jury was also instructed, is likewise unavailable for a conviction of felony murder under a robbery by force theory.”

Walker v. State, 723 P.2d 273 (Okla. Crim. App. 1986). · cites it 2× “The requested instruction on second degree murder was predicated on 21 O.S.1981, § 701.8(2), in which the appellant alleged he was committing the offense of attempted burglary in the second degree at the time of the homicide.”

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— Okla. Stat. tit. 21, § 701.8(1) — 38 cases

Gilson v. Sirmons, 520 F.3d 1196 (10th Cir. 2008). “" 21 O.S.1991, § 701.8(1). [Gilson] argues, and the State concedes, that when an individual wilfully [sic] or maliciously injures, tortures, or uses unreasonable force on a child there can be no question but that the individual is acting with a depraved mind.”

Bench v. State, 2018 OK CR 31 (Okla. Crim. App. 2018). “3d 702 , 712, ( quoting 21 O.S.1991, § 701.8(1) ). The elements of second degree depraved mind murder are: First, the death of a human, Second, caused by conduct which was imminently dangerous to another person, Third, the conduct was that of the defendant's, Fourth, the conduct…”

Nicholson v. State, 2018 OK CR 10 (Okla. Crim. App. 2018). “Nicholson appeals. FACTS ¶2 Appellant and his girlfriend, Carrie Lira, traveled from Bethany to Tulsa in late October, 2015, hoping to locate Carrie's missing sister, Kelli.”

Charm v. State, 924 P.2d 754 (Okla. Crim. App. 1996).

Phillips v. State, 1999 OK CR 38 (Okla. Crim. App. 1999).

— Okla. Stat. tit. 21, § 701.8(2) — 17 cases

Malaske v. State, 2004 OK CR 18 (Okla. Crim. App. 2004). “[4] 21 O.S.2001, § 701.8. [5] 581 P.2d at 916 .”

Quillen v. State, 2007 OK CR 22 (Okla. Crim. App. 2007). “21 O.S.2001, § 701.8(1). Homicide is first-degree manslaughter when a killing is committed: 1) during the commission of a misdemeanor; 2) in the heat of passion; or 3) in an unnecessary attempt to prevent the person killed from committing a crime.”

Primeaux v. State, 2004 OK CR 16 (Okla. Crim. App. 2004). “Hence a punishment of life without parole, upon which Primeaux's jury was also instructed, is likewise unavailable for a conviction of felony murder under a robbery by force theory.”

Walker v. State, 723 P.2d 273 (Okla. Crim. App. 1986). “The requested instruction on second degree murder was predicated on 21 O.S.1981, § 701.8(2), in which the appellant alleged he was committing the offense of attempted burglary in the second degree at the time of the homicide.”

Gillioms v. State, 2022 OK CR 3 (Okla. Crim. App. 2022).

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