Homicide

Homicide (Lat. homicidium), the general and neutral term for the killing of one human being by another. The nature of the responsibility of the slayer to the state and to the relatives of the slain has been one of the chief concerns of all systems of law from the earliest times, and it has been variously considered from the points of view of the sanctity of human life, the interests of the sovereign, the injury to the family of the slain and the moral guilt, i.e. the motives and intentions, of the slayer.

The earliest recorded laws (those of Khammurabi) do not contain any sweeping general provision as to the punishment of homicide. The death penalty is freely imposed but not for homicide. “If a man strike a gentleman’s daughter that she dies, his own daughter is to be put to death, if a poor man’s the slayer pays ½ mina.” In the Mosaic law the general command “Thou shalt not kill” of the Decalogue is in terms absolute. In primitive law homicide, however innocent, subjected the slayer to the lawful vengeance of the kindred of the slain, unless he could make some composition with him. This lex talionis (a life for a life) resulted: (1) in a course of private justice which still survives in the vendetta of Corsica and Albania, and the blood feuds arising out of “difficulties” in the southern and western parts of the United States; (2) in the recognition of sanctuaries and cities of refuge within which the avenger of blood might not penetrate to kill an innocent manslayer; and (3) in the system of wite, bote and wer, by which the life of every man had its assessed price payable to his chief and his next of kin.

It took long to induce the relatives of the slain to appreciate anything beyond the fact of the death of their kinsman or to discriminate between intentional and accidental homicide. By the laws of Khammurabi (206, 208) striking a man in a quarrel without deadly intent but with fatal effect was treated as a matter for compensation according to the rank of the slain. The Pentateuch discriminates between the man “who lieth in wait for” or “cometh presumptuously” on “his neighbour to slay him with guile” (Exodus xxi. 13, 14), and the man “who killeth his neighbour ignorantly whom he hated not in time past” (Deut. xix. 4). But even killing by misadventure exposed the slayer to the avenger of blood. “As a man goeth into the wood with his neighbour to hew wood, and his hand fetcheth a stroke with the axe to cut down a tree and the head slippeth from the helve and lighteth upon his neighbour that he die: he shall flee into one of these cities (of refuge) and live” (Deut. xix. 5).

Under the early laws of Teutonic and Celtic communities the inconveniences of the blood feud were gradually mitigated (see Criminal Law) by the system of wite and wer (or eric), but the blood feud continued long in Friesland and Lower Saxony, and in parts of Switzerland until the 16th century. In England under the Norman system homicide became a plea of the crown, and the rights of the kindred to private vengeance and to compensation were gradually superseded in favour of the right of the king to forfeitures where the homicide amounted to a crime (felony).

Though homicide was thus made a public offence and not a matter for private vengeance, it took long to discriminate between those forms of homicide which should and those which should not be punished.

The terms of act in English law used to describe criminal homicide are murder (mord, meurtre, murdrum), manslaughter and felo de se (or suicide by a person of sound mind).

The original meaning of the word “murder” seems to have been secret homicide,—“Murdrum proprie dicitur mors alicujus occulta cujus interfector ignoratur” (Dialogus de Scaccario i, x.); and Glanville says: Duo sunt genera homicidii, unum est quod dicitur murdrum quod nullo vidente nullo sciente clam perpetratur, ita quod non assignatur clamor popularis (hue and cry), est et aliud homicidium quod diciter simplex homicidium. After the Conquest, and for the protection of the ruling race, a fine (also called murdrum) was levied for the king on the hundred or other district in which a stranger was found dead, if the slayer was not brought to justice and the blood kin of the slain did not present Englishry, there being a presumption (in favour of the Exchequer) that the deceased was a Frenchman. After the assize of Clarendon (1166) the distinction between the killing of Normans and Englishmen gradually evaporated and the term murder came to acquire its present meaning of deliberate as distinct from secret homicide. In 1267 it was provided that the murder fine should not be levied in cases of death by “misadventure” (per infortunium).1 But at that date and for long afterwards homicide in self-defence or by misadventure or even while of unsound mind involved at the least a forfeiture of goods, and required a pardon. These pardons, and restitution of the goods, became a matter of course, and the judges appear at a later date to have been in the habit of directing an acquittal in such cases. But it was not until 1828 that the innocence of excusable homicide was expressly declared. The rule is now expressed in s. 7 of the Offences against the Person Act 1861: “No punishment or forfeiture shall be incurred by any person who shall kill another by misfortune, or in his own defence, or in any other manner without felony.”

The further differentiation between different degrees of criminal homicide was marked by legislation of Henry VIII. (1531) taking away benefit of clergy in the case of “wilful murder with malice prepensed” (aforethought), and that phrase is still the essential element in the definition of “wilful murder,” which is committed “when a person of sound memory and discretion unlawfully killeth any reasonable creature or being and under the king’s peace with malice aforethought either express or implied” (3 Co. Inst. 47). The whole development of the substantive law as to murder rests on judicial rulings as to the meaning of malice prepense coupled with the extrajudicial commentaries of Coke, Hale and Foster; for parliament, though often tempted by bills and codes, has never ventured on a legislative definition. Much discussion has ranged round the phrase “malice aforethought,” and it has undoubtedly been expanded by judicial decision so as to create what is described as “constructive” murder. According to the view of the criminal code commissioners of 1879 (Parl. Pap., 1879, c. 23, 45, p. 23) the term “malice aforethought” is now a common name for all the following states of mind:—

The third form of malice aforethought has been much controverted. When it was first recognized as creating a liability for wilful murder almost all felonies were capital offences: but even at the end of the 17th century Lord Holt expressed a view that it should be limited to felonies involving violence or danger to life, e.g. assault with intent to rob, or setting fire to a dwelling-house. And Sir James Stephen’s opinion is that, to justify conviction of murder by an act done with intent to commit a felony, the act done must be one dangerous to life or known to be likely to cause death.

Starting with the definition above given, English law still retains so much of its medieval character as to presume all homicide to be “malicious, and therefore murder, unless it is either justified by the command or permission of the law, excused on the ground of accident or self-preservation, or alleviated into manslaughter by being the involuntary consequence of some act not strictly lawful or occasioned by some sudden and sufficiently violent provocation.” The truth of the facts alleged in justification, excuse or alleviation, is for the jury to determine: the question whether if true they support the plea for which they are put forward is for the court.

In the administration of the English criminal law as to homicide the consequences of too strict an adherence to the technical definitions of the offences are avoided (a) by the exercise of the jury of their powers to convict of manslaughter only even in cases where they are directed that the offence is murder or nothing; (b) by the report of the judge as to the particular circumstances of each case in which a conviction of murder has been followed by the statutory sentence of death; (c) by the examination of all the evidence in the case by the Home Office in order to enable the secretary of state to determine whether the prerogative of mercy should be exercised.

Homicide is justifiable and not criminal when the killing is done in the execution of the law. The most important case of justifiable homicide is the execution of a criminal in due course of public justice. This condition is most stringently interpreted. “To kill the greatest of malefactors deliberately, uncompelled, and extrajudicially is murder.... And further, if judgment of death be given by a judge not authorized by lawful commission, and execution is done accordingly, the judge is guilty of murder” (Stephen’s Commentaries, book vi. c. iv.). The execution must be carried out by the proper officer or his deputy: any person executing the sentence without such authority, were it the judge himself, would be guilty of murder. And the sentence must be strictly pursued: to execute a criminal by a kind of death other than that to which he has been judicially condemned is murder.

Homicide committed by an officer of justice in the course of carrying out his duty, as such, is also justifiable; e.g. where a felon resists a legal arrest and is killed in the effort to arrest him (see 2 Pollock and Maitland, 476); where officers in dispersing a riotous assemblage kill any of the mob, &c. (see Riot). In these cases the homicide must be shown to have been absolutely necessary. Again, homicide is justifiable if committed in the defence of person or property against forcible and heinous crime, such as murder, violent robbery, rape or burglary. In this connexion there has been much discussion as to whether the person attacked is under a duty to retreat: and in substance the justification depends on the continuous necessity of attack or defence In order to prevent the commission by the deceased of the crime threatened.

Homicide is excusable and not criminal at all when committed either by misadventure or in self-defence. In the former case the homicide is excused; where a man in the course of doing some lawful work, accidentally and without intention kills another, e.g. shooting at a mark and undesignedly hitting and killing a man. The act must be strictly lawful, and death by misadventure in unlawful sports is not a case of excusable homicide. Homicide in self-defence is excusable when the slayer is himself in immediate danger of death, and has done all he could to avoid the assault. Accordingly, if he strikes and kills his assailant after the assault is over, this is not excusable homicide. But if the assault has been premeditated, as in the ease of a duel, the death of either antagonist has under English law always been held to be murder and not excusable homicide. The excuse of self-defence covers the case in which a person in defence of others whom it is his duty to protect—children, wife, master, &c.—kills an assailant. It has been considered doubtful whether the plea of self-defence is available to one who has himself provoked a fray, in the course of which he is so pressed by his antagonist that his only resource is to kill him.

In English law the term “manslaughter” is applied to those forms of homicide which though neither justifiable nor excusable are attended by alleviating circumstances which bring them short of wilful murder. The offence is not defined by statute, but only by judicial rulings. Its punishment is as a maximum penal servitude for life, and as a minimum a fine or recognizances to be of good behaviour. The quantum of punishment between the limits above stated is in the discretion of the court, and not, as under continental codes, with fixed minima; and the offence includes acts and omissions of very varying gravity, from acts which only by the charitable appreciation of a jury fall short of wilful murder, to acts or omissions which can only technically be described as criminal, e.g. where one of two persons engaged in poaching, by pure accident gets caught in a hedge so that his gun goes off and kills his fellow-poacher. This may be described as an extreme instance of “constructive crime.”

There are two main forms of “manslaughter”:—

1. “Voluntary” homicide under grave and sudden provocation or on a sudden quarrel in the heat of passion, without the slayer taking undue advantage or acting in an unusual manner. The substance of the alleviation of guilt lies in the absence of time for cool reflection or the formation of a premeditated design to kill. Under English law the provocation must be by acts and not by words or gestures, and must be serious and not trivial, and the killing must be immediately after provocation and while the slayer has lost his self-control in consequence of the provocation. The provocation need not be by assault or violence, and perhaps the best-recognized example is the slaying by a husband of a man found committing adultery with the slayer’s wife. In the case of a sudden quarrel it does not matter who began or provoked the quarrel. This used to be called “chance medley.”

2. “Involuntary” homicide as a result of great rashness or gross negligence in respect of matters involving danger to human life, e.g. in driving trains or vehicles, or in dealing with dangerous weapons, or in performing surgical operations, or in taking care of the helpless.

The innumerable modes in which criminal liability for killing others has been adjudged under the English definitions of murder and manslaughter cannot be here stated, and can only be studied by reference to the judicial decisions collected and discussed in Russell on Crimes and other English text-books, and in the valuable work by Mr J. D. Mayne on the criminal law of India, in which the English common law rulings are stated side by side with the terms and interpretations of the Indian penal code. Much labour has been expended by many jurists in efforts to create a scientific and acceptable classification of the various forms of unlawful homicide which shall properly define the cases which should be punishable by law and the appropriate punishment. Their efforts have resulted in the establishment in almost every state except the United Kingdom of statutory definitions of the crime, beginning with the French penal code and going down to the criminal code of Japan. In the case of England, as a result of the labours of Sir James Stephen, a code bill was submitted to parliament in 1878. In 1879 a draft code was prepared by Blackburn, Lush and Barry, and was presented to parliament. It was founded on and prepared with Sir J. Stephen, and is a revision of his digest of the criminal law.

After defining homicide and culpable homicide, the draft code (cl. 174) declares culpable homicide to be murder in the following cases: (a) if the offender means to cause the death of the person killed; (b) if the offender means to cause to the person killed any bodily injury which is known to the offender to be likely to cause death, and if the offender, whether he does or does not mean to cause death, is reckless whether death ensues or not; (c) if the offender means to cause death or such bodily injury as aforesaid to one person, so that if that person be killed the offender would be guilty of murder, and by accident or mistake the offender kills another person though he does not mean to hurt the person killed; (d) if the offender for any unlawful object does an act which he knows or ought to have known to be likely to cause death, and thereby kills any person, though he may have desired that his object should be effected without hurting any one.

Further (cl. 175), it is murder (whether the offender means or not death to ensue, or knows or not that death is likely to ensue) in the following cases:—“(a) if he means to inflict grievous bodily injury for the purpose of facilitating the commission of any of the offences hereinafter mentioned, or the flight of the offender upon the commission or attempted commission thereof, and death ensues from his violence; (b) if he administers any stupefying thing for either of the purposes aforesaid and death ensues from the effects thereof; (c) if he by any means wilfully stops the breath of any person for either of the purposes aforesaid and death ensues from such stopping of the breath.” The following are the offences referred to:—“high treason and other offences against the king’s authority, piracy and offences deemed to be piracy, escape or rescue from prison or lawful custody, resisting lawful apprehension, murder, rape, forcible abduction, robbery, burglary, arson.” Cl. 176 reduces culpable homicide to manslaughter if the person who causes death does so “in the heat of passion caused by sudden provocation”; and “any wrongful act or insult of such a nature as to be sufficient to deprive any ordinary person of the power of self-control may be provocation if the offender acts upon it on the sudden, and before there has been time for his passion to cool. Whether any particular wrongful act or insult amounts to provocation and whether the offender was deprived of self-control shall be questions of fact; but no one shall be deemed to give provocation by doing that which he had a legal right to do, or which the offender incited him to do in order to provide an excuse for killing him or doing grievous bodily harm to any person.” Further, “an arrest shall not necessarily reduce the offence from murder to manslaughter because an arrest was illegal, but if the illegality was known to the offender it may be evidence of provocation”; (cl. 177) “culpable homicide not amounting to murder is manslaughter.”

The definitions embodied in these clauses though not yet accepted by the British legislature, have in substance been embodied in the criminal codes of Canada (1892 ss. 227-230), New Zealand (1893, ss. 163-166), Queensland (1899, ss. 300-305), and Western Australia (1901, ss. 275-280).

From the point of view of civil as distinct from criminal responsibility homicide does not by the common law give any cause of action against the person causing the death of another in favour of the wife or blood relations of the deceased. In early law this was otherwise; and the wer or eric of the deceased came historically before the right of chief or state. But under English law the rights of relations, except by way of appeal for felony,2 were swept aside in favour of the crown, on the principle that every homicide is presumed felonious (murder) unless the contrary is proved, and that in all cases of homicide not justifiable by law a forfeiture was incurred. The rights of the relatives were also defeated by application of the maxim “actio personalis moritur cum personâ” (“a personal action dies with the person”) to all proceedings for injury to the person or to reputation. In Scotland the old theory was preserved in the law as to assythement.

In England the law was altered at the instance of Lord Campbell in 1846 (9 & 10 V. c. 93) so as to give a right of a claim by the husband, wife, parent or child of a person killed by a wrongful (or even criminal) act, neglect or default by another which would have given the deceased if he had survived a cause of action against the wrongdoer. The compensation payable is what the surviving relative has lost by the death, and under the Workmen’s Compensation Act 1906 (in all cases to which it applies) the employer is liable even without negligence to compensate the dependants of an employee killed by an accident arising out of and in the course of the employment; and in such cases even if the death was due to serious and wilful misconduct by the employee, compensation is payable.

In the Indian penal code the definitions of murder are so drawn as to limit the offences to cases where it was actually intended to cause death or bodily injury by the acts or omissions of the slayer, and the definition of culpable homicide short of murder is so drawn as to exclude the forms of unintentional manslaughter due to neglect of duty, e.g. in the conduct of trains or ships or vehicles. This last omission was supplied in 1870. The Indian code does not treat as murder either duelling or helping Hindu widows to commit suttee (s. 301, exception 5). In most of the British possessions in Asia and in east Africa the Indian definitions of homicide have been adopted. In the rest of the colonies, except South Africa, the law of homicide depends on the English common law as modified by colonial codes or statutes. In South Africa it rests mainly on the Roman Dutch law.

Europe.—In European codes distinctions corresponding to those of the English law are drawn between premeditated and other forms of criminal homicide; but more elaborate distinctions are drawn between the degrees of deliberation or criminality manifested in the slaying, and the minimum or maximum penalty is varied accordingly.

In the French penal code voluntary homicide is called murder (meurtre, art. 295): but if committed with premeditation or lying in wait is styled assassinat (guet-apens) (296-298). Poisoning (even if the poison is not fatal), is specially punished, as is parricide (on the lines of the obsolete English offence of petty treason), and infanticide, i.e. the killing of newly-born infants. Assassination, poisoning and parricide are at present capital offences; but a bill to abolish the death sentence has been laid before the French parliament.

The German code distinguishes between voluntary homicide which is done with deliberation and such homicide committed without deliberation (ss. 211, 212), and provides for mitigation of punishment where the slaying was provoked without fault in the slayer by any wrongful act or serious insult upon the slayer or his relatives by the slain (213). Parricide and infanticide are specially punished (214, 215), as is killing another person at his express and earnest request (216)—an offence which would in England be murder—and it is a separate offence to cause the death of another, the penalty being increased if the offender was peculiarly bound by office, calling or trade to use a care which he did not use (222).

The Italian code punishes as homicide those who with intention to kill cause the death of another (364). The death penalty is not imposed, but scales of punishment are provided to deal with aggravated forms of the offence. Thus ergastolo (penal servitude for life) is the punishment in the case of homicide of ascendants and descendants, or with premeditation, or under the sole impulse of brutal ferocity or with gross cruelty (gravi sevizie), or by means of arson, inundation, drowning and certain other crimes, or to secure the gains or conceal the commission, or to secure immunity from the consequences, of another crime (366). Personal violence resulting in death inflicted without intention to kill is punishable minore poenâ (368), and it is criminal to cause the death of another by imprudence, negligence or lack of skill in an art or profession (imperitia nella propria arte o professione), or by non-observance of regulations, orders or instructions.

The Spanish code has like those of Italy and France special punishments for parricide (417) and for assassination, in which are included killing for reward or promise of reward or by inundation (418), and for aiding another to commit suicide (421). Both the Italian and the Spanish codes afford a special mitigation to infanticide committed to avoid dishonour to the mother of the infant or her family.

America.—The most notable difference between England and the United States in regard to the law on this subject is the recognition by state legislation of degrees in murder. English law treats all unlawful killing not reducible to manslaughter as of the same degree of guilt in law. American statutes seek to discriminate for purposes of punishment between the graver and the less culpable forms of murder. Thus an act of the legislature of Pennsylvania (22nd of April 1794) declares “all murder which shall be perpetrated by means of poison or by lying in wait or by any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration of or attempt to perpetrate any arson, rape, robbery or burglary shall be deemed murder of the first degree; and all other kinds of murder shall be deemed murder of the second degree.” This legislation has been copied or adopted in many if not most of the other states. There are also statutory degrees of manslaughter in the legislation of some of the states. The differences of legislation, coupled with the power of the jury in some states to determine the sentence, and the limitations on the right of the judges to comment on the testimony adduced, lead to very great differences between the administration of the law as to homicide in the two countries.

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