Homicide.

By: Solomon Schechter , S. Mendelsohn

—Biblical Data:

That bloodshed should be punished with bloodshed was, according to Scripture, proclaimed to Noah and his family: "Surely your blood of your lives will I require; at the hand of every beast will I require it, and at the hand of man; at the hand of every man's brother will I require the life of man. Whoso sheddeth man's blood, by man shall his blood be shed: for in the image of God made he man" (Gen. ix. 5, 6). The main prohibition, however, is contained in theDecalogue (Ex. xx. 13; Deut. v. 17): "Thou shalt not kill."

Scripture distinguishes two kinds of unlawful homicide, the voluntary (murder) and the involuntary (manslaughter). Homicide is voluntary when the killing is the result of malice and premeditation (Ex. xxi. 14; Num. xxxv. 20; Deut. xix. 11); it is involuntary when it is caused by accident (Ex. l.c. 13; Num. l.c. 22; Deut. l.c. 4). The criteria of voluntary homicide are the following: enmity, hatred ( ) on the part of the perpetrator (Num. l.c. 20, 21; Deut. l.c. 11); lying in wait, ambushing ( ; ib. ); guile, premeditation ( ; Ex. l.c. 14); the procuring of the instrument or means calculated to produce fatal results (Num. l.c. 16-20; comp. Ex. l.c. 20). Where these or any of these indices are present the killing, according to the Bible, is to be considered voluntary and felonious. On the other hand, where there is neither lying in wait nor premeditation, neither enmity nor a deadly weapon or other means calculated to prove fatal, the killing is to be adjudged involuntary or accidental (Ex. l.c. 13; Num. l.c. 22; Deut. l.c. 4). As an example of accidental homicide the Bible (Deut. l.c. 5) cites the supposititious case of a man who "goeth into the wood with his neighbor to hew wood, and his hand fetcheth a stroke with the ax to cut down the tree, and the head slippeth from the helve, and lighteth upon his neighbor, that he die" (see below).

Penalties.

The penalty imposed for homicide in ante-Mosaic times, alike for unpremeditated and for premeditated killing, seems to have been death at the hands of any man (comp. Gen. iv. 14), man and beast being included in the same statute ( ib. ix. 5, 6). In the Mosaic law discrimination is made between the two species. In this law the punishment of the wilful manslayer is, after trial and conviction (Num. l.c. 24; Deut. l.c. 12), death at the hands of the victim's nearest relation, the "redeemer of the blood" ( ; Num. l.c. 19, 21; Deut. l.c. ); and the penalty for accidental homicide is seclusion in asylum, in one of the "cities of refuge" ( ; Ex. l.c. 13; Num. l.c. 11, 15; Deut. l.c. 5), where the slayer must "abide until the death of the high priest" (Num. l.c. 25-28). In neither case is satisfaction or ransom ( ) permitted to substitute or commute the statutory penalty. The voluntary murderer must be put to death, and the involuntary manslayer must retire into and abide in asylum (Num. l.c. 31-33).

In case an animal kills a man, the animal must be stoned to death, and its flesh must not be eaten; but its owner is not to be punished except the victim be a slave, when he must remunerate the master of the slave. Where, however, the animal was known to be vicious, and the owner was warned of the fact and did not confine it, the animal is, as in the first case, stoned to death, and its owner is also liable to be punished with death; but the latter's punishment may be commuted for a sum of redemption money (Ex. l.c. 28-32).

When a human body is found lying in the field, and it is not known who the murderer is, then the elders and the judges of the nearest city must strike off the head of a heifer in a barren valley, and in the presence of priests they must wash their hands over the beheaded animal, declaring that neither have their hands shed the blood of the slain nor have their eyes seen the deed committed. Thereupon they must invoke God to be merciful, and not to lay the innocent blood to Israel's charge (Deut. xxi. 1-9).

—In Rabbinic Law:

By the rabbinic system homicide is clearly classified as (1) justifiable, (2) misadventurous, (3) accidental, (4) culpable, or (5) felonious.

When Justifiable.

• (1) Homicide is justifiable when it is committed in obedience to duty, as in executing a condemned criminal (Lev. xx. 2; Deut. xvii. 5, 7; xxii. 24); or in defense of human life or chastity (Sanh. viii. 7, 73a; see below); or even in killing the thief who breaks in at night (Ex. xxii. 2; see Burglary), whether the killing is done by the proprietor of the premises or by a stranger (Sanh. viii. 6, 72b; Maimonides, "Yad," Genebah, ix. 7).
• (2) Homicide is misadventurous ( ) when the killing is the result of pure chance; as when, in the Biblical example quoted above, the head of the ax, instead of slipping from the helve swayed by the hewer, rebounds from the block and kills (Mak. ii. 1, 7b; comp. "Yad," Roẓeaḥ, vi. 15); or when one throws a missile on his own premises, and a stranger, without the proprietor's knowledge or consent, just then intruding, is struck and killed by such missile (Mak. l.c. 2, 8a; B. Ḳ. 32b). In such cases no blame attaches to the unfortunate slayer; therefore no punishment of any kind is incurred by him, not even at the hands of the redeemer of blood, the "go'el" (Mak. l.c.; B. Ḳ. l.c.; "Yad," l.c. 3).

Accidental Homicide.

• (3) Homicide is accidental ( ) when it is the effect of constructive negligence, but entirely free from felonious intention; as when an officer of the court, in chastising a convict (Deut. xxv. 2, 3), by mistake administers more than the number of stripes awarded in the sentence, and thereby causes the death of the culprit (Mak. iii. 14, 22a; B. Ḳ. 32b); or when one throws a missile on his own premises, and a visitor just then entering by permission is struck and killed by the missile (Mak. ii. 2, 8a; "Yad," l.c. vi. 11). This species of homicide, although not attended by premeditation or malice, savors of negligence, and is therefore not altogether free from blame and consequent punishment, which latter is exile ( ; Mak. ii. 1, 2, 7a; see above), or the risk of being killed by the go'el (Mak. l.c. 7, 12a; "Yad," l.c. v. 9, 10). However, the accidental manslayer is not subject to exile, unless the victim dies immediately after the accident. If the victim survives the accident even a single astronomical day, no exile is imposed (Yeb. 120b; Giṭ. 70b; "Yad," l.c. v. 2).

Culpable Homicide.

• (4) Homicide is culpable ( ) when it is the result of actual negligence on the part of the perpetrator; as when one engaged in razing a structure near a thoroughfare thoughtlessly lets some of the material fall on a passer-by, killing him (B. Ḳ.33b; Mak. ii. 2, 8a); or when one endeavoring to prevent the commission of murder or of rape (see above) intentionally kills the would-be criminal without attempting any other means of prevention (Sanh. 74a; "Yad," l.c. i. 13); or when one commits homicide in the belief that he has a right to do it (see Hatra'ah), e.g., when one kills a criminal before his judicial conviction (Mak. 7b, 9b). In all such cases the perpetrators are outlaws in the broadest sense of the term: they are criminals, but stand beyond the provisions of the penal laws. The laws concerning murder (see below) can not be applied to them, because the slaying was not preceded by deliberation; and the law concerning accidental homicide can not be applied to them, because the slaying was either the result of criminal negligence or the consequence of choice; therefore the go'el may kill them at any time or place, exile not protecting them against him ("Yad," l.c. vi. 4).In the following cases, though they are even more criminal than those just mentioned, the homicide is likewise included among the culpable: Where a man is an accessory, e.g., hires others to do the deed (see Abetment); where the perpetrator is a principal in the crime, but the victim has a chance to avert fatal results, as where one wilfully throws another into a well which at the time is provided with a ladder, but the assailant removes the ladder and the victim is drowned (Sanh. 77b; "Yad," l.c. iii. 9); where the death is the result of miscarried felonious intent, as where one maliciously aims a deadly missile at a certain person, and it strikes and kills another (Sanh. ix. 2, 79a; B. Ḳ. 44b); where the missile, not deadly if striking the part aimed at, miscarries and strikes the intended victim in a more vital spot, with fatal results (Sanh. l.c.; "Yad," l.c. iv. 2); and even where none of the aggravating circumstances here detailed are present, but it is proved that the slayer had nourished enmity against the victim (Mak. ii. 3, 7b; Sifre, Num. 160). The penalty for the culpables, whom, as stated, exile does not protect against the go'el, depends on the exigencies of the times. If circumstances require exemplary rigor, the court may order the infliction of capital punishment; otherwise scourging and imprisonment (M. Ḳ. 16a; Sanh. 46a; "Yad," l.c. ii. 4, 5). To the category of culpable homicides excluded from the penal statute may be added the suicide.

Murder.

• (5) Homicide is felonious when the act is the result of wilful and malicious deliberation ( ; see above and Hatra'ah). To establish it as such, there must be none of the mitigating circumstances attending any of the cases hitherto enumerated. It must be perpetrated by one man only, without the physical aid of others (see Abetment); but persuasion or threats (see Duress) will not be considered as an excuse for or extenuation of the crime (Sanh. 74b; Yeb. 53a). Where danger threatens the lives of two men, and one can save his life by increasing the danger of the other, the Rabbis lay down the ethical principle, "Thine own life takes precedence over that of thy neighbor" (B. M. 62a; comp. Yer. Hor. iii. 48b); but where one is threatened with the forfeiture of his own life unless he take that of an innocent party, the Rabbis argue, "There is no reason for supposing that thy blood is redder than that of the other"; hence one may not save his own life by spilling the innocent blood of another (Sanh. 74a).

Condition of Murderer and Victim.

The perpetrator, to be amenable to the penalty incurred by the commission of the crime, may be a male or a female, a free person or a slave; but he or she must be an adult, and of sound mental and physical condition (Mek., Nez. 7; Sifra, Emor, xx. ; see Abduction ). In case he is a diseased person, the species of the crime is determined by the parties witnessing it. If the crime is committed in the presence of a full court (twenty-three qualified judges), the perpetrator will be convicted of murder and suffer the full penalty; otherwise he will be classed as a culpable homicide (Sanh. 78a; "Yad," Roẓeaḥ, ii. 9).

As to the victim, the Rabbis understand by the term ("man"), used in connection with the crime (Ex. xxi. 12; Lev. xxiii. 17), a person; hence male or female, free or slave, old or young (Mek., l.c. ; Sifra, l.c. ; "Yad," l.c. 10). If young, by which is meant a new-born infant, it must be proved that it was not of premature birth; if prematurely born, it must be at least thirty days old to be considered a human being (Sifra, l.c. ; Niddah 44b; "Yad," Roẓeaḥ, ii. 2). But the unborn child is considered as part of its mother (Sanh. 80b); killing it in its mother's womb is therefore a finable offense only (Mek., Nez. 8; B. Ḳ. 42b). And where the victim is a diseased person, even moribund, the killing will be considered murder, unless the malady was the direct result of an assault previously made on him by man or brute, and competent physicians declare it to be in itself inevitably fatal (Sanh. 78a; Mak. 7a; "Yad," l.c. ii. 8).

It matters not by what means the crime is accomplished (Sifre, Num. 160; Sanh. 76b), provided the fatality is the immediate and natural result of the assault (Sanh. 79; "Yad," l.c. iii.). Hence it is the duty of the court to investigate the nature of the missile used (Sanh. ix. 2, 79b; B. Ḳ. 90), the force of the blow, and the part hit (Sanh. 78a); or to note the height of the fall (Sanh. 76b), and estimate whether there was sufficient weight or force or momentum to cause the fatal result. If a sharp or pointed metal instrument was the weapon, neither weight nor bulk nor size will enter into consideration, since even a needle may cause death (Sanh. 76b; "Yad," l.c. iii. 4). Also, the physique and condition of the criminal and those of the victim at the moment of the assault must be compared, to determine the likelihood of the one causing the death of the other (Sanh. ix. 2; "Yad," l.c. 5). Where doubt arises as to whether the death was really the natural result of the assault, the benefit of that doubt is given to the culprit (B. Ḳ. 90a; Sanh. 79a). Thus, if the fatal missile be placed among others, and can not be identified, the smallest of the number is selected and considered as the one used (Tosef., Sanh. xii. 4; Mek., Nez. 6).

Diagnosing Injuries.

If the victim is found alive, the court must carefully examine his condition and ascertain the nature of the injuries and whether there is a probability of his recovery. If the diagnosis is favorable, the culprit is set at liberty after being assessed legal damages(see Damages ), and he can not be again called upon to answer for his crime, even if the victim subsequently dies (Sanh. ix. 1, 78b; "Yad," l.c. iv. 3). If the court, however, regards the injuries as necessarily fatal, the culprit is placed in detention to await the final result. When death ensues the culprit is tried for his life; if recovery follows, he pays the amercements (Sanh. l.c. ; "Yad," l.c. iv. 4). If, however, the victim improves sufficiently to give promise of ultimate recovery, and the court so diagnoses, even if his condition afterward grows worse and he dies, the favorable diagnosis will protect the culprit against retrial (Sanh. ix. 1, 78b); Tosef., B. Ḳ. ix. 6; comp. Yer. Sanh. ix. 27; "Yad," l.c. iv. 5).

The penalty for murder is death by the sword, slaying ( ; see Capital Punishment ). The duty of carrying out the sentence of the court devolves primarily upon the go'el (see above); but where the go'el shirks his duty, the court must see that it is performed by others (Sanh. 45b; Mak. 12b). If for some reason the legal death can not be inflicted, the convict may be put to death by any means possible (Sanh. l.c. ; "Yad," l.c. i. 2).

S. S. S. M.