homicide


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Homicide

The killing of one human being by another human being.

Although the term homicide is sometimes used synonymously with murder, homicide is broader in scope than murder. Murder is a form of criminal homicide; other forms of homicide might not constitute criminal acts. These homicides are regarded as justified or excusable. For example, individuals may, in a necessary act of Self-Defense, kill a person who threatens them with death or serious injury, or they may be commanded or authorized by law to kill a person who is a member of an enemy force or who has committed a serious crime. Typically, the circumstances surrounding a killing determine whether it is criminal. The intent of the killer usually determines whether a criminal homicide is classified as murder or Manslaughter and at what degree.

English courts developed the body of Common Law on which U.S. jurisdictions initially relied in developing their homicide statutes. Early English common law divided homicide into two broad categories: felonious and non-felonious. Historically, the deliberate and premeditated killing of a person by another person was a felonious homicide and was classified as murder. Non-felonious homicide included justifiable homicide and excusable homicide. Although justifiable homicide was considered a crime, the offender often received a pardon. Excusable homicide was not considered a crime.

Under the early common law, murder was a felony that was punishable by death. It was defined as the unlawful killing of a person with "malice aforethought," which was generally defined as a premeditated intent to kill. As U.S. courts and jurisdictions adopted the English common law and modified the various circumstances that constituted criminal homicide, various degrees of criminal homicide developed. Modern statutes generally divide criminal homicide into two broad categories: murder and manslaughter. Murder is usually further divided into the first degree, which typically involves a premeditated intent to kill, and the second degree, which typically does not involve a premeditated intent to kill. Manslaughter typically involves an unintentional killing that resulted from a person's criminal negligence or reckless disregard for human life.

All homicides require the killing of a living person. In most states, the killing of a viable fetus is generally not considered a homicide unless the fetus is first born alive. In some states, however, this distinction is disregarded and the killing of an unborn viable fetus is classified as homicide. In other states, statutes separately classify the killing of a fetus as the crime of feticide.

Generally, the law requires that the death of the person occur within a year and a day of the fatal injury. This requirement initially reflected a difficulty in determining whether an initial injury led to a person's death, or whether other events or circumstances intervened to cause the person's death. As Forensic Science has developed and the difficulty in determining cause of death has diminished, many states have modified or abrogated the year-and-a-day rule.

Justifiable or Excusable Homicide

A homicide may be justifiable or excusable by the surrounding circumstances. In such cases, the homicide will not be considered a criminal act. A justifiable homicide is a homicide that is commanded or authorized by law. For instance, soldiers in a time of war may be commanded to kill enemy soldiers. Generally, such killings are considered justifiable homicide unless other circumstances suggest that they were not necessary or that they were not within the scope of the soldiers' duty. In addition, a public official is justified in carrying out a death sentence because the execution is commanded by state or federal law.

A person is authorized to kill another person in self-defense or in the defense of others, but only if the person reasonably believes that the killing is absolutely necessary in order to prevent serious harm or death to himself or herself or to others. If the threatened harm can be avoided with reasonable safety, some states require the person to retreat before using Deadly Force. Most states do not require retreat if the individual is attacked or threatened in his or her home, place of employment, or place of business. In addition, some states do not require a person to retreat unless that person in some way provoked the threat of harm. Finally, police officers may use deadly force to stop or apprehend a fleeing felon, but only if the suspect is armed or has committed a crime that involved the infliction or threatened infliction of serious injury or death. A police officer may not use deadly force to apprehend or stop an individual who has committed, or is committing, a misdemeanor offense. Only certain felonies are considered in determining whether deadly force may be used to apprehend or stop a suspect. For instance, a police officer may not use deadly force to prevent the commission of Larceny unless other circumstances threaten him or other persons with imminent serious injury or death.

Excusable homicide is sometimes distinguished from justifiable homicide on the basis that it involves some fault on the part of the person who ultimately uses deadly force. For instance, if a person provokes a fight and subsequently withdraws from it but, out of necessity and in self-defense, ultimately kills the other person, the homicide is sometimes classified as excusable, rather than justifiable. Generally, however, the distinction between justifiable homicide and excusable homicide has largely disappeared, and only the term justifiable homicide is widely used.

Other Defenses

Other legal defenses to a charge of criminal homicide include insanity, necessity, accident, and intoxication. Some of these defenses may provide an absolute defense to a charge of criminal homicide; some will not. For instance, a successful defense of voluntary intoxication generally will allow an individual to avoid prosecution for a premeditated murder, but typically it will not allow an individual to escape liability for any lesser charges, such as second-degree murder or manslaughter. As with any defense to a criminal charge, the accused's mental state will be a critical determinant of whether he or she had the requisite intent or mental capacity to commit a criminal homicide.

Euthanasia and Physician-Assisted Suicide

The killing of oneself is a suicide, not a homicide. If a person kills another person in order to end the other person's pain or suffering, the killing is considered a homicide. It does not matter if the other person is about to die or is terminally ill just prior to being killed; the law generally views such a killing as criminal. Thus, a "mercy killing," or act of Euthanasia, is generally considered a criminal homicide.

As medical technology advances and the medical profession is able to prolong life for many terminally ill patients, a person's right to die by committing suicide with the help of a physician or others has become a hotly contested issue. In the 1990s, the issue of physician-assisted suicide came to the forefront of U.S. law. Dr. Jack Kevorkian, a Michigan physician, helped approximately 130 patients to commit suicide. Michigan authorities prosecuted Kevorkian for murder on a number of occasions, but because aiding, assisting, or causing a suicide is generally considered to be separate from homicide, Kevorkian initially avoided conviction. Finally, in 1999, he was convicted of second-degree murder following the nationally televised broadcast of a videotape showing Kevorkian injecting a lethal drug into a patient. In 2000, the new england journal of medicine revealed a study showing that 75 percent of the 69 Kevorkian-assisted deaths that were investigated were of victims who were not suffering from a potentially fatal disease; five had no discernible disease at all. Instead, it appeared that many of the suicides were the result of depression or psychiatric disorder.

As of early 2003, only one state (Oregon) permitted physician-assisted suicide. However, at that time, similar laws had been introduced in Arizona, Hawaii, and Vermont. U.S. Attorney General john ashcroft sought a Declaratory Judgment that prescribing federally controlled drugs for the purpose of assisting suicide was not legitimate medical practice. The U.S. Court of Appeals for the Ninth Circuit was expected to render a decision in the matter later that year.

Further readings

Chan, Samantha. 2000. "Rates of Assisted Suicides Rise Sharply in Oregon." Student BMJ 11.

Kadish, Sanfor H., ed. 1983. Encyclopedia of Crime and Justice. Vol. 2. New York: Free Press.

Lafave, Wayne R., and Austin W. Scott, Jr. 1986. Substantive Criminal Law. Vol. 2. St. Paul, Minn.: West.

"New Revelations About Dr. Death." 2000. Macleans 113.

Torcia, Charles E. 1994. Wharton's Criminal Law. 15th ed. New York: Clark, Boardman, Callaghan.

Cross-references

Death and Dying; Insanity Defense.

homicide

n. the killing of a human being due to the act or omission of another. Included among homicides are murder and manslaughter, but not all homicides are a crime, particularly when there is a lack of criminal intent. Non-criminal homicides include killing in self-defense, a misadventure like a hunting accident or automobile wreck without a violation of law like reckless driving, or legal (government) execution. Suicide is a homicide, but in most cases there is no one to prosecute if the suicide is successful. Assisting or attempting suicide can be a crime. (See: self-defense, murder, manslaughter, suicide, justifiable homicide)

homicide

noun annihilation, assassination, butchery, caedes, capital crime, capital murder, carnage, crime, deetruction of life, elimination, extermination, felony, felony murder, killing, liquidation, manslaughter, massacre, murder, removal, slaughter, slaying, termination of life, violent death
Associated concepts: assault with intent to murder, corpus delicti, criminally negligent homicide, culpable homicide, excusable homicide, felonious homicide, felony murder, involuntary manslaughter, justifiable homicide, manslaughter, premeditated homicide, voluntary homicide
Foreign phrases: Maihemium est homicidium inchoatum.Mayhem is unfinished homicide.
See also: aberemurder, assassination, dispatch, killing, manslaughter, murder

homicide

in the criminal law of England, a generic term for the killing of one human being by another. It can be lawful or unlawful. The main division of unlawful killing in English law is between murder and manslaughter. It is murder if a person has killed with ‘malice aforethought’. Contrary to public belief the law does not require an actual intention to kill nor a premeditated plot. A person is guilty of murder if death results from an act intended to cause really serious harm even if there was no intention to kill. This can happen in England where the intentionally inflicted serious harm would not normally have suggested a foreseeable death, such as the breaking of an arm. There is a mandatory sentence of life imprisonment which thus covers the contract killer and the person who in a row stabs a friend with a nearby knife. There are recognized complete defences such as insanity and self-defence, although these are far from being without difficulty. Manslaughter ranges from near murder to cases more serious than mere accident. However, the sentence may reflect the degree of guilt. Provocation or diminished responsibility may reduce murder to manslaughter. Diminished responsibility is a statutory defence to murder where a person kills or is a party to the killing of another, if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts or omissions in doing or being a party to the killing.

The Scots law of homicide is very broadly similar, including the mandatory life sentence, but with significant differences and of course a completely independent heritage right down to this day. It recognizes two degrees of homicide: murder and culpable homicide. Murder is the killing of a self-existent human being with either a wicked intention to kill or with wicked recklessness (which is worse than ordinary recklessness). There is probably no doctrine whereby a death caused in commission of a crime is murder as in England. Similar defences apply such as insanity and self-defence. Culpable homicide in the law of Scotland is any homicide which results from an assault where there was no mens rea of murder, where the death occurred in the course of another unlawful act with reckless mens rea or where death occurred in the performance of a lawful act but was grossly negligent. Culpable homicide is also the finding where there is ‘mitigated’ murder as by provocation or diminished responsibility. Diminished responsibility in Scots law is not statutory but covers many similar situations as would be found in England. It is established on evidence, frequently medical or at least scientific, which points to an aberration or weakness of mind.

HOMICIDE, crim. law. According to Blackstone, it is the killing of any human creature. 4 Com. 177. This is the most extensive sense of this word, in which the intention is not considered. But in a more limited sense, it is always understood that the killing is by human agency, and Hawkins defines it to be the killing of a man by a man. 1 Hawk. c. 8, s. 2. See Dalloz, Dict. h.t. Homicide may perhaps be described to be the destruction of the life of one human being, either by himself, or by the act, procurement, or culpable omission of another. When the death has been intentionally caused by the deceased himself, the offender is called felo de se; when it is caused by another, it is justifiable, excusable, or felonious.
     2. The person killed must have been born; the killing before birth is balled foeticide. (q.v.)
     3. The destruction of human life at any period after birth, is homicide, however near it may be to extinction, from any other cause.
     4.-1. Justifiable homicide is such as arises, 1st. From unavoidable necessity, without any will, intention or desire, and without any inadvertence in the party killing, and therefore without blame; as, for instance, the execution, according to law, of a criminal who has been lawfully sentenced to be hanged; or, 2d. It is committed for the advancement of public justice; as if an officer, in the lawful execution of his office, either in a civil or criminal case, should kill a person who assaults and resists him. 4 Bl. Com. 178-1 80. See Justifiable Homicide.
     5.-2. Excusable homicide is of two kinds 1st. Homicide per infortunium. (q.v.) or, 2d. Se defendendo, or self defence. (q.v.) 4 Bl. Com. 182, 3.
     6.-3. Felonious homicide, which includes, 1. Self-murder, or suicide; 2. Man-slaughter, (q.v.); and, 3. Murder. (q.v.) Vide, generally, 3 Inst. 47 to 57; 1 Hale P. C. 411 to 602; 1 Hawk. c. 8; Fost. 255 to 837; 1 East, P. C. 214 to 391; Com. Dig. Justices, L. M.; Bac. Ab. Murder and Homicide; Burn's Just. h.t.; Williams' Just. h.t.; 2 Chit. Cr. Law, ch. 9; Cro. C. C. 285 to 300; 4 Bl. Com. to 204; 1 Russ. Cr. 421 to 553; 2 Swift's Dig. 267 to 292.

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