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 case 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
