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
persona_" ("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 poena_ (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.
AUTHORITIES.--Stephen, _Hist. Cr. Law, Digest Criminal Law_; _Russell
on Crimes_ (7th ed., 1909); Archbold, _Criminal Pleading_ (23rd ed.,
1905); Bishop, _American Criminal Law_ (8th ed.); Pollock and
Maitland, _Hist. English Law_; Pike, _History of Crime_.
(W. F. C.)