The killing of a human being
Homicide (Lat. homo, man; and coedere, to slay) signifies, in general, the killing of a human being. In practice, however, the word has come to mean the unjust taking away of human life, perpetrated by one distinct from the victim and acting in a private capacity. For the purposes of this article, therefore, account is not taken of suicide, nor of the carrying out of the penalty of death by due process of law. (See Capital Punishment.) The direct killing of an innocent person is, of course, to be reckoned among the most grievous of sins. It is said to happen directly when the death of the person is viewed either as an end attractive in itself, or at any rate is chosen as a means to an end. The malice discernible in the sin is primarily chargeable to the violation of the supreme ownership of God over the lives of His creatures. It arises as well from the manifest outrage upon one of the most conspicuous and cherished rights enjoyed by man, namely the right to life. For the scope contemplated here, a person is regarded as innocent so long as he has not by any responsible act brought any hurt to the community or to an individual comparable with the loss of life. Homicide is said to be indirect when it is no part of the agent's plan to bring about the death which occurs, so that this latter is not intended as an end nor is it selected as a means to further any purpose. In this hypothesis it is, at most, permitted on account of a reason commensurate with so great an evil as is the destruction of human life. Thus, for instance, a military commander may train his guns upon a fortified place, even though in the bombardment which follows he knows perfectly well that many non-combatants will perish. The sufficient cause in the case is consideration of the highest public good to be subserved by the defeat of the enemy. When, however, the untoward death of a person is the outcome of an action which is prohibited precisely because of the founded likelihood of its having this fatal result, then in the court of conscience the doer is held to be guilty in spite of his disclaimer of all intention in the matter. Hence, for example, one who fires a shotgun into the public thoroughfare, whilst protesting that he has no wish to work any mischief, is, nevertheless, obviously to be reproached as a murderer if perchance his bullet has killed anybody.
For the protection of one's own or another's life, limb, chastity, or valuables of some moment, it is agreed on all sides that it is lawful for anyone to repel violence with violence, even to the point of taking away the life of the unjust assailant, provided always that in so doing the limits of a blameless defense be not exceeded. It is proper to note (I) that the danger apprehended for oneself or another must be actual and even, so to speak, imminent, not merely prospective. Hence, the teaching here propounded cannot be adduced to justify the use of force for purposes of reprisal or vengeance by a private individual. This latter is a function belonging to the public authority. (2) No more violence may be employed than is required to safeguard sufficiently the goods already enumerated upon which an unwarranted assault has been made. The right of self-defense so universally attributed does not necessarily presuppose in the aggressor an imputable malice. It is enough that one's life or some other possession comparable with life should be threatened outside of the proper channels of the law. One might, for example, kill a lunatic, or one crazed with drink, although there is no malice on their part, if this were the only effective way to head off their onset. St. Thomas is careful to say that even in self-defense it is unlawful to kill another directly, that is, to intend immediately the death of that other. His mind is that the formal volition of the self-defender should entirely be to preserve his own life and repulse the onslaught, whilst as to the loss of life, which, as a matter of fact, ensues, he keeps himself in a purely permissive attitude. This contention is combated by De Lugo and some others, who believe it to be right to choose expressly the killing of another as the means to self-defense. In conformity with the Thomistic doctrine is the axiomatic utterance that a private individual may never lawfully kill anyone whatever, because in self-defense one does not, technically speaking, kill, but only endeavors to stop the trespasser. Hence, according to the Angelic Doctor, it would follow that only by due operation of law may a human being ever be directly done to death.
Unlike other instances of damage wrought, the murderer cannot offer an adequate indemnity. For one thing, he cannot restore the life he has destroyed. There is no doubt, however, but that he is obliged to make good whatever expenses may have been incurred for medical attendance or hospital care, and this to the surviving heirs. He is likewise bound to furnish to the immediate relatives of his victim, such as wife, children, parents, the sustenance for which they depended on the latter. Should the murderer die before being able to satisfy these claims they pass as a burden to be met by the inheritors of his estate. It is not easy to determine what obligation, if any, the slayer has to the creditors of the slain; but it seems equitable to say that he must at least reimburse them whenever it is clear that his aim in the perpetration of the deed of blood was to injure them.
One who has killed another under circumstances that show his act to be a mortal sin whether he directly or only indirectly intended the fatal result, and whether he was the physical or the moral cause, contracts the canonical impediment known as irregularity. In ancient times many penalties, such as censures and the like, were leveled against those who procured the assassination of others. By this crime was meant the procedure of those who, by the payment or promise of a reward, explicitly commissioned abandoned men to put others to death. The text of the law denouncing this atrocity directly took cognizance of the case in which infidels were hired to do away with Christians. The excommunication imposed has since been removed, but other punishments remain in force. Thus, for example, a criminal of this sort could not invoke in his behalf the right of asylum; if he were a cleric he would be regarded as canonically degraded, and left to the disposition of the secular arm, so that he might be put to death without any actionable violation of the immunity proper to his state. Whether the actual assassin, who carries out the orders of his principal, is to be considered as included in the provisions of the law, is not certain.
JOSEPH F. DELANY.
II. IN CIVIL JURISPRUDENCE.—According to its signification in jurisprudence homicide is "the killing of a human being by a human being" (J. F. Stephen, "Digest of the Criminal Law", London and New York, 1894, 175; Wharton, "The Law of Homicide", 3rd ed., Rochester, N. Y., 1907, 1), and may be "free from legal guilt" (Serjeant Stephen, "New Commentaries on the Laws of England", 14th ed., London, 1903, IV, 37; Wharton, op. cit., 1). The very ancient Latin language expressed the act of killing a human being by numerous terms, but not by the term homicidium, which came into use at a comparatively late period (T. Mommsen, "Le Droit penal Romain", French tr., Paris, 1907, II, 324-5). That it did not necessarily import the deed of a criminal Horace's allusion to homicidam Hectorem (Epod., xvii, 12) indicates.
Homicide free from legal guilt was by the English law defined as either justifiable or excusable. Of justifiable homicide an instance is afforded by such "unavoidable necessity" as the execution of a criminal "pursuant to the death warrant and in strict conformity to the law" (Wharton, op. cit., 9). Instances of excusable homicide would be killing in self-defense or an accidental killing by a person doing a lawful act without any intention to hurt (Idem, op. cit.). But contrary to the legal doctrine which Sir William Blackstone (Commentaries on the Laws of England, IV, 186) derives from Lord Bacon, modern English law does not seem to admit necessity of self-preservation as excuse for killing "an innocent and unoffending neighbor" (Queen vs. Dudley and Stephens, English Law Reports, 14 Queen's Bench Division, 286). Homicide under circumstances rendering the act neither justifiable nor excusable is a crime of the class denominated felonies (Bishop, "New Comment, on Crim. Law", Chicago, 1892, II, sec. 744). Felonious homicide, when imputed by law to the infirmity of human nature and deemed without malice, is termed manslaughter, being either a voluntary killing "in a sudden heat of passion", or an involuntary killing "in the commission of an unlawful act" (Wharton, op. cit., 6). Felonious homicide when accompanied by malice constitutes murder, a crime committed "where a person of sound memory and discretion unlawfully kills any reasonable creature in being in the peace of the commonwealth or sovereign with malice prepense or aforethought, either express or implied" (Wharton, op. cit., 2). "The King's peace", Blackstone deems proper to specify, is so comprehensive that to kill "an alien, a Jew or an outlaw" (except an alien enemy in time of war) "is as much murder as to kill the most regular born Englishman." But he adds that, "to kill a child in its mother's womb is now no murder, but a great misprision" (op. cit., IV, 198).
Murder in its most odious degree, according to Blackstone (op. cit., IV, 204), is what the former English law termed petit treason, the killing by an inferior of a superior to whom the slayer owed faith and obedience. This crime might, therefore, be committed by an ecclesiastic against his superior, by a wife against her husband, or by a servant against his master, acts which modern law does not distinguish from other homicides [op. cit., IV, 203, note to Lewis's edition (Phila., 1897), 204] (Bishop, op. cit., I, sec. 611). Suicide is felonious homicide by the English common law (Wharton, op. cit., 587). But the ancient forfeiture of goods being now abolished, this offense is beyond the reach of human tribunals (Bishop, op. cit., II, sec. 1187). That a person shall be legally guilty of criminal homicide death must have occurred within a year and a day after the occurrence out of which an accusation arises (Bishop, op. cit., sec. 640). Although the criminal law of the States of the United States (except Louisiana) is based on the English common law, yet statutory modifications are numerous and important.
CHARLES W. SLOANE