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fies a woman killing one who attempts to ravish her; or the slaying by a husband or father, of a man who attempts a rape upon his wife or daughter; but not if he takes them in adultery, for the one is forcible, the other not.
Force Repelled by Force. The uniform principle which runs through all laws, seems to be, that where a crime, in itself capital, is attempted to be committed by force, it is lawful to repel such force by the death of the party.
Without Fault, In cases of justifiable homicide, the slayer is rather to be commended than blamed, and is to be totally acquitted, which is not quite the case in excusable homicide, the very name whereof imports some fault, error or omission, though trivial.
II. EXCUSABLE HOMICIDE.
Two Kinds. Either per infortunium, by misadventure; or se defendendo, for self preservation.
(1.) Per Infortunium. This is where a man, doing a lawful act, without bad intent, unfortunately kills another, as where a man in shooting at a mark, undesignedly kills a man.
Also where an officer punishing a criminal, happens to occasion his death, it is only misadventure, for the act of correction is lawful. But if he exceeds the bounds of moderation, either in the manner, the instrument, or the quantity of punishment, and death ensues, he is guilty of manslaughter.
In Games or Sports. By the laws both of Athens and Rome, he who killed another in the pancratium, or public games permitted by the state, was not held guilty of homicide. In general, if death ensues in consequence of an idle, dangerous and unlawful sport, the slayer is guilty of manslaughter, for the act itself is unlawful.
(2.) Se Defendendo. In self defence. This is the case, where a man in protecting himself from an assault, or the like, in the course of a sudden quarrel, kills him who assaults him. The law terms this chance-medley, a casual affray, or chaud medley, an affray in the heat of blood or passion. To excuse homicide by this plea of self defence, it must appear, that the slayer had no other probable means of escaping from his assailant.
Differs from Manslaughter. When both parties are actually combating at the time the mortal stroke is given, the slayer is then guilty of manslaughter; but if the slayer has not begun the fight, or having begun it, endeavors to decline further struggle, and afterwards, being pressed, kills his antagonist to save himself, the homicide is excusable, as self defence. The law requires, that he must first have retreated, as far as he safely could to avoid the assault, before he turned upon his assailant.
Act of Revenge. Duelling. Not only the manner of the defence, but the time also must be considered, for if the person assaulted does not fall upon the aggressor until the affray is over, or when he is running away, this is revenge, and not defence. Yet if two men agree to fight, and in the duel, one retreats, and when pressed by his adversary, kills him, this is murder, because of the previous malice and design.
Defending near Relations. Under this excuse of selfdefence, master and servant, parent and child, husband and wife, upon killing an assailant, in defending one another respectively, are excused; the act of the relative assisting being construed the same as the act of the party himself.
Shipwrecks. In the case of a shipwreck, where a man, for self-preservation, consigns to death another party, who has seized the same plank for safety, but which will not sustain both, the homicide is clearly excusable.
Negligence Presumed. Certain circumstances may exist, wherein these two species of homicide, by misadventure and selfdefence, agree; and these are in their blame and punishment. The law values human life so highly, that it imputes misbehavior in the slayer, unless he acts by command and permission of the law. In the case of misadventure, it presumes negligence in him who unfortunately commits it, believing that in the original quarrel, both parties were in some fault. In the other case, the law cautions men not to venture to kill other upon their own private judgment, and it must be a stern necessity to excuse such an act.
Israelitish Law. Cities of Refuge. Among the Jews, even the slaughter of enemies required a solemn purgation, which implied that the killing of a man, from whatever cause, left a stain behind it. The Mosaical law appointed certain cities of refuge for him, who killed his neighbor unawares; until he reached which asylum, the avenger of blood might slay him, nor could he leave such city with safety, until the death of the high priest.
Laws of Other Nations. In the imperial law, casual homicide was excused by the express sanction of the emperor, in each case; while among the Greeks, the misfortune was expiated by voluntary exile for a year. In Saxony, a fine was paid to the kindred of the slain party, and in France, a largess was given to the poor, and masses performed for the soul of the deceased.
Ancient English Penalty. Under ancient English laws, the penalty in such case inflicted, consisted, it seems, in a forfeiting of goods by way of fine or weregild, which was probably disposed of as in France, to pious uses. III. FELONIOUS HOMICIDE.
Defined. This is the killing of a human being of any age or sex, without justification or excuse. SUICIDE.
Defined. Self-murder is one form of this crime, which was the pretended heroism, but real cowardice, of the Stoic philosophers; who thus avoided ills, which they had not the fortitude to endure. Though apparently countenanced by the civil law, it was denounced by the Athenian law, which ordered the offender's hand to be severed from the arm. The English law ranks suicide among the highest crimes, and if it has been done through the advice of another, such accessory is guilty of murder.
Felo de Se. A suicide is one, who deliberately puts an end to his own existence, or commits an unlawful malicious act, which results in his own death ; as if in attempting to kill another, he runs upon his antagonist's sword, or shooting at another, the gun bursts and kills himself. The party must be in his senses, and of years of discretion. Coroner's juries strain a point, when they assert that the very act of suicide is proof of insanity, as if every man, who acts contrary to reason, was himself devoid of reason, A hypochondriac can discern right from wrong, as also can a lunatic, during a lucid interval.
Punishment for Self-murder. The law, in such case, can only reach the man's reputation and fortune. Hcnee it has ordered an ignominious burial in the highway, with a stake driven through the offender's body, and a forfeiture of his goods and chattels to the king. If he holds lands with his wife for a term of years, the latter forfeits her rights of survivorship, and the land is forfeited to the king.
1 This public interment no longer takes place. No punishment for this offence exists in the United States.
Defined. This offence differs from that of murder, in that, when voluntary. it arises from the sudden heat of the passions, while murder is occasioned by the wickedness of the heart. Manslaughter is the unlawfully killing of another, without malice express or implied, which may be either voluntary or involuntary. There can be no accessories before the fact, the act being without premeditation.
Voluntary Manslaughter, If upon a sudden quarrel, two persons fight, and one slay the other, this is manslaughter; so also, if upon such an occasion, they go out and fight in a field; for this is one continued act of passion. So if a man be greatly provoked, as by having his nose pulled or other great indignity, and immediately kills the aggressor, though this is not excusable as an act of self defence, nor is it murder without previous malice, yet it is manslaughter.
Time Allowed for Reflection. Yet in such cases of homicide upon provocation, if sufficient time has elapsed for passion to cool, and reason to interpose, and the insulted party subsequently kills the other, this is deliberate revenge, and amounts to murder.
Killing an Adulterer. So if a man detects another in the act of adultery with his wife, and kills him on the spot; though this was allowed by the laws of Solon, as likewise by the civil law, where the paramour was found in the husband's own house; yet in England, it is manslaughter of the highest degree, in which the court directed the hand of the offender to be slightly burned.
Differs from Excusable Homicide. Manslaughter in sudden provocation differs from excusable homicide, se defendendo, in this, that in the latter for self preservation, there is an apparent necessity to kill the aggressor ; while in manslaughter, it is only a sudden act of revenge.
Involuntary Manslaughter. This differs from homicide, excusable by misadventure, in this, that the latter happens in consequence of a lawful act, while the former is the result of an unlawful one.
So when a person does an act, lawful in itself, but in an unlawful manner, and without due caution, as where a workman flings down a stone from a house and kills a passer-by; this may be either misadventure, manslaughter or murder, according to the circumstances under which the act was done. If it occur in a country village, where few passengers are found, and he calls out to have a care, it may be misadventure only, but if it happen in a large city, where people are continually passing, it is manslaughter, though he gives loud warning; and murder if he gives no notice whatever, for this would show malice against all mankind. If the act be in prosecution of a felonious intent, naturally attended with bloodshed, it will be murder, but if only a civil trespass was intended, it will be manslaughter.
Stabbing. One species of manslaughter is punished as murder, the benefit of clergy being taken away by statute, namely, the offence of mortally stabbing another, though done upon sudden provocation. This statute was made, on account of the fre ent quarrels and stabbings with short daggers between the Scotch and English at the accession of James I.
Punishment. This crime is almost universally punished with death. The Mosaical law reads, that “whoso sheddeth man's blood, by man shall his blood be shed.” The name is derived from the Teutonic word “moerda." A heavy amercement was levied on a vill, where it was committed, as was the case in England under the reign of Canute, on account of his countrymen, the Danes, being often secretly slain by the English; and was afterwards adopted by William the Norman. The law in this respect was afterwards abolished.
Defined. Murder, says Coke, is when a person of sound memory and discretion unlawfully kills any reasonable creature in being, and under the king's peace, with malice aforethought, either express or implied. Lunatics or infants cannot commit the crime, unless they show a consciousness of doing wrong and a discernment between good and evil. The unlawfulness must be without warrant or excuse, and there must be an actual killing, and not a mere assault.
Form of Death. Any form of death suffices, but if a party be indicted for murder by poisoning, he cannot be convicted on evidence of death by shooting, or other totally different species of death. If the difference is immaterial, as an allegation of death by a wound from a sword, and it proves to have been from an axe, the difference is not essential. The most detestable species of murder is by poison. By statute of Henry III, murder by poisoning was made treason, and the offender was boile l to death. In the next reign this act was repealed.