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,[1] 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 personâ” (“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 poenâ (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
- ↑ Appeals remained in the law till 1819, but were long before this disused. In the middle ages they were used as a means of getting compensation.
