HOMICIDE (Lat. homo, a man, cedere, to kill). The killing any human creature. 4 Bla. Com. 177.
Excusable homicide is that which takes place under such circumstances of accident or necessity that the party cannot strictly be said have committed the act wilfully and intentionally, and whereby he is re lieved from the penalty annexed to the com mission of a felonious homicide.
Felonious homicide is that committed wil. fully under such circumstances as to render it punishable.
Justifiable homicide is that committed with full intent, but under such circum stances of duty as to render the act one proper to be performed.
According to Blackstmie, 4 Com. 177, hom icide is the killing of any human creature. This is the most extensive sense of this word, in which the intention is not considered. But in a more limited sense, it is always un derstood that the killing is by human agency; and Hawkins defines it to be the killing of a man by a man. 1 Hawk. Pl. Cr. c. 8, § 2. See Eralloz, Diet.; Com. v. Webster, 5 Cush. (Mass.) 303, 52 Am. 711. Homicide may perhaps be described Dec_.to be the destruc tion of the life of one human being, either by himself or by the act, procurement, or culpa ble omission 'of another. When the death has been intentionally caused by the de ceased himself, the offender is called felo de se; when it is caused by another, it is jus tifiable, excusable, or felonious homicide.
The distinction between justifiable and excusable homicide is that in the former the killing takes place without any manner of fault on the part of the slayer; in the latter there is some slight fault, or at any rate the absence of any duty rendering the act a proper one to be performed, although the blame is so slight as not to render the punishable. The distinction is very frequently disregarded, and would seem to be of little practical utility; See 2 Bish. Cr. Law § 617. But between justifiable or ex cusable and felonious homicide the distine tion, it will be evident, is of great impor tance. 1 East, Pl. Cr. 260, gives the follow ing example : "If a person driving a car riage happen to kill another, if he saw or had timely notice of the mischief likely to ensue, and yet wilfully drove on, it will be murder; if he might have seen the danger, but did not before him, it will be man slaughter; but if the accident happened in such a manner that no want of due care could be imputed to the driver, it will be accidental death and excusable homicide." See 4 Bla. Com. 176; Rose. Cr. Ev. 580; Cl. Cr. L. 131.
There must be a person in actual exist ence ; 6 C. & P. 349 ; 7 id. 814, 850; 9 id. 25; Johnson v. State (Tex.) 24 S. W. 285; but the destruction of human life at any period after birth is homicide, however near it may be to extinction from any other cause; 2 C. & K. 784 ; 2 Bish. Cr. Law § 632 ; but a child in the act of being born would not be includ ed ; 5 C. & P. 539; and the death must have
occurred within a year and a day from the time the injury was received; State v. Or rell, 12 N. C. 139, 17 Am. Dee. 563 ; People v. Kelly, 6 Cal. 210; Edmondson v. State, 41 Tex. 496 ; State v. Mayfield, 66 Mo. 125; Com. v. Macloon, 101 Mass. 6, 100 Am. Dec. 89. It is not necessary that the injury in flicted was the sole cause of the death, pro vided it contributed mediately or immedi ately in a degree sufficient for the law's no tice; State v. Matthews, 38 La. Ann., 795; 2 Bish. Cr. Law §§ 637, 638; State v; Smith, 10 Nev. 106. A person illegally arrested may use such force as is necessary to regain his liberty, and should there be reasonable ground to believe that the officer making the arrest intends shooting• the prisoner to pre vent his escape, such prisoner may shoot the officer in self-defence; Mien; v. State, 34 Tex. Cr. R. 161, 29 S. W. 1074, 53 Am. St. Rep. 705. So where one is assaulted and there is reasonable ground for him to fear loss of his life, or great bodily harm, he is not obliged to retreat nor consider whether he may so act in safety, but he is entitled to stand his ground and meet any attack made upon him with a deadly weapon, even if in so doing he cause the death of his assail ant; Beard v. U. S., 158 U. S. 550, 15 Sup. Ct. 962, 39 L. Ed. 1086; Page v. State, 141 Ind. 236, 40 N. E. 745.
Where malice and intent are elements of murder in the second degree, a person is not as a matter of law guilty of that crime because he sets a spring gun from which a homicide results; •State v. Marfaudille, 48 Wash. 117, 92 Pac. 939, 14 L. R. A. (N. S.) 346, 15 Ann. Cas. 584, where the defendant had placed the spring gun in his locked trunk, having warned the deceased of its presence there. She, having a right to enter his room, procured the key, unlocked the trunk and was killed. The owner of a shop might be justified in case of the death of a burglar for having placed a spring gun on his premises; State v. Moore, 31 Conn. 479, 83 Am. Dec. 159.
The person killed, to constitute the homi cide felonious, must have been entitled to his existence. Thus, a soldier of the enemy in time of war has no right to his life, but may be killed. A criminal sentenced to be hang ed has no right to his life; but no person can take it but the authorized officer, in the prescribed manner. Where a soldier, in the regular army, to prevent an escape, shot at a fleeing prisoner and killed a bystander, it was held that be acted in the supposed dis charge of his duty and was not guilty of manslaughter; U. S. v. Lipsett, 156 Fed. 65.
The elements of felonious homicide under the United States laws are to be determined by the principles of common law ; U. S. v. Lewis, 111 Fed. 630.
See MURDER ; MANSLAUGHTER; SP.r.v-DE FENCE ; ADEQUATE CAUSE; PBOVOOATION; MICHIE, HOMICIDE.