HOMICIDE, the killing of a human being, is accidental, culpable, or justifiable.
Accidental, in law, implies not merely the absence of intention but of fault. A man employed at some lawful operation, and taking due care, is not responsible for unforeseen fatal consequences—as, if a gun burst; a child unexpectedly
runs in the way of a carriage; or two friends wrestle for amusement, and death ensues. Such death is excusable. It is sometimes termed a misadventure. In judging, after the event, of the degree of caution which should have been used, it would be unreasonable, in every case, to require the very utmost that was possible. If two men are felling a tree, which unexpectedly falls, and one of them is killed, or if a man lays aside his unloaded fowling-piece, and, in ignorance of its being reloaded, handles it and kills his friend, it may be easy to say what would have averted the calamity; but the law is not so exacting, seeing that, in the language of an English judge, "accidents of this lamentable kind may fall to the lot of the wisest and best of men." If, however, the neglect or inattention amounts in any degree to what a jury regard as reprehensible, the case becomes
Culpable homicide, or manslaughter, meaning not accidental, and yet not amounting to murder. Cases of this kind vary from the faintest degree of culpability deserving only of nominal punishment, to guilt of the deepest dye. In them there is the absence of the intention to kill, and yet the party is amenable to punishment on account either of carelessness or wrong doing. To administer wrong medicine, neglect a fence, leave a horse on the streets unattended, or to inflict bodily injury, may happen without any intention to kill; but, if death ensue, the obvious culpability, high or low as it may be, cannot, on account of the interests of the public, be allowed to go unpunished. The last of these cases approximates to murder. If a man go a step farther, intending to inflict some severe injury, reckless of the consequences, such as beating with the declared intention of just sparing the life, or giving violent medicine to a woman to procure abortion, and death ensues, it is murder.
Murder consists in acts committed with the intention of killing, or at least of inflicting some grievous bodily injury which obviously puts life in hazard, followed by death; as, if a man strike another on the head with a hatchet, or treat him with such cruelty as denotes utter indifference whether he die or not, and he die. To chastise an infant excessively, regardless of his cries and the remonstrances of bye-standers; to shoot, intending to kill one person, and hit another; to fire a loaded gun along a street on which people are passing, though aiming at no one in particular; to cut the rope of a scaffold, by which a man is precipitated from a great height; and many such cases, where life is lost—have been found to amount to murder, as they show a determination either to kill or to do a serious wrong at the hazard of all consequences. The nature of the weapons, or means employed, such as a knife, a gun, or poison, are often conclusive; and when such is the case, jurors should, according to their oaths, do their duty to the law and to their country. Where the crime is proved, it is not sufficient to say that the manslayer was excited to frenzy by some fancied wrong or inadequate cause, and acted with little premeditation, because he was bound to maintain the mastery of his passions,—though no doubt his moral guilt is exceeded by that of the assassin, who, for hire or revenge, waylays and stabs his victim. On the other hand, if it appear that a man acted under a sudden impulse, occasioned by some intolerable wrong, he will not be held guilty. On the contrary, the killing will be regarded either as culpable or justifiable homicide, according to its circumstances. For example, if a man be unwarrantably assaulted with violence and indignity, as, by a horse whip, pulling his nose, or the like, and he inflict, in the sudden transport of passion so excited, a mortal wound on his assailant, the killing will be attributed to human frailty, rather than to recklessness or malice, and may be regarded merely as culpable homicide; but he will not be allowed after the assault is over to take satisfaction at his own hand, and kill his assailant. To do so is to commit murder. In no case will the law, after almost the briefest
Homicide. lapse of time, permit the indulgence of revenge. An adulterer, detected by the husband in the act, may be killed; but if he escape, and be afterwards met and killed by the husband, such killing is murder. The shortest interval, after any provocation, destroys such a defence; as, if a man, injured even to the effusion of blood, should search for a gun, and follow and shoot the party who had assaulted him; because the interval afforded an opportunity for the exercise of reason, and the law could have been appealed to. An English judge expressed what is the law both of England and Scotland when he said, "in all possible cases homicide, upon a principle of revenge, is murder." One thing is quite fixed, that as contumelious words will not justify blows, so neither will blows with the hand justify the use of a knife, or other lethal weapon. Wherever the use of a lethal weapon is not justified by dire necessity, in order to preserve a man's own life, killing by its use is murder. Accordingly, the law both of England and Scotland agree in this, that no attempt to steal or to trespass will justify a man whose life is not in imminent hazard, in the taking of life. On a similar principle, to kill a poacher, or to place a spring-gun to protect a garden, and it kills, is murder. It would, indeed, be strange if the law permitted a private party to take the life of another, for an offence which, on conviction after a legal trial, it would not punish with a penalty so dreadful.
To warrant a conviction, it is necessary that death result directly from the injury, or from its natural, and not remote or merely probable consequences. If a wounded man die from grossly erroneous treatment, or from unnecessarily exposing a wound, so as to irritate it into a mortal complaint, it would be hard to visit his assailant with the penalty of murder. On the other hand, if the wound be the direct cause of death, though if a surgeon could have been got on the instant, the life would probably have been spared, the assailant must take the consequences, because he had no right to put life in hazard; and, on the same principle, it is murder to kill a man apparently dying from some mortal disease, because no man has a right to abridge the life of another even by a moment, or to cut off the feeblest chance of recovery.
It is not necessary, in order to warrant a conviction, that a man perpetrate murder with his own hand. If he hire or assist another to commit it, or if he furnish the means, or watch for the protection of the murderer while the crime is being committed, he is, both in law and in reason, accessory to the commission of the crime, and is most righteously amenable to punishment as a murderer.
The appropriate punishment of murder is death. Long before the moral law was given from Sinai, the Divine Being declared that "whoso sheddeth man's blood, by man shall his blood be shed;" and we think that the natural dictate of the well-regulated mind is to repel the sophistries by which this solemn declaration is sometimes sought to be evaded. So repulsive is murder to the Great Author of life, that, under the law which He gave to Moses, He allowed no sacrifice to be provided, nor ransom to be taken, for the life of a murderer—and even the accidental manslayer was compelled, for the safety of his own life, to remain within one of the cities of refuge while the high priest of the time was alive. It is sometimes questioned whether capital punishment should take place publicly, or within the precincts of the prison, in presence of a number of witnesses provided to attest its execution. The latter opinion is approved by some, as having a less hardening tendency on the minds of the populace. To remove the felon from the bar of earthly judgment, to immure him within the walls of the prison, from which he is not to return alive, and to detain him till the determinate moment at which he shall find himself at the bar of the Judge of all the earth, may produce in the minds of the thoughtless something more fearfully solemn than the parade of a public execution, during which, in our sympathy for the sufferer, his crimes may be forgotten. But
however that question may be settled, and so long as the Homicide. declaration of the Divine Being, "I will put my laws into their mind, and write them on their hearts," is respected by his creatures, we believe that the punishment of death for the most fearful of all crimes cannot be relaxed without multiplying the number of victims hurried into eternity, without even the murderer's privilege of time to prepare for their final account.
The punishment for manslaughter or culpable homicide is, fine, imprisonment, or transportation, in the discretion of the judge according to the degree of guilt; and the offender is further left to the issue of an action of law for civil reparation at the instance of the widow and next of kin of the person whom he has killed.
Homicide is justifiable when it is occasioned by unavoidable necessity. Illustrations of this are daily afforded by soldiers and sailors in battle, or in the necessary defence, when on duty, of their post or their arms—judges pronouncing, and inferior officers executing legal sentences of death—and magistrates or other officers killing when such is the only means of suppressing a riot or breach of the peace. In the case of private individuals also, the infliction of death becomes justifiable when no other means of defence remain against highway robbery, housebreaking under night, or assaults involving danger of life, or in the case of a woman as a last resource in defence of her chastity. The justification, however, will only avail when matters have come to an extremity—and certainly not either before the danger has reached that point, or after it has passed away. If the danger be over, killing becomes revenge, and is justly regarded as murder. Even the clearest necessity of killing in defence will be unavailing, if it was brought about by a man's own criminality, as by his culpably irritating and rousing another by wanton and unwarrantable provocation or cruelty to attack him. It becomes, therefore, always of importance to ascertain all the circumstances connected with the beginning and progress of an assault, and by whom the first blow was given.
Very delicate questions have arisen in the cases of officers of the law bound on behalf of the public to execute a legal warrant. Their position is different from that of private individuals, in this respect, that they incur responsibility if they fail to do their duty. Of course, if in the discharge of their duty their lives are brought into peril, they are justified, like any private individual, in killing; but they differ from private individuals in this, that they may be required to do the very thing, under the sanction of law, that puts their lives in danger. If persons in a smuggling vessel do not desist from attempting to escape when hailed by a known revenue cutter, it is lawful to enforce compliance by firing, for in such a case the fleeing to defraud the revenue is just that resistance which it is the duty of the officers of the law to overcome by the only means in their power. But if, on coming in contact with those whom they are required to apprehend, they be the first to resort to lethal weapons, or if, under any circumstances, they use them unnecessarily, they will be liable for the consequences. It is murder for an officer to kill a person flying from the execution of a civil process, or even of a criminal warrant for an offence not capital, or for an assault not at the time known to involve danger of life. It is only the deep interest which the public has in the punishment of those who commit the highest crimes, that justifies an officer armed with a criminal warrant (if indeed the law of Scotland will justify him) in killing such a criminal when fleeing, who might otherwise altogether escape. The requirements of military law are necessarily more strict, but these may be noticed in another place.
In the preceding remarks we have abstained from taking any notice of the absurd and criminal practice of duelling, that subject having been already fully treated. See DUEL. (M. L.)
HOMILY (ὁμιλία, an assembly), a plain and homely discourse upon some point of religious faith or duty. This term was adopted in the church to indicate the practical nature of Christian discourses as contrasted with the speculative and purely ostentatious harangues of the philosophic schools.
All the homilies of the Greek and Latin fathers are from the pens of bishops, because, in the first ages, they alone were permitted to preach. The privilege was not ordinarily allowed to priests till towards the fifth century. St. Chrysostom was the first presbyter who preached regularly. Origen and St. Augustin also preached, but it was by a peculiar license or privilege.
Photius distinguishes a homily from a sermon in this, that the homily was delivered in a more familiar manner, the prelate interrogating and talking to the people, and they in their turn answering and interrogating him, so that it was properly a conversation; whilst the sermon was spoken continuously in the pulpit, after the manner of the orators.
The practice of compiling homilies, which were to be committed to memory, and recited by ignorant or indolent priests, commenced towards the close of the eighth century, when Charlemagne ordered Paulus Diaconus and Alcuin to form homilies or discourses upon the Gospels and Epistles, from the ancient doctors of the church. This gave rise to the famous collection entitled the Homiliarium of Charlemagne, which, being followed as a model in many productions of the same kind, composed by private persons, contributed much to nourish the indolence, and to perpetuate the ignorance, of a worthless clergy.
The English book of homilies is a collection of plain sermons on the doctrines of the gospel, especially with a view to illustrate the principles of the Reformation. The first part was published by Cranmer during the reign of Edward VI.; and the second was added by order of Convocation during the reign of Elizabeth.