The Crime of Homicide.docx

1、The Crime of HomicideThe Crime of Homicide P73 故意杀人罪Homicide is the killing of one human being （人类)by another human being. Not all homicides are criminal, however. For instance (例如）, a person who kills another in self -defense has committed no crime; it is justifiable homicide. The same is true of t

2、he police officer who kills a person to prevent the commission of a forcible felony, such as robbery or burglary, when the killing is a reasonably necessary preventive measure; or when the officer kills a dangerous felon in order to prevent his escape. Then , too, some killings are excusable homicid

3、es ; for instance , where a person accidentally , and without gross negligence, causes the death of another individual.A killing amounts to a criminal homicide when it is done without lawful justification or excuse. Depending upon certain circumstances it may be either murder or manslaughter. In the

4、 early days of our country , and prior thereto in England , the elements of the crimes of murder and manslaughter were prescribed by court decisions. These decisions came to be known as the “common law”. Since then , in most jurisdictions murder and manslaughter have been redefined by the legislativ

5、es , either in the form of a separate statute or as a provision fo a criminal code.Part One Murder According to be common law, murder was the killing of a human being “malice”, and the requirement of “malice” is still found in some present- day statutes and codes. The California Penal Code, for inst

6、ance, has retained it. That code provides , as did the common law , that.“. Malice may be express or implied. It is express when there is manifested a deliberate intention to take away the life of a fellow creature. It is implied , when no considerable provocation appears, or when the circumstances

7、attending the killing show an abandoned and malignant heart”A clear illustration of express malice is a case where one person intentionally pushes another off the side of a mountain. An example of implied malice is where a person fires a rifle at a moving passenger train , just” to scare” the person

8、 aboard or to display skill at firing a bullet between the cars without hitting anyone. The dangerousness of the conduct would be evidence of “malice” as regards any killing that may be reasonably attributed to such conduct. It would indicate, to a California court to jury, “an abandoned and maligna

9、nt heart”.The penalty for murder is punishable by death in some states ; in others by prison terms extending to “life” or a specified number of years.(a) Felony -MurderAnother example of a satisfaction of the element of malice is a killing during the course of a felony such as robbery. Even though a

10、 robbers gun goes off accidentally , killing the robbery victim , or a bystander , or a police officer, his conduct of committing such a dangerous crime as robbery satisfies the requirement of malice so that killing becomes punishable as murder. A similar line of reasoning has resulted in holding co

11、-felons guilty of murder where, in the course of an exchange of shots between robbers and the police , a police officer is accidentally killed by another officer.Malice may also be attributed to a robber whose partner in the crime intentionally kills someone during the commission of the crime or the

12、 attempted escape. Malice on the part of all participants is implied from the dangerousness of the robbery itself; moreover , each robber is considered to act as an agent for the others in accomplishing their objective , including the attempt to escape.This whole issue of felony -murder stems primar

13、ily from the prosecutions interest seeking the death penalty for such killings . In some of the states which have abolished capital punishment (Wisconsin, for example ), the legislatures , out of an understandable desire to punish robbers more severely whenever a killing results,have provided that p

14、unishment for such offenses shall be fifteen years greater than that provided for non-fatal robberies.(b ) Degrees of Murder Some states have specified varying penalties for murder , depending upon the circumstances of the killing. A “willful, deliberate and premeditated “killing , such as a poisoni

15、ng or a killing during the commission of a dangerous felony, may be labeled first degree murder and punishable by death or long imprisonment . Other forms of murder may be of the second degree and punishable with a lesser penalty. According to the common law, however, there were no degrees of murder

16、. Any unlawful killing was either murder or manslaughter. Part Two: Manslaughter Manslaughter was defined at common law as an unlawful killing of another without malice. It could be either voluntary or involuntary.Manslaughter , in contrast to murder, is usually punishable by a prison term which may

17、 range from one year to ten or fourteen years. (a ) Voluntary Manslaughter An intentional killing upon “ great provocation “and “in the heat of passion “ constitutes the crime of voluntary manslaughter. A classic example is the killing by a husband (or wife） who unexpectedly finds his or her spouse

18、in an act of sexual intercourse with another person, or in a situation evidencing impending or immediately concluded adulterous conduct. Killing of the paramour or of the spouse , or both , in such a circumstance would fall within the category of manslaughter because (a ) the provocation was great ,

19、 and (b ) the killer was in the “heat of passion “ A killing of this type treated less harshly than murder , out of consideration for the frailties of human nature. In other words , there is an understanding appreciation that the instinctive reaction of the husband(or wife ) if such a situation is t

20、o kill or do other serious harm. Nevertheless , there is a feeling that such conduct should be discouraged by a criminal sanction , but one with a penalty considerably less than for the crime of murder.It is of interest to note that in such paramour killing cases the conviction rate is quite low, pr

21、imarily because of the willingness of juries to accept occasionally the frequently concocted explanation that the killing was done in self-defense; in other words, the paramour attacked the spouse, who killed his “ attacker” only in order to keep from being killed himself. The result of acquittal in

22、 such cases is sometimes described in the press as an acquittal by reason of “the unwritten law”A few states (Texas ,New Mexico , and Utah) have tried to simplify the whole matter of paramour killings by legalizing such killings where the paramour is caught in the act. But in those states the privil

23、ege does not extend to the killing of the participating spouse. Applying the test of whether an intentional killing was upon great provocation and in the heat of passion , the question is put to the jury, or to the judge in non-jury cases , as to whether the accused reacted as a “ reasonable man” .T

24、echnically speaking , it is not the particular sensitivity or temper if the killer that is taken into consideration ,but rather an effort is made to determine how,a “reasonable man “might have acted under similar circumstances . An illustration of this is a famous English case where a sexually impot

25、ent man felt insulted by the remarks of a prostitute with whom he had tried in vain to have sexual intercourse, and he proceeded to kill her. He contended that his sensitivity over his condition should be taken into account in determining whether there was serious provocation for this reaction , but

26、 the court held that his conduct was to be judged by the standard of an ordinary, normal “ reasonable man “ (b ) Involuntary Manslaughter Involuntary manslaughter may be described generally as an unintentional killing resulting from gross negligence , or as a result of dangerous unlawful conduct. Fo

27、r example , a person who throws a heavy object from the upper stories of a building into an alley used with some frequency by pedestrians may be guilty of manslaughter if a killing result. Likewise , a motorist may commit manslaughter if he kills a child at a school crossing while traveling at an ex

28、cessive speed.A number of states have created a related crime known as “reckless homicide “ or “negligent homicide” for application to killing by motorists who were driving in a reckless or grossly negligent manner. This special kind of homicide legislation was enacted because of the difficulty enco

29、untered in convicting motorists for more revoltingly labeled offense of manslaughter (i,e., the slaughter of a man ), which also carried , traditionally ,a minimum penalty of one year in the penitentiary. It was thought advisable to categorize such conduct with the less revolting label of reckless o

30、r negligent homicide and also to permit the imposition of lesser penalties than the one prescribed for manslaughter . Stated another way. it is better to obtain a reasonable number of convictions carrying relatively light penalties than to get very few convictions carry heavy penalties. The permissi

31、ble range of penalties in reckless homicide or negligent homicide statutes is generally a fine up to $1, 000 , or incarceration other than in a penitentiary for any period up to one year, or imprisonment in a penitentiary up to five years .( Where the traffic victim of such conduct does not die. Ano

32、ther new statutory offense may be invoked- “reckless conduct”) The flexibility of penalties in traffic death cases has the effect of encouraging pleas of guilty from offenders, and it results in convictions that might not be secured if a judge or jury had no choice other than a penitentiary sentence

33、 or an acquittal.Part Three Federal Homicide Law There is no general federal homicide law. There can be none, in fact, since constitutional authority is lacking for Congress to legislate upon subject , except with respect to killings within a federal territory , in federal buildings or upon other federal property, or killings of fed