HOMICIDE
The killing of one human being by another human being.
Although the term homicide is sometimes
used synonymously with murder, homicide is
broader in scope than murder.Murder is a form
of criminal homicide; other forms of homicide
might not constitute criminal acts. These homi-
cides are regarded as justified or excusable. For
example, individuals may, in a necessary act of
SELF-DEFENSE, kill a person who threatens them
with death or serious injury, or they may be
commanded or authorized by law to kill a per-
son who is a member of an enemy force or who
has committed a serious crime. Typically, the
circumstances surrounding a killing determine
whether it is criminal. The intent of the killer
usually determines whether a criminal homicide
is classified as murder or MANSLAUGHTER and at
what degree.
English courts developed the body of COM-
MON LAW on which U.S. jurisdictions initially
relied in developing their homicide statutes.
Early English common law divided homicide
into two broad categories: felonious and non-
felonious. Historically, the deliberate and pre-
meditated killing of a person by another person
was a felonious homicide and was classified as
murder.Non-felonious homicide included justi-
fiable homicide and excusable homicide.
Although justifiable homicide was considered a
crime, the offender often received a pardon.
Excusable homicide was not considered a crime.
Under the early common law, murder was a
felony that was punishable by death. It was
defined as the unlawful killing of a person with
“malice aforethought,” which was generally
defined as a premeditated intent to kill. As U.S.
courts and jurisdictions adopted the English
common law and modified the various circum-
stances that constituted criminal homicide, var-
ious degrees of criminal homicide developed.
Modern statutes generally divide criminal homi-
cide into two broad categories: murder and
manslaughter.Murder is usually further divided
into the first degree, which typically involves a
premeditated intent to kill, and the second
degree, which typically does not involve a pre-
meditated intent to kill. Manslaughter typically
involves an unintentional killing that resulted
from a person’s criminal negligence or reckless
disregard for human life.
All homicides require the killing of a living
person. In most states, the killing of a viable fetus
is generally not considered a homicide unless the
fetus is first born alive. In some states, however,
this distinction is disregarded and the killing of
282 HOMICIDE
WEST’S ENCYCLOPEDIA OF AMERICAN LAW, 2nd Editionan unborn viable fetus is classified as homicide.
In other states, statutes separately classify the
killing of a fetus as the crime of feticide.
Generally, the law requires that the death of
the person occur within a year and a day of the
fatal injury. This requirement initially reflected a
difficulty in determining whether an initial
injury led to a person’s death, or whether other
events or circumstances intervened to cause the
person’s death. As FORENSIC SCIENCE has devel-
oped and the difficulty in determining cause of
death has diminished, many states have modi-
fied or abrogated the year-and-a-day rule.
Justifiable or Excusable Homicide
A homicide may be justifiable or excusable
by the surrounding circumstances. In such cases,
the homicide will not be considered a criminal
act. A justifiable homicide is a homicide that is
commanded or authorized by law. For instance,
soldiers in a time of war may be commanded to
kill enemy soldiers. Generally, such killings are
considered justifiable homicide unless other cir-
cumstances suggest that they were not necessary
or that they were not within the scope of the sol-
diers’ duty. In addition, a public official is justi-
fied in carrying out a death sentence because the
execution is commanded by state or federal law.
A person is authorized to kill another person
in self-defense or in the defense of others, but
only if the person reasonably believes that the
killing is absolutely necessary in order to prevent
serious harm or death to himself or herself or to
others. If the threatened harm can be avoided
with reasonable safety, some states require the
person to retreat before using DEADLY FORCE.
Most states do not require retreat if the individ-
ual is attacked or threatened in his or her home,
place of employment, or place of business. In
addition, some states do not require a person to
retreat unless that person in some way provoked
the threat of harm. Finally, police officers may
use deadly force to stop or apprehend a fleeing
felon, but only if the suspect is armed or has
committed a crime that involved the infliction
or threatened infliction of serious injury or
death. A police officer may not use deadly force
to apprehend or stop an individual who has
committed, or is committing, a misdemeanor
offense. Only certain felonies are considered in
determining whether deadly force may be used
to apprehend or stop a suspect. For instance, a
police officer may not use deadly force to pre-
vent the commission of LARCENY unless other
circumstances threaten him or other persons
with imminent serious injury or death.
Excusable homicide is sometimes distin-
guished from justifiable homicide on the basis
that it involves some fault on the part of the per-
son who ultimately uses deadly force. For
instance, if a person provokes a fight and subse-
quently withdraws from it but, out of necessity
and in self-defense, ultimately kills the other
person, the homicide is sometimes classified as
excusable, rather than justifiable. Generally,
however, the distinction between justifiable
homicide and excusable homicide has largely
disappeared, and only the term justifiable homi-
cide is widely used.
Other Defenses
Other legal defenses to a charge of criminal
homicide include insanity, necessity, accident,
and intoxication. Some of these defenses may
provide an absolute defense to a charge of crim-
inal homicide; some will not. For instance, a
successful defense of voluntary intoxication gen-
erally will allow an individual to avoid prosecu-
