Unlawful Homicide

1.0   Introduction

2.0   Objectives

• Main Content
• Definition
• Observations on definition
• State Allegiance and alien enemy
• Felonious Homicide

4.0   Conclusion

5.0   Summary

6.0   Tutor-Marked Assignment

7.0   Reference/further Reading

  Introduction

Homicide is unlawful (or felonious) when it is neither justifiable nor excusable. In that circumstance, homicide is either murder, manslaughter, infanticide, death by reckless or dangerous driving or genocide. We shall be discussing each of these particular crimes, beginning with murder.

Objectives

When you have studied this unit, you should be able to:

1. Describe the crime of murder.

2, Identify the elements of the crime of murder

3. Demonstrate an understanding of the element of “causation” in relation to
4. Critique the statutory provisions on “murder”

Main Content

Smith and Hogan have acknowledged that murder is the most serious crime (apart perhaps from treason). Most murders arise out of quarrels, jealousy, arguments, over money, robbery etc, and many are committed against persons from the accused family or friends and the killing often takes place in the home of the victim or killer. Jefferson, (2003:3a) Oyakhiromen’s study of crime in Lagos State which records the highest crime density in Nigeria, has revealed that homicide is of the same frequency of 2 in every 300 crimes as robbery. This seems to suggest, that although the importance attached to human life is a widely fluctuating value in the world today, it is still high, relatively in Lagos State and by implication in Nigeria. However what is by far more  grievous than physical number and rate of recorded homicide is the dimension and degree of manifest violence, associated with it.

Definition of Murder

• At common law, murder occurs:

Where a person of sound memory and discretion, unlawfully killes a reasonable creature in being, under the Queen’s Peace, with malice aforethought, express or implied, death occurring  within  12  months and a day.

• Statute Law

See section 316 of the Criminal Code (unit 1).

Observation on Definition

Definition of Murder.

Neither the common law nor the Criminal Code has defined the term “Murder”. In both descriptions there are imported additional legal terms whose meanings are assumed but require clarifications.

Who can commit murder?

Any reasonable man or woman may be answerable for murder except

1. A person under the age of seven
2. A person under the age of twelve years unless he is proved to have a “mischievous discretion”

• A person of unsound mind within the ‘McNagkten rules

1. A corporation

 Who can be killed?

The victims of murder include:

• Innocent victims of
• Innocent
• Law reinforcement
• Non-law enforcement person, attempting to rescue the
• All co-felon.

To constitute murder, there must be killing of a reasonable creature in rerum natura

A human being is capable of being killed between the moment the foetus or child has “an existence independent of its mother” and the moment of death.

The phrase ‘an existence independent of its mother” implies that:

• The body of the child must be wholly expelled from its mother’s body

(R v. Poulton) (1832)

• The entire child must be born into the world in a living
• It is not a requirement that the umbilical cord and afterbirth have or have not been expelled from the mother’s body or severed from the child (R V Reece) 1839.
• It must have independent circulation that the child breathed or: R v. Enoch, (1834) R V Bran , (1834), R V Handby, (1874)
• A creature ceases to be capable of being killed when life ceases. The test of death is “brain dead” indicating that, while one can be kept alive on a life support machine, there is no chance of his ever recovering
• Breathing does not determine life or death

The reason is that many children are born alive and yet not breathe for some time after their birth. Examples are pre-mature children. What is  of essence is that the creature exists as a live child, without deriving any of its living or power of living by or through any connection with its mother. But the fact of the child’s being still connected with the mother by the umbilical cord will not prevent the killing from beingmurder.

See the case of R v. A, (children ) co joined Twins surgical separation (2000). In that case, J and M are co joined twins. M was entirely dependent on J for her existence. The medical practitioner severed the twins, knowing full well, as indeed happened that the process would inevitably cause M’s death. The question for the court was whether the killing of M was murder or whether M was a reasonable creature in  rerum natura for purpose of homicide.

Brook J, obiter, observed that although M had for all practical purposes, a useless brain, a useless heart and useless lungs, she was still alive. Justice Broke endorsed the view that advances in medical treatment of deformed neonates have suggested that the protection of the criminal law would only be denied in the most extreme cases.

Self assessment Exercise

Discuss the criminal liability for pre-natal injury in the following cases.

1. Aminat conceives an unwanted child. She takes some drugs to kill the foetus. The child is born alive but with severe injuries from which it dies six months after
2. Dolapo stabs his girlfriend who is three months pregnant with his child. Because of the wound the child is born prematurely and dies four months later as a result of the premature

Killing.

Killing means causing the death of another (man, woman, child) – a reasonable creature or being (human being) between the time of birth with or without severing navel-string.

Causing death may be direct or indirect so long as the act or omission leads to death and has reasonable connection with the death. If a man’s life ends, he ceases to be capable of being killed or murdered.

The moment at which a man dies?

Consider the following:

1. D in a state of deep
2. N in a permanent vegetative

3       R in a hopeless condition and kept alive by means of a ventilator.

4. M’s heart has stopped beating but the Doctor hopes it would start by an injection or mechanical device.

Neither statute nor any case law has defined the moment of death or provided any guideline as to when life can be deemed to come to an end. The reason perhaps is in part the fluid state of medical science. Even if a definition or guideline were provide, it might soon be out-dated because of the fast rate of advancement in medical technology.

Determing the moment when life ends has also been compounded by incidences of persons whose hearts have stopped beating whose breaths have ceased and are found to have subsequently revived and lived.

Brain death test.

Death is the ending of life, the cessation of all vital functions and signs. At present the very moment of death is determined by the ‘Brain Stem Death Test’. Brain death is the bodily condition which shows no responses to external stimuli, no  spontaneous  movements,  no breathing , no reflexes and a flat reading (usually for a full day) on a machine that measures the brain electrical activity. This state also is referred to as legal death, the moment when one,s brain stem ceases to function with the result that reflex actions, in particular, blood circulation and breathing have ceased to function.

Self Assessment Exercise

For purpose of criminal law, explain , with reference to decide cases, which life begins and terminate.

Causing death.

The unlawful killing may the form of poisoning, striking, starving, drowning, other forms of death by which human mature may be over come.

What and who causes a certain event to occur is essentially a practical question of fact, which can best be answered by ordinary common sense rather than the abstract metaphysical theory. (Per Lord Salmon in Alpha cell Ltd v. Woodward (1972) the dictum in Environment Agency v. Empress Car Co (Abertillery) Ltd (1999) 2 AL 22.

However the problems have remained somewhat intractable and no  single theory of caution has succeeded in proving a ready made answer  to the question:

Whether the accused’s action is the cause or a cause of some ensuing events.

It is probably a matter of selection of one or more causes out of a multitude of conditions according to the purpose in hand.

Death within a year and a day.

The limitation as to the time of death is a borrowed rule of common law.

Generally the time at which an offence takes place is not an essential element of the offence. But in a case of murder, statute demands that death must be proved to occur within a year and a day. The counting commences from the time at which the fatal injury is proved to have been caused. The first day is the day on which it was done: (R  v.  Dyson  (1908) 2 KB. 45.4

State Allegiance and Alien enemy

It is unlawful to kill a person who owes allegiance to the state and under protection. This protection excludes killing of an alien enemy in actual exercise of war, but not otherwise. This would appear to be the case if  the deceased were a rebel and killed in the actual practice of rebellion. Persons under sentence of death are protected

Felonious Homicide

It is an essential element of the offence of murder that the killing is unlawful (felonious). Killing is unlawful if it is not lawful (i.e justifiable or excusable). The following may not be murder (Jefferson, M,  2003:  41-42).

1. Execution carried out by the person whose duty it is and in the manner appointed
2. Killing by an officer of justice in the execution by duty to arrest, search or seize property, provided that the force was necessary to protect himself and execute his duty. A private person helping such an officer may also not be guilty

• Killing by a citizen affecting a lawful arrest and using reasonable force.

1. Killing by a person using force to prevent a crime
2. Killing by a person using reasonable force to prevent trespass to land or

vi       Killing as a result of lawful chastisement vii killing as a result of lawful operation.

Examples of what may be murder or other unlawful homicide include:

• an acts or omission of which the probable consequences may be and eventually is death
• Acceleration of death

Devlin J. (as he then was) says that “if life were cut short by weeks or months, it was just as much murder as if it were cut short by years.

In Adams the court said it would afford no answer to the charge of causing death, that the deceased was already suffering from a fatal disease from which he would, in any event, had died before long, when the injury, which accelerated death was inflicted.

We shall say more on this in the next unit.

Conclusion

When faced with an enquiry as to any persons liability for homicide, it is important that you first establish the following:

1. Whether the person killed is a human being;
2. Whether the person killed was within the state protection;
3. Whether the death by the deceased was caused by the conduct of the accused;
4. Whether death has occurred within not more than a year and a day of the act or omission alleged to have caused the death

Summary

You have learnt about unlawful homicide in general. Attempt has been made to clarify certain legal terms as they relate to homicide. Examples are killing, unlawful killing, reasonable creature in being, etc. It is important that you should be clear of these terms as we now proceed to deal with specific homicide related crimes.

Tutor-Marked Assignment

The Criminal Code or Penal Code does not tell us what murder is. It may tell us what is not murder. Comment.

Reference

Gurland, N.M (2003) Criminal Law for Criminal Justice Professional, Glencoe MC Graw-Hill, New York

Gurland, N.M (2003) Criminal Law for Criminal Justice Professional, Glencoe MC Graw-Hill, New York