CRIMINAL LAW READING GUIDE ON HOMICIDE

Homicide is the killing of a human being by another human being. It may be lawful of
unlawful. In this unit we shall examine the circumstances in which the same nature of
act or omission can be culpable on the one hand and excusable or legitimate on the
other. If it unlawful, it may be murder, manslaughter, causing death by reckless or
dangerous driving, infanticide or genocide.

When a person kills another human being, there is homicide. When a person kills
himself, this is suicide. What distinguishes both is killing of another person or oneself.
For there to be homicide, there must be the killing of a human being. Human personality
is the gift of nature, but legal personality is conferred by positive law. Generally,
personality commences with the birth of a child and terminates upon death. Although
an unborn has no legal personality prior to birth, he is not necessarily without legal
recognition. The reason is that equity regards as done, that which ought to be done;
that equity to be born is treated as already born. In the Nigerian Criminal law, abortion
is a crime. For homicide, the person involved must be a human being. If he is a newly
born baby, he must be shown to have had an existence independent of its mother at the
time it is killed. See Section 307 of the Criminal Code

Kinds of Homicide
They are two kinds of homicide: unlawful homicide and lawful
homicide.
Unlawful homicide includes Murder, Manslaughter, Infanticide, Causing
death by reckless or dangerous driving of vehicles, Genocide

Lawful homicide includes justifiable and excusable homicide

Justifiable homicide – Homicide is justifiable where the killing is done
under such circumstances that no guilt is attached to it another. This
may occur in the following ways:
(i) In the execution of public justice. It is lawful for a person who is
charged by law with the duty of executing or a giving effect to the
lawful sentence of a court (including a native tribunal) to execute or
give effect to that sentence (Criminal Code section 254).
(ii) In the advancement of public justice
”When a peace officer or a police officer is proceeding lawfully to
arrest, with or without warrant, a person for an offence, which is a
felony, and the offence is such that the offender may be arrested
without warrant, and the person sought to be arrested takes to flight in
order to avoid arrest, it is lawful for the peace officer or police officer
and for any person lawfully assisting him, to use such force as may be
reasonably necessary to prevent the escape of the person sought to be
arrested and if the offence is such that the offender may be punished
with death or with imprisonment for seven years or more, may kill him
if he cannot by any means otherwise be arrested. (Criminal Code
section 27).
(b) Suppression of riot
It is lawful for any person to use or order to be used such force as
he/she believes, on reasonable grounds to be necessary in order to
suppress a riot. The force used or applied must be reasonably
proportioned to the danger which he believes, on reasonable grounds,
is to be apprehended from its continuance.
(iii) Self Defence
When a person is unlawfully assaulted, and has not provoked the
assault, it is lawful for him to use such force on the assailant as is
reasonably necessary to make effectual defence against the assault,
provided that the force used is not intended, and is not such as is
likely, to cause death or grievous harm.
(iv) In preventing the commission of a forcible and atrocious
crime:
If the nature of the assault is such as to cause reasonable apprehension of death or
grievous harm, and the person using force by way of defence believes, on reasonable
grounds, that he cannot otherwise preserve the person defended from death or
grievous harm, it is lawful for him to use any such force to the assailant as, is necessary
for defence, even though such force may cause death or grievous harm. (Criminal Code
section 286)

Excusable homicide
(i) Subject to the express provisions of the Criminal Code relating to
negligent acts and omissions, a person is not criminally responsible for
an act or omission, which occurs independently of the excuse of his
will, or for an event which occurs by accident.
Unless the intention to cause a particular result is expressly declared
to be an element of the offence constituted, in whole or part, by an act
of omission, the result intended to be caused by an act of omission is
immaterial. Unless otherwise expressly declared, the motive by what a
person is induced to do or omit to do an act or to form an intention, is
immaterial so far as regards criminal responsibility. (Criminal Code sect
24). In essence homicide is excusable where the killing occurs in
circumstances as to almost amount to misadventure i.e doing a lawful
act without due care and with no intention to harm but results in the
death of another. This may occur in any of the following ways;

(ii) Pure Accident

An example is where a man is splitting firewood and the axe-head pulls
off and kills a bystander
(iii) Honest and reasonable mistake
If a hunter shoots and kills an object which he believes to be an animal
and it turned out that the object was a man, not an animal, and the
circumstance was such that there is no reason to suspect human
presence on the spot, such death may be excused.

(iv) Surgical Operation

A person is not criminally responsible for performing in good faith and
with reasonable care and skill a s surgical operation upon any person
for his benefit, or upon an unborn child for the preservation of the
mother’s life, if the performance of the operation is reasonable, having
regard to the patient’s state at the time and to all the circumstances of
the case (Criminal Code sect 297).

(v) Self defence

Where a person kills another in a sudden affray and it is shown that the
assailant had retreated as far as possible before this killing occurred, it
is killing in self defence.

(vi) While engaged in lawful sports

Death occurring in a football pitch during a football match or is the ring
during a boxing tournament is excusable

vii. Killing in the heat of war

Homicide excludes the killing of an enemy in the heat of war and in the exercise thereof.
It is homicide to kill an enemy soldier who have been taken prisoners or have
surrendered.

Limitation as to the time of death

For homicide, it must be proved that the death of the person killed was
caused by the conduct of the accused and it occurred within not more
than a year and a day of the act or omission by which is alleged to
have been caused.
Section 314 Criminal Code provides:,
“A person is not deemed to have killed another if, the death of that other person does
not take place within a year and a day of the cause of death.”
UNLAWFUL HOMICIDE

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. 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.

Definition of Murder
(a) 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.
(b) Statute Law
See section 316 of the Criminal Code

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
i. A person under the age of seven years.
ii. A person under the age of twelve years unless he is proved to have
a “mischievous discretion”
iii. A person of unsound mind within the ‘McNagkten rules iv. A corporation.

Who can be killed?

The victims of murder include:
Innocent victims of murder.
Innocent bystander.
Law reinforcement officers.
Non-law enforcement person, attempting to rescue the victim.
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.
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:
i. Execution carried out by the person whose duty it is and in the
manner appointed.
ii. 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.
iii. Killing by a citizen affecting a lawful arrest and using reasonable force.

iv. Killing by a person using force to prevent a crime

v. Killing by a person using reasonable force to prevent trespass to
land or goods.
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:
(a) an acts or omission of which the probable consequences may be
and eventually is death.
(b) 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.

Elements of Murder
(a) Actus Reus (“deed of crime”)
This is the wrongful deed that comprises the physical components of a
crime, such results of human conduct as the law seeks to prevent.
Turner explained than in a simple case of murder, the actus reus is the
victim’s death (brought about by the conduct of the murderer).
In this context, actus reus comprises the act, omission, or other events
in the definition of the crime in issue. In relation to murder, it
encompasses the act, omission or other events of which probable.
Consequence may be and eventually is death. In essence, aclus reus
refers to all the components of murder other than those which relate to
the offender’s state of mind . e.g. X intending to kill Z, shoots him with
a gun and Z dies on the spot.
An actus reus may be an omission
An omission is a form of non-feasance such as neglecting to supply
necessaries to ones ward or a child , or an apprentice in the following
situations;
Where there is a duty on the offender to supply the necessaries,
The ward (child or apprentice) is of tender age and unable to provide
for him/herself.
The offender is in actual possession of the means to provide for him
or her. It is not fatal to the prosecution than the dead body of the
deceased is not found. No body has found where Aalaras body was
buried, but the offenders were successfully prosecuted and hanged.
See R.v. Sala 4
WACA 10, R v Enweonye 15 WACA; also see CC s. 307, 308, 309
unlawfulness.
Mens rea (Guilty mind) for murder.
The Mens rea for murder at common law is ‘malice aforethought’.
Express Malice - Express malice is the specific intent to kill another
human being.

MANSLAUGHTER
Definition of manslaughter:
Manslaughter man be defined as an unlawful killing of a human being
without malice aforethought (Blacks Law Dictionary)or an unlawful
killing of another in such circumstances as not to constitute murder.
You already know that any killing is unlawful which is not authorized
(i.e excusable or justified). As any unlawful killing which does not
amount to murder is manslaughter, you have first to know murder
before you can know what is not murder or what is manslaughter. It is
wise that you revise your manual on murder.
Classification of manslaughter:
- Manslaughter may be voluntary or involuntary
Involuntary Manslaughter:
Involuntary manslaughter means: an unlawful killing in which death is
unintentionally caused.
Unlawful killing of another without any intention to kill or do grievous
bodily harm, but that is committed with criminal negligence or during
the commission of a crime not within the felony – murder range.
The terms “involuntary manslaughter’ and “negligence manslaughter’
are used sometimes interchangeably.
Perkins and Bryce have described ‘involuntary manslaughter as a
‘catch all’ concept, covering all manslaughter not characterized as
‘voluntary’. The only difference between the legal use and the
everyday use of
‘voluntary’ not voluntary’ and ‘involuntary’ seem to be:
1. a more frequent use of ‘involuntary’ as a synonym of ‘ not voluntary’
and
2. a technological use of ‘involuntary’ in the crime of ‘involuntary
manslaughter’ that it seems to have the meaning of ‘unintentional’.
In contrast with ‘voluntary manslaughter’ there is no suggestion here
that death, as contrasted with harm, was intended or foreseen.
It is often confined to cases of assault and battery where death results.
Example is death arising either from the withholding of food or from
excessive chastisement of a child.

Thus, as unlawful killing without murderous malice, involuntary

manslaughter may be caused as follows:
By an unlawful act, not involving an obvious risk of some bodily
harm eg criminal abortion, excessive chastisement of a child.
B is a guest who would not go. ‘A’ kicks him out, which kick result in
B’s death.
By the failure to perform some legal duty, such failure involving an
obvious risk of some bodily harm e.g neglect to provide food or other
necessaries for a child or infirm person .
Thus a In R v. Bonnyman, A doctor whose wife died in consequence of
omission to treat her is responsible for killing her, should she die.
Course of doing a lawful act with wicked negligence.
A man drives a motor car recklessly and thereby kills a pedestrian. or
Another pointing a firearm at someone in gest, with utter recklessness.
See Andrew v. DPP.
Act of Omission
Some doubt has been expressed as to whether or not unlawful act
manslaughter can be based on omission.
R VV Arobieke (1988)
A was convicted of manslaughter on the ground that his presence at
the railway station had caused the victim, whom he knew to be
terrified of him, to attempt an escape by crossing the railway tracks
with the result that he was electrocuted.
Quashing the conviction, the appellate court held that there had been
no criminal act by the defendant, as the evidence did not show that
the defendant had physically threatened or chased the deceased.
See also R V Rvans (1992), R V Lowe (1973)
Perhaps manslaughter arising from acts of omission may be more
appropriating considered as killing by gross negligence as we shall see
later.
Mens rea of Unlawful Act Manslaughter
The criminal code in sections 24 and 316 defines the mens rea
required for murder. In manslaughter, ‘ the accuse must be proved to
have intended to do what he did, it is not necessary to prove that he
know that this act was unlawful or dangerous. So it must follow that it
is unnecessary to prove that he knew that his act was likely to injure
the person who died as a result of it. All that needs to be proved is that
he intentionally did what he did”
(Attorney Generals Reference No 3 of 1994.
As Lord Salmond put it, manslaughter is one of those crimes in which
only what is called a basic intention need to be proved – that is, an
intention to do the act which constitutes the crime “ DPP v. Newbury
(1976).

Read the Criminal Code, section 316 once again and study these cases

Hyam v. DPP (1974) 2AER 41

Accused (H) was discarded by her lover who now began to pay his
respects to another woman. At 2.0am, and driven by jealous, she set
fire to the house in which the other woman lived with her three
children. Two of his children were burnt to death. She pleaded that her
intention was to frighten the other woman into leaving the
neighborhood that she had no intention to cause death or grievious
bodily harm.
Held: intention to cause death or grievous bodily harm is established if
it is proved that the accused deliberately and intentionally did an act,
knowing that it was probable (highly probable) that it would result in
death or grievous bodily harm to the victim even though he did not
desire that result.

Quare R v. Vickers (1957) WLR. 326: if a person does an act, which

amounts to the infliction of grievous bodily harm, he cannot say that
he only intended to cause a certain degree of harm.