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Memorandum Concerning the National Symposium (2Nd Series)--The Law of Homicide Rollin M

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Memorandum Concerning the National Symposium (2Nd Series)--The Law of Homicide Rollin M Journal of Criminal Law and Criminology Volume 36 | Issue 6 Article 1 1946 Memorandum Concerning the National Symposium (2nd Series)--The Law of Homicide Rollin M. Perkins Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation Rollin M. Perkins, Memorandum Concerning the National Symposium (2nd Series)--The Law of Homicide, 36 J. Crim. L. & Criminology 391 (1945-1946) This Article is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. MEMORANDUM CONCERNING THE NATIONAL SYMPOSIUM (2nd Series) The Journal, in this issue, is printing articles from the national Symposium series dealing with "Scientific Proof and Relations of Law and Medicine" (2nd series). The Symposium contains fifty or more studies prepared by legal and scientific writers on problems of joint interest; it is one phase of a program directed to the cor- relation of law and science. The papers will be published in the pages of participating legal and medical journals during the Spring and Summer of 1946. The intent of the effort is to muster up legal and scientific learning relevant to various type problems which need illumination from both sources for their proper solution. The sci- entific writers have undertaken, under editorial direction, to pre- pare their studies in a basic style comprehensible to lawyers, with- out, however, any sacrifice of scientific authority. The new Symposium is a continuation of the first series, pub- lished by leading law reviews and medical journals in the Spring of 1943. As before, the general Editor of the Symposium is Hu- bert Winston Smith, (A.B., M.B.A., L.L.B., M.D.) who holds an appointment, under the Distinguished Professorship Fund, as Professor of Legal Medicine in the University of Illinois affiliated with the College of Law and with the College of Medicine. At the time of the first Symposium, Professor Smith was Research Associ- ate on the faculties of Harvard Law School and Harvard Medical School. Readers interested in procuring a master index containing citations to the studies published in both the first and second series of "Scientific Proof and Relations of Law and Medicine," may do so by sending 20c in currency or stamps to Professor Smith, College of Law, University of Illinois, Urbana, Illinois. Copies so reserved will be mailed between May 15 and June 1. THE LAW OF HOMICIDE Relin M. Perkins Homicide involves social behavior which commands the intense inter- est of lawyers and medical men, of law enforcement officers and special- ists in scientific crme detection, tosaynothingof the public at large. It is peculiarly fitting that a Symposium series devoted to "Scientific Proof and Relations of Law and Medicine" should feature a comprehen- sive, yet basic, presentation of the law of homicide. Professor Perkins has produced a monograph on the subject which will be read with confidence and admiration by a varied audience. His exposition is illuminated by years of scholarly research which have won for him a position of eminence among scholars of the Criminal Law.- EDITOR. The author of this study has written upon all or part of the field on two previous occasions and needed to draw upon some of the material previously used in each. The Foundation Press, Inc., Chicago, kindly authorized the author to reproduce here all or any part of Chapters VII and X of Elements of Police Sci- ence (1942). And the Yale Law Review gave similar permis- sion with reference to the article "A Re-Examination of Malice Aforethought," which appeared in its volume 47 at page 537 (1934). The author is deeply indebted to both publishers for such permission. ROLLIN M. PERKINS A. MURDER, MANSLAUGHTER, AND NEGLIGENT HOMICIDE Murder is the most serious offense against the person. In- deed, it is the greatest crime of all, unless it be treason which threatens the very existence of the state itself. No other social interest is more important than that of safeguarding the lives and limbs of the individual members of the community. This social interest has given rise to the common-law crimes of mur- der and manslaughter, and in a few jurisdictions to an addi- tional statutory crime of negligent homicide. All of these of- fenses have one common element and hence it is important to speak first of homicide. 1. HOMICIDE Homicide is the killing of a human being by another human being.1 The older authorities gave this definition: Homicide is the killing of a human being by a human being.2 The difference between the two is that suicide is excluded by the first but in- cluded in the second. The problems of self-destruction are so different from those involved in the killing of another that it is desirable to use "suicide" and "homicide" as mutually ex- clusive terms, and the modem trend is in this direction. Killing by a Human Being. It is not homicide for a man to kill an animal or for an animal to kill a man.3 An animal might be used as a means of committing homicide, as if one man on horseback should purposely run down another on foot with fatal consequences; but in such a case the law attributes the killing to the human rider and declares it to be homicide for this reason. In fact, whether a certain loss of life was brought about by a human being is a problem of fact rather than law except as a matter of causation. By an arbitrary rule, the law will not recognize a homicide unless the death has re- sulted within a year and a day from the time of the act which is alleged to have caused the death. 4 The New York court has held that this rule has been abrogated by statute in that state; 5 but the rule of the common law, still in effect in most jurisdic- tions, is that death cannot be attributed to a blow or other harm which preceded it by more than a year and a day. In such a case the loss of life is attributed to natural causes rather than to the human act which occurred so long ago.6 1 Kisey v. State, 49 Ariz. 201, 65 P. 2d 1141 (1937). 2 Bracton, Henry de, De Legibus et Consuetudinibus Angliae, (Lon- don, 1569) New Haven, Yale University Press, 1940, edit. by Woodbine, George E. p. 340 (f. 120B). 3 Ibid. 4 Head v. State, 68 Ga. App. 759, 24 S.E. 2d 145 (1943). 5 People v. Brengard,265 N.Y. 100, 191 N.E. 850 (1934). 6 State v. Moore, 196 La. 617, 199 So. 661 (1941). THE LAW OF HOMICIDE Problems of causation in homicide cases may be much more complicated than the one having reference only to the lapse of time. If, for example, one strikes another with his fist, causing the other to fall and strike his head on a stone, thereby incurring an injury requiring an operation, and the victim dies under an anesthetic properly administered for such operation, 7 the aggressor is recognized by law as the cause of death. The blow caused the fall, which made necessary the opera- tion for which the anesthetic was administered. It was the "cause of a cause."" In such a case there is an unbroken chain of causation and the law looks back to see the original cause. But if one man strikes another and knocks him down, where- upon a third takes advantage of the opportunity to inflict a fatal blow upon the fallen and defenseless man, the one who struck the first blow is not recognized by law as being the cause of the death if he did not anticipate the attack by the slayer and there was no agreement or cooperation between the two with reference to the attack on the deceased.9 If there was no such agreement, cooperation or anticipation the act of the third person is said to be a supervening cause and the death will be attributed by law solely to that cause even though that person might never have struck the fatal blow except for the peculiar opportunity afforded him by having his enemy prostrate at his feet. For the same reason, if one man knocks down another and goes away leaving his victim not seriously hurt but uncon- scious, on the floor of a building in which the assault occurred, and before the victim recovers consciousness he is killed in the fall of the building which is shaken down by a sudden earth- quake, this is not homicide. The law attributes such a death to the "Act of God" and not to the assault, even if it may be certain that the deceased would not have been in the building at the time of the earthquake, had he not been rendered un- conscious.' 0 The blow was the occasion of the man's being 7 Regina v. Davis, 15 Cox C. C. 174 (1883). Other illustrations could be given. The driver of one vehicle ran into another, frightening the horses attached to the second vehicle and caus- ing them to run away. The run-away horses overturned that carriage with fatal consequences to the occupant. The act of the driver of the first vehicle was held to be the proximate cause of the death. Belk v. People, 125 Ill.
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