HOMICIDE (GENERAL ASPECT)

1.0 INTRODUCTION

The offence of Homicide is frowned upon in our society.
In the olden days, any person who killed another was made to pay the supreme price, i.e. death on the culprit. As the society develops, killing one another in a manner not justified by law was criminalized and it became an offence. The law, since then, has introduced or imposed sanction against the accused and has also spelt out the ingredients of the offence.

2.0 OBJECTIVES

At the end of this unit, you should be able to: give a general explanation of homicide explain what constitutes the guilty act of the offence determine when not to act in manners which will amount to unlawful homicide in breach of the law.

3.0 MAIN CONTENT

3.1 Homicide (General Aspect)

1.  Homicide means the killing of a person in a manner not justified by law. In the olden days, the laws was so strict that it did not matter or not whether you foresaw or intended the death which occurred, but would be punished directly if death occurred from your act.
2. The offence of Homicide is unique because it is something much more than personal injury. It is a violation of the sanctity of human life.
3. It is often said that because of the damnable nature of the acts, the law in Nigeria, through the Criminal Code Act chapter 77 laws of the Federation of 1990 particularly in section 319 thereof, has prescribed death as a penalty for the act of homicide. The reason for making homicide an offence punishable by death in our law is predicated on the principle of fair deserts as a theory of punishment.
4. in modern times however, resort is often used for the physical element (guilty acts or actus reus) and the mental element (guilty mind or mens rea) in order to determine the degree of liability of the offender, and this has gone to modify it as it used to be and as our fore bearer used to know it.

3.2 The Physical Element in Homicide

To amount to “physical element” in homicide, one must be responsible for the cause of the death of another person in the manner not justified by law. Thus, once there is death by an unjustified act of one against the deceased, there is said to be the physical element (actus reus) of homicide. It follows from the above that the victim of homicide is a human being and not otherwise. The question that readily follows is: what categories of human beings qualify to be victim of homicide? If for example A kills F child through abortion, a father’s question is: Has the child become a human being? The answer can be taken from a careful reading of S. 307 of the criminal code which reads “A child becomes a person capable of being killed when it has completely proceeded in a living state form the body of its mother, whether he breathed or not and whether it has an independent circulation or not and the x naval string is severed or not”.


The above quoted section of the criminal code is explained to mean that a child becomes a human being when it comes out completely out of the mother’s womb alive. Thus, the law is that the child must have been completely removed from its mother’s body as was decided in the case of R. v. Poulton (1. 32) 5C & x.329 and it is enough that life should exist in a child at the time he was born.

SELF ASSESSMENT EXERCISE 1

What is the nature of homicide involved in S. 307 of the criminal code?

3.3 The Issue of Causation

The question which arises for consideration here is: when will death occur so as to amount to homicide according to law. In order to answer the question, it is necessary to explore the provision of section 314 of the criminal code which says that “a person is not deemed to have killed another if death of that other person does not take place within a year and a day of the cause of death”. That section goes on to state that such period is calculated to include the day on which the last unlawful act contributing to or resulting in the cause of death was done. For more elaborate reading, see S. 314 generally and case of R. v. Dead son 1908 DB 454.
Section 308 of the criminal code reveals that death could be caused directly by any means whatsoever. One can thus see that from the wording of section 308 of Criminal Code, it seems plain to say that section 24 of the Criminal Code is moribund if death occurs directly by any means in accordance with the said Section 308 of the Criminal Code. Still within the meaning of the general aspect of homicide, section 310 says that a person who by threat or intimidation or by deceit causes another person to do act or make omission which results in the death of that other person, he is deemed to have killed him. From the way section 310 of the Criminal Code is worded, two situations which may arise for consideration are:

1. Where the accused intends that the deceased should do an act after a threat.
2. When the accused only comes to intimidate and goes away thereafter. For this see the case of R. v. Nwaoke (1939) 5 WACA

Again, a look at section 311 of the Criminal Code reveals acceleration of death and it says that a person who does any act or makes any omission which hastens the death of another person who, when the act is done or the omission id made, is labouring under some disorder or disease arising from another cause, is deemed to have killed that other person.


This could happen in a situation where a person strangulates a patient in a hospital bed or the victim at an accident scene. On a general note, sections 300, 301, 302, 309 also treat issues relating to the above broad subject matter.


3.4 Unlawful Homicide (Murder)





There are two types of homicide, namely, lawful and unlawful homicide. The law relating to unlawful homicide is contained in S. 306 of the Criminal Code. That section states categorically that “It is unlawful to kill any person unless such killing is authorized or justified or excused by law”.
The section by implication means that some homicides are lawful while others are unlawful. It is lawful when authorized by law in a situation where a hangman hangs a condemned criminal, where a soldier in action kills, where a soldier shoots and kills a condemned armed robber tied to a stake or a police officer kills a fleeing robber suspect or where a peace officer kills a person who has committed a felony as contemplated by s. 271 of the Criminal code.


While section 315 of the Criminal Code defines murder or unlawful homicide, S. 283 of the Criminal Code defines provocation, which when successfully raised as a defence may reduce homicide to manslaughter, which itself is a lesser offence constituted in section 317 of the Criminal Code.

S. 316 of the Criminal Code deals with six circumstances that can constitute the offence of a murder. Section 316 (1) says that it is murder if the offender intends to cause the death of the person killed or that of some other person. And by S. 316 (2), if the offender intends to do to the person killed or to some other person some grievous harm.


Section 316 generally cannot be discussed without references to intention. Intention means desire of consequence, and it could be derived from the circumstance of a particular case. See the classical case as Edington v. Fitzmaurice (1855) 1 CH.D 459 and the Nigerian cases of R.v. Omoro (1961) 1 All NLR 233 and Nungu v. R. 14 4ACA 374.

From S. 316 of the Criminal Code, it is clear that for the offence of murder to occur, there must be killing or death must occur and the offender must intend to do the person killed, or some other person, grievous bodily harm, often shortened as GBH. Section 1 of the Criminal Code defines grievous (bodily) harm as “any harm which amount to a maim or dangerous harm as defined in this section or which seriously or permanently injures health, or which is likely so to injure health, or which extends to permanent disfigurement or to any permanent or serious injury to any external or internal organ, member or sense.


In R. v. Ntah, (1961) 1 All NLR 590, it was made clear that if the intention of the accused is not to cause grievous harm but so results to it.
such an accused should not be convicted of murder under S. 316 (2) of the Criminal Code. For a contrary view, see the case of R. v. Vickens (1957) NLR 326. Section 316 (3) of the Criminal Code says that if death is caused by means of an act done in the prosecution of an unlawful purpose which act is of such nature as to be likely to endanger human life, the person who caused the act is similarly guilty of murder. In order to answer the question whether “the act” and “the unlawful purpose” as contained above are the same thing, see the case of R. v. Nichols (1958) Qd EN 46, in which the Circuit Court held that since the act which caused death, i.e. setting fire to the hotel, was also the unlawful purpose, section 302 (2) of Queensland Criminal Code, which is similar to S. 316 of our Criminal Code, was inapplicable.

SELF ASSESSMENT EXERCISE 2

Mention six instances in which murder can manifest within the meaning of S. 316 (1) of the Criminal Code.

CONCLUSION

In this unit we showed that the Law must continually strike a balance between the conflicting interests of individuals or between the conflicting interests of society and the individuals. We demonstrated that when certain conduct is branded unlawful by the Law, this means that according to the legal conviction of society certain interests or values protected by the Law (such as life, property and dignity) are regarded as more important than others. In order to determine whether conduct is unlawful one must therefore enquire whether the conduct concerned conflicts with the legal conviction of the society.
You should understand by now that the grounds of justification must be seen as practical aids in the demonstration of unlawfulness. It is against this background that the study of this unit becomes very significant.

5.0 SUMMARY

Homicide is the killing of a human being by another in the manner not justified by law.
The physical element in Homicide is death which has resulted from the act. The act of the accused must contribute to the death of the victim. Unlawful Homicide which is murder which means the killing of a person in such a way which is not excused by law There are several instances in which unlawful homicide can manifest. Homicide may be lawful as when a policeman shoots and kills a fleeing felon or when a hangman hangs a condemned criminal.

6.0 TUTOR-MARKEDASSIGNMENT

If a man kills his brother during a brawl, can his wife who was away in the market at that time be charged alongside her husband with the offence of murder?