Categories of murder and manslaughter, in general and simplistic terms
United Kingdom
Murder with malice aforethought [including transferred malice], attempted murder, manslaughter voluntary and involuntary [death by dangerous driving a sub-category] and accident. There is no duress or necessity in English law. There is mens rea [guilty mind] and strict liability [statutory].
United States
First problem is dual sovereignty - state or federal. Under the general term homicide, murder is included, with degrees.
1st Degree is pre-meditated, planned out or particularly cruel. 2nd Degree is not planned out. 3rd Degree may be called manslaughter in some places.
Canada
Closer to the US in the two degrees and then manslaughtrer and infanticide.
Australia
Varies by state, generally as in English law but in NSW, provocation is a defence and in Victoria, killing an unborn child when it might have been born is an offence.
To specific situations
You'll remember the man who stabbed an intruder in his house who carried a machete and was jailed for stabbing him 16 times. The judge considered he'd used excessive violence and had meted out his own punishement. This one brings in all manner of considerations and we've just been discussing it.
I took the point of view that when the burglar entered the front yard, this was trespass and needs discretion - what if it was kids chasing their lost football? However, the moment there is an attempt to force entry to the swelling, the law must change to Englishman's home is his castle and it doesn't matter a damn how much violence you used to protect your family.
My friend mentioned a US state, [perhaps Texas, not sure], where if you gun down an intruder, they give you $5000 and any legal fees plus the county will sue the court which passes a negative judgement against you. That sounds only a little OTT to me but it seems to have reduced crime of this nature by 40%.
Considerations and opinions on them
Discretion
The whole homicide legislation needs to be rewritten into priority order by degree and nuance, with fixed penalties attached to them, except for 10% discretionary leeway to take into account specific instances such as those below.
Mitigating circumstances
Including intent [mens rea], severity, reasonable care, justification and result.
More situations
* Wife drives him out of his tree with her nagging yet hasn't left him - he snaps, doesn't know his own strength in his rage.
* Wife stores up the hatred of an abusive husband for years and then plans and carries out his killing; alternatively, she snaps one night and stabs him.
* Euthanasia.
* Two youths play a game of chicken with guns - very real possibility of death or accident, weapon goes off and kills one youth.
* Assassin aims for a politician, politician moves at the last second and bullet kills his wife instead.
* Assassin is CIA Manchurian Candidate [diminished responsibility].
* Monster threatens society e.g. Stalin.
United Kingdom
Murder with malice aforethought [including transferred malice], attempted murder, manslaughter voluntary and involuntary [death by dangerous driving a sub-category] and accident. There is no duress or necessity in English law. There is mens rea [guilty mind] and strict liability [statutory].
United States
First problem is dual sovereignty - state or federal. Under the general term homicide, murder is included, with degrees.
1st Degree is pre-meditated, planned out or particularly cruel. 2nd Degree is not planned out. 3rd Degree may be called manslaughter in some places.
Canada
Closer to the US in the two degrees and then manslaughtrer and infanticide.
Australia
Varies by state, generally as in English law but in NSW, provocation is a defence and in Victoria, killing an unborn child when it might have been born is an offence.
To specific situations
You'll remember the man who stabbed an intruder in his house who carried a machete and was jailed for stabbing him 16 times. The judge considered he'd used excessive violence and had meted out his own punishement. This one brings in all manner of considerations and we've just been discussing it.
I took the point of view that when the burglar entered the front yard, this was trespass and needs discretion - what if it was kids chasing their lost football? However, the moment there is an attempt to force entry to the swelling, the law must change to Englishman's home is his castle and it doesn't matter a damn how much violence you used to protect your family.
My friend mentioned a US state, [perhaps Texas, not sure], where if you gun down an intruder, they give you $5000 and any legal fees plus the county will sue the court which passes a negative judgement against you. That sounds only a little OTT to me but it seems to have reduced crime of this nature by 40%.
Considerations and opinions on them
Discretion
The whole homicide legislation needs to be rewritten into priority order by degree and nuance, with fixed penalties attached to them, except for 10% discretionary leeway to take into account specific instances such as those below.
Mitigating circumstances
Including intent [mens rea], severity, reasonable care, justification and result.
More situations
* Wife drives him out of his tree with her nagging yet hasn't left him - he snaps, doesn't know his own strength in his rage.
* Wife stores up the hatred of an abusive husband for years and then plans and carries out his killing; alternatively, she snaps one night and stabs him.
* Euthanasia.
* Two youths play a game of chicken with guns - very real possibility of death or accident, weapon goes off and kills one youth.
* Assassin aims for a politician, politician moves at the last second and bullet kills his wife instead.
* Assassin is CIA Manchurian Candidate [diminished responsibility].
* Monster threatens society e.g. Stalin.
You've forgotten the entire panoply of State sanctioned murder, against its own, and other state citizens, and that is by far the largest category.
ReplyDeleteI had indeed omitted it, Anon. Thanks for bringing it to our attention.
ReplyDeleteGood heavens, what on earth brought this on? Just idle musing? A very strange thing to muse about.
ReplyDeleteare you suggesting that the English common law concept of justifiable homicide is dead?
ReplyDeleteJMB - probably so.
ReplyDeleteBaht at - you tell me. Is it dead? I've been away some time.
afaik Texas does not GIVE you anything if you gun down an intruder, except a slap on the back for a job well done.
ReplyDeleteAnd yes it indeed lowers crime :)