Page:The American Cyclopædia (1879) Volume VIII.djvu/800

 782 HOMICIDE fields, &c. From the nature of the case, where one occupies and uses in connection with his dwelling a considerable tract of land, the term homestead must be somewhat indefinite, and if employed in deeds or contracts, its precise meaning must be determined by the context and surrounding circumstances. Of late it has become common in the United States, by con- stitutional or statutory provisions, to exempt a homestead to a specified amount or value from attachment or sale for debt. Under these, if the debtor have more than the requi- site amount or value lying in one body, he is usually permitted to make selection within the specified limits ; but failing to do this, or if the circumstances present impediments, it will be done for him by the court in which proceedings to enforce debts against him are taken. HOMICIDE, in criminal law, the killing of one human being by another. By the common law, it is not homicide to kill an infant before its birth, the authorities declaring that if one pur- posely kills a babe not yet born, it is only a misdemeanor and not a felony; but if the child is born alive and then dies from the previous injury, it is felony. So, if one intending to pro- cure abortion does an act which causes a child to be born prematurely, and being so born, it dies because not mature enough to live, this is murder. But where a woman cut off the head of her child before it was wholly born, it was held not to be murder. The crime of child murder and wilful abortion is made punishable in many of our states by statute. Homicide is divided into three classes, justifiable, excusable, and felonious. Felonious homicide is either manslaughter or murder, which will be treated under those titles. In this article we shall speak only of homicide which is justifiable, and that which is excusable. These two are often confounded, and are sometimes spoken of as if they were the same thing, even in technical books of criminal law. But this is an inaccu- racy. Justifiable homicide is that which is just and right, and not to be regretted ; while ex- cusable homicide is that for which excuses may be offered which take away wilful guilt from the killer, however much the act may be la- mented. In this strict sense, there is perhaps no justifiable homicide except that which is committed officially and in the discharge of a legal duty; that is, there is no homicide strictly justifiable except the homicide by an executioner, or that of a public enemy in open war. If one, at great risk to himself, and in defence of the innocent, encounters and de- stroys an assassin, who could not otherwise be prevented from putting many to death and in- flicting injuries worse than death, he may de- serve and receive general applause. And the excuse extends much beyond those crimes which are punishable with death; because a man would be excused for putting an offender to death if that were the only way of prevent- ing certain crimes which if committed might not be punished with death, such as rape, bur- glary with arms, or robbery with arms. Again, the excuse in this case, as in that of self- defence, does not depend altogether upon the actual facts of the case, but much, and perhaps principally, upon the appearance of it to the person committing the homicide ; for if, as a reasonable man, he was fully justified in believ- ing that the peril from which he could deliver himself only by homicide was actual and immi- nent, the excuse is not taken away by proof that he was deceived. Thus, if one were at- tacked by an assailant threatening to shoot him with a pistol, and would be justified under the circumstances in killing his assailant if the pistol were loaded and the assailant intended to use it, and the assailed party had reason to believe this to be the case, his excuse would not be lessened by proof that the pistol was not loaded and his death not intended. Tho excuses for homicide sometimes mingle ; thus one who is attacked by a murderer and cannot otherwise escape, may put him to death, either to prevent this felony, or to save his own life. But one who would escape the consequences of homicide by the excuse of self-defence, must be able to show that there was some overt act on the part of the assailant, and that the as- sailed was not moved by threats only, or mere- ly by fears of what would be done, however just and rational they might be; but waited until some act took place to protect himself, not merely from fatal violence, but from griev- ous bodily injury. What this means is not plainly defined by the law ; but it does not mean the injury caused by a blow from a fist or a stick, or a slight wound, which might be painful for a time, but from all effects of which the injured person would certainly and entirely recover within a few days. And here, too, as before, death must not be inflicted until noth- ing but this remains. That is, the party as- sailed must retreat as long and as far as lie can retreat; must seek 'and use any refuge or means of escape open to him ; and only when these are exhausted, or non-existent, can he put his assailant to death. It should however be stated, as a settled rule of law, that an assailed party, in danger of death or grievous harm, is bound to retreat only when he can do this with safety. For if retreat will only increase a dan- ger already imminent, and give his assailant new power over him, he need not retreat at all, but may at once inflict death upon his assailant. So, too, homicide is excusable if inflicted as the only means of preventing a great crime. Here the law comes in with what may seem to be a definition ; for it says that one may inflict death if there be no other way to prevent a felony. But the reader will see, under the title FELO- NY, that its meaning is quite undetermined; and there are things which are still called felo- nies, at least in England, of which we should be unwilling to say that they might lawfully be prevented by putting the offender to death. And yet it must be certain that the law would call this only excusable homicide, and not