Homicide

HOMICIDE. - From the Latin homicidium, it is, in general, the killing of a man. However, not every killing constitutes h.; in ordinary language itself the term h. refers to a killing brought about by unlawful conduct; and this, legally speaking, is the only acceptable meaning. H. is in fact a crime and as such is made up of various elements: the conduct (act or omission) of a man, the death of another man (event), a causal link between conduct and event (causal relationship), the absence of any justifying cause (exercise of a right, performance of a duty, self-defense, state of necessity, and causes not codified such as medical-surgical treatment and sporting activities) and the voluntariness of the act. The latter, which represents the degree of the agent's psychological participation in his act, can take three forms: intent, negligence or preterintention, depending on whether the death event was intended or occurred through imprudence, negligence, unskillfulness, or was the consequence of voluntary blows or injuries.

I. SYSTEMATICS OF THE ITALIAN CODE IN FORCE

The Italian Penal Code, according to a nearly undisputed systematization, places homicide among the crimes against the person and, more precisely, among the crimes against life and individual safety (chapter I of title XII of book II). In homicide, in fact, the object of criminal protection is constituted by the interest that every single individual and the State have in respect for human life.

Homicide, understood as the unlawful killing of a man, is provided for by the Italian Code under various forms that constitute so many autonomous figures of crime, according to the different attitudes that the subjective element may assume in the killer. In the regulation of the subject, not a few novelties have been introduced with respect to the previous code: the principal ones are represented by the provision for homicide of the consenting person and for feticide for reasons of honor, which has been equated in every respect with infanticide for reasons of honor. Besides the already mentioned legal object, the elements common to the various figures of homicide are manifold. In this regard it must be emphasized that homicide is in every case a crime of event: for its consummation there is required, in fact, the occurrence of that natural event which is the death of the passive subject. Such event is so typical that for none of the figures of homicide has the legislator specified the particulars of the conduct, being content to indicate the material element of the crime with the formula "to cause the death of a man". This formula emphasizes the requirement of the causal nexus between the conduct of the active subject and the event, which means that nothing matters, for the purposes of realizing a homicide, the particular manner in which the conduct is shaped: this may manifest itself in any way whatsoever (including omission, as, for example, in the case of the mother who lets her child go without nourishment) and by any means, which does not imply however that the manner of the conduct is entirely devoid of relevance: it may carry weight for the purposes of applying certain aggravating or mitigating circumstances.

As for the attempt, it is configurable for every form of homicide, except naturally the case of preterintentional or negligent homicide. Should lesions, even while the homicide remains at the stage of attempt, be caused to the passive subject, these would remain absorbed in the more serious case of attempted homicide.

For reasons of political expediency, attempts on the life of the president of the Republic, of the supreme pontiff and of the heads of foreign States are configured separately (arts. 276, 295) as crimes against the personality of the State.

II. VOLUNTARY HOMICIDE

Under art. 575 of the Penal Code, "whoever causes the death of a man is punished with imprisonment for not less than 21 years." That this article provides for the case of voluntary, that is intentional, homicide is inferred both from the general provision of art. 42 and from comparison with the subsequent provisions of arts. 584 and 589, which, by separately providing for preterintentional and negligent homicide, obviously restrict the scope of art. 575 to the case in which the subjective element of the homicide takes the form of intent. There is therefore voluntary homicide when the active subject has acted with the conscious will to cause the death of a man.

By "man" must be understood any living human being, including the fetus during the period of childbirth, that is, the being in the process of being born. Nor is it necessary that the newborn or the fetus be viable: just as the civil code (art. 1) does not require viability for the existence of the person, so the penal code protects the newborn and the fetus for the simple fact that they have life. And the existence of life is established as a rule through the simple fact of respiration.

The extensive interpretation that leads to including in the term "man," and therefore in the configuration of homicide, also the fetus during the period of childbirth has been reached by the prevailing doctrine on the basis of the consideration that otherwise one would have the repugnant result of leaving unpunished feticide committed for a cause other than that of honor: feticide is in fact expressly provided for by the Italian Code only when it is committed for a cause of honor. Nor could the crime of abortion be discerned therein, since the precondition of abortion is the interruption of pregnancy.

For voluntary homicide numerous special aggravating circumstances are provided for, some of which entail the penalty of life imprisonment (homicide committed against an ascendant or a descendant - on this see the entry PARRICIDIO -, with premeditation, by means of poisonous substances or another insidious means, with cruelty, for base motives, etc.), and others the penalty of imprisonment from 24 to 30 years (homicide committed against the spouse, the brother, the sister, the adopter, the adopted person, a relative by marriage in the direct line).

III. INFANTICIDE OR FETICIDE FOR REASONS OF HONOR

Article 578 provides: "whoever causes the death of a newborn immediately after birth or of a fetus during birth, in order to save his own honour or that of a close relative, is punished with imprisonment from 3 to 10 years."

The considerable mitigation of the penalty, which can by no means find a justification on the moral plane given the baseness of one who destroys a new life, is explained by the particular emotional state of that person as compared with the ordinary murderer.

The active subject may be the mother or a close relative of hers. The passive subject is either the newborn immediately after birth (infanticide) or the fetus during birth (feticide), provided they were illegitimately conceived. If the killing of the newborn is not committed immediately after birth (and "immediately" must be understood not in the sense of "without interruption," but in the sense of "a short time"), the reason of honour may be assessed only as a mitigating circumstance of the crime of homicide. The psychological element consists in the intent to kill the newborn or the being in the process of being born (general intent), for the purpose of saving the mother's honour (specific intent). For this purpose to exist, there must be certainty of the illegitimacy of the conception, mere suspicion not sufficing, and furthermore there must be an honour to be saved. Which cannot be the case, for example, with regard to a prostitute.

IV. HOMICIDE FOR REASONS OF HONOR

It is provided for by art. 587: "whoever causes the death of a spouse, of a daughter or of a sister, in the act in which he discovers their illegitimate carnal relation and in the state of anger determined by the offence brought to his honour or to that of the family, is punished with imprisonment from 3 to 7 years. The same penalty applies to whoever, in the aforesaid circumstances, causes the death of the person who is in an illegitimate carnal relation with the spouse, with the daughter or with the sister."

The active subject can only be the spouse, the parent (including the natural parent), the brother or the sister of the person caught in an illegitimate carnal relation (not therefore the son nor the betrothed). The passive subject can be, besides the spouse, the daughter or the sister, also the person who is in an illegitimate relation with them. For the application of the case, it is necessary that the homicide be carried out at the moment in which the illegitimate carnal relation is discovered for the first time (surprise in the act is not required, the mere acquisition of the news of the fact being sufficient; this must however be certain, since to discover implies precisely certainty and not simple suspicion) and in the state of anger determined by the offence to honour.

By illegitimate carnal relation must be understood, according to most, not only the normal physiological conjunction, but any manifestation of the sexual instinct.

The psychological element is constituted by simple generic intent, no particular purpose being required in the agent.

V. HOMICIDE OF THE CONSENTING PERSON

Under art. 579, "whoever causes the death of a man, with his consent, is punished with imprisonment from 6 to 15 years."

The good of life is unavailable: its violation can therefore never be consented to, since the consent of the offended party justifies the crime only when it concerns an available right. However, whoever kills a consenting person brings about a fact that is socially less harmful than in normal o.; for this reason a lighter penalty is provided for him.

For the consent to be relevant it must be a valid consent, that is, given by one who has the capacity to act. The same art. 579 specifies that the provisions on voluntary o. apply when there is killed: a) a minor under 18 years of age; b) a person of unsound mind or who finds himself in a condition of psychic deficiency due to another infirmity or to the abuse of alcoholic or narcotic substances; c) a person from whom the consent was extorted by the guilty party with violence, threat, suggestion or deceit.

The criminalization of the o. of the consenting person excludes without further ado, in current Italian law, the lawfulness of euthanasia (v.), that is, of the merciful death given to the incurable patient with his consent. Indeed, when it is a question of an infirmity that has determined in the patient a condition of psychic deficiency, the penalty provided for voluntary o. must even be applied, the validity of the consent being excluded in that case by the same art. 579. The legislator has therefore held firm to the ethical principle according to which no one is permitted to hasten, even if only slightly, the death of another man. To one who has killed for euthanasia there may at most be applied the mitigating circumstance of motives of particular social value (art. 61, no. 1).

VI. PRETERINTENTIONAL HOMICIDE

According to art. 584 it consists in the act of one who, by acts directed to committing one of the crimes provided for by arts. 581 and 582 (battery and personal injury), causes the death of a man; it is punished with imprisonment from 10 to 18 years.

Preterintention, which is a particular way in which the subjective element is configured, is generally provided for by art. 43, which defines a crime as preterintentional when a more serious event than that intended by the agent derives from the action or omission. Preterintentional homicide presents precisely the characteristic of imputing the event of death to one who has intentionally caused only battery or personal injury, provided that the event of death occurred as a consequence of the battery or injury.

Preterintentional homicide falls in substance within the category of crimes aggravated by the event. Among these there appear several others in which the aggravation of penalty is likewise brought about by the event of death, not intended but derived from conduct already constituting the elements of an intentional crime. Thus, by express provision of law, the lethal outcome aggravates the crimes of abortion, of abandonment of a newborn, of abuse of means of correction, of omission of rescue, etc. Moreover art. 586 generally provides that, when from a fact provided for as an intentional crime there derives, as an unintended consequence of the guilty party, the death of a person, the guilty party is liable on the ground of negligence for the unintended event. Naturally, this article applies to those cases in which a special provision is not applicable.

VII. NEGLIGENT HOMICIDE

Art. 589 establishes that "whoever causes, through negligence, the death of a man, is punished with imprisonment from 6 months to 5 years." Here the act is not intended, but occurs through negligence, imprudence, lack of skill or failure to observe regulations, orders or discipline. Similarly there is negligent homicide when the killing of a man occurs through inexcusable error: thus in the case of a hunter who carelessly mistakes the movement of another individual for the movements of an animal and consequently fires, killing him, or in the case of a person who, believing himself attacked, kills the presumed aggressor, or again in the case of an individual who kills a petty thief caught stealing in his garden.

VIII. CANON LAW

Homicide is a mixed-forum crime, in regard to which, in former times, both the Church and the State imposed their own penalties, except that the concrete application was reserved to whichever of the two powers had first been seized of the cognizance of the crime itself (ius praeventionis). At present the repression of homicide committed by a layperson is entrusted to the civil power. That of homicide perpetrated by a cleric would of itself belong to the Church: but since, in practice, clerics are equally judged by state tribunals, the ecclesiastical judge must take into account, in inflicting the penalty, the one already inflicted by the lay judge (can. 2223 § 3, no. 2), and this in order to avoid an excessive cumulation.

Canon law does not punish negligent homicide. For voluntary homicide the penalties established are exclusion from legitimate acts and from every ecclesiastical office for laypersons; degradation for clerics (can. 2354); the perpetration of a homicide likewise entails irregularity ex delicto (can. 985, 4th).

For the moral questions v. UCCISIONE.

Giovanni Conso