Watch the following film as well as review the Supplemental resources listed under the Week 6: Elements of Crime Module. Talks, T. (2016, October 11). Retrieved November 27, 2018, from Alternatives to

FURTHER READINGS Buckley, F.H. 1995.“The American Fresh Start.”Southern California Interdisciplinary Law Journal4 (fall).

Chen, Jim. 1995.“Of Agriculture’s First Disobedience and Its Fruit.”Vanderbilt Law Review48 (October).

Nore, Michael J.“‘Burn This without Fail’: The Downfall of Oregon’s Sen. John H. Mitchell.”1995.Oregon State Bar Bulletin(October).

CROSS REFERENCES Agricultural Law; Railroad.

HOMICIDE The killing of one human being by another human being.

Although the termhomicideis sometimes used synonymously with MURDER ,homicide is broader in scope than murder. Murder is a form of criminal homicide; other forms of homicide might not constitute criminal acts. These homicides are regarded as justified or excusable.

For example, individuals may, in a necessary act of SELF -DEFENSE , kill a person who threatens them with death or serious injury, or they may be commanded or authorized by law to kill a person who is a member of an enemy force or who has committed a serious crime. Typically, the circumstances surrounding a killing deter- mine whether it is criminal. The intent of the killer usually determines whether a criminal homicide is classified as murder or MANSLAUGH- TER and at what degree.

English courts developed the body of com- mon law on which U.S. jurisdictions initially relied in developing their homicide statutes.

Early English common law divided homicide into two broad categories: FELONIOUS and non- felonious. Historically, the deliberate and pre- meditated killing of a person by another person was a felonious homicide and was classified as murder. Non-felonious homicide included justifiable homicide and excusable homicide.

Although justifiable homicide was considered acrime, the offender often received a pardon.

Excusable homicide was not considered a crime.

Under the early common law, murder was a felony that was punishable by death. It was defined as the unlawful killing of a person with “malice aforethought,”which was generally defined as a premeditated intent to kill. As U.S. courts and jurisdictions adopted the English common law and modified the various circumstances that constituted criminal homi- cide, various degrees of criminal homicide developed. Modern statutes divide criminal homicide into two broad categories: murder and manslaughter. Murder is further divided into the first degree, which typically involves a premeditated intent to kill, and the second degree, which typically does not involve a premeditated intent to kill. Manslaughter nor- mally involves an unintentional killing that resulted from a person’s CRIMINAL NEGLIGENCE or reckless disregard for human life.

All homicides require the killing of a living person. In most states, the killing of a viable fetus is generally not considered a homicide unless the fetus is first born alive. In some states, however, this distinction is disregarded and the killing of an unborn viable fetus is classified as homicide. In other states, statutes separately classify the killing of a fetus as the crime of feticide.

The law generally requires that the death of the person occur within a year and a day of the fatal injury. This requirement initially reflected a difficulty in determining whether an initial injury led to a person’s death, or whether other events or circumstances intervened to cause the person’s death. As FORENSIC SCIENCE has devel- oped and the difficulty in determining cause of death has diminished, many states have modi- fied or abrogated the year-and-a-day rule. Justifiable or Excusable Homicide A homicide may be justifiable or excusable by the surrounding circumstances. In such cases, the homicide will not be considered a criminal act. A justifiable homicide is a homicide that is commanded or authorized by law. For instance, soldiers in a time of war may be commanded to kill enemy soldiers. Such killings are considered justifiable homicide unless other circumstances suggest that they were not necessary or that they were not within the scope of the soldiers’duty.

In addition, a public official is justified in GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD EDITION 306 HOMICIDE carrying out a death sentence because the execution is commanded by state or federal law.

A person is authorized to kill another person in self-defense or in the defense of others, but only if the person reasonably believes that the killing is absolutely necessary in order to prevent serious harm or death to himself or herself or to others. If the threatened harm can be avoided with reasonable safety, some states require the person to retreat before using DEADLY FORCE .Most states do not require retreat if the individual is attacked or threatened in his or her home, place of employment, or place of business. In addition, some states do not require a person to retreat unless that person in some way provoked the threat of harm.

Police officers may use deadly force to stop or apprehend a fleeing felon, but only if the suspect is armed or has committed a crime that involved the infliction or threatened infliction of serious injury or death. A police officer may not use deadly force to apprehend or stop an individual who has committed, or is committing, a MISDEMEANOR offense. Only certain felonies are considered in determining whether deadly force may be used to apprehend or stop a suspect. For instance, a police officer may not use deadly force to prevent the commission of larceny unless other circumstances threaten him or other persons with imminent serious injury or death.

Excusable homicide is sometimes distin- guished from justifiable homicide on the basis that it involves some fault on the part of the person who ultimately uses deadly force. For instance, if a person provokes a fight and subsequently withdraws from it but, out of necessity and in self-defense, ultimately kills the other person, the homicide is sometimes classi- fied as excusable rather than justifiable. The distinction between justifiable homicide and excusable homicide has largely disappeared, and only the termjustifiable homicideis widely used. Other Defenses Other legal defenses to a charge of criminal homicide include insanity, necessity, accident, and intoxication. Some of these defenses may provide an absolute defense to a charge of criminal homicide; some will not. For instance, a successful defense of voluntary intoxication generally allows an individual to avoid prosecu- tion for a premeditated murder, but typically it will not allow an individual to escape liability for any lesser charges, such as second-degree murder or manslaughter. As with any defense toa criminal charge, the accused’s mental state is a critical determinant of whether he or she had the requisite intent or mental capacity to commit a criminal homicide. Euthanasia and Physician-Assisted Suicide The killing of oneself is a suicide, not a homicide.

If a person kills another person in order to end the other person’spainorsuffering,thekillingis considered a homicide. It does not matter if the other person is about to die or is terminally ill just prior to being killed; the law generally views such a killing as criminal. Thus, a“mercy killing,”or act of EUTHANASIA , is generally considered a criminal homicide.

As medical technology advances and the medical profession is able to prolong life for many terminally ill patients, a person’s right to die by committing suicide with the help of a physician or others has become a hotly contested issue. In the 1990s, the issue of physician-assisted suicide came to the forefront of U.S. law. Dr. JACK KEVORKIAN , a Michigan physician, helped approximately 130 patients to commit suicide. Michigan authorities prose- cuted Kevorkian for murder on a number of occasions, but because aiding, assisting, or causing a suicide is generally considered to be separate from homicide, Kevorkian initially SOURCE: U.S. Department of Justice, Bureau of Justice Statistics, Homicide Trends in the United States, available online at http://www.ojp.usdoj.gov/bjs/ homicide/homtrnd.htm#contents (accessed on Au gust 14, 2009). Rate per 100,000 population Year 0 10 5 25 20 15 30 35 40 45 37.1 5.1 4.937.7 5.7 6.337.6 5.4 4.2 3.3 2.7 20.5 3.3 2.5 20.6 Homicide Rate, by Race of Victim, 1976 to 2005 1990 1980 19762000White Black Other 2005 ILLUSTRATION BY GGS CREATIVE RESOURCES.

REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING.

GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD EDITION HOMICIDE 307 avoided conviction. In 1999 he was convicted of second-degree murder following the nationally televised broadcast of a videotape showing Kevorkian injecting a lethal drug into a patient.

In 2000 theNew England Journal of Medicine revealed a study showing that 75 percent of the 69 Kevorkian-assisted deaths that were investi- gated were of victims who were not suffering from a potentially fatal disease; five had no discernible disease at all. Instead, it appeared that many of the suicides were the result of depression or psychiatric disorder.

In 1997 Oregon was the first state to adopt a statute permitting physician-assisted suicide.

Although the statute was a source of con- siderable controversy, the U.S. Supreme Court upheld the law in a 2006 decision. The Supreme Court, in the case ofGonzales v. Oregon, did not make any broad determinations with respect to the right to die. Instead, the decision focused on the government’s attempt to use the federal Controlled Substances Act (CSA) to undermine the Oregon law allowing for physician-assisted suicide. The Supreme Court held that the government could not use the CSA to prosecute physicians that provide deadly doses of medicine to terminally ill patients. In 2008 Washington became the second state to establish a law allowing for physician-assisted suicide.

FURTHER READINGS Chan, Samantha. 2000.“Rates of Assisted Suicides Rise Sharply in Oregon.”Student BMJ11.

FAQs about the Death With Dignity Act. State of Oregon.

Available online at http://www.oregon.gov (accessed June 10, 2009).

Garland, Norman M. 2009.Criminal Law for the Criminal Justice Professional.2nd Ed. New York: McGraw-Hill.

Kadish, Sanford H., ed. 1983.Encyclopedia of Crime and Justice.Vol. 2. New York: Free Press.

Lafave, Wayne R., and Austin W. Scott, Jr. 1986.Substantive Criminal Law.Vol. 2. St. Paul, MN: West.

Loewy, Arnold H. 2003.Criminal Law in a Nutshell.4th Ed.

St. Paul, MN: West.

“New Revelations about Dr. Death.”2000.Macleans113.

Torcia, Charles E. 1994.Wharton’s Criminal Law.15th ed.

New York: Clark, Boardman, Callaghan.

CROSS REFERENCES Death and Dying; Insanity Defense.

HONOR As a verb, to accept a bill of exchange, or to pay a note, check, or accepted bill, at maturity. To pay or to accept and pay, or, where a credit so engages,to purchase or discount a draft complying with the terms of the draft.

As a noun, in old ENGLISH LAW , a seigniory of several manors held under one baron or lord paramount. Also those dignities or privileges, degrees of nobility, knighthood, and other titles that flow from the crown.

In the United States, the customary title of courtesy given to judges, and occasionally to some other officers, as,“his honor,”“your honor,” “honorable.” HONORARY TRUST An arrangement whereby property is placed in the hands of another to be used for specific non- charitable purposes where there is no definite ascertainable beneficiary—one who profits by the act of another—and that is unenforceable in the absence of statute.

Trusts for the erection of monuments, the care of graves, the saying of Masses, or the care of specific animals, such as a cat, dog, or horse, are examples of honorary trusts. Honorary trusts for the benefit of specific animals differ from charitable trusts that have as a trust purpose the benefit of animals in general. In many jurisdictions, legislation validates special provisions for the upkeep of graves and monuments. Similarly, trusts for the saying of Masses are upheld as charitable trusts.

As a general rule, the designated trustee, one appointed or required by law to execute a trust, can effectuate the intent of the settlor—one who creates a trust—if he or she chooses to do so.

Since there is no beneficiary who can enforce the trust, the implementation of the purposes of the trust depends upon the honor of the trustee. If the person does not execute the trust duties, he or she holds the property for the settlor or the settlor’s heirs on the theory of a RESULTING TRUST .

Jurisdictions differ as to the extent to which honorary trusts will be recognized, if at all.

Honorary trusts are usually limited by considera- tions of public policy. For instance, they cannot exist beyond the period of the RULE AGAINST PERPETUITIES , and their amounts cannot be unrea- sonably large for the purpose to be accomplished.

The purpose must also be that of a reasonably normal testator and cannot be capricious.

A settlor bequeaths $1,000 to a trustee to care for the settlor’scatanddog,and$1,000forthe purpose of maintaining the settlor’shomeinthe GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD EDITION 308 HONOR