Odger's English Common Law

Chapter IV.
JUSTIFIABLE AND EXCUSABLE HOMICIDE.
Murder consists, as we have seen, in feloniously causing
the death of another with malice aforethought—manslaughter,
in feloniously causing the death of another without malice
aforethought. But a homicide is "justifiable" when death
is lawfully inflicted, and " excusable " when the death is the
result of an accident. In the two latter cases the homicide
is no crime.
The distinction between justifiable and excusable homicide was formerly
of considerable importance. If the homicide was justifiable the accused
was found not guilty, whereas if the homicide was excusable the accused
was found' guilty and his chattels were forfeited to the Crown ; though
ultimately it became usual for the Crown to restore the chattels 1 and grant
the accused a free pardon. In 1828 the general forfeiture of goods for
excusable homicide was abolished. 2 Now in cases both of justifiable and
excusable homicide the accused is found not guilty.
Justifiable Homicide.
Justifiable homicide may be defined as the killing of a
human being, either in the discharge of a legal duty or in
the exercise of a legal right. In both cases the act which
causes death is intentional and lawful. The circumstances
which create such a duty or confer such a right may be
grouped under five heads :
—
(1) Where a duly authorised officer of justice executes a
criminal, condemned to death by a competent Court. If any
person other than the duly authorised executioner carries out
the sentence, he is guilty of murder. Again, the mode of
execution must be strictly in accordance with the sentence
hence if the officer of justice beheads a criminal who is sen-
1 Except the " deodand," i.e., the instrument with which the death was caused.
For further information as to deodand, see Pollock and Maitland, History of
English Law, Vol. II. p. 47H.
2 9 Geo. IV. c. 31, s. 10, re-enacted by 24 & 25 Vict. c. 100, s. 7.
;