When a person kills another human being, there is homicide. When a person kills himself, this is suicide. What distinguishes both is killing of another person or oneself. For there to be homicide, there must be the killing of a human being.
3.1 Who is a human being?
Human personality is the gift of nature, but legal personality is conferred by positive law. Generally, personality commences with the birth of a child and terminates upon death. Although an unborn has no legal personality prior to birth, he is not necessarily without legal recognition.
The reason is that equity regards as done, that which ought to be done;
that equity to be born is treated as already born. For this reason, posthumous child can by law inherit his father’s property.
In the Nigerian Criminal law, abortion is a crime. For homicide, the person involved must be a human being. If he is a newly born baby, he must be shown to have had an existence independent of its mother at the time it is killed.
A child becomes a person capable of being killed when he has completely proceeded in a living state from the body of its mother, whether it has breathed or not, and whether it has an independent circulation or not, and whether the navel-string is several or not .
(Creminal Code section 307).
3.2 Kinds of Homicide
They are two kinds of homicide
3.2.1 Felonious or Unlawful homicide, that is to say:
Murder
Manslaughter
Infanticide
Causing death by reckless or dangerous driving of vehicles.
Genocide
Self Assessment Exercise
What do you understand by the term “Felonious homicide?”
3.2.2 Non-felonious or lawful homicide,
Non-felonious or unlawful homicide includes justifiable and Excusable homicide
A. Justifiable homicide – Homicide is justifiable where the killing is done under such circumstances that no guilt is attached to it another. This may occur in the following ways:
(i) In the execution of public justice. It is lawful for a person who is charged by law with the duty of executing or a giving effect to the lawful sentence of a court (including a native tribunal) to execute or give effect to that sentence (Criminal Code section 254).
(ii) In the advancement of public justice
”When a peace officer or a police officer is proceeding lawfully to arrest, with or without warrant, a person for an offence, which is a felony, and the offence is such that the offender may be arrested without warrant, and the person sought to be arrested takes to flight in order to avoid arrest, it is lawful for the peace officer or police officer and for any person lawfully assisting him, to use such force as may be reasonably necessary to prevent the escape of the person sought to be arrested and if the offence is such that the offender may be punished with death or with
imprisonment for seven years or more, may kill him if he cannot by any means otherwise be arrested. (Criminal Code section 27).
(b) Suppression of riot
It is lawful for any person to use or order to be used such force as he/she believes, on reasonable grounds to be necessary in order to suppress a riot. The force used or applied must be reasonably proportioned to the danger which he believes, on reasonable grounds, is to be apprehended from its continuance.
(iii) Self Defence
When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force on the assailant as is reasonably necessary to make effectual defence against the assault, provided that the force used is not intended, and is not such as is likely, to cause death or grievous harm.
(iv) In preventing the commission of a forcible and atrocious crime:
If the nature of the assault is such as to cause reasonable apprehension of death or grievous harm, and the person using force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous harm, it is lawful for him to use any such force to the assailant as, is necessary for defence, even though such force may cause death or grievous harm. (Criminal Code section 286).
Self Assessment Exercise
Explain in your own words what you understand by justifiable homicide?
B Excusable homicide
(i) Subject to the express provisions of the Criminal Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission, which occurs independently of the excuse of his will, or for an event which occurs by accident.
Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act of omission, the result intended to be caused by an act of omission is immaterial.Unless otherwise expressly declared, the motive by what a person is induced to do or omit to do an act or to form an intention, is immaterial so far as regards criminal responsibility. (Criminal Code sect 24). In essence homicide is excusable where the killing occurs in
circumstances as to almost amount to misadventure i.e doing a lawful act without due care and with no intention to harm but results in the death of another. This may occur in any of the following ways;
(ii) Pure Accident
An example is where a man is splitting firewood and the axe-head pulls off and kills a bystander
(iii) Honest and reasonable mistake
If a hunter shoots and kills an object which he believes to be an animal and it turned out that the object was a man, not an animal, and the
circumstance was such that there is no reason to suspect human presence on the spot, such death may be excused.
(iv) Surgical Operation
A person is not criminally responsible for performing in good faith and with reasonable care and skill a s surgical operation upon any person for his benefit, or upon an unborn child for the preservation of the mother’s life, if the performance of the operation is reasonable, having regard to the patient’s state at the time and to all the circumstances of the case (Criminal Code sect 297).
(v) Self defence
Where a person kills another in a sudden affray and it is shown that the assailant had retreated as far as possible before this killing occurred, it is killing in self defence.
(vi) While engaged in lawful sports
Death occurring in a football pitch during a football match or is the ring during a boxing tournament is excusable
vii. Killing in the heat of war
Homicide excludes the killing of an enemy in the heat of war and in the exercise thereof. It is homicide to kill an enemy soldier who have been taken prisoners or have surrendered.