Offenses of Violence Against the Person

Published date01 January 1962
Date01 January 1962
Subject MatterArticles
Offenses of Violence Against the Person
ABSTRACT: Laws covering crimes of violence against the
person, in statute and in decision, although they vary among
jurisdictions, have been significantly influenced by the com-
mon law of England. The four categories of common law
homicides, except for the occasional combination of justifiable
and excusable homicides, are used in every jurisdiction.
Malice aforethought and felony murder doctrines are retained.
Assault, battery, and mayhem remain in the law, and the
Model Penal Code proposes a complete revision based on
bodily injury. Common law definition of rape prevails, and,
for common law and for statutory rape, penalties, although
varied, are severe. Mistake of fact as to age adds an inter-
esting dimension to the problem of statutory rape. False im-
prisonment, a misdemeanor at common law, is retained in only
fourteen jurisdictions; in extreme cases, it falls under kidnap-
ping statutes. Kidnapping, a misdemeanor at common law,
is treated with far greater severity in the United States than
in Europe. The factor of brief detention or asportation makes
it possible to prosecute other crimes, for which there are im-
prisonment penalties, as kidnapping, a crime for which there
is a possible death penalty. American criminal law has some-
times retained archaic common law concepts that should have
been discarded, and it tends to ad hoc change more in response
to emotion than to reason. Recodifications, much needed,
are rarely attempted. The Model Penal Code, however, does
exist as a beacon and guide.—Ed.
Rex A. Collings, Jr., M.A., LL.B., Berkeley, California, is Professor of Law, University
of California, Berkeley. He previously taught at New York University Law School,
serving while there as editor of the Annual Survey of American Law. Prior to entering
teaching, he was associated with the Criminal Division of the Department of Justice in
Washington as a trial attorney and Chief of the General Crimes Section. He has been
a special consultant to the American Law Institute Model Penal Code Project and is the
author of The Law of Arrest, Search and Seizure (1961) and a frequent contributor to
legal periodicals.

HOMICIDE, assault, rape, and kid- Homicides classified
napping, selected principal crimes
of violence against the person under
The various colonies which became
American law, are the subject of this
the United States inherited the English
article. It is difficult to generalize when
common law of homicide.
At common
one discusses the laws of fifty states, not
law, there were four principal categories
to mention the federal government and
of homicide:
its various entities. The statutes and
(1) Murder. Murder was any unlaw-
decisions of these jurisdictions have been
ful (not justifiable or excusable) homi-
tremendously influenced by the common
cide committed with malice aforethought.
law of England. Yet there have been
The latter term will be defined in the
considerable’ divergences during the
next section. Murder was punishable by
years since 1776.
Much that follows
overgeneralizes with all too little in the
(2) Justifiable homicide. Homicides
way of exception and qualification. Sug-
were justifiable if committed in the pur-
gestions for further study are included
suit of justice, as, for example, in exe-
in the footnotes.
cuting a death penalty, making a law-
ful arrest, capturing a fleeing felon, or
acting in certain instances of defense of
Homicide is the killing of one human
self or others.
being by another. The term &dquo;human
(3) Excusable homicides. Accidental
being&dquo; is frequently defined as a person
homicides as well as certain instances of
who has been born and is alive. The
homicides in self-defense were excusable.
killing of an unborn child was no homi-
An example of the latter is where de-
cide according to the common law, al-
fendant permits himself to become in-
though a few jurisdictions have made it
volved in a fight, is threatened with
an offense under the name &dquo;manslaugh-
deadly force, and kills in self-defense.
ter&dquo; to kill an unborn child under cer-
(4) Manslaughter. Manslaughter was
tain circumstances. In virtually every
a vaguely defined miscellaneous residue
jurisdiction there is in force the com-
of culpable homicides where there was
mon law rule that, unless the victim dies
no malice aforethought, including cer-
within a year and a day after receiving
tain provoked homicides, homicides dur-
the wound or suffering the harm in-
ing minor unlawful acts, and negligent
volved, it will be conclusively presumed
that he died from other causes.
The distinction between justifiable
and excusable homicides is historical,
The following references have been used
and some jurisdictions lump them to-
extensively in the preparation of the material
gether. Otherwise, the common law no-
in this section and are recommended for fur-
menclature is used in
ther study: PERKINS, CRIMINAL LAW 26-79
every jurisdiction.
(1957) MODEL PENAL CODE §201.1-201.6, com-
However, murder is frequently divided
ment (Tent. Draft No. 9, 1959); N. Y. LAW
into degrees. Manslaughter may be di-
vided into subcategories called volun-
LATING TO HOMICIDE (1937) ; see also MORE-
tary or involuntary manslaughter and
LAND, LAW OF HOMICIDE (1952); Keedy, His-
tory of the Pennsylvania Statute Creating De-
may be divided into degrees.
grees of Murder, 97 U. PA. L. REV. 759 (1949) ;
The principal justifications and ex-
Knowlton, Problems of Jury Discretion in
cuses include self-defense, defense of
Capital Cases, 101 U. PA. L. REV. 1099 (1953) ;
others, defense of habitation, prevention
Wechsler and Michael,
Rationale of the
crime, apprehension of criminals, and
of Homicide, 37 COLUM. L. REV. 701,
1261 (1937).
public authority. A proper considera-

tion of these matters is not feasible un-
justification, or excuse, he commits mur-
der the space limitations of this project.
der. What constitutes provocation will
be discussed under the heading of man-
Statutory definitions of murder are
(2) Intent to cause serious bodily
usually skeletal or even nonexistent.
harm. As under the English common
Thus, the widely copied Pennsylvania
law, intent to injure seriously is treated
statute defines first degree murder, then
as equivalent to intent to kill. Thus,
goes on to state that &dquo;all other kinds of
shooting a victim with a claimed intent
murder shall be murder in the second
to injure him 5 or forcing him to jump
degree.&dquo; In a considerable number of
from a moving train is murder if the
other jurisdictions, murder is defined in
victim dies.6 A former pugilist who by
substance as follows: &dquo;Murder is the un-
repeated blows from his fists causes a
lawful killing of a human being with
man to die is a murderer even if no in-
malice aforethought.&dquo; 2 The statute de-
tent to kill can be shown.7
fines first degree murder, then states
(3) Extreme recklessness. There are
that &dquo;all other kinds of murders are of
occasional cases where neither intent to
the second degree
To determine the
kill or to injure seriously can be proved
meaning of murder under either type of
which are held to be murder because of
statute, it is necessary to go to judicial
the extreme recklessness to human life
which is displayed. These are covered
Today, as at common law, murder is
in statutes and cases by such expres-
basically defined as the unlawful killing
sions as &dquo;depraved heart regardless of
of a human being with malice afore-
human life,&dquo; or &dquo;conduct demonstrating
thought. The term &dquo;unlawful&dquo; means
an abandoned and malignant heart.&dquo;
without justification or excuse. The
An example would be firing shots into
term &dquo;malice aforethought&dquo; is some-
an occupied house and killing an oc-
times vaguely defined in the statute. A
typical definition follows: &dquo;Such malice
(4) Intent to commit a felony. This
may be express or implied. It is express
is the subject of the next subtopic.
when there is manifested a deliberate
intention unlawfully to take
Felony murder doctrine
away the
life of a fellow creature. It is implied,
The broadest statement of the felony
when no considerable provocation ap-
murder doctrine is that the state of
pears, or when the circumstances at-
mind required for murder is present
tending the killing show an abandoned
any time an actor intends to commit a
and malignant heart.&dquo; 4
felony, and a killing, even if unintended,
To determine the precise meaning of
during the commission of or attempt to
malice aforethought requires an exami-
commit a felony is murder. Thus, if a
nation of the decisional law of the par-
rapist subdues his victim with his fist
ticular jurisdiction. It is a technical ex-
and she dies as a result, he is guilty of
pression which in general may be said
murder. If a robber’s gun accidentally
to include any of the following states of
State v. Sullivan, 230 Iowa 817, 298 N.W.
(1) Intent to kill. If the actor
884 (1941).
Adams v. People, 109 Ill. 444 (1884).
posely takes life without provocation,
7 Commonwealth v. Dorazio, 365 Pa. 291,
2 E.g., CAL. PEN. CODE §187 (1955).
A.2d 125 (1950).

Id. §189.
People v. Jernatowski, 238 N.Y. 188, 144
Id. § 188.
N.E. 497 (1924).

fires and the victim dies, he is a mur-
recklessly under...

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