<論説>アメリカ刑法における殺人罪について : 序説 <Article>AN INTRODUCTION TO THE LAW OF HOMICIDE IN AMERICAN LAW
Homicide is often defined as the killing of a human being by a human being, or by another human being. The word "homicide" is not in itself the name of a crime and includes both lawful and unlawful killing of human beings (i. e., innocent homicide and felonious homicide). Felonious homicide consists at common law, either of (1) murder, or (2) manslaughter. Murder is homicide committed with malice aforethought. There are two classes of malice. Express malice aforethought connotes an actual intention to kill. It exists whether the intention be to kill the person who is killed, or to kill some other person. Implied malice aforethought exists when there is no actual intent to kill any person, but death is caused by conduct which the law regards as showing such an abandoned state of mind as to be equivalent to an actual intent to kill. From such conduct the law implies malice. The presumption of malice is today understood to be conclusive presumption, i. e., rules of substantive law. The burden of proof devolves on the accused and he runs the risk of non-persuasion since the presumption of malice will usually carry the state's case to the finders of fact. As for the presumption of mens rea in American Law, I leave many important problems for another occasion. At common law there were no degrees of murder, and the punishment for murder was death. In an endeavor to limit the use of the death penalty the states have by statute divided murder into two degrees, reserving the death penalty for the first degree only. The most common definition of first degree murder are (1) all murder which is perpetrated by means of poison, or by lying in wait, (2) all murder which is parpetrated by deliberate and premeditated killing, and (3) all murder which is committed in the perpetration of, or in the attempt to perpetrate, any arson, rape, robbery, or burglary (i. e., felony-murder rule). Manslaughter is commonly reffered to as being of two kinds, (1) voluntary and (2) involuntary. Voluntary manslaughter is an intentional killing in the heat of passion upon adequate provocation and is the mitigating crime of murder. Involuntary manslaughter is an unintentional killing either in the commission of an "acts mala in se, " or by criminal negligence in doing a lawful act or an "acts mala prohibita." But this was purely a factual distinction at common law, the punishment being the same for both. Some statutes use the common law plan in this regard, some follow the same plan except for the establishment of a different penalty for the two types mentioned, and a few have an entirely different scheme of classification as degrees. As a matter of the common law of crimes any killing below the grade of manslaughter is innocent homicide. There are some states, however, with legislative provisions for the punishment of certain homicides below the grade of manslaughter. This additional crime is generally known as "negligent homicide". This statutes are intended to apply to cases where the negligence is of a lesser degree than gross negligence, limiting in the field of traffic accidents. Through the above study, the problems of "premeditation and deliberation" in first degree murder cases and "negligence" in negligent homicide will be suggestive for the criminal law in Japan. This paper is only an introduction to the law of homicide in American Law and many important problems will follow in the next issue.
法と政治 11(3), 561-616, 1960-09-30