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Homicide - Maltese Law.

Extracts from this document...

Introduction

HOMICIDE Maltese Law Manzini commenting on the offence of wilful homicide, considered that, [o]ggetto della tutela penale, in relazione ai delitti di omicidio, � l'interesse dello Stato concernente la sicurezza della persona fisica, in quanto riguarda particolarmente il bene giuridico della vita umana, considerato nella relazione fra uomini.1 From this reflection it seems quite evident that the law in creating the offence of wilful homicide, tries to protect human life from ending preternaturalmente per il fatto dell'altro uomo.2 Some authors thought that, homicide could be simply defined as: la uccisione dell'uomo commessa dall'altro uomo.3 Carrara however observed that this definition is rather unsatisfactory, as it excludes an essential characteristic of the material element of the offence. The death of a person, which could in some way or another be attributed to another person, does not necessarily entail the perpetration of a homicide. Thus Carrara opted for a more precise definition of the material element of the offence. He stated that [l']omicidio...si definisce - la strage dell'uomo ingiustamente commessa da altro uomo.4 The definition of wilful homicide in section 211(2) of the Maltese Criminal Code, is to a certain extent even more complete than the above statement as it incorporates also an illustration of the mental element. Under this section, A person shall be guilty of wilful homicide if, maliciously with intent to kill another person or to put the life of such other person in manifest jeopardy, he causes the death of such other person. The position at English law is quite similar to that under Maltese law. There are nonetheless a number of differences, which are quite significant. The classic definition of murder at English law is that provided by Coke: Murder is when a man of sound memory, and of the age of discretion, unlawfully killeth within a county of the realm any reasonable creature in rerum natura under the king's peace, with malice aforethought, either expressed by the party or implied by law, so as the party wounded, or hurt, etc. ...read more.

Middle

This is where a person uses no more force than is reasonably necessary to defend himself, or his spouse, parent, child, master or servant.70 This could also apply to the defence of one's own house. Under the Maltese Criminal Code, a justifiable homicide is not considered as being an offence and is not punishable. An excusable homicide, affords a reduction in punishment. The difference between the Maltese and English systems is only formal. Those homicides which are classified as justifiable and those which are classified as excusable at English law, are all grouped under section 223 of the Maltese Criminal Code, dealing with justifiable homicides. In both systems these forms of homicide, are not punishable. Those forms of homicide which are classified as excusable under Maltese law, would at English just reduce the conviction to manslaughter. [A] homicide or a bodily harm [that] is ordered or permitted by law or by a lawful authority, should be perhaps considered as the justifiable homicide, par excellence. [These] homicides classed as strictly justifiable have never involved any legal penalty... In them the act is either enjoined or permitted by the law...71 The mere permission or order by the law or by a lawful authority, do not authorise a person to kill another in any way he likes. [L']uccisione � legittima soltanto quando avvenga nelle prescritte condizioni di tempo e di modo.72 Thus a person who was not authorised by law to perform the justifiable homicide, even though the passive subject was condemned to death, would still be guilty of homicide. Similarly, the person entitled to perform the homicide, would still be liable for wilful homicide, if he kills the passive subject before the sentence can be executed or in a different mode from that prescribed by the law or by the lawful authority. According to Manzini, this could occur even where the homicide is executed in a harsher way than that prescribed by law. ...read more.

Conclusion

XLVII F.4.1270. 75 Carrara, op. cit., Vol 1 parte generale, p. 278. 76 ibid. 77 Criminal Appeal, 22.10.1960, Vol. XLIV E.4.964. 78 Carrara, op. cit., Vol 1 parte generale, p. 279. 79 Carrara, op. cit., Vol 1 parte generale, p. 281. 80 Criminal Appeal, 15.2.1958, Vol. XLII E.4.1245. 81 Criminal Appeal, 12.3.1960, Vol. XLIV D.4.834. 82 Criminal Appeal, 16.10.1937, Vol. XXIX M.4.764. 83 Carrara, op. cit., Vol 1 parte generale, p. 283. 84 ibid. 85 Criminal Appeal, 12.4.1897, Vol. XVI C.4.5. 86 Carrara, op. cit., Vol 1 parte generale, p. 285. 87 Carrara, op. cit., Vol 1 parte generale, p. 286. 88 Smith & Hogan, op.cit., p. 252. 89 Pol. v. Toni Micallef, Criminal Appeal, 16.10.1937, Vol. XXIX M.4.764. 90 Smith & Hogan, op.cit., p. 252. 91 Criminal Appeal, 22.2.1930, Vol. XXVII G.4.760. 92 Criminal Appeal, 22.10.1960, Vol. XLIV E.4.964. 93 Carrara, op. cit., Vol 1 parte generale, p. 286. 94 Carrara, op. cit., Vol 1 parte generale, p. 292. 95 Carrara, op. cit., Vol 1 parte generale, p. 294. 96 Carrara, op. cit., Vol 1 parte generale, p. 295. 97 Carrara, op. cit., Vol 1 parte generale, p. 299. 98 Carrara, op. cit., Vol 1 parte generale, p. 300. 99 Duffy [1949] 1 All ER at 932n. 100 Manzini, op. cit., p. 187. 101 Manzini, op. cit., p. 188. 102 Carrara, op. cit., Vol 1 parte generale, p. 301. 103 Carrara, op. cit., Parte Speciale, Vol I p. 477. 104 Criminal Appeal, 2.4.1960, Vol. XLIV D.4.861. 105 Manzini, op. cit., p. 191. 106 Criminal Appeal, 12.3.1960, Vol. XLIV D.4.834. 107 Smith & Hogan, op.cit., p. 355. 108 Manzini, op. cit., p. 189. 109 Carrara, op. cit., Parte Speciale, Vol I p. 483. 110 Smith & Hogan, op.cit., p. 359. 111 Smith & Hogan, op.cit., p. 360. 112 Criminal Court, 19.6.1937, Vol. XXIX M.4.724. 113 Criminal Appeal, 19.10.1957, Vol. XLI F.4.1470. 114 Smith & Hogan, op.cit., p. 363. 115 Smith & Hogan, op.cit., p. 353. 116 Criminal Appeal, 11.1.1941, Vol. XXXI D.4.384. 117 Carrara, op. cit., Parte Speciale, Vol I p. 537. 118 Mamo, op. cit., p. 264. 1 ...read more.

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