8.3.1: History of Homicide Laws

Homicide is the killing of one human being by another. Homicide is not always criminal. For example, a lawful execution by the State pursuant to a death warrant (capital murder death penalty cases) is homicide, but it is not criminal homicide.

Homicide law in the United States has its origins in the English common law. Oxford professor Sir William Blackstone defined homicide as justifiable, excusable, or felonious. Justifiable homicides were not criminal because they did not include the concept of guilt. Excusable homicides were not criminal because they included minimal guilt. Felonious homicides were criminal and were considered the most heinous offenses known to man. Initially at common law, every felonious or criminal homicide was punished by death. As the law evolved, unlawful killings were divided into murder and manslaughter based on the defendant’s criminal intent.

In California murder has the criminal intent element of malice aforethought. Manslaughter was an unlawful killing without malice and was punished by incarceration only (no death penalty).

In modern times, most states including California define criminal homicide and its elements in statutes, which often are interpreted by case law. In this course we focus on the California criminal statutes.

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