Also known as: excusable homicide · excusable killing
Written by attorneys — see sources below.
A classification of homicide at common law that encompasses killings for which the law recognizes a complete defense eliminating criminal liability.
Emily Ellis drove a city bus when a passenger refused to pay and brandished a knife. She slammed the brakes and struggled to disarm him, inadvertently pushing him through the open door to his death. Because her conduct qualified for the complete defense of self-defense and defense of others, the killing fell into the excusable category rather than criminal homicide.
Erika Echevarria watched a parent corner the school principal and raise a metal chair overhead while threatening to strike. She shoved the parent away to protect the principal and nearby students. The parent fell through a glass door and died. The complete defense of others removed the killing from criminal liability and placed it in the excusable homicide category.
In June 1966, a jury convicted Stillman E. Wilbur, Jr. of murder in a Maine state court. The prosecution introduced Wilbur's pretrial statement describing how he fatally assaulted Claude Hebert in Hebert's hotel room after a homosexual advance, together with circumstantial evidence of the killing. Although the defense presented no evidence at trial, it argued that Wilbur lacked criminal intent or that the homicide amounted at most to manslaughter because it occurred in the heat of passion provoked by the advance. The trial court instructed the jury that an intentional and unlawful homicide would support a finding of malice aforethought unless the defendant proved by a fair preponderance of the evidence that he acted in the heat of passion on sudden provocation. After the jury twice returned for additional instructions on implied malice and the definition of heat of passion, it convicted Wilbur of murder. Wilbur appealed his conviction to the Maine Supreme Judicial Court, which upheld the trial court's instructions and affirmed the judgment. Wilbur then filed a petition for a writ of habeas corpus in federal district court. The district court granted the petition, and the Court of Appeals for the First Circuit affirmed that decision. After the Maine Supreme Judicial Court issued its opinion in State v. Lafferty reaffirming its view of state law, the Supreme Court granted certiorari in this case and remanded to the Court of Appeals for reconsideration. On remand, that court again applied Winship, this time to the Maine law as construed by the Maine Supreme Judicial Court. The Supreme Court granted certiorari a second time to consider the constitutional question presented by the Maine homicide law as applied to Wilbur's case.
View caseJustifiable homicide covers killings the law expressly commands or authorizes, such as executions or authorized use of deadly force by officers. Excusable homicide covers killings that would otherwise be unlawful but for a complete defense that eliminates criminal liability, such as perfect self-defense or defense of others.
Supporting sources
Yes. When a person engages in a lawful act such as reasonable self-defense or defense of others and an unintended death results, the killing is excusable at common law because the defense eliminates criminal liability.
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No. Deadly force used only to protect property once any immediate threat to personal safety has ended falls outside both justifiable and excusable categories and is classified as criminal homicide.
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The killing is classified as justifiable homicide because the law affirmatively authorizes the underlying use of deadly force, even if an innocent bystander is unintentionally struck.
Supporting sources
…principles to homicide prosecution, and the "will-of-the-wisp" distinction drawn by the Almeida court between justifiable and excusable homicides. 261 A.2d at 553-558 . It concluded, "beyond a shadow of a doubt Almeida and Thomas [ Commonwealth v. Thomas , 382 Pa. 639, 117 A.2d 204] constituted iberrations [sic] in the…