Bible Encyclopedias
Murder

• Hetzel, Die Todesstrafe, p. 41;
• Mayer, Rechte der Israeliten, 3:513;
• Michaelis, Mosaisches Recht, 6:10;
• Saalschütz, Mosaisches Recht, pp. 71-74;
• Salvador, Inst. de Moïse, book , ch.

—In Rabbinic Law:

By the rabbinic system homicide is clearly classified as (1) justifiable, (2) misadventurous, (3) accidental, (4) culpable, or (5) felonious.

When Justifiable.

1. Homicide is justifiable when it is committed in obedience to duty, as in executing a condemned criminal (Leviticus 20:2; Deuteronomy 17:5,7; 22:24); or in defense of human life or chastity (Sanh. 8:7,73a; see below); or even in killing the thief who breaks in at night (Exodus 22:2; see Burglary), whether the killing is done by the proprietor of the premises or by a stranger (Sanh. 8:6,72b; Maimonides, "Yad," Genebah, 9:7).
2. Homicide is misadventurous () when the killing is the result of pure chance; as when, in the Biblical example quoted above, the head of the ax, instead of slipping from the helve swayed by the hewer, rebounds from the block and kills (Mak. 2:1,7b; comp. "Yad," Roẓeaḥ, 6:15); or when one throws a missile on his own premises, and a stranger, without the proprietor's knowledge or consent, just then intruding, is struck and killed by such missile (Mak. c. 2, 8a; B. Ḳ. 32b). In such cases no blame attaches to the unfortunate slayer; therefore no punishment of any kind is incurred by him, not even at the hands of the redeemer of blood, the "go'el" (Mak. c.; B. Ḳ. c.; "Yad," c. 3).

Accidental Homicide.

3. Homicide is accidental () when it is the effect of constructive negligence, but entirely free from felonious intention; as when an officer of the court, in chastising a convict (Deuteronomy 25:2,3), by mistake administers more than the number of stripes awarded in the sentence, and thereby causes the death of the culprit (Mak. 3:14,22a; B. Ḳ. 32b); or when one throws a missile on his own premises, and a visitor just then entering by permission is struck and killed by the missile (Mak. 2:2,8a; "Yad," c. 6:11). This species of homicide, although not attended by premeditation or malice, savors of negligence, and is therefore not altogether free from blame and consequent punishment, which latter is exile (; Mak. 2:1,2,7a; see above), or the risk of being killed by the go'el (Mak. c. 7, 12a; "Yad," c. 5:9,10). However, the accidental manslayer is not subject to exile, unless the victim dies immediately after the accident. If the victim survives the accident even a single astronomical day, no exile is imposed (Yeb. 120b; Giṭ. 70b; "Yad," c. 5:2).

Culpable Homicide.

4. Homicide is culpable () when it is the result of actual negligence on the part of the perpetrator; as when one engaged in razing a structure near a thoroughfare thoughtlessly lets some of the material fall on a passer-by, killing him (B. Ḳ.33b; Mak. 2:2,8a); or when one endeavoring to prevent the commission of murder or of rape (see above) intentionally kills the would-be criminal without attempting any other means of prevention (Sanh. 74a; "Yad," c. 1:13); or when one commits homicide in the belief that he has a right to do it (see Hatra'ah), e.g., when one kills a criminal before his judicial conviction (Mak. 7b, 9b). In all such cases the perpetrators are outlaws in the broadest sense of the term: they are criminals, but stand beyond the provisions of the penal laws. The laws concerning murder (see below) can not be applied to them, because the slaying was not preceded by deliberation; and the law concerning accidental homicide can not be applied to them, because the slaying was either the result of criminal negligence or the consequence of choice; therefore the go'el may kill them at any time or place, exile not protecting them against him ("Yad," c. 6:4).In the following cases, though they are even more criminal than those just mentioned, the homicide is likewise included among the culpable: Where a man is an accessory, e.g., hires others to do the deed (see Abetment); where the perpetrator is a principal in the crime, but the victim has a chance to avert fatal results, as where one wilfully throws another into a well which at the time is provided with a ladder, but the assailant removes the ladder and the victim is drowned (Sanh. 77b; "Yad," c. 3:9); where the death is the result of miscarried felonious intent, as where one maliciously aims a deadly missile at a certain person, and it strikes and kills another (Sanh. 9:2,79a; B. Ḳ. 44b); where the missile, not deadly if striking the part aimed at, miscarries and strikes the intended victim in a more vital spot, with fatal results (Sanh. c.; "Yad," c. 4:2); and even where none of the aggravating circumstances here detailed are present, but it is proved that the slayer had nourished enmity against the victim (Mak. 2:3,7b; Sifre, Num. 160). The penalty for the culpables, whom, as stated, exile does not protect against the go'el, depends on the exigencies of the times. If circumstances require exemplary rigor, the court may order the infliction of capital punishment; otherwise scourging and imprisonment (M. Ḳ. 16a; Sanh. 46a; "Yad," c. 2:4,5). To the category of culpable homicides excluded from the penal statute may be added the suicide.

Murder.

5. Homicide is felonious when the act is the result of wilful and malicious deliberation (; see above and Hatra'ah). To establish it as such, there must be none of the mitigating circumstances attending any of the cases hitherto enumerated. It must be perpetrated by one man only, without the physical aid of others (see Abetment); but persuasion or threats (see Duress) will not be considered as an excuse for or extenuation of the crime (Sanh. 74b; Yeb. 53a). Where danger threatens the lives of two men, and one can save his life by increasing the danger of the other, the Rabbis lay down the ethical principle, "Thine own life takes precedence over that of thy neighbor" (B. M. 62a; comp. Yer. Hor. 3:48b); but where one is threatened with the forfeiture of his own life unless he take that of an innocent party, the Rabbis argue, "There is no reason for supposing that thy blood is redder than that of the other"; hence one may not save his own life by spilling the innocent blood of another (Sanh. 74a).

Condition of Murderer and Victim.

The perpetrator, to be amenable to the penalty incurred by the commission of the crime, may be a male or a female, a free person or a slave; but he or she must be an adult, and of sound mental and physical condition (Mek., Nez. 7; Sifra, Emor,; see see ABDUCTION). In case he is a diseased person, the species of the crime is determined by the parties witnessing it. If the crime is committed in the presence of a full court (twenty-three qualified judges), the perpetrator will be convicted of murder and suffer the full penalty; otherwise he will be classed as a culpable homicide (Sanh. 78a; "Yad," Roẓeaḥ, 2:9).

As to the victim, the Rabbis understand by the term ("man"), used in connection with the crime (Exodus 21:12; Leviticus 23:17), a person; hence male or female, free or slave, old or young (Mek., c.; Sifra, c.; "Yad," c. 10). If young, by which is meant a new-born infant, it must be proved that it was not of premature birth; if prematurely born, it must be at least thirty days old to be considered a human being (Sifra, c.; Niddah 44b; "Yad," Roẓeaḥ, 2:2). But the unborn child is considered as part of its mother (Sanh. 80b); killing it in its mother's womb is therefore a finable offense only (Mek., Nez. 8; B. Ḳ. 42b). And where the victim is a diseased person, even moribund, the killing will be considered murder, unless the malady was the direct result of an assault previously made on him by man or brute, and competent physicians declare it to be in itself inevitably fatal (Sanh. 78a; Mak. 7a; "Yad," c. 2:8).

It matters not by what means the crime is accomplished (Sifre, Num. 160; Sanh. 76b), provided the fatality is the immediate and natural result of the assault (Sanh. 79; "Yad," c. ). Hence it is the duty of the court to investigate the nature of the missile used (Sanh. 9:2,79b; B. Ḳ. 90), the force of the blow, and the part hit (Sanh. 78a); or to note the height of the fall (Sanh. 76b), and estimate whether there was sufficient weight or force or momentum to cause the fatal result. If a sharp or pointed metal instrument was the weapon, neither weight nor bulk nor size will enter into consideration, since even a needle may cause death (Sanh. 76b; "Yad," c. 3:4). Also, the physique and condition of the criminal and those of the victim at the moment of the assault must be compared, to determine the likelihood of the one causing the death of the other (Sanh. 9:2; "Yad," c. 5). Where doubt arises as to whether the death was really the natural result of the assault, the benefit of that doubt is given to the culprit (B. Ḳ. 90a; Sanh. 79a). Thus, if the fatal missile be placed among others, and can not be identified, the smallest of the number is selected and considered as the one used (Tosef., Sanh. 12:4; Mek., Nez. 6).

Diagnosing Injuries.

If the victim is found alive, the court must carefully examine his condition and ascertain the nature of the injuries and whether there is a probability of his recovery. If the diagnosis is favorable, the culprit is set at liberty after being assessed legal damages(see Damages), and he can not be again called upon to answer for his crime, even if the victim subsequently dies (Sanh. 9:1,78b; "Yad," c. 4:3). If the court, however, regards the injuries as necessarily fatal, the culprit is placed in detention to await the final result. When death ensues the culprit is tried for his life; if recovery follows, he pays the amercements (Sanh. c.; "Yad," c. 4:4). If, however, the victim improves sufficiently to give promise of ultimate recovery, and the court so diagnoses, even if his condition afterward grows worse and he dies, the favorable diagnosis will protect the culprit against retrial (Sanh. 9:1,78b); Tosef., B. Ḳ. 9:6; comp. Yer. Sanh. 9:27; "Yad," c. 4:5).

The penalty for murder is death by the sword, slaying (; CAPITAL PUNISHMENT). The duty of carrying out the sentence of the court devolves primarily upon the go'el (see above); but where the go'el shirks his duty, the court must see that it is performed by others (Sanh. 45b; Mak. 12b). If for some reason the legal death can not be inflicted, the convict may be put to death by any means possible (Sanh. c.; "Yad," c. 1:2).