08/07/2019
Penal Code, 1860 (Act No. XLV of 1860).
Secondly.That the provocation is not given by anything done in obedience to the
law, or by a public servant in the lawful exercise of the powers of such public
servant.
Thirdly.That the provocation is not given by anything done in the lawful exercise
of the right of private defence.
Explanation. Whether the provocation was grave and sudden enough to prevent
the offence from amounting to murder is a question of fact.
Illustrations
(a) A, under the influence of passion excited by a provocation given by Z,
intentionally kills Y, Z's child. This is murder, inasmuch as the provocation was
not given by the child, and the death of the child was not caused by accident or
misfortune in doing an act caused by the provocation.
(b) Y gives grave and sudden provocation to A. A, on this provocation fires a
pistol at Y, neither intending nor knowing himself to be likely to kill Z, who is
near him, but out of sight. A kills Z. Here A has not committed murder, but
merely culpable homicide.
(c) A is lawfully arrested by Z, a bailiff. A is excited to sudden and violent
passion by the arrest, and kills Z. This is murder, inasmuch as the provocation
was given by a thing done by a public servant in the exercise of his powers.
(d) A appears as a witness before Z, a Magistrate. Z says that he does not
believe a word of A's deposition, and that A has perjured himself, A is moved to
sudden passion by these words, and kills Z. This is murder.
(e) A attempts to pull Z's nose. Z, in exercise of the right of private defense,
lays hold of A to prevent him from doing so. A is moved to sudden and violent
passion in consequence, and kills Z. This is murder, inasmuch as the provocation
was given by a thing done in the exercise of the right of private defense.
(f) Z strikes B. B is by this provocation excited to violent rage. A, a by stander,
intending to take advantage of B's rage, and to cause him to kill Z, puts a knife
into B's hand for that purpose. B kills Z with the knife. Here B may have
committed only culpable homicide, but A is guilty of murder.
Exception 2. Culpable homicide is not murder if the offender, in the exercise in
good faith of the right of private defense of person or property, exceeds the
powers given to him by law and causes the death of the person against whom he
is exercising such right of defense without premeditation, and without any
intention of doing more harm than is necessary for the purpose of such defense.
Illustration
Z attempts to horsewhip A, not in such a manner as to cause grievous hurt to A.
A draws out a pistol. Z persists in the assault. A believing in good faith that can
by no other means prevent himself from being horsewhipped, shoots Z dead. A
has not committed murder, but only culpable homicide.
Exception 3. Culpable homicide is not murder if the offender, being a public
servant or aiding a public servant acting for the advancement of public justice,
exceeds the powers given to him by law, and causes death by doing an act
which he, in good faith, believes to be lawful and necessary for the due discharge
of his duty as such public servant and without illwill towards the person whose
death is caused.
Exception 4.Culpable homicide is not murder if it is committed without
premeditation in a sudden fight in the heat of passion upon a sudden quarrel and
without the offender's having taken undue advantage or acted in a cruel or
unusual manner.
Explanation. It is immaterial in such cases which party offers the provocation or
commits the first assault.
Exception 5. Culpable homicide is not murder when the person whose death is
caused, being above the age of eighteen years, suffers death or takes the risk of
death with his own consent.
Illustration
A, by instigation, voluntarily causes Z, a person under eighteen years of age, to
commit suicide. Here, on account of Z's youth, he was incapable of giving
consent to his own death; A has therefore abetted murder.
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