Thank you for allowing me to answer your interesting question. Keep in
mind that our answers are not intended to substitute for legal advice
so what I am telling you is a matter of publicly available published
In most states the term ?murder? is rarely used in a statutory
context, rather it is widely used within the definition of a statute
indicative of ?wrongful death? or ?the killing of another person with
malice aforethought?. ?Murder?, in the legal sense, is broadly and
most commonly entitled statutorily as ?homicide?. The simple legal
definition of homicide is ?the killing of one person by another?
whether the killing was intentional, accidental, justifiable or
otherwise notwithstanding. For example, on a death certificate most
inflicted deaths are ruled ?homicide? if another person is responsible
for causing the death. Even perpetrators who are killed by the police
or executed in prison have ?homicide? on their death certificate under
?CAUSE of death?, and ?gunshot?, ?lethal injection?, etc under ?MANNER
Having said that, any time a person is killed (justified or otherwise)
a homicide technically takes place. The question now becomes ?What is
considered permissible under the law??.
There are two types of permissible homicides in the state of
California. They are ?excusable homicide? and ?justifiable homicide?.
The two scenarios differ slightly. Under California Penal Code Section
195 ?excusable homicide? is defined thusly:
195. Homicide is excusable in the following cases:
1. When committed by accident and misfortune, or in doing any other
lawful act by lawful means, with usual and ordinary caution, and
without any unlawful intent.
2. When committed by accident and misfortune, in the heat of
passion, upon any sudden and sufficient provocation, or upon a sudden
combat, when no undue advantage is taken, nor any dangerous weapon
used, and when the killing is not done in a cruel or unusual manner.
Under California Penal Code Section 196 and 197 ?excusable homicide?
is defined in this manner:
196. Homicide is justifiable when committed by public officers and
those acting by their command in their aid and assistance, either--
1. In obedience to any judgment of a competent Court; or,
2. When necessarily committed in overcoming actual resistance to
the execution of some legal process, or in the discharge of any other
legal duty; or,
3. When necessarily committed in retaking felons who have been
rescued or have escaped, or when necessarily committed in arresting
persons charged with felony, and who are fleeing from justice or
resisting such arrest.
197. Homicide is also justifiable when committed by any person in
any of the following cases:
1. When resisting any attempt to murder any person, or to commit a
felony, or to do some great bodily injury upon any person; or,
2. When committed in defense of habitation, property, or person,
against one who manifestly intends or endeavors, by violence or
surprise, to commit a felony, or against one who manifestly intends
and endeavors, in a violent, riotous or tumultuous manner, to enter
the habitation of another for the purpose of offering violence to any
person therein; or,
3. When committed in the lawful defense of such person, or of a
wife or husband, parent, child, master, mistress, or servant of such
person, when there is reasonable ground to apprehend a design to
commit a felony or to do some great bodily injury, and imminent danger
of such design being accomplished; but such person, or the person in
whose behalf the defense was made, if he was the assailant or engaged
in mutual combat, must really and in good faith have endeavored to
decline any further struggle before the homicide was committed; or,
4. When necessarily committed in attempting, by lawful ways and
means, to apprehend any person for any felony committed, or in
lawfully suppressing any riot, or in lawfully keeping and preserving
These and other relevant statutes can be viewed in their entirety here:
Using these criteria as a basis for prosecution (or lack thereof) and
prosecutor and perhaps a court makes the final determination as to
whether ?murder? actually occurred according to the circumstances and
merit of each individual case. In summary, there are legal provisions
under which homicide can be excused or justified in which case,
generally speaking, the homicide is not legally viewed as a ?murder?.
It is indeed possible for one to defend a murder charge (that is, to
escape prosecution entirely or be acquitted of the charge at trial) in
the scenario you suggested by using California Penal Code Sections
195, 196 and/or 197 as his defense. But then again, it would be a
prosecutor or a court that must make the final determination.
I hope you find that my answer exceeds your expectations. If you have
any questions about my research please post a clarification request
prior to rating the answer. Otherwise I welcome your rating and your
final comments and I look forward to working with you again in the
near future. Thank you for bringing your question to us.
Tutuzdad-ga ? Google Answers Researcher
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