right hand useless to him for life, or to hurl him down stairs with such force' as to break his leg. And it seems difficult to conceive that circumstances, which would be a full justification of any violence short of homicide, should not be a mitigation of the guilt of homicide. That a man should be merely exercising a right by fracturing the skull and knocking out the eye of the assailant, and should be guilty of the highest crime in the code if he kills the ⚫ same assailant, that there should be only a single step between perfect impunity and liability to capital punishment seems unreasonable. In a case in which the law itself empowers an individual to inflict any harm short of death, it ought hardly, we think, to visit him with the highest punishment if he inflicts death,'

•

"

4

4

"If we thought that the common law was such as is here supposed, we should without hesitation suggest that it should be altered. But we think that such is not and never was the law of England. The law discourages persons from taking the law into their own hands. Still the law does permit men to defend themselves. Vim vi repellere licet modo fial moderamine inculpalæ tutelæ, non ad sumendam vindictam, sed ad propulsandam injuriam. And when violence is used for the purpose of repelling a wrong, the degree of violence must not be disproportioned to the wrong to be prevented, or it is not justified. (1)

There is no case that we are aware of in which it has been held that homicide to prevent mere trespass is justifiable. The question raised has always been, whether it was murder, or reduced by the provocation to manslaughter. And when death has not ensued, the forms of pleading, which had the advantage of bringing the principles of law to a precise issue, show what the principle was. In an appeal of Mayhem, the form of plea of son assault demesne was that the appellant made an assault upon the appellee and him then and there would have beaten, wounded and maimed unless he had forthwith defended himself, against the appellant, and so the ill which the appellant suffered was from his own proper assault and in defence of the appellee (2): Less than this was not a defence (3) In Handcock v. Baker, (4) a plea justifying the breaking of the plaintiff's dwelling house, assaulting him therein, beating him and imprisoning him, on the ground that plaintiff was about to kill his wife, and that all that was done was for the purpose of and necessary to prevent his doing so, was held good after verdict. And we take it to be clear that, even killing the intruding criminal, if necessary to prevent a crime of this magnitude, would be justifiable; but not if it were to prevent a common assault.

46

But the defence of possession either of goods or land against a mere trespass not a crime, does not, strictly speaking, justify even a breach of the peace. The party in lawful possession may justify gently laying his hands on the trespasser and requesting him to depart. If the trespasser resists, and in doing so assaults the party in possession, that party may repel the assault and for that purpose may use any force which he would be justified in using in defence of his person. As is accurately said in 1 Rolle's Abt. Trespass G. 8, a justification of a battery in defence of possession, though it arose in the defence of the ⚫ possession, yet in the end it is the defence of the person.'

Some misapprehension may have arisen from the numerous cases decided, on the 9 Geo. 4, c. 31, s. 11, in which persons indicted for wounding with intent to do grievous bodily harm were held entitled to an acquittal, on its coming out in evidence that there was an illegality or informality in an arrest, or some other provocation disproportioned to the degree of violence used (5). And it may have been supposed that these are authorities that the violence was absolutely justified. But this is from not observing that the effect of the enactment then in force, was that, if wounding was inflicted under such circumstances that, if death had ensued therefrom the offence would not have amounted to murder, the person indicted should be acquitted of felony. That provision was repealed

44

(1) Co. Lit., 162a.

(2) Coke's Entries, 526.

(3) Cook v. Beale, I Ld. Ray. 176.

(4) Handcock v. Baker, 2 Bos. & P. 260.

(5) See R. v. Hood, 1 Moo., C. C 281.

in 1838, and since that time the course of practice has, we believe, been to leave it to the jury, with proper explanations and directions, to say whether the wounding was disproportionate to the injury which it was intended to prevent. The cases in which this doctrine has been acted on seem not to have been reported, with the exception of R. v. Hewlett 1), in which the point only incidentally arose. We think that it is good sense, and that it is the law; and if it is not the law, we submit that it ought to be made so."

The principle above contended for in relation to self-defence has been fully kept in view in articles 45 and 46 (2) of the present code, which articles are as follows:

66

Every one unlawfully assaulted, not having provoked such assault, is justified in repelling force by force, if the force he uses is not meant to cause death or grievous bodily harm, and is no more than is necessary for the purpose of self-defence; and every one so assaulted is justified, though he causes death or grievous bodily harm, if he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purpose, and if he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.

"Every one who has without justification assaulted another, or has provoked an assault from that other, may nevertheless justify force subsequent to such assault, if he uses such force under reasonable apprehension of death or grievous bodily harm from the violence of the person first assaulted or provoked, and in the belief, on reasonable grounds, that it is necessary for his own preservation from death or grievous bodily harm: Provided, that he did not commence the assault with intent to kill or do grievous bodily harm, and did not endeavour at any time before the necessity for preserving himself arose, to kill or do grievous bodily harm: Provided also, that before such necessity arose he declined further conflict, and quitted or retreated from it as far as was practicable.

64

Provocation, within the meaning of this and the last preceding section, may be given by blows, words or gestures."

221. Procuring death by false evidence. Procuring by false evidence the conviction and death of any person by the sentence of the law shall not be deemed to be homicide.

Article 146 (see ante) punishes perjury with imprisonment for life, when it is committed in order to procure the conviction of a person for any crime punishable by death or imprisonment for life.

222. Death must be within a year and a day.—No one is criminally responsible for the killing of another unless the death take place within a year and a day of the cause of death. The period of a year and a day shall be reckoned inclusive of the day on which the last unlawful act contributing to the cause of death took place. Where the cause of death is an omission to fulfil a legal duty the period shall be reckoned inclusive of the day on which such omission ceased. Where death is in part caused by an unlawful act and in part by an omission, the period shall be reckoned inclusive of the day on which the last unlawful act took place or the omission ceased, whith ever happened last.

223. Killing by influence on the mind.-No one is criminally responsible for the killing of another by any influence on the mind

(1) R. v. Hewlett, 1 F. & F. 91.

(2) See illustrations comments and authorities on these articles, ante, pp. 29 and 30.

alone, nor for the killing of another by any disorder or disease arising from such influence, save in either case by wilfully frightening a child or sick person.

See article 220, ante.

224. Acceleration of death.—-Every one who, by any act or omission, causes the death of another kills that person, although the effect of the bodily injury caused to such other person be merely to accelerate his death while labouring under some disorder or disease arising from some other cause.

225. Killing, when death m have been prevented.-Every one who, by any act or omission, causes the death of another kills that person, although death from that cause might have been prevented by resorting to proper means.

226. Death following treatment of injury inflicted.-Every one who causes a bodily injury, which is of itself of a dangerous nature to any person, from which death results kills that person, although the immediate cause of death be treatment proper or improper applied in good faith.

ILLUSTRATIONS.

A strikes B, who, at the time she is so struck, is so ill that she could not have lived many weeks if she had not been struck. Through being struck she dies earlier than she otherwise would have done. A, having, by striking B, accelerated her death, has killed her. (1)

A injures B's finger, B is advised by a surgeon to allow it to be amputated, refuses to do so, and dies of lockjaw. A has killed B. (2)

A wounds B in a duel. Competent surgeons perform on B an operation which they in good faith consider necessary; B dies of the operation, the surgeons being mistaken as to the necessity of the operation. A has killed B. (3)

PART XVIII

MURDER, MANSLAUGHTER, &c.

227. Murder.-Culpable homicide is murder in each of the following cases :

(a.) If the offender means to cause the death of the person killed;

(b.) If the offender means to cause to the person killed any bodily injury which is known to the offender to be likely to cause death, and is reckless whether death ensues or not;

(1) R. v. Fletcher, 1 Russ. Cr. 703; Bur. Dig. Cr. L. 213. (2) R. v. Holland, 2 Moo. & R. 351 ; Bur. Dig. 213.

(3) R. v. Pym, 1 Cox, C. C. 339; 1 Russ. Cr. 702.

(c.) If the offender means to cause death or, being so reckless as aforesaid, means to cause such bodily injury as aforesaid to one person, and by accident or mistake kills another person, though he does not mean to hurt the person killed;

(d.) If the offender, for any unlawful object, does an act which he knows or ought to have known to be likely to cause death, and thereby kills any person, though he may have desired that his object should be effected without hurting any one.

228. Culpable homicide is also murder in each of the following cases, whether the offender means or not death to ensue, or knows or not that death is likely to ensue :

(a.) If he means to inflict grievous bodily injury for the purpose of facilitating the commission of any of the offences in this section mentioned, or the flight of the offender upon the commission or attempted commission thereof, and death ensues from such injury; or

(b.) If he administers any stupefying or overpowering thing for either of the purposes aforesaid, and death ensues from the effects thereof; or

(c.) If he by any means wilfully stops the breath of any person for either of the purposes aforesaid, and death ensues from such stopping of the breath.

2. The following are the offences in this section referred to :Treason and the other offences mentioned in Part IV., of this Act, piracy and offences deemed to be piracy, escape or rescue from prison or lawful custody, resisting lawful apprehension, murder, (1) rape, forcible abduction, robbery, burglary, arson.

As Article 231 prescribes the punishment for murder I have taken the liberty of changing its position, numerally, by placing it next to the foregoing articles containing the definitions of murder.

231. Punishment of murder.-Every one who commits murder is guilty of an indictable offence and shall, on conviction thereof, be sentenced to death. R.S.C., c. 162, s. 2.

It will be seen by article 642, post, that, in future, "no one shall be tried upon any coroner's inquisition; " and article 568 provides, as follows:

"Every coroner, upon any inquisition taken before him whereby any person is charged with manslaughter or murder, shall (if the person or persons, or either of them, affected by such verdict or finding be not already charged with the said offence before a magistrate or justice), by warrant under his hand, direct that such person be taken into custody and be conveyed, with all convenient speed, before a magistrate or justice; or such coroner may direct such person to enter into a recognizance before him, with or without a surety or sureties, to appear before a magistrate or justice. In either case, it shall be the

(1) In the English Draft Code the Royal Commissionners have opposite to this word, "murder" in a corresponding section to the above, a marginal note in which they say. This offence is inserted here to cover the case when the grievous bodily harm is done to some person other than the person intended to be murdered &c."

duty of the coroner to transmit to such magistrate or justice the depositions taken before him in the matter. Upon any such person being brought or appearing before any such magistrate or justice, he shall proceed in all respects as though such person had been brought or had appeared before him upon a warrant or summons."

The coroner's inquest is thus practically restricted to an enquiry into the cause of death; although the duty is imposed upon the coroner of causing the arrest of any persons affected by the finding of the inquisition and of bringing them before a magistrate for prosecution, when they are not already charged before one.

Two classes of murder.-The effect of the above articles 227 and 228 is to divide murder into two classes. One class includes cases in which the offender means either to cause death or to cause bodily injury likely, to his knowledge, to result in death; and the other class includes cases in which, in order to facilitate the commission of any of the offences specified in subsection 2 of article 228, the offender,―(whether meaning or not meaning to cause death, and whether knowing or not knowing that death is likely to ensue),-inflicts (a) grievous bodily injury upon, (b) administers drugs to, or (c) stops by any means, the breath of any one, and thereby causes death.

The principle upon which these articles are based is fully discussed by the Royal Commissioners, whose remarks thereon are already set out at pages 140 and 141 ante, (which see).

ILLUSTRATIONS.

A., with a revolver, deliberately shoots B through the head, killing him, and meaning to kill him. A commits murder.

A. meaning to maim or do bodily injury to B. but reckless whether he kills him or not, takes up an axe and chops off A's hand, knowing that such an injury is likely to cause death. B dies of the injury. A, is guilty of murder.

A. shoots at B. meaning to kill him, and kills C. instead. A. commits murder (1).

A. meaning to do bodily injury to B. and reckless whether he kills him or not, strikes at him with a sword-stick, meaning to wound his right arm, but B. avoids the thrust, by slipping away, and the weapon enters the body of and kills C. A. is guilty of murdering C. (2).

A. commits arson by burning the house of B. but does not mean to hurt anyone, and does not know that there is any one in the house. C. who happens to be in the house, is burnt to death. A. is guilty of murder; arson being a crime which A. ought to have known to be likely to cause death either to some one in the house itself, or to the occupants of adjoining premises or to those engaged in the dangerous work of extinguishing fires.

A. in order to rob B. does him some grievous bodily injury which results in his death. A commits murder, although he did not intend to kill B. and although he was not aware that the injury inflicted was likely to cause death.

A. having committed a burglary strikes at and inflicts grievous bodily injury on B. who intercepts his flight; B. dies of the injury thus received. A. is guilty of murder.

A. to facilitate the commission of rape upon B. administers to her a stupefying drug which kills her. A. commits murder, although he did not mean to cause death and did not know that the drug was likely to cause death.

A. in order to rob B. stops his breath by gagging him. B. dies in consequence. A. is guilty of murder, although he did not intend to kill B. and did not know that gagging was likely to cause death.

(1) Fost, 261.

(2) R. v. Hunt, 1 Moo. C. C. 93.