231

Provided that to a count charging murder no count charging any offence other than murder shall be joined."

Subsection 2 of article 633, post, provides that a previous conviction or acquittal shall be a bar to any second indictment for the same homicide whether the first indictment is for murder and the second for manslaughter or vice versa. The clause reads as follows:

"A previous conviction or acquittal on an indictment for murder shall be a bar to a second indictment for the same homicide charging it as manslaughter; and a previous conviction or acquittal on an indictment for manslaughter shall be a bar to a second indictment for the same homicide charging it as murder."

It is also provided,-by article 713,-that if on a charge of murder the evidence is not sufficient to establish murder but only manslaughter a verdict of manslaughter may be found. The article is as follows:

Every count shall be deemed divisible; and if the commission of the offence charged, as described in the enactment creating the offence or as charged in the count, includes the commission of any other offence, the person accused may be convicted of any offence so included which is proved, although the whole offence charged is not proved; or he may be convicted of an attempt to commit any offence so included :

"2 Provided, that on a count charging murder, if the evidence proves manslaughter but does not prove murder, the jury may find the accused not guilty of murder but guilty of manslaughter but shall not on that count find the accused guilty of any other offence.

33

By article 714, post, it is further provided that upon an indictment for child murder, the conviction may, if the jury finds that the evidence warrants it, be for concealment of birth instead of murder.

230. Manslaughter.-Culpable homicide, not amounting to murder, is manslaughter.

For article 231 see ante p. 149.

As article 236 prescribes the punishment for manslaughter, I have taken the liberty of changing its position, numerally, by placing it here, next to the foregoing definition of manslaughter.

236. Punishment of manslaughter.-Every one who commits manslaughter is guilty of an indictable offence, and liable to imprisonment for life. R.S.C., c. 162, s. 5.

In order that culpable homicide shall not amount to murder but be only manslaughter, the following conditions are necessary:

1. The slayer must not have meant to cause death.

2. If in the doing of the act which has occasioned death, the offender's intention was to cause any bodily injury to any one, the bodily injury intended must not be such as the offender knew to be likely to cause death.

3. If the act by which the killing has been caused was an act done for an unlawful object, it must not have been such an act as the offender knew or ought to have known to be likely to cause death.

4. If in the doing of the act which has occasioned death the offender meant to inflict grievous bodily injury, it must not have been an act done to facilitate the commission of any the offences mentioned in sub-section 2 of article 228, nor to facilitate flight upon the commission or attempted commission of any such offence. 5. If the act which has caused death is an act of administering some stupefying or overpowering thing, it must not have been done to facililate the commission of any of the said offences mentioned in sub-section 2 of article 228, nor to facilitate flight upon the commission or attempted commission of any such offences; and

6. If the act which has caused death is an act by which the offender has by any means stopped the breath of any person, it must not have been done to facilitate the commission of any of the said offences mentioned in sub-section 2 of article 228, nor to facilitate flight upon the commission or attempted commission of any of such offences.

As, by article 220, ante, homicide is made culpable in cases where the killing is either by an unlawful act, or by an omission, without lawful excuse, to perform or observe a legal duty, any such unlawful act or any such omission will be murder or manslaughter according as it does or does not come within the terms of articles 227 and 228.

For instance, if, by an unlawful act or by an omission to perform some legal duty, one causes the death of another, meaning to cause death, it will be murder If, however, in doing the unlawful act or in omitting to perform or observe the legal duty, one kills another, not meaning to kill any one, it will, in general, be manslaughter only. It may, however, even then,-notwithstanding the absence of intention to kill,-be murder, under some circumstances; as, where the offender's intention is to cause some bodily injury which he knows to be likely to cause death, and he is reckless whether death ensues or not. And, so, if a person, without intending to hurt any one, proceed, for some unlawful object,say, with the object of robbing a bank,- to do an act, (such as the blowing open, by explosives, of a safe or vault), whereby the watchman, who happens to be in an adjoining oflice, is killed, the question would arise whether the act of blowing open the safe or vault was an act which the accused knew or ought to have known to be likely to cause death. If, under the circumstances of the case, as proved, the answer to this question were in the affirmative, the offender would be guilty of murder; if in the negative, he would be guilty of manslaughter only. Or, if, in order to facilitate resistance to lawful apprehension, or to facilitate the commission of robbery, or burglary, or rape, or forcible abduction, or any of the other offences mentioned in sub-section 2 of article 228, a person were to cause death, meaning to inflict some grievous bodily injury, or were to administer to another some stupefying drug or other overpowering thing, or were to stop the other's breath, by gagging, or by any other means, and if death were to ensue to the person so drugged, or so gagged, the offence would, in any of these cases, amount to murder, whether the offender meant death to ensue or not, and whether he knew or not that death was likely to ensue. But, if the bodily injury were inflicted or the drugging and stupefying or the gagging and stopping of breath were done to facilitate the commission of some offence other than any of those mentioned in sub-section 2 of article 228, and if the offender did not mean to cause death and did not know that death was likely to ensue, and, if, under the circumstances the act was not such or so done that he ought to have known it to be likely to cause death, he would be guilty of manslaughter only.

It will be seen, therefore, that, outside of those cases in which the plain test,of killing, meaning to kill, or killing not meaning to kill,-can be applied, the dividing line between murder and manslaughter is uncertain and very much dependent upon and liable to be varied by circumstances.

ILLUSTRATIONS.

For instance, in each of the following illustrations, the act,-that of striking with a stick,-is the same; but the striker's guilt is varied, in degree, by the different circumstances.

1. A. strikes B. with a stick, and, meaning to cause his death, thereby kills him. A. is guilty of murder.

2. A., not meaning to cause th, strikes B., with a stick, and kills him. A. is guilty of manslaughter; unless, of course, there are circumstances of justification or excuse.

3. A. strikes and kills B., with a stick, meaning to cause B. some bodily injury, which he, A., knows to be likely to cause death, A. being reckless whether death ensues or not. A. is guilty of murder.

4. A. strikes B., with a stick, and thereby kills him, A's intention being to cause B. some bodily injury which is not known to A. to be likely to cause death. A. is guilty of manslaughter.

Persons in charge of dangerous things, animate or inanimate, and persons engaged in erecting or making anything which, in the absence of due precaution or care, may endanger human life are under a legal duty to guard against danger, (I) and are criminally responsible for the consequences of omitting their duty, without lawful excuse.

For instance, if a workman throw stones or other materials from a house in course of being erected or repaired, and thereby kill a person passing underneath, on the street, it is murder, manslaughter, or homicide by misadventure, according to whether there is an entire absence of care, or according to the degree of the precautions taken and of the necessity of any such precautions. If the workman threw the stones &c., without giving any previous warning to persons passing beneath, and at a time when it was likely for persons to be passing, it would be murder; (2) if it were done at a time when it was not likely that any persons would be passing, it would be manslaughter: (3) and if done in a retired place, where no persons are in the habit of passing or likely to pass, it would be misadventure merely. (4) Or, if the workman previously gave warning to persons beneath,-then, if it happened in a country village, where few persons pass, it would in that case also be misadventure only; (5) but if it were in some large and populous city or town and at a time when the streets were full, it would he manslaughter, even if he gave previous warning. (6)

If a man breaking an unruly or vicious horse, ride him into a crowd of people, and the horse kick and kill one of the persons in the crowd, this would be murder, if the rider, in bringing the horse into the crowd, meant to do mischief, or even if he meant to divert himself by frightening the crowd; (7) for by reason of his intention to do mischief, or to frighten people he would be doing an unlawful act, which he knew or ought to have known to be likely to cause some one's death. If his riding into the crowd were done, not intentionally, but carelessly and incautiously only, he would be guilty of manslaughter (8).

If a man driving a cart or other vehicle drive it over another man and kill him, it would be murder, if he saw or had timely notice of the probable mischief, and yet drove on. (9)

Upon an indictment for manslaughter it appeared that the deceased was walking in the road, and was in a drunken condition, when the prisoner, who was in a cart and driving two horses, without reins, and going at a furious pace, ran over him and killed him. It appeared that the prisoner had called out twice to the deceased, who, from, his drunken condition, and the pace of the horses, could not get out of the road. This was held to be manslaughter. (10)

In another case the prisoner drove the deceased (a friend of his) in a trap to the races. At the races the prisoner became intoxicated and the deceased. who noticed this, before commencing the homeward journey, proposed to drive; but the prisoner declined, and insisted upon doing the driving himself. They then started off, the prisoner standing up and flogging the horse, and driving at a furious rate, until finally the trap was upset, and the deceased was thrown out and killed. Lush, J. directed the jury to find the prisoner guilty of manslaughter, if they thought the carriage was overturned by the prisoner's culpably negligent driving and that that caused the death of the deceased (1).

If a man have a beast, which he knows to be accustomed to do mischief, and he, through want of due care, allows it to go abroad, and it kills some one, this is manslaughter in the owner who thus allows it get abroad. If he turned it loose purposely, though merely to frighten people, and to make what is called sport, it would then be as much murder as if he incited a bear or a vicious dog to worry people. (2)

A., B. and C. went into a field in proximity to certain roads and houses, taking with them a rifle, which would be deadly at a mile. They all three practised firing, with the rifle, at a target, which they erected in the field, at a distance of about one hundred yards; and they took no precautions of any kind to prevent danger from the firing. One of the shots killed a boy in a tree in a garden, at a spot 393 yards distant from the firing-point. It was held that, although there was no proof as to which of the three fired the fatal shot, A. B. and C. were all guilty of a breach of duty in firing at the place in question, without taking proper precautions to prevent injury to others, and they were found guilty of manslaughter. (3)

A cannon, which had burst and had been returned to an iron founder, was sent back by him in so imperfect a state that on being fired it burst again and killed a person; and it was held to be manslaughter. (4)

A. having the right to the possession of a gun which was in the hands of B. and which he, A., knew to be loaded, attempted to take it by force. In the struggle which ensued, the gun accidentally went off and caused the death of B. A. was held guilty of manslaughter, inasmuch as the discharge of the gun was the result of his unlawful act in attempting to retake the gun by force. (5)

This last case approaches very closely to the idea of murder, as defined in article 227 (d), which makes it murder 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. A distinction, however, may be drawn from the fact that in the above case the object of the accused,—that of obtaining possession of the gun which was his own property, was not an unlawful object, although the means used, attempting to regain possession of it by force, were unlawful; and, besides, in order to bring the case within the terms of article 227 (d), the circumstances established in evidence would have to be such as to shew that the accused was doing an act which he knew or ought to have known was likely to cause death.

Contributory negligence of deceased no defence.—If the drivers of two carriages race with each other and urge their horses to so rapid a pace that they cannot control them, it is manslaughter in both drivers, if, in consequence, one of the carriages upsets and a passenger is killed (6)

(1) R. v. Jones, 11 Cox, 544; Arch. Cr. Pl. and Ev. 21 Ed. 731.

(2) I Hale, 431; 4 Bl. Com. 197.

(3) R. v. Salmon, 6 Q. B. D. 79; 50 L. J. (M. C.) 25.

(4) R. v. Carr, 8 C. & P., 163.

(5) R. v. Archer, 1 F. & F., 351.

(6) R. v. Timmins, 7 C. & P. 499: R. v. Swindall, 2 C. & K. 230.

In Swindall's case it was held to be no defence to shew that the death of the deceased was due in part to the contributory negligence of the deceased. In summing up Pollock, C. B. said, “It matters not whether he [the deceased] was deaf, or drunk, or negligent, or in part contributed to his own death; for in this consists a great distinction between civil and criminal proceedings. If two coaches run against each other, and the drivers of both are to blame, neither of them has any remedy for damages against the other. But, in the case of loss of life, the law takes a totally different view; for, there, each party is responsible for any blame that may ensue, however large the share may be; and so highly does the law value human life that it admits of no justification wherever life has been lost, and the carelessness or negligence of any one person has contributed to the death of another person."

The same rule, that contributory negligence on the part of the deceased is no defence to an indictment for manslaughter, was laid down by Byles, J., in Hutchison's case, (I) and in Kew's case; (2) by Lush, J., in Jones' case, already cited supra, and by Mellor, J., in Dant's case (3). In the latter case, the prisoner, having a right of common, had turned out upon a common, across which there were public footpaths, a horse which he knew to be vicious, and the horse had kicked and killed a child. The prisoner was held liable to be convicted of manslaughter, even though the child had strayed on to the common a little off the path.

Immoderate correction.—Where a parent is moderately correcting his child, a teacher his scholar, or a master his servant, and death happens to ensue, it is only misadventure: but, if the bounds of moderation be exceeded, either in the manner, the instrument, or the quantity of punishment, and death ensue, it is either manslaughter or murder, according to the circumstances. (4) And so, where, in a case already referred to, supra, (5) a master corrected his servant by striking him, with an iron bar, and where, in another case, a schoolmaster stamped on his scholar's belly, so that in each case the sufferer died, these were both held to be murders; because the correction, being excessive and such as must have proceeded from a bad heart, it was equivalent to a deliberate act of killing. (6) And in all cases where the correction is inflicted with a deadly weapon, and the party dies of it, it will be murder if with an instrument which is not likely to kill, though not proper for the purpose of correction, it will, then, be manslaughter. (7)

Where a master struck his servant with one of his clogs because he had not cleaned them, and death unfortunately ensued, it was held to be manslanghter only, because the clog, although an improper instrument to use for the purpose of correction, was very unlikely to cause death, and therefore the master could have had no intention of taking life when he used it. (8)

When a mother, being angry with one of her children, took up a poker, and, as the child ran to the door which was open, threw it after him, and struck and killed another child who happened at the time to be coming in at the open doorway, it was held that, although she did not intend to hit the child at whom she threw the poker, but merely meant to frighten him, it was manslaughter. (9)

In another case, where the father of a child, two and a half years old, chastised it, for some childish fault, by beating it with a strap on the lower part of

(1) R. v. Hutchison, 9 Cox, 555.

(2) R. v. Kew, 12 Cox, 355.

(3) R. v. Dant, L. & C. 567; 34 L. J. (M. C.) 119; Arch. Cr. Pl. & Ev. 21 Ed. 732.

(4) Hale, 473, 474.

(5) Rex. v. Grey, Kel 64.

(6) Fost. 262.

(7) Fost. 262; R. v. Hopley, 2 F. & F. 201.

(8) R. v. Turner, Comb. 407, 408; see also, R. v. Wigg, 1 Leach, 378n; R. v. Leggett, 8 C. & P. 191; Arch Cr. Pl. & Ev. 21 Ed. 727, 728.

(9) R. v. Conner, 7 C. & P. 438.