If the officer in executing his office exceed his authority, the No protection law gives him no protection in that excess. And it not only for an officer behoves the ministers of justice and other public officers, but like- exceeding his wise private persons endeavouring to arrest or imprison in the authority. several cases already specified, to be very careful that they do not misbehave themselves in the discharge of their duty; for if they do, they may forfeit this special protection. 1 MS. Sum. 170. Fost. 319. 1 East's P. C. 320.

In all these cases, the party upon arraignment having pleaded Trial and disnot guilty, the special matter must be found; whereupon the party charge. shall be dismissed without any forfeiture, or pardon purchased. Hale's Sum. 38.

II. Homicide by Misadventure.

I have purposely avoided the word chancemedly in this place, Chancemedly. because authors do not seem to be agreed whether it is to be applied to homicide by misadventure, or to manslaughter. Ld. Coke and Mr. Hawkins seem to understand it of manslaughter; Ld. Hale and others, of homicide by misadventure. The original meaning of the word seems to favour the former opinion, as it signifies a sudden or casual meddling or contention; whereas homicide by misadventure supposeth no previous meddling or falling out. But the same author sometimes in different places applies it to both of them promiscuously.

Homicide by misadventure is where a man is doing a lawful act, without intent to hurt another, and death casually ensues. Hale's Sum. 31. 1 East, P. C. 221.

As where a labourer being at work with a hatchet, the head flies off, and kills one who stands by. Or where a third person whips a horse, on which a man is riding, whereupon he springs out and runs over a child, and kills him; in which case the rider is guilty of homicide by misadventure, and he who gave the blow, of manslaughter. 1 Haw. c. 29. § 3.

What is homicide by misad

venture.

Cases of homicide by misadventure.

But if a person riding in the street whip his horse to put him Aliter if the act into speed, and run over a child and kill him, it is homicide, and be imprudent. not by misadventure; and if he ride so, in a press of people, with intent to do hurt, and the horse killeth another, it is murder

in the rider. 1 Hale, 476.

It is not sufficient that the act upon which death ensues be lawful and innocent in itself. It must be done in a proper manner, and with due caution, to prevent mischief.

P. C. 261.

Fost. 262. 1 East's

Lawful acts must be done with caution.

Thus parents, masters, and other persons, having authority in Correction in foro domestico, may give reasonable correction to those under foro domestico. their care and if death ensue from such correction, it will be no more than accidental death. But if the correction exceed the bounds of due moderation, either in the measure of it, or in the instrument made use of for that purpose, it will be either murder

or manslaughter according to the circumstances. If done with a May be murcudgel, or other thing not likely to kill, though improper for the der, if exces purpose of correction, it will be manslaughter; if with a dan- sive. gerous weapon likely to kill or maim, as a pestle or great staff, it will be murder: due regard being had in both instances to the age and strength of the party. 1 East's P. C. 261.

Accidents in

common occu

pations.

Necessary cau

tion must be used.

Workmen throwing rubbish.

Grey, a blacksmith, struck his servant with a bar of iron, by way of correction for improper behaviour, by which he was killed; held murder. A woman kicked and stamped on the belly of her child; and ruled the same. Grey's case, Kel. 64, 5. 1 East's

P. C. 261.

Yet though the correction exceeds the bounds of moderation, the court will pay a tender regard to the nature of the provocation, where the act is manifestly accompanied with a good intent, and the instrument not such as must in all probability occasion death; though the party were hurried to great excess. As was the case of a father (Worcester Sp. Ass. 1775), whose son had frequently been guilty of stealing, complaints of which had come to the father, who had often corrected him. At length the son being charged with another theft, and resolutely denying it, though proved against him, the father in a passion beat his son with a rope by way of chastisement for the offence, so much, that he died. The father expressed the utmost horror, and was in the greatest affliction for what he had done, intending only to have punished him with such severity as to have cured him of his wickedness. The learned judge who tried the father consulted his colleagues in office, and the principal counsel on the circuit, who all concurred in opinion that it was only manslaughter, and so it was ruled. 1 East's P. C. 261.

Accidents frequently occur amongst persons following their lawful occupations, especially such from whence danger may probably arise. If they saw the danger, and yet persisted, without sufficient warning, it will be murder. If the act were such as was likely to breed danger, and they neglected the ordinary cautions, it will be manslaughter at least, on account of such negligence, making due allowance for the nature of the occupation, and the probability of the danger; which, if very remote, and in the particular instance not reasonably to be expected, may reduce the act to misadventure. The criterion in such cases is to examine whether common social duty would, under the circumstances, have suggested a more circumspect conduct.

For instance, in the case of workmen throwing stones and rubbish from a house in the ordinary course of their business, by which a person underneath happens to be killed; if they deliberately saw the danger, or betrayed any consciousness of it, from whence a general malignity of heart might be inferred, and yet gave no warning, it will be murder, on account of the gross impropriety of the act. If they did not look out, or not till it was too late, and there was even a small probability of persons passing by, it will be manslaughter. But if it had been in a retired place, where there was no probability of persons passing by, and none had been seen about the spot before, it seems to be no more than accidental death. For though the act itself might breed danger, yet the degree of caution requisite being only in proportion to the apparent necessity of it, and there being no apparent call for it in the instance put, the rule applies, de non existentibus et non apparentibus eadem est ratio. So if any person had been before seen on the spot, but due warning were given, it will be only misad venture. (Hull's case, 1664. Kel. 40. 1 Russ. 535.) On the other hand, in London and other populous towns, at a time of day when the streets are usually thronged, it would be manslaughter,

notwithstanding the ordinary caution used on other occasions of giving warning; for in the hurry and noise of a crowded street few people hear the warning, or sufficiently attend to it, however loud. 1 East's P. C. 262.

Again, a person driving a carriage happens to kill another: if In driving carhe saw or had timely notice of the mischief likely to ensue, and riages. yet wilfully drove on, it will be murder; for the presumption of malice arises from the doing of a dangerous act intentionally: there is the heart regardless of social duty. If he might have seen the danger, but did not look before him, it will be manslaughter, for want of due circumspection. But if the accident happened in such a manner that no want of due care could be imputed to the driver, it will be accidental death, and he will be excused. 1 East's P. C. 263.

A. was driving a cart with four horses in the highway at Whitechapel; and he being in the cart, and the horses upon a trot, they threw down a woman who was going the same way with a burthen upon her head, and killed her. Holt C. J., Tracy J., Baron Bury, and the recorder Lovel, held this to be only misadventure. But, by Lord Holt, if it had been in a street where people usually pass, this had been manslaughter; but it was clearly agreed that it could not be murder. O. B. Sess. before M. T. 1704, 1 East's P. C. 263.

It has already been observed, that this homicide only is when it Felonious happeneth upon a man's doing a lawful act; for if the act be intent. done in the prosecution of a felonious intention, it will be murder.

1 Russ. 454.

But it seems that in cases of this kind the guilt would rather Circumstances depend upon one or other of these circumstances, either that the of danger. act might probably breed danger, or that it was done with a mischievous intent. 1 Russ. 526.

When sports are unlawful in themselves, or productive of Death happendanger, riot, or disorder, so as to endanger the peace, and ing at unlawful death ensue in the pursuit of them, the party killing is guilty of sports. manslaughter. Such manly sports and exercise as tend to give strength, activity, and skill in the use of arms, and are entered into as private recreations amongst friends, are not, however, deemed unlawful sports; but prize-fighting, public boxing matches, or any other sports of a similar kind, which are exhibited for lucre, and tend to encourage idleness by drawing together a number of disorderly people, have met with a different consideration. For in these last-mentioned cases the intention of the parties is not innocent in itself, each being careless of what hurt may be given, provided the promised reward or applause be obtained; and meetings of this kind have also a strong tendency in their nature to a breach of the peace. Therefore, where the prisoner had killed his opponent in a boxing match, it was holden that he was guilty of manslaughter; though he had been challenged to fight by his adversary for a public trial of skill in boxing, and was also urged to engage by taunts; and the occasion was sudden, &c. Ward's case, O. B. 1789, 1 East's P. C. 270.; and see 1 Russ. 527., and the authorities there cited.

The rule before laid down supposeth that the act, from which From shooting death ensued, was malum in se. For if it were barely malum at game by an pro- unqualified hibitum, as shooting at game by a person not qualified by statute

person.

law to keep or use a gun for that purpose, the case of a person so offending will fall under the same rule as that of a qualified man. For the statutes prohibiting the destruction of the game, under certain penalties, will not in a question of this kind enhance the accident beyond its intrinsic moment. Fost. 259.

Further, if there be an evil intent, though that intent extendeth not to death, it is murder. Thus, if a man, knowing that many people are in the street, throw a stone over a wall, intending only to frighten them, or to give them a little hurt, and thereupon one is killed, this is murder; for he had an ill intent, though that intent extended not to death, and though he knew not the party slain. 3 Inst. 57.

A gentleman came to town in a chaise, and before he got out of it fired his pistols in the street, which by accident killed a woman. This was ruled manslaughter: the act was likely to breed danger, and manifestly improper. Burton's case, 1 Str. 481. 1 East's P. C. 266.

The law does not require the utmost caution that can be used; it is sufficient that a reasonable precaution, what is usual and ordinary in the like cases, be taken: such as hath been found by long experience in the course of human affairs to answer the end: for such conduct shews that the party was regardful of social duty, and free from any manner of guilt. Fost. 264. 1 East's P. C. 266. And, therefore, upon that principle, Mr. Justice Foster denies. Rampton's case, Kel. 41., to be law: and, indeed, there is a quære put to it in the margin of the reporter. The prisoner had found a pistol in the street, which he had reason to believe was not loaded, having tried it with the rammer, which had gone down into the muzzle of the pistol; the rammer, in fact, being too short. He carried the pistol home, and his wife standing before him, he cocked it and touched the trigger; on which the pistol went off, and killed the woman. This was ruled manslaughter. In truth, the man had used the ordinary precaution, adapted to the probability of danger in such cases: he had examined the pistol by the usual method of trial. And though it was doubtless an idle frolic, yet the heart was free from all sort of guilt, even the guilt of negligence; and therefore the act ought to have been excused. And the same learned judge determined accordingly in a case something similar.

Upon a Sunday morning a man and his wife going to dine at a friend's house in the neighbourhood, he carried his gun with him, to divert himself on his way; but before dinner he discharged it, and set it up in a private place in his friend's house. After dinner he went to church, and in the evening returned home with his wife and neighbours, bringing his gun with him; which was put into the room where his wife was, she having brought it part of the way. He, taking it up, touched the trigger, and the gun went off, and killed his wife. It came out in evidence, that while the man was at church, a person belonging to the family privately charged the gun, and went after some game; but before the service at church was ended, returned it loaded to the place from whence he had taken it; and where the defendant, who was ignorant of all that had passed, found it to all appearance as he had left it. Mr. Justice Foster thought it unnecessary to inquire whether the man had examined the gun before he carried it home; but being

of opinion upon the whole evidence that he had reasonable grounds to believe that it was not loaded, he directed the jury, that if they were of the same opinion, they should acquit him: and he was acquitted. Fost. 265.

It is a general rule in case of all felonies, that wherever a man intending to commit one felony happens to commit another, he is as much guilty as if he had intended the felony which he actually commits. 1 Haw. c. 29. § 11.

But in all the cases above, if it doth only hurt a man by such an accident, it is nevertheless a trespass; and the person hurt shall recover his damages: for though the chance excuse from felony, yet it excuseth not from trespass. 1 Hale, 472. This homicide is not felony,because it is not accompanied with a felonious intent, which is necessary in every felony. 1 Haw. c. 29. § 11. Although this homicide is not properly a man's crime, but his misfortune, yet because the king hath lost his subject, and in respect of the great favour the law hath to the life of man, and to the end that men should use all care, diligence, and circumspection, in all they do, that no hurt should come of their actions, a person convicted hereof shall forfeit his goods, and shall not presently be discharged of his imprisonment, but bailed, that he may sue out his pardon, which he shall have out of the chancery of course. 1 Hale, 477. 492.

But the practice now is to direct an acquittal, without obliging the prisoner, by a special proceeding, to purchase his pardon under the stat. of Gloucester, and no forfeiture is incurred.

And now, by 9 G. 4. c. 31. § 10., no punishment or forfeiture shall be incurred by any person who shall kill another by misfortune, or in his own defence, or in any other manner without felony..

III. Homicide by Self-defence.

Committing one felony while intending another.

In all such cases it is a

trespass.

This kind of homicide no felony. Forfeiture. But see 9 G 4. c. 31. s. 10.

infra.

Now the practice to acquit.

9 G. 4. c. 31. No punishment or forfeiture

where homicide is not felonious.

In treatises on homicide, the term chancemedley frequently Chancemedley, occurs, and it is not always used in one and the same sense: the best explanation of it seems to be, that it is applicable to such killing as happens upon self-defence upon a sudden rencounter. 1 Russ. 543.

Homicide in a man's own defence seems to be, where one, who Se defendendo, hath no other possible means of preserving his life from one who what. combats with him on a sudden quarrel, kills the person by whom

he is reduced to such an inevitable necessity. 1 Haw. c. 29. § 13.

And not only he, who upon an assault retreats to a wall, or some Cases of se deb▾ such strait, beyond which he can go no further before he kills the fendendo. other, is judged by the law to act upon unavoidable necessity, but also he, who being assaulted in such a manner and in such a place that he cannot go back without manifestly endangering his life, kills the other without retreating at all. 1 Haw. c. 29. § 14.

And notwithstanding a person, who retreats from an assault to the wall, give the other wounds in his retreat, yet if he give him no mortal one till he get thither, and then kill him, he is guilty of homicide se defendendo only. 1 Haw. c. 29. § 14.

But if the mortal wound were first given, then it is manslaughter. Hale's Sum. 42.

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