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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 afflic

. tion 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 in Accidents frequently occur amongst persons following their common occu- lawful occupations, especially such from whence danger may pations.

probably arise. If they saw the danger, and yet persisted, without Necessary cau. sufficient warning, it will be murder. If the act were such as was likely to breed danger, and they neglected the ordinary cautions

, used.

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. Workmen For instance, in the case of workmen throwing stones and throwing rubbish from a house in the ordinary course of their business, by rubbish.

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 apo parentibus 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,

tion must be

notwithstanding the ordinary caution used on other occasions of giving warning; for in the burry 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. 0. 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 happen-, danger, 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, 0. 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 pro

at game by an

unqualified hibitum, as shooting at game by a person not qualified by statute

VOL. III.

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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. If there is an Further, if there be an evil intent, though that intent extendeth intent to do

not to death, it is murder. Thus, if a man, knowing that many mischief.

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. Reasonable The law does not require the utmost caution that can be used; precaution syf- it is sufficient that a reasonable precaution, what is usual and ordificient.

nary 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 Joaded, 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 pro,bability 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. li 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

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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 Committing intending to commit one felony happens to commit another, he is one felony as much guilty as if he had intended the felony which he actually

while intending commits. i Haro. C-29. § 11.

But in all the cases above, if it doth only hurt a man by such In all such an accident, it is nevertheless a trespass ; and the person hurt shall cases it is a recover his damages: for though the chance excuse from felony, trespass. yet it excuseth not from trespass. i Hale, 472.

This homicide is not felony, because it is not accompanied with This kind of a felonious intent, which is necessary in every felony. 1 Haw. homicide no c. 29. $ 11.

felony. Although this homicide is not properly a man's crime, but his Forfeiture. misfortune, yet because the king hath lost his subject, and in re. But see 9 G 4. spect of the great favour the law hath to the life of man, and to c. 31. s. 10. the end that men should use all care, diligence, and circumspec- infras tion, 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. i Hale, 477. 492.

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

And now, by 9 G. 4. c. 31. $ 10., no punishment or forfeiture 9 G. 4. c. 31. shall be incurred by any person who shall kill another by mis- No punishment fortune, or in his own defence, or in any other manner without or forfeiture

where homicide felony..

is not felonious. III. Homicide bp Self-defence. 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 applicableto such killing as happens upon self-defence upon a sudden rencounter. i Russ. 543.

Homicide in a man's own defence seems to be, where one, who Se defendendos · 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. I Haw. c. 29. & 13.

And not only he, who upon an assault retreats to a wall, or some cases of se deasuch 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. i Haro. c. 29. j 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. i Haw. c. 29. § 14.

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

Resistance to

And an officer who kills one that resists him in the execution officer, feloni- of his office, and even a private person that kills one who feloniously ous assault.

assaults him in the highway, may justify the fact without ever giving

back at all. 1 Haw. c. 29. $ 16. Previous mali- But if a person upon malice prepense strike another, and then cious assault.

fly to the wall, and there in his own defence kill the other, this

is murder. Hale's Sum.42. The party must It is said that, in the case of a sudden affray, all malice apart, it try to quit the

matters not who gave the first blow, if either party endeavour to combat;

decline the combat and retreat before a mortal wound be given.

1 Russ. 544. and must be in

But the party killing cannot in any case substantiate his excuse, danger, to

if he kill his adversary even after a retreat, unless there were reamaintain his

sonable ground to apprehend that he would otherwise have been

killed himself. 1 Russ. ibid. Defence of The excuse of self-defence extends to the case of master and master by ser- servant, parent and child, husband and wife, killing an assailant in vant, &c.

the necessary defence of each other. 1 Russ. 545. Defence not It is to be understood, however, that the same excuse does not available to pre- extend to the case of homicide in endeavouring to prevent an vent a trespass. illegal entry into a party's house, or in opposition to a trespass on

his property. Russ. 545. Accessaries.

Hereof there can be no accessaries either before or after the fact, because it is not done with a felonious intent, but upon inevitable necessity. 3 Inst. 56. See 9 G. 4. c.31. ante, p. 339.

excuse.

IV. Yanslaughter. Manslaughter, Manslaughter is thus defined:— the unlawful killing of another what.

without malice either express or implied: which may be either voluntarily, upon a sudden heat; or involuntarily, but in the commission of some unlawful act. 4 Black. Com. 191. 1 Hale, 466.

1 Haw. c. 30. 91. 1 East's P. C. 218. Without

There is no difference between murder and manslaughter, but malice. that murder is upon malice forethought, and manslaughter upon

a sudden occasion. As if two meet together, and striving for the wall, the one kill the other, this is manslaughter and felony. And so it is, if they had upon that sudden occasion gone

into the field and fought, and the one had killed the other, this had been but manslaughter, and no murder; because all that followed was but a continuance of the first sudden occasion, and the blood was

never cooled till the blow was given. 3 Inst. 55. Accessaries.

There can be no accessaries to this offence before the fact, because it must be done without premeditation. 1 Haw. c. 30. $ 2. 1 East's P. C.218.

But there may be accessaries after the fact. 3 Inst. 55. Nature of pro

It is by no means, however, every provocation, however gross, vocation, and of which will reduce the offence of killing to manslaughter ; words of circumstances.

reproach, insulting words or gestures, or trespasses against land or goods, will not of themselves make the killing to be manslaughter instead of murder, if the offender make use of a deadly weapon, or shew an intention to kill or to do some great bodily harm. I Russ.

A blow struck, If A. provoke B.by words, and B. strike A. (not mortally), and

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