where Willes, J., is reported to have said that a man was not criminally responsible for negligence for which he would not be responsible in an action; but this case being cited before Lush, J., (v) he said that it was quite at variance with what he had always heard.

If a commoner turn out on a common, across which there are public footpaths, a horse which he knows to be vicious and dangerous, and the horse kicks and kills a child, the commoner is liable to be convicted of manslaughter, even though the child has strayed on to the common a little way off the path. (w)

There is one species of criminal negligence, punishable by the provisions of the statute law, which may be mentioned in this place, though the offence is not made manslaughter. By the 7 & 8 Geo. 4, c. 75 (local and personal), s. 38, in case any greater number of persons or passengers shall be taken or carried in any such wherry, boat, or other vessel (mentioned in the Act) on the river Thames (within the limits there mentioned), than are respectively allowed to be carried therein, and any one or more of them shall by reason thereof be drowned, every person or persons who shall work or navigate such wherry, &c., offending therein, and being convicted, shall be deemed guilty of a misdemeanor, and shall be liable to punishment, as in cases of misdemeanor, at the discretion of the Court, and shall also be disfranchised, and not allowed to work or navigate any wherry, &c., or to enjoy any of the privileges of a freeman of the company of watermen, &c., on the river Thames. (x)

SEC. VI.

Of the Indictment and Judgment.

The indictment for manslaughter differs from the indictment for the higher crime of murder, in the omission of any statement as to malice, and of the conclusion that the party accused did kill and 'murder;' and we have seen that a bill of indictment for murder may be converted into one for manslaughter, by striking out such statement and conclusion. (y)

Upon an indictment for manslaughter, it appeared that it was the prisoner's duty to attend to a steam engine, but on the occasion in question he had stopped the engine and gone away, and that, during his absence, a person came and put it in motion, and being unskilled was not able to stop it again, and in consequence of the engine being thus put in motion, the deceased was killed. Alderson, B., stopped the case, saying that the death was the consequence, not of the act of the prisoner, but of the person who set the engine in motion after

(v) R. v. Jones, supra.

(w) R. v. Dant, 34 L. J. M. C. 119, et per Blackburn, J., I by no means mean to say that the conviction might not have been supported if the child had been killed by the horse at the time when she was straying upon the common far from the public path."

(x) It was observed upon a former stat ute, 10 Geo. 2, c. 31, containing a more

severe punishment for an offence of this kind, that it might serve as a caution to stage coachmen and others, who overload their carriage for the sake of lucre, to the great danger of the lives of the passengers, the number of whom are regulated by Act of Parliament. 1 East, P. C. c. 5, s. 38, p. 264. (y) Ante, p. 157.

the prisoner had gone away; that it is necessary, in order to a conviction for manslaughter, that the negligent act which causes the death should be that of the party charged. (≈)

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, for the purpose of practising firing with it. B. placed a board, which was handed to him by A., in the presence of C., in a tree in the field as a target. All three fired shots directed at the board so placed, from a distance of about 100 yards. No precautions of any kind were taken to prevent danger from such firing.

One of the shots thus fired by one, though it was not proved by which one of them, killed a boy in a tree in a garden near the field at a spot distant 393 yards from the firing point. A., B., and C. were all found guilty by a jury of manslaughter. Held, by Lord Coleridge, C. J., Field, Lopes, Stephen, and Williams, JJ., that all three had been guilty of a breach of duty in firing at the spot in question without taking proper precautions to prevent injury to others, and were rightly convicted of manslaughter. (zz)

On a trial for manslaughter of a person who was burnt in a ship, where the prisoner had struck a light with a match, and lighted a candle, in a part of the ship forbidden by the ship's regulations, and had thrown down the match before it was extinguished, but a period of six hours elapsed without sign of fire by sight or smell; Bramwell, B., thought the evidence too slight to justify a conviction. (a)

Where an indictment for manslaughter stated that the prisoner did compel and force A. B. and C. D. to leave' a windlass, by means of which the death was occasioned, and it appeared that the prisoner, who was working one handle of the windlass, went away, and A. B. and C. D., then finding they were not strong enough to hold the windlass without him, let go their hold, by reason of which the deceased was killed, it was held that the words 'did compel and force' must be taken to mean personal affirmative force applied to A. B. and C. D., and therefore the prisoner must be acquitted. (b) So where an indictment alleged that the prisoners did propel and force' a vessel against a skiff, Parke, B., said, 'The allegation in the inquisition is, that the defendants forced and propelled the vessel against the skiff: evidence against those who gave the immediate orders will be necessary to sustain this allegation.' (c)

6

A person indicted for murder may be convicted of manslaughter, and punished accordingly, although such indictment do not conclude contra formam statuti. (d) 1

1

If a person be indicted as accessory after the fact to a murder, he may be convicted as accessory after the fact to manslaughter, if the

offence of the principal turns out to be manslaughter. (f) Either assisting the party to conceal the death, or in any way enabling him to evade the pursuit of justice, will render a party, who knows the offence to have been committed, an accessory after the fact. (ƒ)

By the 24 & 25 Vict. c. 100, s. 5, Whosoever shall be convicted of manslaughter shall be liable, [at the discretion of the Court,] (g) to be kept in penal servitude for life, [or for any term not less than three years, or to be imprisoned for any term not exceeding two years, with or without hard labour,] or to pay such fine as the Court shall award, in addition to or without any such other discretionary punishment as aforesaid.' (h)

(f) R. v. Greenacre, 8 C. & P. 35, Tindal, C. J., Coleridge and Coltman, JJ.

(g) The words in brackets have been repealed by the Statute Law Revision Act, 1892, as they are rendered unnecessary by the Penal Servitude Act, 1891 (54 & 55 Vict. c. 69, see vol. i. p. 79) which provides that where a Court has power to award a sentence of penal servitude, the sentence may be, at the discretion of the Court, for any period not less than three years, and not exceeding either five years or any greater period authorised

by the enactment, or the Court may award imprisonment for any term not exceeding two years, with or without hard labour. The punishment imposed by the various sections of 24 & 25 Vict. c. 100, remains the same, therefore, although the actual words are in each case repealed. The power of adding solitary confinement has, however, been repealed by the Statute Law Revision Acts, and has not been reenacted.

(h) This clause is taken from the 9 Geo. 4, c. 31, s. 9, and 10 Geo. 4, c. 34, s. 12 (I).

CHAPTER THE THIRD,

OF EXCUSABLE AND JUSTIFIABLE HOMICIDE.

WE may now properly proceed to treat of such homicide as, not amounting even to manslaughter, must be considered either as excusable or justifiable; excusable when the person, by whom it is committed, is not altogether free from blame; and justifiable when no blame whatever is attached to the party killing.

Excusable homicide is of two sorts: either per infortunium, by misadventure; or se et sua defendendo, upon a principle of selfdefence. The term excusable homicide imports some fault in the party by whom it has been committed; but of a nature so trivial that the law excuses such homicide from the guilty of felony, though in strictness it deems it to be deserving of some degree of punishment. It appears to be the better opinion, that the punishment inflicted for this offence was never greater than a forfeiture of the goods and chattels of the delinquent, or a portion of them: (a) and, from as early a time as our records will reach, a pardon and writ of restitution of the goods and chattels have been granted as a matter of right, upon payment of the expenses of suing them out. At the present time, in order to prevent this expense, it is usual for the judges to permit or direct a general verdict of acquittal in cases where the death has notoriously happened by misadventure, or in self-defence. (b) There might, however, formerly have been cases. so bordering upon, and not easily distinguishable from, manslaughter, that the offender might have been put to sue out his pardon, according to the provisions of the statute of Gloucester, 6 Edw. 1, c. 9; (c) but that statute was repealed by the 9 Geo. 4, c. 31; and the 24 & 25 Vict. c. 100, s. 7, enacts, that 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.'

Justifiable homicide is of several kinds: as it may be occasioned by the performance of acts of unavoidable necessity, where no shadow of blame can be attached to the party killing; or by acts done by the permission of the law, either for the advancement of public justice, or for the prevention of some atrocious crime.

(a) 4 Blac. Com. 188. The penalty for this offence is said by Sir Edward Coke to have been anciently no less than death, 2 Inst. 148, 315; but this is denied by other

writers, 1 Hale, P. C. c. 425. Hawk. P. C. c. 29, s. 20, et seq. Fost. 282.

(b) 4 Blac. Com. 188. Fost. 288. 1 East, P. C. c. 5, s. 8, p. 222. (c) Fost. 289.

SEC. I.

Of Excusable Homicide by Misadventure.

Homicide by misadventure is where one doing a lawful act, without any intention of bodily harm, and using proper precaution to prevent danger, unfortunately happens to kill another person. (d) The act must be lawful; for if it be unlawful, the homicide will amount to murder, or manslaughter, as has been already shewn: (e) and it must not be done with intention of great bodily harm; for then the legality of the act, considered abstractedly, would be no more than a mere cloak, or pretence, and consequently would avail nothing. The act must also be done in a proper manner, and with due caution to prevent danger. (f)

Thus, if people, following their common occupations, use due caution to prevent danger, and nevertheless happen, unfortunately, to kill any one, such killing will be homicide by misadventure. (g) See ante, p. 139. Thus where a person, driving a cart or other carriage, happens to drive over another and kill him, 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 the driver will be excused. (h) In case where a person was riding a horse, and the horse, being whipped by some other person, sprang out of the road, and ran over a child and killed it, this was held to be misadventure only in the rider, though manslaughter in the person who whipped the horse. (i)

It has been shewn, that where parents, masters, and other persons, having authority in foro domestico, give correction to those under their care, and such correction exceeds the bounds of due moderation, so that death ensues, the offence will be either murder or manslaughter, according to the circumstances: (5) but if the correction be reasonable and moderate, and by the struggling of the party corrected, or by some other misfortune, death ensue, the killing will be only misadventure. (k)

As to its being excusable homicide when death accidentally happens to the person killed whilst engaged in a lawful sport, see ante, p. 180.