to kill, it is manslaughter only. As, where a man, being grossly insulted by a woman, threw a broomstaff at her from a distance, and killed her, (1 Hale, 455), and see other cases. (Hazel's case, 1 Leach, 368; Turner's case, 1 Id. Raym. 143; Wigg's case, 1 Leach, 378). But where the instrument used is so improper as manifestly to endanger life, the intention of the party to kill will be implied from that circumstance. (Rex v. Howlett, 7 C. & P. 274; Macklin's case, 2 Lew. 225).

3. Manslaughter.

It is a general rule that, where persons have authority to arrest or Resisting officers imprison, and using the proper means for that purpose, are resisted in and others. so doing, and killed, it will be murder in all who take part in such resistance. (1 Russ. on Cr. 532, 592). But three things are to be attended to in matters of this kind: the legality of the deceased's authority, the legality of the manner in which he executed it, and the defendant's knowledge of that authority; for if an officer be killed in attempting to execute a writ or warrant invalid on the face of it, or against a wrong person, or out of the district in which alone it could legally be executed; or if a private person interfere and act in a case where he has no authority by law to do so; or if the defendant had no knowledge of the officer's business, or of the intention with which a private person interferes, and the officer or private person be resisted or killed; the killing will be manslaughter only. (Jerv. Arch. Cr. Law, 9th ed., 429). In all of these cases the officer or private person has placed himself beyond the protection of the law, and the attempt to arrest is looked upon, as in ordinary cases, as such a provocation as to reduce the offence of killing to manslaughter. For various cases concerning the authority of officers and others, see 1 Russ. on Crimes, 492; Jerv. Arch. Cr. Law. 9th ed., 429.

In all of these cases the officer or private person has placed himself beyond the protection of the law, and the attempt to arrest is looked upon, as in ordinary cases, as such a provocation as to reduce the offence of killing to manslaughter. For various cases concerning the authority of officers and others, see 1 Russ. on Crimes, 592; Jerv. Arch. Cr. Law, (9th ed., 429, and post, 812).

Manslaughter has been already defined as an unlawful killing without Unlawful or malice-either voluntarily, upon a sudden heat, or involuntarily, but wanton acts. in the commission of some unlawful act. Of this latter class are the

following cases:

If A. shoot at the poultry of B., wantonly, and without any felonious intent, and accidentally kill a man, the offence will be manslaughter. (1 Hale, 475).

So, if a man shoot at deer in another's park, without leave, though done in sport, and a bystander be killed, such killing is manslaughter. (Ib.) Where a man was in possession, under the sheriff, and one of the prisoners, of whose goods he was in possession, assisted by the other prisoner, plied the man with liquor, themselves drinking freely also, and when he was very drunk, put him into a cabriolet, and caused him to be driven about the streets; and about two hours after he had been put into the cabriolet he was found dead. It was held, that if the prisoners, when the deceased was drunk, put him into the cabriolet, and drove him about, in order to keep him out of possession, and by so doing accelerated his death, it would be manslaughter. (Reg. v. Packard, 1 Car. & M 236.)

A tilt or tournament, the martial diversion of our ancestors, was, Prize-fighting, however, an unlawful act; and so are boxing and sword-playing, the amicable contests. succeeding amusements of their posterity; (see R. v. Perkins, 4 C. & P. 537; R. v. Hargrace, 5 C. & P. 170; R. v. Murphy, 6 C. & P. 103); therefore, if a knight in the former case, or a gladiator in the latter, be killed, such killing is manslaughter. (4 Bl. Com. 183). But, it is said, that if the king command or permit such diversion, the act being in that case lawful, the killing would be misadventure only. (Fost. 259; sed vide Hale, 472). But all struggles in anger, whether by fighting,

3. Manslaughter.

Wanton and heed-
Jess acts.

wrestling, or in any other mode, are unlawful, and death occasioned by them is manslaughter at the least. (Reg. v. Canniff, 9 C. & P. 359), And all persons present, assisting by their presence, at a prize fight, are guilty of manslaughter, if one of the combatants be killed. (Re v. Murphy, 6 C. & P. 103).

By unlawful acts must be understood also all wanton and mischievous acts which the party who commits them can neither justify nor excuse, as well as acts heedlessly and incautiously done, from which death re sults, though they may have been unaccompanied by any intent to de injury.

Thus, if a person, breaking a horse, ride him amongst a crowd and death ensue from the viciousness of the animal, and it appear to have been heedlessly done and not with intent to do mischief, it is manslaughter. (1 East, P. C. c. 5, s. 18).

So if a man, knowing that people are passing along the streets, throw a stone or shoot an arrow over a house and a person be thereby killed. (1 Hale, 475).

So if workmen throwing stones and rubbish from a house, do not take due precaution by looking out or giving warning, and any one be killed, it is manslaughter. (Ante, 798).

But in all these cases if a general malignity of heart is observable, and an intention to do mischief, be it to whomsoever it may, the killing will be murder. (1 Hawk. P. C. c. 31, s. 68).

Two persons were riding furiously on horseback along the road; one passed the deceased, who was also on horseback, but the other rode against him and both fell, the deceased being killed by the concussion: Patteson, J., directed an acquittal of the first who passed; and as to the second, told the jury to find him guilty of manslaughter, if they though that by furious riding he ran against the deceased, but to acquit him if they thought that the deceased's horse was unruly and ran against the horse of the prisoner. (R. v. Mastin, 6 C. & P. 396).

If the driver of a carriage race with another carriage, and urge his horses to so rapid a pace that he cannot control them, it is manslaughter, if in consequence the carriage upset and a passenger be killed. (R. v. Timmins, 7 C. & P. 499).

A lad out of frolic took the trap-stick out of the front part of a cart, in consequence of which it upset, and the carman, who was loading sacks therein, was killed; and this was held to be manslaughter. (R.. Sin2 livan, 7 C. & P. 641).

So where the prisoners had thrown stones down a mine by which the scaffolding was broke, and in consequence a corf in which deceased was descending was upset, and he was killed; this was manslaughter. (F ton's case, 1 Lewin, 179).

A cannon, returned to an ironfounder burst, was sent back by him in so imperfect a state, that, on being fired, it burst again and killed sperson, and it was held to be manslaughter. (R. v. Carr, 8 C. & P. 16). If several persons meet together for the purpose of prosecuting some to do an unlawful unlawful design, and in furtherance of that design a man be killed, the guilt of the killing will attach to all present, whether it be murder or manslaughter.

Where several join

act.

Thus if a body of persons, resolving to resist all opposers in the commission of any breach of the peace, happen to kill any one in the pre cution of this unlawful purpose, they will be guilty of murder. (Fot 261; 1 Russ. on Crimes, 640). The act, however, must be in furtherance of the common intent; for, if several were to intend and agree together only to frighten a constable and one were to shoot him through the head, such an act would affect the individual only by whom it was done. (Macklin's case, 2 Lew. 225).

And even an act lawful in itself may be performed in a manner so criminal and improper as to make the party performing it and causing the death of a person guilty of manslaughter, and, according to the cir cumstances, of murder. (1 Russ. on Crimes, 641).

As if a medical man, though lawfully qualified to practise as such, cause the death of a person by the grossly unskilful, or the grossly incautious use of a dangerous instrument, he is guilty of manslaughter. (Reg. v. Spilling, 2 M. & Rob. 107).

Where the defendant, not a regular physician, killed a woman by an application, and the jury found that he entertained a criminal disregard of human life, he was convicted of and punished for manslaughter. (See R. v. Long, 4 C. & P. 423; R. v. Senior, R. & M. C. C. 346, ante, 799). In R. v. Webb, (1 M. & Rob. 410), Lord Lyndhurst laid down the following rule:"In these cases there is no difference between a licensed physician or surgeon and a person acting as physician or surgeon without license. In either case, if a party having a competent degree of skill and knowledge makes an accidental mistake in his treatment of a patient, through which mistake death ensues, he is not thereby guilty of manslaughter; but if, where proper medical assistance can be had, a person totally ignorant of the science of medicine takes on himself to administer a violent and dangerous remedy to one labouring under disease, and death ensues in consequence of that dangerous remedy having been so administered, then he is guilty of manslaughter. If I entertained the least doubt of this position, I might fortify it by referring to the opinion of Lord Ellenborough in R. v. Williamson. I shall leave it to the jury to say-first, whether death was occasioned or accelerated by the medicines administered; and if they think it was, then I shall tell them, secondly, that the prisoner is guilty of manslaughter if they think that in so administering the medicine he acted with a criminal intention or from very gross negligence."

In the case of R. v. Nancy Simpson, (reported in Willcock on the Laws relating to the Medical Profession, Append. 227), the prisoner was indicted for manslaughter. It appeared that the deceased, a sailor, had been discharged from the Liverpool Infirmary as cured after undergoing salivation, and that he was recommended by another patient to go to the prisoner for an emetic, to get the mercury out of his bones. The prisoner was an old woman, who resided at Liverpool, and occasionally dealt in medicines; she gave him a solution of white vitriol, or corrosive sublimate, one dose of which caused his death; and she said she had received the mixture from a person who came from Ireland, and had gone back again. And in that case Mr. Justice Bayley said, “I take it to be quite clear that if a person not of medical education, in a case where professional aid might be obtained, undertakes to administer medicine which may have a dangerous effect, and thereby occasions death, such person is guilty of manslaughter. He may have no evil intention, and may have a good one, but he has no right to hazard the consequence in a case where medical assistance may be obtained. If he does so, it is at his peril. It is immaterial whether the person administering the medicine prepares it or gets it from another." The prisoner was convicted. If a chemist's apprentice be guilty of negligence in delivering medicine and death ensue in consequence, he is guilty of manslaughter. (Tessymond's s case, 1 Lew. 169).

3. Manslaughter.

Improper medical treatment.

Lastly, there are certain natural and moral duties towards others, Neglect of natural which if a person neglect, without malicious intention, and death

ensue,

he will be guilty of manslaughter. Of this nature is the duty of a parent to supply a child with proper food.

duties.

When a child is very young, and not weaned, the mother is crimi- Children. nally responsible if the death arose from her not suckling it when she was capable of doing so. (R. v. Edwards, 8 C. & P. 611). But if the child be older, the omission to provide food is the omission of the husband, and the crime of the wife can only be the omitting to deliver the food to the child after the husband has provided it. (R. v. Saunders, 7 C. & P. 277).

Since the passing of the New Poor Law Act, 4 & 5 Will. IV. c. 76, if Bastards. a bastard die through the omission to supply it with food, the omission

3. Manslaughter.

Apprentices and

servants.

Infirm persons.

Accessaries.

Indictment.

Evidence, &c.

Trial of.

Punishment.

Forfeiture.

is the omission of the man who has married the mother. (Пb.; Russ. oN Cr. 491).

A master is not bound by the common law to find medical advice for a servant; but the case is different with respect to an apprentice, for a master is bound during the illness of his apprentice to find him with proper medicines, and if he die for want of them, it is manslaughter in the master. (R. v. Smith, 8 C. & P. 153). And this is the case, even though he be bound by an invalid deed of apprenticeship. (R. v. Da Per Patteson, J., Hereford Sum. Ass., 1831).

Where a person undertakes to provide necessaries for a person who is so aged and infirm, that he is incapable of doing it for himself, and through his neglect to perform his undertaking death ensues, he is eriminally responsible. On an indictment for the murder of an aged and infirm woman by confining her against her will, and not providing her with meat, drink, clothing, firing, medicines, and other necessaries, and not allowing her the enjoyment of the open air, in breach of an alleged duty, if the jury think that the prisoner was guilty of wilful neglect, so gross and wilful that they are satisfied he must have contemplated her death, he will be guilty of murder; but if they only think that he was so careless that her death was occasioned by his negligence, though he did not contemplate it, he will be guilty of manslaughter. (R. v. Marriott, 8 Car. & P. 425).

There can be no accessaries to this offence before the fact, because it must be done without premeditation. (1 Hawk. c. 30, s. 2; 1 East's P. C. 218. See "Accessary," Vol. I.) But there may be accessaries after the fact. (3 Inst. 55). And if A. be indicted for murder, and C. for harbouring and assisting A., well-knowing that he had committed the murder, and the offence of A. be reduced to manslaughter, C. may notwithstanding be found guilty as accessary after the fact. (Per v. Greenacre, 8 Car. & P. 35).

The form of an indictment for manslaughter is, in general, the same as an indictment for murder, omitting the words "of his malice afore thought" throughout, and the word "murder" in the latter part of it.

The evidence is also the same, with this exception, that, in murder, the prosecutor need only prove the homicide, without going into evidence of the circumstances under which it was committed; in manslaughter, he must give evidence of all the facts of the case, so as to prove the homicide to be manslaughter.

If, on the trial of an indictment for murder, the prisoner appear to the jury to be guilty of manslaughter, they may find him so guilty. (Haie, 302).

So, if acquitted of the murder or of manslaughter, he may be convicted of an assault, under 7 Will. IV. & 1 Vict. c. 85, s. 11. Ante, “Assault,”

Vol. I.

The offence is not triable at any quarter sessions, (5 & 6 Vict. c.38, s.1), As to the trial, &c. of manslaughter abroad, &c., see post, 817. By 9 Geo. IV. c. 31, s. 9, "every person convicted of manslaughter shall be liable, at the discretion of the court, to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned, with or without hard labour, in the common gaol or house of correction, for any term not exceeding four years, or to pay such fine s the court shall award." See further, tits. "Hard Labour,” “Imprisonment,' » «Transportation."

As to the punishment of accessaries after the fact, see the 31st section of the 9 Geo. IV. c. 31, tit. "Accessaries," Vol. I.

Sect. 10 provides and 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." But on con viction for manslaughter the offender shall forfeit as in other felonies. (2 Hale, 344).

IV. Murder.

4. Murder.

Herein

1. Of the Offence itself, p. 809.

2. The Indictment, p. 814.

3. The Evidence, p. 816.

4. The Place of Trial, p. 817.

5. The Punishment, Sentence, Execution, and Treatment of Mur

derers, p. 818.

6. The Escape of Murderers, p. 820.

1. THE OFFENCE OF MURDER.

Division of subject.

Murder is, when a man of sound memory, and of the age of discretion, Murder, what. unlawfully killeth any person under the Queen's peace, with malice aforethought, either expressed by the party, or implied by law, so that the party wounded or hurt die of the wound or hurt, within a year and a day. (3 Inst. 47).

Offender must be

&c.

The Offender must be of sound Memory, &c.]-Murder, therefore, cannot be committed by an idiot, lunatic, or infant, unless indeed he shew of sound memory, a consciousness of doing wrong, and of course a discretion, or discernment between good and evil. (4 Bl. Com. 195; 1 Hawk. c. 1).—But if any person procure an idiot, &c. to murder another, the procurer is guilty of the murder. (1 Hawk. c. 31, s. 7). Or if he aid and abet him knowing that he entertains mischievous designs. (Reg. v. Tyler, 8 C. & P. 616). See ante " Children," Vol. I., and post "Lunatics."

Must be by an unlawful Killing, not excusable or justifiable.]-Taking The killing must away a man's life by perjury is not, it seems, in law, murder; (see R. be unlawful, &c. v. Macdaniel & al. Fost. 132; and see 4 Bl. Com. 196, n.): although, in

foro conscientiæ, it is as much so as killing with a sword.

If a man, however, do any other act, of which the probable consequence may be, and eventually is, death, such killing may be murder, although no stroke were struck by himself: as was the case of the unnatural son who exposed his sick father to the air, against his will, by reason whereof he died; (1 Hawk. c. 31, s. 5); and of the harlot, who laid her child in an orchard, where a kite struck it and killed it. (1 Hale, 432). So, if a child be left in an unfrequented place, where it is not likely to be found. (R. v. Walters, 1 Russ. on Crimes, 488). So, where an apprentice died from harsh treatment, and want of care upon the part of his master, whilst he was labouring under disease; this was holden to be murder in the master. (R. v. Squire & ux. 1 Russ. 490; and see ante, Vol. I. p. 195; and R. v. Marriott, 8 C. & P. 425, ante, 808). And forcing a person to do an act which is likely to produce death, and which does produce it, is murder; and threats or well-grounded fears inspired may constitute such force; as, if a person being attacked should, from an apprehension of immediate violence-an apprehension which must be well-grounded and justified by the circumstances-throw himself for escape into a river, and be drowned, the person attacking him is guilty of murder. (R. v. Pitts, 1 Car. & M. 284).

But if a man, by harsh and unkind usage, put another into such a passion of grief or fear, that the party either die suddenly, or contract some disease whereof he dies, though this may be murder or manslaughter in the sight of God, yet, in a human judicature, it cannot come under the judgment of felony, because no external act of violence was offered whereof the law can take notice. (1 Hale, 429; 1 East's P. C. 225).