causing a person to be drowned, by running down a boat, the prosecutor must shew some act done by the captain; and a mere omission on his part, in not doing the whole of his duty, is not sufficient: but if there be sufficient light, and the captain of a steamer is either at the helm, or in a situation to be giving the command, and does that which causes the injury, he is guilty of manslaughter. Upon an indictment against the captain of a steamer for manslaughter in causing a death by running down a boat, the counsel for the prosecution, in opening the case, said, if a party engaged in a lawful occupation is guilty of wilful misconduct, or of gross negligence, it is manslaughter. Park, J. A. J., " You must show some act done; you rather state it as if a mere omission on the part of the prisoner in not doing the whole of his duty would be enough; and we are of opinion that is not sufficient. I have no hesitation in saying, that if there was sufficient light, and the captain himself was at the helm, or in a situation to be giving the command, and did that which caused the accident, he would be guilty of manslaughter." Alderson, B., "There must be some personal act. In the case of a coach, the coachman is driving animals, and in the case of the captain, he is governing reasonable beings." It appeared in evidence that the deceased and two other persons were in a small boat going down the river, when a small steamer used for towing, of which the prisoner was master, met them, and, notwithstanding their shouting, struck the boat, and nearly cut it in two, in consequence of which the deceased was drowned; the waterman proved that he and the captain were on the starboard side of the windlass, and two other men were on the larboard side; that the captain did not leave his place once, and the mate was at the helm, and remained there till after the accident; that the engine was all open, and worked on deck, and made a great noise; that he did not hear the shouting in time to do anything to avert the accident. Park, J. A. J., "This case has come to its end; at the outside it can only be considered as one of those accidents which will happen in a river navigation; it appears that they kept a proper look out; there were several persons on deck at the time." (h) 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, of omission." Ryland, "The steering in a particular and improper direction, in consequence of not keeping a good look-out, is an act of commission." Alderson, B., 66 It may be; but it is very difficult to make felony out of a negligent act of omission, unless the party is bound by law to do the act omitted, as providing food for a person (h) Rex v. Green, 7 C. & P. 156. sion, by a cap A mere omis. tain, in not doing the 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. (i) Indictment Punishment of SECT. 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. (j) The 9 Geo. 4, c. 31, s. 9, enacts, "that every person convicted manslaughter. 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 as the Court shall award.” By sec. 31, "Every accessory after the fact to any felony punishable under this act (except murder) shall be liable to be imprisoned, with or without hard labour, in the common gaol or house of correction, for any term not exceeding two years. Where a party is charged with manslaughter in causing the death of a person by negligence in the discharge of his duty, it must be proved that the negligent act was that of the party charged. 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 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. (k) 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 (i) It was observed upon a former statute, 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 carriages 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, and see the provisions as to carrying too many passengers, in the 2 & 3 Wm. 4, c. 120, s. 34. (j) Ante, p. 564. (k) Hilton's case, Lew. 214, Alderson, B. See Rex v. Waters, 6 C. & P. 328, ante, p. 489. 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. (1) 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." (m) It has been held, upon two cases reserved, that a person indicted for murder may be convicted of manslaughter, and punished accordingly, although such indictment do not conclude contra formam statuti. (n) And so on an indictment for manslaughter not concluding contra formam statuti, the punishment provided by the 9 Geo. 4, c. 31, s. 9, may be awarded, for such conclusion is only necessary where a statute creates the offence, not where it merely regulates the punishment. (o) If a person be indicted as accessory after the fact to a murder, he Accessories, may be convicted as accessory after the fact to manslaughter, if the offence of the principal turns out to be manslaughter. (p) 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. (q) Upon an indictment for manslaughter the jury may find the prisoner guilty of an assault under the 1 Vict. c. 85, s. 11, and he may be sentenced to three years imprisonment, with or without hard labour, and solitary confinement, not exceeding one month at any one time, and not exceeding three months in any one year in addition to such imprisonment, or such imprisonment with hard labour, by virtue of sec. 8 & 11 of that statute. (r) (1) Rex v. Lloyd, 1 C. & P. 301, Garrow, B. (m) Reg. v. Taylor, 9 C. & P. 672. See the case, ante, p. 652. (n) Rex v. Chatburn, R. & M. C. C. R. 403. Rex v. Rushworth, R. & M. C. C. R. 404. (0) Rex v. Berry, 1 Moo. & Rob. 463, Parke, B. (p) Rex v. Greenacre, 8 C. & P. 35, (r) Reg. v. Pool, 9 C. & P. 728, 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 self-defence. 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 guilt 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; (c) but that statute was repealed by the 9 Geo. 4, c. 31; sec. 10, of which 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." (d) 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. 1 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. The 9 Geo. 4, c. 31, and the 10 Geo. 4, c. 34, the Irish Act, repeal so much of the 6 Ed. 1, c. 9, "as relates to any person killing another by misfortune, or in his own defence, or in any other manner, without felony." (d) The 10 Geo. 4, c. 34, s. 13, is, word for word, the same as this section. SECT. 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. (e) The act must be lawful; for if it be unlawful, the homicide will amount to murder, or manslaughter, as has been already shewn: (f) 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. (g) Persons doing a lawful act and happening to kill. tions. Thus, if people, following their common occupations, use due Persons followcaution to prevent danger, and nevertheless happen, unfortunately, ing their com to kill any one, such killing will be homicide by misadventure. As mon occupaif workmen throw stones, rubbish, or other things, from a house, in the ordinary course of their business, by which a person underneath happens to be killed, this will be misadventure only, if it were done in a retired place, where there was no probability of persons passing by, and none had been seen about the spot before, or if timely and proper warning were given (h) to such as might be below. (i) And the party will not be more criminal who is working with a hatchet, when the head of it flies off, and kills a by-stander. (k) So, 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. (1) A. was driving a cart with four horses in the highway at Whitechapel, he being in the cart; and the horses being upon a trot, 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 Lovell, 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. (m) And, upon the same ground of no want of due care being imputable to the party, in a case where a person was riding a horse, and the horse, being whipt 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. (n) As the degree of caution to be employed depends upon the pro- Persons using bability of danger, it follows that persons using articles or instru- dangerous (e) 1 East, P. C. c. 5, s. 8, p. 221, and s. 36, p. 260, 261. Fost. 258. 1 Hawk. P. C. c. 29, s. 1. (f) Ante, p. 538, et seq., p. 636, et seq. (i) 1 Hale, 472, 475. c. 29, s. 4. Fost. 262. VOL. I. 1 Hawk. P. C. 1 East, P. C. UU (n) 1 Hawk. P. C. c. 29, s. 3. |