Other acts are not unlawful within the meaning of this Article, though they may involve private immorality.

Illustrations.

1

(1.) 1 A, a schoolmaster, corrects a scholar in a manner not intended or likely to injure him, using due care.

The scholar

(2.) 2 A turns B, a trespasser, out of his house, using no more force than is necessary for that purpose. B resists, but without striking A. They fall in the struggle and B is killed. Such a death is accidental.

(3.) 3 A, a workman, throws snow from a roof, giving proper warning. A passenger is nevertheless killed. Such a death is

accidental.

(4.) 3 A takes up a gun, not knowing whether it is loaded or not, points it in sport at B and pulls the trigger. B is shot dead. Such a death is not accidental. If A had had reason to believe that the gun was not loaded, the death would have been accidental, although he had not used every possible precaution to ascertain whether the gun was loaded or not.

4

(5.) A seduces B, who dies in her confinement.

The seduction though an immoral, is not an unlawful act, within the meaning of this Article.

1 1 Hale, 473. The same law of course applies to all cases of lawful correction. It would also, I think, apply to Illustration (2), and to all other cases in which force is lawfully applied by one person to the person of another. It is, of course, impossible in a work like this to attempt an enumeration of those cases.

2 Founded on Foster, 262.

3 Founded on Foster, 263. In one of the cases referred to in Foster, the prisoner was convicted of manslaughter, although he had tried the pistol with the rammer. Foster, with reason, thinks this an extremely hard case. Dixon v. Bell, 1816, 5 M. & S. 198, may be taken as illustrating the line between negligence, for which a man is civilly, and negligence for which he is criminally responsible. A in this case had caused the priming to be taken from a loaded gun, and left it in a place where a little girl playing with it shot a little boy. The boy recovered damages against A, but if he had died I do not think A would have been guilty of felony. The case is just on the line.

* No one ever suggested that this would be manslaughter, but it exactly marks the distinction between illegality and immorality.

CHAPTER XXII

OF CULPABLE NEGLIGENCE AND OF DUTIES TENDING TO THE PRESERVATION OF LIFE

ARTICLE 232.

DEATH OR BODILY INJURY CAUSED BY OMISSION TO

DISCHARGE A LEGAL DUTY.

1 EVERY one upon whom the law imposes any duty, or who has by contract or by any wrongful act taken upon himself any duty, tending to the preservation of life, and who neglects to perform that duty, and thereby causes the death of any person, commits the same offence as if he had caused the same effect by an act done in the state of mind, as to intent or otherwise, which accompanied the neglect of duty.

Provided, that no one is deemed to have committed a crime only because he has caused the death of or bodily injury to another by negligence which is not culpable. (What amount of negligence can be called culpable is a question of degree for the jury, depending on the circumstances of each particular case. An intentional omission to discharge legal duty always constitutes culpable negligence.

Provided, also, that no one is deemed to have committed

1 The first part of this Article is illustrated by all the Illustrations of the other Articles in the chapter. The whole subject is treated at great length in Wharton on Homicide, chapter iv. s. 72, p. 166. Dr. Wharton classifies negligent homicide under the following heads (generalities apart) : 1. Use of dangerous things. 6. The care of children, &c. 2. Dropping things on roads. 7. The care of medical men.

3. Management of railroads and steamers. 8. Dangerous machinery. 4. Riding and driving. 9. Athletic sports. 10. Conclusion.

5. The care of dangerous animals.

I have carefully gone through the whole chapter, and I think the whole of it is only a set of illustrations of the principles stated in this and in the concluding Articles of the preceding chapter. It should be observed that the word "negligence "excludes intention. The very slightest omission of caution in order to cause death, would constitute malice aforethought, if death were caused thereby.

2 Draft Code, s. 164.

a crime by reason of the negligence of any servant or agent employed by him.

1 Provided also that it must be shown that death not only follows but is also caused by the neglect of duty.

Illustrations.

2

(1.) It is A's duty, by contract, as the banksman of a colliery shaft, to put a stage on the mouth of the shaft in order to prevent loaded trucks from falling down it. A omits to do so either carelessly or intentionally. A truck falls down the shaft and kills B. A is in the same position as if he had pushed the truck down the shaft carelessly or intentionally.

3

(2.) A slings a cask in a manner which is reasonably sufficient for public safety. The cask slips and kills B. A is not criminally responsible merely because he omitted to take further precautions.

(3.) A leaves an unloaded gun leaning against a wall in a friend's room. In his absence B loads it and leaves it loaded where he found it. A points it in sport at C and pulls the trigger. The gun goes off and kills C. A is not criminally responsible merely because he did not examine the gun before he pulled the trigger.

5

(4.) 3 A, the captain of a steamer, sets B to keep a look-out. B fails to do so, whereby the steamer runs down a smack and drowns C. A is not criminally responsible for B's omission to look out.

6

(5.) A, acting as a surgeon, physician, or midwife, causes the death of a patient by improper treatment, arising from ignorance or inattention. A is not criminally responsible, unless his ignorance, or inattention, or rashness is of such a nature that the jury regard it as culpable under all the circumstances of the case. It makes no difference whether A is or is not a properly qualified practitioner.

(6.) A, by his servants, makes fireworks in his house con

3 Rigmaiden's Case, 1833, 1 Lew. 180. Probably in such a case there would be a civil liability; see Byrne v. Booadle, 1863, 2 H. & C. 722. 4 Foster, 265.

5 R. v. Allen, 1835, 7 C. & P. 153; R. v. Green, 1835, 7 C. & P. 156. 6 R. v. Van Butchell, 1829, 3 C. & P. 629; R. v. St. John Long (1st case), 1830, 4 C. & P. 398; (2nd case), 1831, 4 C. & P. 423; R. v. Williamson, 1807, 3 C. & P. 635, n.

7 R. v. Bennett, 1858, Bell C. C. 1.

trary to the provisions of an Act of Parliament. The servants by culpable negligence cause an explosion which kills B. A is not criminally responsible for B's death.

(7.) Being under a legal duty to supply medical aid for his son B, who has confluent small pox, refuses to do so from religious motives, and B dies. It must be shown that B's life would probably have been prolonged if medical aid had been provided, before A can be convicted of manslaughter.

ARTICLE 233.

CAUSING DEATH BY OMISSIONS OTHER THAN THOSE
MENTIONED IN ARTICLE 232.

2 It is not a crime to cause death or bodily injury, even intentionally, by an omission other than those referred to in the last Article.

Illustration.

(1.) A sees B drowning and is able to save him by holding out his hand. A abstains from doing so in order that B may drowned, and B is drowned. A has committed no offence.

ARTICLE 234.

DUTY TO PROVIDE NECESSARIES OF LIFE.

3 Every person under a legal duty, whether by contract or by law, or by the act of taking charge, wrongfully or otherwise, of another person, to provide the necessaries of life for such other person, is criminally responsible if death is caused by the neglect of that duty, and if the person to whom the duty is owing, is, from age, health, insanity, or any other cause, unable to withdraw himself from the control of the person from whom it is due, but not otherwise.

1 R. v. Morby, 1882, 8 Q. B. D. 571.

2 R. v. Smith, 1826, 2 C. & P. 449. This subject is discussed in a striking manner by Lord Macaulay in his notes on the Indian Penal Code; see, too, Wharton on Homicide, § 72.

3 See cases in Illustrations. Draft Code, ss. 159-61.

Some of the duties of masters towards apprentices and of parents towards children are defined in Articles 260 and 283-286.

Illustrations.

(1.) A neglects to provide proper food and lodging for her servant, B (who is of weak mind, but twenty-three years old), B's life is shortened by such neglect. A is criminally responsible if B was in such an enfeebled state of body and mind as to be helpless and unable to take care of herself, or was under the dominion and restraint of A, and unable to withdraw herself from A's control; otherwise not.

(2.) 2 B, a girl of eighteen, comes from service to the house of her mother, A, and is there confined of a bastard child. A does not provide a midwife, in consequence of which B dies. not criminally responsible for this omission.

A is

(3.) 3 A persuades B, an aged and infirm woman, to live in his house, and causes her death by neglecting to supply her properly with food and fire, she being incapable of providing for herself from age and infirmity. A is criminally responsible for his neglect.

ARTICLE 235.

DELEGATION OF DUTY DEFINED IN ARTICLE 234.

If a person delegates the discharge of the duty mentioned in the last Article to his wife or to a servant, and supplies such wife or servant with the means of discharging the duties so delegated, it is the legal duty of such wife or servant to discharge such duties, and it is the legal duty of the man who delegates them to use ordinary care to see that they are properly discharged.

Illustration.

4 A, the sister of B's deceased wife, acts as B's housekeeper, and neglects to give to B's infant child food duly provided by B,

1 R. v. Charlotte Smith, 1865, L. & C. 607; and see R. v. Instan, infra. 2 R. v. Shepherd, 1862, L. & C. 147.

3 R. v. Marriott, 1838, 8 C. & P. 425; R. v. Instan, 1893, 1 Q. B.

4 R. v. Bubb, and R. v. Hook, 1851, 4 Cox, C. C. 455, 1 Russ. Cr. 681, 2.