and so causes its death. A is criminally responsible for this neglect. If B knew of A's neglect, and permitted her to continue it, he is also responsible, but not otherwise.

ARTICLE 236.

WHEN DIRECT PERFORMANCE OF DUTY IMPOSSIBLE.

1 It is the legal duty of a person who is unable to provide for any person necessaries which he is legally bound to provide for him to make application to the proper authorities for parochial relief in cases in which such authorities are legally bound to furnish such relief.

ARTICLE 237.

DUTY OF CARE IN DOING DANGEROUS ACTS.

2 It is the legal duty of every one who does any act which without ordinary precautions is, or may be, dangerous to human life, to employ those precautions in doing it.

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Illustrations.

(1.) It is the duty of persons having charge of dangerous things, animals or machinery, to take care of them.

(2.) 3 Workmen are employed to throw snow off the roof of a house. It is their duty to see whether people are passing, and to give warning before they throw it down.

(3.) 3 It is the duty of people riding, driving, or sailing, to be careful.

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(4.) A turns out a vicious horse to graze on a common on

1 R. v. Mabbett, 1851, 5 Cox, C. C. 339; 1 Russ. Cr. 683.

2 How far can it be said to be a legal duty to abstain from doing such acts wantonly even with precautions? Suppose a man, merely for his own amusement or from caprice, took a dangerous wild beast into a public street, using all proper precautions, and suppose the wild beast notwithstanding broke loose and killed some one, would this be manslaughter? I know of no authority on the subject. See Draft Code, s. 162.

3 Cases collected in Wharton on Homicide, §§ 87-93, 99, 125, 107-24 ; and see 1 Russ. Cr. 822-840.

4 R. v. Dant, 1865, L. & C. 567.

which people are likely to pass. It is his duty to take proper precautions against its injuring passers-by. 2.

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(5.) 1 A, B, and C went to practise with a rifle which carried a mile. A handed a board to B, who in C's presence fixed it in a tree, and they all fired at it at a distance of 100 yards, taking no precautions to prevent mischief to persons in the neighbourhood. One of the shots killed a boy in a tree about 200 yards behind the target. All were held guilty of manslaughter.

ARTICLE 238.

DUTY OF PERSONS DOING ACTS REQUIRING SPECIAL SKILL OR KNOWLEDGE.

2 It is the legal duty of every person who undertakes (except in case of necessity) to administer surgical or medical treatment, or to do any other lawful act of a dangerous character, which requires special knowledge, skill, attention, or caution, to employ in doing it a common amount of such knowledge, skill, attention and caution.

1 R. v. Salmon & others, 1880, 6 Q. B. D. 79. My judgment was nearly in the terms of Article 237, and the other judgments were to the same effect.

2 R. v. St. John Long, 1830, 4 C. & P. at 404. (Per Garrow, B.) As to caution, see R. v. St. John Long, 2nd case, 4 C. & P. at 440; see other cases collected in 1 Russ. Cr. 672-6. Draft Code, s. 162.

CHAPTER XXIII

HOMICIDE

ARTICLE 239.

HOMICIDE DEFINED-WHEN A CHILD BECOMES A HUMAN BEING.

1 HOMICIDE is the killing of a human being by a human being.

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2 A child becomes a human being within the meaning of this definition, when it has completely proceeded in a living state from the body of its mother, 3 whether it has or has not breathed, and whether the navel string has or has not been divided, 5 and the killing of such a child is homicide, whether it is killed by injuries inflicted before, during, or after birth.

6 A living child in its mother's womb, or a child in the act of birth, even though such child may have breathed, is not a human being within the meaning of this definition, and the killing of such a child is not homicide.

ARTICLE 240.

KILLING DEFINED.

7 Killing is causing the death of a person by an act or omission but for which the person killed would not have

1 Draft Code, ss. 165, 166.

2 R. v. Poulton, 1832, 5 C. & P. 329. 3 R. v. Brain, 1834, 6 C. & P. 349.

4 R. v. Trilloe, 1842, Car. & Mar. 650.

5 Authorities collected, 1 Russ. Cr. 646.

6 R. v. Enoch, 1833, 5 C. & P. 539, and see note to the case; R. v. Wright, 1841, 9 C. & P. 754; R. v. Seller, 1837, 7 C. & P. 850.

7 See Draft Code, ss. 167-173. Dr. Wharton's work on Homicide contains an interesting and elaborate chapter (ch. xii. §§ 358-389), entitled "Causal Connection," into which some discussion is introduced on the

died when he did, and which is directly and immediately connected with his death. The question whether a given act or omission is directly and immediately connected with the death of any person is a question of degree dependent upon the circumstances of each particular case.

(SUBMITTED.) But the conduct of one person is not deemed for the purposes of this Article to be the cause of the conduct of another, if it affects such conduct only by way of supplying a motive for it, and not so as to make the first person an accessory before the fact to the act of the other.

This Article is subject to the provisions contained in the next two Articles.

distinction between causes and conditions; a distinction of which Dr. Wharton maintains, and of which Mr. Mill (see his Logic, vol. i. p. 398, &c.) denies the solidity. For practical purposes, I think the Article in the text is sufficient. And if this were the proper place, I should be disposed to discuss some of Dr. Wharton's positions. The latter part of the Article and the Illustration (6) intended to explain it, must, I think, be law; but I know of no direct authority on the subject. The maxim "In jure non remota causa sed proxima spectatur" has no doubt a bearing on the subject (see Bacon's Maxims, 35-9, and Broom's Maxims, 216-30), but it is very vague. Lord Bacon says it does not apply to "criminal acts except they have a full interruption." His illustration is,-A fires a pistol at B, and misses him, and runs away. B pursues A. A stabs B with a dagger. "If the law should consider the last impulsive cause, it should say it was in his own defence, but the law is otherwise, for it is but a pursuance and execution of the first murderous intent." Surely in this case the stab is the immediate cause of B's death; A's state of mind is another matter, and is to be inferred from facts. The law as to accessories and incitement appears to show the limit to which participation in a crime can be carried. Unless the line is drawn there it is impossible to say how far it would extend. Illustration (6) is a prosaic version of Othello. Iago, however, in Act iv. sc. 1, says when asked to give poison, "Do it not with poison, strangle her in her bed." This would clearly make him an accessory. To take a humbler instance, the catastrophe of Oliver Twist might, perhaps, fall within illustration (6). In ch. xlvii. of that work, Fagin, after getting Sikes to say he would murder any one who should betray him, wakes up Noah Claypole and makes him tell Sikes that the girl Nancy had betrayed him, and, as Sikes rushes out in a passion, says, "You won't be too violent, Bill; I mean not too violent for safety.' I think that the whole conversation taken together would be evidence to go to a jury, that Fagin did counsel' or 'procure' the murder committed by Sikes, which would make him an accessory before the fact, but if he had confined himself to merely telling Sikes what Claypole said he had heard, it would not have been enough. After all there was only the uncorroborated testimony of an accomplice to prove what he said, and Claypole does not seem to have been by when the most damaging words were spoken.

Illustrations.

(1.) A substitutes poison for medicine, which is to be administered to C by B. B innocently administers the poison to C, who dies of it. A has killed C.

A has killed C.

(2.) 2 A gives a poisoned apple to his wife B, intending to poison her. B, in A's presence, and with his knowledge, gives the apple to C, their child, whom B did not intend to poison. A not interfering, C eats the apple and dies. (3.) 3 A, an ironfounder, ordered to melt down a saluting cannon which had burst, repairs it with lead in a dangerous Being fired with an ordinary charge, it bursts and kills B. A has killed B.

manner.

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(4.) A lived with and was maintained by B, her aunt, who was ill for ten days previous to her decease, during which time A took in the food supplied by tradesmen, but gave none of it to B, nor did she procure medical assistance or tell any one of the state of B, who died from exhaustion caused by gangrene, her death being accelerated by neglect, and want of food, nursing, and medical attendance. A has killed B.

(5.) 5 A, B, and C, road trustees under an Act of Parliament, and as such under an obligation to make contracts for the repairs of the road, neglect to make any such contract, whereby the road gets out of repair, and D passing along it is killed. A, B, and C have not killed B.

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(6.) A by his servants makes fireworks in a house in London contrary to the provisions of an Act of Parliament (9 & 10 Will. 3, c. 77). Through the negligence of his servants, and without any act of his, a rocket explodes and sets fire to another house whereby B is killed. A has not killed B.

(7.) A tells B facts about C in the hope that the knowledge of those facts will induce B to murder C, and in order that C may be murdered; but A does not advise B to murder C; B murders C accordingly. A has not caused C's death within the meaning of this Article.

1 Donellan's Case. See my Gen. View, Cr. L. 338.

2 Saunders' Case, 1 Hale, P. C. 436.