ARTICLE 241.

WHEN AN ACT IS THE REMOTE CAUSE OF DEATH OR ONE

OF SEVERAL CAUSES.

A person is deemed to have committed homicide, although his act is not the immediate or not the sole cause of death in the following cases—

(a.) 1 If he inflicts a bodily injury on another which causes surgical or medical treatment, which causes death. In this case it is immaterial whether the treatment was proper or mistaken, if it was employed in good faith, and with common knowledge and skill, but the person inflicting the injury is not deemed to have caused the death if the treatment which was its immediate cause was not employed in good faith, or was so employed without common knowledge or skill.

(b.) 2 If he inflicts a bodily injury on another, which would not have caused death if the injured person had submitted to proper surgical or medical treatment, or had observed proper precautions as to his mode of living.

3

(c.) If by actual violence or threats of violence he causes a person to do some act which causes his own death, such act being a mode of avoiding such violence or threats, which under the circumstances would appear natural to the person injured.

4

(d.) If by any act he hastens the death of a person suffering under any disease or injury which apart from such act would have caused death.

(e.) If his act or omission would not have caused death unless it had been accompanied by the acts or omissions of the person killed or of other persons.

1 1 Hale, 428; Illustrations (1), (2). Draft Code, s. 173.

2 Illustration (3). Draft Code, s. 172.

3 Illustration (4). Draft Code, s. 167.

4 1 Hale, 428; Illustration (5).

Draft Code, s. 171.

5 See Illustrations (6) and (7). See also R. v. Longbottom, 1849, 3 Cox, C. C. 439; 1 Russ. Cr. 830. R. v. Ledger, 1862, 1 F. & F. 857, 1 Russ. Cr. 835, 6; and Mr. Greaves' note. This case is a very peculiar one.

Illustrations.

B

(1.) 1 A wounds B in a duel. Competent surgeons perform an operation which they in good faith regard as necessary. dies of the operation, and it appears that the surgeons were mistaken as to the necessity for the operation. A has killed B.

(2.) 2 A gives B a wound. C, a surgeon, applies poison to the wound, either from bad faith or by negligence. B dies of the poison. C and not A has killed B.

(3.) A injures B's finger. B is advised by a surgeon to allow it to be amputated, refuses to do so, and dies of lockjaw. A has killed B.

(4.) A violently beats and kicks B, his wife, on the edge of a pond. She, to avoid his violence, throws herself into the pond and is drowned. A has killed B.

(5.) 5 A strikes B, who is at the time so ill that she could not possibly have lived more than six weeks if she had not been struck. B dies earlier than she would otherwise have died in consequence. A has killed B.

a high One or In either

(6.) 6 A and B, the drivers of two carts, race along road. C is lying drunk in the middle of the road. other or both of the carts run over C and kill him. case both A and B have killed C.

(7.) It is the duty of A to put up air headings in a colliery where they are required. It is the duty of B to give A notice when an air heading is required. But A has means, apart from B's report, of knowing whether such air headings are required or not. A omits to put up an air heading, B omits to give A notice that one is wanted. An explosion follows, and C is killed.

Both A and B have killed C.

1 R. v. Pym, 1846, 1 Cox C. C. 339; 1 Russ. Cr. 675.

2 Founded on 1 Hale, 428.

3 R. v. Holland, 2 Moo. and Ro. 357.

4 R. v. Evans, 1 Russ. Cr. 651; R. v. Wager, tried at Derby Summer Assizes, 1864, was precisely similar. See, upon this subject, Wharton on Homicide, §§ 374-5. If the intention was to escape further ill-usage by suicide, the case would be altered.

5 R. v. Fletcher, 1 Russ. Cr. 676.

6 R. v. Swindall, 1846, 2 C. & K. 230. 7 R. v. Haines, 1847, 2 C. & K. 368.

ARTICLE 242.

WHEN CAUSING DEATH DOES NOT AMOUNT TO HOMICIDE.

A person is not deemed to have committed homicide, although his conduct may have caused death, in the following cases :

(a.) 1 When the death takes place more than a year and a day after the injury causing it. In computing the period the day on which the injury is inflicted is to be counted as the first day;

(b.) [It is said] 2 When the death is caused without any definite bodily injury to the person killed, but this does not extend to the case of a person whose death is caused not by any one bodily injury, but by repeated acts affecting the body, which collectively cause death, though no one of them by itself would have caused death;

1 1 East, P. C. 343, 4; 1 Russ. Cr. 673, 4; Draft Code, s. 169. 2 1 Hale, 429. Lord Hale's reason is that "secret things belong to God; and hence it was that before 1 Ja. 1, c. 12, witchcraft or fascination was not felony, because it wanted a trial" (i.e. I suppose because of the difficulty of proof). I suspect that the fear of encouraging prosecutions for witchcraft was the real reason of this rule. Dr. Wharton rationalizes the rule thus: "Death from nervous causes does not involve penal consequences." This appears to me to substitute an arbitrary quasi-scientific rule for a bad rule founded on ignorance now dispelled. Suppose a man were intentionally killed by being kept awake till the nervous irritation of sleeplessness killed him, might not this be murder? Suppose a man kills a sick person intentionally, by making a loud noise which wakes him when sleep gives him a chance of life; or suppose knowing that a man has aneurism of the heart, his heir rushes into his room, and roars in his ear, Your wife is dead!" intending to kill and killing him, why are not these acts murder? They are no more "secret things belonging to God" than the operation of arsenic. As to the fear that by admitting that such acts are made, people might be rendered liable to prosecution by breaking the hearts of their fathers or wives by bad conduct, the answer is that such an event could never be proved. A long course of conduct, gradually breaking a man's heart," could never be the "direct or immediate cause of death. If it was, and it was intended to have that effect, why should it not be murder? In R. v. Towers, 1874, 12 Cox C. C. 530, a man was tried before Denman, J., for manslaughter, for frightening a child to death (see Wharton on Homicide, § 372, on this point).

66

Lord Hale doubts whether voluntarily and maliciously infecting a person with the plague, and so causing his death, would be murder (i. 432). It is hard to see why. He says that "infection is God's arrow." A different view was taken in the analogous case of R. v. Greenwood, 1857, 7 Cox, C. C. 404, and 1 Russ. Cr. 673. As to this proviso, see Illustration (1).

1

(c.) [It seems] 1 When death is caused by false testimony given in a court of justice.

Illustrations.

A

(1.) 2 A by a long series of acts of ill-treatment, no one of which by itself would cause death, causes the death of B. has killed B.

3

(2.) 3 A and B, in order to get a reward, offered for the conviction of highway robbers, conspire together to bring a false accusation of highway robbery against C, whereby C is convicted and executed. A and B do not kill C.

ARTICLE 243.

WHEN HOMICIDE IS UNLAWFUL.

4 Homicide is unlawful,

(a.) When death is caused by an act done with the intention to cause death or bodily harm, or which is commonly known to be likely to cause death or bodily harm, and when such act is neither justified nor excused by the provisions contained in Chapter III., or Chapter XXI.;

(b.) when death is caused by an omission, amounting to culpable negligence, to discharge a duty tending to the preservation of life, whether such omission is or is not accompanied by an intention to cause death or bodily harm;

(c.) when death is caused accidentally by an unlawful act.

1 Illustration (1). Draft Code, s. 168.

2 R. v. Self, 1 East, P. C. 226, 227, and 1 Russ. Cr. 652, 777; R. v. Squire, 1 Russ. Cr. 653.

3 R. v. MacDaniel and Others, 1755, 19 S. T. 746, and see particularly the note 810-14, and Foster, 131, 132.

4 This Article sums up the result of the preceding chapters. See Note VII. Draft Code, s. 167.

CHAPTER XXIV

1 MURDER-MANSLAUGHTER—ATTEMPTS TO COMMIT MURDER-CONCEALMENT OF BIRTH

ARTICLE 244.

MANSLAUGHTER AND MURDER DEFINED.

2 MANSLAUGHTER is unlawful homicide without malice aforethought.

Murder is unlawful homicide with malice aforethought.

Malice aforethought means any one or more of the following states of mind preceding or co-existing with the act or omission by which death is caused, and it may exist where that act is unpremeditated.

(a.) An intention to cause the death of, or grievous bodily harm to, any person, whether such person is the person actually killed or not;

(b.) knowledge that the act which causes death will probably cause the death of, or grievous bodily harm to, some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;

1 See 3 Hist. Cr. Law, ch. xxvi. pp. 1-107.

2 For the authorities for this Article see Note VIII. Draft Code, s. 174-177.

3 Coke's first case of implied malice is malice implied from the want of provocation. A man who wantonly or on a slight cause intentionally and violently kills another, shows by that act, not indeed the existence of hatred of long standing, but the existence of deadly hatred instantly conceived and executed, which is at least as bad if not worse. This in the strict sense of the words is malice aforethought. As Hobbes well observes: "it is malice forethought, though not long forethought." (Dialogue of the Common Laws, "Works," vi. 85). And it is not by law necessary that it should be long. If a slight provocation does not reduce murder to manslaughter, a fortiori, the total absence of all provocation, and the mere rapidity with which the execution of a cruel and wicked design follows on its conception cannot have that effect. For cases slight provocation, see 1 Russ. Cr. 676, and cases there collected.