1

[(4.) A waylays B, intending to beat, but not intending to kill him or do him grievous bodily harm. A beats B and does kill him. This is manslaughter at least, and may be murder if the beating were so violent as to be likely, according to common knowledge, to cause death.

2

(5.) A strikes at B with a small stick, not intending either to kill or to do him grievous bodily harm. The blow kills B. A commits manslaughter.

3

(6.) A, recently delivered of a child, lays it naked by the side of the road and wholly conceals its birth. It dies of cold. This is murder or manslaughter, according as A had or had not reasonable ground for believing that the child would be preserved.

(7.) It is A's duty to put a stage at the mouth of the shaft of a colliery. He omits to do so. A truck falls down the shaft in consequence and kills B. If by omitting to erect the stage A intended that B's death should be caused, A is guilty of murder. If the omission was caused only by the culpable negligence of A, and without any intention to kill or injure B, or a reckless disregard to the chance of his being killed, A is guilty of manslaughter.

(8.) A, for the purpose of rescuing a prisoner, explodes a barrel of gunpowder in a crowded street and kills a number of persons, intending to explode the barrel of powder in a crowded street. A commits murder, although he may have no intention at all about the people in the street, or may hope that they will escape injury.

1 [Fost. 259.

2 Rowley's Case, Fost. 294, remarking on earlier reporters; and see 1 Russ. Cr. 685, where some other cases are given.

3 R. v. Walters, C. & M. 164, and 1 Russ. Cr. 675. This case appears to me to illustrate the true doctrine on the subject better than the old and often quoted case of the woman who left her child in a place where it was struck by a kite and killed. The point of that case I take to be that the striking by a kite was an occurrence sufficiently likely to impose upon the mother the duty of guarding against it. Kites having been almost exterminated in England their habits are forgotten. But to lay a child on the ground in Calcutta would be to expose it to almost certain and speedy death from kites and other birds of prey. I have myself been struck by a kite which had just struck at one of my children.] R. v. Fennety 3 All. 132. See also Art. 339.

[R. v. Hughes, D. & B. 248.

5 R. v. Desmond, Barrett and Others. In this case Lord Chief Justice Cockburn said, "If a man did an act, more especially if that were an illegal act, although its immediate purpose might not be to take life, yet if it were such that life was necessarily endangered by it-if a man did such an act, not with the purpose of taking life, but with the knowledge or belief that life was likely to be sacrificed by it," that was murder; Times Report, Apr. 28, 1868. It is singular that this case is noticed in Cox's Reports only for the sake of a point about evidence not the least worth reporting: see 11 Cox, C. C. 146. The case of R. v. Allen and Others, the Fenians executed after the Manchester Special Commission in 1867, is not, so far as I know, reported, except in 17 L. T. (N.S.) 223, which reprints the letters printed in Appendix Note IX.

[(9.) A shoots at a domestic fowl, intending to steal it, and accidentally kills B. A commits murder.

(10.) 2 A, from wanton mischief, throws stones down a coal pit and knocks away a scaffolding. The absence of the scaffolding causes an accident by which B is killed. A commits manslaughter.

3

(11.) A, a thief, pursued by B, a policeman, who wishes to arrest A, trips up B, who is accidentally killed. A commits murder.

4

(12.) A, having words with his wife, B, strikes her on the head with a pestle, and kills her. A commits murder, though the act was not premeditated.

5

(13.) A, being called names by B, a woman, throws a broomstick at her, which happens to kill her. A commits manslaughter.

(14.) A shoots at B, intending to kill him, and kills C. A commits murder.

7 ARTICLE 280.

EFFECT AND DEFINITION OF PROVOCATION.

8 Homicide, which would otherwise be murder, is not murder, but manslaughter, if the act by which death is caused is done in the heat of passion, caused by provocation, as hereinafter defined, unless the provocation was sought or voluntarily provoked by the offender as an excuse for killing or doing bodily harm.

1 [Fost. 258-9, and see note. This dictum (which is supported by many other authorities) was followed by Lord Chief Justice Cockburn in Barrett's Case. He said, "If a person seeking to commit a felony should in the prosecution of that purpose cause, although it might be unintentionally, the death of another, that, by the law of England, was murder. There were persons who thought and maintained that where death thus occurred, not being the immediate purpose of the person causing the death, it was a harsh law which made the act murder. But the Court and jury were sitting there to administer law, not to make or mould it, and the law was what he, told them." Times, April 28, 1868.] In R. v. Serné 16 Cox C. C. 313, Stephen, J., suggests that instead of saying that any act done with intent to commit a felony and which causes death amounts to murder, it would be reasonable to say that any act known to be dangerous to life and likely in itself to cause death, done for the purpose of committing a felony and which causes death, is murder. 2 [R. v. Fenton, 1 Lewin, 179; 1 Russ. Cr. 817.

31 Russ. Cr. 707-12 for a large collection of cases and authorities See, too, 1 Hale, 456460; no distinction is taken in any of these cases as to the manner in which death is caused.

+1 Russ. Cr. 681.

Founded on 1 Hale, 455-6. The judges doubted whether the case was murder or manslaughter, and no judgment was delivered, but the prisoner was pardoned. This would no doubt be held to be manslaughter at the present day.

6 Fost. 261; 1 Russ. Cr. 706.]

7 S. D. Art. 224.

8 [Draft Code, s. 176.]

[The following acts may, subject to the provisions contained in Article 281, ount to provocation :—

1

(a.) 1 An assault and battery of such a nature as to inflict actual bodily harm, or great insult, is a provocation to the person assaulted.

2

(b.) If two persons quarrel and fight upon equal terms, and upon the spot, whether with deadly weapons or otherwise, each gives provocation to the other, whichever is right in the quarrel, and whichever strikes the first blow.

3

(c.) 3 An unlawful imprisonment is a provocation to the person imprisoned, but not to the bystanders, though an unlawful imprisonment may amount to such a breach of the peace as to entitle a bystander to prevent it by the use of force sufficient for that purpose. An arrest by officers of justice, whose character as such is known, but who are acting under a warrant so irregular as to make the arrest illegal, is provocation to the person illegally arrested, but not to bystanders.

4

(d.) The sight of the act of adultery committed with his wife is provocation to the husband of the adulteress on the part both of the adulterer and of the adulteress.

(e.) 5 The sight of the act of sodomy committed upon a man's son is provocation to the father on the part of the person committing the offence.

(f) Neither words, nor gestures, nor injuries to property, nor breaches of contract, amount to provocation

1 [1 Russ. Cr. 678.

2 Lord Byron's Case, 11 St. Tr. 1177; R. v. Walters, 12 St. Tr. 114; and 1 Russ. Cr. 695707 where other cases are cited.

$ For the first part of the clause see Buckner's Case, 1 Russ. Cr. 680; R. v. Withers, Ibid. For the latter part compare Hugget's Case, Sir H. Ferrer's Case, Tooley's Case, and Akey's Case, with Foster's remarks on Tooley's Case; 1 Russ. Cr. 753-7. See also 1 Hawk. P. C. 489; R. v. Osmer, 5 East 308. Also Illustration (5), and Appendix Note IX.] A runaway slave who stabs and kills a person attempting to arrest and detain him, such arrest being by the law of the place lawful, commits murder; In re Anderson, 20 U. C. Q. B. 124.

4 [Cases cited, 1 Russ. Cr. 687. I am not aware that it has ever been decided that adultery by the husband is provocation to the wife.

R. v. Fisher, 8 C. & P. 182.

61 East P. C. 232; 1 Russ. Cr. 677-9.]

[within this Article, except (perhaps) words expressing an intention to inflict actual bodily injury, accompanied by some act which shews that such injury is intended; 1 but words used at the time of an assault-slight in itself -may be taken into account in estimating the degree of provocation given by a blow.

(g.) The employment of lawful force against the person of another is not a provocation to the person against whom it is employed.

Illustrations.

(1.) 3 A, a woman, gives B, a soldier, a slap in the face. A has not given B provocation within this Article.

4

(2.) A, a woman, strikes B, a soldier, with a heavy clog violently in the face and wounds him. A has given B provocation within this Article.

5

(3.) A pulls B by the nose. A has given B provocation within the meaning of this Article.

6

(4.) A attempts to arrest B on an irregular warrant and in an irregular way. B shoots A dead. This is manslaughter by reason of the provocation given by B to A.

7

(5.) A arrests B under an irregular warrant and conveys him to gaol. C, D, and others attempt to rescue B. A resists, and one of the party shoots A dead. This is murder in C, D and all their party.

8

(6.) A and B, armed with swords, quarrel, draw their swords, and fight. Each gives the other provocation.

9

(7.) A and B quarrel, and agree together to fight, and do fight, a duel next day. Neither gives the other such provocation as would reduce the offence to manslaughter if either is killed.

1 [1 Russ. Cr. 677, note a.; Lord Morley's Case, 1 Hale, P. C. 455; R. v. Sherwood, 1 C. & K. 556, and see R. v. W. Smith, 4 F. & F. 1066.

Illustration (12).

3 Stedman's Case, Fost. 292.

4 Ibid..

51 East. P. C. 233.

6 R. v. Stevenson, 19 St. Tr. 846. This case must be understood to be subject to the provisions of the next Article.

7 This is the case of the Fenians executed at Manchester in 1867, for shooting Brett, a police constable in charge of a police van containing a Fenian prisoner. See Appendix, Note IX.

8 R. v. Walters, 12 St. Tr. 113; and see R. v. Lord Byron, 11 St. Tr. 1177.

R. v. Cuddy, 1 C. & K. 210; R. v. Barronet, and R. v. Barthelemy, Dears. 51 and 60, are recent cases of duelling.]

[(8.) 1 A and B quarrel, and upon the spot agree to fight with their fists. A, from the beginning of the fight, uses a knife and kills B. A has not received such provocation from B as reduces his offence to manslaughter.

(9.) A and B quarrel and agree to fight with their fists. In the course of the fight A snatches up a knife, which happens to be near, and which he has not previously provided, and kills B. A has not received such provocation from B as reduces his offence to manslaughter.

3

(10.) A, at a tavern, throws a bottle at B's head and draws his sword. B throws a bottle at A's head. A kills B. A has not received such provocation from B as reduces his offence to manslaughter.

(11.) A and B quarrel and fight in a public-house. A leaves the public-house, says he will kill B, conceals a sword under his coat, returns to the public-house, tempts B to strike him with a stick, saying "Stand off, or I'll stab you," and without giving B time to retreat, does stab him mortally. A does not receive from B such provocation as reduces his offence to manslaughter.

(12.) 5 A attacks B in such a manner as to endanger B's life. B drives off and pursues A. A in self-defence kills B. This is murder in A.

6 ARTICLE 281.

WHEN PROVOCATION DOES NOT EXTENUATE HOMICIDE.

7 Provocation does not extenuate the guilt of homicide unless the person provoked is at the time when he does the act deprived of the power of self-control by the provocation which he has received, and in deciding the question whether this was or was not the case, regard must be had to the nature of the act by which the offender causes death, to the time which elapsed between the provocation and the act which caused death, to the offender's conduct during that interval, and to all other circumstances tending to shew the state of his mind.

1 [R. v. Anderson, 1 Russ. Cr. 701.

2 Ibid.

3 R. v. Mawgridge, Kel. 128-9; Foster, 295-6.

4 Mason's Case, Foster, 132.

Bacon's Maxims, 37, 38. I suppose B is trying to arrest A.]

S. D. Art. 225. See Appendix Note IX.

[See the cases quoted in the Illustrations, and R. v. Lynch, 5 C. & P. 324. Draft Code,

s. 176.] R. v. McDowell, 25 U. C. Q. B. 108.