case was argued in the Exchequer chamber, before ten of the Judges: but no opinion was ever publicly delivered. (0) incautious acts. SECT. V. Cases where the Killing takes place in the Prosecution of some other Criminal, Unlawful, or Wanton Act. Heedless and IT has been shewn, that where from an action, unlawful in itself, done deliberately, and with mischievous intention, death ensues, though against or beside the original intention of the party, it will be murder: (p) and it may be here observed, that if such deliberation and mischievous intention does not appear, (which is matter of fact, and to be collected from circumstances,) and the act was done heedlessly and incautiously, it will be manslaughter. (q) Blow aimed at one person kills another. Acts generally incautious. Where an injury, intended against one person, mortally affects another, as where a blow aimed at one person lights upon another and kills him, the inquiry will be whether, if the blow had killed the person against whom it was aimed, the offence would have been murder or manslaughter. For if a blow, intended against A., and lighting on B., arose from a sudden transport of passion, which, in case A. had died by it, would have reduced the offence to manslaughter, the fact will admit of the same alleviation, if it shall have caused the death of B. (r) There are many acts so heedless and incautious as necessarily to be deemed unlawful and wanton, though there may not be any express intent to do mischief: and the party committing them, and causing death by such conduct, will be guilty of manslaughter. As if a person, breaking an unruly horse, ride him amongst a crowd of people, and death ensue from the viciousness of the animal, and it appear clearly to have been done heedlessly and incautiously only, and not with an intent to do mischief, the crime will be manslaughter. (s) But it is said, that in such a case it would be murder, if the rider had intended to divert himself with the fright of the crowd.(t) And if a man, knowing that people are passing along the streets, throw a stone or shoot an arrow over a house or wall, and a person be thereby killed, this will be manslaughter, P. C. c. 5. s. 89. page 329. note (a), 66 (0) Adey's case, I Leach 206. And 66 66 66 (r) Fost. 262. (8) 1 East. P. C. c. 5. s. 18. p. 231. (t) 1 Hawk. P. C. c. 31. s. 68. though there were no intent to do hurt to any one; because the act itself was unlawful. (u) So where a gentleman came to town in a chaise, and, before he got out of it, fired his pistols in the street, which, by accident, killed a woman, it was ruled manslaughter: for the act was likely to breed danger, and manifestly improper. (w) pass. It has been shewn that where death ensues from an act done in Death from the prosecution of a felonious intention, it will be murder: (x) but acts of tresa distinction is taken in the case of an act done with the intent only of committing a bare trespass; as if death ensues from such act, the offence will be only manslaughter. (y) Thus, though if A. shoot at the poultry of B., intending to steal them, and by accident kill a man, it will be murder; yet, if he shoot at them wantonly, and without any such felonious intention, and accidentally kill a man, the offence will be only manslaughter.(z) And any one who voluntarily, knowingly, and unlawfully, intends hurt to the person of another, though he intend not death, yet, if death ensue, is guilty of murder or manslaughter, according to the circumstances of the nature of the instrument used, and the manner of using it, as calculated to produce great bodily harm or not. (a) And if a man be doing an unlawful act, though not intending bodily harm to any one, as if he be throwing a stone at another's horse, and hit a person and kill him, it is manslaughter. (b) But it seems that in cases of this kind the guilt would rather depend upon one or other of these circumstances, either that the act might probably breed danger, or that it was done with a mischievous intent. (c) Where sports are unlawful in themselves, or productive of danger, riot, or disorder, so as to endanger the peace, and death ensue in the pursuit of them, the party killing is guilty of manslaughter. (d) Such manly sports and exercises as tend to give strength, activity, and skill in the use of arms, and are entered into as private recreations amongst friends, are not, however, deemed unlawful sports: (e) but prize-fighting, public boxing matches, or any other sports of a similar kind, which are exhibited for lucre, and tend to encourage idleness by drawing together a number of disorderly people, have met with a different consideration. (f) For in these last-mentioned cases the intention of the parties is not innocent in itself, each being careless of what hurt may be given provided the promised reward or applause be obtained: and meetings of this kind have also a strong tendency in their nature to a breach of the peace. (g) Therefore, where the prisoner had killed his opponent in a boxing match, it was holden that he was guilty of manslaughter; though he had been challenged to fight by his adversary for a public trial of skill in boxing, Death happening at unlawful sports. Where several unlawful act. and was also urged to engage by taunts; and the occasion was sudden. (h) The custom of cock-throwing at Shrovetide has been considered as an idle, dangerous, and unlawful sport; and accordingly, where a person throwing at a cock missed his aim, and killed a child who was looking on, Mr. J. Foster ruled it to be manslaughter; and, speaking of the custom, he says, "it is a barbarous un"manly custom, frequently productive of great disorders, dan"gerous to the by-standers, and ought to be discouraged."(i) So throwing stones at another wantonly in play, being a dangerous sport without the least appearance of any good intent, or doing any other such idle action as cannot but endanger the bodily hurt of some one or other, and by such means killing a person, will be manslaughter.(k) Though the sports be not in their nature unlawful; yet, if the weapons used be of an improper and deadly nature, the party killing will be guilty of manslaughter: as was the case of Sir John Chichester, who unfortunately killed his man-servant as he was playing with him. Sir John Chichester made a pass at the servant with a sword in the scabbard, and the servant parried it with a bed-staff, but in so doing struck off the chape of the scabbard, whereby the end of the sword came out of the scabbard; and the thrust not being effectually broken, the servant was killed by the point of the sword. () This was adjudged manslaughter: and Mr. J. Foster thinks, in conformity with Lord Hale, that it was rightly so adjudged; on the ground that there was evidently a want of common caution in making use of a deadly weapon in so violent an exercise, where it was highly probable that the chape might be beaten off, which would necessarily expose the servant to great bodily harm.(m) Shooting at deer in another's park, without leave, is an unlawful act, though done in sport, and without any felonious intent; and therefore if a bystander be killed by the shot, such killing will be manslaughter.(n) It has been shewn, that where a body of persons, resolving genejoin to do an rally to resist all opposers in the commission of any breach of the peace, and to execute it in such a manner as naturally tends to raise tumults and affrays, happen to kill any one in the prosecution of this unlawful purpose, they will be guilty of murder.(0) Yet, in one case, where divers rioters, having forcibly gained possession of a house, afterwards killed a partisan of the person whom they had ejected, as he, in company with a number of others, "bard, by consent, seems not to be 66 an unlawful act; for it is not a dangerous weapon likely to occasion death, nor did it so in this case, but (h) Ward's case, O. B. 1789, cor. Ashhurst, J. 1 East. P. C. c. 5. s. 42. p. 270. (i) Fost. 261. 66 was endeavouring in the night forcibly to regain the possession, and to fire the house, they were adjudged guilty only of manslaughter.(p) It is said, that perhaps it was so adjudged for this reason, that the person slain was so much in fault himself. (q) SECT. VI. Cases where the Killing takes place in consequence of some Lawful Act being criminally or improperly performed, or of some Act performed without Lawful Authority. improperly. AN act, not unlawful in itself, may be performed in a manner so criminal and improper, or by an authority so defective, as to make the party performing it, and in the prosecution of his purpose causing the death of another person, guilty of murder. (r) And as the circumstances of the case may vary, the party so killing another may be guilty only of the extenuated offence of manslaughter. Though officers of justice are authorised to execute their duties Officers of jusin a proper and legal manner, notwithstanding any resistance tice acting which may be made to them; (s) yet they should not come to extremities upon every slight interruption, nor unless there be a reasonable necessity. Therefore, where a collector, having distrained for a duty, laid hold of a maid servant who stood at the door to prevent the distress being carried away, and beat her head and back several times against the door-post, of which she died; although the court held her opposition to the officer to be a sufficient provocation to extenuate the homicide, yet they were clearly of opinion that he was guilty of manslaughter in so far exceeding the necessity of the case. (t) ter and Rea son. There is a case reported in Strange, as a case of manslaughter, Case of Tranwhich, if the circumstances of it were as stated in that report, does not seem to have been entitled to so favourable a construction. Mr. Lutterel, being arrested for a small debt, prevailed on one of the officers to go with him to his lodgings, while the other was sent to fetch the attorney's bill, in order, as Lutterel pretended, to have the debt and costs paid. Words arose at the lodgings about civility money, which Lutterel refused to give; and he went up stairs, pretending to fetch money for the payment of the debt and costs, leaving the officer below. He soon returned with a brace of loaded pistols in his bosom, which, at the importunity of his servant, he laid down on the table, saying, “He did not intend to hurt the officers, but he would not be ill used." The officer, who had been sent for the attorney's bill, soon returned to his companion at the lodgings; and, words of anger (p) Rex v. Drayton Basset, Crom. 28. 1 Hale 440. (q) 1 Hawk. P. C. c. 31. s. 53. VOL. 1. (r) Anle, 457, et sequ. (8) Ante, 449, 457. (1) Goffe's case, I Ventr. 216, 2 M Officers of arising, Lutterel struck one of the officers on the face with a walking cane, and drew a little blood. Whereupon both of them fell upon him: one stabbed him in nine places, he all the while on the ground begging for mercy, and unable to resist them; and one of them fired one of the pistols at him while on the ground, and gave him his death's wound. (u) This is reported to have been holden manslaughter, by reason of the first assault with the cane: but Mr. Justice Foster thinks it a very extraordinary case, as thus reported; and mentions the following additional circumstances, which are stated in another report. (w) 1. Mr. Lutterel had a sword by his side, which, after the affray was over, was found drawn and broken. 2. When Mr. Lutterel laid the pistols on the table, he declared that he brought them down, because he would not be forced out of his lodgings. 3. He threatened the officers several times. 4. One of the officers appeared to have been wounded in the hand by a pistol shot (for both pistols were discharged in the affray,) and slightly wounded on the wrist by some sharp pointed weapon: and the other was slightly wounded in the hand by a like weapon. 5. The evidence touching Mr. Lutterel's begging for mercy was not, that he was on the ground begging for mercy, but that on the ground he held up his hands, as if he was begging for mercy. Upon these facts the chief justice directed the jury, that if they believed Mr. Lutterel endea voured to rescue himself, which he seemed to think was the case, and which very probably was the case, it would be justifiable homicide in the officers. And as Mr. Lutterel gave the first blow, accompanied with menaces to the officers, and the circumstance of producing loaded pistols to prevent their taking him from his lodgings, which it would have been their duty to have done if the debt had not been paid, or bail given, he declared it would be no more than manslaughter.(x) Though resistance be made to an officer of justice; yet if the justice acting officer kill the party, after the resistance is over, and the necessity has ceased, the crime will at least be manslaughter. (y) upon resistance. Or upon the flight of the party arrested. Where a felony has been committed, or a dangerous wound given, and the party flies from justice, he may be killed in the pursuit, if he cannot otherwise be overtaken. And the same rule holds, if a felon, after arrest, break away as he is carrying to gaol, and his pursuers cannot retake without killing him. But if he may be taken in any case without such severity, it is, at least, manslaughter in him who kills him; and the jury ought to enquire, whether it were done of necessity or not. (2) In making arrests in cases of misdemeanor and breach of the peace, (with the exception, however, of some cases of flagrant misdemeanors,) it is not lawful to kill the party accused if he fly from the arrest, though he cannot otherwise be overtaken, and though there be a warrant to apprehend him; and, generally speaking, it will be murder: but, under circumstances, it may amount only to man(u) Rex v. Tranter and Reason, Stra. 499. Ante, 436. (w) 6 St. Tri. 195. 16 St. Tri. (by Howell) 1. (x) Fost. 293, 294. (y) MS. Burnet 37. 1 East. P. C. c. 5. s. 63. p. 297. And if there were time for the blood to have cooled, it would, it is conceived, amount to murder, ante, 442. (z) 1 East. P. C. c. 5. s. 67. p. 298. |