slaughter, if it appear that death was not intended. (a) In civil suits, if the party against whom the process has issued fly from the officer endeavouring to arrest him, and be killed by him in the pursuit, it has been said that it will be murder. (b) But it is rather to be considered as murder, or manslaughter, as circumstances may vary the case; for if the officer, in the heat of the pursuit, and merely in order to overtake the party, should trip up his heels, or give him a stroke with an ordinary cudgel, or other weapon not likely to kill, and death should unhappily ensue, this will not amount to more than manslaughter, if, in some cases, even to that offence. (c) the sea ser. vice. In cases of pressing for the sea service, if the party fly, the Pressing for killing by the officer in the pursuit to overtake him will be manslaughter at least, and in some cases murder, according to the rules which govern the case of misdemeanors; paying attention, nevertheless, to those usages which have prevailed in the sea service in this respect, so far as they are authorised by the courts which have ordinary jurisdiction over such matters, and are not expressly repugnant to the laws of the land. An officer in the impress service put one of his seamen on board a boat belonging to one William Collyer, a fisherman, with intent to bring it under the stern of another vessel, in order to see if there were any fit objects of the impress service on board. The boat steered away in another direction; and the officer pursued in another vessel for three hours, firing several shots at her with a musket loaded with ball for the purpose of hitting the hallyards and bringing the boat to, which was found to be the usual way; and one of the shots unfortunately killed Collyer. The court said, it was impossible for it to be more than manslaughter. (d) It is presumed, that this decision proceeded on the ground that the musket was not levelled at the deceased, nor any bodily hurt intended to him. But inasmuch as such an act was calculated to breed danger, and not warranted by law, though no bodily hurt were intended, it was holden to be manslaughter, and the defendant was burned in the hand. (e) It may here be observed, however, that by the statute for the prevention of smuggling, it is enacted, that in case any vessel or boat liable to seizure or examination shall not bring to on being required to do so, or being chased by any vessel in his Majesty's navy, having the proper pendant ensign of his Majesty's ships hoisted, or by any vessel employed for the prevention of smuggling, under the authority of the commissioners therein mentioned, having a pendant or ensign hoisted of such description as is therein mentioned, it shall be lawful for the captain, master, or other person having the charge or command of such vessel in his Majesty's navy, or employed as aforesaid, (first causing a gun to be fired as a signal) to fire at or into such vessel or boat; and such captain, master, or other person, acting in his aid or assistance, or by his directions, shall be indemnified and discharged from any indictment, penalty, or action, for so doing. (ƒ) (a) Fost. 271. 1 East. P. C. c. 5. s. 70. p. 302. (b) By Lord Hale, 1 Hale 481. (c) Fost. 271. (d) Rex v. Phillips, Cowp. 830. (e) 1 East. P. C. c. 5. s. 75. p. 308. Officer arrest proper dis trict. Where an officer makes an arrest out of his proper district, or ing out of his without any warrant or authority, (g) and purposely kills the party for not submitting to such illegal arrest, the crime will, generally speaking, be murder: that is, in all cases at least where an indifferent person acting in the like manner, without any such pretence, would be guilty to that extent. (h) In the case of private persons using their endeavours to bring felons to justice, caution must be used to ascertain that a felony has actually been committed, and that it has been committed by the party arrested or pursued upon suspicion; as, if the suspicion be not supported by the fact, the person endeavouring to arrest or imprison, and killing the party in the prosecution of such purpose, will be guilty of manslaughter. (i) Gaolers. Correction in furo domestico. Hazel's case. Gaolers, like other ministers of justice, are bound not to exceed the necessity of the case in the execution of their offices; therefore an assault upon a gaoler, which would warrant him (apart from personal danger) in killing a prisoner, must, it should seem, be such from whence he might reasonably apprehend that an escape was intended, which he could not otherwise prevent. (k) And if an officer, whose duty it is to execute a sentence of whipping upon a criminal, should be so barbarous as to exceed all bounds of moderation, and thereby cause the party's death, he will at least be guilty of manslaughter. (1) Moderate and reasonable correction may properly be given by parents, masters, and other persons, having authority in foro domestico, to those who are under their care; but if the correction be immoderate or unreasonable, either in the measure of it, or in the instrument made use of for that purpose, it will be either murder or manslaughter, according to the circumstances of the case. If it be done with a dangerous weapon, likely to kill or maim, due regard being always had to the age and strength of the party, it will be murder: but if with a cudgel, or other thing not likely to kill, though improper for the purpose of correction, it will be manslaughter. (m) In the following case the nature of the instrument used, and the probability of its causing death, or great bodily harm, when used in the manner stated in the case, occasioned much doubt. The prisoner having employed her daughter-in-law, a child of ten years old, to reel some yarn, and finding some of the skeins knotted, threw at the child a four-legged stool, which struck her on the right side of the head, on the temple, and caused her death soon afterwards. The stool was of sufficient size and weight to give a mortal blow: but the prisoner did not intend, at the time she threw it, to kill the child. These facts were stated in a special verdict: but the matter was considered of great difficulty, and no opinion was ever delivered by the Judges. (n) (g) Ante, 457, 458. (h) 1 East. P. C. c. 5. s. 80. p. 312. (k) 1 East. P. C. c. 5. s. 91. p. 331. gaol, assault the gaoler, he may be lawfully killed by him in the affray. (1 Hawk. P. C. c. 29. s. 5. (m) Fost. 262. 1 Hale 454. Keite's case, 1 Ld. Raym. 144. (n) Rex v. Hazel, 1 Leach. 368. Ante, 439, 440. In the foregoing case, the counsel for the prisoner cited the Wiggs's case. following case. A shepherd boy had suffered some of the sheep, which he was employed in tending, to escape through the hurdles of their pen. The boy's master, the prisoner, seeing the sheep get through, ran towards the boy; and, taking up a stake that was lying on the ground, threw it at him. The stake hit the boy on the head, and fractured his skull, of which fracture he soon afterwards died. The learned Judge, (o) in his directions to the jury, after stating that every master had a right moderately to chastise his servant, but that the chastisement must be on just grounds,. and with an instrument properly adapted to the purposes of correction, desired them to consider, whether the stake, which, lying on the ground, was the first thing the prisoner saw in the heat of his passion, was or was not, under such circumstances, and in such a situation, an improper instrument. For that the using a weapon from which death is likely to ensue, imports a mischievous disposition; and the law implies that a degree of malice attended the act, which, if death actually happen, will be murder. Therefore, if the jury should think the stake was an improper instrument, they would further consider whether it was probable that it was used with an intent to kill: that if they thought it was, they must find the prisoner guilty of murder; but if they were persuaded it was not done with an intent to kill, the crime would then amount at most to manslaughter. The jury found it manslaughter. (p) In this case it is presumed, that the learned Judge must be understood as meaning, that if the jury should think the instrument so improper as to be dangerous, and likely to kill or maim, the age and strength of the party killed being duly considered, the crime would amount to murder; as the law would in such case supply the malicious intent; but that if they thought that the instrument, though improper for the purpose of correction, was not likely to kill or maim, the crime would only be manslaughter, unless they should also think that there was an intent to kill. a case where a child was killed by the correction of the parent. Though the correction exceed the bounds of moderation, the Nature of the court will pay a tender regard to the nature of the provocation, provocation where the act is manifestly accompanied with a good intent, and considered in the instrument not such as must, in all probability, occasion death, though the party were hurried to great excess. A father, whose son had frequently been guilty of stealing, and who, upon complaints made to him of such thefts, had often corrected the son for them; at length, upon the son being charged with another theft, and resolutely denying it, though proved against him, beat him, in a passion, with a rope, by way of chastisement for the offence, so much that he died. The father expressed the utmost horror, and was in the greatest affliction for what he had done, intending only to have punished him with such severity as to have cured him of his wickedness. The learned Judge, by whom the father was tried, consulted his colleague in office, and the prin (0) Nares, J. (p) Rex v. Wiggs, Norfolk Sum. Assiz. 1784. 1 Leach. 378. note (a). cipal counsel on the circuit, who all concurred in opinion, that it was only manslaughter; and so it was ruled. (9) Cases may occur in which the correction is not inflicted by means of any active and personal violence, but by a system of privation and ill treatment. The following case seems to be of this nature:-The prisoner, upon his apprentice returning to him from Bridewell, whither he had been sent for misbehaviour, in a lousy and distempered condition, did not take that care of him which his situation required, and which he might have done; the apprentice not having been suffered to lie in a bed on account of the vermin, but being made to lie on the boards for some time without covering, and without common medical care. In this case, the medical persons who were examined were of opinion, that the boy's death was most probably occasioned by his ill treatment in Bridewell, and the want of care when he went home; and they inclined to think, that if he had been properly treated when he came home, he might have recovered. But, though some harsh expressions were proved to have been spoken by the prisoner to the boy, yet there was no evidence of any personal violence having been used by the prisoner: and it was proved that the apprentice had had sufficient sustenance; and the prisoner had a general good character for treating his apprentices with humanity; and had made application to get this boy into the hospital. Under these circumstances, the Recorder left it to the jury to consider whether the death of the boy was occasioned by the ill treatment he received from his master, after returning from Bridewell; and whether that ill treatment amounted to evidence of malice, in which case they were to find him guilty of murder. At the same time they were told, with the concurrence of Mr. Justice Gould and Mr. Baron Hotham, that if they thought otherwise, yet, as it appeared that the prisoner's conduct towards his apprentice was highly blameable and improper, they might, under all these circumstances, find him guilty of manslaughter; which they accordingly did. (r) And upon the question being afterwards put to the Judges, whether the verdict were well found, they all agreed that the prisoner should be burned in the hand and discharged. (s) In a note upon the foregoing case Mr. East says, " I have been "the more particular in stating the ground of the decision in this (6 case, because Mr. Justice Gould's note of the case, from "whence this is taken, is evidently different from another re port (t) of the opinion of the Judges in this case, from whence "it might be collected, that there could be no gradation of guilt "in a matter of this sort, where a master, by his ill conduct or negligence, had occasioned or accelerated the death of his ap"prentice, but that he must either be found guilty of murder or 66 acquitted; a conclusion which, whether well or ill founded, cer (q) Anon. Worcester Spr. Ass. 1775. Serj. Forster's MS. 1 East. P. C. c. 5. s. 37. p. 261. (r) Rex v. Self, O. B. 1770, MS. Gould, J. 1 East. P. C. c. 5. s. 13. p. 226, 227. (8) Easter T. 16 G. 3. De Grey, C. J. and Ashhurst, J. being absent. (4) 1 Leach. 137. "tainly cannot be drawn from this statement of the case. The same opinion, however, is stated, in the Old Bailey Sessions papers, to have been thrown out by the Recorder in Wade's "case." 66 common oc cupations. (u) Where persons employed about such of their lawful occupa- Persons foltions, from whence danger may probably arise to others, neglect lowing their the ordinary cautions, it will be manslaughter at least, on account of such negligence. (w) Thus, if workmen throw stones, rubbish, or other things, from a house, in the ordinary course of their business, by which a person underneath happens to be killed, if they did not look out and give timely warning to such as might be below, and there was even a small probability of persons passing by, it will be manslaughter. (x) It was a lawful act, but done in an improper manner. It has indeed been said, that if this be done in the streets of London, or other populous towns, it will be manslaughter, notwithstanding such caution be used. (y) But If it be done this must be understood with some limitation. early in the morning, when few or no people are stirring, and the ordinary caution be used, the party may be excusable: but when the streets are full, such ordinary caution will not suffice; for, in the hurry and noise of a crowded street, few people hear the warning, or sufficiently attend to it. (x) So if a person, driving a cart or other carriage, happen to kill another, and it appears that he might have seen the danger, but did not look before him, it will be manslaughter, for want of due circumspection. (a) Upon this subject the following case is reported:-A. was driving a cart with four horses in the highway at Whitechapel; and he being in the cart, and the horses upon a trot, they threw down a woman, who was going the same way with a burthen upon her head, and killed her. Holt, C. J., Tracy, J. Baron Bury, and the Recorder Lovel, held this to be only misadventure. But by Holt, C. J., if it had been in a street where people usually pass, it had been manslaughter. (b) But upon this case the following observations have been made: "It "must be taken for granted from this note of the case, that the "accident happened in an highway where people did not usually of pass; for otherwise the circumstance of the driver's being in "his cart, and going so much faster than is usual for carriages "that construction, savoured much of negligence and impro"priety: for it was extremely difficult, if not impossible, to stop "the course of the horses suddenly, in order to avoid any person "who could not get out of the way in time. And, indeed, such "conduct, in a driver of such heavy carriages, might, under most "circumstances, be thought to betoken a want of due care, if any, though but few, persons might probably pass by the same "road. The greatest possible care is not to be expected, nor is "it required: but whoever seeks to excuse himself for having un"fortunately occasioned, by any act of his own, the death of an 66 (y) Rex v. Hull, Kel. 40. (z) Fost. 263. (a) Id. ibid. (b) Anon. O. B. 1704, 1 East. P. C. c. 5. s. 38. p. 263. |