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" other, ought at least to shew that he took that care to avoid it, “ which persons in similar situations are accustomed to do.”(c)

There is one species of criminal negligence, punishable by the provisions of the statute law, which may be mentioned in this place, though the offence is not made manslaughter. By the 10 Geo. 2. c. 31. if any waterman, between Gravesend and Windsor, receive into his boat or barge a greater number of persons than the act allows, and any passenger be then drowned, such waterman, being thereof lawfully convicted, is guilty of felony, and liable to be transported as a felon.(d)

ceive into bis, and any passengvicted, is guil

SECT. VII.

Of the Indictment anıl Judgment.

Indictment.

Judgment and

hmept.

The indictment for manslaughter differs from the indictment for the higher crime of murder, in the omission of any statement as to malice, and of the conclusion that the party accused did kill and “ murder:" and we have seen that a bill of indictment for murder may be converted into one for manslaughter, by striking out such statement and conclusion.(e)

The offence of manslaughter is felony within the benefit of clergy; the punishment of which was formerly burning in the hand, and forfeiture of goods and chattels. (f) By the 19 G. 3. c. 74. the court had the power (which was generally exercised) of imposing upon the offender such a moderate pecuniary fine, as the circumstances of the case seemed to require, with imprisonment for any term not exceeding a year. (g) But by a late statute a more severe punishment may be inflicted. The 3 G. 4. c. 38. s. 1., reciting that the punishment of burning in the hand had long been deemed ineffectual and inexpedient, and that the other punishments of manslaughter were frequently inadequate to the aggravated circumstances of the offence, enacts, “ that whenever " any person shall be lawfully convicted of the offence of man“ slaughter, such person shall not be liable to be burned or “ marked in the hand, or in any part thereof, but such person “ shall be liable to be transported beyond the seas for the term of “ his or her natural life, or for any term of years, as the court “ before which any such person shall be convicted shall adjudge;

(c) 1 East. P.C. c. 5. s. 38. p. 263, P. C. c. 5. s. 38. p. 264. and see now 264.

50 G. 3. c. 48. by which the 28 G. 3. (d) It has been observed, that this c. 57. 30 G. 3. c. 36. and 46 G. 3. C. may serve as a caution to stage coach. 136. are severally repealed, and vamen and others, who overload their rious new regulations are enacted. carriages for the sake of lucre, to the (c) Ante, 471. great danger of the lives of the pas (f) i Hale 466. 4 Blac. Com. 193. sengers; The number of whom are re- (g) 19 G. 3. c. 74. S. 3 & 4. East. gulated by act of parliament. East. P. C. c. 5, s. 4. p. 218.

“ or shall be liable, in case the said court shall think fit, to be “ imprisoned only, or to be imprisoned and kept to hard labour “ in the common gaol, house of correction, or penitentiary house, “ for any term not exceeding three years; or shall be liable to “ such a pecuniary fine, as to the said court, in its discretion, “ shall seem meet; and such fine or other punishment imposed by “ virtue of this act, shall have the like effects and consequences “ to the party on whom such fine or other punishment shall be so “ imposed, with respect to any discharge from the same or other “ felonies, or any restitution to his or her estates, capacities, and “ credits, as if he or she had continued liable to the former pu“ nishment of burning or marking in the hand, and had suffered “ such former punishment.”

The benefit of clergy is taken away from one species of manslaughter; namely, mortally stabbing another under circumstances within the statute | Jac. 1. c. 8. which has been treated of in a former part of this Chapter.(*)

(1) Ante, 490. And see 4 Blac. Com. 193. 1 East. P. C. c. 5. 8. 4. p. 218.

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We may now properly proceed to treat of such homicide as, not amounting even to manslaughter, must be considered either as excusable or justifiable: excusable when the person, by whom it is committed, is not altogether free from blame; and justifiable when no blame whatever is attached to the party killing.

Excusable Homicide is of two sorts; either per infortunium, by misadventure; or se et sua defendendo, upon a principle of self-defence. The term excusable homicide imports some fault in the party by whom it has been committed ; but of a nature so trivial that the law excuses such homicide from the guilt of felony, though in strictness it deems it to be deserving of some degree of punishment. It appears to be the better opinion, that the punishment inflicted for this offence was never greater than a forfeiture of the goods and chattels of the delinquent, or a portion of them : (a) and, from as early a time as our records will reach, a pardon and writ of restitution of the goods and chattels have been granted as a matter of right, upon payment of the expenses of suing them out. At the present time, in order to prevent this expense, it is usual for the Judges to permit or direct a general verdict of acquittal in cases where the death has notoriously happened by misadventure, or in self-defence. (b) There may, however, be cases so bordering upon, and not easily distinguishable from, manslaughter, that the offender may, with propriety, be put to sue out his pardon, according to the provisions of the statute of Gloucester, (c) and consequently not be entitled to a general verdict of acquittal. (d)

Justifiable homicide is of several kinds : as it may be occasioned by the performance of acts of unavoidable necessity, where no shadow of blame can be attached to the party killing; or by acts done by the permission of the law, either for the advancement of public justice, or for the prevention of some atrocious crime.

(a) 4 Blac. Com. 188. The penalty for this offence is said by Sir Edward Coke to have been anciently no less than death, 2 Inst. 148, 315. : but this is denied by other writers, 1 Hale P. C. 425. i Hawk. P. C. c. 29. S. 20,

et sequ. Fost. 282.

(6) 4 Blac. Com. 188. Fost. 288. 1 East. P.C. c. 5. s. 8. p. 222.

(c) 6 Ed. 1. c. 9.
(d) Fost. 289.

SECT. I.

Of Excusable Homicide by Misadventure.

HOMICIDE by misadventure is where one doing a lawful act, with- Persons doing out any intention of bodily harm, and using proper precaution to a lawful act prevent danger, unfortunately happens to kill another person. (e) ir

kill another person and happening

to kill. The act must be lawful; for if it be unlawful, the homicide will amount to murder, or manslaughter, as has been already shewn: (f) and it must not be done with intention of great bodily harm; for then the legality of the act, considered abstractedly, would be no more than a mere cloak, or pretence, and, consequently, would avail nothing. The act must also be done in a proper manner, and with due caution to prevent danger.(g)

Thus, if people, following their common occupations, use due persons folcaution to prevent danger, and nevertheless happen, unfortunately, lowing their to kill any one, such killing will be homicide by misadventure. As common oca

cupations. 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, this will be misadventure only, if it were done in a retired place, where there was no probability of persons passing by, and none had been seen about the spot before, or if timely and proper warning were given (h) to such as might be below. And the party will not be more criminal who is working with a hatchet, when the head of it flies off, and kills a by-stander. (k) So, where a person, driving a cart or other carriage, happens to drive over another and kill him, if the accident happened in such a manner that no want of due care could be imputed to the driver, it will be accidental death, and the driver will be excused. (1) A. was driving a cart with four horses in the highway at Whitechapel, he being in the cart; and the horses being upon a trot, threw down a woman who was going the same way with a burthen upon her head, and killed her. Holt, C. J., Tracey, J., Baron Bury, and the Recorder Lovell, held this to be only misadventure : but by Lord Holt, if it had been in a street where people usually pass, this had been manslaughter. (m) And, upon the same ground of no want of due care being imputable to the party, in a case where a person was riding a horse, and the horse, being whipt by some other person, sprang out of the road, and ran over a child and killed it, this was held to be misadven

(e) 1 East. P. C. c. 5. s. 8. p. 221. c. 5. s. 38. p. 262. and s. 36. p. 260, 261. Fost. 258. T. (1) 1 Hawk. P. C. c. 29. s. 2. Hawk. P. C. c. 29. s. 1.

(1) Fost. 263. i Hale 470. (f) Ante, 452, et seq. 526, et seq. (m) 0. B. Sess. before Mich. T. (g) 1 East. P. C. c. 5. s. 36. p. 261. 1704. MS. Tracy 32. 1 East. P. C. c. (h) Ante, 535.

5. s. 38. p. 263.; and see observations i) i Hale 472. 475. 1 Hawk. P.C. on this case, ante, 535. c. 29. s. 4. Fost. 262. 1 East. P. C.

ture only in the rider, though manslaughter in the person who

whipped the horse. (12) Persons using As the degree of caution to be employed depends upon the prodangerous ar• bability of danger, it follows that persons using articles or instruticles, or instruments.

ments, in their nature peculiarly dangerous, must proceed with such appropriate and reasonable precaution as the particular circumstances may require. Thus, though where one lays poison to kill rats, and another takes it and dies, this is misadventure : yet it must be understood to have been laid in such manner and place as not easily to be mistaken for proper food; for that would betoken great inadvertence, and might in some cases amount to inanslaughter. (0)

A., having deer frequenting his cornfield, out of the precinct of any forest or chase, set himself in the night-time to watch in a hedge, and set B., his servant, to watch in another corner of the field, with a gun charged with bullets, giving him order to shoot, when he heard any bustle in the corn by the deer. The niaster afterwards improvidently rushed into the corn himself: and the servant, supposing it to be the deer, shot and killed the master. This was ruled to be misadventure, on the ground that the servant was misguided by his master's own direction, and was ignorant that it was any thing else but the deer. It seemed, however, to the learned judge who so decided, (p) that if the master had not given such direction, which was the occasion of the mistake, it would have been manslaughter, because of the want of due caution in the servant to shoot before he discovered his mark. (9) But upon this it has been remarked, that if, from all the other circumstances of the case, there appeared a want of due caution in the servant, it does not seem that the command of the master could supply it, much less could excuse him in doing an unlawful act: and that the excuse of having used ordinary caution can only be admitted where death happens accidentally in the prosecution of some lawful act. (ro) By the same rule as to due caution being observed, it has been holden to be misadventure only, where a commander coming upon a sentinel in the night, in the posture of an enemy, to try his vigilance, is killed by him as such; the sentinel not being able to distinguish his commander, under such

circumstances, from an enemy. (s) As to the de. But it should be observed, that the caution which the law regree of cau

quires, is not the utmost caution that can be used : it is sufficient tion which must be ob that a reasonable precaution be taken; such as is usual and ordiserved in the nary in similar cases; such as has been found, by long experience

ere in the ordinary course of things, to answer the end. This ous instru

proper modification of the rule respecting caution does not appear to have benn sufficiently attended to in the following case. A man found a pistol in the street, which he had reason to believe

(n) i Hawk. P. C. c. 29. s. 3. , but considers the question as of great

(o) i Hale 431. 1 East. P. C. c. 5. difficulty. The case was, however, deS. 40, p. 266.

terinined at Peterborough, as stated in (p) Lord Hale.

the text. (q) i Hale 476. The same case is (r) i East. P. C. c. 5. S. 40. p. 266. previously mentioned, 1 Hale 40.where (8) i Hale 42. the learned author seems to think that (1) Fost. 264. the offence announted to manslaughter;

and united me to act Fonden Holde

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ments.

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