Where a defendant kept a gun 'loaded with printing types, in consequence of several robberies having been committed in the neighborhood, and sent a mulatto girl, his servant, of the age of about thirteen, for the gun, desiring the person in whose house he lodged to take the priming out; which he did, and told the girl so, and delivered the gun to her, and she put it down in the kitchen, resting on the butt, and soon afterwards took it up again, and presented it, in play, at the plaintiff's son, a young boy, saying she would shoot him, and drew the trigger, and the gun went off, and wounded the boy; it was held that the defendant was liable to an action for the injury. Lord Ellenborough, C. J.: "The defendant might and ought to have gone farther; it was incumbent on him, who, by charging the gun, had made it capable of doing mischief, to render it safe and innoxious. This might have been done by the discharge or drawing the contents; and though it was the defendant's intention to prevent all mischief, and he expected that this would be effectuated by taking out the priming, the event has unfortunately proved that the order to his landlord was not sufficient; consequently, as by this want of care the instrument was left in a state capable of doing mischief, the law will hold the defendant responsible."(u) And therefore it would seem, that if death had ensued the defendant would have been guilty of manslaughter. *854] If death ensues in consequence of a wrongful act, which the *party who commits it can neither justify nor excuse, it is manslaughter. An indictment charged that there was a scaffolding in a certain coal mine, and that the prisoners, by throwing large stones down the mine, broke the scaffolding; and that in consequence of the scaffolding being so broken, a corf, in which the deceased was descending the mine, struck against a beam, on which the scaffolding had been supported, and by such striking the corf was overturned, and the deceased precipitated into the mine and killed. It was proved that scaffolding was usually found in mines in the neighborhood, for the purpose of supporting the corves, and enabling the workmen to get out and work the mines; that the stones were of a size and weight sufficient to knock away the scaffolding, and that if the beam only was left, the probable consequence would be that the corf striking against it would upset, and occasion death or injury. Tindal, C. J.: "If death ensues as a consequence of a wrongful act, an act which the party who commits it can neither justify nor excuse, it is not accidental death but manslaughter. If the wrongful act was done under circumstances which show an intent to kill, or do any serious injury in the particular case, or any general malice, the offence becomes that of murder. In the present instance, the act was one of mere wantonness and sport, but still the act was wrongful-it was a trespass. The only question therefore is, whether the death of the party is to be fairly and reasonably considered as a consequence of such wrongful act; if it followed from such wrongful act, as an effect from a cause, the offence is manslaughter; if it is altogether unconnected with it, it is accidental death."(v) 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.(w) 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;(x) 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.(y) For in these last-mentioned cases the intention of the parties is not innocent in itself, each of manslaughter. The reason why an excess of violence is punishable is, that it is not in point of law attributable to the assault committed, but to the wrongful act of the party assaulted, and to hold the party assaulting guilty of the result of an excess of violence is to hold him guilty of the consequences of an act, of which the law not only holds him not to be guilty, but holds the other party to be guilty, or, to put it in still simpler terms, to hold him responsible for an act which the law holds not to be his act at all, but to be wholly the act of another person. (u) Dixon v. Bell, 5 M. & S. 198. (v) Fenton's case, 1 Lewin 179, Tindal, C. J. (w) Fost. 259, 260; 1 East P. C. c. 5, s. 41, p. 268. (x) Post, Chap. on Excusable Homicide. (y) Fost. 260. 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.(z) 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, and was also urged to engage by taunts; and the occasion was sudden.(a) There is no doubt that prize-fights are altogether illegal; *indeed, just as [*855 much so as that persons should go out to fight with deadly weapons, and it is not at all material which party strikes the first blow; and all persons who go to a prize-fight to see the combatants strike each other, and who are present when they do so, are in point of law guilty of an assault.(b) Where it appeared that there was a fight between the deceased and another person, at which a great number of persons were assembled, and that in the course of the fight the ring was broken in several times by the persons assembled, who had sticks, which they used with great violence, and the deceased died in consequence of blows received on this occasion, and for the prisoner it was attempted to be proved, that though he was present during the fight, yet he neither did nor said anything. Littledale, J., said, "If the prisoner was at this fight encouraging it by his presence, he is guilty of manslaughter, although he took no active part in it. My attention has been called to the evidence of those witnesses who have said that the prisoner did nothing; but I am of opinion that persons who are at a fight, in consequence of which death ensues, all are guilty of manslaughter, if they encouraged it by their presence: I mean if they remained present during the fight. I say if they were not casually passing by, but stayed at the place, they encouraged it by their presence, although they did not say or do anything. This is my opinion of the law of this case. ever, you ought to consider whether the deceased came by his death in consequence of blows he received in the fight itself; for if he came by his death by any means not connected with the fight itself, that is, if his death was caused by the mob coming in with bludgeons, and taking the matter as it were out of the hands of the combatants, then persons merely present encouraging the fight would not be answerable, unless they were connected in some way with that particular violence. If the death occurred from the fight itself, all persons encouraging it by their presence are guilty of manslaughter; but if the death ensued from violence unconnected with the fight itself, that is, by blows given not by the other combatant in the course of the fight, but by persons breaking in the ring and striking with their sticks, those who were merely present are not, by being present, guilty of manslaughter."(c) How 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, Foster, J., ruled it to be manslaughter; and, speaking of the custom, he says, "it is a barbarous, unmanly custom, frequently productive of great disorders, dangerous to the by-standers, and ought to be discouraged."(d) 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 [*856 or other, and by such means killing a person, will be manslaughter.(e) 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 the 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 (z) 1 East P. C. c. 5, s. 42, p. 270. (a) Ward's case, O. B. 1789, cor. Ashhurst, J.; 1 East P. C. c. 5, s. 42, p. 270. (b) Rex v. Perkins, 4 C. & P. 537 (19 E. C. L. R.), Patteson, J.; Rex v. Bellingham, 2 C. & P. 234 (12 E. C. L. R.), Burrough, J.; Rex v. Hargrave, 5 C. & P. 170 (24 E. C. L. R), Patteson, J. In the last case it was held, that persons present at a prize-fight were not such accomplices as to need corroboration. (c) Rex v. Murphy, 6 C. & P. 103 (25 E. C. L. R.), Littledale J., and Bolland, B. See also Reg. v. Young, 8 C. & P. 644 (34 E. C. L. R.). Ante, p. 729. (d) Fost. 261. (e) 1 Hawk. P. C. c. 29, s. 5. of the scabbard and the thrust not being effectually broken, the servant was killed by the point of the sword.(f) This was adjudged manslaughter: and Foster, J., 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.(g) 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.(h) It has been shown, that where a body of persons, resolving generally 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.(i) 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, was endeavoring in the night forcibly to regain the possession, and to fire the house, they were adjudged guilty only of manslaughter.(k) It is said, that perhaps it was so adjudged for this reason, that the person slain was so much in fault himself.(7) Sec. V.-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. 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 *857] it, and in the prosecution of his purpose causing the death of another person, guilty of murder.(m) 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 authorized to execute their duties in a proper and legal manner, notwithstanding any resistance which may be made to them;(n) 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. (0) There is a case reported in Strange, as a case of manslaughter, which, if the circumstances of it were as stated in that report, does not seem to have been entitled to so favorable 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 (f) Sir John Chichester's case, 1 Hale 472, 473; Alleyn 12; Keil. 108. (g) 1 Hale 473; Fost. 260; 1 East P. C. c. 5, s. 41, p. 269. But see in Hale 473, the following note:-"This seems a very hard case; and indeed the foundation of it fails; for the pushing with a sword in the scabbard, by consent, seems not to be an unlawful act; for it is not a dangerous weapon likely to occasion death, nor did it so in this case, but by an unforeseen accident, and therein differs from the case of justing or prize-fighting, wherein such weapons are made use of as are fitted and likely to give mortal wounds." (h) 1 Hale 475. (k) Drayton Basset case, Crom. 28; 1 Hale 440. (m) Ante, p. 747, et seq. (i) Ante, p. 738. (2) 1 Hawk. P. C. c. 31, s. 53. (0) Goffe's case, 1 Ventr. 216. 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 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.(p) This is reported to have been holden manslaughter, by reason of the first assault with the cane: but Foster, J., thinks it was a very extraordinary case, as thus reported; and mentions the following additional circumstances, which are stated in another report.(g) 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 [*858 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 endeavored 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.(r) Though resistance be made to an officer of justice, yet if the officer kill the party after the resistance is over, and the necessity has ceased, the crime will at least be manslaughter (8) 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 inquire whether it were done of necessity or not. (t) 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 manslaughter, if it appear that death was not intended.(u) Although an officer must not kill for an escape, where the party is in custody for a misdemeanor, yet if the party assault the officer with such violence that he has reasonable ground for believing his life to be in peril, he may justify killing the party. Upon a trial for murder it appeared that the prisoner, an excise officer, being in the execution of his office, had seized, with the assistance of another person, two smugglers in the act of landing whiskey from the Scottish shore, contrary to law; the deceased had surrendered himself quietly into the hands of the prisoner, but shortly afterwards, when the prisoner was off his guard, he assaulted him violently with an ash stick, which cut his head severely in several places, and he lost much blood, and was greatly weakened in the struggle which succeeded; the (p) Rex v. Tranter, Stra. 499. Ante, p. 714. (g) 6 St. Tri. 195; 16 St. Tri. (by Howell) 1. (r) Fost. 293, 294. (8) 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, p. 724. (t) East P. C. c. 5, s. 67, p. 298. (u) Fost. 271; 1 East P. C. c. 5, s. 70, p. 302. officer, fearing the deceased would overpower him, and having no other means of defending himself, discharged a pistol at the dsceased's legs, in the hopes of deterring him from any further attack, but the discharge did not take effect, and the deceased prepared to make another assault; that, seeing this, the prisoner warned him to keep off, telling him he must shoot him if he did not; but the deceased disregarded the warning, *and rushed towards him to make a fresh attack; *859] that he thereupon fired a second pistol, and killed him. Holroyd, J., told the jury, "an officer must not kill for an escape, where the party is in custody for a misdemeanor; but if the prisoner had reasonable ground for believing himself to be in peril of his own life, or of bodily harm, and no other weapon was at hand to make use of, or if he was rendered incapable of making use of such weapon by the previous violence that he had received, then he was justified. If an affray arises, and blows are received, and weapons used in heat, and death ensues, although the party may have been at the commencement in the prosecution of something unlawful, still it would be manslaughter in the killer. In this case it is admitted that the custody was lawful. The question is, whether, under all circumstances, the deceased being in the prosecution of an illegal act, and having made the first assault, the prisoner had such reasonable occasion to resort to a deadly weapon to defend himslf, as any reasonable man might fairly and naturally be expected to resort to." (v) In civil suits, if the party against whom the process has isued, fly from the officer endeavoring to arrest him, and be killed by him in the pursuit. it has been said that it will be murder.(w) 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.(x) In cases of pressing for the sea service, if the party fly, the 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, as far as they are authorized 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 halyards, 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.(y) 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 at law, though no bodily *860] hurt were intended, it was holden to be manslaughter, and the *defendant was burned in the hand.(z) 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 or boat in her Majesty's navy, having the proper pendant and ensign of her Majesty's ships hoisted, or by any vessel or boat duly employed for the prevention of smuggling, having a proper pendant and ensign hoisted, it shall be lawful for the captain, master, or other person, having the charge or command of such vessel in her 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 (v) Forster's case, 1 Lewin 187, Holroyd, J. (x) Fost. 271. (z) 1 East P. C. c. 5, s 75, p. 308. (w) By Lord Hale, 1 Hale 481. |