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The cases of nicety which occur, are where doubt exists as to the intention of the person killed, and the circumstances which will vindicate the use of lethal weapons, where the felonious intent is not fully declared; for no assault, how violent soever, will justify the killing of the assailant under the plea of necessity, unless there be a plain manifestation of a felonious intent;1 and a man cannot be justified in killing on the plea of necessity, unless he is wholly without fault in bringing that necessity upon himself. In the case of Lovat, it appeared that, being in bed and asleep, his servant came to the door about twelve at night, conceiving that she heard thieves, and awakened her master. He immediately rose, and, with a drawn sword, proceeded down stairs. Meanwhile a young woman, who had been in the house to assist in washing, hearing the noise, ran into the pantry; upon which Lovat's wife exclaimed, There are the thieves, and he himself entering hastily, and not knowing who she was in the dark, stabbed her hastily, of which she instantly died. This was ruled to be misadventure; but Judge Foster considers it should have been adjudged manslaughter, as due care and circumspection had not been used. The better opinion, however, seems to be, that the homicide was justifiable, as proceeding not only on mistake, but on circumstances which rendered mistake nowise blameable. It differs from the case of Scott at Dumfries, September 1830, already noticed,5 in this important particular, that the pannel had here reason to believe that a thief was in the house, and he was unsupported; whereas there, two men were in the room, and the man who had got into the house was in the act of forcing his body through the iron bars of the window to make his escape.

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SECTION IV.-CASUAL HOMICIDE.

1. It is Casual Homicide where a person kills unintentionally, when lawfully employed, and neither meaning harm to any one, nor having failed in the due degree of care and circumspection for preventing mischief to his neighbour.

1 East. i. 277.2 Hale, i. 405, 440, 441; Russell, i. 551.3 Hale, i. 474. -1 Foster, i. 299.-5 Supra 104.

Under this class are comprehended all those cases, unfortunately too numerous, in which death ensues, not from any fault in any quarter, but from some misfortune or accident, and where, consequently, the person who is the innocent cause of another's death is more the subject of pity than punishment. Thus, if a person's gun burst in his hand, and kill his neighbour; or if the trigger be caught in going through a hedge, and the contents of the piece lodge in his breast; or a horse run away with its rider, in spite of all his efforts, and though he had no good reason to have believed he could not manage it, and kill a passenger on the road; or a cart go over a child in the street, though the driver was going moderately, and at his horse's head, and was so situated that he could not see it; or a coach drive over a person who foolishly attempted to crossbefore the horses heads, where they were going at the usual pace; or a steam-boat run down another vessel, owing to the darkness of the night or a thick mist, when every usual pre-› caution to avoid a collision had been taken; in these, and the like cases, no blame is imputable to the party who occasioned the misfortune, and he is entitled to an honourable acquittal. The best definition which can be given of this kind of homicide is, that it obtains, when a person kills unintentionally, when lawfully employed, and neither meaning harm to any one, nor having failed in the due degree of care for pre-. venting danger to his neighbour.1

2. It will be construed as casual homicide, though the fatal result might, by extreme care, or a totally different course, have been avoided, if, in the circumstances, the due degree of care has not been wanting on the part of the person who has inflicted the injury.

Cases of this sort usually occur, where the fatal event arises from some latent weakness and malady, unknown to the pannel, who has done nothing which could have injured a person in the health, which the appearance of the deceased gave reason to presume he possessed. Thus, in the case of William Bathgate, the defence was sustained that the death of the deceased was solely owing to a fall, which happened in the

1 Hume, i. 194,

course of a wrestling-bout for sport, and only proved injurious to the deceased, in consequence of his previous valetudinary condition. In like manner, in the case of William Murphie, 13th January 1810, it appeared that the deceased had engaged in a struggle with the pannel, in his (the pannel's) own house, where he had struck and abused him in a violent manner. The pannel, in the struggle, had twisted his hand in the outer fold of the man's neckcloth, which drew the inner fold tight round his neck, and strangled him. Now, here resistance to the assault was clearly justifiable, and there was no evidence that the consequence of the seizure of the outer fold was either known or could have been reasonably foreseen.2 Again, in the case of James Grant, May 14. 1830, the pannel was acquitted though he had rode over two women on the footpath, near Stockbridge, Edinburgh, and killed one, as it appeared in evidence that the horse, which was a young one, had run off with its rider, who could not manage it, in consequence of some boys clapping their hands. So also in the case of William Buchan and Alexander Macintyre, December 14. 1829, the pannels were the captain and mate of a steam-boat, which occasioned the death of two individuals in the harbour of Greenock. It appeared in evidence, that the deceased had set out in a small boat, with a cable from a sailing vessel lying about one hundred yards from the quay at Greenock, and which was warping in to the pier, to proceed to the shore, in order to make the vessel fast to the pier-head. Before they had proceeded far, a steam-boat, under the guidance of the pannels, came up, and steered between the vessel and the shore, directly across the line of the boat's progress, moving at the rate of about nine miles an hour. The cable which attached the boat to the vessel had sunk into the water, and of course could not be seen; and the steam-boat coming rapidly forward, came upon the small boat, sunk it, and drowned two of the boatmen. There was a good look-out kept at the bow of the steam-boat, and the evidence shewed that the little boat was seen, but that no change of direction was deemed necessary, because if the boat had proceeded with the usual rapidity, it would have cleared the steam-boat. In this way no alteration was made till it was too late to prevent a collision.

1 Hume, i. 194.2 Ibid. i. 195.

The anchor was raised on the sailing vessel; but it was not placed in such a situation as to insure its being seen from the steam-boat, and it was not known to those on board the steamboat that the sailing vessel was warping in, though, by greater care, they might have seen it. The accident, therefore, was owing to the cable, which retarded the advance of the small boat, not being seen, and the Court, considering the homicide nowise blameable, directed an acquittal. The difficulty of the case consisted in this, that the motion of the steam-vessel had not been retarded, when so near the quay, and in a situation where the passage of other boats or vessels might so naturally have been expected, and that the steamer, contrary to usage, went between a vessel, which they might have seen, by a little attention, was warping in to shore, and the quay, instead of keeping on the outside, where there was plenty of water, and no risk whatever,-and, when these particulars are duly weighed, it will probably be thought that the pannels had good reason to congratulate themselves on the result of their trial.

In the case of Mr Campbell of Borland, Perth, autumn 1831, it appeared that the deceased had come to the house of the pannel at night, and asked to get in, as he had a letter to give to Mr Campbell. Hearing the noise, the pannel rose, and took a double-barreled gun loaded with small-shot, with which he went out to the door, and asked the man what he wanted, desiring him, at the same time, to go off, or he would fire. The deceased immediately retired, and soon after both barrels of the gun went off, and the man was killed at the distance of twenty yards. The pannel alleged in defence, that he stumbled on the ground, which was proved to be rough and slippery, and that the gun went off by accident, and this was rendered probable by the shot slanting upwards in the body of the deceased. Lord Moncrieff laid it down that intentional firing, in these circumstances, while the deceased was retreating, would have been clearly culpable; but that there was not sufficient evidence to shew that the gun was fired intentionally, or disprove the pannel's defence of accident, and the jury accordingly acquitted him.

By the English law, Casual is termed Excusable Homicide by Misadventure, and is defined "where one doing a lawful

1 Unreported,

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act, without any intention of bodily harm, and using the proper precaution to prevent danger, unfortunately happen to kill another." Thus, if people following their lawful occupations, use due care to prevent danger, and nevertheless a person is killed, this will be deemed misadventure; or if workmen throw stones, rubbish, or other things, from a house in the ordinary course of their business, and a person is killed; this will be misadventure if it be done in a retired place, but manslaughter if in a place where there was any reasonable probability of persons passing. In like manner, if a man go at a trot in an ordinary road, with a cart, and go over a person, it will be misadventure; but if this be done in a place where people usually pass it will be manslaughter. If a person be riding a horse, which springs out of the road, and kill a child, from a whip being cracked, or being lashed by another person, this is misadventure in the rider, but manslaughter in the person who lashed the animal.1 When a farmer set himself, in the night time, to watch his corn, which had been much injured by deer, and set his servant in another corner of the field to watch, also armed with a gun, with orders to shoot whenever he heard a noise among the corn; and soon after, forgetting his own orders, rushed into the corn himself, and was shot by his servant, thinking the noise proceeded from a deer, this was adjudged misadventure; but Hale held that if the master had not given such orders, it would have been manslaughter, because the servant fired before he saw the deer's mark.5 In like manner it is misadventure only, if a commander, coming in the semblance of an enemy upon a sentry in the night, to try his vigilance, is taken for one, and shot as such.

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3. The caution which the law requires is not the utmost caution that can be used, but such reasonable precaution as is used in similar cases, and has been found by long experience, and in the ordinary course of things, to answer the end."

Thus, in a case reported by Foster, a man went to his friend's house, carrying his gun with him; but before he went to dinner he discharged it. Returning home with his wife at night, he

1 Russell, i. 539; East. i. 221.—2 Hale, i. 472; Foster, 262.—3 East. i. 263. -1 Hawk. i. c. 29. § 3.—5 Hale, i. 476.—6 Ibid. i. 42.-7 Foster, 264.

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