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MANSLAUGHTER.

The unlawful killing of another without malice, Manslaughter. either express or implied. The malice referred to here

is the murder-malice, at the meaning of which we have

been endeavouring to arrive.

acter of the

In this crime, again, we shall find acts varying to Moral charthe utmost in their moral gravity and offensiveness. crime varies. Perhaps on no other charge do persons more often appear in the dock and leave it without a stain on their characters. To take one class of examples-it constantly happens after an accident in a mine or on a railway that some of those engaged in the management of the one or the other are required to meet a charge of manslaughter which is preferred against them.

Two kinds of manslaughter are distinguished:

i. Upon a sudden heat (termed voluntary).

ii. In the commission of an unlawful act (termed involuntary) (e).

i. Voluntary (so-called).-The distinguishing mark Voluntary manslaughter. of this sort of manslaughter is the provocation giving rise to sudden anger, during which the deed causing death is done. If upon a sudden quarrel two persons fight and one of them kills the other, the former will be guilty of manslaughter only, unless there are special circumstances which indicate evil design. But the act will be viewed in the less serious light of manslaughter only as long as the outburst of passion continues; not that the struggle need take place on the spot, for if

(e) The objectionableness of the terms "voluntary" and "involuntary," as opposed to each other, to denote varieties of the same crime, is obvious. There is no such thing as an involuntary crime. If the action be not a voluntary one it is not eriminal (v. p. 12). What seems to be meant is that in the one case death is anticipated, in the other it is not.

The instrument used is a

the two at once adjourn to another place to fight, it will still be only manslaughter. So, also, in other cases of grave provocation, as if one man pulls another's nose, or is taken in adultery with another's wife. But here again, on the same grounds, to reduce the homicide to manslaughter, the cause of death must be inflicted at once, while the provocation is still exercising its full influence. Otherwise the slaying will

be regarded as a deliberate act of revenge (f). It is needless to add that the plea of provocation will not avail if the provocation was sought for and induced by the slayer.

The instrument used when the person is acting under material point. provocation is also a material consideration. It may be said that the provocation must be of the gravest nature to render guilty of manslaughter only one who uses a deadly weapon, or otherwise shews an intention to do the deceased grievous bodily harm. But a slighter provocation will suffice if the instrument used is one not likely to cause death, as a stick, or a blow with the fist. In fact, the mode of resentment must bear a reasonable proportion to the provocation to reduce the offence to manslaughter (g).

distinguished

in selfdefence.

Manslaughter Manslaughter is to be distinguished from homicide from homicide in self-defence on sudden affray. In the latter, the ground for the blow, &c., is the necessity to take such a step for self-preservation; in the former, this necessity does not exist, but its place is taken by a sudden accession of ill-will.

Involuntary

ii. Involuntary (so-called) when the death, not being manslaughter. intended, is caused in the commission of an unlawful By this is meant that the unlawfulness of the act in which the accused is engaged is the ground

act.

(f) R. v. Hayward, 6 C. & P. 157.

(g) R. v. Steadman, Fost. 292.

of the homicide being regarded as manslaughter, and not homicide by misadventure merely. In the cases mentioned above under voluntary manslaughter, the death is caused by an unlawful act, but there that is not the distinguishing mark of the manslaughter. By "unlawful" here must be understood what is malum in se, and not what is merely malum quia prohibitum. Thus, then, if a man shooting at game by accident kills another, it is homicide by misadventure only, even although the party is not qualified (h).

act.

Here, again, we may observe that it is immaterial The unlawful whether the unlawfulness is in the act itself or (that which comes to the same thing) in the mode in which it is carried out. It must also be borne in mind that if the unlawful act is a felony, the homicide amounts to murder. An instance of manslaughter in the commission of an unlawful act is furnished when one person kills another while the two are playing at an unlawful game; of manslaughter in doing a lawful act in an unlawful manner,-when a workman throws down stones into a street where persons may but are not likely to be passing.

through

One form of doing an act in an unlawful manner is Manslaughter negligence. This consideration very frequently presents negligence. itself in manslaughter. It may be said generally that whatever constitutes murder when done by fixed design, constitutes manslaughter when it arises from culpable negligence; for example, when a near-sighted man drives at a rapid rate, sitting at the bottom of his cart, and thereby causes the death of a foot-passenger (i). Again, when a person without taking proper precautions does an act which is dangerous, though not unlawful in itself, as, for instance, shooting at a target from a distance of 100 yards with a rifle sighted at 950 yards, in the course of which he kills another person,

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Accessories before the fact.

Punishment.

although at a spot distant 393 yards from the firing point, he does a criminal act which in the law amounts to manslaughter (j). A large class of cases is that in which the death ensues from the treatment of disease. The man, whether a medical practitioner or not, is not indictable unless his conduct is marked by gross ignorance or gross inattention (k). Mere neglect on the part of a parent to provide medical aid for his child of tender years, in consequence of which his child dies, is not manslaughter, unless it is proved affirmatively that the death was caused or accelerated by such neglect; and medical evidence on behalf of the prosecution that the child's life probably might have been prolonged or saved by the parent calling in medical aid is not sufficient evidence to support a conviction (). With regard to negligence, there is a great difference between criminal and civil proceedings. The criminal law does

not recognize the defence of contributory negligence in manslaughter (m).

It is commonly said that in manslaughter there can be no accessories before the fact, because the act causing death is done without premeditation. But though this may be true in cases the gist of which is the sudden heat, it is easy to imagine cases in which this principle could not be maintained (n).

Manslaughter is a felony, punishable by penal servitude to the extent of life—or in lieu of, or in addition to, the penal servitude or imprisonment, a fine may be imposed (0). Cases of mere carelessness, &c., legally

(j) R. v. Salmon, 6 Q. B. D. 79; 50 L. J. (M.C.) 25; 43 L. T. N. S. 573

(k) R. v. Long, 4 C. & P. 398.

(1) R. v. Morby, 8 Q. B. D. 571; 51 L. J. (M.C.) 85; 46 L. T. N. S. 288; 30 W. R. 613.

(m) R. v. Swindall, 2 C. & K. 230; R. v. Jones, 11 Cox, 544. For other classes of acts which amount to manslaughter, the reader is referred to the classification of intents given below.

(n) v. R. v. Gaylor, cited above, p. 36.

(0) 24 & 25 Vict. c. 100, s. 5.

amounting to manslaughter, are often more appropriately punished by pecuniary fine than by the indignity of imprisonment.

Having inquired into the nature of the crimes of murder and manslaughter, we are now in a position to examine certain classes of acts, and determine by the circumstances whether they fall under the head of murder, manslaughter, or excusable homicide.

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i. Murder—Deliberately fighting a duel-or after time for cooling-or under any other circumstances indicating deliberate ill-will.

ii. Manslaughter-In a sudden quarrel where the parties immediately fight-or where the parties are fighting in an unlawful amusement.

iii. Excusable-In a sparring match with gloves, or other lawful amusement, fairly conducted in a private

room.

Killing by Correction:

i. Murder-With weapon likely to cause death, e.g., an iron bar.

ii. Manslaughter-With an instrument not likely to kill, though improper for use in correction-or where the quantity of punishment exeeds the bounds of moderation.

iii. Excusable-Correcting in moderation a child, servant, scholar, or criminal intrusted to one's charge.

Fighting.

Correction.

Killing without intending to kill whilst doing another In doing an

act:

i. Murder-If that other act is a felony.

unlawful act.

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