the Bill these cases would amount to murder only if the offender knew their danger.

The difference between the Draft Code and the Bill upon the whole comes to this. A. in order to facilitate robbery, pushes something into B's mouth to stop his breath and thus prevent him from crying out; the death of B results. This is murder according to the Draft Code. According to the Bill it is murder if A. knew that such an act would probably cause death; manslaughter if he did not.

A few years ago a case occurred in the Western Circuit (1) which illustrates the principle on which this portion of the Draft Code is framed better than any hypothetical case. An innocent girl on her way to church had to pass over a stile into a narrow wooded lane and then go out of it by a stile on the other side. A ruffian who knew this lay in wait for her, muffled her head in a shawl to stifle her cries and proceeded to drag her down the lane towards a wood. She died before she reached it. He was executed for the murder. It is plain he did not mean to kill her; indeed his object was frustrated in consequence of her not reaching the wood alive, and he probably was not aware that stifling her breath for so short a time was dangerous to life; but as the law at the time was and now is, the death having been occasioned by violence used to facilitate the commission of a rape, the offence was murder. And we believe there are few who would not think the law defective if such an offence was not murder.

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Again, A stabs B in the leg, not intending to kill him; B dies. According to the Bill this would be murder if the jury thought the act showed an intent to do grievous bodily harm, or if without such intent it was done with knowledge that it would probably cause death or grievous bodily harm. According to the Draft Code it would be murder if the jury thought the act was meant to cause B an injury known to A to be likely to cause death, he being reckless whether it caused death or not. It will thus be seen that the Bill and the Draft Code approach each other very closely."

219. When a child becomes a human being.—A child becomes a human being within the meaning of this Act when it has completely proceeded, in a living state, from the body of its mother, whether it has breathed or not, whether it has an independent circulation or not, and whether the navel string is severed or not. The killing of such child is homicide when it dies in consequence of injuries received before, during, or after birth.

This seems to be a statement of the common law on the subject, (2) in accordance with which it has been held that a child within its mother's womb is not a being upon whom culpable homicide can be committed. It must be born. (3). That is to say, in order to be the subject of homicide it must, if an injury be inflicted upon it while in its mother's womb have afterwards completely proceeded in a living state from its mother's body, and then if it afterwards die through the injury previously received the injury so inflicted and the subsequent death would constitute homicide.

Coke says: "If a woman be quick with child, and by a potion or otherwise killeth it in her womb, or if a man beat her whereby the child dieth in her body and she is delivered of a dead child, this is a great misprision, and no murder; but if the child be born alive and dieth of the potion, battery, or other cause, this is murder." (4)

Reg. v. Gilbert, known as the Fordingbridge murder. See "The Times," 19 July 1862.

(2) Řex v. Crutchley, 7 C. & P. 814; Rex v. Sellis, 7 C. & P. 850; Rex v. Poulton, 5 C. & P. 329; Rex v. Reeves, 9 C. & P. 25; Reg. v. Trile, C. & M. 650;

2 Moo., 260.

(3) Rex v. Brain. 6 C. & P. 349; 2 Bish. New Cr. L. Com., ss. 632, 633. (4) 3 Inst. 50; See also Reg. v. West, 2 Car. & K. 784; Rex v. Senior, 1 Moo. 346; 2 Bish. New Cr. L. Com., s. 633.

220. Culpable homicide.-Homicide may be either culpable or not culpable. Homicide is culpable when it consists in the killing of any person, either by an unlawful act or by an omission, without lauful excuse, to perform or observe any legal duty, or by both combined, or by causing a person, by threats or fear of violence, or by deception, to do an act which causes that person's death, or by wilfully frightening a child or sick person.

2. Culpable homicide is either murder or manslaughter.

3. Homicide which is not culpable is not an offence.

To constitute culpable homicide under the terms of this article there must be. 1. An unlawful act done; or

2. An omission, without lawful cxcuse, to perform or obser a legal duty; or 3. (a) A threatening of violence, (b) an arousing of fear of violence, or (c) the use of deception, causing the person, so threatened, or put in fear, or deceived, as the case may be, to do an act causing his or her death; or

4. A wilful frghtening of a child or sick person.

In an English case, before Denman, J., a man who had frightened a child to death was convicted of manslaughter. (1)

The following case, (although the injury caused did not result in loss of life) is an illustration of the principle upon which is based that part of the above article which makes it culpable homicide in a person who either by threatening violence towards, or by creating fear or violence in another, causes that other to do an act resulting in his or her death.

A woman in order to escape from the violence of her husband, who had used threats against her life, got out of a window, and in so doing fell to the ground and broke her leg. The husband was convicted of having wilfully and maliciously inflicted grievous bodily harm on his wife. Held, correct. Lord Coleridge, C. J., said: "I am of opinion that the conviction in this case is correct, and that the sentence should be affirmed. The principle seems to me to be laid down quite fully in Reg. v. Martin, 8 Q. B. Div. 54; 14 Cox C. C. 633. There, this court held that a man who had either taken advantage of or had created a panic in a theatre, and had obstructed a passage, and had rendered it difficult to get out of the theatre, in consequence of which a number of people were crushed, was answerable for the consequences of what he had done. Here, the woman came by her mischief by getting out of the window-I use a vague word on purpose- and in her fall broke her leg. Now that might have been caused by an act which was done accidentally or deliberately, in which case the prisoner would not have been guilty. It appears from the case however that the prisoner had threatened his wife more than once, and that on this occasion he came home drunk, and used words which amounted to a threat against her life, saying, I'll make you so that you can't go to bed;' that she, rushing to the window, got half out of the window, when she was restrained by her daughter. The prisoner threatened the daughter, who let go, and her mother fell. It is suggested to me, by my learned brother, that supposing the prisoner had struck his daughter's arm without hurting her, but sufficiently to cause her to let go, and she had let her mother fall, could anyone doubt but that that would be the same thing as if he had pushed her out himself? If a man creates in another man's mind an immediate sense of danger which causes such person to try to escape, and in so doing he injures himself, the person who creates such a state of mind is responsible for the injuries which result. I-think that in this case there was abundant evidence that there was a sense of immediate danger in the mind of the woman, caused by the acts of the prisoner, and that her injuries resulted from what that sense of danger caused her to do." The other judges concurred. (2)

•

See also, (similar case), R. v. Evans, 1 Russ. Cr. 5 Ed. 651.

(1) R., v. Towers, 12 Cox C. C. 530.

(2) Reg. v. Halliday, 51 L. J. Rep. (N. S.) 701.

Non-culpable homicide.-Besides the above divisions of homicide into culpable and non-culpable, and of culpable homicide into murder and manslaughter, homicide which is not culpable may be divided into that which is (a) justifiable, and that which is (b) excusable. (1)

Justifiable homicide.-Blackstone subdivides justifiable homicide into two classes, (2) namely:

1. Homicide which is done under the necessity which arises in the exercise of an office, which makes it compulsory,-in executing public justice, under judicial command,-to put to death a malefactor who has forfeited his life by the laws and verdict of his country (3). In this case, however, the law must require it; it must be done by authority of a judicial sentence, or it is not justifiable, and, therefore, wantonly to kill the greatest of malefactors deliberately, uncompelled and extra-judicially, is murder.

2. The other class of justifiable, homicide is, according to Blackstone, that which occurs in the advancement of public justice, and in which the act, though not commanded, is permitted; as where the killing happens in preventing crime, (4) or in the arrest of persons guilty or accused of crimes, (5) or in preventing escapes or rescues from arrest or from custody, (6) or in suppressing riots &c. (7)

As already remarked (8) the general rule allowing the use of necessary force to prevent the commission of a criminal offence is, by article 44, ante, made to include the prevention of any offence for which under the present code an arrest may be made without warrant. As the ground of justification of homicide committed in preventing a criminal offence, accompanied with violence, is that of necessity, the necessity must continue to the time of the killing, or it will not justify it; and the killing of an offender, for instance, after being properly secured, and after all apprehension of danger has ceased, would not be justifiable but it would be murder, unless,-when it was done, -the blood was still hot from the contest or pursuit; and then, on that account, it might be held to be only manslaughter. (9)

Excusable Homicide.

Blackstone divides execusable homicide into, 1, Homicide per infortunium or misadventure; and 2. Homicide in self-defence, or se defendendo.

Homicide per infortunium, or misadventure, is such as occurs where a man, in the doing of a lawful act, without any negligence and with no intention to injure, unfortunately kills another.

ILLUSTRATIONS.

A is at work with a hatchet, the head of which flies off and kills B, a bystander. This is excusable homicide by misadventure. (10)

(1) Broom's Com. L. 910.

(2) 4 Bl. Com. 178, 179.

(3) See articles 15, 18, 19 and 31, ante pp. 16, 17 and 24, (and comments), as to justification and powers of ministerial officers in the execution of judicial

sentences &c.

(4) Reg. v. Huntley, 3 Car. & K. 142; See article 44, (and comments), ante p. 28, as to justification of force used in preventing the commission of offences. (5) See article 31, ante p. 24, as to justification of force used in making

arrests &c.

in

(6) See articles 33, 34, 35, 36, and 37. ante p. 25, as to justification of force used

preventing escapes

and rescues.

(7) See articles 40, 41, 42, 43, 83 and 84 (and comments), ante pp. 27, 28

and pp. 52 and 53, as to suppression of riots.

(8) See ante p. 29.

Ed. 852. See also Rex v. Scully, 1 C. & P. 319. (9) East P. C. c. 5, s. 60, p. 293; 4 Bl. Com. 185; 1 Hale 485; 1 Russ. Cr. 5

(10) 1 Hawk, P. C., c. 29, s. 2.

A, a person qualified to keep a gun, is shooting at a mark, and undesignedly kills B. A is excused.

A parent or a master who, in moderately correcting his child, or his apprentice or servant, happens to occasion his death, is excused, on the ground that the killing is only misadventure. For the act of correction is lawful; but if he exceeds the bounds of moderation, either in the manner, the instrument, or the quantity of punishment, and death ensues, it is manslaughter at least, and in some cases (according to the circumstances) murder; for the act of immoderate correction is unlawful. For instance, where an apprentice, on being chided by his master for neglecting some work, made a sharp answer, and the master struck and killed the apprentice with a bar of iron which he had in his hand, it was held murder. (1)

A whips a horse upon which B is riding, in consequence of which the horse takes fright and before B can check him runs over and kills C, a child. This is accidental as to B, for he has done nothing unlawful; but it is manslaughter in A, for his act, being a trespass, was unlawful. (2)

Self-defence. Homicide in self-defence, (sometimes also called chancemedley), is such as occurs where a man being violently attacked, is obliged to kill his assailant in order to save his own life. The right of self-defence proceeds from and is limited by necessity. It begins where necessity begins, and ends where necessity ends; and therefore the defending party in order to be excused must exercise only such power and apply only such instruments as will simply prove effectual; nothing more. For instance, one, on whom another is making a mere assault with his fist, must not instantly stab him. Even where another is meditating the taking of one's life, this extreme defence cannot lawfully be resorted to until some overt act is done in pursuance of the meditation; in other words till the danger becomes immediate. (3) Still, a person, assaulted by another who has threatened to kill him, is not, as a matter of course, required to run, and thus increase his danger by exposing himself to a repetition of his assailant's attempt when, with his back turned, he cannot so well resist or protect himself. And where an attack is made, with murderous intent, evinced by a sufficient overt act, the person attacked is under no duty to fly; but may stand his ground, and kill his adversary, if such killing become necessary in order to save himself. (4)

On this subject the Royal Commissioners in their report make the following remarks:

"We take one great principle of the common law to be that, though it sanctions the defence of a man's person, liberty and property against illegal violence, and permits the use of force to prevent crimes, to preserve the public peace, and to bring offenders to justice, yet all this is subject to the restriction that the force used is necessary; that is, that the mischief sought to be prevented could not be prevented by less violent means; and that the mischief done by, or which might reasonably be anticipated from the force used is not disproportioned to the injury or mischief which it is intended to prevent. This last principle will explain and justify many of our suggestions. It does not seem to have been universally admitted; and we have therefore thought it advisable to give our reasons for thinking that it not only ought to be recognised as the law in future, but that it is the law at present.'

In an elaborate note at the end of their Report the Royal Commissioners have the following further remarks by way of argument on the subject:

"The proposition that the force used in defence of person, liberty or property must be proportioned to the injury or mischief which it is intended to prevent, is, in our opinion, one of great importance, yet it seems not to have commended itself to the minds of highly respectable authorities. We think it right, first, to

(1) Rex v. Grey, Kel. 64; Fost. 262. See article 55, ante, p. 34, and article 58, anle, p 35.

(2) 4 Bl. Com. 182, 183; 1 Hawk. P. C., c. 29, s. 3.

(3) 1 East P. C. 272.

(4) Fost. 273; 3 Inst. 56; 1 East P. C. 271.

1

call attention to the mode in which the subject was dealt with in Lord St. Leonard's Bill. The first part of sec. 88 of that Bill was as follows: Homi⚫cide shall be justifiable where one, in lawful defence of his person, repels force by force, and, using no more violence than he has reasonable cause for believing to be necessary for the purpose of self-defence, kills the assailant.' Had this been passed unaltered into law, it would have justified every weak lad, whose hair was about to be pulled by a stronger one, in shooting the bully if he could not otherwise prevent the assault.

•

Again, sect. 90 says, Homicide shall be justifiable' (not merely reduced from murder to manslaughter) where one in defence of moveable property in his lawful possession, repels force by force, and, using no more force than he has reasonable cause for believing to be necessary for the defence of such property against wrong. kills the wrong-doer.' If two roughs, who each claimed a game-cock, and insisted on taking it home, quarrelled, and the weaker stabbed the stronger to the heart, this would, if made law, have justified the slayer, if he turned out to be the rightful owner of the bird, and could not otherwise have prevented its being taken away.

"And Section 91 says: Homicide shall be justifiable where one, in defence * of house or land in his lawful possession, resisting a person, endeavouring by force to enter into or upon such house or land, repels force by force, and using no more force than he has reasonable cause for believing to be necessary for the defence of his possession, kills the wrong-doer. It is the more singular that this last clause should have been drawn as it is, because Lord Tenterden in a case which at the time attracted much attention laid down law directly opposed to it. It was the case of R. v. Moir, tried before Lord Tenterden at Chelmsford. (1) Mr. Moir, having ordered some fishermen not to trespass on his land, took a short cut, and found the deceased and others persisting in going across. He rode up to them and ordered them back. They refused to go, and there was evidence of angry words and some slight evidence that the deceased threatened to strike Mr. Moir with a pole. Mr. Moir shot him in the arm and the wound ultimately proved fatal. Before the man died, or indeed was supposed to be in danger, Mr. Moir avowed and justified his act, and said that in similar circumstances he would do the same again. This land, he said, was his castle and as he could not without the use of fire-arms prevent the fishermen from persisting in their trespass, he did use them, and would use them again. Lord Tenterden took a very different view of the law. He told the jury that the prevention of such a trespass could not justify such an act, and he seems to have left to them as the only justification which on these facts could arise, the question whether the prisoner was in reasonable apprehension of danger to his life, from the threats of the deceased. Mr. Moir was found guilty of murder

and executed.

64

It seems to us strange that these startling provisions (in Lord St. Leonard s Bill) passed without observation through the Select Committee, and were unnoticed by any of the judges, except Mr. Justice Coleridge, who, however, did not dwell on them, but merely made them the subject of a passing remark. It would, of course, follow that if homicide, under the circumstances mentioned in these three sections, (of Lord St. Leonard's Bill) was justifiable, any less degree of violence however great, would be justifiable also; and such appears to have been the view of the law taken by the Commissioners who framed the first draft of the Indian Code, and who, in an eloquent passage directed to another purpose, say: That a man who deliberately kills another in order to prevent that other from pulling his nose should be allowed to go absolutely unpunished, would be most dangerous. The law punishes and ought to 'punish such killing. But we cannot think that the law ought to punish such

killing as murder.'

In this, we agree the provocation would be sufficient,

generally, to reduce the crime to manslaughter. But they proceed: For the law itself has encouraged the slayer to inflict on the assailant any harm short of death which may be necessary for the purpose of repelling the outrage,-to 'give the assailant a cut with a knife across the fingers, which may render his