[(2.) 1 A gives B a wound. C, a surgeon, applies poison to the wound, either from bad faith or by negligence. B dies of the poison. Cand not A has killed B.

(3.) 2 A injures B's finger. B is advised by a surgeon to allow it to be amputated, refuses to do so, and dies of lockjaw. A has killed B.

3

(4.) 3 A violently beats and kicks B, his wife, on the edge of a pond. She, to avoid his violence, throws herself into the pond and is drowned. A has killed B.

(5.) A strikes B, who is at the time so ill that she could not possibly have lived more than six weeks if she had not been struck. B dies earlier than she would otherwise have died in consequence. A has killed B.

(6.) A and B, the drivers of two carts, race along a high road. Cis lying drunk in the middle of the road. One or other or both of the carts run over C and kill him. In either case both A and B have killed C.

6

(7.) It is the duty of A to put up air-headings in a colliery where they are required. It is the duty of B to give A notice where an air-heading is required. But A has means, apart from B's report, of knowing whether such air headings are required or not. A omits to put up an airheading, B omits to give A notice that one is wanted. An explosion follows, and C is killed. Both A and B have killed C.

7 ARTICLE 277.

WHEN CAUSING DEATH DOES NOT AMOUNT TO HOMICIDE.

A person is not deemed to have committed homicide, although his conduct may have caused death, in the following cases:

8

(a.) When the death takes place more than a year and a day after the injury causing it. In computing the period, the day on which the injury is inflicted is to be counted as the first day;

9

(b.) (It is said) ' When the death is caused without any

1 [Founded on 1 Hale, 428.

2 R. v. Holland, 2 Moo. and Rob. 351.

3 R. v. Evans, 1 Russ. Cr. (5th ed.) 651; R. v. Wager, tried at Derby Summer Assizes, 1864, was precisely similar. See, upon this subject, Wharton on Homicide, §§ 374-5. If the intention was to escape further ill usage by suicide, the case would be altered.

4 R. v. Fletcher, 1 Russ. Cr. 703.

5 R. v. Swindall, 2 C. & K. 230.

R. v. Haines, 2 C. & K. 368.]

7 S. D. Art. 221.

8 [1 East, P. C. 343, 4; 1 Russ. Cr. (5th ed.) 673, 4; Draft Code, s. 169.

91 Hale, 429. Lord Hale's reason is that "secret things belong to God; and hence it was that before 1 Ja. 1, c. 12, witchcraft or fascination was not felony, because it wanted]

[definite bodily injury to the person killed, but this does not extend to the case of a person whose death is caused not by any one bodily injury, but by repeated acts affecting the body, which collectively cause death, though no one of them by itself would have caused death;

1

(c.) (It seems) When death is caused by false testimony given in a court of justice.

2

Illustrations.

(1.) A by a long series of acts of ill-treatment, no one of which by itself would cause death, causes the death of B. A has killed B.

[a trial" (i.e. I suppose because of the difficulty of proof). I suspect that the fear of encouraging prosecutions for witchcraft was the real reason of this rule. Dr. Wharton rationalizes the rule thus: "Death from nervous causes does not involve penal consequences." This appears to me to substitute an arbitrary quasi scientific rule for a bad rule founded on ignorance now dispelled. Suppose a man were intentionally killed by being kept awake till the nervous irritation of sleeplessness killed him, might not this be murder? Suppose a man kills a sick person intentionally, by making a loud noise which wakes him when sleep gives him a chance of life; or suppose knowing that a man has aneurism of the heart, his heir rushes into his room, and roars in his ear, "Your wife is dead!" intending to kill and killing him, why are not these acts murder? They are no more secret things belonging to God" than the operation of arsenic. As to the fear that by admitting that such acts are murder, people might be rendered liable to prosecution for breaking the hearts of their fathers or wives by bad conduct, the answer is that such an event could never be proved. A long course of conduct, gradually "breaking a man's heart," could never be the "direct or immediate " cause of death. If it was, and it was intended to have that effect, why should it not be murder? In R. v. Towers, 12 Cox C. C. 530, a man was convicted before Denman, J., of manslaughter, for frightening a child to death (see Wharton on Homicide, § 372, on this case).] In R. v. Dugal, 4 Q. L. R. 350, evidence of death from syncope caused by menaces of personal violence and assault though without battery was held sufficient to support a conviction for manslaughter.

68

[Lord Hale doubts whether voluntarily and maliciously infecting a person of the plague, and so causing his death, would be murder (i. 432). It is hard to see why. He says that "infection is God's arrow." A different view was taken in the analogous case of R. v. Greenwood, 1 Russ. Cr. 673; 7 Cox, C. C. 404. As to the proviso, see Illustration (1). 1 Illustration (1.) Draft Code, s. 168.

2 R. v. Self, 1 East, P. C. 226, 227, and 1 Russ. Cr. 652; R. v. Squire, 1 Russ. Cr. 653.] The immediate cause of the woman's death was acute inflammation of the liver that might have been occasioned by a blow or a fall against a hard substance. There was evidence that about three weeks before her death, the prisoner, her husband, knocked her down with a bottle, that she fell against a door and remained insensible for some time; and that she was confined to her bed soon after and never recovered. There was also evidence of frequent acts of violence within a year on his part by knocking her down and kicking her in the side. Held sufficient to sustain a conviction for manslaughter; R. v. Theal, 21 N. B. R. 449; Theal v. R. 7 Can. S. C. 397.

1

[(2.) 1 A and B, in order to get a reward, offered for the conviction of highway robbers, conspire together to bring a false accusation of highway robbery against C, whereby C is convicted and executed. A and B do not kill C.

2 ARTICLE 278.

WHEN HOMICIDE IS UNLAWFUL.

3 Homicide is unlawful,

(a.) When death is caused by an act done with the intention to cause death or bodily harm, or which is commonly known to be likely to cause death or bodily harm, and when such act is neither justified nor excused by the provisions contained in Chapter IV. or Chapter XXII. ;

(b.) When death is caused by an omission, amounting to culpable negligence, to discharge a duty tending to the preservation of life, whether such omission is or is not accompanied by an intention to cause death or bodily harm ;

(c.) When death is caused accidentally by an unlawful act.]

1 [R. v. Mac Daniel and Others, 19 St. Tr. 746, and see particularly the note 810-14, and Foster, 131, 132.]

2 S. D. Art. 222.

3 [This Article sums up the result of the preceding chapter. See Appendix Note VII. Draft Code, s. 167.]

CHAPTER XXV.

1 MURDER-MANSLAUGHTER-ATTEMPTS TO COMMIT MURDER -CONCEALMENT OF BIRTH.

2 ARTICLE 279.

MANSLAUGHTER AND MURDER DEFINED.

3 [MANSLAUGHTER is unlawful homicide without malice aforethought.

Murder is unlawful homicide with malice aforethought. Malice aforethought means any one or more of the following states of mind preceding or co-existing with the act or omission by which death is caused, and it may exist where that act is unpremeditated.

4

(a.) An intention to cause the death of, or grievous bodily harm to, any person, whether such person is the person actually killed or not;

(b.) Knowledge that the act which causes death will probably cause the death of, or grievous bodily harm to, some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm

1 [See 3 Hist. Cr. Law, ch. xxvi. pp. 1-107.

2 S. D. Art. 223. See Appendix Note VIII.

3 For the authorities for this Article see Appendix Note VIII. Draft Code, s. 174-177. 4 Coke's first case of implied malice is malice implied from the want of provocation. A man who wantonly or on a slight cause intentionally and violently kills another, shews by that act, not indeed the existence of hatred of long standing, but the existence of deadly hatred instantly conceived and executed, which is at least as bad if not worse. This in the strict sense of the words is malice aforethought. As Hobbes well observes : "it is malice forethought, though not long forethought." (Dialogue of the Common Laws, "Works," vi. 85.) And it is not by law necessary that it should be long. If a slight provocation does not reduce murder to manslaughter, à fortiori, the total absence of all provocation, and the mere rapidity with which the execution of a cruel and wicked design follows on its conception cannot have that effect. For cases of slight provocation, see 1 Russ. Cr. 680-2, and cases there collected.]

[is caused or not, or by a wish that it may not be caused; (c.) An intent to commit any felony whatever;

(d.) An intent to oppose by force any officer of justice on his way to, in, or returning from the execution of the duty of arresting, keeping in custody, or imprisoning any person whom he is lawfully entitled to arrest, keep in custody, or imprison, or the duty of keeping the peace or dispersing an unlawful assembly, provided that the offender has notice that the person killed is such an officer so employed.

The expression "officer of justice" in this clause includes every person who has a legal right to do any of the acts mentioned, whether he is an officer or a private person.

Notice may be given, either by words, by the production of a warrant, or other legal authority, by the known official character of the person killed, or by the circumstances of the case.

This Article is subject to the provisions contained in Articles 280-282, both inclusive, as to the effect of provocation.

1

Illustrations.

(1.) 1 A knowing that B is suffering from disease of the heart, and intending to kill B, gives B a slight push, and thereby kills B. A commits murder.

1

(2.) 1 A in the last illustration pushes B unlawfully, but without knowledge of the state of health or intention to kill him, or do him grievous bodily harm. A commits manslaughter. If A laid his hand gently on B to attract his attention, and by doing so startled and killed him, A's act would be no offence at all.

(3.) 2 A finding B asleep on straw, lights the straw, meaning to do B serious injury, but not to kill him. B is burnt to death. A commits murder.

1 [I know of no direct authority for these illustrations, but they follow directly from the principles stated in the note.] A, profiting by B's weakness, encourages him to drink intoxicating liquors in such quantities as to cause death. A commits murder if he intended to cause death, and manslaughter if the liquor was given not out of good fellowship but with the intention of making B ill or drunk; R. v. Lortie, 9 Q. L. R. 352.

2 [Errington's Case, 2 Lewin, 217.]