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siderable, the delinquent had, as early as our records
will reach, a pardon and writ of restitution of his
goods as a matter of course and of right, only paying
for suing out the same ; and in later times, to prevent
this expense, in cases where the death notoriously

44 BK. IV. — CRIMES.

happened by misadventure; the Judges usually directed
a general verdict of acquittal. At last it was pro-
vided by the 9 Geo. IV. (1828) c. 31, that no punish-
ment or forfeiture should be thenceforth incurred in
such cases. And now, by the Offences against the
Person Act, 1861, s. 7, it is provided that no punishment
or forfeiture shall be incurred by any person who
kills another by misfortune, or in his own defence,
or in any other manner without felony. So that now
there is, in our law, no practical distinction between
justifiable and excusable homicide.

(3) Felonious homicide. — This is the killing of a
human creature, of an}'^ age or sex, without justifica-
tion or excuse ; which killing may be either (1) of one's
self, which is suicide {felo de se), or (2) of another, which
is either manslaughter or murder.

( 1 ) Suicide is self-murder by a person of sound under-
standing, who has attained years of discretion and who
deliberately puts an end to his own existence. It
is also considered suicide when a person, maliciously
attempting to kill another, occasions his own death ;
as where a man shoots at another, and the gun bursts
and kills himself. But if a man is killed at his
own request by the hand of another, the former is
not deemed in law a felo de se, though the latter is
a murderer. A person, to be guilty of the crime of
suicide, must be of years of discretion, and in his
senses; and this excuse is apt to be strained to its
furthest limits by coroners' juries. But the law very
rationally judges, that every fit of melancholy does not
deprive a man of the capacity of discerning right from
wrong, or of having a sufficient degree of reason to
know that his act is wrong.

If one persuades another to kill himself, and he
does so in the adviser's presence, the latter is guilty
of murder as a principal in the second degree ; and
he may be tried and convicted accordingly. Also,


if two persons mutually agree to commit suicide
together, and accordingly take poison or attempt
to drown themselves together, and only one dies, the
survivor is guilty of murder. And a person who,
in attempting to commit suicide, kills another, may
be guilty of murder {E. v. Dyson (1823) R. & R. 523).

Formerly the fate of a suicide was an ignominious
burial in the highway, with a stake driven through his
body, and without Christian rites of sepulture, and
forfeiture of all his goods and chattels. But in modern
times, this ignominious burial has ceased ; the Inter-
ments (Felo de se) Act, 1882, having provided, that the
coroner shall not in future direct the interment of a
felo de se in any public highway or with any stake
driven through the body, but shall direct him to be
interred in the churchyard or other burial-ground ;
though nothing in the Act authorises the performing
of any of the rites of Christian burial on the remains
of any person found felo de se. A deceased person
shown to have been non com'pos mentis at the time of his
self-destruction is not, however, debarred from such
rites ; and the forfeiture of the felon's goods has also
now ceased to be a consequence of this, as of any other

An attempt to commit suicide is an indictable
misdemeanor at Common Law, punishable with

(2) Killing of another. — This is the second variety of
felonious homicide ; and in this there are degrees of
guilt, which distinguish the offence as either {a) man-
slaughter or (6) murder, the difference between which
consists principally in this : that manslaughter is from
the sudden heat of the passions, while murder is from
pure wickedness of the heart. No one can be found
guilty of either manslaughter or murder, unless the
person killed dies within a year and a day of the act

46 BK. IV. — CRIMES.

charged as causing the death ; the reason being that,
if the death takes place after that period has elapsed,
the law presumes that it has proceeded from some
other cause.

(a) Manslaughter may bo defined as the unlawful
kilUng of another without mahce ; and may be
either voluntary, upon a sudden heat, or by culpable
neglect of a legal duty resting upon the person
causing the death, or involuntary, in the commission
of some unlawful act not amounting to felony.
Hence it has been said, that in manslaughter there
can be no accessories before the fact ; because the
killing must be without premeditation. But this is
not strictly true ; for an accessory before the fact may
exist in involuntary manslaughter. For instance, if
A. urges B. to play a practical joke on C, in circum-
stances which make B. guilty of manslaughter, A.
might well be guilty as an accessory before the

If upon a sudden quarrel, in the way of ' chance
medley ' (casual affray), or ' chaud medley ' (affray in
the heat of blood or passion), two persons fight, and
the one of them kills the other, that is voluntary
manslaughter, provided no unfair advantage was taken
by the slayer ; and it is immaterial who struck the first
blow. But if a man enters into a conte^^t with an
unarmed man, intending to avail hin^sclf of a deadly
weapon, and in the use of such weapon kills his
opponent, it is murder. If he had no such intention,
but used the weapon in the heat of passion consequen-
tial on an attack made on liim, it is manslaughter.
And, as we have already seen, if he used it in defence
of his own life, and its use was necessary to protect
his life or to protect himself from such serious bodily
harm as would give a reasonable apprehension that
his life was in immediate danger, he having no means
of escape and no other means of resistance, then it is


homicide se defendendo, and excusable. If, however,
there are any circumstances indicative of malice in
the killer, it will be murder.

Again, if a man, being greatly provoked, immedi-
ately kills the aggressor, though he is not excusable
se defendendo, since there is no absolute necessity
for doing it to preserve himself, yet neither is it
murder, for there is no previous malice. But in this,
and every other case of homicide upon provoca-
tion, if there be a sufficient cooling time for passion
to subside and reason to interpose, and the perj>on so
provoked afterwards kills the other, this is dehbcrate
revenge, and not heat of blood, and accordingly
amounts to murder. The provocation, in order to
reduce murder to manslaughter, must be very gross.
The test to be applied is whether the provocation was
sufficient to deprive a reasonable man of his self-control.
Mere words are hardly ever sufficient to reduce murder
to manslaughter, at any rate if the killing be with a
deadly weapon ; and even an actual assault is not
enough, unless it is very insulting or violent. But
provocation by blows and words together, neither of
which would suffice in themselves to reduce the killing
below the crime of murder, may make it manslaughter
only. If a man takes another in the act of adultery
with his wife, and kills him directly on the spot, this
is manslaughter, by reason of the provocation.

'Involuntary' manslaughter differs from homicide
by misadventure, in that misadventure imports a
lawful act ; but this species of manslaughter is in
consequence of an unlawful act. As if two persons
engage in a prize-fight, and one of them kills the
other, this is manslaughter, because prize-fighting is
unlawful ; but it is not murder, for the one had no
intent to do the other any mischief, and the engaging
therein is not felonious. But a sparring match with
gloves fairly conducted is not unlawful ; and, therefore.

48 BK. IV. — CRIMES.

if one of the combatants receives an injury which
causes his death, this does not amount to manslaughter
in the other combatant. But such a match may be-
come unlawful if it is continued until the men become
so weak that one or other is likely to have a fall, or
receive an injury that may result in his death.

Similarly, injuries received at football or other
lawful games, and resulting in the death of the person
injured, do not amount to manslaughter in the person
who caused the injury, provided the act itself was
lawful. But if the player causing the injury intended
to produce serious injury, or knew that the act was
likely to produce serious injury, or even was recklessly
indifferent as to its consequences, then the act might
amount to manslaughter, if the person injured died
therefrom. And it seems that the test is not whether
the act was unlawful by the rules of the game being
played, but whether it was committed with such an
intent, or in such circumstances, as above mentioned.

And so it is in all cases where a person does an act
lawful in itself, but in an unlawful manner, that is
to say, without due caution and circumspection ; for
culpable neglect of a legal duty resulting in the death
of another makes tlie negligent person guilty of man-
slaughter. The question whether the negligence was
in fact so gross as to render the act culjDable is a ques-
tion of evidence for a jury to decide ; and the negli-
gence may consist in not observing either statutory
requirements (as, for example, those respecting the
fencing of machinery in factories), or those rules
which arise at Common Law out of the position in
which persons stand towards each other or the public,
as in the use of dangerous things, or in the conduct
of operations which, if carelessly conducted, may cause
injury or death. Thus, persons in charge of engines
or trains, ships, motor-cars and other vehicles, animals,
machinery, &c., have a duty cast upon them to exercise


proper care in their control of such things, so that
death or injury may not be caused thereby. And if
such a person is guilty of gross and culpable neghgence,
or of recklessly negligent conduct, which results in
a fatal accident, he is guilty of manslaughter.

In all such cases, the degree of negligence j)roved is
of the utmost importance. An honest error of judg-
ment, no matter how fatal the consequences which
may attend it, will not make the person committing
it guilty of manslaughter. And mere inadvertence,
though it may create a civil liability, will not suffice
to make a man criminally liable. The negligence
must be such as amounts to recklessness ; and it must
be proved that the death arose directly from the
personal act or default of the person accused, in order
to justify a verdict of manslaughter.

So also, in the case of articles which are in them-
selves harmless, but may be rendered capable of
causing injury by the person using them. As, for
example, if a workman throws down rubbish from a
roof, whereby a passer-by is struck and killed, this
may be homicide by misadventure, manslaughter, or
even possibly murder, according to the circumstances,
i.e., the amount of precaution he took to ensure
that no one was injured, and the necessity for
such precaution. If he gave warning and it was
in a retired place where persons where unlikely to be
passing, it would be no crime, but homicide by mis-
adventure ; but if it was in a crowded place it might
amount to manslaughter. If he gave no warning,
then unless it was very unhkely that persons would
be passing, it would be manslaughter ; and, if it was
in a crowded place, it might even be murder.

There is also another class of case in which persons
who are guilty of conduct which causes the death of
another may be found guilty of manslaughter. This
occurs when helpless persons, such as infants, lunatics,


50 BK. IV. — CRIMES.

the aged, and the sick, are neglected or ill-treated
by those in whose custody or care they are and die as
a result of such treatment. Indeed, where the neglect
or ill-treatment is premeditated and deliberate, the
crime may well amount to murder. But where such
premeditation is not proved, the offence will still be
manslaughter, if the neglect or ill-treatment was of a
gross nature, so as to show a recldess indifference
whether the person lived or died. In the case of
R. V. Senior [1S90] 1 Q. B. 283, the father of an infant
child, who objected on religious grounds to calling in
medical aid, and to the use of medicine, wilfully and
dehberately refrained from providing medical aid
and medicine for the child, though he knew it to be
dangerously ill. Evidence was given that the child's
hfe would probably have been saved by medical atten-
tion ; and the father was found guilty of manslaughter.

And the law has made special provision for the
proper care of children by the Children Act, 190S, by
which any person who has the care or custody of a
child under sixteen years of age. and wilfulh^ neglects
the child in a manner likely to cause injury to health,
is guilty of a misdemeanor.

Refusal to allow a child to undergo an operation
may or may not be such a failure to supply medical
aid as would amount to neglect in a manner likely to
cause injury to health ; the question depending upon
the facts of the particular case.

It should be noticed that a person cannot be found
guilty of manslaughter in such cases as the above,
if it be proved that at the time he had no means
which would enable him to provide the necessary
food or medicine for the person in his charge. This,
however, is subject to a provision in the Children
Act, 1908, that inability to provide food or medicine
without resort to the Poor Law does not amount to
a defence.


Neglect by those who undertake the cure of sick
persons, whether they be quahfied medical practi-
tioners or not, resulting in the death of the patient,
may amount to manslaughter, if the inattention or
lack of skill be of a very gross nature. But incorrect
treatment arising from a wrong diagnosis of a case,
or any accidental mistake in treatment, is not sufficient
neglect to make such a person criminally liable ;
though if a person, without the requisite skill and
knowledge, prescribes dangerous medicines of the use
of which he is ignorant, or performs an operation for
which he has not the necessary skill, and the patient
dies therefrom, he may be found guilty of man-

To sum up, therefore, when an involuntary killing
happens in consequence of an unlawful act, it will
generally be either murder or manslaughter, according
to the nature of the act which occasioned the killing.
If the act be in prosecution of a felonious intent, and
is known to be dangerous to life and likely in itself
to cause death, it will be murder. If not, it will at
most amount only to manslaughter, and may be
excusable homicide.

The crime of manslaughter is a felony ; and, at
one time, certain kinds of manslaughter {e.g., stabbing)
were capital felonies. At the present day, the maxi-
mum punishment that can be inflicted is that of
penal servitude.

(b) DeUberate and wilful murder is the second variety
of the felonious kiUing of another, to which we have
already had occasion to make reference in considering
the crime of manslaughter. It occurs when a person
of sound memory and discretion unlawfully kills any
human creature in being, and under the King's peace,
with maUce aforethought, hereafter to be explained
(p. 54). The word murdre was antiently appHed only

52 BK. IV. — CRIMES.

to the secret killing of another. And antiently murder
was defined as homicidium quod niillo vidente, nullo
sciente, clam pevpetratur : for which the vill wherein it
was committed — or, if that were too poor, the whole
hundred — was liable to a heavy amercement, which
amercement itself was also denominated murdrum.
This usage, it is said, was introduced into this kingdom
by King Canute, to prevent his countrymen, the Danes,
from being privily murdered by the English ; and it
was certainly continued by William the Conqueror,
for the securitj^ of his Norman followers. Therefore,
if, upon inquisition, had it appeared that the person
found slain was an Englishman (the presentment
whereof was denominated englescherie), the vill or
hundred was excused from this burthen, but not other-
wise. However, the 14 Edw. III. (1340) st. 1, c. 4,
aboUshed the above distinctions ; and the best way
of examining the nature of this crime, will be by
considering the several branches of the definition
given above.

First, it must be committed by a person of sound
memory and discretion ; and hence, if there be a defect
of the understanding in the person charged — by reason
of his infancy, lunacy, or idiocy, according to the dis-
tinctions already considered (pp. 18-26) — he cannot be
convicted of this crime, or indeed of any other.

Next, there must be an unlawful killing, the unlaw-
fulness arising from the absence of all lawful warrant
or excuse ; and there must also be an actual killing,
to constitute murder, and not merely an assault with
intent to kill. The kilUng may be by poisoning,
striking, starving, drowning, or any other of the
numerous forms of death by which human nature may
be overcome ; and, in an indictment for murder, it
is unnecessary to specify the manner in which, or
the means by which, the death was caused. But the
bearing of false witness against another, with intent


to take away his life, is not murder, even though the
person be convicted on such testimony and executed.

It is to be observed, that if a man does an act
of which the probable consequence may be, and
eventually is, death, such killing may be murder,
although no stroke be struck by himself, and no
killing may be primarily intended ; as was the case
of the unnatural son who exposed his sick father to
the air against his will, by reason whereof he died,
of the harlot who laid her child in an orchard, where
a kite struck and killed it, and of the parish officers
who shifted a child from parish to parish, till it died
for want of care and sustenance. So, too, if a man has
a beast that is used to do mischief, and he, knowing it,
suffers it to go abroad, and it kills a man, even this is
manslaughter in the owner ; and if he had purposely
turned it loose, though merely to frighten people and
make what is called sport, it is as much murder as if
he had incited a bear or a dog to worry them.

But the modern tendency is to confine the crime
of murder to those cases in which either a deliberate
act has been committed with the intention of causing
death, or the act has been of such a nature that any
reasonable person must have assumed that death
would be likely to ensue from its commission, e.g.,
to strike another a hard blow on the head with a
hammer. And it may be doubted whether, if the
cases cited above were to arise to-day, the verdict
would be murder : rather would the acts be considered
as amounting to gross neghgence justifying a verdict
of manslaughter.

Further, the person killed must be a human creature,
in being, and under the King's peace, at the time of the
kilHng. To kill an ahen or an outlaw, being under
the King's peace and protection, is therefore as much
murder as to kill the most regular-born Englishman.
On the other hand, to slay a rebel or an alien enemy

54 BK. IV. — CRIMES.

in battle is not murder ; and to kill a child in its
mother's womb is not murder, for murder must be
of some one in being, and this offence falls under a
different description of crime, wliich will be considered
hereafter. If, however, the child is born ahve, and
dies by reason of injuries received in the womb, or in
the act of birth, the person who deUberately inflicted
those injuries may be guilty of murder. Although
the Courts of this country can hear and determine
all offences committed on board Brirish ships at sea
or elsewhere within the Admiralty jurisdiction by
seamen serving on board, it was a fundamental
princijjle of the Common Law, that murder or other
crime committed on foreign territory — i.e., on land
situate wholly outside the jurisdiction of the Enghsb
Courts — could not be tried, or in any way dealt with,
in this country ; but the principle has in a few instances
been broken in upon by statute. Thus, by the
Offences against the Person Act, 1861, s. 9, it has now
been provided, as to the particular crimes of murder
and manslaughter, that, where either is committed by a
British subject on land out of the United Kingdom,
whether within the King's dominions or without, and
whether the person killed be a British subject or not,
such offence may be dealt with, tried, and punished
in any place in England or Ireland in which such
person may be in custody, in the same manner in all
respects as if the offence had been actually committed
in that place.

It follows from this, that it is only where the crime
is committed on a foreign ship not within British
territorial waters, that the British Courts have no
jurisdiction to try the offender.

Lastly, the killing must be committed luiih malice
aforethought, to make it the crime of murder ; and this,
in fact, is the grand criterion which distinguishes
murder from other kilUng. The term is of antient


origin, having been in use as early as the thirteenth
century as one of the tests of capital homicide, though
it seems to have denoted rather the wrongful act
intended than the intention itself. As will be explained
later (p. 58), a rehef from capital punishment known as
* benefit of clergy ' was formerly extended to certain
persons found guilty of crimes ; but in the year 1531
this rehef was excluded in cases of " wilful murder
" of mahce aforethought," and thereafter the term was
used as distinguishing those homicides which amounted
to murder, from homicides which amounted only to
manslaughter, or might even be justifiable or excusable.
Malice, however, does not, and never did, in the legal
sense, necessarily import hatred or ill-will against a
particular individual, but rather a wicked or mis-
chievous intention of the mind generally. And thus
on a charge of murder it is neither necessary to show
that the accused person had any enmity towards the
deceased, nor would proof of absence of ill-will
furnish any defence, if it were proved that the act of
kilhng was intentional, and done without any justifiable

But the degree of mahce, or wicked intention,
necessary in order to constitute the crime of murder,
is greater than that which is necessary in the case of
other offences ; and this is expressed by the term
' mahce aforethought.' Though originally this may
have confined cases of murder to those in which
some premeditated design or intention to kill existed,
experience soon showed that there were many cases
in which there was no such preconceived intention,
but the act which caused death was of so heinous a
nature, and the state of mind of the doer so wicked,
as to merit the penalty of murder. Accordingly,
the meaning of the term ' malice aforethought ' came
to be more and more widely construed so as to include
such cases. Many of the old writers, therefore, found

66 BK. IV. — CRIMES.

a distinction between cases where a man with a
deliberate mind and formed design killed another, —
which would be evidenced by external circumstances
discovering that inward intention, such as lying in
wait, former menaces or grudges, and concerted
schemes to do some bodily harm, — and, on the other
hand, cases where no such antecedent design could
be shown to exist. In the former they described
the mahce as ' express malice ' ; in the latter the law
would imply mahce. This distinction between express
mahce and imphed mahce seems, however, to be of
little value, and tends rather to distract the mind
from the real signification of the words ' mahce afore-
thought,' which may be regarded now as a convenient
formula under which the various forms of guilty
intention necessary to constitute murder may be

The simplest form of such intention is the intention
to kill the person who actually is killed ; and it may
be remarked that, in such a case, no amount of pro-
vocation will extenuate or excuse the crime. Nor is
it the less murder if there is an intention to kill one
person, but another is in fact killed ; the intention
being transferred from the act contemplated to the

Online LibraryHenry John StephenStephen's Commentaries on the laws of England (Volume 4) → online text (page 5 of 53)