Death caused by negligent navigation.

Death caused by negligence.

over another man and kill him :— if he saw or had timely notice of the probable mischief, and yet drove on, it would be murder (b); if he purposely drove it furiously in amongst a crowd, it would probably be murder; semble, if in a street where persons were much in the habit of passing, it would be manslaughter (c); if in a place where people did not usually pass, misadventure only, provided he took that care that persons in similar situations are accustomed to do. (d)

If the driver of a carriage race with another carriage, and urge his horses to so rapid a pace that he cannot control them, it is manslaughter, if in consequence the carriage upset and a passenger be killed. (e)

Those who navigate the river Thames improperly, either by too much speed, or by negligent conduct, are as much liable, if death ensues, as those who cause it on a public highway or land, either by furious driving or negligent conduct. (f)

There are other instances in which death caused by negligence may amount to manslaughter.

When a man lays poison to kill rats, and another man takes it and it kills him, if the poison were laid

(b) 1 Hale's P. C. 475.; Fost. C. L. 263.

(c) Per Holt, C. J., 1 East's P. C. 263.

(d) Anon., 1 East's P. C. 261.; see Rex v. Walker, 1 Carr. & P. 320.; Rex v. Martin, 7 C. & P. 396.; Rex v. Grout, 6 C. & P. 629. This class of manslaughter may also be classed under the former head, furious driving being prohibited by statute. It is therefore a case of involuntary death caused by the doing of an unlawful act.

(e) Rex v. Timmins, 7 C. & P. 499.; Reg. v. Taylor, 9 C. & P. 672.

(ƒ) This principle of law is not limited to persons navigating the Thames. But it is said that in order to make the captain of a vessel liable for manslaughter, in causing a person to be drowned by running down the boat, it must be shown the captain did some act. A mere omission to do his duty is not sufficient. Rex v. Green, 7 C. & P. 156.; Rex v. Allen, ibid.

in such a manner or place as to be readily mistaken for food, it is perhaps manslaughter. (g)

If an improper quantity of spirituous liquor be given to a child of tender years heedlessly and for brutal sport, and death ensue, it will be manslaughter. (h)

Where a lad out of frolic took the trap stick out of the front part of a cart, in consequence of which it upset and the carman who was loading sacks therein was killed, it was held to be manslaughter. (i)

Again, where a cannon had been returned to an ironfounder as having burst, and it was sent back by him in so imperfect a state, that on being fired it burst again and killed a person, this was held to be manslaughter. (k)

Another class of cases of involuntary manslaughter Mala Praxis. is where death is occasioned by that which in medical language is called "Mala Praxis." In a recent case, Lord Lyndhurst laid down the following rule:

66

ence between

person not

"In these cases there is no difference between a No differ"licensed physician or surgeon, and a person acting licensed phyas physician or surgeon without licence. (1) In sician and "either case if a party, having a competent degree licensed. "of skill and knowledge, makes an accidental mis- Person of "take in his treatment of a patient, through which skill making "mistake death ensues, he is not thereby guilty of manslaughter. (m) But if, where proper medical manslaughter

66

(g) 1 Hale's P. C. 431.

(h) Rex v. Martin, 3 C. & P. 211. (i) Rex v. Sullivan, 7 C. & P. 641.

(k) Rex v. Carr, 8 C. & P. 163.

(1) Rex v. Webb, 1 Mood. and Rob. 405. The learned judge here adopts the opinion of Lord Hale in preference to that in the Institutes. See 4th Inst. 251.; c. 5.; 1 Hale's P. C. 430. (m) This is in accordance with the old authorities. "If a "physician or surgeon give his patient a potion or plaster, "which, contrary to expectation, kills him, this also is neither "murder nor manslaughter, but misadventure." Mer. c. 4. s. 16. It is to be observed that the term " physician "surgeon" presupposes a competent knowledge. On the other hand, a person practising without any licence may fairly be

or

competent

mistake is not guilty of

in case of death.

persons be

Otherwise, if "assistance can be had, a person totally ignorant "of the science of medicine takes on himself to "administer a violent and dangerous remedy to

totally ig

norant.

Man

slaughter by

gence.

66

66

one labouring under disease, and death ensues in consequence of that dangerous remedy having "been so administered, then he is guilty of man"slaughter." (n)

Or a man may be guilty of manslaughter, if, notgross negli withstanding he has a competent knowledge of medicine, he be guilty of gross rashness in the application of a remedy, or gross negligence in attending his patient afterwards. (0)

Voluntary

man

slaughter.

We come now to cases of Voluntary Manslaughter.

No provocation whatever can render intentional homicide justifiable, or even excusable; the least it can amount to is manslaughter. If a man kill another suddenly, without any or without a considerable provocation, the law implies malice, and the homicide is murder; but if the provocation were great, provocation. and such as must have greatly provoked him, the killing is manslaughter only.(p) In considering, how

Killing upon

presumed to want that competent knowledge. This presumption, however, may be rebutted. See Rex v. Van Butchell, 3 C. & P. 629.

(n) See Rex v. St. John Long, 4 C. & P. 333. per Bayly, Bolland, and Bosanquet Js. ; see also Rex v. Williamson, 3 C. & P. 635. And a great distinction is to be drawn between the case of an ignorant practitioner, (for instance an old woman in the country) administering remedies bonâ fide, which she believes to be efficacious, without profit, and that of the empiric and quack trafficking (if the expression may be used) in human life for his own gain. In the one, all evil motive is wanting, in the other, it is abundant.

(o) Rex v. St. John Long, 4 C. & P. 398., per Parke and Garrow Js.; 4 C. & P. 423. per Bayly, Bolland, and Bosanquet Js.; Rex v. Williamson, 3 C. & P. 635. per Lord Ellenborough; Rex v. Shelilber, 5 C. & P. 333. per Bolland and Bosanquet Js.; see Rex v. Simpson, Lew. C. C. 172. per Bayly J.; Rex v. Ferguson, Lew. C. C. 181., per Tindal C. J.; Rex v. Webb, 1 Mood. & Rob. 405. per Lyndhurst, C. B. (p) Kel. 135,; 1 Hale's P, C, 456.; Fost. C. L. 290.

of death.

ever, whether the killing upon provocation amount Instrument, to murder or manslaughter, two things must be considered; 1st. The provocation. With a view to this the instrument wherewith the homicide was effected is important. For if it were effected with a deadly What provoweapon, the provocation must be great indeed, to extenuate the offence to manslaughter; if with a committed weapon or other means not likely or intended to pro- weapons. duce death, a less degree of provocation will be sufficient; in fact, the mode of resentment must bear a reasonable proportion to the provocation, to reduce the offence to manslaughter. (9)

cation necessary, if death with deadly

ment.

An unwarrantable imprisonment of a man's per- Imprisonson has been holden to be sufficient provocation to make a killing with a sword manslaughter only. (r)

If a man take another in adultery with his wife, Adultery. and the other thereupon immediately kill him, it is manslaughter only. (s)

So, if a man pull another's nose, or offer him any Personal inother great personal indignity, and the other there- dignity. upon immediately kill him, it is said to be manslaughter only. (t)

(q) Rex v. Steadman, Fost. C. L. 292.; Rex v. Willoughby, 1 East's P. C. 288.; 1 Russ. Cr. and Mis. 437.; 1 Hale's P. C. 454.; 4 Black. Comm. 199.; Rex v. Tranter and another, 1 Str. 499.; Fost. C. L. 293.

(r) Rex v. Buckner, Sty. 467.; Rex v. Wathen, 1 East's P. C. 233.; and see Rex v. Curran, 1 Moody, C. C. 132. ; and Rex v. Thompson, 1 Moody, C. C. 80.; see also Rex v. Browne, 5 C. & C. 120.

(s) 1 Hale's P. C. 486.; Rex v. Merring, T. Raym. 212.; 1 Ventr. 159.; and see Reg. v. Fisher, 8 C. & P. 182., where a father, seeing another person in the act of committing an unnatural crime with his son, killed him. In such a case, if the killing be instant, it is manslaughter only, but if, after hearing of it, he go in quest of the party and kill him, it is murder.

(t) Kel. 135.; 4 Black. Comm. 191. This dictum is expressed very widely, and is rather controlled by other authorities. Few personal indignities can be greater than a blow, but it has been held, that it is not every provocation, even by a blow, which will, when the party receiving it strikes with a deadly weapon and death ensues, reduce the crime from murder to manslaughter, Rex v. Lynch, 5 C. & P. 324.

Opprobrious words or

not amount to sufficient

As a general rule, no words or gestures, however opprobrious and provoking, will be considered in law to be provocation sufficient to reduce homicide to provocation manslaughter, if the killing be effected with a deadly weapon, or an intention to do some grievous bodily harm be otherwise manifested; but if effected with a blow of the fist, or with a stick or other weapon not likely to kill, it is manslaughter only. (u)

of killing by

deadly

weapon.

Justifiable homicide.

2dly. In every case, to reduce a homicide upon provocation to manslaughter, it is essential that the battery or wounding which has been the cause of death, shall have been inflicted immediately upon the provocation being given; for if there be a sufficient cooling time for passion to subside, and reason to interpose, and the person so provoked afterwards kills the other, this is deliberate revenge, and not heat of blood, and accordingly amounts to murder. (x)

And as has been before observed, if there be evidence of express malice, the killing will be murder, however great the provocation. (y)

Death by fighting has been already treated of. Justifiable homicide is such as is owing to some unavoidable necessity, without any will, intention, or desire, and without any inadvertence or negligence in the party killing, as for instance by virtue of such an office as obliges one in the execution Public execu- of public justice to put a malefactor to death, who hath forfeited his life by the laws of his country. But the law must require it, and the sentence of the

tioner.

(u) Fost. C. L. 200, 201.; 1 Hale's P. C. 455. See the Mosaic Law, Numb. xxxv. 16. et seq.

new,

(x) Fost. C. L. 296. And that too even where parties fight a if they fight upon the score of the old, grudge. 1 Hale's P.C. 451.; see 1 Hawk. c. 31. s. 25. What shall be a sufficient cooling time must, in every case, depend on its own peculiar circumstances, and is a question purely for the jury to determine. See Rex v. Thomas, 7 C. & P. 817.; Rex v. Lynch, 5 C. & P. 324.; Rex v. Hayward, 6C. & P. 157.; Rex v. Rowley, 12 Co. 87.

(y) Vide supra, p. 131. ; see Rex v. Mason, Fost. C. L. 132. Charge of Lord Tenterden, Rex v. Lynch, 5 C. & P. 324.