So long as neither force nor threats of violence are used,1 it is no tort, and-in most cases at all events-no crime, for two or more, from motives of self-interest, to agree together to induce others not to enter into contracts with a rival trader; for self-interest is not malice. It is not clear, however, that this rule applies in its entirety to cases of criminal. conspiracy. The remarks of Bowen, L. J., in Mogul Steamship Co. v. McGregor,2 suggest that an agreement of the kind, which the Court in this case declared not to be actionable, might nevertheless in some cases be held to amount to an indictable conspiracy on the ground of obvious and excessive inconvenience.

And even where the action of the defendant is dictated neither by motives of self-interest nor of friendship for X. and Y., nevertheless, if the conspiracy be entered into in contemplation or furtherance of a trade dispute, it is, as we have seen, no crime, unless A. and B. intended to have recourse to violence and intimidation, or unless such was the natural consequence of their acts. The Legislature apparently considered a trade dispute a sufficient justification.

Boycotting, however, frequently arises from religious or political ill-feeling, in which no trade interests are concerned.3 And here it would seem that we have arrived at an instance of a criminal conspiracy arising out of acts, which in themselves would be innocent if done by one man without preconcert with others. The parties engaged in it must be numerous; they must be actuated by motives of spite and ill-will against the person boycotted. Their conduct must be calculated to do him and his family serious and substantial damage; and the result of the combination must, it is submitted, be such as to cause some mischief or inconvenience to the public generally or to a portion of the public; otherwise the conspiracy is no crime.*

4

1 Tarleton and others v. McGawley (1794), Peake, 270; Young v. Hickens (1844), 6 Q. B. 606; Pudsey Coal Gas Co. v. Bradford Corporation (1873), L. R. 15 Eq. 167. 2 (1889), 23 Q. B. D. at p. 618. Nevertheless, the decisions in this case and in Allen v. Flood, [1898] A. Č. 1, undoubtedly restrict to some extent the ruling of Erle, J., in R. v. Rowlands (1851), 17 Q. B. 671.

3 Sweeney v. Coote, [1906] 1 I. R. 51; [1907] A. C. 221.

4 See R. v. Rowlands (1851), 17 Q. B. 671; R. v. Parnell (1881), 14 Cox, 505; O'Connell v. R. (1843), 5 St. Tr. (N. S.) 1; 1 Cox, 413.

BOOK II.-PART III.

OFFENCES AGAINST THE PERSON.

CHAPTER I.

HOMICIDE, OR CAUSING DEATH.

THE law of England recognises (independently of the crime of suicide) two degrees of culpable homicide, murder and manslaughter; it recognises also two degrees of homicide— excusable and justifiable-which do not expose to punishment. But in all these cases the first question always is: Did the prisoner cause the death of the deceased? If not, there is no homicide.

Homicide occurs when one human being causes the death of another. That other may be an alien, an outlaw, or a person subject to the pains and penalties of a præmunire.

Killing even an alien enemy within the kingdom, unless in the actual exercise of war, would be murder." 1 But the person killed must have a separate existence; he must have been completely born; it is not homicide to kill a babe whilst it is being born;2 still less while it is en ventre sa mère. The whole body of the babe must have emerged from the body of the mother; else it is not born. And it must be born alive. A babe must be proved to have breathed by the natural movement of its own lungs before it can be the subject of homicide; the fact that the child cried is generally accepted as sufficient evidence of this. And if after the child has thus attained a separate existence it dies from injuries inflicted before or during its birth, this will be homicide.

But the phrase "causing death" requires some further explanation; there are many cases in which in ordinary

11 Hale, 433.

2 R. v. Poulton (1832), 5 C. & P. 329; R. v. Brain (1834), 6 C. & P. 349.

parlance we should say that one man had caused the death of another, but in which the law would place a different construction on the facts.

The prisoner's act must be the direct cause of the death. If it be only one of several causes, which together bring about the death, it will be deemed too remote.

Thus where a man seized by the hair a woman, who was nursing a child of four and a half years old, and struck her in such a manner as to frighten the child and bring on convulsions from which it ultimately died, Denman, J., directed the jury that, if they were of opinion that the assault was the direct cause of the infant's death, it would be manslaughter, but that should they consider that the death was not caused by the assault but by a combination of other circumstances, it would be accidental death only. The jury found that the assault was the direct cause of the death and convicted the prisoner of manslaughter.1

Where a fireman absented himself from his post and therefore failed to send the engine to a fire, which resulted in a loss of life, it was held that he had not caused the death. So, too, trustees appointed to repair roads under a local Act were held not to have caused the death of a man, who lost his life in consequence of the roads being out of repair through the neglect of the trustees.3

It is immaterial that any act or negligence on the part of the deceased was one of the circumstances which led up to his own death, if the direct cause of the death was the act of the prisoner. But if the deceased was a free agent in the matter and his death was the direct result of some voluntary and spontaneous act of his own, neither instigated nor compelled by the prisoner, the deceased has caused his own death, although something said or done by the prisoner may have led up to the fatal act or even suggested it to him.*

Thus in the well-known case of R. v. Swindall and Osborne,5 the prisoners were racing each other in their carts along a road at night and ran over the deceased, who was lying drunk in the road. But this fact did not afford them any defence, when charged with causing his death. In his summing up, Pollock, C. B., said: "The prisoners are charged with contributing to the death of the deceased by their negligence and improper conduct. If they did so, it matters not whether he was deaf, or drunk, or

1 R. v. Towers (1874), 12 Cox, 530.

Cf. R. v. Hilton (1837), 2 Lewin, 214; R. v. Lowe (1850), 3 C. & K. 123. 3 R. v. Pocock (1851), 17 Q. B. 34, 39.

4 R. v. Martin (1827), 3 C. & P. 211.

5 (1846), 2 C. & K. 230; 2 Cox, 141. And see R. v. Jones (1870), 11 Cox, 544 ; R. v. Kew (1872), 12 Cox, 355; Blenkinsop v. Ogden, [1898] 1`Q. B. 783.

negligent, or in part contributed to his own death; for in this consists a great distinction between civil and criminal proceedings."

A. determined to commit suicide and therefore bought poison from a chemist. The chemist asked no questions as to A.'s object in purchasing A. took the poison and died. The chemist has not caused

the poison. A.'s death. If a maidservant, who has free control of her actions and is able to take care of herself, remains in a service where she is starved and badly lodged, the mistress will not be criminally responsible if death ensues; it would be the result of the servant's own folly in remaining there.1

But it is not always necessary that death should be caused by an act. Neglect of a legal duty, which the prisoner owes to the deceased, may be sufficient to render him criminally responsible for the death. Whenever the law imposes a duty tending to the preservation of life, or where such a duty has been undertaken by contract or conduct, omission to perform the acts required by that duty will be held a cause of death, if death ensues. It lies on the prosecution to prove that the death was the result of the omission."

Thus, a father is bound to provide food and clothing for his child, and his omission to do so, or his omission to notify the proper authorities if he is unable to do so, will be held a cause of death, if the child dies from neglect. And where the prisoner persuaded an infirm old woman to live in his house and failed to provide her with food and fire (which she was incapable of providing for herself), he was held to have caused her death, when she died from neglect. So, where any one undertakes the charge of an imbecile or idiot incapable of looking after himself. A signalman, who negligently omits to change the points with the result that a fatal collision ensues, will have caused death; though if no one be killed, he will have committed no crime at common law in having merely endangered human life. The duty must be a legal one. A man commits no crime, if he abstains from rescuing another from drowning, even though he might have done so without risk or serious inconvenience to himself; he merely disregards a moral duty. So, if a man omits to supply food or medical assistance when he is under no legal duty to do so.7

But, apart from such cases of neglect of duty, it would seem that the law requires that the death must be caused

1 Per Erle, C. J., in R. v. Smith (1865), L. & C. at p. 625.

2 R. v. Morby (1882), 8 Q. B. D. 571.

8. v. Senior, [1899] 1 Q. B. 283; Children Act, 1908, s. 12, post, p. 310.

4 R. v. Marriott (1838), 8 C. & P. 425; R. v. Instan, [1893] 1 Q. B. 450.

5 R. v. Nicholls (1874), 13 Cox, 75.

6 The offence is, however, covered by statute: see 3 & 4 Vict. c. 97, s. 13, and 24 & 25 Vict. c. 100, s. 34.

7 R. v. Shepherd (1862), 31 L. J. M. C. 102.

either by administering or applying something, or by some kind of physical contact on the part of the prisoner or some agent of his.

Thus, where a man procured: the death of another by falsely accusing him of a capital crime and giving perjured evidence to support his charge, he was held not to have caused the death. So, if a man sent an alarming telegram to a woman who had a weak heart, and she died from the shock, he has not caused her death.2

But where there is any direct physical impact which does cause death, the fact that such a result was highly improbable and could not reasonably have been anticipated by the actor, is in law immaterial. An impact, which in the ordinary course of things could not possibly prove fatal, may yet cause death, if the person struck be in a morbid condition; and the person striking the blow will be guilty of homicide, although he was not aware of the condition of health of the deceased. Every man is liable for the natural and] necessary consequences of any unlawful act done by him, although he could not have foreseen them, but not for consequences which are merely accidental. The death must be occasioned by the prisoner's act; but it does not matter that the deceased was at the moment of that act in such a state of health that his death must inevitably have occurred shortly afterwards; it is sufficient if the prisoner's act accelerated the death by a single day or hour."

3

If the prisoner accelerated the death of his child by inflicting injuries upon it at any period during the twelvemonth before its death, "the fact that the child was already suffering from meningitis, from which it would in any event have died before long, would afford no answer to the charge of causing its death."6

That subsequent exposure to accident, cold or other natural causes was the direct cause of death is immaterial, if it was the prisoner's act which exposed the deceased to the operation

R. v. MacDaniel and others (1756), 19 St. Tr. 745, 810-4 (n.).

2 See Fitzjames Stephen's History of the Criminal Law, Vol. III., p. 5, where this point is discussed.

3 R. v. Lumley (1912), 22 Cox, 635.

R. v. Daries (No. 2) (1913), 29 Times L. R. 350.

5 See the summing up of Parke, J., in R. v. Martin (1832), 5 C. & P. at p. 130;

and R. v. Instan, [1893] 1 Q. B. 450.

6 Per Lord Alverstone, C. J., in R. v. Dyson, [1908] 2 K. B. at p. 457.