regarded as malice aforethought; an intention to commit a misdemeanour

was not.

In the days when the penalty for almost every felony was death, enormous importance was attached to the distinction between a felony and a misdemeanour. Yet surely the presence or absence of implied malice aforethought can no longer depend upon a distinction which now is merely technical. It seems monstrous to assert that the well-known phrase that the prisoner "did of his malice aforethought kill and murder J. S." can be taken to mean that the prisoner intended to steal the goods of A. B., and in stealing them accidentally killed J. S. Such killing clearly is not malicious.

Nevertheless, the proposition appears in many of the old books that, if one man in the course of committing any felony causes the death of another, though unintentionally and without criminal negligence, malice aforethought will be irrebuttably presumed and he must be convicted of murder; whereas, if the act which he was committing had been only a misdemeanour, he should be found guilty of manslaughter. No decision of any Court, however, is cited in these books as an authority for this proposition: nor is any reliable decision to be found earlier than 1762, the date of the first publication of Sir Michael Foster's Crown Cases. The proposition, indeed, appears to have been founded upon the following passage in that book 2 :-" A. shooteth at the poultry of B. and by accident killeth a man; if his intention was to steal the poultry, which must be collected from circumstances, it will be murder by reason of that felonious intent." And this was copied over and over again as an unquestionable authority. But as a matter of fact it is in direct conflict with a statement by an earlier writer, who is of at least equal, if not of even greater, authority. Sir Matthew Hale, C. J., in his Pleas of the Crown (written before 1676, but not published till 1736), lays it down that if A. threw “a stone to kill the poultry or cattle of B. and the stone hit and kill a by-stander, it is manslaughter, because the act was unlawful, but not murder, because he did it not maliciously or with an intent to hurt the by-stander." The test in his judgment, then, is the presence of a malicious intent to hurt, and does not depend upon the distinction between a felony and a misdemeanour.

3

4

Many cases, moreover, can be found in the old books in which a prisoner, who had no intention to kill any one, was held to have committed murder, although his act which caused the death was not a felony but a misdemeanour. Thus a workman, who, without any warning to the people below, threw stones or rubbish from the top of a house into a public

1 Foster refers to the trial of Lord Morley (1666), reported in 6 St. Tr. at p. 770, for murder. But this case is no authority for the proposition; for Lord Morley, who had under great provocation fought a duel and killed his opponent, was acquitted of murder, but convicted of manslaughter. Foster also refers to Kelyng, at p. 117, which gives a very hesitating statement of the law. 2 Discourse II., Of Homicide, pp. 258, 259.

3 Sir Matthew Hale, born 1609, made Chief Justice of the King's Bench 1671, died 1676. Sir Michael Foster, born 1689, made a puisne Judge of the King's Bench 1745, died 1763.

1 Hale, 475. And see the discussion of this point, 3 F. & F. 288 (n.).

street at a time when he knew that it was crowded, was held guilty of murder. So was a man, who rode his horse violently into the midst of a crowd for the fun of seeing them disperse in alarm and so unintentionally killed some one. In both these cases, had no death ensued, the prisoner's act would at common law have been only a misdemeanour; and yet malice aforethought was implied.

It is submitted, therefore, that it is no longer law that malice aforethought may be implied from the mere fact that the prisoner's act which caused the death was felonious.3 Circumstances must also exist which show that the death was the natural or probable consequence of the prisoner's act, and that the prisoner knew or ought to have known that this was so. Some authority for this view will be found in the summing up of Stephen, J., in R. v. Serné, in which he says: "I think that, instead of saying that any act done with intent to commit a felony and which causes death amounts to murder, it would be reasonable to say that any act known to be dangerous to life, and likely in itself to cause death, done for the purpose of committing a felony, which caused death, should be murder."

The prisoner insured his house for a large amount and then set fire to it Two of his little children were burnt to death. He was indicted for murder and acquitted, although his act was clearly felonious and directly caused the death of his children. He was subsequently indicted for arson and convicted.5

If a man causes the death of a woman by raping her, he will probably not be convicted of murder, unless the attack upon her chastity was conducted with such brutality and violence as shows that the prisoner was recklessly indifferent whether he killed her or not. Again, more than one man has within living memory been hanged for causing the death of a woman by administering a drug or performing an operation upon her with intent to procure abortion. But in a similar case in 1898, Bigham, J., told the jury that they might find the prisoner guilty of manslaughter, if they thought that he could not reasonably have expected death to result from his act. And it has since been held by the Court of Criminal Appeal that 1 R. v. Hull (1664), Kelyng, 40; but see R. v. Fenton (1830), 1 Lewin, 179. 2 Cf. R. v. Dant (1865), L. & C. 567.

9

3 Though this has, no doubt, been laid down as clear law in many cases; see, for instance, the summing up of Cockburn, C. J., in R. v. Desmond, Barrett and others (1868), Times, April 28th.

(1887), 16 Cox, at p. 313.

5 R. v. Serné, suprà.

It is difficult to see why the prisoner was not on the first

indictment convicted of manslaughter.

Ladd's Case (1773), Leach, 96; see 3 F. & F. 290 (n.).

R. v. Russell (1832), 1 Moo. C. C. 356; and see the opinion expressed by

Erle, J., in R. v. Gaylor (1857), Dearsl. & B. at p. 293.

8 R. v. Whitmarsh (1898), 62 J. P. 711.

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

where a person feloniously uses an instrument or other means with intent to procure a miscarriage, and the woman dies in consequence of his felonious act, then, if when he did the act he must as a reasonable man have contemplated that death or grievous bodily harm was likely to result, he is guilty of murder. But if when he did the act he had not at the time in contemplation, and could not as a reasonable man have contemplated, either of those consequences, he is guilty only of manslaughter.

It is no defence to an indictment for murder that the prisoner risked his own life, or that the deceased consented to expose himself to a similar risk. Thus, the facts that either party challenged the other to fight a duel, that the other accepted the challenge and met his antagonist at an agreed time and place, are immaterial, if either party was killed in the duel. Any one, who incites or encourages another to kill a third person or even to kill himself, is liable, if death ensues, as an accessory before the fact or, if present at the commission of the crime, as a principal in the second degree.

Where, upon a previous arrangement, and after there has been time for the blood to cool, two persons meet with deadly weapons, and one of them is killed, the party who occasions the death is guilty of murder, and the seconds also are equally guilty. With respect to others shown to be present, the question is, did they aid, assist, countenance or encourage the principals in their contest? Mere presence will not be sufficient; but if they sustain the principals either by advice or assistance, or go to the ground for the purpose of encouraging and forwarding the unlawful conflict, although they do not say or do anything, yet if they are present, assisting and encouraging by their presence at the moment when the fatal shot is fired, they are, in law, guilty of the crime of murder.1

If one of the combatants at a prize-fight is killed, the surviving combatant, both seconds and the referee are indictable for manslaughter; so is any person who is present and encouraging the combatants. But mere voluntary presence at such a fight does not necessarily render those present guilty as aiding and abetting unless they do something to incite or encourage the combatants.3

So, if two persons mutually agree to commit suicide together, and the means employed to produce death take effect upon one only, the survivor will, in point of law, be guilty of murder; for each intended that the other should die, and each incited the other to commit the crime by agreeing that he would himself commit suicide also.4

1 R. v. Young and Webber (1838), 8 C. & P. 644.

2 R. v. Murphy (1833), 6 C. & P. 103.

3 R. v. Coney and others (1882), 8 Q. B. D. 534.

4 R. v. Alison (1838), 8 C. & P. 418; R. v. Dyson (1823), Russ. & Ry. 523. See also R. v. Jessop (1877), 16 Cox, 204.

PRINCIPALS AND ACCESSORIES.

The fact that the deceased contributed to his own death is, as we have seen, no defence.1

Any one, who is convicted of being either a principal in the second degree or an accessory before the fact to a murder, is deemed as guilty as the principal in the first degree and must also be sentenced to death. An accessory after the fact to murder may be sentenced to penal servitude for life.

An attempt to murder was a misdemeanour at common law, but it has been made a felony by statute and is now punishable with penal servitude for life. A conspiracy or incitement to murder any person is a misdemeanour punishable with penal servitude for ten years. It is immaterial whether the person, whose life is thus threatened, is a British subject or not, or is within the King's dominions or not; but the conspiracy must take place in England.3

4

A murder is always triable in the county where it takes place, and murder on a British ship on the high seas is triable in the county in which the ship first touched land. Murder committed by a British subject on any land abroad may be tried in this country.5

CHAPTER III.

MANSLAUGHTER.

WHOEVER causes the death of another without malice aforethought, express or implied, is guilty of manslaughter, unless the circumstances excuse or justify the homicide. This is a felony, punishable in extreme cases with penal servitude for life. But it is a crime which involves very different degrees of culpability-in some cases closely approaching murder, in others being almost excusable. It cannot be tried at Quarter Sessions.

All that was said about causing the death of another in Chapter I. of this Book applies to manslaughter as well as to murder; the difference between these crimes turns on the presence or absence of malice aforethought. Let us assume, however, that there is no suggestion that the prisoner was actuated by malice aforethought. The prosecution must in the first place prove that the prisoner caused the death. Then it will lie on him to satisfy the jury either

(i.) that, before he committed the fatal act, he had received from the deceased grave provocation, which deprived him for the moment of all power of self-control, or

(ii) that he never had any intention of killing or injuring the deceased, but that the death was the result of an accident, or was caused by no criminal act or neglect on his part.

We may, therefore, treat the subject under two heads:I. Intentional homicide where grave provocation was given by the deceased.

II. Unintentional homicide, which occurs while the accused was engaged either in doing a criminal act or in negligently performing an act which is not criminal.