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he proceeded to carry out his warrant. Mere fear of

being struck or beaten, will not lessen his offence (1). May officer kill Nor will it palliate the conduct of an officer in killing

a person against whom he holds a warrant, that the person was fleeing, and likely to escape. It is doubtful whether greater privilege is to be extended to the officer in criminal than in ordinary cases, so that he may kill one who is merely fleeing from justice. Hume thinks that there is a distinction to be drawn between criminal and civil processes—the one being for the vindication of public justice ; and the other only for the protection and enforcement of individual rights (2). Alison thinks that this "extraordinary

privilege of killing on mere flight is confined, even “ if it be there established, to capital cases” (3), a distinction between higher and lower crimes which Hume considers pernicious," and “impracticable" (4). No case has been tried by which the applicability of such a rule even to capital cases has been tested, those quoted by the institutional writers

being instances in which there was violent resistance. Killing in errone- If an officer in executing an illegal warrant, or in

executing a legal warrant illegally, or on a wrong person, kill the person he is endeavouring to capture, , his crime may be murder unless the irregularity or illegality be such that he could not reasonably be expected to know it (5).

Soldiers or sailors in the Royal service have when on duty. privileges in taking life, which will be afterwards

spoken of. But it is only when on duty that the privilege exists.

And therefore, if when not on duty, or not under orders of superiors, they take duties upon themselves, their conduct will be judged of regardless

ously executing warrant.

Royal forces only privileged

1 Hume i. 201, case of Gordon there.-i. 202, case of Fife there.

- Alison i. 31, case of Maclean there.

2 Hume i. 199.
3 Alison i. 36, 37.
4 Hume i. 199.
6 Hume i. 200.-Alison i. 34, 35.

even Royal forces on

duty not justi

of their being soldiers or sailors (1). And even when PROVOCATION. on duty it is not when verbally insulted, or pelted with missiles not dangerous, such as mud, only when seriously attacked or threatened, that they may inflict death (2).

but fied in killing



The punishment of murder is death and confiscation PUNISHMENT OF to the Crown of the movable estate of the convict. The sentence also ordains him to be fed on bread and water only till execution, but it is not usual to enforce this.


II. Culpable Homicide is the name applied to cases CULPABLE where death is caused, or accelerated by improper conduct, and where the guilt is less than murder (3). It is of three kinds :

First, intentional killing in circumstances implying Intentional neither murder nor justifiable homicide (4).


causing death.

Second, homicide by the doing of an unlawful act, Unlawful act or a rash and careless act, though death was not foreseen or probable (5).

Third, homicide from negligence or rashness in the Negligence. performance of lawful duty (6).



moderation in

First, where the killing is intentional it is reduced CULPABLE to culpable homicide only by the facts being such, that INTENTIONAL the accused is to some extent excusable. It is culpable homicide if a person exceed moderation in Exceeding retaliation for an injury, or act rashly in killing to retaliation. prevent an injury which he anticipates, or if a person whose duties may require him to kill, rashly and unnecessarily do so. As regards the first two cases, it Alarm from will not suffice that the accused was in a passion, there injury requisite. must have been actual injury or alarming threats pro

threats or actual

1 Burnett 81, case of Davies and Wiltshire there.-Alison i. 39 to 45 passim.-i. 45.

2 Hume i. 205 to 213 passim.

3 Every charge of murder is held to include a charge of culpable homicide, and the Jury, if they see

cause, may find that culpable homi-
cide only has been committed.

4 Hume i. 239.-Alison i. 92, 100.
5 Hume i. 234.-Alison i. 94 to 100.
6 Hume i. 233.--Alison i. 113 to


Killing housebreaker.

Killing seducer of wife.

ducing reasonable perturbation (1). And in this is included the case of a person killing a housebreaker; for though this may not be justifiable in every case (2), it is plain that there is ground for serious alarm when a robber breaks into a house. Where a house-breaker was shot while escaping by a window, it was laid down that if the person who fired had reasonable ground to apprehend danger, or to believe that the property could not otherwise be protected, the act was justifiable, but, if not, it was culpable homicide of an unaggravated kind (3).

A husband instantly killing the seducer of his wife, when caught in the act of adultery, is held to commit culpable homicide (4).

It is culpable homicide though the slayer has been put in absolute danger of his life if he have not used means of escape or rescue open to him (5), or if the danger have been at an end before he did the

Killing when able to escape, or danger past.

Killing in self- deed (6). There is one situation in which homicide

defence where

attack of deceased brought

that would have been justifiable in itself, must be

about by accused. held culpable in consequence of the danger to which

1 Hume i. 229, 247, 248.-Alison i. 92, 93, 100, 101.-John Forrest, Glasgow, Jan. 4th 1837; 1 Swin. 404 (Lord Moncrieff's charge).

2 Hume i. 220, 221.-Alison i. 104. 3 Edward Lane, Dumfries, Sept. 1830; Bell's Notes, 77. In his charge in this case, Lord Moncrieff said," Prisoner had got a double "barrelled gun, and two men in the "house with him; and the man "killed was struggling to get away "half out at a window, and although "he gave no answer (when accused called to him) "he was "retreating-doing all he could to "get away. This completely proved. "Was there then cause for "alarm? Was there any necessity "for taking away life? Could he 66 even have had difficulty of appre"hending him? - Agitation no


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5 Hume i. 226, and cases of Bruce and others and M'Millan there.Alison i. 102, 103, 133.

6 Hume i. 218, 225. Of course if the danger has been long past at the time, the act may be murder.


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or on person re

the accused was exposed, having been provoked by CULPABLE himself. If A commit a trifling assault

upon B, whereupon B draw his sword and attack A, and press him so hard that to save his own life A has to kill B, here as he provoked B, he must be held responsible for the consequences (1).

Hume even inclines to the opinion that one who has been compelled to kill to save himself, should be held liable to punishment, if he brought the attack of the deceased upon him by using bad language towards him (2).

Cases where death results from an official exceeding Exceeding duty. his duty are either murder or culpable homicide, according to the extent of recklessness displayed. If Rashly firing on

prisoners. an officer in charge of prisoners, who is ordered to fire on any one who attempts to escape, does so hastily and rashly, he commits culpable homicide (3). Magis- Firing on mob, trates too hastily giving orders to fire on a mob, or sisting arrest. officers rashly killing on resistance of warrant, or revenue officers exceeding duty in killing smugglers, are instances of culpable homicide of this class (4).

Second, a person who inflicts a minor injury upon CULPABLE another, through vice or recklessness, which has a minor INJURY. fatal result, is guilty of culpable homicide, although the death was not contemplated or probable (5). Such cases are innumerable. From violent though Includes every not murderous assault, down to the slightest blow, which causes the person struck to fall, there are many cases where death ensues, and where the culpability varies (6). There


also be cases where there is 1 Hume i. 232, and case of the donald : and Irving in note 1, and Master of Tarbat and others there. Cameron in note 2.-i. 235, cases - Alison i. 18.

of Mason : and Bathgate there, and 2 Hume i. 233.

cases of Wood : and Neal in notes 3 Burnet 77, case of Maxwell 2 and * there.—79, case of Inglis there.- 6 Hume i. 234, 235, passim.Alison i. 43, 44.

Alison i. 97, 98, passim. The fol4 Hume i. 216, case of Chalmers lowing cases may be referred to as and others there.- Alison i. 110. illustrations :- :- Jas. Grace, H.C.,

5 Hume i. 234, and cases of Mac- Dec. 14th 1835; 1 Swin. 14 and


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case of assauit.


Desertion of children.

no violence.

Desertion of a child, even in circumstances of no apparent danger, is culpable homicide,

if the child die (1). It is culpable homicide if for a Administering frolic something likely to sicken the person taking it spirits or drugs.

be mixed with food or drink, and death ensue, though the substance administered be not in itself dangerous to life (2). And the same would hold of giving a child (3), or a lunatic (4), a large quantity of spirits,

or improperly giving laudanum to a child to put it to Reckless use of sleep (5). Such cases also as culpable and reckless

use of firearms (6), or setting off of fireworks (7), or

the like, from which death results, are cases of culpNeglect of per- able homicide. Culpable neglect or cruel conduct by

those in charge of young (8), or infirm persons (9), or


sons by custodier.

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1847 ;

Bell's Notes 78 (a fair fight with fists). – John Jones and Edward Malone, H.C., June 22d 1840 ; 2 Swin. 509 ( assault ). Dundas M‘Riner, H.C., July 24th 1844 ; 2 Broun 262 ( assault). — Margaret Shiells or Fletcher, H.C., Nov. 7th 1846 ; Ark. 171 (assault). - Margaret M.Millan or Shearer, H.C., Jan. 6th 1851; J. Shaw 468 (assault). -Rob. Bruce, H.C., Feb. 19th 1855; 2 Irv. 65 (assault).—Peter Jafferson and Geo. Forbes, Perth, April 22d 1848; Ark. 464 (assault and throwing down). Rob. Vance, Glasgow, Mar. 23d 1849; J. Shaw 211 (assault and throwing down). Isabella Brodie, H.C., Mar. 12th

Ark. 45 (throwing down).Rob M'Anally, Glasgow, April 27th 1836; 1 Swin. 210 and Bell's Notes 78 (assault in retaliation).-John M‘Laughlin, H.C., Feb. 17th 1845 ; 2 Broun 387 (sudden blow in retaliation).

1 Hume i. 235, 236, and 237 passim.-Alison i. 99.—More ii. 369.

2 Hume i. 237 and case of Inglis and others there.-Alison i. 99.

3 Hume i. 237 and case of Philip

in note a.-Alison i. 99.

4 Neil Lamont, Perth, Sept. 1837 (Indictment, Adv. Lib. Coll. ). 6 Jean Crawford, H.C., Dec. 6th

Ark. 394.--Elizabeth Hamilton, H.C., Nov. 9th 1857 ; 2 Irv. 738.

6 Hume i, 192: cases of Cowan : and Buchanan in note 2.-i. 193, case of Henderson there.—John M'Bryde, H.C., June 10th 1843 ; I Broun 558.—John Smith, Inverness, April 28th 1858 ; 3 Irv. 72. (In this latter case the pistol was supposed to be loaded only with powder and wadding, and the injury was caused by a pin that had accidentally got into the pistol.)

7 Geo. Wood, jun., and Alex. King, Aberdeen, April 15th 1842; 1 Broun 262 and Bell's Notes 71.

8 Catherine M‘Gavin, H.C., May 11th 1846; Ark. 67.-Susan Hamilton or Kain, Ayr, Oct. 14th 1846 (Lord Justice Clerk Hope's MS. Notes to Hume).

9 Peter M‘Manimy and Peter Higgans, H.C., June 28th 1847; Ark. 321.-George Fay, Glasgow, Dec. 27th 1847; Ark. 397.

1846 ;


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