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Excuse of obedi

It is no excuse for the accused that in doing what NEGLECT OF DUTY he did he obeyed orders, if what was done was plainly unsafe (1). On the other hand, if an operation be ence to orders dangerous, requiring care and skilful supervision, a contractor may be guilty if he allow subordinates to act unskilfully and rashly, and neglect to exercise oversight (2).

Superior bound

to superintend dangerous operations.

Adherence to bye-laws, &c., will not necessarily exonerate.


Although the infringement of regulations or byelaws is important in estimating the culpability (3), it does not follow that mere obedience to them frees from responsibility. Regulations, though made by statute, do not abrogate the common law, and cannot "render innocent every omission of the requisite consideration for the safety of others,' which is not "embraced within them" (4).

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PUNISHMENT OF The punishment of culpable homicide is penal servitude or imprisonment; and where the culpability is slight, a fine is sometimes imposed in lieu of, or in addition to, a short term of imprisonment.


Carrying out death sentence.

Justifiable homicide is limited in law to a small

number of cases. The judge who, having jurisdiction in capital cases, sentences to death, and the magistrates and officials who, under proper warrant, regularly carry out the sentence, commit justifiable homicide (5). Deviations from the warrant, if imposed by circumstances, are not criminal. If a mob create a riot, or tear down the gibbet, the magistrate may hang his prisoner at the most convenient spot he Suppressing riot. can find (6). Magistrates commit justifiable homicide

1 Jas. Boyd, H.C., Jan. 7th
1842; 1 Broun 7, (Lord Moncreiff's
charge).-Will. Paton and Rich.
M'Nab, H.C., Nov. 3d, 4th,
and 8th 1845; 2 Broun 525 (Lord
Justice-Clerk Hope's charge).

2 Jas. Kirkpatrick and Rob.
Stewart, Dumfries, Sept. 1840;
Bell's Notes 71.-John Drysdale,
and others, H.C., March 13th
Ark. 440 (Lord Justice-Clerk
Hope's charge).

3 Thos. Houston and Jas. Ewing, Glasgow, April 23d 1847; Ark. 252 (Indictment).-Jas. Auld, Aberdeen, Sept. 23d 1856; 2 Irv. 459 and 29 S.J. 3.

4 Will. Trotter, Jedburgh, Oct. 5th 1842; Bell's Notes 74 (per Lord Moncreiff).

5 Hume i. 195, 196, 197.-Alison i. 127.

6 Hume i. 197.-Alison i. 128.


on resistance to

when they are obliged to kill to repress riot (1). The JUSTIFIABLE general rule is that where a mob commits, or threatens violence dangerous to life or property, the magistrate is bound to quell the riot, and where his authority is resisted, to maintain it by force. In addition to this duty at common law, it is enacted by statute, that where there is a riotous mob, although it have not yet done any act of violence, the magistrate who, after the reading of the Riot Act, and the lapse of an hour to give the mob time to disperse, proceeds to disperse it by force, commits justifiable homicide if any of the mob perish. And if the reading of the Act be forcibly prevented, the rule is the same (2). An officer holding an ex-facie legal warrant commits officer killing justifiable homicide if he kill persons violently resist- warrant. ing its execution, or seriously threatening his life if he advance to execute it (3). The officer will not be held responsible for irregularities of which he could not by ordinary attention be made aware-e.g., an officer who, in arresting on an English warrant duly endorsed, kills on resistance, cannot be held responsible for the illegality of the original English warrant. The rules apply to the officer's lawful concurrents. Soldiers and sailors on duty are exempt from blame if Royal forces they kill in obedience to orders from an officer or or in defence of magistrate, except in case of flagrant illegality. they are left in any situation to act on their own responsibility, and they keep within the rules of their service, they are not blameable if death result (4).

killing on order

post and arms.

1 Hume i. 197.-Alison i. 47.More ii. 368.

2 Act Geo. I. c. 5.-Hume i. 197.-Alison i. 128 to 130.

3 Hume i. 197, 198, case of Gillespie and others there.-i. 200,201, case of Gordon and others there.i. 202, cases of Fife and Simpson and others there.-Alison i. 29, 131.

4 Hume i. 205, 206, and cases of Wallace and Willhouse and others there.-i. 207, cases of M'Adam and Long Hawkins: and M'Farlane and Firmin there.-i. 208, case of Woodwest there, and case Lloyd in note 1.-Alison i. 39, 40, 41. Rob. Hawton and Will. Parker, H.C., July 15th 1861; 4 Irv. 58 and 33 S.J. 646 (Lord Justice General M'Neill's charge).


Where a soldier is ordered to keep a post, he is not obliged to wait until actually injured before using his weapons. If a number of armed persons advance in spite of his remonstrances, and attack or seriously menace him, he is quite entitled to fire on them. a vessel, chased at sea by a royal ship or boat or revenue cutter, refuses to bring to on the usual signals, Duration of plea it is lawful to fire into her. Where soldiers are called


of duty by soldiers.



It was

out, the plea of duty, so far as available, commences
when they are put under arms, and does not cease till
they have placed their arms in safety, for till then
there is an absolute duty to protect the arms from
capture (1). One of the best instances of this is a
case where a sentinel was ordered by a sergeant not
to fire, but to leave his post and make off.
pursued and pressed by armed men, he fired.
laid down that, being off duty, the case must be con-
sidered as that of an ordinary individual attacked.
This ruling was, it is thought, wrong. The soldier
was off duty as regarded maintaining his post, but he
was on duty as regarded the protection of his arms-
a duty from which no order of his sergeant could free
him (2).

An individual, murderously attacked by another, is justified in killing him to save himself (3), provided Preventing mur- his alarm is reasonable (4). And the same principle

der of another.

applies to a person killing to prevent the murder of another (5). It is not necessary that the deceased should have struck any mortal blow. If A see B on the ground at some distance off, and C with his knife uplifted to stab him, A is justified in shooting C, although he might not be so were he close enough to

1 Hume i. 213.-Alison i. 46.

2 Hume i. 208, case of Dreghorn in note 1.-Alison i. 45.-Burnett 82.

3 Act 1661, c. 22.-Hume i. 223. -Alison i. 132,133.-Rob. M'Anally,

Glasgow, April 27th 1836; 1 Swin. 210 (Lord Mackenzie's charge).

4 Hume i. 224, and case of Pretis there.

5 Hume i. 218.-Alison i. 133.


grasp C's hand and stop the blow. A woman who is JUSTIFIABLE attacked by a ravisher, or any one who is with her, Killing ravisher. may kill him, if this become necessary to prevent him from fulfilling his purpose (1).


All depredations on property, made or attempted, Killing robber. if accompanied by violence, justify the killing of the delinquent (2). But the violence must be actual, not in mere preparation, or at an end by the flight of the offender. The danger must be imminent. In cases of housebreaking, the danger is presumed to be imminent by night. In the daytime more caution is requisite, but still the circumstances may make homicide justifiable (3). Hume thinks there might be May thief escapcases in which it would be justifiable to put a thief to be shot. death, although he was not attempting violence. He puts the case of a person, in a remote place, finding a thief riding off on a horse which he has stolen, and who, when called on to stop, continues his flight (4). It is difficult to concur in the learned author's opinion, that there is "no sound law which should hinder him "from saving his property in this necessity, though at "the expense of the felon's life" (5). Such a doctrine. goes beyond the principle which should regulate all discussion on the justifiability or culpability of homicide on provocation-viz., whether there was reasonable fear, not of an offence against property, but of serious injury, whether in protecting property or otherwise. It is personal danger, not danger of patrimonial loss, which justifies homicide.


ATTEMPT to murder, whether by violence, by means AT COMMON LAW. of poison, or by some act, not being a direct assault,

1 Hume i. 218.-Alison i. 135.— More ii. 367, 368.

2 Act 1661, c. 22.-Hume i. 217, 218, 221.-Alison i. 136, 137, 138.


More ii. 367.

3 Hume i. 221.-Alison i. 138.
4 Hume i. 222.

5 See Alison i. 22, 23.

AT COMMON LAW. as by cutting a rope or placing a spring gun, is a crime (1).

Intent presumed.


The intent is presumed from the act under the What constitutes rules already noticed, and is held complete when the accused has put his machinations in practical shape. towards accomplishing his intention. If a person mix poison with food or drink, and hand it to another, or place it so that another is likely to partake of it (2); or if A give poison to B to be administered to C, whether B is a consenting party to the crime or not, the accused has done his part to accomplish the murder (3).



Shooting. Attempting to shoot.

Stabbing or cutting.

Administering poison.

Attempt to murder is punishable by an arbitrary pain at common law, but by statute, certain assaults which partake of the character of attempts to murder, are made capital (4) viz., wilfully, maliciously, and unlawfully doing any of the following acts:

1. Shooting at any of Her Majesty's subjects.

2. Presenting, pointing, or levelling any kind of loaded firearms at any of Her Majesty's subjects, and attempting, by drawing a trigger, or in any other manner, to discharge the same at or against his or their person or persons.

3. Stabbing or cutting any of Her Majesty's subjects, with intent to murder, or maim, disfigure, or disable, or to do some other grievous bodily harm.

4. Administering or causing to be administered to, or taken by, any of Her Majesty's subjects, "any deadly poison, or other noxious and destructive subject or thing," with intent to murder or disable, or to do some other grievous bodily harm.

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1 Hume i. 28, case of Ramage in note a.-Mary A. Alcorn, H.C., June 18th 1827; Syme 221.-Sam. Tumbleson, Perth, Sept. 17th, 1863; 4 Irv. 426 and 36 S.J. 1.

2 Andrew Williamson, Perth, Sept. 16th 1833; 6 S.J. 40.

3 Samuel Tumbleson, Perth, Sept. 17th 1863; 4 Irv. 426 and 36 S.J. 1.-See also Hume i. 27.Alison i. 165, 166.

4 Act 10 Geo. IV. c. 38, §§ 1, 2. The Act reserves the power of the Crown to restrict the pains of law in express words.

* Vide 2, 3.

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