would seem, however, that the prisoner might set up as a defence that the deceased's own negligence was the proximate cause of his death (gg).

It is not every act of slight negligence, even though it has been the cause of death, which will subject a person to an indictment for manslaughter. The negligence must have been so culpable as to have been "criminal," and it is for the jury say whether it was of such a degree that the accused ought to be convicted of manslaughter (h).

to

Manslaughter is a felony, punishable by penal servitude to the extent of life—or in lieu of, or in addition to, the penal servitude or imprisonment, a fine may be imposed (i).

Having inquired into the nature of the crimes of murder and manslaughter, we are now in a position to examine certain classes of acts and determine by the circumstances whether they fall under the head of murder, manslaughter, or excusable homicide.

Killing by fighting:

(i) Murder.-Deliberately fighting a duel-or after time for cooling, or under any other circumstances indicating deliberate ill-will.

(ii) Manslaughter. In a sudden quarrel where the parties immediately fight-or where the parties are fighting in an unlawful amusement.

(iii) Excusable.—In a sparring match with gloves, or other lawful amusement, fairly conducted. But in the case of a sparring match there must be no intention to carry it on until one of the parties is incapacitated by exhaustion or injury, or the match will be unlawful (k). ·

Killing by correction :

(i) Murder-With weapon likely to cause death, e.g., an

iron bar.

(gg) v. Archbold, 856; Dublin, &c., Railway Co. v. Slattery, 3 A. C., at 1166. (h) R. v. Markuss, [1864] 4 F. & F. 356; R. v. Doherty, [1887] 16 Cox, 306, 309.

(i) 24 & 25 Vict. c. 100, s. 5.

(k) R. v. Orton, [1878] 14 Cox, 226.

(ii) Manslaughter.-With an instrument not likely to kill, though improper for use in correction-or where the quantity of punishment exceeds the bounds of moderation.

(iii) Excusable.--Correcting in moderation a child, servant, scholar, or criminal entrusted to one's charge.

Killing without intending to kill whilst doing another

act:

(i) Murder. If that other act is a felony, and likely in itself to cause danger.

(ii) Manslaughter.-If that other act is unlawful.

(iii) Excusable.-If that other act is lawful, and not negligent.

[But see next paragraph.]

Killing whilst doing a lawful but dangerous act, e.g., driving:

(i) Murder. If the accused perceived the probability of the mischief, and yet proceeded with his act.

(ii) Manslaughter.-Where he might have seen the danger if, as he ought to have done, he had looked before him—or if, though he previously gave warning, this warning was not likely to prove entirely effectual, e.g., driving in a crowded.

street.

(iii) Excusable.-If he used such a degree of caution as to make it improbable that any danger or injury would arise to others.

Killing officers or others engaged in effecting the ends of justice:

(i) Murder. If the officer or other person is acting with due legal authority, and executing such authority in a legal manner, the defendant knowing that authority or, in the case of a private person interfering, the intention of such person being intimated expressly.

(ii) Manslaughter. If any one of these requisites is absent (1).

(1) The guilt of the accused may, under the law as it now stands, depend entirely upon nice and difficult questions belonging to the civil branch of the law, such as the technical regularity of civil process or the precise duty of a minister of justice in its execution."-Broom, C. L. 1044.

Killing by officers and others in the execution of their duty:

(i) Murder. If the killing happens in the pursuit of a person not resisting, but fleeing, such person being charged with a misdemeanour only, or the arrest being only in a civil suit.

(ii) Manslaughter.-As above, if the death is caused by means not likely or intended to kill—or if, in an apprehension for felony, there is no need for the violence used by the officer.

(iii) Justifiable. If the officer is carrying out a lawful sentence; or if the person killed resisted his lawful arrest in a civil or criminal cause, or was attempting to escape from custody, or if he fled to avoid an arrest for felony or inflicting a dangerous wound, or if the death was caused in dispersing an unlawful assembly or putting down a riot, provided that in each case the killing was an apparent necessity.

ATTEMPT TO MURDER.

The Offences against the Person Act, 1861, deals in several sections with attempts to murder effected in various ways. The punishment in every case is the same, namely, penal servitude to the extent of life. The various attempts specified are the following:

Administering poison, wounding, or causing grievous bodily harm, with intent to murder (m).

Attempting to poison, drown, suffocate, or strangle, or shooting or attempting to discharge loaded arms with like intent, whether any bodily injury be effected or not (n).

Destroying or damaging any building by gunpowder or other explosive substance, with like intent (o).

Setting fire to any vessel or its belongings, or casting away or destroying any vessel, with like intent (p).

Attempting to murder by any other means than those above specified (q).

(m) 24 & 25 Vict. c. 100, s. 11. (0) Ibid. s. 12.

(n) Ibid. s. 14.

(p) Ibid. s. 13.

(q) Ibid. s. 15.

CHAPTER II.

RAPE, ETC.

RAPE.

THE offence of having carnal knowledge of a woman against her will by force, fear, or fraud.

An

Certain persons cannot be convicted of this crime. infant under the age of fourteen is deemed in law to be incapable of committing, or even, perhaps, of attempting this offence, on account of his presumed physical incapacity (r). And this is a presumption which cannot be rebutted by evidence of capacity in the particular case. Neither can a

husband be guilty of a rape upon his wife. But both a husband (s) and a boy under fourteen, and even a woman (t) may be convicted as principals in the second degree, and may be punished for being present aiding and abetting.

To constitute the offence, the act must be committed without the consent of the female and by force, fear, or fraud. If, however, she yielded through fear of death or duress, it is nevertheless rape; for here the consent is at most imperfect; or if she were insensibly drunk or asleep, or if she submitted under a false representation, such as that she was about to undergo medical treatment, she being ignorant of the nature of the act (u). So also carnal knowledge of a woman of weak intellect, and incapable of exercising judgment so as to give any real consent, is rape, although she

(r) 1 Hale, P. C. 631. See R. v. Waite, [1892] 2 Q. B. 600; 61 L. J. M. C. 187.

(s) R. v. Lord Audley, [1631] 3 Cobbett's St. Trials, 402.

(t) R. v. Ram, [1893] 17 Cox C. C. 609.

(u) R. v. Flattery, [1877] 2 Q. B. D. 410; 46 L. J. M. C. 130. In such cases, however, it may be desirable to proceed under the Criminal Law Amendment Act, 1885 (48 & 49 Vict. c. 69), s. 3; v. p. 159.

made no resistance (w). And a man, who induces a married woman to permit him to have connection with her by personating her husband, is guilty of rape (x). It is equally rape though the female is a common prostitute or the concubine of the prisoner; but circumstances of this nature will probably operate with the jury in their consideration as to whether there was consent. It is necessary to prove penetration, but the slightest penetration will be sufficient (y), and if the prosecution fail to prove this, the prisoner may nevertheless be convicted of the attempt, or of an indecent assault.

At almost every trial for this crime the words of Sir Matthew Hale are recalled: "It is an accusation easy to be made and hard to be proved, but harder to be defended by the party accused, though innocent." It will be necessary to estimate the degree of credibility of the testimony of the woman who makes the charge. On this point we cannot do better than remember the words of Blackstone (z). The credibility of her testimony, and how far she is to be believed, must be left to the jury upon the circumstances of fact that concur in that testimony. For instance, if the witness be of good fame; if she presently discovered the offence (a), and made search for the offender; if the party accused fled for itthese and the like are concurring circumstances which give greater probability of her evidence. But, on the other side, if she be of evil fame, and stand unsupported by the testimony of others; if she concealed the injury for any considerable time after she had opportunity to complain; if the place where the fact was alleged to have been committed was where it was possible she might have been heard, and she made

(w) In such cases also, owing to the difficulty which sometimes arises of proving absence of consent (see R. v. Fletcher, [1866] L. R. 1 C. C. R. 39; 35 L. J. M. C. 172), it may be expedient to proceed under 48 & 49 Vict. c. 69, s. 5, sub-s. 2, v. p. 158. The jury may, however, on an indictment for rape convict of an offence under this section (v. p. 158), or of an offence under section 56 of the Mental Deficiency Act (v. p. 159).

(x) 48 & 49 Vict. c. 69, s. 4.

(y) 24 & 25 Vict. c. 100, s. 63, and R. v. Hughes, [1841] 2 Mood. C. C. 190; 9 C. & P. 752.

(z) v. Archbold, 980.

(a) As to evidence of complaints by the prosecutrix, v. p. 394.