HOMICIDE.

Homicides which are felonies are murder and manslaughter. Homicides not felonious may be divided into three classes: justifiable, excusable, and by misadventure. See 4 Bl. Comm. 201, under Murder (Malice).

Justifiable homicide must arise from an imperious duty prescribed by law, or be owing to some unavoidable necessity induced by the act of the person killed, without any manner of fault in the party killing.' 1 East P. C. 219; Hawk. P. C. 1, 28, 1, 22. One instance is the killing by a gaoler of a prisoner attempting to escape from lawful custody. East 330; Hawk. ib. ss. 11, 13; cf. s. 17.

Homicide is 'only excusable where the party killing is not altogether free from blame, but the necessity which renders it excusable may be said to be partly induced by his [deceased's] own act.' East 220; if the blame is of a 'trivial' nature: 1 Russ. Cri. 808. Formerly it was the practice for the jury to find the fact specially, and on certifying the record into chancery, a pardon issued of course, under 6 E. 1, the rpd. statute of Gloucester, c. 9 (1278), and forfeiture was thereby saved. But latterly it was usual for the court to direct the jury to find defendant not guilty. East, ib. Self-defence-se et sua defendendo is the commonest excuse under this head.

Self-defence] By 24-5 V. 100, 7, No punishment or forfeiture shall be incurred by any person who shall kill another by misfortune or in his own defence, or in any other manner without felony.'

Chance-medley] The ancient legal notion of homicide by chancemedley* was when death ensued from a combat between the parties upon a sudden quarrel; but it has since been frequently confounded with misadventure or accident.' Ib. 221. Thus in Chichester, 1671, the court refused to accept the verdict of chance-medley.

'Homicide by misadventure is when a man doing a lawful act, without any intention of bodily harm, and using proper precaution to prevent danger, unfortunately happens to kill another person. The act upon which the death ensues must be lawful in itself; for if it be malum in se, the case will amount to felony, either murder or manslaughter, according to the circumstances. If it be merely malum prohibitum, as shooting at game by an unqualified person, that will not vary the degree of the offence. The usual examples under this head are 1st, where death ensues from innocent recreations; 2ndly, from moderate and lawful correction in foro domestico; and, 3rdly. from acts lawful or indifferent in themselves, done with proper and ordinary caution.' East P. C. 221, who says that the history of the verdict was the same as in excusable homicide. See further on these points, Manslaughter.

*This name is understood by the New English Dictionary as mixed or mingled chance or casualty,' but Maitland, 1 Collected Papers 320, has no doubt that it is a corruption of chaude mêlée.

Husband and Wife: Offences against each Other.

HORSES, LARCENY, &c. OF.

See Cattle. See also Dangerous Animals in Index.

HOUSES-BREAKING, DEMOLISHING, INJURING, &c.

See Burglary, Dwelling-house, Riot.

709

HUSBAND AND WIFE-CRIMES BY ONE
AGAINST THE OTHER.

For crimes of violence, see Spouses as Witnesses.

For larceny, see that title. On ss. 12, 16, of 45-6 V. 75 (practically repeated in s. 36 of the Larceny A. 1916), Mr. Eversley (Domestic Relations, 3rd ed., 1906, p. 251 n.) says, 'It does not seem necessary to confine criminal proceedings under these sections to simple larceny; but charges involving obtaining money or chattels under false pretences, or larceny by a trick, might well be preferred, for they are all offences concerning property, and seem to be within the mischief of this section.'

The same reasoning, it is submitted, would apply to arson, forgery, and other offences with respect to property.

In March, 1828, the judges thought the conviction of a wife, living apart, for arson with intent to injure her husband's property was wrong, because she was identified' with him, but there seems no doubt that if a wife burned a husband's house with intent to defraud an insurance office, she could be convicted. So, it is submitted, if she defrauded others by forging his name, she could be convicted, but not-apart from statute-if she defrauded him. March seems to be the only case on the point.

IDIOTS, OFFENCES AGAINST.

For 'idiot' at common law, see Incompetency of Witnesses. For 'defectives' generally, see Appendix, Mental Unsoundness. For sexual offences against females, see under Rape.

ILLEGAL PRACTICES.
See under Bribery.

IMPRISONMENT, ILLEGAL.
See False Imprisonment.

INCEST.

The Punishment of Incest A. 1908, 8 E. 7, 45, is:

1.-(1) Any male person who has carnal knowledge of a female person, who is to his knowledge his grand-daughter, daughter, sister, or mother, shall be guilty of a misdemeanour, and upon conviction thereof shall be liable, at the discretion of the court, to be kept in penal servitude for any term not less than three years, and not exceeding seven years, or to be imprisoned for any time not exceeding two years with or without hard labour: Provided that if, on an indictment for any such offence, it is alleged in the indictment and proved that the female person is under the age of thirteen years, the same punishment may be imposed as may be imposed under section four of the Criminal Law Amendment Act, 1885 (which deals with the defilement of girls under thirteen years of age).

(2) It is immaterial that the carnal knowledge was had with the consent of the female person.

(3) If any male person attempts to commit any such offence as aforesaid, he shall be guilty of a misdemeanour, and upon conviction thereof shall be liable at the discretion of the court to be imprisoned for any time not exceeding two years with or without hard labour.

(4) On the conviction before any court of any male person of an offence under this section, or of an attempt to commit the same, against any female under twenty-one years of age, it shall be in the power of the court to divest the offender of all authority over such female,

and, if the offender is the guardian of such female, to remove the offender from such guardianship, and in any such case to appoint any person or persons to be the guardian or guardians of such female during her minority or any less period:

Provided that the High Court may at any time vary or rescind the order by the appointment of any other person as such guardian, or in any other respect.

2. Any female person of or above the age of sixteen years who with consent permits her grandfather, father, brother, or son to have carnal knowledge of her (knowing him to be her grandfather, father, brother, or son, as the case may be) shall be guilty of a misdemeanour, and upon conviction thereof shall be liable, at the discretion of the court, to be kept in penal servitude for any term not less than three years, and not exceeding seven years, or to be imprisoned with or without hard labour for any term not exceeding two years.

3. In this Act the expressions brother' and 'sister,' respectively, include half-brother and half-sister, and the provisions of this Act shall apply whether the relationship between the person charged with an offence under this Act and the person with whom the offence is alleged to have been committed, is or is not traced through lawful wedlock.

4.—(1) An offence under this Act shall be deemed to be an offence within, and subject to, the provisions of the Vexatious Indictments Act, 1859, and any Act amending the same.

(2) A court of quarter sessions shall not have jurisdiction to enquire of, hear, or determine any indictment for an offence against this Act, or for an attempt to commit any such offence.

(3) If, on the trial of any indictment for rape, the jury are satisfied that the defendant is guilty of an offence under this Act, but are not satisfied that the defendant is guilty of rape, the jury may acquit the defendant of rape and find him guilty of an offence under this Act, and he shall be liable to be punished accordingly.

If, on the trial of any indictment for an offence under this Act, the jury are satisfied that the defendant is guilty of any offence under sections four or five of the Criminal Law Amendment Act, 1885, but are not satisfied that the defendant is guilty of an offence under this Act, the jury may acquit the defendant of an offence under this Act and find him guilty of an offence under sections four or five of the Criminal Law Amendment Act, 1885, and he shall be liable to be punished accordingly.

(4) Section 4 of the Criminal Evidence Act, 1898, shall have effect as if this Act were included in the schedule to that Act.

5. All proceedings under this Act are to be held in camera. 6. No prosecution for any offence under this Act shall be commenced without the sanction of His Majesty's Attorney-General, but this section shall not apply to any prosecution commenced by or on behalf of the Director of Public Prosecutions.

An offence found under s. 4 (3) obviously is not within s. 6.

Evidence of similar acts] The only date alleged being Nov. 9th, an amendment was allowed to March 15th, which made the alleged paternity possible, and the direction to the jury alluded to more than one offence; the conviction was upheld on the ground that there was no miscarriage of justice: A. Allen, 4 Cr. A. R. 181, 1910. That such evidence is admissible was finally established in Ball, 1910, which

see.

The reason of the House of Lords was that the evidence of earlier acts tended to prove that the parties had gratified a mutual passion, and that this was relevant to the charge and to rebut the defence that the relations proved were innocent.

It seems, on principle, that subsequent similar acts are equally admissible: A. E. Stone, 1910.

Accomplice] If one of the parties consents, he or she becomes an accomplice and must be corroborated: Stone, above: c. q. See Accomplices. The jury must be directed on this point. Even if the female is not an accomplice there should be a caution on the need of corroboration, if her character is not good: B. Brown, 1910: c. q. Cf. B. Brown, 1911. Such a caution should be given when the evidence of the witness who may be an accomplice relates to acts not indicted but similar to which the witness is a party: Bloodworth. Medical evidence of facts not otherwise accounted for may be corroboration: W. H. Cooper, 1914. Mere submission does not make complicity; there must be permission: Dimes, below.

Indictment for rape] A verdict under s. 4 (3), above, does not imply that the female is an accomplice: Dimes, 7 Cr. A. R. 43; 76 J. P. 47, 1911.

Indecent assault] may be found under s. 4 (3), above, as it may be found under the s. 4 therein mentioned, under which by s. 9 of 48-9 V. 69, indecent assault may be found: Simmonite, 1916, 2 K. B. 821; 86 L. J. K. B. 15; 115 L. T. 616; 25 Cox C. C. 544; 12 Cr. A. R. 142.

Sentence] Seven years' p. s. was reduced to three, in view of the state of the home: Keats, 9 Cr. A. R. 214, 1913.