MANSLAUGHTER.

"There is no offence known to our law so various in its circumstances and so various in the considerations applicable to it as that of manslaughter': per Denman J. in Towers, 1874. The law on the subject can necessarily only be fully understood in connection with that of murder. Cases and passages relevant to both are marked *; the corresponding references supplement each other.

*Murder] Manslaughter is principally distinguishable from murder in this, that though the act which occasions the death is unlawful, or likely to be attended with bodily mischief, yet the malice, either express or implied, which is the very essence of murder, is presumed to be wanting in manslaughter the act being imputed to the infirmity of human nature." East P. C. 218; Foster C. C. 290. See Hughes, 1857, below. 'Murder is unlawful homicide with malice aforethought. Manslaughter is unlawful homicide without malice aforethought': per Stephen J., Doherty, 1887. Blackstone's 'principal' distinction is rather literary than helpful: 'manslaughter (when voluntary) arises from the sudden heat of the passions, murder from the wickedness of the heart': 4 Comm. 190.

*Year and a day] Coke, 3 Inst. 47 (cf. 53), concludes his definition of murder, so as the party wounded or hurt, &c., die of the wound or hurt, &c. within a year and a day after the same,' and he and subsequent authorities assume this proviso of manslaughter. Hale, however, expressly lays it down, 1 P. C. 428-cited under Unskilful Treatment-where homicide' manslaughter: see 424. See 33 H. 8, 12, under Assault [statute sometimes limited the period, e.g. 2 [or 1] J. 1, 8, rpd., to six months]. The rule was emphatically applied by the C. C. A. in Dyson, 1908, which see; there defendant had been convicted of injuring deceased, who died March 5, 1908, in November, 1906, and December, 1907.

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Accessories] See that title. It is only in 'voluntary' manslaughter that there cannot be an accessory before the fact: Kenny, Outlines, p. 116.

There may be accessories after the fact. East, above.

Where A. was indicted for the wilful murder of B., and C. was indicted for receiving, harbouring, and assisting A., well knowing that he had committed the murder, Tindal C.J. held that if A. was only guilty of manslaughter, C. might, notwithstanding, be found guilty as an accessory after the fact. Greenacre, 1857; Richards, 1877.

Punishment] By 24-5 V. 100, 5, as amended: 'Whosoever shall be convicted of manslaughter shall be liable, at the discretion of the court, to be kept in penal servitude for life or to pay such fine as the court shall award, in addition to or without any such other discretionary punishment as aforesaid.'

Venue] See that title.

Indictment] See No. 3, Appendix to Indictments A.

* Provocation] Whenever death ensues from sudden transport of passion or heat of blood, if upon a reasonable provocation and without malice, or if upon sudden combat, it will be manslaughter; if without such provocation, or the blood has had reasonable time or opportunity to cool, or there be evidence of express malice, it will be murder... in no instance can the party killing alleviate his case by referring to a previous provocation if it appear by any means that he acted upon express malice.' East P. C. 232, 239. For an application to culpable accident, see Gross, 1913.

* Unlawful or negligent act] See Undesignea Consequences for the principle in Foster C. C. 261; 'throwing a stone at another's horse' and thereby killing someone is manslaughter, for the act itself was unlawful: Hale P. C. 39, 475; East P. C. 255, 257. See Bradshaw, below, and * Abortion.

Thus if one in wantonness or sport throw stones down a coal-pit, large enough to break the scaffolding, whereby, indirectly, a man is killed, this is manslaughter, though the latter was only a trespasser. 'If death ensues as the consequence of a wrongful act, an act which the party who commits it can neither justify nor excuse, it is not accidental death, but manslaughter [Here] the act was one of mere wantonness and sport, but still the act was wrongful, it was a trespass,' per Tindal C.J. Fenton, 1 Lewin C. C. 179, 1830. So if an improper quantity of spirits was given to a child in brutal sport, and death ensues, it would be manslaughter. Martin, 3 C. & P. 211, 1827. See Errington, 1838, and No Design, &c. under Murder. So where a lad, as a frolic, without any intention to do any harm, took the trapstick out of the front part of a cart, in consequence of which it was upset, and the carman was pitched backward and killed, two judges held that he was guilty of manslaughter. Sullivan, 7 C. & P. 641, 1836.

A mother, being angry with one of her children, took up a small poker, and threw it after him, but hit another child who happened to be entering at the moment, who was killed; Park J. held this to be manslaughter, although it appeared that the mother only intended to frighten the former child; saying, 'If a blow is aimed at an individual unlawfully-and this was undoubtedly unlawful, as an improper mode of correction-and strikes another and kills him, it is manslaughter; and there is no doubt if the child at whom the blow was aimed had been struck and died it would have been manslaughter, and so it is under the present circumstances.' Conner, 7 C. & P. 438, 1836. The defendant requested deceased, who had entered his house in his absence, to go, but he refused. On this words arose, and defendant, becoming excited, used force, and, by a kick which he gave him, caused his death. Alderson B. said, 'A kick is not a justifiable mode of turning a man out of your house, though he be a trespasser. If the deceased would not have died but for the injury he received, the prisoner having unlawfully caused that injury, he is guilty of manslaughter.' Wild, 2 Lew. C. C. 214, 1837. One defendant, of whose goods deceased was in possession,' assisted by another, plied him with liquor, themselves drinking freely also. When he was very drunk they put him into a cab, and caused him to be driven about the streets;

after about two hours he was found dead. Parke B. told the jury, that if defendant, when the deceased was drunk, drove him about in the cab, in order to keep him out of possession, and by so doing accelerated his death, it would be manslaughter. Packard, &c., Carr. & M. 236, 1841.

Defendant having the right to the possession of a gun which had been wrongfully taken by and was in the hands of the deceased, demanded it back, and on being refused attempted to take it away by force, though he knew it to be loaded. In the struggle which ensued the gun went off accidentally and killed the deceased. L. Campbell directed the jury that, though defendant had a right to the possession of the gun, to take it away by force was unlawful; and, as the discharge, though accidental, was the result thereof, it was their duty to convict of manslaughter. Archer, 1 F. & F. 351, 1857.

Direct result] But the death must be the direct and not the indirect consequence of the unlawful act or omission. Defendant was a maker of fireworks-contrary to the provisions of a rpd. statute-at his own house. During his absence, by the negligence of one of his servants, the fireworks became ignited, by which a neighbouring house was set fire to, and a person therein burnt to death. It was held that defendant was not indictable for manslaughter, as the death was caused by the negligence of the servant. Bennett, 1 Bell C. C. 1; 28 L. J. M. C. 27; 8 Cox C. C. 74, 1858; cf. Hilton, 1838. Where a stationmaster despatched trains at too short an interval after each other, but a signalman caused the collision by a mistake with the signals, Erle C.J. advised the grand jury to throw out the bill against the stationmaster, because his negligence was not the proximate and efficient cause of the resulting deaths. Ledger, 2 F. & F. 858, 1862. A. in unlawfully assaulting B., who at the time had in her arms an infant, so frightened the infant that it died after six weeks; A. is guilty of manslaughter if the jury think that the assault on B. was the direct cause of death: per Denman J., Towers, 12 Cox C. C. 530, 1874.

Discipline] On a plea of guilty of manslaughter by the captain and the mate of a vessel of one of the crew, Leggett, 8 C. & P. 191, 1838, it was admitted that discipline must be almost despotic'; but now quære. See Cheeseman, 1836.

* Common design] If A. and B. agree together to assault C. with their fists, and C. receives an unlucky' blow of the fists from either of them, causing death, both A. and B. are guilty of manslaughter. But should A., of his own impulse, kill C. with a weapon suddenly caught up, B. would only be liable for acts done in pursuance of the common design: per Lush J., Caton, 12 Cox C. C. 624, 1874.

Sports] A useful rule is: All struggles in anger, whether by fighting, or wrestling, or any other mode-all kinds of contests in anger, are unlawful': per Patteson J., Canniff, 9 C. & P. 359, 1840. Where death ensues from such sports or recreations as are innocent and allowable, it falls within the rules of Excusable Homicide, which see, because_bodily harm is not the motive on either side. Foster C. C. 259; East P. C. 268. Therefore persons playing at cudgels, Comb. 408, or foils or wrestling, Lane, 1717, are excusable if death ensue.' East, ib. Hale, says Foster, ib., appears to be of a different opinion. He says, 'Regularly he that voluntarily and knowingly

intends hurt to the person of a man, tho he intend not death, yet if death ensues, it excuseth not from the guilt of murder or manslaughter at least; as, if A. intends to beat B. but not to kill him, yet if death ensues, this is not per infortunium, but murder or manslaughter, as the circumstances of the case happen. And, therefore, I have known it ruled, that if two men are playing at cudgels together, or wrestling, by consent, if one with a blow or fall kill the other, it is manslaughter, and not per infortunium, tho Mr. Dalton, cap. 96 [ch. 148 in edition of 1742] seems to doubt it; and accordingly it was resolved, P. 2 Car. 2, by all the judges, upon a special verdict, from Newgate, where two friends were playing at foils at a fencing school, one casually kild the other; resolved to be manslaughter.' 1 P. C. 472.

The questions in these cases appear to be two, 1st, whether the sport was lawful; and 2nd, whether the parties engaged in it with a friendly mind, or with intent to do each other some bodily harm. The cases mentioned by Hale seem to proceed on the latter supposition, and on this ground they are distinguished by Foster J. (and East), from the case of persons who in perfect friendship engage by mutual consent in any of those recreations for a trial of skill or manhood, or for improvement in the use of their weapons.' But if there be dangerous weapons used in such sports, and there be any negligence in the use of them, such negligence may render a death manslaughter. Sir John Chichester, fencing with his servant, made a pass at him with his rapier in its scabbard, the servant parrying, struck off the chape of the scabbard, and he was killed by the point of the rapier. It was held that this was manslaughter, because altho the act which occasioned the death intended no harm, nor could it have done harm, if the chape had not been stricken off by the party kild, and tho the parties were in sport, yet the act itself, the thrusting at the servant, was unlawful.' Hale, above, 1671; Aleyn, 12; cf. Keilw. 108, 136. Foster J., ib., puts this decision on another ground, viz. that the defendant' did not use that degree of caution which common prudence would have suggested; and therefore the fact so circumstanced might well amount to manslaughter, though the exercise itself with proper weapons might have been otherwise lawful.'

Death in the course of a friendly contest may also amount to manslaughter if any undue advantage has been taken. Thus, if two were engaged to play at cudgels, and the one made a blow at the other likely to hurt, before he was upon his guard, and without warning, from whence death ensued; the want of due and friendly caution would make such act amount to manslaughter'; each party ought to start upon equal terms.' East P. C. 269.

Rules of the sport] If death is caused by an injury received in a friendly sparring-match with gloves, which is not a thing likely to cause death, it is not manslaughter, unless the parties fight on until the sport becomes dangerous. Young and others, 10 Cox C. C. 371, 1866. But if the combatants met intending to fight for money till one gave in from exhaustion or injury received, the contest would be a prize-fight, although gloves were used. Orton and others, 14 Cox C. C. 226; 39 L. T. R. 293, 1878: C. C. R., where pugilists and spectators were convicted of an unlawful assembly. Charging' in football, if the manner adopted is likely to produce serious injury to another, and the player is reckless and indifferent of the consequences, would be an unlawful act, and if death is thereby caused, it is manslaughter: no 'Association' or other rules could make an unlawful act lawful,

but if a man is playing according to the rules and practice of the game, and not going beyond it, it may be reasonable to infer that he is not actuated by any malicious motive or intention, and that he is not acting in a manner which he knows will be likely to be productive of death or injury': per Bramwell L.J., Bradshaw, 14 Cox C. C. 83, 1878. So of duels, see Self-Defence, below.

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Though the weapons be of a dangerous nature, yet if they be not directed by the persons using them against each other, and so no danger to be reasonably apprehended, if death casually ensue, it is but misadventure.' East, ib. Therefore, if a man be shooting at buts, or pricks, and by casualty his hand shakes and the arrow kills a bystander,' or 'if he be cleaving wood, and the axe flies from the helve, and kills another,' it is only misadventure. 1 Hale P. C. 38, 39, 472, citing 21 H. 7 [i.e. Year Book, p.] 28 a, and 6 E. 4, (p.) 7b [B]; East, ib. But quite otherwise if the sport be unlawful; a man at the diversion of cock-throwing at Shrovetide, which hath too long prevailed, missed his aim, and a child looking on received a blow from the staff, of which he soon died, I once in the circuit ruled it manslaughter. It is a barbarous unmanly custom. . . . Foster, 261. Cf. Brown, 1776.

Fighting] See Affray.

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Prize-fighting] See Affray. Prize-fighting, and publick boxingmatches, or any other exertions of courage, strength and activity of the like kind, which are exhibited for lucre,' are not lawful sports, for they can serve no valuable purpose, but, on the contrary, encourage a spirit of idleness and debauchery.' Foster, 260. In such cases, the intention of the parties is not innocent in itself, each being careless of what hurt may be given, provided the promised reward or applause be obtained. And again, such meetings have a strong tendency in their nature to a breach of the peace. And, therefore, in Ward's case [1789], who was challenged to fight by his adversary, for a public trial of skill in boxing, and were also urged to engage by taunts, although the occasion was sudden, yet, having killed his opponent, he was holden guilty of manslaughter.' East P. C. 270.

*Spectators] Indictment for being present, aiding and abetting a murder (in a prize-fight): there had been a fight between the deceased and another person, at which a great number of persons were assembled, by whom, in the course of the fight, the ring was broken in several times: they had sticks which they used with great violence. The deceased died in consequence of blows (but whether in the fight or from the sticks does not appear). The evidence was contradictory whether defendant acted as second; his witnesses swore he did nothing and said nothing. Littledale J. said I am of opinion that persons who are at a fight, in consequence of which death ensues, are all guilty of manslaughter if they encouraged it by their presence; I mean if they remained present during the fight. If they were not casually passing by, but stayed at the place, they encouraged it by their presence, although they did not say or do anything. If the death occurred from the fight itself, all persons encouraging it by their presence are guilty of manslaughter; but if the death ensued from violence unconnected with the fight itself, that is, by blows given not by the other combatants, but by persons breaking in the ring, and striking with their sticks, those who were merely present