Even in an attempt to part them when more force is used than is necessary. Rex v. Bourne, 5 C. & P. 120.

So also aiming at one person and killing another. Rex v. Conner, 7 G. & P. 438. Provocation by words will not reduce the killing to manslaughter. Ante, chap. 37.

note.

But a personal indignity will. Idem.

Or finding a man in adultery with his wife. Rex v. Manning, T. Raym. 212. People v. Ryan, 2 Wheeler's C. C. 54.

Or a father seeing one committing an unnatural crime with his son. Reg. v. Fisher, 8 C. & P. 182.

Or an unwarrantable imprisonment of a man's person. Rex v. Buckner, Sty. 467. Reg. v. Curvin, R. & M. 132. R. v. Thompson, R. & M. 88. R. v. Withers, 1 East, P: C. 233.

Killing by excessive correction, if with an instrument not likely to kill, is manslaugh. ter-if with a deadly weapon, murder. Foster 262. R. v. Conner, 7 C. & P. 438. Rex v. Turner, Comb. 407, 408. Rex v. Wigg, 1 Leach, 378. n. Anon. 1 East, P. C. 261. R. v. Leggitt, 8 C. & P. 191. R. v. Ray, East, P. C. 236. R. v. Cheesman, 7 C. & P. 425.

Killing an officer attempting to make an irregular arrest may be manslaughter. Jer, Arch. C. L. 429. 1 Russ. on C. 592. Ante, chap. 37, note. Com. v. Drew, 4 Mass. 391. Reg. v. Phelps, 1 Car. & Mars. 180.

So also killing in prize fights or unlawful sports; the former under some circumstances may be murder; but if the sport is lawful and rightly conducted, the killing is, if accí. dental, only misadventure. R. v. Perkins, 4 C. & P. 537. R. v. Hargrave, 5 C. & P. 170. R. v. Murphy, 6 C. & P. 103. 4 Bl. Com. 183. Foster, 259. sed vide infra, 472. Reg. v. Canniff, 9 C. & P. 359.

And killing by wanton and heedless acts is manslaughter. R. v. Mastin, 6 C. & P. 396. R. v. Timmins, 7 C. & P. 499. R. v. Sullivan, 7 C. & P. 641. Fenton's case, 1 Lewin, 179.

And by improper medical treatment which shows a criminal disregard of human life. R. v. Long, 4 C. & P. 423. R. v. Senior, R. & M. C. C. 346. R. v. Webb, 1 M. & Rob. 410. R. v. Simpson, Willcock's Laws Medical Profession, Append. 227. Com. v.

Thompson, 6 Mass. 124.

Or gross neglect in delivering medicines of which death is the consequence. Tessymond's case, 1 Lew. 169.

Death ensuing from gross neglect of natural duty, in the case of children or infirm persons, is manslaughter. R. v. Edwards, 8 C. & P. 611. R. v. Saunders, 7 C. & P. 277. R. v. Smith, 8 C. & P. 153. R. v. Davies, per Patterson, Justice, Hereford Summer Assizes, 1831. Burns' Justice, 808, ed. 1845. R. v. Marriott, 8 C. & P. 425.

An indictment for manslaughter stated that the prisoners gave, administered, and delivered to one M. A. divers large and excessive quantities of spirits and water, wine and porter, and induced, procured, and persuaded him to drink them, the said quantities, &c. being likely to cause death, which they well knew. It then averred that M. A., by their persuasion, &c. drank, &c. and became greatly drunk and distempered, and while he was so, the prisoner assaulted him, and forced him to go into, and placed and confined him in a cabriolet, and drove and carried him about in it for two hours, and thereby greatly shook and knocked him about, by means whereof he became mortally sick, &c., and of the said large and excessive quantities, &c., and of the said drunkenness, &c., occasioned thereby, and of the said shaking, &c., and of the sickness and distemper occasioned by it, he instantly died. The deceased was a man in possession under the sheriff, and one of the prisoners, of whose goods he was in possession, assisted by his brother and a friend, plied the man with liquor, themselves drinking freely also, and when he was very drunk put him into a cabriolet and caused him to be driven about the streets; and about two hours after he had been put into the cabriolet he was found dead : Held, that, if it were essential to prove that the prisoners knew that the liquors were likely to cause death, the case would be one of murder and not of manslaughter, but that such allegation was not a material part of the indictment, but might be dismissed from the jury's consideration. Held also, that if the prisoners, when the deceased was drunk, put him into a cabriolet and drove him about in order to keep him out of possession, and by so doing accelerated his death, it would be manslaughter. Reg. v. Packard, 1 Car. & M. 236.

CHAPTER XXXIX.

TOUCHING INVOLUNTARY HOMICIDE, AND FIRST OF CHANCE-MEDLEY OR KILLING PER INFORTUNIUM.

INVOLUNTARY homicide is the death or hurt of the person of a man against or besides the will of him that kills him.

And in these cases, to speak once for all, the indictment itself must find the special matter, or in case the indictment be of murder or manslaughter, and upon the trial it appears to the jury it was involuntary, (as by misfortune, or in his own defense) the jury ought to find the special matter, and so conclude, Et sic per infortunium, or se defendendo, and not generally, that it was per infortunium, or se defendendo, because the court must judge upon the special matter, whether it be murder, homicide, or per infortunium, or se defendendo, and the jury is only to find the fact, and leave the judgment thereupon to the court; and in such case the prisoner must not plead the special matter, and so justify, but must plead not guilty, and the special matter must be found by the jury, Stamf. P. C. Lib. I. cap. 7. fol. 15. a. Lib. III. cap. 9. fol. 165. a. for upon the special matter found, the court may give judgment against the conclusion of the verdict, as that the fact is manslaughter, tho the conclusion of the verdict be per infortunium, or se defendendo. 44 E. 3. Coron. 94.

This involuntary homicide is of two kinds, viz. either 1. When it is purely involuntary and casual, as the killing of a man per infortunium, or 2. When it is partly involuntary, and partly voluntary, but occasioned by a necessity, that the law allows, which is commonly called homicide ex necessitate, as killing a man in his own defense, or the like; de quibus postea.

Homicide per infortunium is, where a man is doing a [472] lawful act, and without intention of bodily harm to any person, and by that act death of another ensues, as if a man be shooting at buts or pricks, and by casualty his hand shakes, and the arrow kills a by-stander. 21 H. 7. 28. a. 6 E. 4. 7. b.

Or if a carpenter or mason in building casually let fall a piece of timber or stone, and kills another. 21 H. 7. B. Coron. 59.

But if he voluntarily let it fall, whereby it kills another, if he gives not due warning to those that are under, it will be at least manslaughter; quia debitam diligentiam non adhibuit.

So if a man be felling a tree in his own ground, and it fall and kill a person, it is chance-medley. 6 E. 4. 7.

But in all these cases, if it doth only hurt a man by such an accident, it is nevertheless a trespass, and the person hurt shall recover his damages, for tho the chance excuse from felony, yet it excuseth not from trespass. 6 E. 4. 7.

Regularly he that voluntarily and knowingly intends hurt to the person of a man, tho he intend not death, yet if death ensues, it ex

cuseth 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, (a) 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]

Sir John Chichester, and his man-servant, whom he very well loved, were playing together, the man had a bedstaff in his hand, and Sir John had his rapier in the scabbard, Sir John, according to the usual sport between them, bids his man guard his thrust or pass, which he was making at him with his rapier in the scabbard, the servant with the bedstaff brake the thrust, but withal [473] struck off the chape of the scabbard, whereby the end of the rapier came out of the scabbard, but the thrust was not so effectually broken, but the end of the rapier prickt the servant in the groin, whereof he died: Sir John Chichester was for this indicted of murder, and tried at the king's bench bar, where all this evidence was given; and it was ruled, 1. That it was not murder, tho the act itself was not lawful, because there was no malice or ill will between them. 2. That it was not barely chance-medley, or per infortunium, 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 his servant, was unlawful, and consequently the death, that ensued thereupon, was manslaughter, and was accordingly found and adjudged, which I heard. 23 Car. I.,(b) 11 H. 7. 23. a. Kelw. 108, 136.

But if two play at barriers, or run a-tilt without the king's commandment, and one kill the other, it is manslaughter; but if it be by the king's command, it is not felony, or at most per infortunium. 11 H. 7. 23. B. Coron. 229. Dalton, cap. 96. Co. P. C. p. 56.(c)* If A. come into the wood of B. and pull his hedges, or cut his

(a) New Edit. cap. 148. p. 479.

(b) Aleyn 12. This seems a very hard case, and indeed the foundation of it fails, for the pushing with a sword in the scabbard by consent seems not to be an unlawful act, for it is not a dangerous weapon likely to occasion death, nor did it do so in this case but by an unforeseen accident, and therein differs from the case of justing, (or prizefighting) wherein such weapons are made use of, as are fitted, and likely to give mortal wounds.

(c) Brooke, after having taken notice of this as Fineux's opinion, says, That other justices in the time of Henry VIII. denied this, and held it felony to kill a man in justing, or sporting after that manner, notwithstanding the king's command, for such command is against law.

[1] See Foster, 259; 1 Hawk. c. 29. s. 5; Ward's case, 1 East, P. C. 270.
*See post p. 475, note 4.

wood, and B. beat him, whereof he dies, this is manslaughter, because, tho it was not lawful for A. to cut the wood, it was not lawful for B. to beat him, but either to bring him to a justice of peace, or punish him otherwise according to law.

But if a school-master correct his scholar, or a master his servant, or a parent his child, and by struggling or otherwise, the 474] child or scholar, or servant die, this is only per infortunium, Crompt. Just. 28 b.

But this is to be understood, when it happens only upon moderate correction, for if the correction be with an unfit instrument, (d) or too outragious, then it is murder, as it happened in a case at Norwich assizes 1670, where the master struck a child, that was his apprentice, with a great staff, of which he died, it was ruled murder.[2]

Several persons come to enter the house of A. as trespassers, A. shoots and kills one, this is manslaughter, otherwise it had been, if they had entered to commit a felony. Crompt. de Pace, fol. 29. a. Harcourt's case.

But in the case of Levet indicted for the death of Frances Freeman, the case was, That William Levet being in bed and asleep in the night in his house, his servant hired Frances Freeman to help her to do her work, and about twelve of the clock in the night the servant going to let out Frances thought she heard thieves breaking open the door, she therefore ran up speedily to her master, and informed him, that she thought thieves were breaking open the door,

(d) As with a bar of iron, or a sword, or a great cudgel, Kel. 64, 133.

[2] In all cases where the correction is inflicted with a deadly weapon, and the party dies of it, it will be murder; if with an instrument not likely to kill, though improper for the purpose of correction, it will be manslaughter. Foster, 262; Reg. v. Connor, 7 C. &P. 438; R. v. Turner, Comb. 407-8; R. v. Wigg, 1 Leach, 378, n. 1 East, 262; R. v. Leggit, 1 C. & P. 191. And though the correction exceeds the bounds of moderation, the court will pay a tender regard to the nature of the provocation, where the act is manifestly accompanied with a good intent, and the instrument not such as must in all probability occasion death; though the party were hurried to great excess. As was the case of a father (Worcester, Sp. Ass. 1775,) whose son had frequently been guilty of stealing, complaints of which had come to the father, who had often corrected him. At length, the son being charged with another theft, and resolutely denying it, though proved against him, the father, in a passion, beat his son with a rope, by way of chas tisement for the offence, so much, that he died. The father expressed the utmost horror, and was in the greatest affliction for what he had done, intending only to have punished him with such severity as to have cured him of his wickedness. The learned judge who tried the father, consulted his colleagues in office, and the principal counsel on the circuit, who all concurred in opinion that it was only manslaughter, and so it was ruled. 1 East's P. C. 261. Persons on board a ship are necessarily subject to something like a despotic government, and it is extremely important that the law should regulate the conduct of those who exercise dominion over them. Therefore, in a case of manslaugh ter, against the captain and mate of a vessel, for accelerating the death of a seaman, really in ill health, but whom, they alleged, they believed to be a skulker, the question will be, in determining whether it is a slight or an aggravated case, whether the pheno. mena of the death were such as would excite the attention of reasonable and humane men; and, in such a case, if the deccased be taken on board after be was discharged from an hospital, it is important to inquire whether he was sent on board by the surgeon of the hospital as a person in a fit state of health to perform the duties of a seainan. Reg. v. Leggatt, 8 Car. & P. 191.

the master rising suddenly, and taking a rapier ran down suddenly, Frances hid herself in the buttery lest she should be discovered. Levet's wife spying Frances in the buttery, and not knowing her cried out, Here they be that would undo us: Levet runs into the buttery in the dark, not knowing Frances, but thinking her to be a thief, and thrusting with his rapier before him hit Frances in the breast mortally, whereof she instantly died: this was resolved to be neither murder, nor manslaughter, nor felony: vide the case cited by justice Jones, P. 15. Car. 1. B. R. and Croke, n. 1.[3] (in Cook's case,(e) for killing a bailiff, that broke a window to execute a Capias, which was judged to be manslaughter;) where the book says it was not felony, quære whether it be not homicide by misadventure, for the party kild was in truth no thief, tho mistaken for one, and tho it be not homicide voluntary, yet it seems to be per infortunium.

If a man knowing that people are passing along the street throws a stone, or shoots an arrow over the house or wall, [475] with intent to do hurt to people, and one is thereby slain, this is murder, and if it were without such intent, yet it is manslaughter, and not barely per infortunium, because the act itself was unlawful; but if the man were tiling an house, and let fall a tile knowingly, and gave warning, and yet a person is kild, this is per infortunium, but if he gave not convenient warning, it is manslaughter, quia non adhibuit debitum diligentiam.(f)

If A. in his own park shoot at a deer, and the arrow glancing against a tree hits and kills B. this is homicide per infortunium, because it was lawful for him to shoot in his own park.

But if A. without the licence of B. hunt in the park of B. and his arrow glancing from a tree killeth a by-stander, to whom he intended no hurt, this is manslaughter, because the act was unlawful. So if A. throw a stone at a bird, and the stone striketh and killeth another, to whom he intended no harm, it is per infortunium.

But if he had thrown a stone to kill the poultry or cattle of B. and the stone hit and kill a by-stander, it is manslaughter, because the act was unlawful, but not murder, because he did it not maliciously, or with an intent to hurt the by-stander.[4]

⚫ (e) Cro. Car. 538. W. Jones 429.

(f) This is upon supposition, that the house do not stand near an highway or place of resort, for then, tho he should cry out first, it is manslaughter. See Hull's case 1664. Kel. 40.

[3] "Possibly it might have better been ruled manslaughter at common law; due circumspection not having been used, but it was not manslaughter within the statute." Foster, 299. See 1 East, P. C. 274, 275; 1 Hawk. P. C. c. 28. s. 27.

[4] There are many cases in which a party causing the death of another, without positive intention of inflicting injury, is criminally responsible, though he is never chargeable with murder under such circumstances. The test of responsibility is whether the conduct of the accused was contrary to any law, or not being so forbidden, was so gross, negligent, or violent as necessarily to produce the belief that the act which remotely or immediately caused death was such an act, or was done in such manner as to involve moral impropriety. The conclusion of guilt is not to be hastily drawn nor inferred from remote circumstances, and it is only when a clear case is