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On an indictment for manslaughter against an engine-driver and fireman of a railway, it appeared that by the general rules of the company the fireman was always to follow the directions of the engine-driver, but both of them had the duty of looking out, the engineman being directed to attend to and act upon signals, the fireman obeying his directions. There was a regular system of signals, in which a red flag by day showed that the train must stop instantly. On Ascot race day special instructions were issued, which materially differed from the regular rules, and by them the red signal did not mean, as it usually did, "Stop," but only Danger," and that meant that the engine should proceed with caution. The rules prohibited engines from running tender foremost; but there was no turn-table at Ascot, and the engines consequently returned with their tenders foremost. The return trains were started at irregular intervals of about five minutes by the stationmaster and traffic manager at Ascot. One of them stopped at Egham, and about five minutes afterwards another was started from Ascot. The prisoners, who had charge of it, did not know that the preceding train would stop at Egham; the stoppage delayed it two or three minutes; when the prisoners' train passed the two stations before Egham the signal was red. There was contradictory evidence as to the pace their trains went; but, after passing the auxiliary signal before reaching Egham, the speed was slackened. The prisoners' train, not having to stop at Egham, went right through the station; a minute or two afterwards the engineer saw the preceding train, and tried to stop his train, but they did not succeed in stopping the train before it ran into the other train, and caused the death of several persons. Willes, J., held that in a criminal prosecution an inferior officer must be

the death arose from the culpable act of the starter of the train, and sooner than it otherwise would have done, and the case seems to be very similar to those where the death of a person is accelerated by violence (ante, p. 702), and which establish the principle, that if a man is caused by a wrongful act to die at any time earlier than he otherwise would have done, it is a case of manslaughter, and if the accelerating the death of a sick man be such an offence, it is not easy to suggest a reason why the accelerating the death of a healthy man is not so also. It must also be observed, that in such a case all that is certain is what has actually happened; it is mere speculation what might have happened if the train had been started at its proper time: the mere shifting of the deceased from one seat to another might have saved his life. Nor is it any excuse that the train which was run into was met with at a place at which it would not have been but for the wilful or negligent act of some other person; the answer to this excuse is, that the time for starting having been fixed expressly for the purpose of preventing the possibility of such accidents, whether they might arise from the preceding train being met with on the line through negligence or otherwise, it does not lie in the starter's mouth to excuse his own wrongful act by such a wilful or negligent act of another. Lastly, it is submitted that the clear rule of law is, that every one who contributes by his wilful or negligent act to the death of a man is guilty of manslaughter, although there be no community of purpose or action between them, and although the act of the one may be proximate to, and the acts of the others remote, from the immediate cause of death; and that the only correct question in these cases is, whether the act did in any way whatever contribute to the death. In Reg. v. Haines, the prisoner's duty was to cause an air-heading to be put in a mine; and it was alleged to be the duty of another person to report to the prisoner that an air-heading was wanting-two such totally different duties, that the neglect of either could not possibly be the joint neglect of the two parties. Now Maule, J., said, "It has been contended that some other persons were also guilty of neglect; still, assuming that to be so, their neglect will not excuse the prisoner, for if a person's death be occasioned by the neglect of several, they are all guilty of manslaughter; and it is no defence for one who was negligent to say that another was negligent also, and thus, as it were, try to divide the negligence among them." This decision is directly against there being any limitation to joint negligence or proximate negligence, and, as far as it goes, entirely supports the position above laid down. Suppose three railway officials each negligently turned three different sets of points at A., B. and C., and that the result was an accident and death, it is submitted that all of them would be guilty of manslaughter, provided the act of each contributed in any degree to the accident. So again, suppose A. and B. each negligently turned the points for two different trains, so that the trains were caused thereby to run into each other, can it admit of doubt that both would be responsible for the result? In Reg. v. Barrett, ante, p. 875, the decision turned on the defect in the indictment, which, being in the old form, contained no allegation that it was the prisoner's duty to do that which he was alleged to have neglected to do. See also Reg. v. Swindall, ante, p. 870; and Reg. v. Longbottom, ante, p. 871, as to the negligence of the deceased forming no

excuse.

held justified in obeying the directions of a superior not obviously improper or contrary to law; that is, if an inferior officer acted honestly upon what he might not unreasonably deem to be the effect of the orders of his superior, he would not be guilty of culpable negligence, these orders not appearing to him, at the time, to be improper or contrary to law. It appeared that the prisoners had nothing to do with the general management or regulation of the traffic, and their duty was to obey the special instructions issued to them as well as they could, presuming there was no apparent illegality in them; and in that case, provided they put the best construction they could upon them, and acted honestly in the belief that they were carrying them out, they were not criminally responsible for the result. In a civil case they might be responsible, but not crithinally. As to the fireman, as he was bound to follow the direction of the engineman, there was no case. The jury then interposed, and said that they were all of opinion that there was no case of culpable negligence against either of the prisoners. Willes, J., said he was quite of the same opinion, and thought that the prisoners ought not be convicted on a criminal charge. They had instructions of an unusual kind, and were doing their best at the time to prevent an accident; that is, they were trying to put on the break so near to the time when, according to any view, they could be expected to have done so, that they can hardly be deemed guilty of culpable negligence. They only saw a red signal, and that, according to their special instructions, did not mean "Stop." There was no symptom of danger; they did not know that the other train had stopped at Egham, and they had no instructions to do so; and so they went right on, although a minute afterwards they did their best to stop the train. arrangement was such as could not but cause imminent danger of the second train running into the first, which had passed only five or six minutes before, and had stopped three minutes at Egham. He therefore concurred in the verdict. In the course of the case, Willes, J., also held that a witness could not be asked to give an explanation as to his construction of the effect of the rules. The rules were in writing, and must speak for themselves, and the judge must declare their meaning. The special rules, if not consistent with the general rules, must override them, but their construction was for the judge. And that an officer of the Board of Trade could not be asked his opinion on the mode of conducting the traffic (which rather affected the company than the prisoners), nor whether in his judgment, as a man of experience, the driver of the engine ought to be convicted of negligence, nor (it seems) whether, in his opinion, the driver had kept a sufficient look-out ahead; but that he might be asked whether, supposing the train was going about forty miles. an hour, it could have been stopped.(dd)

The

*Where on a trial for manslaughter it was stated that the deceased was [*879 the stoker on board a steam tug, of which the prisoners were the captain and engineman; the steam tug had exploded and killed the deceased whilst the prisoners, with the deceased, were the only persons on board. It was afterwards discovered that the lever of the safety valve was so tied down by weights that it could not act as a safety valve. There was therefore considerably more pressure on the boiler plates than they could bear. There was a government valve, one of the keys to the lock of which was kept by a government inspector, and the other ought to have been in possession of the captain; but there was no proof that he had the key at the time of the explosion. It was afterwards found that this valve was in such a state that it could not work. If it had been working, no mischief could have occurred. At the time of the explosion the tug was racing with a steamer, and had been so for some time. Against the captain it was urged that he had the control of the tug, and that he was guilty of culpable neglect in not seeing that the government valve was put into working order, or in allowing the other valve to be in a state in which it could not work. As to the engineer, it was his duty to attend to the working of the engine, and he was bound to see that too much steam was not generated. Hill, J., held that there was no case for a conviction. There was a difficulty to show that either of the prisoners was in a position to see that the government valve was out of order; and there was nothing inconsistent with the assumption that the deceased himself could see it to be out of order; and it was perfectly possible that he might have put the valve in order without the interven

(dd) Reg. v. Trainer, 4 F. & F. 105.

tion of either of the prisoners; if so, it was clear that a felony could not be made out.(e)

On an indictment for manslaughter it appeared that thirteen persons embarked in a boat, besides two watermen, of whom the prisoner was one; two witnesses proved that by the swell of a steamer in motion the boat was carried against the bows of another steamer, and that as soon as it struck, the prisoner called out to the passengers to sit still, but they all jumped up and tried to lay hold of the steamer, and in consequence the boat was upset. Had the passengers remained quiet, the witnesses believed the accident would not have happened. Another witness was of opinion that the fault lay in the prisoner's pushing off the boat from the stairs with one of the oars, he standing upright at the time, instead of being seated and having the command of the skulls; he ought to have known the danger under such circumstances of crossing the strong tide that rushed through the arch of the bridge; but for his pushing off as he did, the boat would have cleared the steamer. He thought the same thing might have happened to the boat if there had been only three persons in it or only one. Williams, J.: "If the circumstance of the *880] passengers jumping up really caused *the accident, the overloading of the boat was immediately productive of such a result. and thus the prisoner is answerable; for he should have contemplated the danger of such a thing happening. If the fact of the prisoner standing up in the boat was the cause of the catastrophe, then it may be gross negligence on his part to have done so, because he is supposed to be acquainted with the force and velocity of the tide, and the danger of crossing it under the circumstances. On the whole, it is a question for the jury, whether the deceased met his death either by the gross carelessness of the prisoner in the management of the boat, or in taking on board a greater number of passengers than it was capable of safely carrying."(f).

There is one species of criminal negligence, punishable by the provisions of the statute law, which may be mentioned in this place, though the offence is not made manslaughter. By the 7 & 8 Geo. 4, c. 75 (local and personal), s. 38, in case any greater number of persons or passengers shall be taken or carried in any such wherry, boat, or other vessel (mentioned in the Act) on the river Thames (within the limits there mentioned), than are respectively allowed to be carried therein, and any one or more of them shall by reason thereof be drowned, every person or persons who shall work or navigate such wherry, &c., offending therein, and being convicted, shall be deemed guilty of a misdemeanor, and shall be liable to punishment, as in cases of misdemeanor, at the discretion of the Court, and shall also be disfranchised, and not allowed to work or navigate any wherry, &c., or to enjoy any of the privileges of a freemen of the company of watermen, &c., on the river Thames.(g)

Sec. VI. Of the Indictment and Judgment.

THE indictment for manslaughter differs from the indictment for the higher crime of murder, in the omission of any statement as to malice, and of the conclusion that the party accused did kill and "murder ;" and we have seen that a bill of indictment for murder may be converted into one for manslaughter, by striking out such statement and conclusion. (h)1

(e) Reg. v. Gregory, 2 F. & F. 153. The deceased might himself have weighted the other safety valve, or at least must have seen that it was so weighted.

(f) Reg. v. Williamson, 1 Cox C. C. 97, Gurney, B., and Williams, J. It was also held that the fact of no number being painted on the boat was primâ facie evidence that the boat was unlicensed.

(g) It was observed upon a former statute, 10 Geo. 2, c. 31, containing a more severe punishment for an offence of this kind, that it might serve as a caution to stage coachmen and others, who overload their carriages for the sake of lucre, to the great danger of the lives of the passengers, the number of whom are regulated by Act of Parliament: 1 East P. C. c. 5, s. 38, p. 264, and see the provisions as to carrying too many passengers, in the 2 & 3 Will. 4, c. 120, s. 34.

(h) Ante, p. 768.

1 It is no defence to an indictment for manslaughter, that the homicide therein alleged appears by the evidence to have been committed with malice aforethought, and was therefore murder; but the defendant in such case may notwithstanding be properly convicted of the offence of manslaughter: Comm. v. M'Pike, 3 Cush. 181.

By the 24 & 25 Vict. c. 100, s. 5, "Whosoever shall be convicted of manslaughter shall be liable, at the discretion of the Court, to be kept in penal servitude for life, or for any term not less than three years, or to be imprisoned for any term not exceeding two years, with or without hard labor,(i) or to pay *such fine as the Court shall award, in addition to or without any such other discretionary punishment as aforesaid."(k)

[*881

Sec. 57. "In the case of every felony punishable under this Act, every principal in the second degree, and every accessory before the fact, shall be punishable in the same manner as the principal in the first degree is by this Act punishable: and every accessory after the fact to any felony punishable under this Act (except murder) shall be liable to be imprisoned for any term not exceeding two years, with or without hard labor; and every accessory after the fact to murder shall be liable, at the discretion of the Court, to be kept in penal servitude for life, or for any term not less than three years, or to be imprisoned for any term not exceeding two years with or without hard labor; and whosoever shall counsel, aid, or abet the commission of any indictable misdemeanor punishable under this Act, shall be liable to be proceeded against, indicted, and punished as a principal offender."(7)

Where a party is charged with manslaughter in causing the death of a person by negligence in the discharge of his duty, it must be proved that the negligent act was that of the party charged. Upon an indictment for manslaughter, it appeared that it was the prisoner's duty to attend to a steam engine, but on the occasion in question he had stopped the engine and gone away, and that, during his absence, a person came and put it in motion, and being unskilled was not able to stop it again, and in consequence of the engine being thus put in motion, the deceased was killed. Alderson, B., stopped the case, saying that the death was the consequence, not of the act of the prisoner, but of the person who set the engine in motion after the prisoner had gone away; that it is necessary, in order to a conviction for manslaughter, that the negligent act which causes the death should be that of the party charged.(m)

On a trial for manslaughter of a person who was burnt in a ship, where the prisoner had struck a light with a match, and lighted a candle, in a part of the ship forbidden by the ship's regulations, and had thrown down the match before it was extinguished, but a period of six hours elapsed without sign of fire by sight or smell; Bramwell, B., thought the evidence too slight to justify a conviction.(n)

Where an indictment for manslaughter stated that the prisoner "did compel and force A. B. and C. D. to leave" a windlass, by means of which the death was occasioned, and it appeared that the prisoner, who was working one handle of the windlass, went away, and A. B. and C. D., then finding they were not strong enough to hold the windlass without him, let go their hold, by reason of which the deceased was killed, it was held that the words "did compel and force" must be taken to mean personal affirmative force applied to A. B. and C. D., and therefore the prisoner must be acquitted.(0) So where an indictment alleged that the [*882 *prisoners did "propel and force" a vessel against a skiff, Parke, B., said, "The allegation in the inquisition is, that the defendants forced and propelled the vessel against the skiff: evidence against those who gave the immediate orders will be necessary to sustain this allegation."(p)

It has been held, upon two cases reserved, that a person indicted for murder may be convicted of manslaughter, and punished accordingly, although such indictment do not conclude contra formam statuti.(q) And so on an indictment for man

(i) As to hard labor, see ante, p. 4. As to sureties for keeping the peace, see ante, p. 5. (k) This clause is taken from the 9 Geo. 4, c. 31, s. 9, and 10 Geo. 4, c. 34, s. 12 (I.). (1) This clause is framed on the similar clauses in the 7 & 8 Geo. 4, c. 29, s. 61; 7 & 8 Geo. 4, c. 30, s. 26; 9 Geo. 4, c. 31, s. 31; 9 Geo. 4, c. 55, s. 54 (I.); 9 Geo. 4, c. 56, s. 33 (I.); and 10 Geo. 4, c. 34, s. 40 (I.). As to hard labor, &c., see note (i) supra.

(m) Hilton's case, 2 Lew. 214, Alderson, B. See Rex v. Waters, 6 C. & P. 328 (25 E. C. L. R.), ante, p. 677.

(n) Reg. v. Gardner, F. & F. 669.

(0) Rex v. Lloyd, 1 C. & P. 301 (12 E. C. L. R), Garrow, B.

(p) Reg. v. Taylor, 9 C. & P. 672 (38 E. C. L. R.). See the case, ante, p. 872.

(9) Rex v. Chatburn, R. & M. C. C. R. 403; Rex v. Rushworth, R. & M. C. C. R. 404. VOL. I.-45

slaughter not concluding contra formam statuti, the punishment provided by the 9 Geo. 4, c. 31, s. 9, might be awarded, for such conclusion is only necessary where a statute creates the offence, not where it merely regulates the punishment.(r)

If a person be indicted as accessory after the fact to a murder, he may be convicted as accessory after the fact to manslaughter, if the offence of the principal turns out to be manslaughter.(s) Either assisting the party to conceal the death, or in any way enabling him to evade the pursuit of justice, will render a party, who knows the offence to have been committed, an accessory after the fact. (1)1

*883]

*CHAPTER THE THIRD.

OF EXCUSABLE AND JUSTIFIABLE HOMICIDE.

WE may now properly proceed to treat of such homicide as, not amounting even to manslaughter, must be considered either as excusable or justifiable: excusable when the person, by whom it is committed, is not altogether free from blame; and justifiable when no blame whatever is attached to the party killing.

Excusable homicide is of two sorts: either per infortunium, by misadventure; or se et sua defendendo, upon a principle of self-defence. The term excusable homicide imports some fault in the party by whom it has been committed; but of a nature so trivial that the law excuses such homicide from the guilt of felony, though in strictness it deems it to be deserving of some degree of punishment. It appears to be the better opinion, that the punishment inflicted for this offence was never greater than a forfeiture of the goods and chattels of the delinquent, or a portion of them :(a) and, from as early a time as our records will reach, a pardon and writ of restitution of the goods and chattels have been granted as a matter of right, upon payment of the expenses of suing them out, At the present time, in order to prevent this expense, it is usual for the Judge to permit or direct a general verdict of acquittal in cases where the death has notoriously happened by misadventure, or in self-defence. (b) There might, however, formerly have been cases so bordering upon, and not easily distinguishable from, manslaughter, that the offender might have been put to sue out his pardon, according to the provisions of the statute of Gloucester, 6 Edw. 1, c. 9;(c) but that statute was repealed by the 9 Geo. 4, c. 31; and the 24 & 25 Vict., c. 100, s. 7, enacts, that "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."

Justifiable homicide is of several kinds: as it may be occasioned by the performance of acts of unavoidable necessity, where no shadow of blame can be attached to the party killing; or by acts done by the permission of the law, either for the advancement of public justice, or for the prevention of some atrocious crime.

(r) Rex v. Berry, 1 Moo. & Rob. 463, Parke, B.

(s) Rex v. Greenacre, 8 C. & P. 35 (34 E. C. L. R.), Tindal, C. J., Coleridge-and Coltman, JJ. (t) Ibid.

(a) 4 Blac. Com. 188. The penalty for this offence is said by Sir Edward Coke to have been anciently no less than death: 2 Inst. 148, 315; but this is denied by other writers: 1 Hale P. C. c. 425; 1 Hawk. P. C. c. 29, s. 20, et seq.; Fost. 282.

(b) 4 Blac. Com. 188; Fost. 288; 1 East. P. C. c. 5, s. 8, p. 222. (c) Fost. 289.

1 A person indicted for manslaughter may be convicted of an assault and battery, though the indictment contains no count specially charging the minor offence: State v. Scott, 24 Verm. 127. One who is indicted of murder cannot be convicted of involuntary manslaughter. If, on such indictment, the offence proved is involuntary manslaughter, the defendant should be acquitted-and he may be indicted for a misdemeanor: Comm. v. Gable, 7 Serg. & R. 423.

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