Criminal Litigation


Murder consists, as we have seen, in feloniously causing
the death of another with malice aforethought^nianslaughter,
in feloniously causing the death of another without malice
aforethought. But a homicide is “justifiable” when death
is lawfully inflicted, and “excusable” wlien the death is the
result of an accident. In the two latter cases the homicide
is no crime. The distinction between justiliable and excusable homicide was formerly
of considerable importance. If the homicide was justifiable the accused was found not guilty, whereas if the homicide was excusable the accused was found guilty and his chattels were forfeited to the Crown ; though
ultimately it ])ecame usual for the Crown to restore the chattels ^ and grant
the accused a free pardon. In 1828 the general forfeiture of goods for excusable iiomicide was abolished.^ Xow in cases both of justifiable and
excusable homicide the accused is found not guilty. JUSTIFIABLK HoMICIDE.
Justiflable homicide may be defined as the killing of a human being, either in the discharge of a legal duty or in the exercise of a legal right. In both cases the act which
causes death is intentional and lawful. The circumstances which create such a duty or confer such a right may be grouped under five heads :

(1) Where a duly authorised officer of justice executes a
criminal, condemned to death by a competent Court. If any
person other than the duly authorised executioner carries out
the sentence, he is guilty of murder. Again, the mode of execution must be strictly in accordance with the sentence
hence if the officer of justice beheads a criminal who is sen-
^ Except the ” deodand,” i.e., the iastrument with which the death was caused. For further information as to deodand, see Pollock and Maitland, History of EngUsh Law. Vol. IL p. 47S.
2 9 Geo. IV. c. 31, s. 10, re-enacted by 24 & 25 Vict. c. 100, 8. 7.
2^8 JUSTIFIABLE AND EXCUSABLE HOMICIDE. fenced to be hanged or rice vrrsd, lie is guilty of murder. A
teclmical defect in the ])roceediugs is immaterial, if the Court had jurisdiction over both the subject-matter and the person condemned.
(2) An otheer of justice is, in many cases, entitled to use
force in order to arrest a criminal, or to prevent his escaping
from custody. If it is necessary to use deadly weapons in order to eifect the arrest or to prevent the escape of the
criminal and death results, the homicide is justifiable. Policy,
or rather necessity, obviously requires that every minister of
justice should be protected, not only in executing any express
sentence of the law, but also in doing every act which the law requii’es him to do in discharging the duties of his office. On the same principle protection is extended to all private persons who are called upon to assist officers of justice in executing their duties. So a gaoler may kill any convicted
prisoner who is endeavouring to escape from custody. In some cases also the law confers upon private citizens the
right, and imposes upon them the duty, of taking prompt
action for the advancement of justice and the prevention of crime, although no officer of justice be at hand. And generally
whenever A. has lawful authority to arrest or imprison B. and uses only proper means for that purpose, then if B.
resists and is killed in the struggle, the homicide is justifiable
although if A. be killed by B., B. is guilty of murder.
(3) The legal position of persons, whether military or
civilian, who cause death in dispersing a riot, has been dis- cussed in a previous chapter.^ Where the mob is guilty merely
of a common law riot, which is a misdemeanour, only slight force may be used for this purpose and not deadly weapons. As soon, however, as any of the rioters begin to commit any
felonious violence, such as arson, housebreaking or murder,
deadly weapons may be used by either soldiers or civilians, provided they can afterwards satisfy a jury that such extreme
measures were reasonably necessary in the circumstances to disperse the mob and to prevent any further felonious violence. Where, however, the riot has become felonious uuder the
1 An’e. pp. 167, l(]8.
provisions of the Kiot Act, 1715,^ any person engaged in lawfully dispersing the mob is indemnified against all proceedings,
civil or criminal, by the express words of section 3 of that Act.
If in the course of dispersing a riot an innocent by-stander should be accidentally killed, two questions arise :

1. Whether under the circumstances it was necessary in order to disperse the riot to have recoui-se to deadly weapons.
2. “Whether there was any negligence in the use of deadly weapons which caused the death of the person who was not rioting. Thus, where a man named Lewis, who was assisting in the suppression
of a riot, shot at a rioter and accidentally killed a boy who was merely
looking on, Tindal, C. J., remarked : ” If the firing of the pistol by Lewis was a rash act, uncalled for by the occasion, or if it was discharged
negligently and carelessly, the offence would amount to manslaughter, but if it was dischai-ged in the fair and honest execution of his duty, in endeavouring to disperse the mob, by reason of their resisting, the act of
firing the pistol was then an act justified by the occasion, under the Riot Act before referred to, and the killing of the boy would then amount to accidental death only, and not to the offence of manslaughter.” ^
(4) Where a person kills another in order to prevent his committing some forcible and atrocious felony, such as mui’der, rape, robbery, burglary or arson, the homicide
is justifiable if there was no other obvious means of preventing
the crime.^ If there were any such means, resort should first be had to them. If the crime be a felony against the person, the party attacked may repel force by force, and will be excused from the consequences. Thus a woman in defence of her chastity may lawfully kill a man who is attempting to ravish her. So, too, the owner of a dwelling-house, or any
member of his family, or even a lodger, may, in order to pre- vent arson or burglary, lawfully kill the assailant. And not only the party whose person or propertj’ is attacked or his servants, but also in most cases any stranger who is present
at the time, will be equally justified in killing the aggressor.^ Where a son, believing that his father was cutting the throat of his mother, shot and killed him, it was held that, if he had reasonable grounds
1 1 Geo. T. St. 2, c. o.
* In his charge to the grand jury at Bristol, January, 18.S2, quoted in 5 C. & P.
at p. 267, n. ; ‘ R. V. Symondson (1896), 60 J. P. 645.
* 1 Hale, 481, 4S4 ; Kost. 274.
for believing, and lionestly believed, that his act was necessary to save
liis mother’s life, the homicide was justifiable.^ ” Burglars rob A.’s house ; they are -escaping over his garden wall, carrying oif A.’s jewels with them. A. is in no peril of his life, but he
pursues the gang, calls upon them to surrender, and having no other means
of preventing their escape, knocks down one of them, who dies of the blow.
A., it would seem, if we may accept the authority of Foster,^ not only is innocent of guilt, but has also discharged a public duty.” ^ But if a burglar has abandoned his attack upon A.’s dwelling-house, and is running away with no goods of A.’s in his possession, it is submitted that A’, has no right to kill him. The law, however, grants no protection to the owner of property, if he
shoots at and kills a mere trespasser, even though such trespasser has come
on his land with a felonious intention, provided he has not yet com- menced to carry it into effect. If A., finding a trespasser upon his land, beats and thus chances to kill him, he is guilty of manslaughter ; or, if there be circumstances evidencing malice, he may be convicted of
murder.-* (5) We have already spoken of the right of self-defence.’^ Whenever it is necessary for a person in defence of himself,
wife, child or any one under his protection to kill the
assailant, no crime is committed. But the means adopted to repel an attack must in ever}^ case be reasonable and commensurate with the force employed by the assailant. In
such cases, and in other instances which might easily be
cited, the person who has caused the death of another had a
right to use force, or it was his duty to use force ; and therefore if he used no more force than was reasonably necessary under the circumstances to exercise his right or to perform
his dut}^, even homicide is justifiable. But the force used must not be excessive nor continued longer than was necessary, and the cause which justifies the use of force must still exist at the time when the fatal blow was struck. Thus if a fugitive criminal after a fierce struggle is at last captured by the police,
and all resistance on his part is over, it would be murder for one of the policemen to kill him in revenge for injuries received from him in the struggle.
In dealing with self-defence the old books make a distinction between
1 R. V. Rose (1884), 15 Cox, 540.
2 Foster’s Grown Cases, pp. 271 —274.
•^ Dicey’s Law of the Constitution, Sth ed., 494.
” See Wild’s Case (1837), 2 Lewiu, 214.
those cases in which the person attacked was himself originally to blame and those in which he was wholly innocent and passive from the very com- mencement of the affray. In the former case it was held that the homicide was excusable only and not justifiable. If an attack be made upon a person, who has done nothing to provoke it, of so murderous a character
that he reasonably believes his life to be in danger, he is justified in killing his assailant if such a course be the only obvious means of saving his own
life. But when there has been a quarrel in which both A. and B. have
taken part and blows have been interchanged in anger, each party in turn
assaulting the other—so that both are in some degree to blame—then if A.
kills B., even in self-defence, he is primd facie guilty of manslaughter, and
the crime can only be reduced to non-felouius homicide if A. can show
that, before the mortal blow was given, he had declined any further combat
and retreated as far as he could with safety, and also that he killed B. through mere necessity, and to avoid immediate death. The ancient
authorities place this case under the head of excusable homicide, because it so nearly approaches manslaughter ; but as the fatal blow is here delivered with the express intention of killing or at least of disabling B., it appears
logically to fall under the head of justifiable homicide. The distinction, however, is no longer of any importance. But where A. of malice aforethought discharges a pistol at B. and then runs away, and B. pursues him, and A. thereupon turns back, and in his own defence kills B., this has been held to be murder ; for the whole trans- action is tainted by the original malice.^ Excusable Homicide.
Excusable homicide is committed when one man, in doing- a lawful act in a lawful manner with due care and without
intending tc kill or injure any one, causes the death of another. It differs from manslaughter in this respect—that
in manslaughter the death is always the result of some
unlawful conduct—either the act which causes death is criminal in itself or there was criminal negligence on the part
of the accused ; whereas in excusable homicide the accused
has done nothing unlawful, nor has he been guilty of gross negligence. A pure accident is no crime. Again, the dis- tinction between justifiable and excusable homicide lies in the intention of the slayer. In justifiable homicide the slaj^er was entitled to kill and he intended to do the act which
caused the death ; in excusable homicide there was no such
intention ; the slayer did not intend to kill the deceased,
1 See R. V. Mawgrldge (1707), Sir John Kelyng’s C. C, at p. 129.
or even to do him grievous bodily harm ; and the death is caused solely by mischauce. Such mischance may occur in many different ways.
(a) If the death be the result of a pure accident, no crime
is committed. But if the act or omission which caused the death be one which any person of ordinary prudence ought
under the circumstances to have known would be dangerous
to human life or likely to cause grievous bodily injury, then
to do tliat act or make that omission is culpable negligence
and not a pure accident. Or, in the words of Sir Eitzjames
Stephen : ” An effect is said to be accidental when the act by
which it is caused is not done with the intention of causing it, and when its occurrence as a consequence of such act is not
so probable that a person of ordinary prudence ought, under
the cii-cumstances in which it is done, to take reasonable pre- cautions against it.” ^ Tims no crime is committed if, wlien a blacksmith is working with his liammer, the head suddenly flies off through no fault of his and hits and kills a by-sbander. So if A. when walking down Fleet Street shpped on a piece of orange-peel and lurched against B., who in consequence fell and struck his head on the kerb with fatal results, the homicide is excusable. (b) Homicide also is excusable if it be committed under an
honest and reasonable mistake of fact, provided the mistake be of such a kind that, had the facts been as the prisoner mis- takenly believed, his act would have been lawful.
Thus, no crime is committed iu either of the following cases :

A. is alarmed in the night and sees a man in his house, whom he honestly
“believes to be a burglar and theiefore shoots. The man really was a member of his own family. B. administers to one of his children a drug which he has received from a chemist and which he has no reasou to suppose to be other than a salutary medicine ; his ignorance of its true nature will excuse him, should it prove
to be a deadly poison. But if a man fires at A. under such circumstances that killing him would
be manslaughter, but by accident hits and kills B., he is guilty of manslaughter. ^
(c) A parent or schoolmaster has the right to inflict reason1 Digest of the Criminal Law, 6th ed., Ait. 231.
2 R. V. Gross (1913). 77 J. P. 352 ; 23 Cox, 455,
able cliastiseuient on his child or scholar, provided the latter be old enough to appreciate correction, and no greater harm
is inflicted than is called for by the occasion.^ Not only must
the chastisement be moderate, but it must be administered with a reasonable instrument. To inflict excessive correction
is unlawful. Thus a schoolmaster was convicted of manslaughter who beat a scholar for two hours with a stick so that he died.”- (d) Again, where death results from a lawful surgical
operation undertaken with the consent of the patient and
performed with due care on the part of the surgeon, it is excusable. In the case of a young child, the consent of the parent or guardian must be obtained. An operation per- formed without proper consent would be unlawful, and the surgeon performing it would strictly be guilty of manslaughter if death resulted, however much skill and care be
To this rule, however, there is one possible exception. If an injured man were brought into a hospital unconscious, or in such a condition that he was incapable of exercising a reasonable discretion in the matter, and the surgeon honestly
believed on good grounds that an operation was necessary in order to save the man’s life, it is submitted that the surgeon would commit no crime if in such a case he operated without
the man’s consent and death ensued.
(e) Homicide is also excusable if a man, whilst engaged in a lawful sport or playing a lawful game with due care and
without any intention to hurt, unfortunately kills another.
Football,^ cricket, wrestling, boxing with gloves, and fencing with buttoned foils are lawful games. Again, a man commits no crime if he accidentally kills another while shooting at a mark or target in a place adapted for that pastime and under
circumstances which render such shooting permissible.* A
prize-fight is not a lawful game, nor is a boxing match, even with gloves, if conducted in a manner known to be dangerous
1 R. V. Griffin (1869), 11 Cox, 402.
* R. V, Hofley (1860), 2 F. & F. 202.
:* R. V. Bradshaw (1878), 14 Cox, 83.
* But see the case of R. v. Salmon and others (1880), 6 Q. B. D. 79, fully set out
antf, II. 29«.
to life or linil). And whenever a game degenerates into a brawl and blows are interchanged in anger, it ceases to be a lawful game. The distinction between murder, manslaughter and excusable homicide may be further illustrated by the following
examples :

If a workmau employed in the repair of a building throws stones or rubbish from the housetop, and thereby kills an individual passing underneath, this act will, in the eye of the law, amount to murder, manslaughter
or excusable homicide according to the degree of precaution taken and the
necessity for taking it. If the act were done in a public street without any
kind of warning at a time when many persons would usually be passing, this might in strictness be held murder—if at a time when persons were not
likely to be passing, it would be manslaughter, unless the workman can show
that he gave a warning loud enough to be heard below ; if done in a retired spot where no persons had a right to pass or were in the habit of passing, it would bej^homicide by misadventure.
So, if a person, riding through a street slowly and using reasonable caution to prevent mischief, rides over and kills a child that is heedlessly crossing the road, the result is purely accidental ; but if he had used such
speed as under the circumstances was not unlikely to occasion accident, the want of caution ^raight render him amenable to a charge of manslaughter ; and, were he to ride into the midst of a crowd at so furious a
rate that loss of life was likely thence to ensue and did ensue, he might, by
tlius wilfully endangering himian life, be technically guilty of murder.^
If a medical practitionei’ causes the death of another intentionally, that of course will be murder. But if, in the course of his professional duties and without any intention to kill, he causes death by gross negli- gence, unskilfulness or ignorance, he may be guilty of manslaughter.
If, therefore, an operation,^ which results in the death of the patient, be performed by one whether duly qualified or not to act as a surgeon, the questions for the’ jury will be, first, Avhelher the deceased died from the
eiiects of the operation performed on him by the accused ; secondly, whether the treatment pursued by the prisoner towards the deceased was marked by negligence, unskilfulness or ignorance. If the jury answer
either of these questions in the negative, no crime is committed.^
1 See B. V. Dant (1865), L. & C. 567.
• R. V. Van Butchell (1829), 3 C. & P. 629 ; R. v. Williamson (1807), lb. 638 ;


Leave a Reply

%d bloggers like this: