Criminal Litigation



Chapter I.


The law of England recognises (independently of the crime of snicide) two degrees of culpable homicide, murder and
manslaughter ; it recognises also t\Yo degrees of homicide —excusable and justifiable—which do not expose to punish- ment. But in all these cases the first question always is : Did the prisoner cause the death of the deceased ? If not, there is no homicide. Homicide occurs when one human being causes the death of another. That other may be an alien, an outlaw, or a person subject to the pains and penalties of a prannunire. ” Killing even an alien enemy within the kingdom, unless in the actual exercise of war, would be murder.” ^ But the person killed must have a separate existence ; he must have been completely born ; it is not homicide to kill a babe whilst it is being born;” still less while it is e)i ventre samere. The whole body of the babe must have emerged from the body of the mother ; else it is not born. And it must be born alive. A babe must be proved to have breathed by the natural movement of its own lungs before it can be the subject of homicide ; the fact that the child cried is generally accepted as sufficient evidence of this. And if after the child has thus attained a separate existence it dies from injuries
inflicted before or during its birth, this will be homicide. But the phrase “causing death” requires some further explanation; there are many cases in which in ordinary1 1 Hale, 433.


parlance we should say that (3ne man had caused the death
of another, but in which the law would place a different construction on the facts. The prisoner’s act must be the direct cause of the death.
If it be only one of several causes, which together bring about
the death, it will be deemed too remote.
Thus where a man seized by the hair a woman, who was nursing a child of four and a half years old, and struck her in such a manner as to frighten the child and bring on convulsions from which it ultimately died, Denman, J., directed the jury that, if they were of opinion that the assault was the direct cause of the infant’s death, it would be manslaughter, but
that should they consider that the death was not caused by the assault but by a combination of other circumstances, it would be accidental death
only. The jury found that the assault was the direct cause of the death and convicted the prisoner of manslaughter.
Where a fireman absented himself from his post and therefore failed to send the engine to a fire, which resulted in a loss of life, it was held that he had not caused the death.^ So, too, trustees appointed to repair roads under a local Act were held not to have caused the death of a man, who
lost his life in consequence of the roads being out of repair through the
neglect of the trustees.^ It is immaterial that any act or negligence on the part of the deceased was one of the circumstances which led up to his own death, if the direct cause of the death was the act of the prisoner. But if the deceased was a free agent in the matter and his death was the direct result of some voluntary
and spontaneous act of his own, neither instigated nor compelled by the prisoner, the deceased has caused his own death,
although something said or done by the prisoner may have
led up to the fatal act or even suggested it to liim.^ Thus in the well-known case of B. v. Sivindall and Osborne,^ the prisoners were racing each other in their carts along a road at night and ran over
the deceased, who was lying drunk in the road. But this fact did not
afford them any defence, when charged with causing his death. In his summing up, Pollock, C. B., said : *” The prisoners are charged with contributing to the death of the deceased by their negligence and improper
conduct. If they did so, it matters not whether he was deaf, or drunk, or
1 R. V. Towers (1874), 12 Cox, 530.
2 Cf. R. V. Hilton (1837), 2 Lewin, 214 ; R. v. Lowe (1850), 3 C. & K. 123.
3 R. V. Pocock (1851), 17 Q. B. 34, 39.
* R. V. Martin (1827), 3 C. & P. 211.
5 (1846), 2 C. & K. 230 ; 2 Cox, 141. And see R. v. Jones (1870), 11 Cox, 544 ; R. V. Kew (1872), 12 Cox, 355 ; Blenkinsopv. Ogden, [1898] 1 Q. B. 783.
iioirliirent, or in part coiitribiited to liis own death : for in this consists a
jjreat distinction between civil and criminal proceedings.” A. determined to commit suicide and therefore houglit jtoison from a
chemist. The chemist asked no questions as to A.’s oltject in pnn^hasing- the poison. A. took the poison and died. The chemist has not caused
A.’s deatli. If a maidservant, wlio has free control of her actions and is able to take
care of herself, remains in a servi(;e where she is starved and badly lodged, the mistress will not be criminally responsible if death ensues ; it would be
the result of the servant’s own fully in remaining there.^ But it is not always necessary that death should be caused by an act. jN”eglect of a legal duty, which the prisoner owes
to the deceased, may be sufficient to render him criminally
responsible for the death, \yiieuever the law imposes a duty
tending to the preservation of life, or where such a duty has been undertaken by contract or condu<;t, omission to perform
the acts required by tiiat duty will be held a cause of death,
if death ensues. It lies on the prosecution to prove thnt the death was the result of the omission.-
Thus, a father is bound to provide food and clothing for his child, and
his omission to do so, or his omission to notify the proper authorities if he
is unable to do so, will be held a cause of death, if the child dies from
neglect.^ And where the prisoner persuaded an infirm old woman to live in his house and failed to provide her with food and fire (which she was
incapable of providing for herself), he was held to have caused her death, when she died from neglect.”* So, where any one undertakes the charge of an imbecile or idiot incapable of looking after himself.^ A signalman, who
negligently omits to change the points with the result that a fatal collision ensues, will have caused death ; though if no one be killed, he will have committed no crime at common law in having merely endangered human life.*’ The duty must be a legal one. A man commits no crime,
if he abstains from rescuing another from drowning, even though he might
have done so without risk or serious inconvenience to himself; he merely
disregards a moral duty. So, if a man omits to supply food or medical
assistance when he is under no legal duty to do so.” But, apart from such cases of neglect of duty, it would
seem that the law requires that the death must be caused
1 Per Erie, C. J., in R. v. Umith (IHJu), L. & C. at p. 625.
2 R. V. Morhy (1882), 8 Q. B. D. 571.
» It. V. Scnuii\ [18!)’.)] 1 y. B, 2,S:i ; Chililren Act, li<OS, s. 12, jnut. p. 310.
* R. V. Marriott (1838), 8 C. & P. 425 ; R. v. Instan, [1893] 1 Q. B. 450.
5 R. V. NicholU (1874), 13 Cox, 75.
« The offence is, however, covered by statute : sec 3 & 4 Vict. c. 97, s. 13, and
24 & 25 Vict. c. 100, s. 34.
7 R. V. Shepherd (1862), 31 L. J. M. C. 102.
either by administei-iug or applying something, or by some
kind of physical contact on the part of the prisoner or some
agent of his. Thus, where a man prooured the death of another] by falsely accusing him of a capital crime and giving perjured evidence to support his charge, he was held not to have caused tiie death.i So, if a man sent an alarming
telegram to a woman who had a weak heart, and she died from the shock, he has not caused her death.- But where there is any direct physical impact which does
cause death, the fact that such a result was highly improbable
and could not reasonably have been anticipated by the actor,
is in law immaterial. An impact, which in the ordinary- course of things could not possibly prove fatal, may yet cause
death, if the person struck be in a morbid condition ; and the person striking the blow will be guilty of homicide, although
he was not aware of the condition of health of the deceased. Every man is liable for the natural and necessary conse-^^ quences of any unlawful act done by him, although he could
not have foreseen them,-‘ but not for consequences which are merely accidental.”* The death must be occasioned by the
prisoner’s act
‘ but it does not matter that the deceased was
at the moment of that act in such a state of health that his death must inevitably have occurred shortly afterwards ; it is sufhciont if the prisoner’s act accelerated the death by a^
single day or hour.^
If the prisoner accelerated the death of his child by inflicting injuries upon it at any period during the twelvemonth before its death, ” the fact that the child was already suffering from meningitis, from which it would
in any event have died before long, would afford no answer to the charge
of causing its death.” “^ That subsequent exposure to accident, cold or other natural causes was the direct cause of death is immaterial, if it w^as the prisoner’s act which exposed the deceased to the operation
i R. T. MacDaniel and others (1756), 19 St. Tr. 715, SIO—1 (a.)-
– See Fitzjames Stephen’s History of the Crimioal Law, Vol. III., p. 5, where
this point is discussed.
» R. V. Lumley (1912), 22 Cox, G3o.
* R. V. Buries {Xo. 2) (191.S), 29 Times L. K. 350.
^ See the summing up of Parke, J., in B. v. Martin (1832), 5 C. & P. at p. 130 ; and R. V. IvMan, [1893] 1 Q. B. 450.
6 Per Lord Alverstone, C. J., in R. v. Dyson, [1908] 2 K. B. at p. 457.
of sucli natural causes or rendered him defenceless against such accident. Thus a Avoman, who lefc her baby in an orchard and covered it with
leaves and it died in consequence of being struck by a kite, was deemed to have caused its death. ^ Again, where on a winter night the prisoner knocked a man down and left him lying unconscious and he died from
exposure, it was held that the prisoner caused the death. So where a son
hurried his sick and aged father in cold weather from town to town, and
thereby hastened his death, he was held to have caused his death.- Where
a woman with intent to procure abortion caused a child to be born so prematurely that it could not possibly live, she was held to have caused its death.3 If the prisoner caused A. to do an act which causes A.’s
death, he has caused A.’s death, unless, as we have seen,* A. was a free agent in the matter.
Thus, if B. mikes rep3ated thrusts at A. with a sword and forces him to
retreat backwards, till he falls over a precipice and is killed, B. has caused
A.’s death.^ Again, if a man makes a forcible attack on a woman’s chastity, and her only means of escape is to leap from an open window, he is guilty of murder, if she be killed.^ So, if A. by violence or threats of violence compels B. to throw himself into a river, or to leap from a train in motion,
with the result that B. loses his life, A. has caused B.’s death, provided B.
reasonably believed that his life was in danger and saw no other means of escap?. But A.’s liability will depend on whether a man of orduiary self- control or only a man unreasonably timid would have acted as B. did.’^ On the other hand, if a Imsband quarrel with his wife and she drown herself
in consequence of the mental worry occasioned by such quarrel, the husband
has not caused her death. So, if A. and B. play cards for high stakes, and
B. is utterly ruined and commits suicide in despair, A. cannot be said to have caused B.’s death. That any imprudent conduct on the part of the deceased, or any honest mistake committed by a properly qualified medical man employed by him, was the cause of death is immaterial,
if it was the act of the prisoner which reduced the deceased
to such a condition that it was necessary to take some decisive
1 The Harlot’s Case (1560), Crompton’s Justice, 2i ; 1 Hal3, 431 ; and see R. v. Walters (1841), Car. & M. 164.
2 Anon. (1328), Kenny’s Select Cases, 92 ; 1 Hale, 431.
3 R. V. West (1848), 2 C. & K. 784.
^ Ante, p. 267.
5 R. V. Pitts (1842), Car. & M. 284.
6 Cf. R. V. Ralliday (1889), 61 L. T. 699.
‘ R. V. Eratis (ISli’). 2 Russel’ on Crimes, 7th ed., (‘.66 : followed in R v. Gnmes
(1894), 15 N. S. W. L. R. 209. See .fl. v. Monks (1870), 72 C. C. C. Sess.. Papers,
step, and placed on the deceased or his medical man the
necessity of deciding what step must be taken. If the prisoner
by his criminal conduct has imposed upon his victim the
serious responsibility of deciding what may be a question of
life or death, e.g., whether he will submit to an operation or not, he is equally liable, whichever way the question is decided. Thus A. was deemed to have caused B.’s death in each of the following^
cases :

A. violently assaulted B., who died, though he might have recovered
if he had followed the advice of his doctor and foregone his daily glass of
beer.i A. wounded B. so severely that it was necessary for B. to have the
assistance of a medical man. B. did not call in a medical man and died in consequence.2 A. wounded B. so severely that it was necessary for B. to have the
assistance of a medical man. B. did call iu a qualified medical man, who
was guilty of some negligent but unintentional blunder which caused B.’s
death.a- A. wounded B. severely. Gangrene or blood poisoning resulted from
neglect or unskilful treatment, and B. died in consequence.’* A. wounded B. so severely that it was necessary for B. to have the
assistance of a medical man. The medical man advised an operation. B.
refused to undergo the operation and died in consequence.^ On the other hand :

A. wounded B. so severely that it was necessary for B. to have the
assistance of a medical man. B., against such medical man’s advice,
insists upon an operation. A. will not be liable, unless the prosecution can prove that B.’s death was due to the prisoner’s act and not to the
operation.^ A. wounded 15. so severely that it was necessary for him to call in a medical man. If B., instead of taking the advice of a qualified medical man, calls in some unqualified quack, who prescribes wrong treatment or operates unnecessarily or improperly and so causes the death of B., A. will not be liable. It would be otherwise, if the quack did nothing which
contributed to cause the death.*^ Where death results from a joint act, all the actors are
principals in the first degree. For if two men agree together
to jointly commit or attempt to commit any crime, each is liable for all that the other does in furtherance of their
1 See B. V. Wall (1802), 28 St. Tr. 51.
2 Rew’s Case (16G2), Kelyng, 26.
3 R. V. Pym (1846), 1 Cox, 339.
4 See R. V. Flymi (1868), 16 W. R. 319 (Ir.).
5 R. V. Holland (1811), 2 M. & Rob. 351.
6 1 Hale, 428 ; and see R. v. Davis (1883), 15 Cox, 17i.
272 HOMICIDE OR CAUSING DEATH. common purpose, though not for any act done by the other which is outside that purpose.^ Thus where two carters, racing each other along a road, ran over a man and death
ensued, it was hekl that both of them had caused the death and Avere therefore equally guilty, although it was not known
whether both or one only had actually run over the deceased.” And whenever two or more persons act in concert with a common purpose which is criminal, each is liable for every
act done by any of the others in pursuance of that common
If the prisoner employs an agent, whether innocent or
guilty, to carry out his design, and death ensues from the act of such agent, the prisoner has caused the death. This is so even where the agent mistakes or exceeds his instructions,
provided such mistake or excess was the necessary or reasonable consequence of the instructions which the prisoner gave
Thus, where a cook poisoned her master’s dinner and sent it to him in the hayfield by the hand of his httle daughter aged six, it was held that the cook was a principal in the first degree and had caused the death of her master,^ So, where A. poisoned an a{)ple and gave it to his w^ife to
eat, and she in A.’s presence gave it to their son, Avho ate it and died, it was held that A. had caused the death of his son.^ If the prisoner incites or commands a third person to do a criminal act which would not cause death, and he commits
a different and independent crime which does cause death, the })risouer is not liable, unless the crime actually committed
is the natural or probable consequence of the crime which the
prisoner instigated him to commit.
Thus, if the prisoner incites an agent to kill A. by one method and the agent kills A. by another method, the prisoner is liable ; for he has caused
the death of A. Again, where the prisoner instigates an agent to murder
a third person, whom he describes, and tlie agent, by a reasonable mistake, murders some quite dillerent person who corresponds to the description, the prisoner has caused the death of the man his agent has killed. Where
the prisoner incites an agent torob A., and A. when attacked resists and
1 See U. V. Fnniz (ISRl). 1 V. k F. oSO.
•2 B. V. Sioindall and Osborne (1846), 2 C. & K. 230 ; 2 Cox, 141 ; and see R. v. Salmon and othfr.s (18.M)). (I Q. 1!. l). T’.t, post, p. 2’J(!. » Anon. (1633), Kelyng, 52.
^ R. V. Saunders and Archer (1573), Plowd. 473 ; Foster’s Crown Cases, 371.
a fight ensues in the course of which A. is mortally wounded, the prisoner has caused A.’s death ; for A.’s resistance and death are the natural consequences of the attempt to rob him, which the prisoner had directly
instigated. It is also necessary to prove that the deceased died within
a year and a day after the prisoner’s act, which caused the
death. If a longer time elapses, the law will presume that the death was due to some other cause.
Homicide is of four kinds :

(1) Murder; where a man imlawfuUy causes the death of another with malice aforethought, express or implied.
(2) Manslaughter ; where a man unlawfully causes the death of another, but without malice aforethought, express or
(3) Justifiable ; where death is lawfully inflicted. (4) Excusable ; where death is accidental. In class (3) the death is always intentional, in class (l)it is almost always so, in class (4) it is always unintentional ; in manslaughter it may be either intentional or unintentional
the prisoner may have intended to kill the deceased, but
under great provocation ; or he may have caused the death
involuntarily, while doing an unlawful act, or doing a laAvful act negligently.
Murder and manslaughter are both felonies ; – they will be
dealt with in Chapters II. and III. Xon-felonious homicide
is discussed in Chapter


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