THOSE homicides which are felonies, viz., murder and manslaughter, will, for the convenience of reference, be treated of under separate heads. It will be useful in this place to distinguish the nature of the different kinds of homicide not amounting to felony.

Homicides not felonious may be divided into three classes, justifiable homicide, excusable homicide, and homicide by misadventure.

Justifiable homicide is where the killing is in consequence of an imperious duty prescribed by law, or is owing to some unavoidable necessity induced by the act of the party killed, without any manner of fault in the party killing, 1 East, P. C. 219; Hawk. P. C. b. 1, c. 28, ss. 1, 22.

Excusable homicide is where the party killing is not altogether free from blame, but the necessity which renders it excusable may be said to be partly induced by his own act. Formerly in this case it was the practice for the jury to find the fact specially, and upon certifying the record into chancery, a pardon issued, of course, under the statute of Gloucester, c. 9, and the forfeiture was thereby saved, But latterly it was usual for the jury to find the prisoner not guilty. 1 East, P. C. 220. And now by the 24 & 25 Vict. c. 100, s. 7, "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."

Homicide by misadventure is where a man doing a lawful act, without any intention of bodily harm, and after using proper precautions to prevent danger, unfortunately kills another person. The act upon which the death ensues must be lawful in itself, for if it be malum in se, the case will amount to felony, either murder or manslaughter, according to the circumstances. If it be merely malum prohibitum, as (formerly) the shooting at game by an unqualified person, that will not vary the degree of the offence. The usual examples under this head, are 1, where death ensues from innocent recreations; 2, from moderate and lawful correction in foro domestico; and 3, from acts lawful or indifferent in themselves, done with proper and ordinary caution. Homicide by chance-medley is strictly where death ensues from a combat between the parties upon a sudden quarrel; but it is frequently confounded with misadventure or accident. 1 East, P. C. 221.

HOUSEBREAKING. See DWELLING-HOUSE.

*ILL-TREATING APPRENTICES, SERVANTS, LUNATICS, AND [*635

HELPLESS PERSONS.

In cases of apprentices or servants, 24 & 25 Vict. c. 100
Lunatics, etc.

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In cases of apprentices or servants. The 24 & 25 Vict. c. 100, s. 26, replacing the 14 & 15 Vict. c. 11, s. 1, enacts that, "whosoever, being legally liable either as a master or a mistress to provide for any apprentice or servant, necessary food, clothing, or lodging, shall wilfully and without lawful excuse refuse or neglect to provide the same, or shall unlawfully or maliciously do or cause to be done any bodily harm to any such apprentice or servant, so that the life of such apprentice or servant shall be endangered, or the health of such apprentice or servant shall have been or shall be likely to be permanently injured, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the court, to be kept in penal servitude for the term of three [now five] years, or to be imprisoned for any term not exceeding two years, with or without hard labor."

Under sect. 6 of the Conspiracy Act, 1875, 38 & 39 Vict. c. 86, where a master being legally liable to provide for his servant or apprentice necessary food, clothing, medical aid or lodging, wilfully and without lawful excuse refuses or neglects to provide the same, whereby the health of the servant or apprentice is, or is likely to be, seriously or permanently injured, he shall, on summary conviction, be liable either to pay a penalty not exceeding 201., or to be imprisoned for a term not exceeding six months with or without hard labor, or by sect. 9, the offence may be prosecuted on an indictment at the request of the party accused.

See as to costs, 24 & 25 Vict. c. 100, ss. 74, 75, and 77, supra, p.

243.

By sect. 73 of the 24 & 25 Vict. c. 100, "where any complaint shall be made of an offence against s. 26 of this act, or of any bodily injury inflicted upon any person under the age of sixteen years, for which the party committing it is liable to be indicted, and the circumstances of which offence amount in point of law to a felony, or an attempt to commit a felony, or an assault with intent to commit a felony, and two justices of the peace, before whom such complaint is heard, shall certify under their hands, that it is necessary for the purposes of public justice, that the prosecution should be conducted by the guardians of the union or place, or, where there are no guardians, by the overseers of the poor of the place in which the offence shall be charged to have

been committed, such guardians or overseers, as the case may be, upon personal service of such certificate, or a duplicate thereof upon the clerk of such guardians, or upon any one of such overseers, shall *conduct the prosecution, and shall pay the costs, reasonably and

*636] properly incurred by them therein, so far as the same shall not

be allowed to them under any order of any court, out of the common fund of the union, or out of the funds in the hands of the guardians or overseers, as the case may be; and when there is a board of guardians, the clerk or some other officer of the union or place, and where there is no board of guardians, one of the overseers of the poor, may, if such justices think it necessary for the purposes of public justice, be bound over to prosecute."

It has been held, that a master is not bound by law to furnish medical advice for his servant; but that it is otherwise in the case of an apprentice, and that a master is bound, during the illness of his apprentice, to furnish him with proper medicines. See R. v. Smith, 8 C. & P. 135. And see now the new statute, supra.

Lunatics, etc. The 8 & 9 Vict. c. 100, contains several provisions for regulating the care and supervision of lunatics, and in many instances rendering the breach of those regulations a misdemeanor. By sect. 44 it is a misdemeanor to receive two or more lunatics into a house which is not duly licensed under the Act. Under this section it has been held that if the persons so received are found by the jury to be lunatic the offence is made out, notwithstanding that the defendant honestly and on reasonable grounds believed that they were not lunatio. R. v. Bishop, 5 Q. B. D. 259; 49 L. J., M. C. 45. The 16 & 17 Vict. c. 96, s. 9, enacts, that "if any superintendent, officer, nurse, attendant, servant, or other person employed in any registered hospital, or licensed house, or any person having the care or charge of any single patient, in any way abuse, or ill-treat, or wilfully neglect, any patient in such hospital, or house, or such single patient; or if any person detaining, or taking, or having the care or charge, or concerned in taking part in the custody, care, or treatment, of any lunatic or person alleged to be a lunatic, in any way abuse, ill-treat, or wilfully neglect such lunatic, or alleged lunatic, he shall be guilty of a misdemeanor, and shall be subject to indictment for every such offence, or to forfeit for every such offence, on a summary conviction thereof, before two justices, any sum not exceeding 201.'

A husband having been tried and convicted under this statute, for that he, having the care and charge of his wife, a lunatic, did abuse and ill-treat her; upon a case reserved, the court held that he was not a person having the care and charge of a lunatic within the meaning of the statute, which was not intended to apply to persons whose care or charge arose from natural duty. R. v. Rundle, 1 Dears. C. C. R. 432; 24 L. J., M. C. 129.

But where a man voluntarily took upon himself the care and charge of a lunatic brother in his own private house, he was held to be liable to be indicted for ill-treating him under the above statute. R. v. Por

ter, L. & C. 394; 33 L. J., M. C. 126. R. v. Smith, 14 Cox, C. C. R. 398.

A mistress was indicted for manslaughter by neglecting to supply her servant who, it was contended by the prosecution, was of weak mind, with proper food and lodging. It was held that the question for the jury was, whether there was evidence that the deceased was reduced to such a state of body and mind as to be helpless and unable to take care of herself, and that she was so under the dominion and restraint of her mistress as to be unable to withdraw herself from *her control. R. v. Smith, L. & C. 607; 34 L. J., M. C. 153. See now the new statute, supra. [*637

By 16 & 17 Vict. c. 97, s. 123. If any superintendent, officer, nurse, attendant, servant, or other person employed in any asylum, shall strike, wound, ill-treat, or wilfully neglect any lunatic confined therein, he shall be guilty of a misdemeanor.

By 23 & 24 Vict. c. 75. Any superintendent, officer, nurse, attendant, servant, or other person employed in any asylum for criminal lunatics, who strikes, wounds, ill-treats, or wilfully neglects any person confined therein, shall be guilty of a misdemeanor, and shall be subject to indictment for every such offence, and on conviction under the indictment, to fine or imprisonment with or without hard labor, or to both fine or imprisonment at the discretion of the court, or to forfeit for every such offence, on a summary conviction thereof before two justices, any sum not exceeding twenty pounds, nor less than two pounds.

For ill-treating children, see "Children-offences relating to," ante, p. 398.

"By the Children's Dangerous Performances Act, 1879; 42 & 43 Vict. c. 34, an employer of a child under the age of 14 years may be indicted for an assault where any accident causing any actual bodily harm occurs to any such child in the course of a public exhibition which in its nature is dangerous to life or limb."

*638]

*INCITING TO MUTINY.

BY 37 Geo. 3, c. 70, s. 1 (E.) after reciting that divers wicked and evil-disposed persons, by the publication of written or printed papers, and by malicious and advised speaking, had of late industriously endeavored to seduce persons serving in his Majesty's forces by sea and land, from their duty and allegiance to his Majesty, and to incite them to mutiny and disobedience; it is enacted, "that any person who shall maliciously and advisedly endeavor to seduce any person or persons serving in his Majesty's forces, by sea or land, from his or their duty and allegiance to his Majesty, or to incite or stir up any such person or persons, to commit any act of mutiny, or to make, or endeavor to make, any mutinous assembly, or to commit any traitorous or mutinous practice whatsoever, shall, on being legally convicted of such offence, be adjudged guilty of felony [and shall suffer death, as in cases of felony, without benefit of clergy]."

S. 2 provides and enacts, "that any offence committed against this act, whether committed on the high seas or within that part of Great Britain called England, shall and may be prosecuted and tried before any court of oyer and terminer, or gaol delivery for any county of that part of Great Britian called England, in such manner and form as if the said offence had been therein committed."

By the 7 Will. 4 & 1 Vict. c. 91 (U. K.), s. 1, after reciting (inter alia) the above statutes, it is enacted, "that if any person shall, after the commencement of this act, be convicted of any of the offences herein before mentioned, such persons shall not suffer death, or have sentence of death awarded against him or her for the same, but shall be liable, at the discretion of the court, to be transported beyond the seas for the term of the natural life of such persons, or for any term not less than fifteen years, or to be imprisoned for any term not exceeding three years."

By s. 2, hard labor and solitary confinement may be awarded in cases of imprisonment,

By the Naval Discipline Act, 1866, 29 & 30 Vict. c. 109, s. 10, mutiny with violence is punishable with death, and penalties are awarded for acting traitorously, with cowardice and with negligence respectively during such mutiny. By section 11, where the mutiny is not accompanied with violence the ringleaders are punishable with death, and those who join in or do not endeavor to suppress such mutiny are punishable with imprisonment. By ss. 12, 13, persons inciting to mutiny or uttering or concealing mutinous words are subjected to