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The Laws of England, Compiled and translated into the Māori language.

59. Manslaughter

page 34

59. Manslaughter.

The Law respecting Homicide will be here explained.

There are three kinds of Homicide;—

1.—Homicide which the Law justifies.
2.—Homicide which the Law excuses.
3.—Homicide which is felonious; that is, Homicide which can neither be justified, nor excused from punishment.

1. Homicide which the Law justifies is this. When a person deprives another of life, without desiring to do so, without misadventure, and without negligence. Thus: a convicted Criminal is sentenced by the Judge to be put to death, and is accordingly put to death by the Sheriff: this is a lawful taking of life, and the person who thus takes life, that is, the Sheriff, is justified in so doing. It is not of desire, nor by misadventure, nor through negligence, on his part, that life is so taken by him. Nor is it his own act, but that of the Law, of which he is but the servant. He is therefore justified when he thus takes human life. But this can be done by the Sheriff only, who has been appointed for the special duty. (See Introduction, § 30 "Sheriff.")

If any person, other than the Sheriff, put another to death, though the person so put to death be guilty of a crime deserving the punishment of death, the act will be Murder, because done without authority.

There are other cases where homicide may be justified. Thus: when an Officer of Justice is assaulted or resisted in the discharge of his office, and kills the person so assaulting or resisting him. When an Officer endeavouring to apprehend a person charged with a Felony is resisted by him, and in the attempt to capture, kills him. Or when an Officer in charge of prisoners, either in prison. or while being conveyed thither, is attacked by them, and some of them are killed by him in the endeavour to prevent their escape. But Homicide, in all these cases, can only be justified when such Officer can by no other means effect his object. Thus, there must be no other possible way by which the criminal could be apprehended; no other means by which the Officer in charge of the prisoners might detain them: in such case only will the Homicide be justified.

Another kind of Homicide which the Law justifies, is in such case as this. A person kills another in the attempt to prevent the forcible commission by him of some atrocious crime. This would be justified by the Law. Thus if a man were to attempt to rob or murder another; or to break open a house in the night; or to set it on fire; and be killed in the attempt by a person seeking to prevent the execution of his purpose; the Slayer will be exonerated by the Law.

This will not apply where the attempt to commit crime is not accompanied with force; such as a case of common stealing, or of breaking into a house in the day time, unless accompanied by an attempt to rob.

Another case of Homicide which the Law justifies is this. If a man attempts to ravish a woman, and is killed by her, the woman will be justified by the Law. Or if a man attempt to ravish a woman, and be killed by the husband or father of the woman; homicide in such a case is justifiable. It is otherwise, if the husband or father take them in adultery the woman consenting; in such case homicide would not be justifiable. In the former case, the woman is forcibly defiled, and the offence is a Felony; but not so in the latter, This distinction should be carefully borne in mind; lest a mistake should be made, by straining this doctrine to meet cases which it does not reach: as it is inapplicable to those cases of crime which are not attempted with violence.

2. Homicide which the Law excuses is:—when it is committed by accident; or, when it is committed for self-preservation. By accident—as when a man, quietly engaged in a lawful act, without any ill intention, causes the death of another. As when a man is at work with an axe, cutting wood, and in wielding the axe the head flies off, and strikes a bystander, causing his death. Or as when a man goes out to shoot birds, and accidentally kills another. Or as when the horse on which a person is riding, is whipped by another person, and it runs page 35away and knocks down and tramples upon a child, causing its death; the rider will not be guilty of an offence, for he did nothing wrong. But the person who whipped the horse will be guilty of Manslaughter. And it is also a general rule that when a man meets with his death in consequence of the idle sport of another, the Slayer will be held to have committed Manslaughter. As, if a person should throw stones in a town or other public place, and one he struck and killed; the person who threw the stone will have committed the offence of Manslaughter, and his act will not be regarded as an accident.

Another case of Homicide which the Law excuses is this:—When a man wards off the blow of another aimed with intent to kill him, and in so doing deprives his assailant of life. This is called Self Defence. But a man may not attack another for injuries past or about to be inflicted on him by his adversary. Only while the attack continues, the assailed may defend himself, and if in so doing he kill bis assailant, the Law will excuse him. If, however, he attack his adversary, he will be wrong, for the Law is his proper resource, if he have suffered, or is about to suffer wrong, at the hands of another. Wherefore the right of Self Defenee should be exercised only in cases of sudden and unforeseen violence offered by another; when serious injury to the person would be the consequence of waiting for the interposition of the Law. For this reason it has been provided that the plea of Self Defence is admitted by the Law as an excuse for Homicide, only when it is shown that the killer had no means of escape, or of avoiding the stroke of bis assailant. Care must also be taken not to employ too great force in Self Defence, lest it partake of the character of an attack on the part of the person defending himself, and he become an aggressor upon the other.

The plea of Self Defence, as rendering Homicide excusable by the Law, will hoki good in the case of a person killing another in the defence of the life of bis wife, of his child, or of his parent, from an attack by another.

3. Homicide which is felonious, is a totally different thing from the kinds of Homicide before spoken of. It is the killing of a human being altogether without legal ground of justification or excuse.

A man killing himself commits this offence.

A man killing another commits this offence; and the killing of another is divided into Manslaughter and Murder.

Manslaughter is the unlawful killing of another without malice expressed or implied,—that is, shown outwardly, or existing within. It is sometimes voluntary and sometimes involuntary. Involuntary Manslaughter is, when a man engaged in any unlawful act, not felonious, or tending to bloodshed, kills another undesignedly. Another case is, when a man engaged in a lawful act does not take proper care, and kills another undesignedly. But if the act be felonious, the offence will be Murder.

If two persons quarrel, and afterwards fight, and one be killed, it will be Manslaughter, if the interval between the quarrel and the fight had not been sufficient for passion to subside; but if there had been an interval, or it appear that malice incited the deed, it is Murder. It is immaterial which of the parties struck the first blow.

And even in a case when there is no interval between the quarrel and the fight, for passion to cool; but indications of malice and murderous intention on the part of the killer are manifest; it is Murder.

If two persons quarrel and fight, and one of them provide himself with a knife, or other deadly weapon, and wait for his opponent, and they meet again and quarrel and fight, and the one armed with the knife kill the other; this is Murder.

If a person upon grievous provocation, under the influence of passion, suddenly strike the person offering the provocation, and death ensue; this will not be Murder, but Man page 36slaughter. But the provocation must be very grievous; for if it consist in mere words, however opprobrious, this will not furnish ground for reducing the offence to Manslaughter, where an intention to kill appears; such as, where the victim is killed with a knife or other deadly weapon. But if the instrument, with which the fatal blow was given, be not a deadly weapon; this will from a ground for reducing the offence to Manslaughter. It is for the Jury carefully to weigh and consider the nature and degree of the provocation and the circumstances connected with the case. If an Officer of Justice be killed while in the regular execution of his office, the killer knowing him to be such Officer, and intending to obstruct him in the performance of his duty; it is Murder. Those also who aid the killer are guilty of the same offence. And the case is the same when private persons lawfully interfere in affrays, or to prevent the commission of felonies; if they expressly declare their intention of so interfering to quell a disturbance or prevent a crime.