There are two main forms of "manslaughter":--

1. "Voluntary" homicide under grave and sudden provocation or on a

sudden quarrel in the heat of passion, without the slayer taking undue

advantage or acting in an unusual manner. The substance of the

alleviation of guilt lies in the absence of time for cool reflection or

the formation of a premeditated design to kill. Under English law the

provocation must be by acts and not by words or gestures, and must be

serious and not trivial, and the killing must be immediately after

provocation and while the slayer has lost his self-control in

consequence of the provocation. The provocation need not be by assault

or violence, and perhaps the best-recognized example is the slaying by a

husband of a man found committing adultery with the slayer's wife. In

the case of a sudden quarrel it does not matter who began or provoked

the quarrel. This used to be called "chance medley."

2. "Involuntary" homicide as a result of great rashness or gross

negligence in respect of matters involving danger to human life, e.g. in

driving trains or vehicles, or in dealing with dangerous weapons, or in

performing surgical operations, or in taking care of the helpless.

The innumerable modes in which criminal liability for killing others has

been adjudged under the English definitions of murder and manslaughter

cannot be here stated, and can only be studied by reference to the

judicial decisions collected and discussed in _Russell on Crimes_ and

other English text-books, and in the valuable work by Mr J. D. Mayne on

the criminal law of India, in which the English common law rulings are

stated side by side with the terms and interpretations of the Indian

penal code. Much labour has been expended by many jurists in efforts to

create a scientific and acceptable classification of the various forms

of unlawful homicide which shall properly define the cases which should

be punishable by law and the appropriate punishment. Their efforts have

resulted in the establishment in almost every state except the United

Kingdom of statutory definitions of the crime, beginning with the French

penal code and going down to the criminal code of Japan. In the case of

England, as a result of the labours of Sir James Stephen, a code bill

was submitted to parliament in 1878. In 1879 a draft code was prepared

by Blackburn, Lush and Barry, and was presented to parliament. It was

founded on and prepared with Sir J. Stephen, and is a revision of his

digest of the criminal law.

After defining homicide and culpable homicide, the draft code (cl. 174)

declares culpable homicide to be murder in the following cases: (a) if

the offender means to cause the death of the person killed; (b) if the

offender means to cause to the person killed any bodily injury which is

known to the offender to be likely to cause death, and if the offender,

whether he does or does not mean to cause death, is reckless whether

death ensues or not; (c) if the offender means to cause death or such

bodily injury as aforesaid to one person, so that if that person be

killed the offender would be guilty of murder, and by accident or

mistake the offender kills another person though he does not mean to

hurt the person killed; (d) if the offender for any unlawful object does

an act which he knows or ought to have known to be likely to cause

death, and thereby kills any person, though he may have desired that his

object should be effected without hurting any one.

Further (cl. 175), it is murder (whether the offender means or not death

to ensue, or knows or not that death is likely to ensue) in the

following cases:--"(a) if he means to inflict grievous bodily injury for

the purpose of facilitating the commission of any of the offences

hereinafter mentioned, or the flight of the offender upon the commission

or attempted commission thereof, and death ensues from his violence; (b)

if he administers any stupefying thing for either of the purposes

aforesaid and death ensues from the effects thereof; (c) if he by any

means wilfully stops the breath of any person for either of the purposes

aforesaid and death ensues from such stopping of the breath." The

following are the offences referred to:--"high treason and other

offences against the king's authority, piracy and offences deemed to be

piracy, escape or rescue from prison or lawful custody, resisting lawful

apprehension, murder, rape, forcible abduction, robbery, burglary,

arson." Cl. 176 reduces culpable homicide to manslaughter if the person

who causes death does so "in the heat of passion caused by sudden

provocation"; and "any _wrongful act or insult_ of such a nature as to

be sufficient to deprive any ordinary person of the power of

self-control may be provocation if the offender acts upon it on the

sudden, and before there has been time for his passion to cool. Whether

any particular wrongful act or insult amounts to provocation and whether

the offender was deprived of self-control shall be questions of fact;

but no one shall be deemed to give provocation by doing that which he

had a legal right to do, or which the offender incited him to do in

order to provide an excuse for killing him or doing grievous bodily harm

to any person." Further, "an arrest shall not necessarily reduce the

offence from murder to manslaughter because an arrest was illegal, but

if the illegality was known to the offender it may be evidence of

provocation"; (cl. 177) "culpable homicide not amounting to murder is

manslaughter."

The definitions embodied in these clauses though not yet accepted by the

British legislature, have in substance been embodied in the criminal

codes of Canada (1892 ss. 227-230), New Zealand (1893, ss. 163-166),

Queensland (1899, ss. 300-305), and Western Australia (1901, ss.

275-280).

From the point of view of civil as distinct from criminal responsibility

homicide does not by the common law give any cause of action against the

person causing the death of another in favour of the wife or blood

relations of the deceased. In early law this was otherwise; and the wer

or eric of the deceased came historically before the right of chief or

state. But under English law the rights of relations, except by way of

appeal for felony,[2] were swept aside in favour of the crown, on the

principle that every homicide is presumed felonious (murder) unless the

contrary is proved, and that in all cases of homicide not justifiable by

law a forfeiture was incurred. The rights of the relatives were also

defeated by application of the maxim "_actio personalis moritur cum

persona_" ("a personal action dies with the person") to all proceedings

for injury to the person or to reputation. In Scotland the old theory

was preserved in the law as to assythement.

In England the law was altered at the instance of Lord Campbell in 1846

(9 & 10 V. c. 93) so as to give a right of a claim by the husband, wife,

parent or child of a person killed by a wrongful (or even criminal) act,

neglect or default by another which would have given the deceased if he

had survived a cause of action against the wrongdoer. The compensation

payable is what the surviving relative has lost by the death, and under

the Workmen's Compensation Act 1906 (in all cases to which it applies)

the employer is liable even without negligence to compensate the

dependants of an employee killed by an accident arising out of and in

the course of the employment; and in such cases even if the death was

due to serious and wilful misconduct by the employee, compensation is

payable.

In the Indian penal code the definitions of murder are so drawn as to

limit the offences to cases where it was actually intended to cause

death or bodily injury by the acts or omissions of the slayer, and the

definition of culpable homicide short of murder is so drawn as to

exclude the forms of unintentional manslaughter due to neglect of duty,

e.g. in the conduct of trains or ships or vehicles. This last omission

was supplied in 1870. The Indian code does not treat as murder either

duelling or helping Hindu widows to commit _suttee_ (s. 301, exception

5). In most of the British possessions in Asia and in east Africa the

Indian definitions of homicide have been adopted. In the rest of the

colonies, except South Africa, the law of homicide depends on the

English common law as modified by colonial codes or statutes. In South

Africa it rests mainly on the Roman Dutch law.

_Europe._--In European codes distinctions corresponding to those of the

English law are drawn between premeditated and other forms of criminal

homicide; but more elaborate distinctions are drawn between the degrees

of deliberation or criminality manifested in the slaying, and the

minimum or maximum penalty is varied accordingly.

In the French penal code voluntary homicide is called murder (_meurtre_,

art. 295): but if committed with premeditation or lying in wait is

styled _assassinat_ (_guet-apens_) (296-298). Poisoning (even if the

poison is not fatal), is specially punished, as is parricide (on the

lines of the obsolete English offence of petty treason), and

infanticide, i.e. the killing of newly-born infants. Assassination,

poisoning and parricide are at present capital offences; but a bill to

abolish the death sentence has been laid before the French parliament.

The German code distinguishes between voluntary homicide which is done

with deliberation and such homicide committed without deliberation (ss.

211, 212), and provides for mitigation of punishment where the slaying

was provoked without fault in the slayer by any wrongful act or serious

insult upon the slayer or his relatives by the slain (213). Parricide

and infanticide are specially punished (214, 215), as is killing another

person at his express and earnest request (216)--an offence which would

in England be murder--and it is a separate offence to cause the death of

another, the penalty being increased if the offender was peculiarly

bound by office, calling or trade to use a care which he did not use

(222).

The Italian code punishes as homicide those who with intention to kill

cause the death of another (364). The death penalty is not imposed, but

scales of punishment are provided to deal with aggravated forms of the

offence. Thus _ergastolo_ (penal servitude for life) is the punishment

in the case of homicide of ascendants and descendants, or with

premeditation, or under the sole impulse of brutal ferocity or with

gross cruelty (_gravi sevizie_), or by means of arson, inundation,

drowning and certain other crimes, or to secure the gains or conceal the

commission, or to secure immunity from the consequences, of another

crime (366). Personal violence resulting in death inflicted without

intention to kill is punishable _minore poena_ (368), and it is criminal

to cause the death of another by imprudence, negligence or lack of skill

in an art or profession (_imperitia nella propria arte o professione_),

or by non-observance of regulations, orders or instructions.

The Spanish code has like those of Italy and France special punishments

for parricide (417) and for assassination, in which are included killing

for reward or promise of reward or by inundation (418), and for aiding

another to commit suicide (421). Both the Italian and the Spanish codes

afford a special mitigation to infanticide committed to avoid dishonour

to the mother of the infant or her family.

_America._--The most notable difference between England and the United

States in regard to the law on this subject is the recognition by state

legislation of degrees in murder. English law treats all unlawful

killing not reducible to manslaughter as of the same degree of guilt in

law. American statutes seek to discriminate for purposes of punishment

between the graver and the less culpable forms of murder. Thus an act of

the legislature of Pennsylvania (22nd of April 1794) declares "all

murder which shall be perpetrated by means of poison or by lying in wait

or by any other kind of wilful, deliberate and premeditated killing, or

which shall be committed in the perpetration of or attempt to perpetrate

any arson, rape, robbery or burglary shall be deemed murder of the first

degree; and all other kinds of murder shall be deemed murder of the

second degree." This legislation has been copied or adopted in many if

not most of the other states. There are also statutory degrees of

manslaughter in the legislation of some of the states. The differences

of legislation, coupled with the power of the jury in some states to

determine the sentence, and the limitations on the right of the judges

to comment on the testimony adduced, lead to very great differences

between the administration of the law as to homicide in the two

countries.

AUTHORITIES.--Stephen, _Hist. Cr. Law, Digest Criminal Law_; _Russell

on Crimes_ (7th ed., 1909); Archbold, _Criminal Pleading_ (23rd ed.,

1905); Bishop, _American Criminal Law_ (8th ed.); Pollock and

Maitland, _Hist. English Law_; Pike, _History of Crime_.

(W. F. C.)

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