Appendix CASE ONE - Collection Point® | The Total Digital Asset ...

54 Legal History in the Making
Was such a killing, therefore, 'casual homicide'? If so, chaudemellee would not
carry the death penalty. Alternatively, did casual homicide refer only to killing
by chance in the quite different sense of mere accident, or pure misadventure?
If so, killing chaudemellee was a capital offence. And what about a death
caused by culpable negligence? These and other points of interpretation were
raised in case after case, and the relevant passages in Regiam Majestatem and
the fourteenth century statutes trotted out again and again.
In Dalmahoy or Ralstoun v. Mason, for example, in 1674 the deceased,
Ralstoun, had apparently been drunk and had provoked and assaulted the
pannel [accused], Mason. 46 Mason retaliated and beat Ralstoun who fell and
cut open his head on the edge of a bunker or chest. Ralstoun, who in addition
to being drunk was said to have been aged and infirm and recently recovered
from sickness, took no proper care of the wound but stayed 'in frosty weather
for three hours after'. He died some time later from 'defluxion and swelling'
rather than directly from the wound. A number of possible defences were
clearly available to the pannel on the facts, but the case reveals considerable
uncertainty about terminology. The pannel denied 'precogitate malice' and
forethocht felony. If the wound was his fault he pleaded either casual homicide
or self-defence. The widow insisted on 'simple slauchter' and said that casual
homicide was only relevant where the effect was not and could not have
been foreseen. The Lord Advocate, acting with the widow and children of
the deceased, argued that the defence of casual homicide did not apply in
that culpa casui precedens the pannel causam rixae dedit to the defunct, and
after giving him the wound pursued him further. 47 The pannel then denied
culpa precedens and maintained that the killing was 'clearly casual being
neither intended not expected to be repute deliberate and resolved'. 48 The
court found the libel [indictment] relevant only to poenam extraordinariam
- that is, they excluded the death penalty - and remitted the case and
defences to an assize. The assize found self-defence 'all in one voice except
one' [!]. 49
In the course of time the balance tilted towards interpreting casual homicide
to exclude chaudemellee. Thus Sir George Mackenzie in his Matters Criminal,
published in 1678, defines casual homicide in these terms: 'Homicidium
casuale is when a Man is killed casually, without either the Fault or Design
of the Killer', and 'Casual Slaughter, or Homicide, then, is which is occasioned
by Mistake and just Ignorance'. 50 He notes, however, that 'Slaughter and
Murder did of old differ': murder, properly so called, was committed upon
46
Justiciary Records, 1661-1678, ii, W.G. Scott-Moncrieff, ed., Scottish History Society, First
Series, xlix (Edinburgh, 1905), 287-94.
47
Ibid., 292.
48 Ibid., 293.
4<
> Ibid., 294.
50
Sir George Mackenzie, Laws and Customs of Scotland in Matters Criminal, (1678), I, xi, 6 in
Collected Works, ii (Edinburgh, 1722), 98.