Odger's English Common Law

MASTER AND SERVANT. 129
for believing, and honestly believed, that his act was necessary for the
defence of his mother, the homicide was justifiable, although the evidence
at the trial showed that the father did not in fact intend to murder his wife. 1
A. is alarmed in the night and sees a man in his house, whom he honestly
but erroneously believes to be a burglar, and whom he therefore shoots. 2
A. in this case commits no crime. But if A. supposed the man to be
merely a drunken trespasser who had entered his house by mistake, and
with that impression in his mind shot at him and killed him, he would be
guilty of murder.
So, where hurt or damage is the result of an accident which
could not have been foreseen or avoided, no blame attaches to
the author of the injury, for he had no guilty mind, e.g., in
the case of homicide by misadventure.
Lastly, as a general rule, both the guilty act and the guilty
mind must be the act and mind of the accused himself, and
not of any servant of his. There must be a personal duty on
the accused, and he must personally break or neglect that duty,
" The condition
otherwise no indictment will lie against him.
of mind of the servant is not to be imputed to the master. A
master is not criminally responsible for a death caused by his
servant's negligence, and still less for an offence depending on
the servant's malice ;
nor can a master be held liable for the
guilt of his servant in receiving goods, knowing them to have
been stolen. And this principle of the common law applies also
to statutory offences, with this difference, that it is in the power
of the Legislature, if it so pleases, to enact, and in some cases
it has enacted, 3 that a man may be convicted and punished
for an offence although the condition of his mind was not
blameworthy ; but, inasmuch as to do so is contrary to the
general principle of the law, it lies on those who assert that
the Legislature has so enacted to make it out convincingly by
the language of the statute ; for we ought not lightly to presume
that the Legislature intended that A. should be punished
for the fault of B." 4
Where a servant or agent does an act which he knows or
B.C.L.
i R. v. Rose (1884), 15 Cox, 540.
2 See R. v. Annie Dennis (1905), 69 J. P. 256.
3 See ante, pp. 118, 119.
* Per Cave, J., in ChishoVm v. Doulton (1889), 22 Q. B. D. at p. 741.
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