Odger's English Common Law

CRIMINAL ACT, CAUSING DEATH. 289
is guilty of manslaughter under the next section of this
chapter ; for he has acted with criminal negligence. But, in
the class of cases which we are now discussing, it is enough
that the act which the prisoner does is criminal in itself
—
i.e. T
that it would be a crime even if no fatal results had followed.
A man who does such an act must take the risks of all its
consequences, and if fatal results do follow he is guilty of
manslaughter, although there was no criminal negligence on
his part and no intention in his mind to kill any one. The
facts that the prisoner's act was not in ordinary circumstances
likely to cause death, or that it was only by accident that
death resulted in the particular case, are immaterial if the act
which the prisoner intended to do was in itself a crime.
Thus, if A. is a member of an unlawful assembly or of a mob of rioters
and does some act in furtherance of their common unlawful purpose which
accidentally causes the death of an unoffending by-stander, he is guilty of
manslaughter. 1
Where A. strikes B. intentionally and without any sufficient excuse,
meaning only to inflict some trifling and temporary pain (as in a prize-
fight 2 or in an unlawful game 3 ), and death unexpecoedly results, A. is guilty
of manslaughter, for he intended to commit a battery, and a battery is a.
crime.
If A., finding a trespasser upon his land, beats and thus chances to kilt
him he is guilty of manslaughter ; or if there be circumstances evidencing
malice, he may be convicted of murder. This is so even though the
trespasser has come on A.'s land with a felonious intention, provided he
has not yet carried it into effect. But if the trespasser was in the act of
breaking into A.'s house or of attacking any of the inmates, A.'s act would
be held justifiable at law. 4
It is a crime at common law kuowingly to send to market for human
consumption meat which is unfit for that purpose, and by statute whether
the sender knows it to be so or not. 5 If death results from such an act,,
there will be ground for an indictment for manslaughter. 6
If death be caused unintentionally by an unlawful act
which is merely a tort and not a crime, the prisoner cannot
1 R. v. McNaughten (1881), 14 Cox, 576.
* B. v. Billingham (1825), 2 C. & P. 234 ; B. v. Perkins (1831), 4 C. & P.
537 ; B. v. Coney and otters (1882), 8 Q. B. D. 534.
8 B. v. Bradshaw (1878), 14 Cox, 83. An unlawful act in a lawful game lenders
the game unlawful.
4 See post, pp.299, 300.
5 See 35 & 36 Vict. c. 74, s. 2, and Fitzpatrick v. Kelly (1873), L. E. 8 Q. B. 337.
« B. v. Stevenson (1862), 3 F. & F. 106 ; B. v. Jarvis, lb. 108 ; B. v. Crawley,
lb. 109 ; B. v. Kempson (1893), 28 L. J. (Newspaper) 477.
B.C.L. 19