Odger's English Common Law

290 MANSLAUGHTER.
be convicted of manslaughter, unless he was guilty of gross
negligence. It is no longer law that any one who causes
death by doing an unlawful act commits manslaughter, even
though he was guilty of no negligence. The summing-up of
Tindal, C. J., in E. v. Fenton 1
is contrary to the ruling of
Field, J., in the more recent case of R. v. Franklin. 2
A., from wanton mischief, threw stones down a coal-pit and knocked
away a scaffolding. The absence of the scaffolding caused an accident by
which B. was killed. A. was rightfully convicted of manslaughter. It is
true that iu the state of the law existing at, the date of this case A.'s
act was merely a civil trespass and not a crime ; but as the mine was still
being worked, and this fact must have been known to A., there was clearly
gross negligence on A.'s part. 3
In R. v. Franklin? the prisoner took up a large box from a refreshment
stall on the "West Pier at Brighton, and in sheer wantonness threw it into
the sea. The box struck a man who was swimming in the sea close to the
pier, and caused his death. The counsel for the prosecution, relying upon
the case just cited, suggested that as the prisoner had done an unlawful
act it was unnecessary for him to prove negligence. But Field, J., said
that the case must go to the jury on the broad ground of negligence, and
that the fact that the prisoner had committed a civil wrong against the
owner of the box was immaterial to the charge of manslaughter ; and
Mathew, J., concurred in this view of the law. There was evidence of
gross negligence in this case as well as in R. v. Fenton ; and the prisoner
was convicted and sentenced to two months' imprisonment.
Certain learned writers (such as Hale, East and Foster)
would further limit the above statement of the law by
restricting it to crimes which are mala in se. In their
opinion, if the prisoner causes death by doing an act which
is only criminal because a statute has forbidden it—in other
words, is only malum quia prohibitum—he cannot be convicted
of manslaughter without proof of culpable negligence. But
it is difficult to find any good ground for this distinction.
Every one is bound to obey the statute law, just as much as
the common law ; and ignorance of either is no excuse.
Hence the only safe proposition appears to be that a prisoner,
who had no intention to kill and who was not guilty of gross
negligence, can only be convicted of manslaughter if he caused
death by means of some criminal act or omission.
i (1830), 1 Lewin, 179.
2 (1883), 15 Cox, 163.
3 M. v. Fenton; suprd. ; and aee M. v. Sullivan (1836), 7 C. & P. 641.