Odger's English Common Law

CRIMINAL ACT, CAUSING DEATH. 291.
When, however, an act is not wholly prohibited bnt only
when done in certain circumstances, it is submitted that, in
order to convict the prisoner-of manslaughter, the prosecution
must, in the absence of gross negligence, prove that the death
in the particular case was the result of the act being done
with those circumstances, and that the act itself without the
circumstances which render it illegal would not have caused
the death. Thus, if an act innocent in itself is prohibited
merely when done in a particular manner or at a particular
time or place, it must be shown that the death was caused
by the act being done in that manner and at that time or
place ; for if the death be due to the performance of a lawful
act without any negligence on the part of the prisoner, no
crime is committed.
A. was driving his motor car with due care and caution, when a little
child suddenly ran across the road in front of it and was killed. The car
was going at that inomeut at a speed slightly in excess of the rate pre-
scribed by law ; but the injury to the child would have happened in
precisely the same way if the car had been going at a speed below the
legal limit. It is submitted that A. cannot be held guilty of manslaughter,
as the accident was not caused by the illegal excess of speed. 1
So far we have dealt with cases in which the prisoner's
conduct is criminal, because he has done that which it was
his duty not to do. But his conduct may also be criminal
where he omits to do that which it is his duty to do. If
death be the direct result of any such criminal omission,
the prisoner is guilty of manslaughter ; if he deliberately
abstained from doing his duty with the object and intention
that death should follow, he is guilty of murder.
Whenever a person lias the custody and charge of another and is able
to supply that other with proper food and lodging, but neglects to do so, he
is responsible if death results from such omission. 2
If A. illegally arrests B. and keeps him a close prisoner without sufficient
food and drink or in unwholesome air, and B. dies, A. is guilty of murder,
although his intention was not to starve him to death, but to keep him
alive and to starve him into doing something in compliance with A.'s own
1 It is stated that in a case B. v. Cornalbas, where the prisoner was indjcted for
manslaughter by driving in a motor car over a boy, Bray, !., expressed the opinion
that, negligence or no negligence, if the speed was over twenty miles an hour it
would be manslaughter ; but the case was not decided on this point (see The Times,
June 27th, 1905, p. 10).
2 See the Children Act, 190S, discussed, pnxt, pp. 293, 310, Ml.
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