Odger's English Common Law

EXCUSABLE HOMICIDE.
those cases in which the person attacked was himself originally to blame
and those in which he was wholly innocent and passive from the very commencement
of the affray. In the former case it was held that the homicide
was excusable only and not justifiable. Tf an attack be made upon a
'601
person, who has done nothing to provoke it, of so murderous a character
that he reasonably believes his life to be in danger, he is justified in killing
his assailant if such a course be the only obvious means of saving his own
life. But when there has been a quarrel in which both A. and B. have
taken part and blows have been interchanged in anger, each party in turn
assaulting the other—so that both are in some degree to blame—then if A.
kills B., even in self-defence, he is primd facie guilty of manslaughter, and
the crime can only be reduced to non-felonius homicide if A. can show
that, before the mortal blow was given, he had declined any further combat.
and retreated as far as he could with safety, and also that he killed B..
through mere necessity, and to avoid immediate death. The ancient
authorities place this case under the head of excusable homicide, because it
so nearly approaches manslaughter ; but as the fatal blow is here delivered
with the express intention of killing or at least of disabling B., it appears
logically to fall under the head of justifiable homicide. The distinction,
however, is no longer of any importance.
But where A. of malice aforethought discharges a pistol at B. and then
runs away, and B. pursues him, and A. thereupon turns back, and in his
own defence kills B., this has been held to be murder ; for the whole trans-
action is tainted by the original malice. 1
Excusable Homicide.
Excusable homicide is committed when one man, in doing
a lawful act in a lawful manner with due care and without
intending to kill or injure any one, causes the death of
another. It differs from manslaughter in this respect—that
in manslaughter the death is always the result of some
unlawful conduct—either the act which causes death is
criminal in itself or there was criminal negligence on the part
of the accused ;
whereas in excusable homicide the accused
has done nothing unlawful, nor has he been guilty of gross
negligence. A pure accident is no crime. Again, the dis-
tinction between justifiable and excusable homicide lies in the
intention of the slayer. In justifiable homicide the slayer
was entitled to kill and he intended to do the act which
caused the death ; in excusable homicide there was no such
intention; the slayer did not intend to kill the deceased*
1 See R. v. Mawgridgc (1707), Sir John Kelyng'a C. C, at p. 129.