Odger's English Common Law

304 JUSTIFIABLE AND EXCUSABLE HOMICIDE.
to life or limb. And whenever a game degenerates into a
brawl and blows are interchanged in anger, it ceases to be a
lawful game.
The distinction between murder, manslaughter and excus-
able homicide may be further illustrated by the following
examples :
—
If a workman employed in the repair of a building throws stone3 or
rubbish, from the housetop, and thereby kills an individual passing under-
neath, this act will, in the eye of the law, amount to murder, manslaughter
or excusable homicide according to the degree of precaution taken and the
necessity for taking it. If the act were done in a public street without any
kind of warning at a time when many persons would usually be passing, this
might in strictness be held murder—if at a time when persons were not
likely to be passing, it would be manslaughter, unless the workman can show
that he gave a warning loud enough to be heard below ;
if done in a retired
spot where no persons had a right to pass or were in the habit of passing, it
would be^homicide by misadventure.
80, if a person, riding through a street slowly and using reasonable
caution to prevent mischief, rides over and kills a child that is heedlessly
crossing the road, the result is purely accidental ; but if he had used such
speed as under the circumstances was not unlikely to occasion accident,
the want of caution might render him amenable to a charge of man-
slaughter ; and, were he to ride into the midst of a crowd at so furious a
rate that loss of life was likely thence to ensue and did ensue, he might, by
thus wilfully endangering human life, be technically guilty of murder. 1
If a medical practitioner causes the death of another intentionally,
that of course will be murder. But if, in the course of his professional
duties and without any intention to kill, he causes death by gross negli-
gence, unskilfulness or ignorance, he . may be guilty of manslaughter.
If, therefore, an operation,' which results in the death of the patient, be
performed by one whether duly qualified or not to act as a surgeon, the
1 questions for the jury will be, first, whether the deceased died from the
effects of the operation performed on him by the accused ; secondly,
whether the treatment pursued by the prisoner towards the deceased was
marked by negligence, unskilfulness or ignorance. If the jury answer
either of these questions in the negative, no crime is committed. 2
1 See B. v. Dant (1865), L. & C. 567.
• B. v. Van Butchell (1829), 3 C. & P. 629 ; B. v. WUliwrAson (1807), lb. 638 ;
B. v. Webb (1834), 1 Moo. & Bob. 405.