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1862.

REGINA

V.

HORSEY.

discovered, but very soon after it was discovered the
deceased was seen and heard in the flames.

The prisoner had already been convicted of the arson.
At the close of the case,

BRAMWELL, B., told the jury that the law laid down was, that where a prisoner, in the course of committing a felony, caused the death of a human being, that was murder, even though he did not intend it (a).

(a) The law is, certainly, so laid down in the text-books (Ros. Crim. Ev. 438); but nevertheless, it is conceived, too largely; and all the authorities, except one mere opinion of a text-writer, limit it to cases where the act done was of a homicidal character; or one of which the natural probable result would be the death of a human being. It should seem to be a clear general principle, that there cannot be murder without an intent, particular or general, to kill; and though the general intent may be inferred from that degree of recklessness of human life which implies malice in law, that requires a consciousness that the natural and probable result of the act will be to cause the death of a human being. Thus it is laid down, that if a man, knowing that people are passing, shoots, with intent to do hurt, this is murder (Hale, Pl. Cro. 474); though of course that intent might be inferred from the knowledge. And it is to be observed that in the chapter of involuntary homicide, Hale does not lay down any such proposition, as that killing, in the course of a felony, though without any intent, is murder. And, on the contrary, he lays it down that if A. shoot to kill the poultry of B., and

And though (he said) that

kill a bystander, it is not murder, because he did it not maliciously, or with an intent to hurt the bystander. And the only authority in support of the proposition above stated, is the passage in Foster: "If a man shoot at another's poultry with intent to steal them, and by accident kill a man, it is murder," which seems a sort of rider on Hale's proposition, and to imply that the man killed was a bystander; and has not his authority, nor that of any decision. All that is laid down by Hale as to homicide in the course of felony being murder, is to be found in other chapters, which treat of voluntary acts of the prisoner, such as blows, or shots, directed against the deceased or other person, and which were or might naturally be homicidal; as, where a burglar or robber, resisted, strikes and causes death without any intention to kill, or, perhaps, one should rather say, without any evidence of an intent to kill, other than the fact that the prisoner was in the course of commission of a felony with violence, and must be presumed to intend the natural result of a struggle in such a case, viz., to succeed by means of killing, if not otherwise. And the origin of the rule, that homicide, in the course

may appear unreasonable, yet, as it is laid down as law, The law, however, is, that tural consequence of his original felony, and such as he must be supposed to have in his mind; and moreover was homicidal in its nature, and such as might naturally cause death; and that, also, for the reasons already stated, must be supposed to have been in his mind. It is far otherwise where, as here, the original act of felony is not homicidal in its nature, nor has any natural tendency to cause death, and the death is a purely accidental result. It would not be so in the case of setting fire to a dwellinghouse, where persons must or might be supposed to be sleeping. That would be like the case of firing on a highway, where people are passing; though even there, the prisoner's knowledge of that would be necessary, and would only be evidence of malice.

it is our duty to act upon it.

of commission of a felony, is murder, would seem to be that other well-known rule of law, that a man may resist a felony attempted with violence to the person, even to the point of killing the malefactor; whereas it is otherwise, of a mere trespass or misdemeanor, as an ordinary assault, which only, at the utmost, reduces homicide to manslaughter. This class of cases, it will be seen, have a double bearing; both as showing where killing the malefactor is excused, and where killing by the malefactor is murder; and therefore it is, in both points of view, they are treated of in Hale, and other approved text-writers ; and it is laid down that, in such cases, the killing by the malefactor, even by a casual shot or blow without any other evidence of malice or intent to kill than the nature and origin of the struggle, is murder. But in such cases that alone is evidence of such intent, especially coupled with the use of a deadly weapon, or any weapon which naturally may be deadly-as a thick stick or club; for, the law being that the malefactor may be killed in the struggle, it is natural to infer that he means to kill, if he cannot otherwise succeed. And that is quite a sufficient intent to make the crime of murder. And hence, in such cases, the rule alluded to would be good law, and might very easily and naturally be supposed to extend to all cases of homicide caused in the course of commission of a felony. But, in those cases, the act of the prisoner was the na

And on an indictment for murder by setting fire to a dwelling-house, it is conceived it might be shown by the prisoner that, for some reason, he had ground to believe or suppose that no one was in the house, and that any one being there was a mere accident. On the other hand, it is submitted that it would be no answer, in the case of a dwellinghouse, that no one was in the house at the time of the prisoner's act of firing; for he must have supposed that persons would be there; and though, under the statute, on an indictment for setting fire to a house, some one being there (death not ensuing), it is essential to prove that the person was in the house at the time it was fired (Reg. v.

1862.

REGINA

v.

HORSEY.

1862.

REGINA

v.

HORSEY.

a man is not answerable except for the natural and proand therefore, if you should

bable result of his own act;

Fletcher, 2 C. & K. 215), because that is, by the terms of the statute, made the essence of the offence, and the intent to kill is no part of it; nor even the knowledge that any one was in the house: it is quite otherwise at common law, where, it is conceived, there must be a knowledge that the natural and probable result of the act will be to cause the death of a human being. And it is submitted that, in such a case as this, if no one could reasonably suppose a man would be sleeping on the stack or out-house, there would be no murder. If the proposition, as above stated, were law, the Judges could not have hesitated as they did in Ladd's Case, in Leach, and avoided deciding that death, caused by the act of rape, was murder; and it may be noted in passing, that in a very recent case, which will be long known as the Fordingbridge Case, where the prisoner was convicted of murder for causing the death of a woman in the course of committing a rape, there was evidence of distinct acts of a homicidal character, by strangulation and immersion in water, quite apart from the mere act of rape; so that the point reserved, and not decided in Ladd's Case, did not arise; and the case did not at all rest upon or involve the proposition now in question. Even, however, if homicide, caused by the mere act of rape, be murder, as probably it might be, it could only be so, it is conceived, on the ground of the act having been committed with such violence

and brutality, having regard to the age of the female, or the number of men committing the act, or other circumstances, as showed that malign mind, that recklessness of life, which is essential, it is conceived, to constitute the crime of murder in the absence of any particular or actual intent to kill, and that death caused accidentally, in the ordinary act of rape, would not be murder. Even if it were, however, it is manifest that such a case very widely differs from the present, as there would be a direct act of felonious violence to the person of the deceased; whereas, in such a case as the present, the possibility of injury to any human being never occurred to the prisoner's mind. The case might be different if the barn or out-house had been parcel of a dwelling-house, or adjoining thereto (Hale, 1, 567), provided it were near enough for flames to catch, for that would be arson at common law; but there was no evidence that such was the case in the present instance; and the extension of the doctrine of constructive murder to statutable felonies would be still more questionable than its application to a common-law felony, only remotely likely to affect human life. The tendency of modern decisions is, rather to narrow than extend the doctrine of constructive murder. And hence, in a recent case, it was laid down that, to make one burglar guilty of a murder committed by the hand of another he not being himself present at the very act-it must appear

not be satisfied that the deceased was in the barn or inclosure at the time the prisoner set fire to the stack, but came in afterwards, then, as his own act intervened between the death and the act of the prisoner, his death could not be the natural result of the prisoner's act (a). And in that view he ought to be acquitted on the present charge.

that both went with a common design to use violence, and with weapons for that purpose; Reg. v. Franz, Vol. II., p. 580. Moreover, it is a general principle, that a man is not liable, even civiliter, except for the natural and probable consequences of his tortious act; and what is a natural and probable result depends on the nature of the act, and not upon its being felonious, and is what would have appeared to the prisoner its natural and probable result. These observations are submitted with the more confidence, because the learned Judge evidently deemed the law. laid down as unreasonable (and that which to a lawyer is unreasonable may be supposed not to be good law); and, if the prisoner had been convicted, would doubtless have reserved the point.

(a) Quare, whether this undoubted principle does not go much further in such a case, and exclude the idea of murder, even though the deceased were there at the time? Is not the natural and probable result such as to the prisoner must appear to be so?

This distinction had been already

Verdict, not guilty (b).

applied to the statutable felony of firing a house, a person being within the house at the time (vide Reg. v. Fletcher, 2 C. & K. 215); but quare, whether it applies to the common-law felony of murder by means of arson? It seems that the question is what the prisoner must have contemplated, or must be presumed to have intended, from what he knew or supposed to be the fact, whether it were so or not.

(b) In sentencing the prisoner for the arson, the learned Judge said he should make no difference in the sentence on account of the death of which his act had been unhappily, though unintentionally, the cause. This and the remarks of the learned Judge as to the apparent unreasonableness of the law as laid down would appear to imply that he thought there was no real or moral guilt of murder. And this, it is conceived, supports the argument submitted to show that the law so laid down is wrong, and that there cannot be the legal crime of murder where there is not the moral guilt of the crime. See per POLLOCK, C. B., Midland Circuit Cases, post.

1862.

REGINA

V.

HORSEY.

1862.

Kent Summer

Assizes.

parian pro

Coram Martin, B.

LORD NORBURY v. KITCHIN.

Where one ri- DECLARATION, in divers counts, that the plaintiff was entitled to the flow of a certain watercourse, and that the defendant had diverted, stopped and fouled it.

prietor had by

means of a
waterwheel
raised and di-
verted from

the premises of
another pro-
prietor, about
1-40th part of
the volume of
a stream:-
Held, that it
was for the
jury whether
he had thereby
inflicted on the
other any
sensible or ma-
terial injury.

Pleas (inter alia): 1. Not guilty.

2. That the plaintiff was not entitled to the flow of the stream as alleged.

3, 4. Justifications, under alleged prescriptive rights, in the defendant to use the water for agricultural, culinary, domestic and other necessary purposes, and also to divert it, and cleanse and scour it. Issue, and new assignment. Bovill, Lush and Honyman for the plaintiff.

ant.

Shee, Serjt., Hawkins and J. P. Murphy for the defend

The stream in question was a natural stream, which rose on a farm of the defendant, adjoining the park of the plaintiff. From the farm it flowed down into the park, through a pond on the farm, just outside the park, called Cutmill Pond. Here, in 1858, the defendant had erected waterwheels and machinery, the effect of which was to pump up the water in the pond about 150 feet above its level, and then divert it by a pipe into a supply tank, and thence to an artificial pond or lake on another property of the defendant's called Dunsdale, also adjoining the park. From Cutmill Pond the natural stream ran through the park to and through several ornamental ponds or lakes therein, and to the earl's mansion, and the effect of the defendant's works had been, as was alleged, to lessen the flow of water thereto. Between the park and the Dunsdale property there is a ridge of land about 160 feet above the level of Cutmill Pond, so that but for artificial works the water could not be brought to Dunsdale. The wheel was between Cutmill Pond and the park, just inside the defendant's farm, so as to intercept the stream as it ran

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