were directed by Bright Harris, who had occasion to leave home to "empty up" the wheat. They were at the house of Andrew Harris in the evening between eight and nine o'clock, and the prisoner got a case knife, and said he would cut the strings of the bags if the other men would empty up the wheat.

Thereupon a playful altercation arose as to which of them should play the boss, while the other did the work.

Andrew Harris got the pistol of Bright Harris, which was under the pillow of the bed, and flourished it about for several minutes. Then he surrendered it to the prisoner, who said he would be boss, but the pistol was put back under the pillow.

Then the other three negroes took the prisoner and held him down in play, while Andrew Harris spanked him with a little piece of plank. The prisoner complained that the deceased hurt his mouth, and was then allowed to get up.

He went to the bed, took the pistol and came with it first to Andrew, and asked him what he had hit him for. Upon his reply that he had not hit him, he went to George and asked the same question, receiving the same reply. He then went to the deceased, with the same question, who returned the like answer, to which the defendant replied, yes, you did, and I am going to shoot you, pulled the trigger and the pistol went off, the ball passing into the head of the deceased over the eye, and causing his death about daylight the next morning.

All the witnesses agree in saying that during the scene Betsey, the wife of Andrew, had told the others not to be afraid, that the pistol was not loaded.

They further agree that they were all in fun, and Betsey, in her testimony, says she thought so, until the shot was fired. George's testimony is similar in effect, for he states nothing to indicate the contrary.

Andrew and his wife both say that when the defendant complained that the deceased hurt his mouth, it was with an oath, and Andrew adds, that he did not think the defendant was mad until he saw that.

Upon this state of facts, taking the testimony of the only three witnesses present, and duly weighing it, the conclusion would be irresistible that no crime at all was committed.

The witnesses concede that the prisoner knew who struck him, when he was down, and there is nothing to indicate that the prisoner was hurt by the deceased, or that the complaint about his mouth was anything more than a ruse to obtain his release. The use of the pistol was a repetition of the previous play, and pulling the trigger a part of the pantomime, brought about by the assurance of Betsey that the pistol was not loaded.

But Andrew says, that after his wife told the defendant that the pistol was not loaded, the defendant took it to the light on the mantelpiece to examine it, and said, "Yes, by God, there is one load in it."

George deposes to the same fact, except that there was one light in the room, and that it was held by Betsey. Betsey herself says she held no light in her hand, nor does she testify to the fact stated by the other witnesses, that defendant held the pistol to the light and said that there was one ball in it. The defendant and the deceased lived together, and there is no evidence of any enmity between them.

Under these circumstances, it is not absolutely certain that the incident, thus differently deposed to by two of the witnesses and not seen or heard by the other, ever took place; and even if it did, it may have been merely a part of defendant's acting. When the wife said, "Don't be afraid, the pistol is not loaded," the defendant may have held the pistol toward his eyes and remarked, not as a fact which he thus ascertained, but to make pretense, there is one load in it.

A conviction for voluntary manslaughter has been held bad by this court, where the facts set out in the bill of exceptions left it doubtful whether the act from which the death resulted was accidental or designed.1

The court charged the jury: "If you find the prisoner and deceased, with others, were engaged in a frolic, and were using the pistol in their sport, and that they all believed the pistol was empty, and if the prisoner honestly so believed, and merely in sport presented the pistol, and it went off without negligence on his part, and no wrong and no harm was intended by the prisoner; if you find this to be true, then the defendant should be acquitted, if you find that the prisoner was guilty of no negligence in using the pistol; but if negligence existed, you should not acquit."

Again he says: "If you find from the testimony, that the prisoner and the deceased were in the same room together, and that the prisoner had a pistol which he did not know or believe was loaded, but was in fact loaded, and presented the pistol at the deceased, the deceased not knowing the pistol was empty, in a threatening and negligent and careless manner, and indicating by words and by his manner, that he was intending to shoot him, and did, in fact, fire it, and kill the deceased, it would not be a chance medley or homicide by misadventure, but would be a case of voluntary or involuntary manslaughter. For a negligent and careless use of a pistol, if proven, would be unlawful, or an unlawful act."

Again he says: "If you find from the testimony, that the prisoner took the pistol, believing it was empty, and presented it at the deceased,

1 Anderson v. State, 3 Heisk. 86.

near to the deceased, who did not know it was loaded, in a threatening manner, and in a careless and negligent manner, and indicating by words and acts, at the time, that he intended to kill the deceased, and did, in fact, fire it and kill him, without intending to do so, then in such event, the prisoner would be guilty of involuntary manslaughter. Such a use of a loaded pistol, if proven, would be an unlawful act, whether the prisoner knew or believed it to be loaded or not."

The statute defines involuntary manslaughter to be the unlawful killing of another, without malice, in the commission of an unlawful act.1 And the burden of the charge is, that the negligent use of a loaded pistol by a person who believed it to be empty, and without any intent to do harm, would be an unlawful act, and thereby turn an accident into a crime.

In this there was no error. Negligence in the performance of a lawful act, and a fortiori, negligence in sport may, indeed, make the act unlawful, if the person see danger probably arising therefrom to others and yet persists.2 But the careless use of a dangerous article or instrument in ignorance, or with a laudable purpose is not necessarily unlawful.3 Mere negligence, not only with no intent to do harm, but under the belief that no harm was possible, is clearly wanting in every essential element of crime.

The judgment must be reversed, and the cause remanded for a new trial.

It is proper to add in justice to the learned circuit judge whose instructions were probably based on that idea, that if the act of the prisoner had been done under such circumstances as to have amounted to an assault on the deceased, then it would have been an unlawful act and rendered him guilty of manslaughter.

Thus if the defendant had in a threatening manner and intending to frighten the deceased, presented a pistol, purporting to be loaded, at him, the latter not knowing or believing it to be empty, it would have been an assault, and this perhaps, even if the prisoner supposed that the pistol was unloaded.4

It would be otherwise if the act was without any real intention to frighten, both parties knowing it to be in fun and believing the pistol to be unloaded.

1 Code, sec. 4603.

2 See Lee v. State, 1 Cod. 62.

3 Ann v. State, 11 Humph. 159.

4 State v. Smith, 2 Humph. 457.

ACCIDENT-NEGLIGENCE-SHOOTING AT ESCAPING PRISONER.

STATE V. OBERSHAW.

[11 Mo. (App.) 85.]

In the St. Louis (Mo.) Court of Appeals, 1881.

1. Under an Indictment charging the defendant with culpable negligence in wounding another, when the evidence shows that the defendant, an officer, shot the prosecuting witness, mistaking him for an escaped prisoner, an instruction that the defendant is guilty if he shot at and wounded one other than the escaped criminal, is erroneous. 2. In such a Case Negligence is of the gist of the action, and in the absence of recklessness or of want of that caution appropriate to determining the identity of the fugitive, there is no criminal liability.

APPEAL from the St. Louis Criminal Court.

Johnson, Lodge & Johnson for the appellant.

J. R. Harris, prosecuting attorney, and W. H. H. Russell, of counsel for the respondent.

LEWIS, P. J., delivered the opinion of the court.

The defendant was convicted under section 1264 of the Revised Statutes, of maiming, wounding and disfiguring one Frank Dimitry, by the act, procurement and culpable negligence of the defendant.

The testimony tended to show that the defendant was a constable, and had arrested one Hoelscher under a warrant for grand larceny. Hoelscher escaped, about midnight, from the custody of the defendant, who started at once in pursuit, with two companions, one of whom acted as guide to the neighborhood whither, it was supposed, the fugitive's flight would be directed. It was about four or half-past four o'clock of a February morning when the pursuers saw Dimitry approaching at the distance of fifty yards, and all of them believed from his general appearance in the uncertain light that he was the man they were looking for. The defendant called to him to halt, but Dimitry immediately turned into a gateway and quickened his pace in a new direction. The defendant demanded a halt two or three times, and, not being obeyed, fired the contents of a shot-gun which struck Dimitry near the knee, inflicting injuries which afterwards necessitated amputation. The defendant was greatly concerned about his mistake, did all he could to alleviate the wounded man's condition, started to procure a surgeon, and declared himself willing to pay all expenses that might result from the mishap.

The theory upon which the defendant was convicted sufficiently appears from one of the instructions given by the court, as follows: "An officer of the law, such as the defendant is shown to have been, from whom one charged with a felony escapes, may lawfully pursue and re

take the fugitive, and to effect his recapture the officer may follow him beyond the limits of the township for which he is an officer; and if no other means are adequate, he may lawfully use his weapon on him. But in all such cases the officer shoots at his peril, and if he shoot unnecessarily, or shoot at one not the fugitive and kill or wound him, the law does not excuse his mistake or justify the act."

This instruction would, perhaps, be unexceptionable in a civil suit for damages. But in a criminal prosecution, where intent is always of the very essence of possible guilt, it is open to serious objections. There is a startling incongruity in the proposition, that a man may lawfully do a thing, and may do it with the very best and purest intentions, and may yet be punished as a criminal for the act. There are many cases in which a man may be held liable in damages for the consequences of an act which was never forbidden by the law. An error in judgment or a mistake of fact may make him so responsible, even though he never had a thought of doing anything wrong. But in criminal law, even a homicide may be excusable, when the perpetrator is innocent of any wrongful intent, actual or implied.1

There are cases again in which mere recklessness is frowned upon by the law, equally with willfulness in wrong-doing. This is because a certain degree of caution, in the doing of lawful acts which may possibly lead to harm without it, is as much a civil duty as is the refraining from willful injury. A failure to observe such a proper caution is the very gist of the crime which the indictment in this case charges, and which the statute under which it is framed was designed to cover. Thus, an officer, under circumstances in which he may properly shoot at a criminal fugitive, may recklessly and without caring or attempting to inform himself of the identity of the person aimed at, commit a fatal mistake, which will bring him precisely within the law forbidding such culpable negligence. But if there be no recklessness and no failure of the caution duly appropriate to the determining of the identity of the fugitive, we are at a loss to perceive upon what principle it can be said, whatever may be the event, that the officer will have incurred a criminal liability. Under the present indictment, there can be no conviction, unless there was culpable negligence. Yet the instruction holds that conviction must result from a shooting of the wrong man, whether there was negligence or not. He may lawfully do the act-it may even clearly appear to be his bounden duty to do it and yet he must assume all the peril, and must be punished if injury result for an error that was neither reckless nor willful. In other words, the statutory crime will be complete, and the defendant must be found guilty of cul

State v. McDonald, 7 Mo. (App.) 510,