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This was unusual. One of the witnesses being near the engine saw the engineer sitting in a chair reading. He observed to him that the boat was running more rapidly than usual. No reply was made. On the trip up the river, stopped frequently. About one hundred and fifty yards below the place of explosion the boat rounded to the shore, where it remained about five minutes; the steam was not worked off at that place, nor was it permitted to escape. At Litton's wharf the boat remained about five minutes; no steam was let off. The boat on landing, it is said by one of the witnesses, ran on the ground, which caused her to careen, the side of the boat aground being higher than the other side. This necessarily threw the water in the boilers to the lower side. The fires were continued. No steam escaped, and when the wheel made a few strokes of backwater which drew the boat from the ground, it assumed a level position and the explosion instantly took place. Several of the witnesses said the explosion occurred because there was not a sufficient quantity of water in the boilers When the boilers have their full complement of water a boiler very rarely, it is supposed, bursts. But when there is a deficiency of water and the vessel is careened, the upper side of the boiler must soon become heated to the utmost extent, and when water is suddenly thrown against the red heat of the boiler, as it must be when the vessel is afloat, there is great danger of an explosion, as the water, in coming in contact with the red heat of the boiler, is immediately converted into gas and an explosion generally follows.

"Now, gentlemen, it is for you to say whether the engineer was not bound to ascertain the quantity of water in the boilers; and especially whether it was not his duty to let off the steam, whenever the boat lands or stops, and especially when the steam is high. If in this respect, or in any other, the engineer was guilty of negligence, your verdict will be guilty. It is true the punishment of the engineer, if guilty, will not restore the dead, or mitigate the sufferings of the wounded. But the example will be salutary to prevent like occurrences in future. This is one of the great objects of punishment.

"I am disposed to think that very few persons consider the dangers of steamboat traveling. Every passenger sleeps and treads upon a fiery volcano, governed by the fixed laws of the most dangerous and powerful agent in nature. And if he under whose superintendence this fiery agent shall be placed, is ignorant of its laws, or does not strictly attend to them, an explosion is certain and a destruction of life more than probable. Custom often familiarizes us with dangers, until they are but little regarded. But when the agent is charged and restrained beyond the point of endurance its bonds are broken and destruction follows.

"It is your province, gentlemen of the jury, to weigh the evidence and decide on the probabilities of guilt. Guilt in such cases as this, is seldom susceptible of clear demonstration. We have to act on the highest degree of moral certainty. If you are satisfied in such a view, of the guilt of the defendant, you will so find; but if your minds are not led to this result, you will find the defendant not guilty."

After being out a considerable time, the jury returned a verdict of not guilty.

§ 152. Civil Wrong - Result of Act not Per se a Crime-Negligence— Accident. In R. v. Franklin,1 recently decided in England, it was laid down

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1 15 Cox, 163 (1882).

that the mere fact of a civil wrong committed by one person against another ought not to be used as an incident which is a necessary step in a criminal case, apart from the question of criminal negligence. In this case Charles Harris Franklin was indicted before FIELD, J., at Lewis, for the manslaughter of Craven Patrick Trenchard.

The facts were as follows:—

On the morning of the 25th day of July, 1882, the deceased was bathing in the sea from the west pier at Brighton, and swimming in the deep water around it. The prisoner took up a good sized box from the refreshment stall on the pier and wantonly threw it into the sea. Unfortunately the box struck the deceased C. P. Trenchard, who was at that moment swimming underneath, and so caused his death.

Gore, for the prosecution, urged that it would, apart from the question of negligence, be sufficient to constitute the offense of manslaughter, that the act done by the prisoner was an unlawful act, which the facts clearly showed it to be, and cited the case of Rex v. Fenton. This case is referred to in 1 Russell on Crimes: "If death ensues in consequence of a wrongful act, which the party who commits it can neither justify nor excuse, it is manslaughter. An indictment charged that there was a scaffolding in a certain coal mine, and that the prisoners, by throwing large stones down the mine, broke the scaffolding, and that in consequence of the scaffolding being so broken, a corf in which the deceased was descending the mine struck against a beam on which the scaffolding had been supported, and by such striking the corf was overturned, and the deceased precipitated into the mine and killed. Tindal, C. J., said: 'If death ensues as the consequence of a wrongful act, which the party who commits it can neither justify nor excuse, it is not accidental death, but manslaughter. If the wrongful act was done under circumstances which show an intent to kill or do any serious injury in the particular case or any general malice, the offense becomes that of murder. In the present instance the act was one of mere wantonness and sport, but still the act was wrongful, it was a trespass. The only question, therefore, is, whether the death of the party is to be fairly and reasonably considered as a consequence of such wrongful act. If it followed from such wrongful act, as an effect from a cause, the offense is manslaughter; if it is altogether unconnected with it, it is accidental death.'"

FIELD, J. This is a question of great importance, for if I must follow the ruling of the very learned judge in Regina v. Fenton,3 it will be unnecessary to go into the question whether the prisoner was guilty of negligence. I will consult my brother MATTHEW upon the point.

FIELD, J., after a short interval, returned into court and said: I am of opinion that the case must go to the jury upon the broad ground of negligence and not upon the narrow ground prepared by the learned counsel, because it seems to me, and I may say in this view my brother MATTHEW agrees, that the mere fact of a civil wrong committed by one person against another ought not to be used as an incident which is a necessary step in a criminal case. I have a great abhorrence of constructive crime. We do not think that the case cited by the counsel for the prosecution is binding upon us in the facts of this case, and, therefore, the civil wrong against the refreshment-stall keeper is immature to this charge of manslaughter. I do not think that the facts of this case bring it

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clearly within the principle laid down by Tindal, C. J., în Regina v. Fenton. If I thought this case was in principle like that case I would, if requested, state a case for the opinion of the Court of Criminal Appeal. But I do not think so. It was not disputed that the prisoner threw the box over the pier, that the box fell upon the boy, and the death of the boy was caused by the box falling upon him.

Gill, for the prisoner, relied upon the point that there was not proved such negligence as was criminal negligence on the part of the prisoner.

FIELD, J., in summing up the case to the jury, went carefully through the evidence pointing out how the facts as admitted and proved affected the prisoner upon the legal question as he had explained it to them.

The jury returned a verdict of manslaughter. The prisoner was sentenced to two months' imprisonment.

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§ 153. Person not Liable for all Consequences of Wrongful Act. -In People v. Rockwell,1 it was held that there can be no conviction of homicide on evidence that the accused knocked the deceased down with his fist, and a horse jumped on him or kicked him, and thus killed him. CAMPBELL, C. J. "Respondent was convicted of manslaughter for killing one Wilber. The death occurred during a dispute concerning the possession of a horse. Rockwell was shown to have struck Wilber with his fist, and knocked him down. It was not shown, directly, how he was killed, but it appeared distinctly this blow did not kill him. The facts indicated either that Rockwell kicked him after he fell, or else that he was killed by the horse trampling on him. On a first trial, the jury disagreed. On a second trial, after being out some time, they came in and asked the court to instruct them, whether the respondent would be guilty if he knocked Wilber down, and the horse jumped on him, Wilber, or kicked him, and thus killed him.' To which inquiry the court, as the record shows, 'reiterated that portion of the charge before given, that he would be guilty.' The jury then found him guilty. The charge before given was unqualified that if the blow was not justifiable and Wilber so fell, that the horse jumped and struck Wilber and killed him with his feet, or kicking him, respondent was guilty. It is impossible to maintain such a charge, without making every one liable, not only for natural and probable consequences, but for all possible consequences and circumstances which immediately follow a wrongful act. There was no necessary connection between the act of respondent and the conduct of the horse, which he can not be said, from the record, to have been responsible for. And the case was not even put as permissive. The liability was laid down as positive. The conviction can not be maintained. And inasmuch as it is clear, from the record, that the jury would not have convicted except upon this instruction, we think the court below should be advised to stop the prosecution."

1 39 Mich. 503.

СНАРТER VII.

IGNORANCE AND MISTAKE OF LAW AND FACT.

MISTAKE OF LAW-FINDER-INTENT.

R. v. REED.

[1 C. & M. 306.]

Before Mr. Justice COLERIDGE (Taunton), 1842.

A Person Finding Property is not entitled to keep it, the owner being ascertained by him, and ignorance of this rule of law will not excuse. But where an ignorant person found a five pound note, and appropriated it, the court directed the jury to consider the state of the finder's mind, and if they thought she believed it to be hers by right of finding, she should be acquitted.

The prisoner, Elizabeth Reed, was indicted for stealing a five pound note, and her husband, John Reed, for receiving it. The daughter of the prisoners and another little girl, while walking in the street at Taunton, saw a small piece of paper lying on the ground, and the other girl directed the prisoner's daughter to pick it up, which she did, and gave it to her companion. It was a five pound note, and the prisoner's daughter, on returning home, told her mother of the circumstance, who thereupon went to the house where the other girl lived, and said to her: "Where is that note which our Mary picked up?" Upon its being given to her, she went away with it, and gave it to her husband, who converted it at once into money. When the note was missed, and inquiry was made for it, the prisoners both denied all knowledge of any of the above circumstances.

Greenwood, for the prisoners, submitted, that before criminal delinquency could be established against them, there must be a larceny, and every larceny must include a trespass; but there was no trespass here on the part of Elizabeth Reed. The old authorities in Hale and Hawkins are to the effect that, if a man lose goods and another find (465)

1 DEFENCES.

80

them, and, not knowing the owner, convert them to his own use, there is no larceny, even although he deny the finding of them or secrete them. The doctrine must be taken with limitation, no doubt; and the effect of the cases may be that no man shall excuse a finding before the thing is lost; therefore, if the property be not lost, he shall not excuse himself in his appropriation of it by saying he found it.1

The principle is the same which Lord Eldon held in Cartwright v. Green.2

COLERIDGE, J. I agree with the principle entirely. If the circumstances under which property is found be such that the ownership has been abandoned, the thing is bonum vacans, and anyone may take it; but if the ownership be not abandoned, the thing is not the property of the finder; if, in addition to this, the person who finds it shows no intention to find out the owner, or to return it, that person is guilty of larceny.

Greenwood, to the jury. Before these parties can be found guilty, you must be of opinion that Elizabeth Reed, at the time she received the note from the little girl, had the intention of retaining it, knowing that she had no right to it. If she thought that it belonged of right to her daughter, as having been the first to pick it up, and if she took possession of it under that impression, she would not be guilty of felony; or if she knew that she had no right to it, and no intention to keep it arose in her until she delivered it to her husband, then she is not guilty; for then the law will presume that she was acting under coercion, and in that case, the husband is guilty of stealing, and not of receiving, and the parties must be acquitted.

COLERIDGE, J. (in summing up). I am not sorry this case has come here, as it affords an opportunity of setting out the law on a subject of which many people are ignorant. A man who loses anything does not thereby lose his property in it, and the finder is bound to restore it to the owner, if possible; and if he keeps it when he thinks it is only lost by the owner, it is larceny in him. If the property be found when it is abandoned by the owner, it is his own who finds it. If the property be lost, but not abandoned, and if the finder find it with intent to restore it, but afterwards appropriates it, he does not commit larceny in the first instance. (His lordship then went into the facts of the case.)

Ignorance of the law can not excuse any person; but at the same time, when the question is, with what intent a person takes, we can not help looking into their state of mind; as, if a prisoner takes what he believes to be his own, it is impossible to say that he is guilty of felony. Elizabeth Reed might think she had a right to the note, in

1 See Merry v. Green, 7 M. & W. 623.

28 Ves. 435; 2 Leach, 952.

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