man intends the probable consequences of his act; 1 R. C. C. Cr. 91; and if by an act any one is killed, it is culpable homicide: thus, going deliberately with a horse used to strike, or discharging a gun among a number of people; 1 Hawk. c. 29, s. 12; and he is ordinarily held to know the probable consequences of his act : thus, where a person takes up a heavy log of wood and strikes another with it on a vital part with such force as to cause his death almost instantaneously, the act must be held to have been done with the knowledge that it was likely to cause death; Reg. v. Rajoo Ghose, 7 W. R. Cr. 106.

Explanation 1 to Sect. 299 is in accordance with English law, but it must be read with Illustration (b) to Sect. 300, which alters that law as laid down in 1 Hale, 428, that if a man have a disease, which in all likelihood would terminate his life in a short time, and another give him a blow or a wound, or hurt, which hastens his death, this is such a killing as would constitute culpable homicide. And the alteration is this, that the slayer must know of the disease which renders the blow or wound fatal, and must also know that, under the circumstances, such a blow, &c., as he gave was likely to prove fatal; 1 R. C. C. Cr. 77. The second explanation affirms the decision in the case of Reg. v. Holland, 2 M. and Rob. 351; see also 3 Mor. Dig. 127, s. 174, that if a man be wounded, and the wound turn to a gangrene or fever for want of proper application, or from neglect, and the man die of the gangrene or the fever, or if it become fatal from the refusal of the party to submit to a surgical operation, this is also such a killing as would constitute culpable homicide; 1 Hale, 428; or if the wound render necessary a surgical operation, such as an amputation; R. v. Suntoo, 3 M. Dig. 127, s. 174; for when a wound is given, which, in the opinion of competent medical advisers,' is dangerous, and the treatment which they bonâ fide adopt is the immediate cause of death, the party who inflicted the wound is criminally responsible; Reg. v. Pym, 1 Cox C. C. 339. Secus, it the death of the party were caused by improper applications to the wound, and not by the wound itself; Hale, 428. If the death happened through improper applications, or culpable negligence in the attendants, if they were hired for the purpose of taking care of the patient, it would also be culpable homicide in them.

The third explanation of Sect. 299 alters the English law; doubtless to do away with the great difficulty there has always been to prove that the child killed had an existence independent of that of its mother. The words, however, of the section are ambiguous. They simply say that the causing of death may amount to culpable homicide, but ther. no provision is made for the circumstances under which it is homicide. A part of the child must have been brought forth, which must mean exposed beyond the external portion of the vagina; therefore the operation of craniotomy, which would ordinarily be performed before any part of the child had been expelled, would not be culpable homicide. But suppose a foot or a leg had been exposed and drawn up again, as is recorded to have been the case when Rachel brought forth Esau and Jacob, and then from some circumstance or another, craniotomy, or a similar operation resulting in the death of the child, should become necessary. Under the strict words of this clause such an act would constitute culpable homicide, and would not come under any of the general exceptions contained in Sects. 87-92, but for the provisions of Sect. 315, post, p. 321.

We next have to consider how culpable homicide may be committed by omission. The omission must be illegal, i.e., it must be an omission which is punishable under the Penal Code, or an omission which is prohibited by law, or an omission which furnishes ground for a civil action, Sect. 43, or the wilful omission of a duty cast upon a person by the law; Reg. v. Shepherd, 31 L. J. N. S. M. C. 102. If the omission be with the intention to cause death, there is not the slightest doubt that if death be caused by the omission, the offence will be culpable homicide amounting to murder. If the omission be not with the deliberate intention of causing death, then the defendant must know that he is likely to cause death by such omission. There is no authoritative definition of what constitutes knowledge, but in Sect. 26, ante, p. 30, it is thus enacted: "A person is said to have reason to believe' a thing, if he has sufficient cause to believe that thing, but not otherwise" so a man may be said to know, if he has sufficient grounds from which a person of ordinary intelligence and skill might draw an inference which would constitute knowledge. Thus, an enginedriver on a railway seeing a danger-signal must be held to know

that there is danger, and to take the risk of any danger there may be if he disregards it. So, if it be the duty of an engine-driver to look out for a signal which will warn him of danger, if there be any, he must be held responsible for all the consequences of his omission if he neglects to look out for the signal. But the omission must be one of an absolute duty, as in the case of Reg. v. Hughes, 26 L. J. N. S. M. C. 202, where it was the duty of a banksman to place a stage on the mouth of the shaft of a coal-pit to receive a loaded truck run down to it on a tramway; but he neglected to place the stage, whereby the truck fell down the shaft and killed a workman who was at the bottom. In this case Lord Campbell, C.J., said:" The death of the deceased was the direct consequence of the omission of the prisoner to perform his duty. If the prisoner, of malice aforethought, and with the premeditated design of causing the death of the deceased, had omitted to place the stage on the mouth of the shaft, and the death of the deceased had thereby been caused, the prisoner would have been guilty of murder. According to the common-law form of an indictment for murder by reason of the omission of a duty, it was necessary that the indictment should allege that it was the duty of the prisoner to do the act, or to state facts from which the jury might infer that it was his duty. But it has never been doubted that if death is the direct consequence of the malicious omission of the performance of a duty (as of a mother to nourish her infant) this is a case of murder. If the omission was not malicious, and arose from negligence only, it is a case of manslaughter." Lord Coleridge, C.J., in Reg. v. Downes, 1 Q. B. D. 25, says :"To cause death by culpable neglect is manslaughter." A, B and C went into a field in proximity to roads and houses, taking with them a rifle, which would be deadly at a mile, for the purpose of practising firing with it. B placed a board which was handed to him by A, in the presence of C, in a tree in the field as a target. All three fired shots at the target so placed from a distance of 100 yards, but no precautions were taken to prevent danger from such firing. A shot fired by one of the three, but by which was not proved, killed a boy in a garden 393 yards from the firing point. It was held that all had been guilty of a breach of duty in

firing at the spot in question without taking proper precautions to prevent injury to others, and were rightly convicted of manslaughter; Reg. v. Salmon, 6 Q.B.D. 79. This last case would in India have probably been held to fall under Sect. 304A, and so would many other cases of negligent omission. If the charge be of culpable homicide through neglect to provide food to a child, the prosecution must show that it was the defendant's duty to supply food, and also that the child was of such tender years that it could not provide food for itself; R. v. Friend, R. and R. 20; Reg. v. Marriot, 8 C. and P. 425; and also that the defendant was in the possession of means to provide the food; Reg. v. Chandler, Dears. C.C. 453. The same principles apply in the case of a charge against a woman arising from the death of her daughter in consequence of her not having provided a midwife for her in childbirth; Reg. v. Shepherd, 31 L. J. N. S. M. C. 102.

It must also be shown that the neglect or omission had the effect of shortening life; per Lord Coleridge, C.J., in Reg. v. Morby, 8 Q.B.D. 571.

To sum up, in cases of omission or non-feasance it is necessary to prove the duty lying on the accused, his neglect to perform it, and that such neglect was the direct cause of death or of shortening life.

Killing while doing some other Act.-Under the English law, the quality of this act differs under different circumstances. If a man shoot at another's poultry, with intent to steal them, and by accident kill a man, it is murder; if without such an intent, it is manslaughter; the act of shooting at the poultry being unlawful but not felonious; Fost. 258. If a man fired at his own poultry, and killed a man, it would be misadventure only, unless it were in a place where persons were likely to pass, when it would be manslaughter; R. v. Burton, 1 Str. 481. The third illustration (c)appended to Sect. 299, ante, p. 286, however, does away with this distinction, and provides that in such cases the slayer has committed no offence in respect of the homicide. Of course, if the fowl were in a place where the act of firing at it was likely to cause death, from the number of persons living or passing in the neighbourhood, that fact would render the slayer guilty of culpable homicide, or of an offence under Sect. 304A.

To constitute culpable homicide, the killing must be by & person of sound memory and discretion. It caunot be done by a child under seven years of age; Sect. 82, p. 65. Nor is it an offence if done by a child above seven years of age and under twelve, unless he has attained sufficient maturity of understanding to judge of the nature and consequences of his act; Sect. 83, p. 65; nor by Sect. 84, if the person committing the homicide is insane. As to the effect of drunkenness, see Sects. 85 and 86, ante, p. 73.

Murder. Under the English law murder is killing with malice aforethought. Malice is either express or implied. Express implied. malice is the positive possession of the intention referred to in the first three clauses of Sect. 300, ante, p. 287; implied malice is either the possession of a general intention of such a nature implied from the acts of the accused, or the wanton running of the risk mentioned in the fourth clause of the same section. Express malice is shown by lying in wait, antecedent menaces, former grudges, and concerted schemes, to do the deceased some bodily harm; 1 Hale, 451. So, if a man resolve to kill the next person he meets, and do kill him, it is murder, although he knew him not, for it is universal malice; 4 Bl. Com. 200.

wilfully poisons another, in such a deliberate act the law presumes malice, although no particular enmity be proved; 1 Hale, 455. Under the Penal Code the acts which constitute murder are more particularly described as-1, doing an act with the intention thereby of causing death; 2, doing an act with the intention of causing such bodily injury as the offender knows is likely to cause death; 3, doing an act with intention of causing some bodily injury, which injury is sufficient, in the ordinary course of nature, to cause death; 4, doing an act without sufficient excuse, knowing that the act was so eminently dangerous, that it must in all probability cause death, or such bodily injury as was likely to cause death. Under this last cause will fall such acts, as going deliberately with a horse used to strike, or discharging a gun among a multitude of people; 1 Hawk. c. 29, s. 12. To bring a case under this clause, it must be shown distinctly that the accused at the time of committing the act charged knew that in all probability it would be likely to cause death, or that it