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87 U. Pa. L. Rev. 811 (1938-1939)
Unintentional Homicide in the Commission of and Unlawful Act

handle is hein.journals/pnlr87 and id is 831 raw text is: May, 1939 UNINTENTIONAL HOMICIDE IN THE COMMISSION OF AN UNLAWFUL ACT I. WILNER t HISTORICAL Bracton, while asserting that one who commits homicide by chance, as by misfortune, is not liable to punishment for homicide, very inter- estingly adds But here it is to be distinguished whether a person is employed upon a lawful or unlawful work, as if a person has projected a stone towards a place across which men are accustomed to pass, or whilst a person pursues a horse or an ox, and someone has been struck by the horse or the ox, and such like, this is imputed to his account. But if he was employed in a lawful work, as if a master is flogging his scholar for the sake of discipline, or if when a person was casting down hay from a cart . . . if he had taken as diligent care as he could, by looking out and by calling out . . . in suitable time and with a loud voice . . . blame is not imputable to him. 1 (Italics supplied.) Whether this passage actually represents the law as it existed in Bracton's time or not (significance can be attached to the fact that this concept of unlawful act is not noted at all by Glanville or Britton who wrote at approximately the same time as Bracton), it is quoted as the first clear statement on the subject to be found in English law. As it stands, this passage is already full of the uncertainties and doubts which have pervaded this subject for centuries since. Expressed in modem terms, this passage contains the proposition that an unintentional homi- cide can under no circumstances be held to be a case of misadventure unless it happened in the commission of a lawful act, while proper care to avoid injury was being taken by the defendant. It is to be noted that the standard of care required by Bracton is a subjective one. The de- fendant must have taken as diligent care as he could, not merely reason- able'care. Bracton does not specify the kind of unlawfulness which, if present, will cause the homicide to be imputed to his account, nor what the consequences of the guilt, if imputed, are. It is to be noted, however, that the examples mentioned by Bracton are distinguished by wilful action in the face of manifest danger to human safety. The meaning attached to unlawful act in the subsequent development of the law, therefore, becomes the subject of further inquiry. t B. A., I932, Clark University; LL. B., i935, LL. M., 1936, University of Pennsyl- vania; member of the Pennsylvania bar. i. DE LFGrmus, Liber III, 2d treatise, c. 4. (8ui)

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