His Honour Judge Lobingier gave his decision in the United States Court in respect of Jack Welch, the sailor who was convicted of involuntary manslaughter for shooting a Chinese girl. His Honour found that there was no ground for reducing the sentence of two years imprisonment passed, but allows it to date from the day of actual arrest and also permits certain concessions in respect of the fine. In giving judgement his Honour said:—
On November 12, 1920, the defendant in this cause was found guilty of involuntary manslaughter and sentenced to imprisonment for two years with a fine of $500. The information charged murder, but at the close of the evidence the District Attorney conceded that the averment of "malice aforethought" had not been proved. He did not, however, offer or ask to amend the information and to the end of the trial, he urged the maximum imprisonment of three years. The cause now comes before us on a motion for a new trial.
The affair occurred in Shanghai on the morning of November 7, at a Chinese brothel of which the victim was one of the inmates. The accused states that the deceased playfully seized hold of his clothing and that he, "just for fun," drew from beneath the pillow of the bed which he had occupied during the night a pistol which he had carried with him since leaving his ship the night before and which he had loaded on coming ashore, pointed it at the girl and pulled the trigger. The shot took effect and the victim died shortly afterward. Defendant was convicted under the following provision "Manslaughter is the unlawful killing of a human being without malice. It is of two kinds:
(1): Voluntary—Upor @ sudden quarrel_or heat. of passion, (2): Involuntary—In the commission unlawful act not amounting to felony, or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection, We found from defendant's own testimony (which we were obliged to accept because no other eye witness of the affair survived) all of the elements of involuntary manslaughter mentioned in the above paragraph. He was engaged in "an unlawful act" before he even pulled the trigger. The Municipal Regulations prohibit carrying firearms without a licence, which, it is admitted, the accused made no effort to procure. It is no answer to say that he was not aware of the regulation. Zgorantia legis haud excusat is a maxim as time-honoured as it is wise.
Again he was committing "an unlawful act" in merely pointing the weapon at his victim. It was loaded but the Court of Ay-peals has held that pointing an unloaded pistol at another constitutes an assault.
Wuar Does "AccipentaL" Muay?
That the oecused was thus engaged "in the commission of (more than one) unlawful act" was in itself sufficient to constitute involuntary manslaughter. But it is likewise clear from his own statements that he acted "without due caution and circumspection." For, though told the police inspector that the affair was accidental, his testimony shows that every step taken by him therein was voluntary and intentional.. He designedly took the pistol with him when he left the ship, carefully inserted two cartridges between his first and second visit to the brothel, intentionally withdrew it from beneath the pillow where he had left it the night before, consciously pointed it at his victim and voluntarily pulled the trigger. In no proper sense can this crime be called an "accident." Indeed the sole circumstance which enables it to be classified as "in voluntary" is defendant's claim that he had forgotten his insertion of the cartridges. But as that occurred only about seven hours before the shooting, it would be idle to say that he was acting with "due caution and circumspection."" Authorities are abundant to the effect that the infliction of death under circumstances even less culpable than these constitutes manslaughter.
Apequate Punisnment Necessary.
The commission of the crime being thus clearly established there
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