Verity, C.J. In these appeals from convictions for murder, the record discloses evidence, which the trial Judge believed, that the deceased person, being suspected of stealing a bag belonging to the first appellant, was taken to that appellant's house and there tied to a post, and that on the same evening and following morning he was subjected to ill-treatment including blows with fists and with sticks in which all the appellants took part, and to kicks inflicted upon him by the fourth appellant. After the assaults committed upon him, on the morning following his being tied up, he collapsed and died. The last assault before his death was committed by the fourth appellant who is alleged to have jumped upon him as he lay on the ground. The trial Judge concluded that his death was the result of this ill-treatment and we would not disturb this finding. The evidence further supports the conclusion that the appellants acted in concert for the purpose of compelling the deceased to disclose the whereabouts of the missing bag and we are in agreement with the trial Judge that the acts of ill- treatment were unlawful acts for the consequences of which the appellants are jointly and severally responsible. There can be no doubt that the death was occasioned by the unlawful acts of the appellants, but we think the Judge erred in saying that in this case “the accused are guilty of murder or of nothing”, and in failing to direct his mind as to whether, apart from any question of provocation, the offence might, in all circumstances, be manslaughter.
Counsel for the Crown submitted that the case falls within section 316 (3) of the Criminal Code but we do not think this submission is well founded for although the appellants undoubtedly acted in pursuance of an unlawful purpose and their acts were in themselves unlawful, it cannot be said, taking the evidence as a whole, that the acts themselves were of a nature likely to endanger life, even though in*Page 520fact their cumulative effect caused death. It does not appear, moreover, that there was an intent to kill the deceased or to cause him grievous harm.
On the whole therefore, we have come to the conclusion that in the particular circumstances of this case the facts do not constitute murder within the provisions of section 316 of the Criminal Code. It was nevertheless an unlawful killing, and by virtue of section 317 of the Code unlawful killing in circumstances which do not constitute murder is manslaughter.
We therefore set aside the verdicts of murder and sentence of death and substitute therefor in regard to each appellant a verdict that he is guilty of man- slaughter and impose in the case of each appellant a sentence of seven years' imprisonment with hard labour. Although the fourth appellant was the last to desist from his assaults we have borne in mind the fact that he is blind and may not, therefore, have appreciated as readily as did the others the condition to which their brutal treatment had reduced the deceased.
Appeals allowed and convictions for manslaughter substituted.