Next, it happens when a person of such sound discretion unlawfully killeth. The unlawfulness arises from the killing without warrant or excuse: and there must also be an actual killing to constitute murder; for a bare assault, with intent to kill, is only a great misdemesnor, [196] though formerly it was held to be murder. (d) The killing may be by poisoning, striking, starving, drowning, and a thousand other forms of death, by which human nature may be overcome. And if a person 13 be indicted for one species of killing, as by poisoning, he cannot be convicted by evidence of a totally different species of death, as by shooting with a pistol, or starving. But where they only differ in circumstance, as if a wound be alleged to be given with a sword, and it proves to have arisen from a staff, an axe, or a hatchet, this difference is immaterial. (e) Of all species of deaths, the most detestable is that of poison; because it can of all others be the least prevented either by manhood or forethought. (ƒ) And therefore by the statute 22 Hen. VIII. c. 2. it was made treason, and a more grievous and lingering kind of death was inflicted on it than the common law allowed; namely, boiling to death : but this act did not live long, being repealed by 1 Edw. VI. c. 12. There was also, by the ancient common law, one species of killing held to be murder, which may be dubious at this day; as there hath not been an instance wherein it has been held to be murder for many ages past: (g) I mean by bearing false witness against another, with an express premeditated design to take away his life, so as the innocent person be condemned and executed. (h) The Gothic laws punished in this case, both the judge, the witnesses, and the prosecutor : " peculiari poena judicem puniunt; peculiari "testes, quorum fides judicem seduxit; peculiari denique et maxima auctorem, ut homicidam." (i) And, among the Romans, the lex Cornelia, de sicariis, punished the false witness with death, as being guilty of a species of assassination. (k) And there is no doubt but this is equal. [197] ly murder in foro conscientiae as killing with a sword; though the modern law (to avoid the danger of deterring witnesses from giving evidence upon capital prosecutions, if it must be at the peril of their own lives) has not yet punished it as such. If a man however does such an 14 e 3 Inst. 319. 2 Hal. P. C. 185. f 3 Inst. 48. d1 Hal. P. C. 425. g Fost. 132. In the case of Macdaniel and Berry, reported by sir Michael Foster, though the then attorney general declined to argue this point of law, I have good grounds to believe it was not from any apprehension of his that the point was not maintainable, but from other prudential reasons. Nothing therefore should be concluded from the waiving of that prosecution. (14) i Stiernh. de jure Goth. 1. S. c. S. h Mirror. c. 1. § 9. Britt. c. 52. Bract. l. 3. c. 4. b Ff. 48. 8. 1. those who are perfectly sane. Earl Ferrers' case, 10 Harg. St. Tr. 478. Where, however, the mind labours under such a delusion, that though it discerns some objects clearly, it is totally deranged as to the objects of its attack, the party will be entitled to an acquittal. See Erskine's Speeches, 5 vol. 1. Ridgway's ed. 1812. How far drunkenness excuses a crime, see ante, 25, 6. Chitty. (13) This extraordinary punishment seems to have been adopted by the legislature, from the peculiar circumstances of the crime which gave rise to it; for the preamble of the statute informs us, that John Roose, a cook, had been lately convicted of throwing poison into a large pot of broth, prepared for the bishop of Rochester's family, and for the poor of the parish; and the said John Roose was by a retrospective clause of the same statute ordered to be boiled to death. Lord Coke mentions several instances of persons suffering this horrid punishment. $ Inst. 48. Murder of malice prepense, was made high treason in Ireland, by 10 Hen. VII. c. 21. Irish Statutes. By the 43 Geo. III. c. 58. it is enacted, that if any person shall wilfully and maliciously administer to, or cause to be administered to, or taken by, any of his majesty's subjects any deadly poison with intent to murder, he, his counsellors, aiders, and abettors, shall be guilty of felony without benefit of clergy. So the attempt to murder by poison, which by the common law was only a misdemeanor, is now made a capital crime.-Christian's note. (14) The guilt of him who takes away the life of an innocent man by a false oath, is much more atrocious than that of an assassin, who murders by a dagger or by poison. He who destroys by perjury, adds to the privation of life public ignominy, the most excruciating of tortures act of which the probable consequence may be, and eventually is, death: such killing may be murder, although no stroke be struck by himself, and no killing may be primarily intended: as was the case of the unnatural son, who exposed his sick father to the air, against his will, by reason whereof he died; (7) of the harlot, who laid her child under leaves in an orchard, where a kite struck it and killed it; (m) and of the parish-officers, who shifted a child from parish to parish, till it died for want of care and sustenance. (n) 15 So too, if a man hath a beast that is used to do mischief; and he knowing it, suffers it to go abroad, and it kills a man: even this is manslaughter in the owner: but if he had purposely turned it loose, though barely to frighten people, and make what is called sport, it is with us (as in the Jewish law) as much murder, as if he had incited a bear or dog to worry them. (0) 16 If a physician or surgeon gives his patient a potion or plaister to cure him, which contrary to expectation kills him, this is neither murder, nor manslaughter, but misadventure; and he shall not be punished criminally, however liable he might formerly have been to a civil action for neglect or ignorance: (p) but it hath been holden, that if it be not a regular physician or surgeon, who administers the medicine or performs the operation, it is manslaughter at the least. (g) Yet sir Matthew Hale very justly questions the law of this determination. (r)" In order also to make the killing murder, it is requisite that the party die within a year and a day after the stroke received, or cause of death administered; in the computation of which, the whole day upon which the hurt was done shall be reckoned the first. (s) Farther; the person killed must be " a reasonable creature in being, and under the king's peace," at the time of the killing. Therefore to kill an alien, a Jew, or an outlaw, who are all under the king's peace and protection, is as much murder as to kill the most regular-born [198] Englishman; except he be an alien enemy in time of war. (1) To kill a child in its mother's womb, is now no murder, but a great misprision but if the child be born alive, and dieth by reason of the potion or bruises it received in the womb, it seems, by the better opinion, to 11 Hawk. P. C. 78. q Britt. c. 5. 4 Inst. 251. $1 Hawk. P. C. 79. n Palm. 545, See Book III. pag. 122. ri Hal. P. C 430. t S Inst. 50. 1 Hal. P. C. 433. to an honourable mind, and reduces an innocent family to ruin and infamy; but notwithstanding this is the most horrid of all crimes, yet there is no modern authority to induce us to think that it is murder by the law of England; lord Coke says expressly, "it is not holden for murder at this day." 3 Inst. 48. See also Fost. 132. Such a distinction in perjury would be more dangerous to society, and more repugnant to principles of sound policy, than in this instance the apparent want of severity in the law. Few honest witnesses would venture to give evidence against a prisoner tried for his life, if thereby they made themselves liable to be prosecuted as murderers-Christian's note. (15) Or if a master refuse his apprentice necessary food for sustenance, or treat him with such continued harshness and severity as his death is occasioned thereby, the law will imply malice, and the offence will be murder. Leach, 127. 2 Camp 650.; and see 1 Russ. 621. If a prisoner die by the cruelty or neglect of the gaoler, or, in legal language, by daress of imprisonment, the party actually offending is criminal in this degree. Fost. 321.; and see 2 Stra. 856. Raym. 1578. Fost. 322 Laying noisome and poisonous filth at a man's door, which kills him 2 Lord by corrupting the air which he breathes, will be inurder. (16) See 3 East, 595, 6 1 Hale, 432. (17) It is not murder to work on the imagination so that death ensues, or to call the feelings into so strong an exercise as to produce a fatal malady, though such acts, if not malicious, spring from a criminal thoughtlessness. Post, 204. 1 Hale, 429. If a wound itself be not mortal, but by improper applications becomes so and terminates fatally, and it can be clearly shewn that the medicine and not the wound was the cause of the death, the party who inflicted the wound will not be guilty of murder. 1 Hale, 428. But where the wound was adequate to produce death, it will not be an excuse to shew that, had proper cam been taken, a recovery might have been effected. 1 Hale, 428. Chitty be murder in such as administered or gave them. (u) 18 But, as there is one case where it is difficult to prove the child's being born alive, namely, in the case of the murder of bastard children by the unnatural mother, it is enacted by statute 21 Jac. I. c. 27. that if any woman be delivered of a child which if born alive should by law be a bastard; and endeavours privately to conceal its death, by burying the child or the like; the mother so offending shall suffer death as in the case of murder, unless she can prove by one witness at least that the child was actually born dead. This law, which savours pretty strongly of severity, in making the concealment of the death almost conclusive evidence of the child's being murdered by the mother, is nevertheless to be also met with in the cri minal codes of many other nations of Europe; as the Danes, the Swedes, and the French. (v But I apprehend it has of late years been usual with us in England, upon trials for this offence, to require some sort of presumptive evidence that the child was born alive, before the other constrained presumption (that the child whose death is concealed, was therefore killed by its parent) is admitted to convict the prisoner."9 20 Lastly, the killing must be committed with malice aforethought, to make it the crime of murder. This is the grand criterion which now distinguishes murder from other killing and this malice prepense, malitia praecogitata, is not so properly spite or malevolence to the deceased in particular, as any evil design in general: the dictate of a wicked, depraved, and malignant heart; (w) un disposition à faire un male chose; (x and it may be either express or implied in law. Express malice is when one, with a sedate deliberate mind and formed design, doth kill another which [199]. formed design is evidenced by external circumstances discovering that inward intention; as lying in wait, antecedent menaces, former grudges, and concerted schemes to do him some bodily harm. (y) This takes in the case of deliberate duelling, where both parties meet avowedly with an in. tent to murder: thinking it their duty as gentlemen, and claiming it as their right, to wanton with their own lives and those of their fellow-creatures; without any warrant or authority from any power either divine or human, but in direct contradiction to the laws both of God and man; and there. fore the law has justly fixed the crime and punishment of murder on them, and on their seconds also. (%) Yet it requires such a degree of passive w Foster, 256. u 3 Inst. 50. 1 Hawk. P. C. 80. but see 1 Hal. P. C. 433. z 1 Hawk. P. C. 82. (18) This law is now altered by the 48 Geo. III. c. 58 which makes it a capital felony to administer any poison or noxious thing with intent to cause the miscarriage of any woman quick with child. In a subsequent section it is provided, that where the woman is not proved to be quick with child, the offence is then a clergyable felony, punishable with fine and imprisonment, whipping, public or private, or transportation for not exceeding fourteen years. (19) By the 43 Geo. III. c. 58. this harsh statute 21 Jac. I. and the similar Irish act 6 Ann. which made it a capital crime to conceal the birth of a bastard child, are repealed, and it is enacted, that trials in England and Ireland of women charged with the murder of their bastard children, shall be conducted by the same rules of evidence, as other trials for murder. But if the prisoner is acquitted of the murder, the jury may find that she endeavoured to conceal the birth of her child, and for that offence the court may adjudge her to be imprisoned in the county gaol or house of correction for any time not exceeding two years. The power given to the jury by this last clause in the act, to find the defendant guilty of concealing, &c. applies not only to a case where she is indicted, but where she is tried on the inquisition of the coroner. 2 Leach, 1095. 3 Camp. 371. Russ. & R. C. C. 240. A woman may be found guilty of concealment within the act, though, from appearances it was probable the child was stillborn, and though the birth was probably known to an accomplice. Russ. & R. C. C. 336. Chitty. (20) See the legal signification of the term "malice," explained Gilb. L. & Evid. 190 to 195. Stark, on Evid. part IV. 909 to 904, and ante, 3 Book, 124 note valour to combat the dread of even undeserved contempt, arising from the false notions of honour so generally received in Europe, that the strongest probibitions and penalties of the law will never be entirely effectual to eradicate this unhappy custom; till a method be found out of compelling the original aggressor to make some other satisfaction to the affronted party, which the world shall esteem equally reputable, as that which is now given at the hazard of the life and fortune, as well of the person insulted, as of him who hath given the insult." Also, if even upon a sudden provocation one beats another in a cruel and unusual manner, so that he dies, though he did not intend his death, yet he is guilty of murder by express malice; that is, by an express evil design, the genuine sense of malitia. As when a park-keeper tied a boy, that was stealing wood, to a horse's tail, and dragged him along the park; when a master corrected his servant with an iron bar; and a schoolmaster stamped on his scholar's belly; so that each of the sufferers died: these were justly held to be murderers, because the correction being excessive, and such as could not proceed but from a bad $2 heart, it was equivalent to a deliberate act of slaughter. (a) Nei[200] ther shall he be guilty of a less crime, who kills another in conse quence of such a wilful act, as shews him to be an enemy to all mankind in general; as going deliberately, and with an intent to do mischief, (b) upon a horse used to strike, or coolly discharging a gun among a multitudė a 1 Hal. P. C. 454. 473, 474. b Lord Raym. 143. (21) See the law of duelling fully stated & East. Rep. 581 6 East, 464. 2 Bar. & Ald. 462. (22) Homicide may be and is often extenuated by the circumstances of a mutual contest arising from the spur of the occasion, where no undue advantage is either sought or taken by either of the parties. See 5 Burr. 2793 and cases cited 1 East. P. C. 241 to 246. And in this case, it is of no consequence from whom the first provocation arises. 1 Hale, 456. But if one with his sword drawn makes a pass at another whose sword is undrawn, and a combat ensues, if the former be killed, it will only be manslaughter in the latter; but if the latter fall, it will be murder in the former, for by making the pass before his adversary's sword was drawn, he evinced an intention not to fight with but to destroy him. Kel. 61. Hawk. c. 31. s. 55, 4. (a). And where a man upon occasion of some angry words, threw a bottle at the head of his opponent, and immediately drew, and when his adversary returned the bottle, stabbed him; this was holden to be murder in him, because he drew previous to the first aggression. Kel. 119. 2 Ld. Raym. 1489. So if two bailiffs arrest a man, and he abuse and threaten and strike them, and bring pistols, declaring that he will not be forced from his house, and on high words arising between them, and on the bailiffs being struck and provoked, they fall on him and kill him, they will be guilty of manslaughter only. 6 Hargr. St. Tr. 195. Fost. 292, 3, 4. And where, on an affray in a street, a soldier ran to the combatants, and in his way a woman struck him in the face with an iron patten and drew a great deal of blood, on which he struck her on the breast with the pommel of his sword, and on her running away, immediately followed and stabbed her in the back; he was holden to be guilty simply of felonious homicide, Fost. 292. see 5 Burr. 2794: and where after mutual blows between the prisoner and the deceased, the prisoner knocked down the deceased, and after he was upon the ground stamped upon his stomach and belly with great force, it was held manslaughter only. Russ. & Ry. C. C. 166. On a quarrel between a party of keel-men and soldiers, one of the latter drew his sword to protect himself and his comrades from the assaults of the mob, and killed a person dressed like one of the former, whom ho mistook for one of the keel-men; and this was held to be no more than manslaughter. Brown's case, 1 Leach, 148. If A stands with an offensive weapon in the door-way of a room, wrongfully to prevent T. S. from leaving it, and others from entering, and C. who has a right to the room struggles with him to get his weapon from him, upon which D. a comrade of A's stabs C., it will be murder in D. if C. dies, Russ. & Ry. C. C. 228.; see a late case, where the judges entertaining doubts as to whether the prisoner who killed another in an affray was guilty of mur◄ der, recommended him to a pardon. Russ. & Ry. C. C. 43. Where, after mutual provocation, the deceased and his opponent struggled, and in the course of the contest the former received his mortal wounds from a knife which the latter had previously in his hand in use, though the ju ry found the prisoner guilty of murder, the judges held the conviction wrong, and recommended him for a pardon. 1 Leach, 151. But in no case will previous provocation avail, if it was sought for by the act of the slayer, to afford him a pretence for gratifying his own malice. Nor will it alter the case, that blows had previously been given, if they evidently left traces of a deadly revenge, which seeks an opportunity of indulging itself by provoking a second contest to cover and excuse a deliberate attempt on the life of its object. 1 East P. C. 239, 240. Chitty. of people. (c) So if a man resolves to kill the next man he meets, and does kill him, it is murder, although he knew him not; for this is universal malice. And, if two or more come together to do an unlawful act against the king's peace, of which the probable consequence might be bloodshed, as to beat a man, to commit a riot, or to rob a park and one of them kills a man; it is murder in them all, because of the unlawful act, the malitia praecogitata, or evil intended beforehand. (d) 23 Also in many cases where no malice is expressed, the law will imply it : as where a man wilfully poisons another, in such a deliberate act the law presumes malice, though no particular enmity can be proved. (e) And if a man kills another suddenly, without any, or without a considerable provoca. tion, the law implies malice; for no person, unless of an abandoned heart, would be guilty of such an act, upon a slight or no apparent cause. No affront, by words or gestures only, is a sufficient provocation, so as to excuse or extenuate such acts of violence as manifestly endanger the life of another. (f) But if the person so provoked had unfortunately killed the other, by beating him in such a manner as shewed only an intent to chastise and not to kill him, the law so far considers the provocation of contumelious behaviour, as to adjudge it only manslaughter, and not murder. (g) In like manner if one kills an officer of justice, either civil or criminal, in the exe. cution of his duty, or any of his assistants endeavouring to conserve the peace, or any private person endeavouring to suppress an affray or apprehend a felon, knowing his authority or the intention with which he interposes, the law will imply malice, and the killer shall be guilty of murder. (h) And if one intends to do another felony, and undesignedly kills a man, this is also murder. (i) Thus if one shoots at A and misses him, [201] but kills B, this is murder; because of the previous felonious intent, which the law transfers from one to the other. The same is the case where one lays poison for A; and B, against whom the poisoner had no malicious intent, takes it, and it kills him; this is likewise murder. (j) So also if one gives a woman with child a medicine to procure abortion, and it operates so violently as to kill the woman, this is murder in the person who gave it. (k) It were endless to go through all the cases of homicide, which have been adjudged either expressly, or impliedly malicious: these therefore may suffice as a specimen; and we may take it for a general rule that all homicide is malicious, and of course amounts to murder, unless where justified by the command or permission of the law; excused on the account of accident or selfpreservation; or alleviated into manslaughter, by being either the involuntary consequence of some act, not strictly lawful, or (if voluntary) occasioned by some sudden and sufficiently violent provocation. And all these circumstances of justification, excuse, or alleviation, it is incumbent upon the prisoner to make out, to the satisfaction of the court and jury: the latter of whom are to decide whether the circumstances alleged are proved to have actually existed; the former, how far they extend to take away or c 1 Hawk. P. C. 74. g Fost. 291. (23) And see cases in 3 Chit. C. L. 729. 2 ed. A man encouraging and assisting another to commit self-murder is guilty of murder. Russ. & R. C. C. 523. Where in an act which is not maluin in se, but malum prohibitum (it being prohibited, except to persons of a certain description), as shooting at game, an unqualified person will not be more guilty, if in shooting he acci. dently kills a human being, than one who is qualified. 1 Hale, 475. Fost. 259. c.. (24) As to what will amount to murder in killing an officer, see 1 Chit. Crim. Law, 2 ed. c. 9 id. 729. |