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there is no doubt but this is equally murder in foro conscientiae as [197] 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 (27). If a man however does such an 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 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 (1); 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) (28). 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). If a physician or surgeon gives his patient a portion 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) (29): but it hath been holden, that if it be not a regular physi cian or surgeon, who administers the medicine or performs the operation, it is manslaughter at the least (9). Yet sir Matthew Hale very justly questions the law of this determination (r) (30). In order also to make the killing

(7) 1 Hawk. P. C. 78. (m) 1 Hal. P. C. 452. (n) Palm. 545.

(0) Ibid 431.

(27) 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 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 murder


(28) Or if a master refuse his apprentice necessary food or sustenance, or treat him with such continued harshness and severity as his death is occasioned thereby, the law wil imply malice, and the offence will be murder. Leach, 127. 2 Camp. 650; and seel Russ. 621. If a prisoner die by the cruelty or neglect of the gaoler, or, in legal language, by duress of imprisonment, the party actually of

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fending is criminal in this degree. Fost. 321; and see 2 Stra. 856. 2 Lord Raym. 1578. Fost. 322. Laying noisome and poisonous filth at a man's door, which kills him by corrupting the air which he breathes, will be murder. 1 Hale, 432.

(29) Such persons are clearly still liable to a civil action, where gross negligence or ignorance can be proved. Slater v. Baker, 2 Wils. 359; Seare v. Prentice, 8 East, 348; and it would also be a good defence to an ac. tion by an apothecary on his bill, that he had treated his patient ignorantly or improperly. Kannea v. M'Mullen, Peake, 59.

(30) 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. I 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 care been taken, a recovery might have been effected. 1 Hale, 428.

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 [198] 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 Englishman; except he be an alien enemy in time of war (t). 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 be murder in such as administered or gave them (u). 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 criminal 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 (31).

(s) 1 Hawk. P. C. 79.

(t) 3 Inst. 50. 1 Hal. P. C. 433.

(u) 3 Inst. 50. 1 Hawk. P. C. 80. but see 1 Hal.

(31) The 21 J. I. c. 27, was repealed by the 43 G. III. c. 58, which has also recently been repealed, and the law upon this subject is now as follows: By 9 Geo. IV. c. 31, 13, if any person with intent to procure the miscarriage of any woman then being quick with child, unlawfully and maliciously shall administer to her, or cause to be taken by her, any poison or other noxious thing, or shall use any instrument or other means whatever with the like intent, every such offender, and every person counselling, aiding, or abetting, such offender, shall be guilty of felony, and being convicted thereof, shall suffer death as a felon; and if any person, with intent to procure the miscarriage of any woman not being, or not being proved to be, then quick with child, unlawfully and maliciously shall administer to her, or cause to be taken by her, any medicine or other thing, or shall use any instrument or other means whatever with the like intent, every such offender, and every person counselling, aiding, or abetting such offender, shall be guilty of felony, and being convicted thereof, shall be liable, at the discretion of the court, to be transported for any term not exseeding fourteen, and not less than seven

P. C. 433.

(v) See Barrington on the statutes, 425.

years, or to be imprisoned, with or without hard labour, for any term not exceeding three years, and if a male, to be once, twice, or thrice publicly or privately whipped. By 14, if any woman shall be delivered of a child, and shall, by secret burying or otherwise disposing of the dead body of the said child, endeavour to conceal the birth thereof, every such offender shall be guilty of a misdemeanor, and being convicted thereof, shall be liable to be imprisoned, with or without hard labour, for any term not exceeding two years; and it shall not be necessary to prove whether the child died before, at, or after its birth: provided, that if any woman tried for the murder of her child shall be acquitted thereof, it shall be lawful for the jury,by whose verdict she shall be acquitted, to find, in case it shall so appear in evidence, that she was delivered of a child, and that she did, by secret burying or otherwise disposing of the body of such child, endeavour to conceal the birth thereof, and thereupon the court may pass such sentence, as if she had been convicted upon an indictment for the concealment of the birth. These enactments are substantially the same as those of the 43 G. III. c. 58, upon the same subjects,

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 (r); and [199] 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 formed design is evidenced by external circumstances discovering that inward intention; as laying 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 intent 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 therefore the law has justly fixed the crime and punishment of murder on them, and on their seconds also (z) (32). Yet it requires such a degree of passive valour to combat the dread of even undeserved contempt, arising from the false notions of honour too generally received in Europe, that the strongest prohibitions 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 repu table, 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 (33). 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 murders, because the correction being excessive, and such as could not proceed but from a bad heart, it was equivalent to a de

(w) Foster, 256.

(x) 2 Roll. Rep. 461.

except that by section 14 of the new Act, the concealment of the birth of a child is made an indictable misdemeanor, whereas, before, the prisoner could only be found guilty of the concealment upon an indictment charging her with murder. See Rex v Parkinson, 1 Russell, 475, n.; 1 Chetw. Burn, 334. The rules laid down with respect to indictments for these offences under the old statute, seem, in other respects, equally applicable to the new Act.

(32) Wherever two persons in cold blood meet and fight, on a precedent quarrel, and one of them is killed, the other is guilty of murder, and cannot excuse himself by alleging that he was first struck by the deceased; or that he had often declined to meet him, and was prevailed upon to do it by his importunity; of that his only intent was to vindicate his re

(y) 1 Hal. P. C. 451.
(z) 1 Hawk. P. C. 82.

putation; or that he meant not to kill, but only
to disarm his adversary: for, as he deliberate-
ly engaged in an act in defiance of the law,
he must at his peril abide the consequences.
1 Haw. P. C. c. 31, § 21; 1 Bulstr. 86, 7;2
Bulstr. 147; Crom. 22, 6; 1 Rol. Rep. 360;
3 Bulstr, 171;1 Hale, P. C. 48. Therefore,
if two persons quarrel over night, and appoint
to fight the next day, or quarrel in the morning,
and agree to fight in the afternoon, or such a
considerable time after, by which, in common
intendment, it must be presumed that the
blood was cooled, and then they meet and
fight, and one kill the other, he is guilty of
murder. 1 Haw. P. C. c. 31, ◊ 22; 3 Inst.
51; 1 Hale, P. C. 48; Kel. 56; 1 Lev. 180.

(33) See the law of duelling fully stated 3 East Rep. 581. 6 East, 464. 2 Bar. & Ald. 462.

liberate act of slaughter (a) (34). Neither shall he be guilty of a less crime, who kills another in consequence of such a wil- [*200] ful 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 multitude 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) (35).

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) 1 Hal. P. C. 454, 473, 474.

(b) Lord Raym. 143.

(c) 1 Hawk. P. C. 74

(34) Homicide may be and is often extenuated by the circumstance 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. 33, 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

(d) Ibid. 84.

(e) 1 Hal. P. C. 455.

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 he 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 murder, 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 jury 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.

(35) And see cases in 3 Chit. C. L. 729, 2 ed. Where in an act which is not malum 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 accidently kills a human being, than one who is qnalıfied. 1 Hale, 475. Fost. 259.

a man kills another suddenly, without any, or without a considerable provocation, 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 execution 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) (36), (37). And if one intends to do another [201] felony, and undesignedly kills a man, this is also murder (1). Thus if one shoots at A and misses him, 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 prisoner 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 self-preservation; 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 mitigate guilt. For all homicide is presumed to be malicious, until the contrary appeareth upon evidence (1) (38).

1 Hawk. P. C. 82. 1 Hal. P. C. 455, 456. (g) Fost. 291.

(h) 1 Hal. P.C. 457. Fost. 308, &e. (i) 1 Hal, P. C. 465.

(36) As to what will amount to murder in killing an officer, see 1 Chit. Crim. Law, 2 ed. c. 2. 2 id. 729.

(37) It is murder to kill a constable, though he has no warrant, and does not witness the felony committed, but takes the party upon a charge only; and that, even though the charge be in itself defective to constitute a felony. Rex v. Ford, R. and R. C. C. 329.

(38) Francis Smith was indicted for murder at the Old Bailey, January 13, 1804. The neighbourhood of Hammersmith had been alarmed by what was supposed to be a ghost. The prisoner went out with a loaded gun with intent to apprehend the person who personat

(j) Ibid. 466.
(k) Ibid. 429.
(7) Fost. 255.

ed the ghost: he met the deceased, who was dressed in white, and immediately discharged his gun and killed him. Chief Baron Macdonald, Mr. J. Rooke, and Mr. J. Lawrence were unanimously of opinion that the facts amounted to the crime of murder. For the person who represented the ghost, was only guilty of a misdemeanor (a nuisance), and no one would have had a right to have killed him, even if he could not otherwise have been taken. The jury brought in a verdict of manslaughter, but the court said they could not receive that verdict; if the jury believed the witnesses, the prisoner was guilty of murder; if they did not believe them, they must acquit

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