such mother endeavouring to conceal the death of the child, should prove, by one witness at least, that the child was actually born dead. But this law was accounted a severe one, and was repealed, together with an Irish Act upon the same subject, by the 43 Geo. 3, c. 58. Questions of considerable nicety sometimes arise on trials for infanticide, as to whether the death took place after the child was actually born, or whilst it was in the progress of being born; and the law is clear that a child must be actually born to be the subject of murder. On an indictment against a mother for the murder of her child, Littledale, J., told the jury, the being born must mean that the whole body is brought into the world, and it is not sufficient that the child respires in the progress of the birth.' (ƒ) So where, upon an indictment containing a count for murder by stabbing, and a count charging that before the child was completely born the prisoner stabbed it with a fork, and that it was born, and then died of the stab, it was proved that a puncture was found on. the child's skull, but when that injury was inflicted did not appear, and some questions were asked as to whether the child had breathed; Parke, J., said, 'The child might breathe before it was born; but its having breathed is not sufficiently life to make the killing of the child murder; there must have been an independent circulation in the child, or the child cannot be considered as alive for this purpose. (g) Where one count charged that the prisoner, being big with a female child, 'did bring forth the same alive,' and then in the usual manner alleged the murder of the child by choking it with a handkerchief; and another count charged the murder in the same way of a certain illegitimate child, then lately before born of the body' of M. T. ; and there was strong evidence to prove that the child had been wholly produced alive from the prisoner's body, and that she had strangled it; but it was also clearly proved by the surgeon, who examined the body of the child, that it must have been strangled before it had been separated from the mother by the severance of the umbilical cord, and the surgeon further stated that a child has, after breathing fully, an independent circulation of its own, even while still attached to the mother by the umbilical cord, and that in his judgment the child in question had breathed fully after it had been wholly produced, and had therefore an independent circulation of its own before and at the time it was strangled, and was then in a state to carry on a separate existence. Erskine, J., directed the jury, that if they were satisfied that the child had been wholly produced from the body of the prisoner alive, and that the prisoner wilfully strangled the child after it had been so produced and while it was alive, and while it had, according to the evidence of the surgeon, an independent circulation of its own, he was of opinion that the charge in the said counts was made out, although the child, at the time it was so strangled, still remained attached to the mother by the navel-string. The jury found the prisoner guilty; and, upon a case reserved, the judges held the conviction right. (h) But if a child be actually wholly produced R. v. (f) R. v. Poulton, 5 C. & P. 329. (g) R. v. Enock, 5 C. & P. 539. Wright, 9 C. & P. 754, Gurney, B. S. P. (h) R. v. Trilloe, 2 M. C. C. R. 260. C. & Mars. 650. R. v. Crutchley, 7 C. & P. 814. R. v. Reeves, 9 C. & P. 25. R. v. alive, it is not necessary that it should have breathed to make it the subject of murder. (i) SEC. III. Felo de se.1 Self-murder may be mentioned as a peculiar instance of malice directed to the destruction of a man's own life, by inducing him deliberately to put an end to his existence, or to commit some unlawful malicious act, the consequence of which is his own death. (ii) It has been already stated, that a person killing another, upon his desire or command, is guilty of murder, (k) but in this case the person killed is not looked upon as a felo de se, inasmuch as his assent, being against the laws of God and man, was void. (1) But where two persons agree to die together, and one of them, at the persuasion of the other, buys poison and mixes it in a potion, and both drink of it, and he who bought and made the potion survives by using proper remedies, and the other dies; it is said to be the better opinion, that he who dies shall be adjudged a felo de se, because all that happened was originally owing to his own wicked purpose, and the other only put it in his power to execute it in that particular manner. (m) Upon a principle which will presently be mentioned more fully, if a man, attempting to kill another, miss his blow and kill himself, (n) or intending to shoot at another, mortally wound himself by the bursting of the gun, (o) he is felo de se; his own death being the consequence of an unlawful malicious act towards another. It has also been said that if A. strike B. to the ground, and B. draw a knife and hold it up in his own defence, and A. in haste falling upon B. to kill him, fall upon the knife, and be thereby killed, A. is felo de se ; (p) but this has been doubted. (q) A Sellis, 7 C. & P. 850, where, per Coltman, J., the fact of the child having breathed is not a decisive proof that it was born alive: it may have breathed, and yet died before birth. R. v. Sellis, 7 C. & P. 850. R. v. Handley, 13 Cox, C. C. 79. (i) R. v. Brain, 6 C. & P. 349. (ii) 4 Blac. Com. 189; Hales v. Pettite, Plowd. 261 (b). See 45 & 46 Vict. c. 19, as to the interment of persons found felo de se. (k) Ante, p. 5. (2) 1 Hawk. P. C. c. 27, s. 6. An attempt to commit suicide is a misdemeanor at common law, and the question for the jury is whether the prisoner had a mind capable of contemplating the act, and whether in fact he did intend to take away his life, and drunkenness in this, as in other cases, is no excuse; but it is a material fact (n) 1 Hale, 412. (0) 1 Hawk. P. C. c. 27, s. 4. (9) See 1 Hale, 412, who considers that in this case B. is not guilty at all of the death of A., not even se defendendo, as he did not strike, only held up the knife; and that A. is not a felo de se, but that it is homicide by misadventure. In Hawk. P. C. c. 27, s. 5, it seems to be considered that B. should be adjudged to kill A. se defendendo. husband and wife being in extreme poverty and great distress of mind, the husband said, 'I am weary of life, and will destroy myself,' upon which the wife replied, 'If you do I will too.' The man bought some poison, mixed it with some drink, and they both partook of it. The husband died, but the wife, by drinking salad oil, which caused sickness, recovered, and was tried for the murder of her husband, and acquitted, but solely on the ground that, being the wife of the deceased, she was under his control; and inasmuch as the proposal to commit suicide had been first suggested by him, it was considered that she was not a free agent, and therefore the jury, under the direction of the judge who tried the case, pronounced a verdict of not guilty. (r) The prisoner was indicted for the murder of a woman by drowning her. It appeared that the prisoner had cohabited with the deceased for several months previous to her death, and she was with child by him; they were in a state of extreme distress; and being unable to pay for their lodgings, they quitted them in the evening of the night on which the deceased was drowned, and had no place of shelter. They passed the evening together at the theatre, and afterwards went to Westminster Bridge to drown themselves in the Thames; they got into a boat, and from that into another boat, the water where the first boat was moored not being of sufficient depth to drown them. They talked together for some time in the boat into which they had got, the prisoner standing with his foot on the edge of the boat, and the woman leaning upon him. The prisoner then found himself in the water; but whether by actually throwing of himself in, or by accident, did not appear. He struggled to get back into the boat again, and then found that the woman was gone; he then endeavoured to save her, but could not get to her, and she was drowned. In his statement before the magistrate he said that he intended to drown himself, but dissuaded the woman from following his example. The learned judge told the jury, that if they believed that the prisoner only intended to drown himself, and not that the woman should die with him, they should acquit the prisoner; but that if both went to the water for the purpose of drowning themselves together, each encouraged the other in the commission of a felonious act, and the survivor was guilty of murder. He also told the jury, that although the indictment charged the prisoner with throwing the deceased into the water, yet if he were present at the time she threw herself in, and consented to her doing it, the act of throwing was to be considered as the act of both, and so the case was reached by the indictment. The jury stated that they were of opinion that both the prisoner and the deceased went to the water for the purpose of drowning themselves, and the prisoner was convicted. And, upon a case reserved, the judges were clear that if the deceased threw herself into the water by the encouragement of the prisoner, and because she thought he had set her the example in pursuance of their previous agreement, he was a principal (r) Anonymous case, as stated by Patteson, J., in R. v. Alison, 8 C. & P. 418. The case is reported in Moor, 754. Quære, whether they were husband and wife; the report begins, 'home et se feme ayant longe temps vive incontinent ensemble.' And it states that a special verdict was found, but does not state the decision. See my note, vol. i. p. 146, as to the decision of this case. C. S. G. in the second degree, and was guilty of murder; but as it was doubtful whether the deceased did not fall in by accident, it was not murder in either of them, and the prisoner was recommended for a pardon. (8) So where upon an indictment for the murder of a woman, it appeared that the prisoner and the deceased, who passed as husband and wife, being in very great distress, both agreed to take poison, and each took a quantity of laudanum, in the presence of the other, and both lay down on the same bed together, wishing to die in each other's arms, and the woman died, but the prisoner recovered; Patteson, J., told the jury that, supposing the parties in this case mutually agreed to commit suicide, and one only accomplished that object, the survivor will be guilty of murder in point of law.' (t) A person could not formerly be tried as an accessory before the fact, for inciting another to commit suicide, if that person committed suicide. (u) But the 24 & 25 Vict. c. 94, s. 1, seems to remove this difficulty. SEC. IV. Of the means of killing; and of causing death by malicious and intentional neglect of duty. (v) The killing may be effected by poisoning, (w) striking, starving, drowning, and a thousand other forms of death, by which human nature may be overcome. (ww) But there must be some external violence, or corporal damage, to the party; and therefore where a person, either by working upon the fancy of another, or by harsh and unkind usage, puts him into such passion of grief or fear that he dies suddenly, or contracts some disease which causes his death, the killing is not such as the law can notice. (x) If a man, however, does an act, the probable consequence of which may be, and eventually is, death, such killing may be murder; although no stroke be struck by himself, and no killing may have been primarily intended: (xx) as where a person carried his sick father, against his (s) R. v. Dyson, R. & R. 523.1 (t) R. v. Alison, 8 C. & P. 418, Patteson, J. R. v. Jessop, 16 Cox, C. C. 204.2 (u) R. v. Russell, R. & M. C. C. R. 356. R. v. Leddington, 9 C. & P. 79. Alderson, B. (v) For cases of manslaughter by neg lect of duty see post, 183. (w) See 11 Co. 32 a; Kel. 32, 125; Fost. 68, 69; 1 East, P. C. c. 5, s. 12, AMERICAN NOTES. 1 This seems to be so also in America. See Blackburn v. S., 23 Ohio St. 146, and C. v. Bowen, 13 Mass. 356; 7 Am. D. 154, a case where one of two prisoners in adjoining cells advised the other to commit suicide, which he did. 2 If the adviser were absent (the person who committed suicide committing selfmurder) he would only be an accessory before the fact, and as he could not be indicted except with, or after, his principal, he could not be indicted at all except for 24 & 25 Vict. c. 94, s. 1. In America he probably could be sued because he would be the principal. See Bishop, i. ss. 652, 670; ii. s. 1187 (5). One who in attempting to take his own life accidentally kills another who endeavours to stop him commits manslaughter. C. v. Mink, 123 Mass. 422. will, in a severe season, from one town to another, by reason whereof he died; (y) or where a harlot being delivered of a child, left it in an orchard covered only with leaves, in which condition it was killed by a kite; (2) or where a child was placed in a hogsty, where it was devoured. (a) In these cases, and also where a child was shifted by parish officers from parish to parish, till it died for want of care and sustenance, (b) it was considered that the acts so done, wilfully and deliberately, were of malice prepense. (c) 1 By neglect of duty. Where the prisoner had delivered herself by night upon a turnpike road, and, after carrying her child more than a mile along the road, had left it on the side of the road without any clothing or covering to protect it from the inclemency of the weather, where it died from the cold, and she had wholly concealed the birth of the child till she was apprehended; Coltman, J., in summing up, said, 'If a party so conduct himself with regard to a human being, which is helpless and unable to provide for itself, as must necessarily lead to its death, the crime amounts to murder. But if the circumstances are not such that he must have been aware that the result would be death, the crime would be manslaughter, provided the death were caused by an unlawful act, but not such as to imply a malicious mind. There have been cases where it has been held that persons leaving a child exposed, and without any assistance, and under circumstances where no assistance was likely to be rendered, were guilty of murder. It will be for you to consider whether the prisoner left the child in such a situation that to all reasonable apprehension she must have been aware that the child must die, or whether there were circumstances that would raise a reasonable expectation that the child would be found by some one else, and preserved; because then it would only be the crime of manslaughter. If a person were to leave a child at the door of a gentleman, the probability would be so great that it would be found, that it would be too much to say that it was murder, if it died: if, on the other hand, a child were left in an unfrequented place, what inference could be drawn but that the party left it there in order that it might die? This is a sort of intermediate case, and therefore it is for you to say whether the prisoner had reasonable ground for believing that the child would be found and preserved. (d) female child, and throwing it upon a heap of dust and ashes, and leaving it there exposed to the cold air, by means of which exposure the child became frozen and died. R. v. Waters, 1 Den. C. C. 356. 2 C. & K. 864. The point in this case was, that it was consistent with all that was stated in the count that the child might be capable of taking care of itself; but it was held that if she had been sufficiently old, or strong enough so to do, the death could not have arisen from the act of the prisoner, and AMERICAN NOTE. 1 So where the master of a ship compelled a seaman who was in a very weak state to ascend the rigging, and he fell and was killed, it was held in America that this might be murder. U. S. v. Freeman, 4 Mason, 505. See C. v. Fox, 7 Gray (Mass.), 505. |