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BOOK THE THIRD.

OF

OFFENCES AGAINST THE PERSONS OF INDIVIDUALS.

CHAPTER THE FIRST

OF MURDER.

Murder is the killing any person under the King's peace, with Definition of malice prepense or aforethought, either express or implied by law.(a) Malitia præcoOf this description the malice prepense, malitia præcogitata, is the gitata, or machief characteristic, the grand criterion by which murder is to be lice prepense. distinguished from any other species of homicide; (6) and it will therefore be necessary to inquire concerning the cases in which such malice has been held to exist. It should, however, be observed, that when the law makes use of the term malice aforethought as descriptive of the crime of murder, it is not to be understood merely in the sense of a principle of malevolence to particulars, but as meaning that the fact has been attended with such circumstances as are the ordinary symptoms of a wicked, depraved, and malignant spirit; a heart regardless of social duty, and deliberately bent upon mischief. (c) And in general any formed design of doing mischief may be called malice; and therefore not such killing only as proceeds from premeditated hatred or revenge against the person killed ; but also, in many other cases, such killing as is accompanied with circumstances that shew thé heart to be perversely wicked, is adjudged to be of malice prepense, and consequently murder. (d)

Malice may be either express or implied by law. Express Malice may be malice is, when one person kills another with a sedate deliberate either express mind and formed design : such formed design being evidenced by

or implied. external circumstances, discovering the inward intention; as lying

(a) 3 Inst. 47,51. Hale 424, 448, (6) 4 Blac. Com. 198. Gastineaux's 449. I Hawk. P. C. c. 31. s. 3. Kely. case, 1 Leach 417. 121. Fost. 256. 2 Lord Raym. 1487. (c) Fost. 256, 262. 4 Blac. Com. 198. i East. P. C. c. 5. (d) i Hawk. P. C. c. 31. s. 18. Fost. S. 2. p. 214.

257. i Hale 451 to 454.

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in wait, antecedent menaces, former grudges, and concerted schemes to do the party some bodily harm. (e) And malice is implied by law from any deliberate cruel act committed by one person against another, however sudden: (f) thus where 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.(8) So if a man wilfully poisons another ; in such a deliberate act the law presumes malice, though no particular enmity can be proved. (h). And where one is killed in consequence of such a wilful act as shews the person by whom it is committed to be an enemy to all mankind, the law will infer a general malice from such depraved inclination to mischief. (i) And it should be observed as a general rule, that all homicide is presumed to be

(e) i Hale 451. 4 Blac. Com. 199. importing directly wickedness, and (f) i East. P. C. c. 5. s. 2. p. 215. excluding a just cause or excuse. Thus (g) 4 Blac. Com. 200.

Lord Coke, in his comment on the (h) 1 Hale 455. 4 Blac. Com. 200. words per malitiam, says, “ if one be (0) 1 Hale 474. 1 Hawk. P. C. c. “appealed of murder, and it is found 29. s. 12. 4 Blac. Com. 200. 1 East. “by verdict that he killed the party se P. C. c. 5. s. 18. Malitia in its pro- defendendo, this shall not be said to per or legal sense is different from “ be per malitiam, because he had a that sense which it bears in common just cause.2 Inst. 384. And where speech. In common acceptation it the statutes speak of a prisoner on his signifies a desire of revenge, or a set- arraignment standing mute of malice, tled anger against a particular person: the word clearly cannot be understood but this is not the legal sense; and in its common acceptation of anger or Lord Holt, C. J. says upon this sub- desire of revenge against another. ject, “Some have been led into mis- Thus where the statute 25 Hen. 8. c. "takes by not well considering what 3. says, that persons arraigned of petit “the passion of malice is ; they have treason, &c. standing “mute of malice “construed it to be a rancour of mind “or froward mind," or challenging,

lodged in the person killing for &c. shall be excluded from clergy, the “some considerable time before the word malice, explained by the accom“commission of the fact, which is a panying words, seems to signify a “ mistake, arising from the not well wickedness or frowardness of mind in

distinguishing between hatred and refusing to submit to the course of “ malice. Envy, hatred, and malice, justice; in opposition to cases where

are three distinct passions of the some just cause may be assigned for “mind.” Kel. 127. Amongst the Ro- the silence, as that it proceeds from mans, and in the civil law, malitia ap- madness, or some other disability or pears to have imported a mixture of distemper. And in the statute 21 Edw. fraud, and of that which is opposite to 1. De malefactoribus in parcis, tressimplicity and honesty. Cicero speaks passers are mentioned who shall not of it (De Nat. Deor. Lib. 3. s. 30.) as yield themselves to the foresters, &c. versuta et fallax nocendi ratio;" and but“ immo malitiam suam prosequendo in another work (De Offic. Lib. 3. s.

et continuando," sball fly or stand 18.) he says, mihi quidem etiam vere

upon their defence. And where the "hæreditates non honestæ videntur si question of malice has ariseu in cases sint malitiosis (i. e. according to of homicide, the matter for considera. “ Pearce, a malo animo profectis) tion has been (as will be seen in the "blanditiis officiorum ; non veritate, course of the present and subsequent “sed simulalione quæsitæ.And see Chapters) whether the act were done Dig. Lib. 2. Tit. 13. Lex. 8., where, in with or without just cause or excuse ; speaking of a banker or cashier giving so that it has been suggested (Chapple

, in his accounts, it is said, “ Ubi ecigitur J. MS. Sum.) that what is usually "argentarius rationes edere, tunc pu- called malice implied by the law nitur cum dolo malo non exhibit ***

would perhaps be expressed more inDolo malo autem non edit, et qui ma- . telligibly and familiarly to the underlitiosè edidit, et qui in totum non edit.” standing if it were called malice in a Amongst us malice is a terip of law legal sense.

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malicious, and of course amounting to murder, until the contrary appears, from circumstances of alleviation, excuse, or justification: (k) and that it is incumbent upon the prisoner to make out such circumstances to the satisfaction of the court and jury, unless they arise out of the evidence produced against him.(l) It should also be remarked that, where the defence rests upon some violent provocation, it will not avail, however grievous such provocation may have been, if it appears that there was an interval of reflection, or a reasonable time for the blood to have cooled before the deadly purpose was effected. And provocation will be no answer to proof of express malice; so that if, upon a provocation received, one party deliberately and advisedly denounce vengeance against the other, as by declaring that he will have his blood, or the like, and afterwards carry his design into execution, he will be guilty of murder; although the death happened so recently after the provocation as that the law might, apart from such evidence of express malice, have imputed the act to unadvised passion.(m) But where fresh provocation intervenes between preconceived malice and the death, it ought clearly to appear that the killing was upon the antecedent malice ; for if there be an old quarrel between A. and B., and they are reconciled again, and then, upon a new and sudden falling out, A. kills B., this is not murder. (n) It is not to be

presumed that the parties fought upon the old grudge, unless it appear from the whole circumstances of the fact: (o) but if upon the circumstances it should appear that the reconciliation was but pretended or counterfeit, and that the hurt done was upon the score of the old malice, then such killing will be murder. (p)

Where knowledge of some fact is necessary to make a killing murder, those of a party who have the knowledge will be guilty of murder, and those who have it not of manslaughter only. If A. assault B. of malice, and they fight, and A.'s servant come in aid of his master, and B. be killed, A. is guilty of murder; but the servant, if he knew not of A.'s malice, is guilty of manslaughter only. (a)

The person committing the crime must be a free agent, and not The party subject to actual force at the time the fact is done : thus if A. by killing . force take the arm of B. in which is a weapon, and therewith kill C., A. is guilty of murder, but not B. But if it be only a moral force put upon B. as by threatening him with duress or imprisonment, or even by an assault to the peril of his life, in order to compel him to kill C., it is no legal excuse. (9) If, however, A. procures B. an ideot, or lunatic, to kill C., A. is guilty of the murder as principal, and B. is merely an instrument. (r) So if A. lay a trap or pitfall for B. whereby B. is killed, A. is guilty of the murder as a principal in the first degree, the trap or pitfall being only the instruments of death. (s) If one persuade another to kill

(k) 4 Blac. Com. 201.

(a) i Hale 446. Plowd. 100. post, (1) Fost. 255. 4 Blac. Com. 201, 431. 1 East. P. C. c. 5, s. 12. p. 224.

(q) i Hale 433. Dalt. c. 145. p. (m) 1 East. P. C. c. 5. s. 12. p. 224. 473. 1 East. P. C. c. 5. s. 12. p. 225. (n) i Hale 451.

(r) 1 East. P. C. c. 5. s. 14. p. 2283 (0) 1 Hawk. P. C. c. 31. S. 30. | Hawk. P. C. c. 31, s. 7, (D) i Hale 451.

(8) 4 Blac. Com. 33.

The party killed.

Children in the mother's womb.

himself, the adviser is guilty of murder ; and if the party takes poison himself by the persuasion of another, in the absence of the persuader, yet it is a killing by the persuader; and he is principal in it, though absent at the taking of the poison. (t) And he who kills another upon his desire or command is, in the judgment of the law, as much a murderer as if he had done it merely of his own head. (u)

Murder may be committed upon any person within the King's peace. Therefore, to kill an alien enemy within the kingdom, unless it be in the heat and actual exercise of war, (w) or to kill a Jew, an outlaw, one attainted of felony, or one in a præmunire, (x) is as much murder as to kill the most regular born Englishman. (y)

An infant in its mother's womb, not being in rerum natura, is not considered as a person who can be killed within the description of murder; and therefore if a woman, being quick or great with child, take any potion to cause an abortion, or if another give her any such potion, or if a person strike her, whereby the child within her is killed, it is not murder or manslaughter. (2) But by a recent statute any person wilfully and maliciously administering poison, to cause or procure the miscarriage of any woman, then being quick with child, is guilty of a capital offence; and any person administering medicines to women not quick with child, with intent to procure miscarriage, is guilty of felony. (a) Where a child, having been born alive, afterwards died by reason of any potions or bruises it received in the womb, it seems always to have been the better opinion that it was murder in such as administered or gave them. (b)

The murder of bastard children by the mother was considered as a crime so difficult to be proved, that a special legislative provision was made for its detection by the statute 21 Jac. 1. c. 27. which required that any 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, which made the concealment of the death almost conclusive evidence of the child's being murdered by the mother, was accounted to savour strongly of severity, and always construed most favourably for the unfortunate object of accusation; and at length it was repealed, together with an Irish act upon the same subject, by a late statute, (c)

Bastard child. ren,

(1) I Hale 431. Vaux's case, 4 Rep. c. 5. s. 14. p. 228. contra 1 Hale 432. 44 b.

and Staundf. 21. but the reason on (u) 1 Hawk. P. C. c. 27. s. 6. Saw- which the opinions of the two last yer's case, Old Bailey, May 1815. MS. writers seem to be founded, namely, S. P. And see Rex v. Dyson, post, 430. the difficulty of ascertaining the fact, (w) i Hale 433.

cannot be considered as satisfactory, (2) Id. ibid. Formerly to kill one unless it be supposed that such fact attaint in a præmunire was held not never can be clearly established. homicide, 24 Hen. 8. B. Coron. 197. : (c) 43 Geo. 3. c. 58. S. 3. The Irish but the stat. 5 Eliz. c. 1. declared it act was one of the 6 Ann. The 49 to be unlawful.

Geo. 3. c. 14. repeals an act of the (y) 4 Blac. Com. 198.

parliament of Scotland, sess. 2. parl. I. (2) i Hale 433.

Guil. and Mar. by which a woman (a) 43 Geo. 3. c. 58.

concealing her being with child during (b) 3 lost. 50. 1 Hawk. P. C. c. 31. the whole space, and not calling for s. 16. 4 Blac. Com. 198. 1 East. P. C. and making use of assistance in the

which provides “ that the trials in England and Ireland respect“ ively, of women charged with the murder of any issue of their “ bodies, male or female, which being born alive would by law “ be bastard, shall proceed and be governed by such and the like “ rules of evidence, and of presumption, as are by law used and " allowed to take place in respect to other trials for murder, and “ as if the said two several acts had never been made.” (d)

The killing may be effected by poisoning, striking, starving, of the means drowning, and a thousand other forms of death by which human of killing. nature may be overcome. (e) 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. (f) 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 : (g) as where a person carried his sick father, against his will, in a severe season, from one town to another, by reason whereof he died; (h) 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; (i) or where a child was placed in a hogstye, where it was devoured. (k) 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, (2) it was considered that the acts so done, wilfully and deliberately, were of malice prepense.

Forcing a person to do an act which is likely to produce his death, and which does produce it, is murder; and threats may constitute such force. The indictment charged first, that the prisoner killed his wife by beating ; secondly, by throwing her out of the window; and, thirdly and fourthly, that he beat her and threatened to throw her out of the window and to murder her; and that by such threats she was so terrified that, through fear of his putting his threats into execution, she threw herself out of the window, and of the beating and the bruises received by the fall died. There was strong evidence that the death of the wife was occasioned by the blows she received before her fall : but Heath, J. Gibbs, J. and Bayley, J. were of opinion that if her death was occasioned partly by the blows and partly by the fall, yet if she was constrained by her husband's threats of further vio

birth, was to be reputed the murderer (e) 4 Blac. Com. 196. moriendi mille of the child, if it was found dead or figuræ, 1 Hale 431. | Hawk. P. C. missing

c. 31. S, 4. (d) The statute further provides, that () i Hale 427, 429. 1 East. P. C. the jury, if they acquit the prisoner C. 5. s. 13. p. 225. of murder, may find that she was de. (g) 4 Blac. Com. 197. livered of a bastard child, and endea- (h) 1 Hawk. P.C. c.31. s.5. i Hale voured to conceal the birth, where- 431, 432. upon the court may adjudge her to be (i) i Hale 431. 1 Hawk. P. C. c. 31. committed, for any time not exceeding two years. See post, S. 6. of this (k) 1 East, P. C. c. 5. s. 13. p. 226. Chapter

(1) Palin. 545.

S. 6.

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