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. (1) 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 sumed that the parties fought upon the old grudge, unless it appear from the whole circumstances of the fact: (0) 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) pre 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. (q) 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 The party killed. Children in the mother's womb. Bastard child ren. 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. (z) 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) (t) 1 Hale 431. Vaux's case, 4 Rep. 44 b. (u) 1 Hawk. P. C. c. 27. s. 6. Saw yer's case, Old Bailey, May 1815. MS. S. P. And see Rex v. Dyson, post, 430. (w) 1 Hale 433. (x) Id. ibid. Formerly to kill one (y) 4 Blac. Com. 198. (a) 43 Geo. 3. c. 58. (b) 3 Inst. 50. 1 Hawk. P. C. c. 31. s. 16. 4 Blac. Com. 198. 1 East. P. C. c. 5. s. 14. p. 228. contra 1 Hale 432. and Staundf. 21. but the reason on which the opinions of the two last writers seem to be founded, namely, the difficulty of ascertaining the fact, cannot be considered as satisfactory, unless it be supposed that such fact never can be clearly established. (c) 43 Geo. 3. c. 58. s. 3. The Irish act was one of the 6 Ann. The 49 Geo. 3. c. 14. repeals an act of the parliament of Scotland, sess. 2. parl. 1. Guil. and Mar. by which a woman concealing her being with child during the whole space, and not calling for 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 66 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. (ƒ) 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, (7) 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 of the child, if it was found dead or missing. (d) The statute further provides, that the jury, if they acquit the prisoner of murder, may find that she was delivered of a bastard child, and endeavoured to conceal the birth, whereupon the court may adjudge her to be committed, for any time not exceeding two years. See post, S. 6. of this Chapter. (e) 4 Blac. Com. 196. moriendi mille figuræ, 1 Hale 431. 1 Hawk. P. C. c. 31. s. 4. (f) 1 Hale 427, 429. 1 East. P. C. c. 5. s. 13. p. 225. (g) 4 Blac. Com. 197. (h) 1 Hawk. P. C. c. 31. s. 5. 1 Hale 431, 432. (i) Hale 431. 1 Hawk. P. C. c. 31. (k) 1 East. P. C. c. 5. s. 13. p. 226. By medicines. By infection. By rape. Time of death. Treatment of wounds. If a physician or surgeon give his patient a potion or plaister, intending to do him good, and, contrary to the expectation of such physician or surgeon, it kills him, this is neither murder nor manslaughter, but misadventure.(w) It has however been holden, that if the medicine were administered, or the operation performed, by a person not being a regular physician or surgeon, the killing would be manslaughter at the least: (x) but the law of this determination has been questioned by very high authority, upon the ground that physic and salves were in use before licensed physi cians and surgeons existed. (y) A question is put by Lord Hale, whether if a person infected with the plague should go abroad with the intention of infecting another, and another should thereby be infected and die, this would not be murder: but it is admitted that, if no such intention should evidently appear, it would not be felony, though a great misdemeanor.(z) It may be observed, that an offence of this sort in breach of quarantine is punishable by the provisions of a recent statute.(a) A question has been raised, whether an indictment for murder could be maintained for killing a female infant by ravishing her: but the point was not decided. (b) It is agreed that no person shall be adjudged by any act whatever to kill another, who does not die thereof 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 is to be reckoned the first. (c) : Questions may occasionally arise as to the treatment of the wound or hurt received by the party killed. Upon this subject it has been ruled, that if a man give another a stroke not in itself so mortal but that with good care he might be cured, yet if the party die of this wound within the year and day, it is murder, or other species of homicide, as the case may be though if the wound or hurt be not mortal, and it shall be made clearly and certainly to appear that the death of the party was caused by ill applications by himself or those about him, of unwholesome salves or medicines, and not by the wound or hurt, it seems that this is no species of homicide. But when a wound not in itself mortal, for want of proper applications, or from neglect, turns to a gangrene or a fever, and that gangrene or fever is the immediate cause of the death of the party wounded, the party by whom the wound is given is guilty of murder, or manslaughter, according to the circumstances. For though the fever or gangrene, and not the wound, be the immediate cause of the death, yet the wound being the cause of the gangrene or fever, is the immediate cause of the death, causa causati. (d) Thus, it was resolved that if one gives (w) 4 Bla. Com. 197. 1 Hale 429. (z) 1 Hale 432. (a) 6 Geo. 4. c. 78. s. 2, 21. Ante, 111, et seq. (b) Rex v. Ladd, 1 Leach 96. 1 East. P. C. 226. The Judges to whom the case was referred gave no opinion upon the point, as the indictment was holden to be defective, in not having stated that the prisoner gave the deceased a mortal wound. (c) 1 Hawk. P. C. c. 31. s. 9. 4 Bla. Com. 197. 1 East. P. C. c. 5. s. 112. p. 343, 344. (d) 1 Hale 428. wounds to another, who neglects the cure of them, or is disorderly and doth not keep that rule which a person wounded should do, yet if he die it is murder or manslaughter, according to the circumstances; because if the wounds had not been, the man had not died and, therefore, neglect or disorder in the person who received the wounds shall not excuse the person who gave them. (d) If a man be sick of some disease, which, by the course of nature, might possibly end his life in half a year, and another gives him a wound or hurt which hastens his death, by irritating and provoking the disease to operate more violently or speedily, this is murder or other homicide, according to the circumstances, in the party by whom such wound or hurt was given. For the person wounded does not die simply ex visitatione Dei, but his death is hastened by the hurt which he received; and it shall not be permitted to the offender to apportion his own wrong. (e) Killing a per son labouring under disease. It will not be necessary to specify the particular instances of Gross cases of the more gross kinds of wilful murder in which the malignity of murder:--poi soning. the heart, the malice prepense which has been already described, is apparent. It may, however, be remarked, that of all species of deaths, that by poison has been considered as the most detestable, because it can, of all others, be least prevented by manhood or forethought. It is a deliberate act, necessarily implying malice, however great the provocation may have been ; (f) and on account of its singular enormity was made treason by the stat. 22 Hen. 8. c. 9., and punishable by a lingering kind of death: but this statute was repealed by stat. 1 Edw. 6. c. 12. ss. 10. & 13., which again makes the offence wilful murder, and takes away clergy.(g) By a late statute, (h) administering poison with intent to murder, though no death should ensue, is made a capital offence, which will be more particularly mentioned in its proper place. (i) Self-murder may be mentioned as a peculiar instance of malice Felo de se. 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. (k) It has been already stated, that a person killing another, upon his desire or command, is guilty of murder (1) 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. (m) But where two persons agree to die together, and one of (d) Rew's case, Kel. 26. (e) 1 Hale 428. Lord Hale says, that thus he had heard that learned and wise Judge, Justice Rolle, frequently direct. (f) 1 East. P. C. c. 5. s. 12, p. 225. s. 30. p. 251. 4 Bl. Com. 200. 1 Hale 455. (g) The true grounds of this statute of Edw. 6. have been much discussed, and different opinions have been expressed on the subject by many great lawyers. See the opinions of Lord Coke, 11 Co. 32 a.; Kelyng, C. J. Kel. 32.; Lord Holt, Kel. 125.; and Mr. Just. Foster, Fost. 68, 69. Mr. Justice Foster considered the enactments of the statute to be not in affirmance of (h) 43 Geo. 3. c. 58. s. 1. (k) 4 Bla. Com. 189. The late sta- (m) 1 Hawk. P. C. c. 27. s. 6. 1 |