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By rape.

By medicines.

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) By infection.

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.() 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) Time of death. It is agreed that no person shall be adjudged by any act what

ever 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 wounds.

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. i Hale 429. the point, as the indictment was holden (26) Brit. c. 5. 4 Inst. 251.

to be defective, in not having stated (y) i Hale 429.

that the prisoner gave the deceased a (z) i Hale 432.

mortal wound. (a) 6 Geo. 4. c. 78. s. 2, 21. Ante, (c) i Hawk. P.C. c. 31. S. 9. 4 Bla. 111, et seq.

Com. 197. 1 East, P. C. c. 5. s. 119. (6) Rex v. Ladd, I Leach 96. 1 East. p. 343, 344. P. C. 226. The Judges to whom the (d) I Hale 428. case was referred gave no opinion upon

Treatment of

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, Killing a permight possibly end his life in half a year, and another gives him á son labouring

under disease. 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)

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:--poithe heart, the malice prepense which has been already described, soning. 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. e. 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, wbich 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 :(l) 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

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(d) Rew's case, Kel. 26.

the statute to be not in affirmance of (e) 1 Hale 428. Lord Hale says, the common law, but by way that thus he had heard that learned vival of it: to this solution of the difand wise Judge, Justice Rolle, fre- ficulty Mr. Barrington has made some quently direct

objections, (Obs. on the Stat. 524.) (f) i East. P. C. c. 5. s. 12, p. 225. which have been observed upon by the s. 30. p.251. 4 Bl. Com. 200. 1 Hale 455. editor of Mr. Just. Foster's work, in

(g) The true grounds of this statute his Preface to the second edition. of Edw. 6. have been much discussed, (h) 43 Geo. 3. c. 58. s. 1. and different opinions have been ex- (1) Post, Chap. x. pressed on the subject by many great (1) 4 Bla. Com. 189. The late staJawyers. See the opinions of Lord tute, 4 Geo. 4. c. 52. regulates, as to Coke, 11 Co. 32 a.; Kelyng, C. J. Kel. the interment of the remains of a per32., Lord Holt, Kel. 125.; and Mr. son found felo de se. Just. Foster, Fost. 68, 69. Mr. Justice (1) Ante, 424. Foster considered the enactments of (m) i Hawk. P. C. c. 27. s. 6.

lence, and from a well grounded apprehension of his doing such further violence as would endanger her life, he was answerable for the consequences of the fall, as much as if he had thrown her out of the window himself. The prisoner however was acquitted; the jury being of opinion that the deceased threw herself out of the window from her own intemperance, and not under the influ

ence of the threats. (u) By negligence Upon the same principles, where there is found to be actual and harsh usage towards malice, or a wilful disposition to injure another, or an obstinate an apprentice. perseverance in doing an act necessarily attended with danger,

without regard to the consequences, as if a master by premeditated negligence, or harsh usage, cause the death of his apprentice, it will be murder. Thus, where the prisoner, upon his apprentice returning to him from Bridewell, whither he had been sent for misbehaviour, in a lousy and distempered condition, did not take that care of him which his situation required, and which he might have done; not having suffered him to be in a bed on account of the vermin, but having made him lie on the boards for some time without covering, and without common medical care ; and the death of the apprentice, in the opinion of the medical persons who were examined, was most probably occasioned by his ill treatment in Bridewell, and the want of care when he went home; and the medical persons inclined to think that, if he had been properly treated when he came home, he might have recovered; the court under these circumstances, and others in favour of the prisoner, left it to the jury to consider, whether the death of the apprentice was occasioned by the ill treatment he received from his master after returning from Bridewell, and whether that ill treatment amounted to evidence of malice; in which case they were to find him guilty of murder. (m) And in a more modern case a prisoner was found guilty of murder in causing the death of his apprentice, by not providing him with sufficient food and nourishment. The prisoner Charles Squire, and his wife, were both indicted for the murder of a boy who was bound as a parish apprentice to the prisoner Charles; and it appeared upon the trial that both the prisoners had used the apprentice in a most cruel and barbarous manner, and had not provided him with sufficient food and nourishment; but the surgeon who opened the body deposed that in his judgment the boy died from debility, and for want of proper food and nourishment, and not from the wounds, &c. which he had received. Lawrence, J., upon this evidence, was of opinion that the case was defective as to the

wife, as it was not her duty to provide the apprentice with sufficient food and nourishment, she being the servant of her husband, and so directed the jury, who acquitted her; but the husband was found guilty and executed. (n)

(a) Rex v. Evans, O. B. Sept. 1812. to the principles upon which the wife MS. Bayley, J.

was acquitted, see the case more (m) Self's case, 1 East. P. C. c.5. s. fully stated, anle, 16. After the sur13. p. 226, 7. 1 Leach 137., and see geon had deposed that the bos died the case more fully stated in the Chap- from debility, and for want of proper ter on Manslaughier.

food and nourishment, and not from (n) Rex v. Squire and his wife, Staf- the wounds, &c. which he had reford Lent Assizes, 1799, MS. ; and asceived, the learned judge was proceed

By the ancient common law, a species of killing was held to be By perjury, murder, concerning which much doubt has been entertained in more modern times, namely, the bearing false witness against another with an express premeditated design to take away his life, so as the innocent person be condemned and executed. (o) But a very long period has elapsed since this offence has been holden to be murder; and in the last instance of a prosecution for it, the prisoners having been convicted, judgment was respited, in order that the point of law might be more fully considered upon a motion in arrest of judgment. (p) The then attorney general, , however, declining to argue the point, the prisoners were discharged of that indictment: but it should seem that there are good grounds for supposing that the attorney general declined to argue this point from prudential reasons, and principally lest witnesses might be deterred from giving evidence upon capital

prosecutions if it must be at the peril of their own lives, but not from any apprehension that the point of law was not maintainable. (9) In foro conscientiæ this offence is, beyond doubt, of the deepest malignity.

If a man has a beast that is used to do mischief, and he, know- By savage aniing it, suffers it to go abroad, and it kills a man, this has been mals. considered by some as manslaughter in the owner; (r) and it is agreed by all that such a person is guilty of a very gross misdemeanor : (s) and if a man purposely turn such an animal loose, knowing its nature, it is with us (as in the Jewish law) (t) as much murder, as if he had incited a bear or a dog to worry people; and this, though he did it merely to frighten them, and make what is called sport. (u) ing to enquire of him, whether, in his trial took place in 1756. The prijudgment, the series of cruel usage soners were indicted for murder upon the boy had received, and in which a conspiracy of the kind mentioned in the wife had been as active as her hus- the text against one Kidden, who had band, might not have so far broken been convicted and executed for a his constitution as to promote the de- robbery upon the highway, upon the bility, and co-operate along with the evidence of Berry and Jones. want of proper food and nourishment (9) 4 Blac. Com. 196. note (g), where to bring on his death, when the sur- Mr. J. Blackstone says, that he had geon was seized with a fainting fit, good grounds for such an opioion, and, being taken out of court, did and that nothing should be concluded not recover sufficiently to attend again from the waiving of that prosecution ; upon the trial. The judge, after ob- and in 1 East. P.C. c.5. S 94. p. 333. serving, that upon the evidence, as it note (a), the author states that he had then stood, he could not leave it to heard Lord Mansfield, C. J. make the the jury to consider, whether the same observation, and say, that the wounds, &c. inflicted on the boy, had opinions of several of the judges at contributed to cause his death, said, that time, and his own, were strongly that any physician or surgeon were in support of indictment. present who had heard the trial, he (r) 4 Blac. Com. 197. might be examined as to the point in- (s) I Hawk. P. C. c. 31. s. 8. tended to be enquired into; but no (0) Exod. c. xxi. v. 29. such person being present, he deli- (u) 4 Blac. Com. 197. and see i vered his opinion to the jury, as stated Hale, 430. where the author says, that in the text.

he had heard tbat it had been ruled to (o) Mirror, c. 1. s. 9. Brit. c. 52. be murder, at the Assizes held at St. Bract. lib. 3. c. 4. 1 Hawk. P.C. c. Albans, for Hertfordshire, and the 31. s. 7. 3 Inst. 91. 4 Blac. Com. 196. owner hanged for it; but that it was

(p) Rex v. Macdaniel, Berry, and but an hearsay. Jones, Fost. 132. 1 Leach 44. This

By medicines. 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 :(*) 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) By infection.

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) By rape.

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. () Time of death. It is agreed that no person shall be adjudged by any act what

ever 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) Treatment of 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 fe

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. the point, as the indictment was holden (x) Brit. c. 5. 4 Iost. 251.

to be defective, in not having stated (y) i Hale 429.

that the prisoner gave the deceased a (z) i Hale 432.

mortal wound. (a) 6 Geo. 4. c. 78. S. 2, 21. Ante, (c) i Hawk. P. C. c. 31. s. 9. 4 Bla. ill, et seq.

Com. 197. 1 East. P. C. c. 5. s. 112. (6) Rex v. Ladd, I Leach 96. 1 East. p. 343, 344. P.C. 226. The Judges to whom the (d) i Hale 428. case was referred gave no opinion upon

wounds.

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