C. & P. 632; Williamson's case, 3 C. & P. 635; Long's case, 4 C. & P. 398," (2d case); Senior's case, 1 Moo. C. C. 346; Simpson's case, 4 C. & P. 407," (n.); 1 Lewin, C. C. 172; Spiller's case, 5 C. & P. 333;d Ferguson's case, 1 Lewin, C. C. 181; Spilling's case, 2 Moo. & R. 107; all stated post, title Murder. *Punishment of manslaughter.] By the 9 Geo. 4, c. 31, s. 9; (the [*689] 10 Geo. 4, c. 34, s. 12, I.) "every person convicted of manslaughter shall be liable, at the discretion of the court, to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned with or without hard labour, in the common gaol or house of correction for any term not exceeding four years, or to pay such fine as the court shall award." Venue in cases of murder, &c. committed abroad or upon the seas 692 693 Proof of the murder-party killed 694 Proof of that the prisoner was the party killing 697 Proof of the means of killing 701 Variance in statement of 706 Proof of malice-in general 708 Death ensuing in the performance of an unlawful or wanton act 709 Death ensuing in the performance of a lawful act 711 Persons administering medicines 717 Intent to do bodily injury-death ensuing 720 Duelling. Exposure of infants-killing by neglect, &c. Provocation in general. By words or gestures only By assault Proof of malice-peace officers and others killed in performing their duty Peace officers killed or killing others in the performance of their duty---their 720 724 725 726 728 730 735 736 740 742 743 Mode (where an officer has been killed) in which that killing has been effected Private persons killed or killing others in apprehending them 759 Murder is the voluntary killing of any person under the king's peace of malice prepense or aforethought, either express or implied by law. 1 East, P. C. 214; 3 Inst. 47; 1 Hale, P. C. 425. Eng. Com. Law Reps xiv. 495. с z Id. 497. a Id. xix. 440. b2 Eng. C. C. 346. d Id. xxiv. 346. Eng. Com. Law Reps. xix. 446. *Statutory provisions-punishment.] By the 9 Geo. 4, c. 31, s. 3, (the 10. Geo. 4, c. 34, s. 4, I.) "every person convicted of murder, or of being accessary before or after the fact to murder, shall suffer death as a felon. And every accessary before the fact to murder shall be liable, at the discretion of the court, to be transported beyond the seas for life, or to be imprisoned, with or without hard labour in the common gaol, or house of correction, for any time not exceeding four years." By s. 2, "every offence which before the commencement of the act would have amounted to petit treason, shall be deemed to be murder only, and no greater offence, and all persons guilty thereof, whether as principals or accessaries, shall be dealt with, indicted, tried and punished, as principals and accessaries in murder." By s. 4, provision was made for the execution of murderers, on the day next but one after the passing of the sentence, unless the same was a Sunday, and by s. 5, for the dissection of their bodies, and by s. 6, for their food and treatment while under sentence. By the 2 and 3 Wm. 4, c. 75, s. 16, the 9 Geo. 4, respecting the dissecting of the bodies of murderers, was repealed, and they were directed to be hung in chains, or buried within the precincts of the prison, as the court should direct. By the 4 & 5 Wm. 4, c. 26, (E. & I.) reciting the 9 Geo. 4, c. 31, (E.) and the 10 Geo. 4, c. 34 (I.) and 2 & 3 Wm. 4, c. 75, it is enacted, "that so much of the said recited act made and passed in the ninth year of the reign of his Majesty King George 4, as authorizes the court to direct that the body of a person convicted of murder, should, after execution, be hung in chains, and also so much of the said recited act made and passed in the tenth year of the same reign, as authorizes the court to direct that the body of a person convicted of murder, should, after execution, be dissected or hung in chains, and also so much of the said recited act, made and passed in the second and third years of the reign of his present Majesty, as provides that in every case of conviction of any prisoner for murder, the court shall direct such prisoner to be hung in chains, shall be, and the same is hereby repealed." Now by the 7 Wm. 4 and 1 Vict. c. 30, s. 1, (E. & I.) after reciting the fourth and sixth sections of the 9 Geo. 4, c. 31, and further reciting, that "for the ends of justice and especially more effectually to preserve from any irrevocable punishment, any persons who may hereafter be convicted upon erroneous or perjured evidence," it is expedient to alter the said act in these respects, the above sections are repealed, and it is enacted, (s. 2,) "that from and after the passing of this act sentence of death may be pronounced, after conviction, for murder, in the same manner, and the judge shall have the same power in all respects, as after convictions for other capital offences." Under this statute, the court has now, in cases of murder, as well as of other felonies, or the power of rescinding sentence of death, instead of passing it. Per Lord Denman, C. J., R. v. Mary & Jane Hogg, 2 Moo. & R. 380. Under the old law, when the judge having mistaken the time of execution called the prisoner again to the bar and rectified it, a majority of the judges held that the statute was in this respect merely directory, and that the judge might [ *692] order the prisoner to be executed *at any time within forty-eight hours, but all the judges were of opinion that a mistake in this respect might be rectified at any time during the assizes. Wyatt's case, R. & R. 230. But where the judge omitted that part of the sentence which formerly related to dissection, it was 1 Eng. C. C. 230. a doubted whether it was not an essential part of the sentence, and the prisoner was pardoned on condition of transportation. Fletcher's case, R. & R. 58. Where the sheriff of the city of Chester refused to execute the prisoners, they were removed by habeas corpus into the court of King's Bench, and executed by the marshal of the marshalsea, assisted by the sheriff of Surrey. Garside's case, 2 A. & E. 266.° Now by the 5 & 6 Wm. 4, c. 1, the sheriff of the city of Chester may be ordered to execute criminals in the county of Chester, or they may be ordered to be executed by the sheriff of the county. Venue in cases of murder, &c., committed abroad and upon the seas.] With regard to murders committed abroad, it is enacted by the 9 Gee. 4, c. 31, s. 7, "that if any of his Majesty's subjects shall be charged in England with any murder or manslaughter, or with being accessary before the fact to any murder, or after the fact to any murder or manslaughter, the same being respectively committed on land out of the United Kingdom, whether within the King's dominions or without, it shall be lawful for any justice of the peace of the county or place where the person so charged shall be, to take cognizance of the offence so charged, and to proceed therein as if the same had been committed within the limits of his ordinary jurisdiction; and if any person so charged shall be committed for trial, or admitted to bail to answer such charge, a commission of oyer and terminer under the great seal shall be directed to such persons, and into such county or place as shall be appointed by the lord chancellor, or lord keeper, or lords com. missioners of the great seal, for the speedy trial of any such offender; and such persons shall have full power to inquire of, hear, and determine all such offences, within the county or place limited in their commission, by such good and lawful men of the said county or place as shall be returned before them for that purpose, in the same manner as if the offence had been actually committed in the said county or place: provided always, that if any peers of the realm, or persons entitled to the privilege of peerage, shall be indicted of any such offences, by virtue of any commission to be granted as aforesaid, they shall be tried by their peers in the manner heretofore used; provided also, that nothing therein contained shall prevent any person from being tried in any place out of this kingdom, for any murder or manslaughter committed out of this kingdom, in the same manner as such person might have been tried before the passing of this act." A Spaniard, being in England, signed articles to serve in a ship "bound on a voyage to the Indian seas and elsewhere, on a seeking and trading voyage (not exceeding three years' duration) and back to the United Kingdom." On the ship's arrival at Zanzibar, an island in the Indian Seas, which was under the dominion of an Arab king, the captain left the vessel in pursuance of an understanding in England, and set up in trade; and without the consent of the rest of the crew, engaged the Spaniard as an interpreter, the new captain of the *ship not requiring him to serve on board. The ship went two or three [ *693 ] short voyages without him, and returned to anchor a few hundred yards from the shore, in a roadstead of seven fathoms water between Zanzibar and several other islands. The crew being on shore a quarrel arose between the Spaniard and one of them, which led to blows by the Spaniard which killed the other. The death took place on board the ship. The Spaniard was brought to England, and indicted and tried in London under a special commission issued in pursuance of the above section. It was held by Vaughan and Bosanquet, JJ., that under the circumstances the prisoner could not be convicted, first, as he was not a subject Eng. C. L. Reps. xxiv. 84. 1 Eng. C. C. 58. of his Majesty within the meaning of that section, and secondly, that, as the death was on ship board, though the blows were given on shore the offence could not be said to have been committed according to the words of the statute on land out of the United Kingdom. De Mattos's case, 7 C. & P. 458. Quare, whether if the Spaniard had continued on board the ship and had been at the time of serving under the articles, he could not have been tried as a British subject. Semble, that he could not. Ibid. In Helsham's case, 4 C. & P. 394; where the prisoner was tried under the above section, for murder committed in a duel at Boulogne; Bayley, J., seems to have told the jury that they must be satisfied, that the prisoner was a British born subject. See also Depardo's case, 1 Taunt. 26. A British subject who commits a murder in a foreign country upon a person not a British subject is triable in England under the foregoing section. R. v. Azzopardi, 1 C. & K. 203; 2 Moo. C. C. 288. And by s. 8, of the 9 Geo. 4, c. 31, "where any person, being feloniously stricken, poisoned, or otherwise hurt upon the sea, or at any place out of England, shall die of such stroke, poisoning, or hurt in England, or being feloniously stricken, poisoned, or otherwise hurt at any place in England, shall die of such stroke, poisoning or hurt, upon the sea, or at any place out of England, every offence committed in respect of any such case, whether the same shall amount to the offence of murder or of manslaughter, or of being accessary before the fact to murder, or after the fact to murder or manslaughter, may be dealt with, inquired of, tried, determined and punished in the county or place in England in which such death, stroke, poisoning, or hurt shall happen, in the same manner in all respects, as if such offence had been actually committed in such county or place." The 10 Geo. 4, c. 34, s. 11(I.) contains a similar provision. See further, title, Venue. Proof of a murder having been committed.] The corpus delicti, that a murder had been committed by some one, is essentially necessary to be proved, and Lord Hale advises that in no case should a prisoner be convicted, where the dead body has not been found-where the fact of murder depends upon the fact of disappearance, ante, p. 18.(1) A girl was indicted for the murder of her child aged sixteen days. She was proceeding from Bristol to Llandogo, and she was seen near Tintern with a child in her arms at six o'clock in the evening; she arrived at Llandogo between eight and nine without the child. The body of a child was afterwards found in the Wye, near Tintern, which appeared not to be the child of the prisoner. Lord Abinger, C. B., held that the prisoner must be acquitted, and that she could not [ *694 ] by *law either be called upon to account for her child, or to say where it was, unless there was evidence to show that the child was actually dead. Hopkin's case, 8 C. & P. 591." Where the death has been occasioned in secrecy, says Mr. Starkie, a very important preliminary question arises whether it has not resulted from accident, or from the act of the party himself. It sometimes happens that a person determined on self-destruction resorts to expedients to conceal his guilt, in order to save his memory from dishonour, and his property from forfeiture. Instances also have occurred where, in doubtful cases, the surviving relations have used great exer (1) Tyner v. The State, 5 Humphreys, 383. Eng. C. L. Reps. xxxii. 584. • Id. xix. 438. Id. xlvii. 203. * Id. xxxiv. 540. tions to rescue the character of the deceased from ignominy by substantiating a charge of murder. (Cooper's case, 5 St. Tr.) On the other hand, in frequent instances attempts have been made by those who have really been guilty of murder, to perpetrate it in such a manner, as to induce a belief that the party was felo de se. Where the circumstances are natural and real, and have not been counterfeited with a view to evidence, they must necessarily correspond and agree with each other, for they did really co-exist; and therefore, if any one circumstance which is essential to the case attempted to be established be wholly inconsistent and irreconcilable with such other circumstances as are known or admitted to be true, a plain and certain inference results that fraud and artifice have been resorted to, and that the hypothesis to which such a circumstance is essential cannot be true. 2 Stark. Ev. 521, 2d ed. The question, observes Mr. Starkie, whether a person has died a natural death, as from apoplexy, or a violent one, as from strangulation, whether the death of a person found immersed in water, has been occasioned by drowning or by force and violence previous to the immersion, (see Cowper's case, 5 St. Tr.) whether the drowning was voluntary, or the result of force, whether the wounds inflicted on the body were inflicted before or after death, are questions to be decided by medical skill. It is scarcely necessary to remark, that where a reasonable doubt arises whether the death resulted on the one hand from natural or accidental causes, or, on the other, from the deliberate and wicked act of the prisoner, it would be unsafe to convict him notwithstanding strong, but merely circumstantial, evidence against him. Even medical skill is not, in many instances, and without reference to the particular circumstances of the case, decisive as to the cause of the death; and persons of science must, in order to form their own conclusion and opinion, rely partly on external circumstances. It is, therefore, in all cases expedient that all the accompanying facts should be observed and noted with the greatest accuracy; such as the position of the body, the state of the dress, marks of blood or other indications of violence; and in cases of strangulation, the situation of the rope, the position of the knot; and also the situation of any instrument of violence, or of any object by which, considering the position and state of the body, and other circumstances, it is possible that the death may have been accidentally occasioned. 2 Stark. Ev. 521, 2d ed. (1) Proof of the murder-as to the party killed.] A child in the womb is considered pars viscerum matris, and not possessing an individual existence, and cannot, therefore, be the subject of murder. Thus, if *a woman, quick or great [ *695] with child, take a potion to procure abortion, or if another give her such potion, or strike her, whereby the child within her is killed, it is neither murder nor manslaughter, 1 Hale, P. C. 433. Whether or not a child was born alive is a proper question for the opinion of medical men. Where a woman was indicted for the wilful murder of her child, and the opinion of the medical men was that it had (1) When death is caused by a wound received, the person who inflicts is responsible for its consequences, though the deceased might have recovered by the exercise of more care and prudence. McCallister v. The State, 17 Alabama, 434. When a surgical operation is performed in a proper manner, and under circumstances which render it necessary in the opinion of competent surgeons upon one who has received a wound apparently mortal, and such operation is ineffectual to afford relief and save the life of the patient, or is itself the immediate cause of death, the party inflicting the wound will nevertheless be responsible for the consequences. Commonwealth v. McPike, 3 Cushing, 181. |