constable, with about sixteen or twenty called to his assistance, came with the warrant to the house, and demanded entrance, and acquainted some of the persons within that he was the constable, and came with the justice's warrant, and demanded A. with the rest of the offenders that were then in the house; and one of the persons within came and read the warrant, but denied admission to the constable, or to deliver A. or any of the malefactors; but going in, commanded the rest of the company to stand to their staves. The constable and his assistants fearing mischief, went away; and being about five rods from the door, B., C., D., E., F., &c., about fourteen in number, issued out and pursued the constable and his assistants. The constable commanded the peace, yet they fell on, and killed one of the assistants of the constable, and wounded others, and then retired into the house to the rest of their company which were in the house, whereof the said A. and one G. that read the warrant were two. For this A., B, C., D., E., F., G., and divers others, were indicted of murder, and tried at the King's Bench bar, when these points were unanimously determined:

1. That although the indictment were, that B. gave the stroke, and the rest were *738] present aiding and assisting, though in truth C. *gave the stroke, or that it did not appear upon the evidence which of them gave the stroke, but only that it was given by one of the rioters, yet that such evidence was sufficient to maintain the indictment; for in law it was the stroke of all that party, according to the resolution in Mackally's case.(e)

2. That in this case all that were present and assisting to the rioters were guilty of the death of the party slain, though they did not all actually strike him or any of the constable's company.

3. That those within the house, if they abetted or counselled the riot, were in law present aiding and assisting, and principals, as well as those that issued out and actually committed the assault; for it was but within five rods of the house, and in view thereof, and all done as it were at the same instant.(ƒ)

4. That here was sufficient notice that it was the constable, before the man was killed. 1. Because he was the constable of the same vill. 2. Because he notified his business at the door before the assault, viz., that he came with the justice's warrant. 3. Because after his retreat, and before the man was slain, the constable commanded the peace; and notwithstanding, the rioters fell on and killed the party. 5. It was resolved that the killing of the assistant of the constable was murder, as well as the killing of the constable himself.

6. That those who come in to the assistance of the constable, though not specially called thereunto, are under the same protection as they that are called to his assistance by name.

7. That although the constable retired with his company upon the not delivering up of A., yet the killing of the assistant of that constable in that retreat was murder. 1. Because the retreat was one continued act in pursuance of his office; being necessary, when he could not attain the object of his warrant, and being in effect a continuation of the execution of his office, and under the same protection of the law as his coming was. 2. Principally because the constable, in the beginning of the assault, and before the man was stricken, commanded the peace.

8. It seems that even if the constable had not commanded the peace, yet as he and his company came about what the law allowed them, and, when they could not effect it fairly, were going away, the rioters pursuing them and killing one made the offence murder in them all; for the act was done without provocation, and the constable and his company were peacefully retiring; but this point was not relied upon, because there was enough upon the former point to convict the offenders. In the conclusion, the jury found nine of them guilty, and acquitted those within; not because they were absent, but because there was no clear evidence that they

(e) 9 Co. 67 b.

(ƒ) Vide Lord Dacre's case, 1 Hale 439. The Lord Dacre and divers others came to shoot deer in the park of one Pelham. Rayden, one of the company, killed the keeper in the park, the Lord Dacre and the rest of the company being in other parts of the park; and it was ruled that it was murder in them all, and they died for it: Crompt. 25, a Dalt. c. 145, p. 472; 34 Hen. 8, B. Coron. 172. See also Moor 86; Kely. 56.

consented to the assault as the jury thought; and therefore judgment was given against the nine to be hanged.(g)

*Sec. IV. Cases where the Killing takes place in the Prosecution of some

other Criminal, Unlawful, or Wanton Act.

[*739

IF an action, unlawful in itself, be done deliberately, and with intention of mischief or great bodily harm to particular individuals, or of mischief indiscriminately, fall where it may, and death ensues against or beside the original intention of the party, it will be murder.(h)

Under this head may be mentioned the cases of particular malice to one individual falling by mistake or accident upon another, which, by the ignorance or lenity of juries, have been sometimes brought within the rule of accidental death. But though, in a loose way of speaking, it may be called accidental death when a person dies by a blow not intended against him, the case is considered by the law in a very different light. Thus, if it appears from circumstances that the injury intended to A., whether by poison, blow, or any other means of death, would have amounted to murder if he had been killed by it, it will amount to the same offence if B. happen to fall by the same means ;(i) so that if C., having malice against A., strikes at and misses him, but kills B., this is murder in C. :(k) and upon the same principle, if A. and B. engage in a deliberate duel, and a stranger coming between them to part them is killed by one of them, it is murder in the party killing.(7) And it has also been resolved, that where A. had malice against D., the master of B., and assaulted him, and upon B. the servant coming to the aid of his master, A. killed B., it was murder in A. as much as if he had killed the master. (m) So, where A. gave a poisoned apple to his wife intending to poison her, and the wife, ignorant of the matter, gave it to a child who took it and died; this was held murder in A., though he, being present at the time endeavored to dissuade his wife from giving the apple to the child.(n) And, upon the same principle, it was held to be murder where A. mixed poison in an electuary sent by an apothecary to her husband, which did not kill him, but afterwards killed the apothecary, *who to vindicate his reputation, tasted it himself, having first stirred it about.(0) [*740 Doubt was entertained, because the apothecary, of his own hand, without incitement from any one, not only partook of the electuary, but mingled it together, so as to incorporate the poison, and make its operation more forcible than the mixture as made by the wife of A. but the Judges resolved that she was guilty of murder; for the putting the poison into the electuary was the cause of the death: and if a person prepares poison with intent to kill any reasonable creature, such person is guilty of the murder of whatever reasonable creature is killed thereby.(p) So if

(g) Sissinghurst House case, 1 Hale 461, 2, 3 The award was for the marshal to do execution, because they were remanded to the custody of the marshal, and he is the immediate officer of the court, and precedents in cases of judgments given in the King's Bench have commonly been Et dictum est marescallo, &c., quod faciat executionem periculo incumbente.

(h) Fost. 261. (i) Id. Ibid. ;

Hale 441; Williams's case, 1 Hale 469, which Holt, C. J., thought would have been a case of murder, if the indictment had been so laid. See Mawgridge's case, Kel. 131.

(k) 1 East P. C. c. 5, s. 17,

p. 230.

(2) 1 Hale 441; Dalt. c. 145, p. 472. It appears to have been holden in such a case, where the combating was by malice prepense, that the killing of the person who came to part them was murder in both the combatants: 22 Edw. 3, Coron. 262; Lambard out of Dallison's Report, p. 217. But Lord Hale thinks that this is mistaken, and that it is not murder in both, unless both struck him who came to part them; and says that by the book of 22 Ass. 71, Coron. 180 (which seems to be the case more at large), he only that gave the stroke had judgment, and was executed: 1 Hale 441, to which this note is subjoined; "the other does not appear to have been before the court: but, upon putting the case, the court said he that struck is guilty of felony, but said nothing as to him who did not strike."

(m) 1 Hale 438.

(n) Saunders' case, Plowd. 474; 1 Hawk. P. C. c. 31, s. 45; 1 Hale 436.

(0) Gore's case, 9 Co. 81; 1 Hawk. P. C. c. 31, s. 45; 1 Hale 436.

(p) Ante, note (o).

VOL. 1.-38

A. put poison into wine, with intent to kill B., and C. drinks thereof and dies, A. is guilty of the murder of C.; and it makes no difference that the wine, unless stirred up, would not have killed C., and that C, thinking there was sugar in it, stirred it up.(g)

So where a person gave medicine to a woman to procure an abortion,(r) and where a person put skewers into the womb of a woman for the same purpose ;(s) by which in both cases the women were killed, these acts were held clearly to be murder; for, though the death of the woman was not intended, the acts were of a nature deliberate and malicious, and necessarily attended with great danger to the persons on whom they were practiced.

There are also other cases where no mischief is intended to any particular individual, but where there is a general malice or depraved inclination to mischief, fall where it may; and in these cases the act itself being unlawful, attended with probable serious danger, and done with a mischievous intent to hurt people, the killing will amount to murder.(t) Thus, if a man go deliberately, and with an intent to do mischief, upon a horse used to strike, or coolly discharge a gun amongst a multitude of people, and death be the consequence of such acts, it will be murder.(u) So, if a man resolves to kill the next man he meets, and does kill him, it is murder, although he knew him not; for this is universal malice. (v) And upon the same principle, if a man knowing that people are passing along the street, throw a stone likely to do injury, or shoot over a house or wall with intent to do hurt to people, and one is thereby slain, it is murder on account of the previous malice, though not directed against any particular individual: for it is no excuse that the party was bent upon mischief generally.(w)

Whenever an unlawful act, an act malum in se, is done in prosecution of a felonious intention, and death ensues, it will be murder: as if A. shoot at the poultry of B. intending to steal the poultry, and by accident kill a man, this will be murder by *reason of the felonious intention of stealing.(x) So, if a man *741] set fire to a house, whereby a person in it is burnt to death.(y) And it was held, that if such offenders as were mentioned in the statute De malefactoribus in parcis,(z) killed the keeper, &c., it was murder in all, although it appeared that

(g) 9 Co. 81 b. See Reg. v. Michael, 2 Moo. C. C. R. 120.

(r) 1 Hale 429.

(s) Tinckler's case, 1 East P. C. c. 5, s. 17, p. 230, and s. 124, p. 354. (t) 1 Hale 475; 1 East P. C. c. 5, s. 18, p. 231.

(u) 1 Hale 476; 4 Blac. Com. 200; 1 Hawk. P. C. c. 29, s. 12; 1 East P. C. c. 5, s. 18, p. 231. Hawkins, speaking of the instance of the person riding a horse used to kick amongst a crowd, says, it would be murder, though the rider intended no more than to divert himself by putting the people into a fright: 1 Hawk. P. C. c. 31, s. 68, and see ante, p. 687.

(v) 4 Blac. Com. 200.

(w) 1 Hale 475; 3 Inst. 57; 1 East P. C. c. 5, s. 18, p. 231.

(x) Fos. 258, 259. Lord Coke, 3 Inst. 56, says, "if the act be unlawful it is murder; as if A., meaning to steal a deer in the park of B., shoots at the deer, and by the glance of the arrow kills a boy that is hidden in a bush, this is murder; for that the act was unlawful," and he cites Bract. Lib. 3, 120 b. And then he draws the distinction between shooting wild fowl and shooting at any tame fowl, and says, if the arrow by misadventure kills a man, it is murder; and cites for the latter position 3 Edw. 3, Coron. 354; 2 Hen. 4, 18, and 11 Hen. 7, 23. Lord Hale, 1 Hale 38, cites 11 Hen. 7, 23; Br. Coron. 229; Proclamation 12; 22 Ass. pl. 71, and see 1 Hale 568. In Rex v. Plummer, Kel. 117, the question is discussed in the judgment of the C. J., and Lord Coke's dictum is explained to mean that if two men have a design to steal a hen, and one shoots at the hen for that purpose, and a man be killed, it is murder in both, because the design was felonious; and it is said that with that explanation the books cited do warrant that opinion. Forster 258-9, cites 3 Inst. 56, and Kel. 117. There is, therefore, much in the books on the subject; and, with all deference to the opinions of others, the rule that any one who deliberately attempts to commit a felony and thereby occasions death, is guilty of murder, seems to be right. If this were not the rule, any person might burn any man's house and him in it, and be liable to no punishment for causing the death; for it never could be proved that he knew that there was any one in it. And a more salutary rule cannot be than that he who attempts to commit a felony shall be liable to the natural consequences of his

felonious act.

(y) Reg. v. Smithies, 5 C. & P. 332 (24 E. C. L. R.).

(z) 21 Edw. 1, st. 2, now repealed by 7 & 8 Geò. 4, c. 27; 1 Hale 491.

the keeper ordered them to stand, assaulted them first, and that they fled, and did not turn till one of the keeper's men had fired, and hurt one of their companions. (a) On an indictment for murder, it appeared that the prisoner had set fire to a stack of straw in an enclosure in which was an out-house or barn, but not adjoining to any house. While the fire was burning, the deceased was seen in the flames, and his body was afterwards found in the enclosure. It did not clearly appear whether he had been in the outhouse or merely lying on or by the side of the stack. There was no evidence who he was, or how or when he came there, nor that the prisoner had any idea that any one was or was likely to be there, and when he saw the deceased, he wanted to save him. It did not exactly appear how long the fire had been kindled before it was discovered, but very soon after it was discovered the deceased was seen in the flames. Bramwell, B., told the jury that "the law laid down was that where a prisoner, in the course of committing a felony, caused the death of a human being. that was murder, even though he did not intend it. And though that may appear unreasonable, yet, as it is laid down as law, it is our duty to act upon it. The law, however, is that a man is not answerable except for the natural and probable result of his own act: and therefore, if you should not be satisfied that the deceased was in the farm or enclosure at the time the prisoner set fire to the stack, but came in afterwards, then, as his own act intervened between the death and the act of the prisoner, his death could not be the natural result

of the prisoner's act. And in that view he ought to be acquitted on the [*742 present charge."()

Also, where the intent is to do some great bodily harm to another, and death ensues, it will be murder; as if A. intended only to beat B., in anger, or from preconceived malice, and happen to kill him, it will be no excuse that he did not intend all the mischief that followed; for what he did was malum in se, and he must be answerable for all its consequences. He beat B. with an intention of doing him some bodily harm, and is therefore answerable for all the harm he did.(c) So if a large stone be thrown at one with a deliberate intention to hurt, though not to kill him, and by accident it kill him, or any other, this is murder. (d) If a wrongful act (an act which the party who commits it can neither justify nor excuse) be done under circumstances which show an intent to kill, or do any serious injury, or any general malice, the offence is murder. (e) But the nature of the instrument, and the manner of using it, as calculated to produce great bodily harm or not, will vary the offence in all such cases. (f)

Upon an indictment for murder it appeared that the deceased, being in liquor, had gone at night into a glass-house, and laid himself down upon a chest; and that while he was there asleep the prisoners covered and surrounded him with

(a) 1 East P. C. c. 5, s. 31, p. 256, citing 1 MS., Sum. 145, 175; Sum. 37, 46; Palm. 546; 2 Roll. Rep. 120. The reason is the Act provides that, if after hue and cry made to stand, they will not yield, but flee or defend themselves, and the keepers kill them in taking them, they shall not be troubled in any way for it. Therefore all that the keepers did in this case was lawful, and consequently the killing was the killing of a party in the due execution of his duty.

(b) Reg. v. Horsey, 3 F. & F. 287. The natural and probable result of setting anything on fire is that it will burn whatever may happen to be in proximity to it during its progress, and not merely what happens to be so when the fire was lighted. If a man sets an infernal engine, with a lighted fuse, the natural and probable consequence is that it will kill whoever is near it at the time it explodes, and it has never been doubted that this would be murder if a person was killed by it, however far off he was when the fuse was lighted. See also and consider the cases of poisoning at p. 739. The proper mode to look at cases of this kind is to suppose that the prisoner actually applied a light to each particular thing to which the fire extended at the very time the fire reached it. That is the legal effect of the prisoner's act, and he may be indicted for setting fire to every new subject-matter reached by the fire. Suppose a rick were set fire to, and the fire extended to a house, and that there was no one in the house when the rick was set on fire, but that when the fire reached the house there was a man in it; can it be doubted that this would be setting fire to a house with a man in it within the 24 & 25 Vict. c. 97, s. 2? The learned Baron's ruling therefore seems to have been incorrect.

(c) Fost. 259.

(d) 1 Hale 440, 441.

(e) Per Tindal, C. J., Fenton's case, 1 Lewin 179. See the case, post, 852. (ƒ) Kel. 127; 1 East P. C. c. 5, s. 32, p. 257.

straw, and threw a shovel of hot cinders upon his belly; the consequence of which was that the straw ignited, and he was burnt to death: there was no evidence of express malice, but the conduct of the prisoners indicated an entire recklessness of consequences, hardly consistent with anything short of design. Patteson, J., adverted to the fact of there being no evidence of express malice, but told the jury that if they believed the prisoners really intended to do any serious injury to the deceased, although not to kill him, it was murder; but if they believed their intention to have been only to frighten him in sport, it was manslaughter.(g)

Where divers persons resolve generally to resist all opposers in the commission of any breach of the peace, and to execute it in such a manner as naturally tends to raise tumults and affrays, as by committing a violent disseisin with great numbers of people, or going to beat a man, or rob a park, or standing in opposition to the *743] sheriff's posse, they must, when they engage in such bold disturbances *of the public peace, at their peril, abide the event of their actions. And therefore if in doing any of these acts they happen to kill a man, they are all guilty of murder.(h) But it should be observed, that in order to make the killing by any murder in all of those who are confederated together for an unlawful purpose, merely on account of the unlawful act done or in contemplation, it must happen during the actual strife or endeavor, or at least within such a reasonable time afterwards as may leave it probable that no fresh provocation intervened.(i)

Lee and Costen were indicted for the murder of S. J. Hill. Hill was at a public house where the prisoners were, and showed some money, and left to go home; the prisoners followed him. Lee first came up to Hill and pushed him through a hedge, so that he fell down a bank five feet high. Lee jumped down after him, and tried to rob him, but he resisted, and Lee called out to Costen to come and help him; Costen then went and helped to force the purse out of Hill's hand. It was not clearly proved what was the precise degree of violence used, as Hill said that he was so shaken with his fall that he hardly knew; but they both used some violence to force the money from him. Pollock, C. B., told the jury "that if two or more persons go out to commit a felony, with intent that personal violence shall be used in its committal, and such violence is used and causes death, then they are all guilty of murder, even although death was not intended." "It is for you to consider whether there was any such joint design here, or, if not, whether Costen was party to such violence as tended in this case to cause death. If not you must acquit him, and I think there is no such evidence."(i)

And it should also be observed, that the fact must appear to have been committed strictly in prosecution of the purpose for which the party was assembled; and therefore, if divers persons be engaged in an unlawful act, and one of them, with malice prepense against one of his companions, finding an opportunity, kill him, the rest are not concerned in the guilt of that act, because it had no connection with the crime in contemplation.(k) So, where two men were beating another man in the street, and a stranger made some observation upon the cruelty of the act, upon which one of the two men gave him a mortal stab with a knife; and both the men were indicted as principals in the murder; although both were doing an unlawful act in beating the man, yet as the death of the stranger did not ensue upon that act, and as it appeared that only one of them intended any injury to the person killed, the Judges were of opinion that the other could not be guilty, either as principal or accessory.()

Where a party of smugglers were met and opposed by an officer of the Crown, and during the scuffle which ensued a gun was discharged by a smuggler, which killed one of his own gang, the question was, whether the whole gang were guilty

(g) Errington's case, 2 Lewin 217.

(h) 1 Hawk. P. C. c. 31, s. 51; Staundf. 17; 1 Hale 439, et seq.; 4 Blac. Com. 200; 1 East P. C. c. 55, s. 33, p. 257.

(i) 1 East P. C. c. 5, s. 34, p. 259.

(ii) Reg. v. Lee, 4 F. & F. 63.

(k) 1 Hawk. P. C. c. 31, s. 52; Fost. 351. And see the charge of Foster, J., on a special commission for the trial of Jackson and others, at Chichester, 9 St. Tri. (ed. by Hargr.) 715, et seq.

(1) Anonymous, 8 Mod. 164; 1 Hawk. P. C. c. 31, s. 52.