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. (g) 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 malicious, and of course amounting to murder, until the contrary appears, from circumstances of alleviation, excuse, or justification: () and that it is incumbent upon the prisoner to make out (f) East, P. C. c. 5, s. 2, p. 215. (h) 1 Hale, 455. 4 Blac. Com. 200. (i) 1 Hale, 474. 1 Hawk. P. C. c. 29, s. 12. 4 Blac. Com. 200. 1 East, P. C. c. 5, s. 18. Malitia, in its proper or legal sense, is different from that sense which it bears in common speech. In common acceptation it signifies a desire of revenge, or a settled anger against a particular person: but this is not the legal sense; and Lord Holt, C. J., says upon this subject, "Some have been led into mistakes by not well considering what the passion of malice is; they have construed it to be a rancour of mind lodged in the person killing for some considerable time before the commission of the fact; which is a mistake, arising from the not well distinguishing between hatred and malice. Envy, hatred and malice, are three distinct passions of the mind." Kel. 127. Amongst the Romans, and in the civil law, malitia appears to have imported a mixture of fraud, and of that which is opposite to simplicity and honesty. Cicero speaks of it (De Nat. Deor. Lib. 3, s. 30) as "versuta et fallax nocendi ratio ;" and in another work (De Offic. Lib. 3, s. 18,) he says, " mihi quidem etiam vera hæreditates non honesta videntur si sint malitiosis (i. e. according to Pearce, a malo animo profectis) blanditiis officiorum; non veritate, sed simulatione quæsita." And see Dig. Lib. 2, Tit. 13, Lex 8, where, in speaking of a banker or cashier giving his accounts, it is said, "Ubi exigitur argentarius rationes edere, tunc punitur cum dolo malo non exhibet Dolo malo autem non edit, et qui malitiose edidit, et qui in totum non edit.” Amongst us malice is a term of law importing directly wickedness, and excluding a just cause or excuse. Thus Lord Coke, in his comment on the words per malitiam, says, if one be appealed of murder, and it is found by verdict that he killed the party se defendendo, this shall not be said to be per malitiam, because he had a just cause." 2 Inst. 384. And where the statutes speak of a prisoner on his arraignment standing mute of malice, the word clearly cannot be understood in its common acceptation of anger or desire of revenge against another. 66 Thus where the 25 Hen. 8, c. 3, says, that persons arraigned of petit treason, &c., standing "mute of malice or froward mind," or challenging, &c., shall be excluded from clergy, the word malice, explained by the accompanying words, seems to signify a wickedness or frowardness of mind in refusing to submit to the course of justice; in opposition to cases where some just cause may be assigned for the silence, as that it proceeds from madness, or some other disability or distemper. And in the statute 21 Edw. 1, De malefactoribus in parcis, trespassers are mentioned who shall not yield themselves to the foresters, &c., but "immo malitiam suam prosequendo et continuando," shall fly or stand upon their defence. And where the question of malice has arisen in cases of homicide, the matter for consideration has been (as will be seen in the course of the present and subsequent chapters) whether the act were done with or without just cause or excuse; so that it has been suggested (Chapple, J., MS. Sum.) that what is usually called malice implied by the law would perhaps be expressed more intelligibly and familiarly to the understanding if it were called malice in a legal sense. Malice," in its legal sense, denotes a wrongful act done intentionally without just cause or excuse." Per Littledale, J. M.Pherson v. Daniels, 10 B. & C. 272. "We must settle what is meant by the term malice. The legal import of this term differs from its acceptation in common conversation. It is not, as in ordinary speech, only an expression of hatred and ill will to an individual, but means any wicked or mischievous intention of the mind. Thus in the crime of murder, which is always stated in the indictment to be committed with malice aforethought, it is neither necessary in support of such indictment to show that the prisoner had any enmity to the deceased, nor would proof of absence of ill will furnish the accused with any defence, when it is proved that the act of killing was intentional, and done without any justifiable cause." Per Best, J. Harvey, 2 B. & C. 263. Rex v. (k) 4 Blac. Com. 201. In Rex v. Greenacre, 8 C. & P. 35, Tindal, C. J., said The party killing. 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 presumed 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) 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. (pp) The person committing the crime must be a free agent, and not subject to actual force at the time the fact is done: thus if A. by 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 idiot, 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 himself, the adviser is guilty of murder; (ss) and if the party takes poison himself by the persuasion of another, in the absence of the " where it appears that one person's (1) Fost. 255. 4 Blac. Com. 201. 1 East, (m) 1 East, P. C. c. 5, s. 12, p. 224. (0) 1 Hawk. P. C. c. 31, s. 30. (p) 1 Hale, 451. (pp) 1 Hale, 446. Plowd. 100, post, p. 510. (q) 1 Hale, 433. Dalt. c. 145, p. 473. 1 East, P. C. c. 5, s. 12, p. 225. (r) East, P. C. c. 5, s. 14, p. 228. 1 Hawk. P. C. c. 31, s. 7. (8) 4 Blac. Com. 35. (ss) If present when he kills himself; but if absent, he is an accessory before the fact. See Rex ». Russell, R. & M. C. C. R. 356, ante, p. 40. C. S. G. 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) killed. the mother s womb. Murder may be committed upon any person within the King's The party 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 naturá, is Children in 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 unlawfully administering poison, or other noxious thing, to procure the miscarriage of any woman, or unlawfully using any instrument or other means whatsoever with the like intent, 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) Giving a child, whilst in the act of being born, a mortal wound in the head, as soon as the head appears, and before the child has breathed, will, if the child is afterwards born alive, and dies thereof, and there is malice, be murder, but if there is not malice, manslaughter. The prisoner was indicted for the manslaughter of an infant child; the prisoner, who practised midwifery, was called in to attend a woman who was taken in labour, and when the head of the child became visible, the prisoner, being grossly ignorant of the art which he professed, and unable to deliver the woman with safety to herself and the child, as might have been done by a person of ordinary skill, broke and compressed the skull of the infant, and thereby occasioned its death immediately after it was born: it was submitted that the indictment was misconceived, though the facts would warrant an indictment in another form; and that the child being en ventre sa mère at the time the wound was given, the prisoner could not be guilty of manslaughter; but, the prisoner having been found guilty, the judges, upon a case reserved, were unanimously of opinion, that the conviction was right. (c) Where the death is after the birth of an injury inflicted before the birth. The murder of bastard children by the mother was considered Bastard as a crime so difficult to be proved, that a special legislative pro- children. (a) 1 Vict. c. 85, s. 6, post. (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) Rex v. Senior, R. & M. C. C. R. 346. A child must be actually born to be the subject of murder. Breathing not sufficient, as it may be before the child is actually born. Independent circulation. Semble, that if a child be wholly produced, and then destroyed, it is murder, although the umbilical cord be not severed. vision was made for its detection by the 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 the 43 Geo. 3, c. 58. Questions of considerable nicety sometimes arise on trials for infanticide, as to whether the death took place after the child was actually born, or whilst it was in the progress of being born; and although the law be clear that a child must be actually born to be the subject of murder, perhaps it is not clearly settled what constitutes actual birth for this purpose. Where, on an indictment alleging that the prisoner was delivered of a child, and that she afterwards strangled it, it appeared that the child, which was found concealed, had breathed, but the medical men could not say when it had breathed, whether during the birth or afterwards; Littledale, J., told the jury "the being born must mean that the whole body is brought into the world, and it is not sufficient that the child respires in the progress of the birth." (d) So where, upon an indictment containing a count for murder by stabbing, and a count charging that before the child was completely born the prisoner stabbed it with a fork, and that it was born, and then died of the stab, it was proved that a puncture was found on the child's skull, but when that injury was inflicted did not appear, and some questions were asked as to whether the child had breathed. Parke, J., said, "the child might breathe before it was born; but its having breathed is not sufficiently life to make the killing of the child murder; there must have been an independent circulation in the child, or the child cannot be considered as alive for this purpose." (e) So where the first count of an indictment charged that the prisoner, being big with a female child, did bring forth the said child alive, and did afterwards strangle it, and other counts varied the statement of the mode of death, but all of them stated the birth of the child as above mentioned; and it appeared that the dead body of the child was found concealed under the prisoner's bed, with a ribbon tied tightly round the neck, and the evidence of the medical witnesses left it in doubt whether the ribbon was tied round the neck, and the child strangled by it, during the progress of birth, or after the child was fully born, but before the umbilical cord was severed: and it was submitted that a child could not be the subject of murder till it had a completely independent circulation, and had been wholly detached from the mother; that the term "born alive" meant the being completely separated from the mother, and having a completely independent circulation; and a child would not have an independent circulation for some time after it was completely brought forth, unless the umbilical cord was divided. Parke, B., said, "it has been frequently so said in cases where the death has been caused by suffocation, or other injuries, which might have occurred in the (d) Rex r. Poulton, 5 C. & P. 329. v. Wright, 9 C. & P. 754, Gurney, B. S. P. course of unassisted delivery, but I should like to know whether there is any case where it has been so held where a wilful wound has been inflicted during the birth of a child. (ƒ) At all events, this indictment will not be supported, unless it be shown that the child was completely born, as it is distinctly averred that the child was brought forth before it was strangled." And in summing up the very learned Baron said, "whether there might be any question on a count differently framed, it is not necessary to say; perhaps there might not; but in order to convict on the first count you must be satisfied that the whole body of the child had come forth from the body of the mother when the ligature was applied. If you think that the child was not killed after it came forth, you will acquit. I think it is essential that it should have been wholly produced. But supposing you should be of opinion that the child was strangled intentionally, while it was connected by the umbilical cord to the mother, and after it was wholly produced, in that case I should put the matter into a course of further inquiry, directing you to convict the prisoner, and reserving the point for a higher tribunal; my present impression being, that it would be murder, if those were the facts of the case." (g) And in a subsequent case, where this case was mentioned, and the prisoner's counsel admitted, that it did not go to the length of deciding that the child must have a separate independent existence from that of the mother, in order to make the killing of it murder; Vaughan, J., said, “I should have been very much surprised if it had, because, if that were the law, the child and the after-birth might be completely delivered, and yet, because the umbilical cord was not separated, the child might be knocked on the head and killed, without the party who did it being guilty of murder." (h) Where the prisoner was indicted for the murder of her child by cutting off its head, and a surgeon stated that he was enabled to say decidedly that the child had breathed, but he could not swear that the whole body of the child was born when the act of breathing took place; Coltman, J., said, "in order to justify a conviction for murder, you must be satisfied that the entire child was actually born into the world in a living state. The fact of its having breathed is not a decisive proof that it was born alive: it may have breathed, and yet died before birth." (i) But if a child be actually If the child be wholly produced alive, it is not necessary that it should have breathed born alive, to make it the subject of murder. Upon an indictment for the breathing is murder of a child, where it appeared that the dead body of the child was found in a river, and it was proved by two surgeons that it had never breathed; Park, J. A. J., said, "A child must be actually wholly in the world in a living state to be the subject of a charge of murder; but if it has been wholly born, and is alive, it is not essential that it should have breathed at the time it was killed, as many children are born alive, and yet do not breathe for some time after their birth." (j) not necessary. 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. (k) But there must be some external (f) See Rex v.[Sellis, post, note (i). (g) Rex v. Crutchley, 7 C. & P. 814. The prisoner was acquitted of murder. (h) Reg. v. Reeves, 9 C. & P. 25. (i) Rex v. Sellis, 7 C. & P. 850. (j) Rex v. Brain, 6 C. & P. 349. |