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as the act of both, and so the case was reached by the indictment. The jury stated that they were of opinion that both the prisoner and the deceased went to the water for the purpose of drowning themselves; and the prisoner was convicted." But the learned Judge thought it right to submit his direction to the consideration of the Judges. After considering the case, the Judges were clear that if the deceased threw herself into the water by the encouragement of the prisoner, and because she thought he had set her the example in pursuance of their previous agreement, he was a principal in the second degree, and was guilty of murder : but as it was doubtful whether the deceased did not fall in by accident, it was not murder in either of them, and the prisoner was recommended for a pardon. (i)

In order to make an abettor to a murder or manslaughter prin- Of aiders and cipal in the felony, he must be present aiding and abetting the abettors. fact committed. The presence, however, need not always be an abettor must actual standing by within sight or hearing of the fact; for there be present at may

be
a constructive presence, as when one commits a murder the commis-

sion of the and another keeps watch or guard at some convenient distance.(s) crime. But a person may be present; and, if not aiding and abetting, be neither principal nor accessary : as, if A. happen to be present at a murder and take no part in it, nor endeavour to prevent it, or to apprehend the murderer, this strange behaviour, though highly criminal, will not of itself render him either principal or accessory.(t)

If several persons are present at the death of a man, they may Persons prebe guilty of different degrees of homicide, as one of murder and sent may be another of manslaughter; for if there be no malice in the party ferent degrees striking, but malice in an abettor, it will be murder in the latter, of homicide. though only manslaughter in the former.(u) So 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) Several persons conspired to kill Dr. Ellis, and they set upon him accordingly, when Salisbury, who was a servant to one of them, seeing the affray and fighting on both sides, joined with his master, but knew nothing of his master's design. A servant of Dr. Ellis, who supported his master, was killed. The Court told the jury that malice against Dr. Ellis would make it murder in all those whom that malice affected, as the malice against Dr. Ellis would imply malice against all who opposed the design against Dr. Ellis : but, as to Salisbury, if he had no malice, but took part suddenly with those who had, without knowing of the design against Dr. Ellis, it was only manslaughter in him. The jury found Salisbury guilty of manslaughter and three others of murder, and the three were executed.(b)

It has been decided that if the person charged as principal be acquitted, a conviction of another charged in the indictment as

(i) Rex v. Dyson, Mich. T. 1823. (u) i East. P. C. c.5. s. 191. p. 350. Russ. & Ry. 523.

(a) i Hale 446. Ante, 423. (8) I Hale 615. Fost. 350. 4 Bla. (6) Rex v. Salisbury and others, Com. 34. Sec ante, 22.

Plowd. 97. () Fost. 350. i Hale 439.

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present aiding and abetting him in the murder, is good : for (by Holt, C. J.) “ though the indictment be against the prisoner for

aiding, assisting, and abetting A., who was acquitted, yet the “ indictment and trial of this prisoner is well enough, for all are

principals, and it is not material who actually did the mur“ der.”(w) And though anciently the person who gave the fatal stroke was considered as the principal, and those who were present aiding and assisting, only as accessories; yet it has long been settled that all who are present aiding and assisting are equally principals with him who gave the stroke whereof the party died, though they are called principals in the second degree. (2) So that if Ă. be indicted for murder, or manslaugter, and C. and D. for being present aiding and assisting A., and A. appears not, but C. and D. appear, they shall be arraigned; and if convicted shall receive judgment, though A. neither appear nor be outlawed. (y) And if A. be indicted as having given the mortal stroke, and B. and C. as present, aiding and assisting, and upon the evidence it appears that B. gave the stroke, and A. and C. were only aiding and assisting, it maintains the indictment, and judgment shall be given against them all; for it is only a circumstantial variance, and in law it is the stroke of all that were pre

sent aiding and abetting. (2) Of accessories He that counsels, commands, or directs, the killing of any perbefore the fact. son, and is himself absent at the time of the fact being done, is

an accessory to murder before the fact.(a) And though the crime be done by the intervention of a third person, he that procures it to be committed is an accessory before the fact : so that if A. bid his servant hire somebody, no matter whom, to murder B., and furnish him with money for that purpose, and the servant procure C., a person whom A. never saw or heard of, to do it, A. is an accessory before the fact.()

If A. advise B. to kill another, and B. does it in the absence of A., in such case B. is principal, and A. is accessory in the murder. And this holds, even though the party killed be not in rerum natura at the time of the advice given : so that if a man advise a woman to kill her child as soon as it shall be born, and she kills it when born in pursuance of such advice, he is an accessory to the

murder.(c) Cases where It is a rule, that he who in any wise commands or counsels the crime is

another to commit an unlawful act, is accessary to all that ensues the direct and immediate ef- upon that unlawful act. Thus, if A. commands B. to beat C.,

and B. beat him so that he dies, A. being absent, B. is guilty of command or

murder as principal, and A. as accessory; the crime having been

fect of the

counsel of the accessory.

(w) Rex v. Wallis and others, Salk. (x) i Hale 437. Plow. Com. 100 a. 334. This point was doubted of by (y) i Hale 437. Plow.Com. 97, 100. some of the Judges in Taylor and Gythin's case. Shaw's case, 1 Leach 360. I East. P.C. (z) 1 Hale 438. Plow. Com. 98 a. C.. 5. s. 121. p. 351. ; but a majority of 9 Co. 67 b. Rex v, Mackally, I East. them thought the conviction proper. P. C. c. 5. s. 121. p. 350. No express determination, however, (a) i Hale 435. was made in the last case, as it was (0) Fost. 125. thought by the Judge who tried the ic) i Hale 617. 2 Hawk. P. C. c. 28. prisoner a proper case for a pardon on s. 18. 4 Bla. Com. 37. Dy. 185. the special circumstances.

committed in the execution of a command which naturally tended to endanger the life of another. (d) And a fortiori, therefore, if a man command another to rob any person, and he in robbing him kill him, the person giving such command is as much an accessory to the murder, as to the robbery which was directly commanded: and it is also said, that if one command a man to rob another, and he kill him in the attempt but do not rob him, the person giving such command is guilty of the murder, because it was the direct and immediate effect of an act done in execution of a command to commit a felony. (e)

But if the crime committed be not the direct and immediate Cases where effect of the act done in pursuance of the command, or if the act the crime is

not the direct done varies in substance from that which was commanded, the

and immediate party giving the command cannot be deemed an accessory to the effect of the crime. Thus, if A. persuade B. to poison C., and B. accordingly command or give poison to C., who eats part of it, and gives the rest to D.personcharged who is killed by it, A. is guilty of a great misdemeanor only in as accessory. respect of D., but is not an accessory to his murder; because it was not the direct and immediate effect of the act done in

pursuance of the command. (f) And if A. counsel or command B. to beat C. with a small wand or rod, which would not in all human reason cause death, and B. beat C. with a great club, or wound him with a sword, whereof he dies, it seems that A is not accessory; because there was no command of death, nor of any thing that could probably cause death; and B. departed from the command in substance, and not in circumstance. (8) But if the crime committed be the same in substance with that which was commanded, and vary only in some circumstantial matters; as where a man advises another to kill a person in the night, and he kills him in the day; or to kill him in the fields, and he kills him in the town; or to poison him, and he stabs or shoots him; the person giving such command is still accessory to the murder : for the substance of the thing commanded was the death of the party killed, and the manner of its execution is a mere collateral circumstance. (h)

An accessory after the fact, in murder, as in any other felony, Of accessories may be where a person, knowing a murder to have been com- after the fact. mitted, receives, relieves, comforts, or assists the offender; as to which kind of accessory some points are noticed in a former Chapter. (i) It may be here observed, however, that if one wounds another mortally, and after the wound given, but before death ensues, a person assists or receives the delinquent, this does not make such person accessory to the homicide; for till death ensues there is no felony committed. (j)

Clergy is taken away in all cases of murder and petit treason Clergy. from accessories before, as well as principals, and lands and goods are forfeited; the forfeiture in such case relating back to the

(d) I Hale 435. 2 Hawk. P. C. c. 29. S. 18. 4 Blac. Com. 37.

(e) 2 Hawk. P. C. c. 29. s. 18.
U) Id. ibid.
(g) i Hale 436.

(h) 2 Hawk. P. C. c. 29. s. 20. 4 Blac. Com. 37.

(i) Ante, 36.

(j) 4 Blac. Com. 38. 2 Hawk. P.C. c. 29. S. 35.

VOL. I.

2 F

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stroke or other cause of death; (K) but accessories after the fact, either in petit treason or murder, are in no instance ousted of clergy. (2)

It has been before submitted, that a statement of the several instances of gross and direct wilful murder cannot be thought

But there are a variety of cases of a less decided character, and some upon which doubts have arisen, which may properly be here considered. An apt arrangement of them is a matter of some difficulty; but the following order seems to be appropriate : I. Cases of provocation. II. Cases of mutaal combat. III. Cases of resistance to officers of justice, to persons acting in their aid, and to private persons lawfully interfering to apprehend felons, or to prevent a breach of the peace. IV. Cases where the killing takes place in the prosecution of some other criminal, ünlawful, or wanton act. V. Cases where the killing takes place in consequence of some lawful act being criminally or improperly performed, or of some act performed without lawful authority.

SECT. 1.

Cases of Provocation.

As the indulgence which is shewn by the law in some cases to the first transport of passion is a condescension to the frailty of the human frame, to the furor brevis, which, while the frenzy lasts, renders a man deaf to the voice of reason; so the provocation which is allowed to extenuate in the case of homicide must be something which a man is conscious of, which he feels and resents at the instant the fact which he would extenuate is com. mitted. (m) All the circumstances of the case must lead to the conclusion, that the act done, though intentional of death or great bodily harm, was not the result of a cool deliberate judgment and previous malignity of heart, but solely imputable to human infirmity. (n) For there are many trivial, and some considerable, provocations, which are not permitted to extenuate an act of homicide, or rebut the conclusion of malice, to which the other circumstances of the case may lead.

No breach of a man's word or promise; no trespass, either to lands or goods; no affront by bare words or gestures, however

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But quære,

(k) Fost. 304, et sequ. i Male 426. both before and after, in petit treason,
2 Hale 374. i East. P. C. 215. 23 H. are debarred of clergy by 4 and 5
8. c. 1. 25 H. 8. c. 3. i Edw. 6. c. Phil. and Mary, c. 4.
12. And as to accessories before, 4 whether that statute applies to acces-
& 5 Phil. & M. c. 4.

sories after the fact.
(l) 2 Hale 342, 4. I East. P. C. (m) Fost. 315.
c. 5. s. 3. p. 218. lo i Hawk. P. C. in) | East. P.C. c. 5. s. 19.
c. 32. s. 11. it is said, that accessories,

p.232.

false and malicious, and aggravated with the most provoking circumstances, will free the party killing from the guilt of murder. (0) And it is conceived that this rule will govern every case where the party killing upon such provocation makes use of a deadly weapon, or otherwise manifests an intention to kill, or to do some great bodily harm. (p)

A. passing by the shop of B. distorted his mouth, and smiled at him, and B. killed him : this was held murder; for it was no such provocation as would abate the presumption of malice in the party killing. (9)

If A. be passing along the street, and B. meeting him (there being a convenient distance between A. and the wall) take the wall of him, and thereupon A. kill B., this is murder: but if B. had justled A., this justling had been a provocation, and would have made it manslaughter. (r)

If there be a chiding between husband and wife, and the husband strike his wife thereupon with a pestle, so that she dies presently, it is murder ; and the chiding will not be a provocation to extenuate it to manslaughter. (s)

A woman called a man, who was sitting drinking in an alehouse, “a son of a whore," upon which the man took up a broomstaff, and at a distance threw it at her and killed her; and it was propounded to the Judges whether this was murder or man. slaughter. Two questions were made, 1. Whether bare words, or words of this nature, would amount to such a provocation as would extenuate the fact into manslaughter. 2. Admitting that they would not, in case there had been a striking with such an instrument as necessarily would have caused death, as stabbing with a sword or shooting with a pistol ; yet whether this striking, so improbable to cause death, would not alter the case. The Judges were not unanimous upon this case; and, as the consequence of a resolution on either side was great, it was advised that the king should be moved to pardon the offender; which was accordingly done. (t)

In a case where it was decided that if A. give slighting words to B., and B. thereupon immediately kill him, such killing would be murder in B., it is also stated to have been holden, that words of menace or bodily harm would amount to such a provocation as would reduce the offence of killing to manslaughter. (u) But it should be observed, that in another report of the same case this latter position is not to be found. (w) And it seems that such words ought at least to be accompanied by some act, denoting an immediate intention of following them up by an actual assault. (-3)

Though an assault made with violence or circumstances of in- Assault. dignity upon a man's person, and resented immediately by the party acting in the heat of blood upon that provocation, and kill

(6) Fost. 290. 1 Hawk. P. C. c. 31. and insult in the justling. S. 33. 1 Hale 455.

(s) Crompt. fol. 120 a. See also (p) Fost. 290, 291.

Kel. 64. i Hale 456. (9) Brain's case, Hale 455. Cro. (1) I Hale 455, 456. Eliz. 778. Kel. 131.

(u) Lord Morley's case, 1 Hale 455. (r) I Hale 455. But this case pro- (w) Kel. 55. bably supposes considerable violence (a) i East. P. C. c. 5, s. 20. p. 233.

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