the Queen's peace; and consequently to kill an alien enemy within the kingdom, unless in the heat and actual exercise of war, is as much murder as to kill a regularborn British subject. (a)

While an infant is in its mother's womb, and until it is actually born, it is not considered such a person as can be killed within the description of murder. (b) If a woman is quick with child and any person strike her, whereby the child is killed, it is not murder or manslaughter. By the 32 & 33 Vic., c. 20, s. 59, the unlawfully administering poison, or unlawfully using any instrument, with intent to procure miscarriage, is made an offence of the degree of felony, and, by s. 60, whoever unlawfully supplies or procures any drugs or other noxious thing for such purpose is guilty of a misdemeanor. A child must be actually born in a living state before it can be the subject of murder, (c) and the fact of its having breathed is not conclusive proof thereof. (d) There must be an independent circulation in the child before it can be accounted alive. (e) But the fact of the child being still connected with the mother by the umbilical cord will not prevent the killing from being murder. (ƒ)

The killing may be effected by shooting, poisoning, starving, drowning or any other form of death by which human nature may be overcome. (g) But there must be some external violence or corporal damage to the party, and if a person, by working upon the fancy of another, or by harsh and unkind usage, puts him into such passion of grief or fear that he dies suddenly, or contracts some

(a) Russ. Cr. 670.

(b) Ib. 670 et. seq.

(c) R. v. Poulton, 5 C & P. 329.

(d) R. v. Sellis, 7 C. & P. 850; 1 Mood. C. C. 850; R. v. Crutchley, 7 C. & P. 814.

(e) R. v. Enoch, 5 C. & P. 539; R. v. Wright, 9 C. & P. 754.

(f) R. v. Crutchley, supra; R. v. Reeves, 9 C. & P. 25; R. v. Trilloe, 2 Mood. C. C. 260; Arch. Cr. Pldg. 625-6.

(g) Russ. Cr. 674.

disease which causes his death, the killing is not such as the law can notice (a)

No act whatsoever shall be adjudged murder unless the person die within a year and a day from the time the stroke was received or cause of death administered, in the computation of which the whole day on which the stroke was administered is reckoned the first. (b)

If a man has a disease which, in all likelihood, would terminate his life in a short time, and another gives him a wound or hurt which hastens his death, this will constitute murder, for to accelerate the death of a person is sufficient. (c) So if a man is wounded, and the wound turns to a gangrene or fever from want of proper applications or from neglect, and the man dies of the gangrene or fever, or if it becomes fatal from the refusal of the party to submit to a surgical operation; (d) this is also such a killing as constitutes murder, but otherwise if the death of the party were caused by improper applications to the wound, and not by the wound itself. (e)

ter.

If a person, whilst doing or attempting to do another act, undesignedly kill a man, if the act intended or attempted were a felony, the killing is murder; if unlaw ful but not amounting to felony, the killing is manslaughIf a man stab at A. and by accident strike and kill B. it is murder, (f) and if A., intending to murder B., shoot at and wound C. supposing him to be B., he is guilty of wounding C. with intent to murder him, for he intends to kill the person at whom he shoots. (g)

When a man has received such a provocation as shows that his act was not the result of a cool, deliberate judg

(a) Russ. Cr. 674.

(b) Russ. Cr 700.

(c) Arch. Cr. Pldg. 625; R. v. Martin, 5 C. & P. 130.

(d) Reg. v. Holland, 2 M. & Rob. 351.

(e) Arch. Cr. Pldg. 625.

(f) Reg. v. Hunt, 1 Mood. C. C. 93; Arch. Cr. Pldg. 635.

(g) Reg. v. Smith, 2 U. C. L. J. 19; Dears. 559; 25 L. J. (M. C.) 29.

ment and previous malignity of heart, but was solely imputable to human infirmity, his offence will not be murder. (4) But mere words or provoking actions or gestures expressing contempt or reproach, unaccompanied with an assault upon the person, will not reduce the killing from murder to manslaughter, though if immediately upon such provocation the party provoked had given the other a box in the ear, or had struck him with a stick or other weapon not likely to kill, and had unfortunately and contrary to his expectation killed him, it would only be manslaughter. (b) The giving of repeated blows with a heavy stick would furnish some evidence of malice.

By the light of modern authorities all questions as to motive, intent, heat of blood, etc., must be left to the jury, and should not be dealt with as propositions of law. (c)

P. (the prisoner,) and D. (deceased), being brothers, were in the house of the latter, both a little intoxicated. D. struck his wife, and on P. interfering, a scuffle began. While it was going on D. asked for the axe, and when they let go, P. went out for it and gave it to him, asking what he wanted with it. D. raised it as if to strike P.. and they again closed, when the wife hid the axe. When she came back P. was on the deceased choking him. The wife then pulled P. off. P. then got up, puiled off his coat, and went outside and squared himself and asked deceased to come out and fight, and said he was cowardly. Deceased went on to the doorstep and caught hold of the prisoner. They grappled and deceased fell undermost, prisoner on him. While the scuffle was going on D. struck P. twice. On getting up P. kicked him on the side and arm, and then ran across the garden, got

(a) See Russ. Cr. 711 et seq.

(b) Reg. v. M'Dowell, 25 U. C. Q. B. 112, per Draper, C. J. (c) Ib. 115, per Draper, C. J.; Reg. v. Eagle, 2 F. & F. 827.

over a brush-fence into the road and dared D. three times to come on, saying the last time that he would not go back the same way as he came. D. seized a stick from near the stove, which had been used to poke the fire with, and ran towards P. In trying to cross the fence he fell to his knees, and P. came forward and took the stick out of his hand. He got up and as he went over the fence towards P.; the latter struck him on the head with it. The wife entreated him to spare her husband, but he struck him a second time when he fell, and again while on the ground from which he never rose. P., in answer to the wife, said D. was not killed, and refused to take him in, saying, "Let him lie there till he comes to himself." P. and deceased had lived on friendly terms as brothers should, except when under the influence of liquor. It was held that the evidence was sufficient to go to the jury to establish a charge of murder; that if the death had been caused by the kicks received before leaving the house the circumstances would have repelled the conclusion of malice, and the jury should have been so directed, but that whether what took place at the fence was under a continuance of the heat and passion created by the previous quarrel, was under the circumstances a question for the jury, and was to be determined by their finding or negativing malice. (a)

Killing in a sudden quarrel, where the circumstances afford no ground for inferring malice, generally amounts to manslaughter only, but there are many authorities which establish that, in the case of a sudden quarrel, when the parties immediately fight, there may be circumstances indicating malice in the party killing, when the killing will be murder. (b)

(a) Reg. v. M'Dowell, 25, U. C. Q. B. 108. (b) Ib. 114, per Draper, Č. J.

The first count in the indictment alleged that the prisoner unlawfully and wilfully administered poison to F., with intent to do bodily harm, by means of which administering F. suffered bodily harm. The second count, founded on the 14 & 15 Vic., c. 19, s. 4, charged the prisoner with inflicting grievous bodily harm by administering poison with intent to do bodily harm. It was proved that the prisoner, being about to leave his situation as manager of a shop, put into a sugar basin, which he knew would be used by F. (his successor), for his tea, a quantity of croton oil (an acid poison); that F. used some of the sugar, and immediately became ill, and suffered so much agony as to cause alarm for his life. Quare whether the prisoner had been guilty of any misdemeanor, either at common law or by statute. Much discussion arose as to whether the facts of this case brought it within the Statute, which provides that if any person shall unlawfully and maliciously inflict, etc. The Court stated that, in consequence of the defendant having died since the argument, it had become unnecessary to deliver any judgment. (a)

A married woman having become pregnant by the prisoner, and having herself unsuccessfully endeavoured to procure a poison, in order to produce abortion, the prisoner, under the influence of threats by the woman of self-destruction if the means of producing abortion were not supplied to her, procured for her a poison, from the effects of which, having taken it for the purpose aforesaid, she died. The prisoner neither administered the poison, nor caused it to be administered, nor was he present when it was taken, but he procured and delivered it to the deceased, with a knowledge of the purpose to which the woman intended to apply it, and he (a) Reg. v. Hippinstale, 5 U. C. L. J. 166.