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order of, and pay such costs as shall be awarded by the justices at such general or quarter sessions, and also to pay the penalty or forfeiture in case the conviction should be affirmed; and each and every justice of the peace, commissioner, or trustee having received notice of such appeal as aforesaid, shall return all proceedings whatever had before him respectively touching the matter of such appeal to the said justices at their general or quarter sessions aforesaid; and the said justices at such sessions, upon due proof of such notice having been given as aforesaid, and of such recognizance having been entered into in manner before directed, shall hear and finally determine the causes and matters of such appeal in a summary way, and award such costs to the parties appealing or appealed against as they the said justices shall think proper, to be levied and recovered by distress and sale of the goods and chattels of the person or persons against whom such determination shall be given; and the determination of such general or quarter sessions shall be final and conclusive to all intents and purposes; and no proceeding to be had or taken in pursuance of this Act shall be quashed or vacated for want of form, or removed by certiorari, or any other writ or process whatsoever, into any of his Majesty's courts of record at Westminster, any law or statute to the contrary notwithstanding: Provided always, that in case there shall not be time to give such notice and enter into such recognizances as aforesaid before the next sessions to be holden after the conviction of the appellant, then and in every such case, such appeal may be made to the next following sessions, and shall be there heard and determined: provided always, that no appeal shall be allowed against any conviction for any penalty or forfeiture which shall not exceed the sum of forty shillings. 4 G. 4, c. 95, s. 87.

HOMICIDE.

Homicide generally, and its punishment, p. 707.
The death, and the cause of it, p. 707.

By whom committed, p. 710.

Whether committed from malice prepense or not, p. 710.

Homicide upon provocation, p. 712.

upon arrest, p. 712.
by fighting, p. 713.

in self defence, p. 715.

Homicide by correction, p. 715.

by negligence or ignorance, p. 716.

without intention, in doing another act, p. 716.

Principals and accessories, p. 717.
Commitments, p. 718, &c.

Homicide generally, and its punishment.] Homicide is the killing of a human being, and is of four kinds :-1, murder, where the killing is from a preconceived malice, expressed or implied, entertained by the offender towards the deceased; 2, manslaughter, where the killing may or may not have been from malice, but if from malice, it was not preconceived; 3, excusable homicide, where the killing is per infortunium, or misadventure, or committed in self-defence; 4, justifiable homicide, when done of necessity, by an officer of justice, in the lawful execution of his duty, or by an ordinary person, to prevent the perpetration of a forcible and atrocious crime. The first two are felonies; the two latter, not. Murder is punishable with death; 9 G. 4, c. 31, s. 3; manslaughter, with transportation for life, or for not less than seven years, or imprisonment with or without hard labour in the common gaol or house of correction for not more than four years, or with such fine as the court shall award; 9 G. 4, c. 31, s. 9; but justifiable and excusable homicide are not punishable at all, nor are any forfeitures attached to them. Id. s. 10. Formerly the killing of a master by his servant, or of a husband by his wife, under such circumstances as would constitute the crime of murder in ordinary cases, was deemed an offence of a graver nature, termed petty treason; but it is now deemed murder only, and treated in every respect, and punishable as such. 9 G. 4, c. 31, s. 2.

The death and the cause of it.] The death may be caused either by poison, or by violence, such as shooting, cutting, stabbing, beating, drowning, strangling, suffocating, &c.; or if a parent, or person in loco parentis, cause the death of the child, or a master cause the death of his apprentice, by beating, ill using, or wilfully overworking it, R. v. Cheeseman, 7 Car, & P. 454, or by depriving it of sufficient nourishment, R. v. Squires, 1 Russ. 16, 426, or by other cruelty or ill treatment, R. v. Self, 1 East, P. C. 226, it will be homicide; but a married woman cannot be charged with the death of a child, by not providing it with proper food, unless it be proved that her husband furnished her with the means of providing the food. R. v. Squires, supra, R. v. Saunders, 7 Car. & P. 277. Where a man was indicted for the murder of an aged woman, whom he had undertaken for certain considerations to support, and who had died in his house for want of necessary food and nourishment, Patteson, J., told the jury that if they thought

the prisoner had been guilty of neglect so gross and wilful, as to satisfy them that he must have contemplated the death of the woman, in that case they should find him guilty of murder; but if they thought that he was only careless, and that athough the death was occasioned by his negligence, he did not contemplate it, they should find him guilty of manslaughter. R. v. Marriott, 8 Car. & P. 425. See R. v. Plummer, 1 Car. & K. 600. So, causing the death of a child, by giving it spirits in a quantity unfit for it, has been holden homicide. R. v. Martin, 3 Car. P. 211. Where a woman, being delivered of a child, left it in an orchard, covered only with a few leaves, and a kite struck it and killed it, this was holden to be homicide in the mother. 1 Hawk. c. 31, 8. 6. So, where a woman was delivered of a child on the high road, and after carrying it some way, she left the child, naked and exposed, on the road side, where it died: this was holden by Coltman, J., to be homicide in the mother; but inasmuch as she left it at the side of a road much frequented, and where people were passing at the time, he held it to be manslaughter only, not murder; and he took this distinction: if a woman leave her child, a young infant, at a gentleman's door, or other place where it is likely to be found and taken care of, and the child die, it will be manslaughter only: but if the child be left in a remote place, where it is not likely to be found, as, for instance, on a barren heath, and death ensue, it will be murder. R. v. Walters, Car. & M. 164. So, where a son carried his sick father, from one town to another, in a frosty morning, against his will, by reason whereof he died, this was homicide in the son. 1 Hale, 431, 432. And if a man make use of a living but irresponsible agent to effect the death of another, as if a man persuade an idiot to kill another, and he do it, the man, not the idiot, is guilty of the homicide. 1 Hawk. c. 31, s. 7. Where a woman was indicted for the murder of her child, and it appeared that she gave a bottle of laudanum to the woman who had care of her child, with directions to give it a teaspoonful every night; the woman in fact did not give it to the child, but having placed the bottle on the mantel piece, another child found it there, and administered part of the contents to the prisoner's child, who soon after died: the judges held that the administering of the poison by the other child, was, in point of law, under the circumstances of the case, as much an administering of it by the prisoner, as if the prisoner had actually administered it with her own hand. R. v. Catherine Michael, 9 Car. & P. 356. So, if a man having a wild or unruly beast, which he knows would hurt persons, and he purposely let it loose, either with a design that it may injure some person, or even to frighten people and make sport, and it kill a man, the man who so let it loose will be guilty of the homicide. 1 Hale, 431. Nor does the law require that the

homicide should be committed against the will of the party killed; for if a man kill another with his consent, or by his desire, he is as much guilty of homicide as if he had killed him against his will. R. v. Sawyer, 1 Russ. 424, and see R. v. Dyson, R. & Ry. 523.

But an infant in the womb, though alive, cannot be the subject of homicide. Even where a child was partly brought forth at the time the injury was inflicted which caused its death, it was holden not to be homicide; R. v. Poulton, 5 Car. & P. 329. R. v. Brain, 6 Id. 349. R. v. Sellis, 7 Id. 850; there must be an independent circulation in the child, otherwise it cannot be considered in being for this purpose. R. v. Enoch, 5 Car. & P. 539. And where it appeared, from the evidence of the surgeon, that the child must have died, before it was fully born, so as to have an independent circulation, Gurney, B., on the authority of the above case of R. v. Enoch, held that it could not be the subject of murder; R. v. Wright, 9 Car. & P. 754; but the prisoner, who was the mother of the child, was convicted of concealing its birth. Id. Killing a child, however, after it has wholly come forth from the body of the mother, but whilst it is still connected with her by means of the umbilical cord, may be murder. R. v. Reeves, 9 Car. & P. 25. R. v. Trilloe, Car. & M. 650. Also the party must die within a year and a day from the time the injury was inflicted, otherwise the law presumes that the injury was not the cause of the death, and the death cannot be deemed homicide. It has been holden also that a man cannot be convicted of homicide in procuring another to be executed, by charging him falsely with a crime of which he knew him to be innocent. R. v. Macdaniel, 1 East, P. C. 33.

The act which inflicted the injury must be proved to have been done by the party accused; and the injury must be proved to have caused the death, which, in cases of any doubt, is usually proved by a surgeon or other medical man. But it will be no excuse for him who has inflicted a wound, that the party wounded might have recovered if he had taken care of himself, 1 Hawk. c. 31, s. 10, or if the wound had not been improperly treated; or that he was in such a state of disease at the time, that, independently of the wound, &c., he must shortly have died, if the wound in fact hastened his death. See R. v. Cheeseman, 7 Car. & P. 454.

Formerly both the death, and cause of the death, must have happened within the realm, to render the homicide punishable here by the common law. But now, by stat. 9 G. 4, c. 31, s. 8, "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 or poisoning or hurt in England, or being feloniously stricken, poisoned or hurt at any place in England, shall die of such stroke, poisoning, or hurt upon the

sea, or at any place out of England: the offence, and that of the accessories before or after the fact, may be dealt with, inquired of, tried, determined, and punished in the county or place in England, where the death, stroke, poisoning or hurt shall happen." And by sect. 7, if any British subject “shall be charged in England with any murder or manslaughter, or with being accessory 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 the party shall then be tried under a commission to be issued for that purpose.

In proceeding before a magistrate, to get a party charged with homicide committed, it is necessary that the death should be expressly proved; for otherwise non constat that any offence has been committed. And in like manner at the trial, upon an indictment for murder or manslaughter, the death must be expressly proved; it cannot be inferred from circumstances. And therefore where a girl was indicted for the murder of her illegitimate child, and it was proved that she took it from the nurse on the 7th April, with the expressed intention of taking it to her father's at L., that on the 8th at six in the evening she was seen with a child, and that between eight and nine she arrived at her father's without it, and the child was never afterwards seen: it was holden that she could not be convicted of the murder. R. v. Hopkins, 8 Car. & P. 591.

By whom committed.] This is proved, either by some person who actually saw the offence committed, or by the dying declarations of the deceased, or by the confession of the offender, or by circumstantial evidence, that is, by the proof of facts from which it may fairly be implied. As to dying declarations, in what cases evidence and the effect of them, see ante, p. 291.

Whether committed from malice prepense or not.] Malice prepense, or a preconceived malice, is an essential ingredient in the crime of murder; and if that be proved either expressly or impliedly, and it appear that it was the motive for committing the homicide, the offence is murder: no circumstance can extenuate it to manslaughter. See R. v. Mason, 1 East, P. C. 239. In all other cases, homicide, which is not justifiable or excusable, is manslaughter.

An express preconceived malice is proved from the previous

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