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: Of all species of deaths, the most detestable is that of poison ; because it can of all others be the least prevented either by manhood or forethought (f). And therefore, by the statute 22 Hen. III. c. 9, it was made treason, and a more grievous and lingering kind of death was inflicted on it than the common law allowed ; namely, boiling to death (34): but this act did not live long, being repealed by 1 Edw. VI. c. 12 (35). There was also, by the ancient common law, one species of killing held to be murder, which may be dubious at this day; as there hath not been an instance wherein it has been held to be murder,

(f) 3 Inst. 48.

diately causing the suffocation, namely, not known, he may be described as a the swelling, need not be stated ; Rer certain person to the jurors unknown ; v. Tye, R. & R. C. C. 345; and see but a bastard child cannot be described Rer v. Edwards, 6 C. & P. 401. The by his mother's name, unless he has death, by the means stated, must be po- acquired that name by reputation; Rex • sitively averred, and cannot be inferred; v. Clarke, R. & R. C. C. 358; and see | East, P. C. 343: and where the Rex v. Sheen, 2 C. & P. 655. death is occasioned by a stroke, it must (34) This extraordinary punishment be further alleged that the prisoner seems to have been adopted by the legave the deceased a mortal wound, &c. gislature, from the peculiar circumwhereof he died; 2 Hale, P. C. 186; stances of the crime, which gave rise Kel. 125; Lad's case, Leach, 96. to it; for the preamble of the statute The time and place both of the wound informs us, that John Roose, a cook, and of the death, must be stated, in had been lately convicted of throwing order to shew that the deceased died poison into a large pot of broth, prewithin a year and a day from the cause pared for the bishop of Rochester's fa. of the death ; in computing which, the mily, and for the poor of the parish ; day of the act done, is reckoned the and the said John Roose was by a refirst : though a precise statement of trospective clause of the same statute the day is immaterial, if the party is ordered to be boiled to death. Lord proved to have died within the limited Coke mentions several instances of period ; 2 Inst. 318; 2 East, P. C. 344. persons suffering this horrid punish. The word murdered is absolutely neces- ment; 3 Inst. 48. Murder of malice sary in the indictment; 2 Hale, P. C. prepense, was made high treason in 187. The allegations, “not having Ireland, by 10 Henry VIL c. 21 ; Irish the fear of God," &c. “ vi et armis," Statutes..CH. and“ being in the peace of God," &c. (35) Sections 10 and 14 of 1 E. VI, are not necessary; 2 Stark. C. P. 385. c. 12, relating to housebreaking, robWhere the stroke is given in one county, bing, horse-stealing, sacrilege, and be and the death happens in another, the nefit of clergy, were repealed by 7 & 8 venue may be laid in either. As to Geo. IV. c. 27; and ss. 13, 16, & 22, laying the venue, where the stroke is relating to petit treason, murder, and given at sea, see 9 G. IV.c. 31, § 8. bigamy, by 9 Geo. IV. c. 31. Where the name of the deceased in

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for many ages past (g): I mean by bearing false witness against another, with an express premeditated design to take away his life, so as the innocent person be condemned and executed (h). The Gothic laws punished in this case, both the judge, the witnesses and the prosecutor: ' peculiari poená judicem puniunt ; peculiari testes, quorum fides judicem seduxit ; peculiari denique et maxima auctorem, ut homicidam (i) (36).” And, among the Romans, the lex Cornelia de sicariis, punished the false witness with death, as being guilty of a species of assassination (k). And there is no doubt but this is equally murder in foro conscientiæ as *killing with a sword; though the modern law (to avoid the danger of deterring witnesses from giving evidence upon capital prosecutions, if it must be at the peril of their own lives) has not yet punished it as such (37). If a man, however, does such an act, of which the probable conse


(8) Fost. 132. In the case of Macdaniel and Berry, reported by Sir Michael Foster, though the then attorney general declined to argue this point of law, I have good grounds to believe it was not from any apprehension of his that the point was not maintainable,

but from other prudential reasons. Nothing therefore should be concluded from the waving of that prosecution.

(h) Mirror, c. 1, $ 9; Brit. c. 52. Bracton, 1. 3. c. 4.

(i) Stiern. de jure Goth. I. 3, c. 3. (k) Ff. 48, 8, 1.

(36) They visit the judge with one yet there is no modern authority to punishment; the witnesses, whose testi. induce us to think that it is murder mony seduced the judge, with another; by the law of England. Lord Coke and the author, as a homicide, with says expressly “it is not holden for another and heavier punishment. murder at this day;" 3 Inst. 48 ; see

(37) The guilt of him, who takes also Fost. 132. Such a distinction in away the life of an innocent man by perjury would be more dangerous to soa false oath, is much more atrocious ciety and more repugnant to principles than that of an assassin, who murders of sound policy, than in this instance by poison or a dagger. He, who de- the apparent want of severity in the stroys by perjury, adds to the privation law. Few honest witnesses would ven. of life public ignominy, the most ex- ture to give evidence against a prisoner cruciating of tortures to an honourable tried for his life, if thereby they made mind, and reduces an innocent family themselves liable to be prosecuted as to ruin and infamy; but notwithstand- murderers.-Ch. ing this is the most horrid of all crimes,

But it is stated as the result of that case, to have been held that a person cannot be indicted for murder in procuring another to be executed by

falsely charging him with a crime of
which he was innocent; 1 Leach, 44
1 East, P. C. 333.

quence may be, and eventually is, death; such killing may be murder, although no stroke be struck by himself, and no killing may be primarily intended: as was the case of the unnatural son, who exposed his sick father to the air, against his will, by reason whereof he died (1); of the harlot, who laid her child under leaves in an orchard, where a kite struck it and killed it (m); and of the parish officers, who shifted a child from parish to parish, who died from want of care and sustenance (n) (38) (39). So too, if a man hath a beast that is used to do mischief; and he, knowing it, suffers it to go abroad, and it kills a man; even this is manslaughter in the owner : but if he had purposely turned it loose, though barely to frighten people and make what is called sport, it is with us, as in the Jewish law, as much murder, as if he had incited a bear or dog to worry them (0) (40). If a physician

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(38) Or if a master refuses his apprentice necessary food or sustenance, or treats him with such continued harshness and severity as his death is occasioned thereby, the law will imply malice, and the offence will be murder; Leach, 127.-CH.

(39) So, in a recent case, a man was convicted of murder in causing the death of his apprentice, by not providing him with sufficient food and nourishment, without reference to other acts of cruelty committed by the prisoner towards the deceased; Rer v. Squire, 1 Russell, 246. So it is clearly an indictable, though a subordinate offence, to refuse or neglect to supply necessaries to a child, servant, or apprentice, whom a person is bound by duty or contract to provide for, if such child, &c. be of tender years, and unable to provide for itself; Rer v. Friend, R. & R. C. C. 20. So, like. wise, with respect to a servant ; Rer v. Ridley, 2 Camp. 650.

An overseer is not indictable for not relieving a pauper, unless there be an order for his relief, except in case of immediate urgency, where there is not time to get an order ; Rex v. Meredith, id. 46.

But on an indictment charging that the overseer had under his care a poor person, and neglected or refused to provide him with necessary food, &c. for want of which he died, the overseer was convicted; Rer y. Booth, id 47, n. And in Rer v. Warren, id. 48, n. which was an indictment against an overseer for neglecting to supply medical assistance to a pauper dangerously ill, the offence was held to be suffi: ciently made out, though it was neither charged nor proved that the person was in the workhouse, nor had, before his illness, received or needed parish relief. There is no legal obligation on one brother to maintain another, so as to make the omission indictable; Per v. Smith, 2 C. & P. 449. If one has his idiot brother, who is helpless, as an inmate in his house, and omits to supply him with proper food, warmth, &c.; semble, that he is not indictable for the omission; Id. ibid. And held that evidence of this will not support an indictment for assault or imprisonment; Id. ibid.

(40) See 2 Hawk. P. C. c. 13. & 8; Blackman v. Simmons, 2 C. & P. 140; ante 183, note (11).

or surgeon gives his patient a potion or plaister to cure him, which, contrary to expectation, kills him, this is neither murder nor manslaughter, but misadventure ; and he shall not be punished criminally, however liable he might formerly have been in a civil action for neglect or ignorance (p): but it hath been holden, that if it be not a regular physician or surgeon, who administers the medicine or performs the operation, it is manslaughter at the least (9) (41). Yet Sir Matthew Hale very justly questions the law of this determination (r). In order also to make the killing murder, it is requisite that the party die within a year and a day after the stroke received, or cause of death administered; in the computation of which, the whole day upon which the hurt was done shall be reckoned the first (s).

Further ; the person killed must be “a reasonable creaa reasonable ture, in being, and under the king's peace,” at the time of being, and in the the *killing. Therefore to kill an alien, a Jew, or an out(*198] law, who are all under the king's peace and protection, is as

much murder as to kill the most regular-born Englishman; except he be an alien enemy in time of war (t). To kill a child in its mother's womb, is now no murder, but a great misprision (42); but if the child be born alive, and dieth by reason of the potion or bruises it received in the womb, it seems, by the better opinion, to be murder in such as administered or gave them (u) (43). But, as there is one case where

and the person killed must be

(p) Mirr. c. 4, § 16. See Vol. III.

page 122.

(s) 1 Hawk. P. C. 79.
(1) 3 Inst. 50; 1 Hal. P. C. 433.

(u) 3 Inst. 50; 1 Hawk. P. C. 80. But see 1 Hal. P. C. 433.

(9) Britt. c. 5; 4 Inst. 251.
(r) 1 Hal. P. C. 430.

(41) Such persons are clearly still the application of it, and death ensues liable to a civil action, where gross in consequence of either, he is guilty negligence or ignorance can be proved; of manslaughter; Rerv. St. John Long, Slater v. Baker, 2 Wills. 359; Seare 4 C. & P. 423. And see other cases, *. Prentice, 8 East, 348; and it would S. P. 1 Har. Dig. 740, 741. also be a good defence to an action (42) Where an unskilful practitioner by an apothecary on his bill, that wounded the head of a child before the he had treated his patient ignorantly child was perfectly born, and the child or improperly ; Kannea v. M‘Mullen, was afterwards born alive, but subsePeake 59. And where a person, under- quently died of this injury, it was held taking the cure of a disease, (whether manslaughter, although the child was he has received a medical education, or in its mother's womb at the time when not,) is guilty of gross negligence in the wound was given; Rer v. Senior, attending his patient after he has ap- M.C. C. 344; and see note (44) post. plied a remedy, or of gross rashness in (43) To justify a conviction on an

it is difficult to prove the child's being born alive, namely, in the case of the murder of bastard children by the unnatural mother, it is enacted by statute 21 Jac. I. c. 27, that if any woman be delivered of a child which if born alive should by law be a bastard ; and endeavours privately to conceal its death, by burying the child or the like; the mother so offending shall suffer death as in the case of murder, unless she can prove by one witness at least that the child was actually born dead. This law which savours pretty strongly of severity, in making the concealment of the death almost conclusive evidence of the child's being murdered by the mother, is nevertheless to be also met with in the criminal codes of many other nations of Europe; as the Danes, the Swedes, and the French (v): but I apprehend it has of late years been usual with us in England, upon trials for this offence, to require some sort of presumptive evidence that the child was born alive, before the other constrained presumption, that the child whose death is concealed, was therefore killed by its parent, is admitted to convict the prisoner (44).

(v) See Barrington on the Statutes, 425.

indictment charging a woman with the pealed by the 43 G. III. c. 58, which wilful murder of a child " of which she has also recently been repealed, and the was delivered, and which was born law upon this subject is now as fol. alive,” the jury must be satisfied affirma- lows: by 9 Geo. IV. c. 31, § 13, if tively that the whole body was brought any person with intent to procure the alive into the world; it is not sufficient miscarriage of any woman then being that the child had breathed in the quick with child, unlawfully and maprogress of the birth ; Rer v. Poulton, liciously shall administer to her, or 5 C. & P. 329.

cause to be taken by her, any poison If a child has breathed before it is or other noxious thing, or shall use born, this is not sufficiently life to make any instrument or other means whatthe killing of the child murder. There ever with the like intent, every such: must be an independent circulation in offender, and every person counselling, the child, or the child cannot be con. aiding, or abetting such offender, shall sidered as alive for this purpose; Rex be guilty of felony, and being convicted v. Enoch, 5 C. & P. 539.

thereof, shall suffer death as a felon; A child must be actually wholly in and if any person with intent to procure the world, in a living state, to be the the miscarriage of any woman not besubject of a charge of murder ; but if ing, or not being proved to be, then it is wholly born, and is alive, it is not quick with child, unlawfully and maessential that it should have breathed; liciously shall administer to her, or Rer v. Brain, 6 C. & P. 349; and cause to be taken by her, any medicine see the next note.

or other thing, or shall use any instru-T (44) The 21 J. I. c. 27, was re- ment or other means whatever with the

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