the prisoners or either of them wilfully withheld necessary food from the deceased, with a wilful determination, by withholding sustenance which was requisite, to cause his death, then the party so withholding such food is guilty of murder. If, however, the prisoners had the means to supply necessaries, the want of which had led to the death of the deceased, and having the means to supply such necessaries, negligently though not wilfully withheld food which, if administered, would have sustained life, and so caused the death of the deceased, then that would amount to the crime of manslaughter in the person so withholding the food. Verdict, Mary guilty, John not guilty. R. v. Conde, 10 Cox C. C. 547, B. 424, C. 165.

As to crime from mere neglect of duty, see several cases under § 11.

(Eng., Guildhall, 1730.) Exposing to Smallpox. On appeal of murder for the death of plaintiff's husband of smallpox in the Fleet prison, of which defendant Bambridge was warden, RAYMOND, C. J., after a long examination, instructed the jury, that if they believed that deceased was carried to defendant Corbet's victualling house in the Fleet, against his consent, and was there detained; that Bambridge and Corbet knew the smallpox was there; that deceased had not had it, but feared it, and desired to be removed, or not to be carried there at all; that he caught the smallpox of White there, and died thereof-then the appellees would be guilty of murder; but if any one of these facts were not proved to the satisfaction of the jury, they ought to be acquitted. Not guilty Castell, widow, v. Bambridge and Corbet, 2 Strange 854, B. 420.

(Eng. C. C. R., 1756.) Convicting of Robbery by Conspiracy. Kidden was convicted at Old Bailey before Foster, J., of robbing Mary Jones in the highway, on the testimony of prosecutrix and John Berry; and was executed. The reward for conviction, given by 4 & 5 Wm. & M., c. 8, to those who convict of highway robbery, was divided between said Jones and Berry, and Stephen MacDaniel and Thomas Cooper. On a later prosecution of the same kind against one Blee [See ante, McDaniel's Case, § 29, on consent] it was discovered that both prosecutions had been contrived to get the reward. Whereon said Jones, Berry, and MacDaniel were indicted and convicted on the clearest sort of evidence of the wilful murder of Kidden, by maliciously causing him to be accused, apprehended, tried, convicted, and executed, knowing him to be innocent of the charge, with intent to share the reward, etc. Judgment was respited on doubt whether indictment for murder would lie in this case, and that the point might be fully considered on motion in arrest of judgment. The attorney general declined to argue it, and the prisoners were discharged. But Lord Mansfield, C. J., said afterwards that he and several other judges were of opinion at the time to support the indictment; and Sir Wm. Blackstone said there

were grounds to believe the case was given up from prudential reasons and not from any doubt on the law. R. v. MacDaniel, 1 Leach C. C. (Ed. 3) No. 21, 1 East P. C. 333, B. 421, Ke. 97.

This case is the sequel to McDaniel's case, § 29. Compare convictions of burglary by getting constable to break in on hue and cry, or by knocking at door, § 110.

(Eng. Assize, 1857.) Giving Disease by Rape. On indictment for murder and rape on a child under ten, it appeared that the prisoner had connection with the child, and it was afterward discovered that she had the venereal disease. WIGHTMAN, J., told the jury that malice to constitute murder might be either express or implied, and there being no pretense of express malice here, there was such malice implied in law as would justify them in finding him guilty of murder, if they were satisfied that he had connection with her and her death resulted therefrom. The jury returned that they were satisfied that he had connection and that her death resulted therefrom, but were not agreed as to finding him guilty of murder. Wightman, J., told them that it was open to them to ignore the doctrine of constructive malice, and find guilty of manslaughter; which they did. Penal servitude for life. R. v. Greenwood, 7 Cox C. C. 404, B. 424, Mi. 566.

(Eng. Assize, 1874.) Scared to Death-Pulling Hair. The prisoner, somewhat intoxicated, met a nurse in a public house carrying an infant of four months; and having a grievance against her for hitting one of his children, he seized her by the hair of the head and hit her; on which she screamed so that the infant turned black in the face, never recovered from the nervous shock, and died a few months later. Till so frightened, the child had been healthy. For this the prisoner was indicted for manslaughter. It was contended that there was no case for the jury; but DENMAN, J., left it to them to say whether the unlawful act of the prisoner caused the death of the child, or the result was so indirect as to be in the nature of an accident. He said it was a great advantage that it was to be settled by a jury and not by a judge. If he were to say, as a conclusion of law, that murder could not have been caused by such an act as this, he might have been laying down a dangerous precedent for the future; for to commit a murder a man might do the very same thing this man had done. They could not commit murder upon a grown-up person by using language so strong or so violent as to cause that person to die. Therefore mere intimidation, causing a person to die from fright by working upon his fancy, was not murder. But there were cases in which intimidations had been held to be murder. If for instance four or five persons were to stand round a man and so threaten him and frighten him as to make him believe that his life was in danger, and he were to back away from them and tumble over a precipice to avoid them, then murder would have been committed. Then did or did not this principle of law

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apply to the case of a child of such tender years as the child in question? After referring to the supposition that the convulsions of which the child died were brought on by teething, he said that if the man's act brought on the convulsions, or made them more dangerous, so that death could not otherwise have ensued, it would be manslaughter. Verdict, not guilty. R. v. Towers, 12 Cox C. C. 530, B. 425, C. 163, Ke. 95.

(Ky. Ct. of App., 1887.) Scared from House and Died of Exposure. Appellant was indicted for murder of his wife, and convicted of manslaughter. He was a cripple able to use only one arm. She was eight months pregnant, high-tempered and hard to get along with, and had told of whipping him in their occasional fights. A sow rooted open the cabin door at night, and a row arose over putting it out. He choked, beat, and scratched her. She knocked him down with a shovel, sat on him, choked him, and asked how he felt. He got away, started for his breeches, and said he would cut her throat. She ran out of the door, and he shut it after her, propped it with a stick of wood, and went to bed. There was no evidence that she could not have opened the door if she had tried. She did not return. The night was very cold, and there was snow on the ground 18 inches deep. In the morning her daughter, the only witness of the affray, except the parties, started in search of her, and defendant told her to take her mother's shoes and stockings. The barefoot trail was followed about a mile and a half, through briars that had drawn blood and torn off bits of her nightgown, passing within 20 feet of the gate of one residence, and about 100 yards from another, where she was found lying on her face dead and badly frozen. There was no wound, bruise, or other mark of violence, that could have caused her death. The trial court instructed the jury to convict, if they found that in heat of passion, and not in reasonably necessary self-defense, defendant used such violence towards his wife as to cause her to leave his house from fear of death or great bodily harm at his hands, and that she died from exposure so caused. This instruction was held erroneous because it did not permit the jury to inquire whether the fear of death or great bodily harm, which they must have found under this instruction, was reasonable, in view of her disposition and relative physical power, without which he could not be said to have driven her from the house; and because the court should have asked the jury to find whether the death was a reasonable and natural consequence of her leaving the house under the circumstances. New trial given. Hendrickson v. C., 85 Ky. 281, 3 S. W. 166, 7 Am. St. Rep. 595, B. 430.

(Eng. C. C. R., 1889.) Jumping Out of Window. Case reserved on conviction of assault with intent to inflict grievous bodily harm. It appears that defendant came home drunk and threatened his wife,

from which she became so scared that she tried to get out of the window. She was caught by her daughter; but she being also threatened, let go; and the woman fell to the sidewalk one story below and broke her leg; on which defendant jeered at her from the window above; said it served her right, and made no attempt to assist her. The conviction was sustained; and the court said that if one creates in another's mind such a sense of danger that he injures himself in attempting to escape the person scaring is responsible for the result. R. v. Halliday, 61 L. T. R. 701, 38 W. R. 256, 54 J. P. 312, B. 427.

JUSTIFIABLE AND EXCUSABLE ACTS.

§ 64. Classified. An act otherwise criminal may be excused or justified because it is done: 1, in obedience to the orders of a superior official; 2, in reasonable exercise of parental or official authority; 3, by anyone in preserving or restoring public peace; 4, in preventing commission of crime and apprehending or preventing the escape of criminals; 5, in self-defense; 6, defense of castle; 7, defense of property; or, 8, defense of friend or stranger.

$65. "In Obedience to the Orders of a Superior Official."

"Obedience to the Laws in being is undoubtedly a sufficient extenuation of civil guilt before a municipal tribunal. The sheriff who burnt Latimer and Ridley, in the bigoted days of Queen Mary, was not liable to punishment from Elizabeth, for executing so horrid an office; being justified by the commands of that magistracy which endeavored to restore superstition under the holy auspices of its merciless sister, persecution.' 4 Bl. Com. 28.

To the same effect see also ante § 49.

(Eng. C. C. R., 1860.) Transported Prisoners. ERLE, C. J. In this case the question is whether a conviction for false imprisonment can be sustained. The defendant, being master of an English merchant vessel lying in the territorial waters of Chili, near Valparaiso, contracted with that government to take the prosecutor and his companions from Valparaiso to Liverpool, and they were accordingly brought on board the defendant's vessei by the officers of the government and carried to Liverpool by the defendant under his contract. Then, can the conviction be sustained for that which was done within the Chilian waters? We answer no. We assume that the government could justify all that it did within its own territory, and we think it follows that the defendant can justify all that he did there as agent for the government and under its

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authority.

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* The further question remains, Can the conviction be sustained for that which was done out of the Chilian territory? We think that it can. It is clear that an English ship on the high sea, out of any foreign territory, is subject to the laws of England; and persons, whether foreign or English, on board such ship, are as much amenable to English law as they would be on English soil. It may be that transportation to England is lawful by the law of Chili, and that a Chilian ship might so lawfully transport Chilian subjects; but for an English ship the laws of Chili, out of the state, are powerless, and the lawfulness of the acts must be tried by English law. For these reasons, to the extent above mentioned, the conviction is affirmed. R. v. Lesley, Bell 220, 8 Cox C. C. 269, 29 L. J. m. c. 97, 6 Jur. (n. s.) 202, 1 L. T. 452, 8 W. R. 220, B. 311, C. 151, Mi. 86.

§ 66. "In Reasonable Exercise of Parental or Official Authority."

(Eng. Assize, 1869.) A Father Became Angry with his child of 2 years and 6 months for some fault, and struck her several blows with a strap an inch wide and 18 inches long; and two days later she died, as the doctors said, from nervous shock and congestion caused by the beating; for this the father was indicted for manslaughter. After consulting with Willes, J., who agreed with him, MARTIN, B., instructed the jury: The law as to correction has reference only to a child capable of appreciating correction, and not to an infant two years and a half old. Although a slight slap may be lawfully given to an infant by her mother, more violent treatment of an infant so young by her father would not be justifiable; and the only question for the jury to decide is, whether the child's death was accelerated or caused by the blows inflicted by the prisoner. Guilty. R. v. Griffin, 11 Cox C. C. 402, B. 315.

(Ind. Sup. Ct., 1891.) A Father Chained His Daughter of 12 to a Sewing Machine, and left her alone in the house all day with her infant brother; using this as a punishment for incorrigibility and a method of reformation, having tried other means without effect. For this act he was convicted of assault and battery, and the supreme court refused to disturb the verdict that the punishment was unreasonable and unlawful. Hinkle v. S., 127 Ind. 490, 26 N. E. 777.

(N. Car. Sup. Ct., 1874.) Wife Beating. Defendant was convicted of assault and battery. SETTLE, J. We may assume that the old doctrine, that a husband had a right to whip his wife, provided he used a switch no larger than his thumb, is not law in North Carolina. Indeed, the courts have advanced from that barbarism until they have reached the position, that the husband has no right to chastise his wife, under any circumstances. But from motives of public