wilfully, and of his malice aforethought, &c., see stat. 9 G. 4, c. 31, s. 7, and ante, p. 66; and see R. v. Azzopardi, 1 Car. & K. 203. As to the venue, see ante, p. 66.

In the case of murder at sea, the offence is alleged to have been committed "on the high seas." See 7 & 8 Vict. c. 2, s. 1, ante, p. 68. It is not necessary to allege that it was committed within the jurisdiction of the Admiralty; R. v. Jones et al., 2 Car. & K. 165; nor need the indictment conclude "Contra formam statuti." R. v. Serva et al., 2 Car. & K. 53. As to the venue, see ante, p. 66.

Evidence.

To support this indictment the prosecutor must prove

1. That the prisoner killed the deceased. Lord Hale (2 Hale, 290) lays it down as a general rule, never to convict a person of murder, unless the body have been found. And where a girl was indicted for the murder of her illegitimate child, and the evidence was that about six o'clock in the evening she was seen with the child, going in the direction from the place where she had been in service towards her father's, that she arrived between eight and nine at the father's without the child, and that the body of a child was found in a tide river near which she must have passed, but there was no evidence to show that it was her child, and the evidence rather tended to prove that it was not: Lord Abinger, C. B., ruled that as there was no evidence to show that the girl's child was actually dead, she must be acquitted; she could not be called upon to show what had become of it. R. v. Hopkins, 8 Car. § P. 591. But where the indictment was for murder of a captain of a ship by a seaman on the high seas, and a witness proved that being on board of the ship, and hearing a violent noise on the deck, he came up, and he then saw the prisoner take the captain up and throw him into the sea, and that he was never seen or heard of afterwards; and that on the deck, near to where this happened, a billet of wood was found, and the deck and part of the prisoner's dress was stained with blood: this was left to the jury as evidence of the killing, and they found the prisoner guilty, and (the conviction being approved of by the judges) he was executed. R. v. Hindmarsh, 2 Leach, 569.

It is of little matter by what means the death was effected :whether by poisoning,-or shooting,-stabbing, cutting, or wounding,-whether with a deadly weapon, or with a stick or fists, or by drowning, suffocating, or strangling, or the like. So if a man deliberately do a thing, calculated to endanger the life of another, and it causes his death, he is guilty of homicide: 1 Hawk. c. 31, s. 4: as where a gaoler, knowing

that a prisoner ill with the small pox lodged in a certain room, confined another person in the same room against his will; and the second prisoner caught the disease, and died of it: this was holden to be homicide in the gaoler. Fost. 322. So where a gaoler put a prisoner into a room, the walls of which were damp and unwholesome, and kept him thus confined, without fire, and without the convenience of chamber pot, &c., for forty-four days, by which the prisoner contracted an ill habit of body, which brought on disease, of which he died this was holden to be homicide in the gaoler. R. v. Huggins et al., 2 Str. 882. So if spirits be given to a child, in such a quantity as to be quite unfit for its tender age, whereby the child is killed; R. v. Martin, 3 Car. & P. 211; per Vaughan, B.; or inducing an adult to drink such a quantity of spirits askills him; see R. v. Packard et al., Car. & M. 236; if a nan give medicine to a woman to procure abortion, or use instruments for the purpose, and the woman is thereby killed, 1 Hale, 429; Tinkler's case, 1 East, P. C. 220, 354, or the child, by being born before its time, dies: R. v. West, 2 Car. & K. 784: in all these cases, the offending party will be guilty of homicide. 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, s. 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 to be homicide. R. v. Walters, Car. & M. 164; and see R. v. Waters, 2 Car.

K. 864. 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 holden to be homicide in the son. 1 Hale, 431, 432. 1 Hawk. c. 31, s. 5. So, 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 him, R. v. Cheeseman, 7 Car. & P. 454; Self's case, 1 East, P. C. 226, or by depriving it of sufficient nourishment, R. v. Squires, 1 Russ. 16, 426; R. v. Bubb, 14 Shaw's J. P. 562, or by other cruelty or ill treatment. Self's case, supra: it is 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; but otherwise, if the child be an infant, and the death be occasioned by not suckling it, when the mother was capable of doing so. R. v. Edwards, 8 Car. & P. 611. 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 nourish

ment, Patteson, J., held that he was guilty of homicide. R. v. Marriott, 8 Car. & P. 600. So, if a man do any other act, which is the primary or proximate cause of another's death, he is guilty of homicide. As, where a man gave a woman a blow on the head with a pewter pot, and wounded her, but not dangerously; the wound however produced erysipelas, of which the woman died: this was deemed homicide, and of the same degree as if the wound had caused the death. R. v. Freeman, 1 Russ. 518; and see R. v. Huggins et al., supra. So if a man hurt another, who dies of it, it is no excuse to say that he would not have died if he had taken proper care of himself; 1 Hawk. c. 31, s. 10; Rew's case, Kel. 26; or that neglect, or the want of proper applications to the wound, had brought on gangrene or fever, and of that he died. 1 Hale, 428. So if à man be labouring under a disease, of which he is likely or certain shortly to die, yet if his death be accelerated by a hurt received from another, that is as much homicide as if the man were in perfect health, and his death were caused by the hurt alone. 1 Hale, 428. R. v. Martin, 5 Car. & P. 128. R. v. Webb, 1 Mo. & R. 405. If a man by violence or threats terrify another so much, that he does an act which is the cause of his death, this is homicide in the threatening party. Where a woman fell from a window and was killed, her husband was beating her at the time, and it was doubtful whether he had not thrown her out of the window, or whether she had not thrown herself out, terrified by his threats of further violence: Heath, Gibbs, and Bayley, JJ., were of opinion that if, owing to his threats of further violence, she threw herself from the window from a well grounded apprehension of his doing such violence to her as would endanger her life, the husband was as much answerable for the fall, as if he himself had thrown her out of the window. R. v. Evans, 1 Russ. 488. So, if a man, from a well grounded apprehension of violence from the threats or acts of another, throw himself into a river, and be accidentally drowned, it is as much homicide as if the other had thrown him in. See R. v. Pitts, Car. & M. 284. So, where A. hit B. with a stick, and both being on horseback, B. rode away, and A. pursued him, and B. thereupon spurred his horse, and the horse winced and threw him, and he was killed: Park, J., held that this was homicide in A. R. v. Hickman, 5 Car. & P. 151. But if a person die with terror or apprehension of the threats held out by another, this is not homicide. 1 Hale, 427, 429. 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, 8. 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 the care of it, 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 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 have 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 let it loose will be guilty of the homicide. 1 Hale, 431. If a man ride a horse, used to kick, amongst a crowd, even although merely to frighten the persons there and make sport, and the horse kick a man, and kill him: this is homicide in the rider. 1 Hawk. e. 31, s. 68. 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. Sawyer's case, 1 Russ. 485. But it has been holden 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. 333, s. 94.

But an infant in the womb, although alive, cannot be the subject of homicide,-unless where, after being injured in the womb, it is afterwards born alive, but dies of the injuries it before received; as where a child dies after birth, by reason of something given or act done to the mother to procure abortion, 2 Hawk, c. 31, s. 16, or in consequence of its being prematurely brought forth, upon such abortion being effected. R. v. West, 2 Car. & K. 784. Ante, p. 200. But otherwise, unless the child be born alive, that is to say, unless it be alive after it is wholly out of the body of its mother, it cannot be the subject of homicide: even where the child was partly brought forth at the time it received the injury, and although it appeared to have breathed, yet it was not proved to have been alive after it was wholly brought forth, it was holden that the party who inflicted the injury could not be convicted of the homicide. R. v. Poulton, 5 Car. & P. 329. R. v. Brain, 6 Car. P. 349, R. v. Sellis, 7 Car. & P. 850. 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, it was holden not to be the subject of homicide; R. v. Wright,9 Car. & P. 754; but the prisoner, who was the mother of the child, was convicted of concealing its birth. Id., and see R. v. Enoch, 5 Car. § P. 539. Where

however, the injury was inflicted on the head of the child, as soon as it made its appearance, and the child was then born alive, but died of the injury it had received, the prisoner, who was indicted for manslaughter, was convicted, and the judges held the conviction to be correct. R. v. Senior, Ry. & M. 346. So, killing a child, 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; for as soon as the child breathes, it then has a circulation independent of its mother, and if it then be wholly brought forth, it is the subject of homicide. R. v. Trilloe, Car. & M. 650. R. v. Reeves, 9 Car. & P. 25.

Killing an alien enemy, except in the heat of war, or killing an attainted felon, except by lawful execution, is as much murder as killing any other person. 1 Hale, 433, 3 Inst. 50. 1 East, P. C. 22, 8. 14.

To constitute homicide, however, 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. 1 Hawk. c. 317, 8. 9.

Having thus stated what is deemed to be homicide, it is now necessary to notice the manner in which the defendant must be proved to have committed it. 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 prisoner, or by presumptive or circumstantial evidence, that is to say, by proof of facts and circumstances from which the jury may fairly infer it, and which, as I have already observed ante, p. 135, is often as satisfactory as direct and positive evidence. As to the dying declarations of the deceased, see ante, p. 140; as to the confession of the defendant, see ante, p. 125; and as to presumptive or circumstantial evidence, see ante, p. 134. The name of the deceased, must also be proved, if stated; but if there be any variance in this respect, the court have power to amend the indictment. See ante, p. 100. And the cause of death must be proved, in order to show that the death arose from the injury which the defendant had inflicted; and the death must be proved to have taken place within a year and a day from the time of the infliction of the injury, for the reason above mentioned. And this latter fact must be proved by express evidence, for it cannot in general be inferred from circumstances. See ante, p. 208. In cases where there is direct evidence of the defendant having committed the homicide, that evidence is first given; then any acts or words of the prisoner before or after the offence, which can indicate the motive with which he committed it; and lastly the evidence of a surgeon or other medical man, to describe the wounds, &c., and prove the cause of death. But