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2. Murder, po. nished univer. sally through

2. We are next to consider the crime of deliberate and wilful murder : a crime at which human nature starts, and which is, I believe, punished almost universally throughout out the world the world with death. The words of the mosaical law (over and above the general precept to Noah (p), that “whoso

of shooting, or of attempting to discharge loaded arms, or of stabbing cutting, or wounding, as aforesaid, were committed under such circumstances, that if death had ensued therefrom, the same would not in law have amounted to the crime of murder, in every such case the person so indicted shall be acquitted of felony. There are two novelties in this Act of Parliament; first, the provisions in section 11, respecting drowning, suffocating, and strangling ; and secondly, the introduction, in both ss. 11 and 12, of the word wound, after the words stab and cut. The latter is an improvement which had long been a desideratum, many indictments under the former statute having failed merely for the want of some such general term, where the injury inflicted did not fall strictly within the definition either of a stab or a cut. The new Act also places, attempts to murder, and attempts to maim, under two distinct clauses; it does not, however, make those offences distinct in their nature: it follows, therefore, that both may be charged in the same indictment. An indictment under this statute must describe with accuracy the mode in which the injury is inflicted; for where the indictment under 43 G. III. c. 58, was for cutting, and the evidence was that the wounds were inflicted by stabbing, the judges held the conviction wrong; Rer v. MDermot, R. & R. C. C. 356. The intent, also, with which the assault is made, must be correctly stated; for, where the intent laid in several counts of an indictment under the same statute was, to murder, to disable, or to do some grievous bodily harm, and the intent found by the jury was to prevent being apprehended, the conviction was held bad; Rer v. Duffin, id. 365; Rer v. Marshall, 2 Stark. Ev. 925. But, though the party's principal intent

was to prevent apprehension, he may still be convicted on an indictment imputing the intent to be to murder, if it appear that in order to effect the former intent, he also intended to murder ; Rer v. Gillow, R. & M. C. C. 85; Rerv. Davis, 1 C. & P. 306. The specific offences mentioned in the statute, and the being present, aiding and abetting the offenders, are placed upon the same footing; therefore one indictment may contain counts for both; Rex y. Towle, R. & R. C. C. 314. Therefore, if an indictment for shooting at another, charge that a person, feloniously &c. did shoot with a pistol at A., and that the prisoner and others were present, aiding and abetting, &c. the said unknown person, the said felony to do and commit, &c., this is sufficient, without its being stated that the prisoner was feloniously present; and the pri. soner was held to be well convicted, though the jury found that he was not the person who fired the pistol ; Id. ibid. The following cases have been decided under the old statute, with respect to the several offences of cutting, stabbing, and shooting, and seem equally applicable to the present statute : Where a cutting is inflicted by an instrument capable of cutting, the case is within the Act, though the instrument be not intended for cutting, nor ordinarily used to cut, but generally used to force open drawers, doors, &c. ; and though the intention was not to cut, but to inflict some other mischief; Rer v. Hayward, id. 78. A striking over the face with the sharp or claw part of a hammer, has been held to be a sufficient cutting within the statute ; Rer v. Atkinson, id. 104. But inflicting a wound with a square iron bar, or with the metal scabbard of a sword sheathed at the time, or with the handle of a windlass, has been held not to be a cutting; 1 Russell, 597,598. Cutting a child's private

(n) Gen. ix. 6.

parts so as to enlarge them for the time, may be considered as doing her grievous bodily harm, and done with that intent though the hymen is not injured, the incision is not deep, and the wound eventually is not dangerous ; Rer v. Cor, id. 362. An indictment for cut. ting with intent to murder and disable, is not supported by evidence of a cut ting with intent to produce temporary disability, to prevent apprehension; Rer v. Boyce, R. & M. C. C. 29, 1 Russell, 598. If several are out for the purpose of committing a felony, and, upon an alarm, run different ways, and one of them maims (by cutting) a pursuer to avoid being taking, the others are not to be considered principals in such act; Rex v. White, R. & R. C. C. 99. To support an indictment for stabbing with intent to murder, malice against the individual is not essential, general malice is sufficient; Rer v. Hunt, R. & M. C. C. 93. And a grievous bodily harm need not actually be done; the intent is sufficient, Id. ibid. Nor need the wound be near a vital part, or of a nature likely to cause death; Rea v. Griffith, 1 C. & P. 298. If two persons quarrel, and begin to fight, on equal terms, and one, finding himself not equal to his adversary, runs away, and being pursued, draws a knife, and stabs him; if death ensue, this is only manslaughter, and, therefore, for such stabbing, the party cannot be convicted capitally under 43 G. III, c. 58; Rer v. Kessal, 1 C. & P. 437. In the case of shooting, if the instrument be fired so near, and in such direction, as to be likely to kill or to do other grievous bodily harm, and with intent that it should do so; the case will be within the statute, though it is loaded with powder and paper only; Rer v. Kitchen, R. & R. C. C. 95. But, it seems that if a gun be not loaded at all, when it is

attempted to be discharged, as if the charge be lost by accident, &c. the case is not within the statute, however felonious the prisoner's intent may be; 1 Russell, 597. And, in an indictment under the statute for attempting to discharge a loaded blunderbuss at A., it was held, that in order to constitute the offence of attempting to discharge loaded fire-arms, they must be so loaded as to be capable of doing the mischief intended; Rex v. Carr, R. & R. C. C. 377. Upon an indictment for maliciously shooting, if it be questionable whether the shooting were by accident or design, proof may be given that the prisoner at another time intentionally shot at the same person ; Rer y Voke, id. 531. If a person shoot at another who is endeavouring to apprehend him, he may be convicted on the usual indictment for shooting with intent to murder under the statute, although shooting at a person with intent to prevent his apprehending the person shooting, is a distinct and capital offence; Rer v. Davis, 1 C. & P. 306 ; see also Rer v. Towle, R. & R. C. C. 314, suprá. The new Act uses the term “loaded arms," instead of “loaded firearms," which was the language of the former Act, and will therefore comprehend every description of arms, as airguns, &c. It may be observed, generally, that where the injury is inflicted with intent to prevent a lawful apprehension, it must be shewn that the offender had notice of the purpose for which he was apprehended; for otherwise, in case of death ensuing, the offence would be manslaughter, and the prisoner would be entitled to the benefit of the proviso in section 12; see Ricket's case, 1 Russell, 599. With respect to offences of this, and of other descriptions, committed upon the high seas ; see, post, 268, notes (14) & (15).

sheddeth man's blood, by man shall his blood be shed,") aré very emphatical in prohibiting the pardon of murderers (9). “Moreover ye shall take no satisfaction for the life of a murderer, who is guilty of death, but he shall surely be put to death ; for the land cannot be cleansed of the blood that is shed therein, but by the blood of him that shed it." And therefore our law has provided one course of prosecution, (that by appeal, of which hereafter) (29), wherein the king himself is excluded the power of pardoning murder : so that, were the king of England so inclined, he could not imitate that Polish monarch mentioned by Puffendorf (r): who thought proper to remit the penalties of murder to all the nobility, in an edict with this arrogant preamble, "nos, divini juris rigorem moderantes, fc.” But let us now consider the definition of this great offence.

The name of murder (as a crime) was anciently applied only to the secret killing of another (s): (which the word, moerda, signifies in the Teutonic language (1),) and it was defined, " homicidium quod nullo vidente, nullo scienti, clam perpetratur (u) (30):" for which the vill wherein it was committed, or, if that were too poor, the whole hundred, was liable to a heavy *amercement; which amercement itself was also denominated murdrum (w). This was an ancient usage among the Goths in Sweden and Denmark; who supposed the neighbourhood, unless they produced the murderer, to have perpetrated or at least connived at the murder (w): and, according to Bracton (y), was introduced into this kingdom

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Q) Numb. XXXV. 31.
(c) L. of N. b. 8, c. 3.
(s) Dial de. Scacch. I. 1, c. 10.
(0) Sternh. de.jure Sueon. 1, 3, c. 3.

The word murdre in our old statutes
also signified any kind of concealment
or stifling. So in the statute of Exeter,
14 Edw. I. "je riens ne celerai, ne
sufferai estre celé ne murdré :" which is
thus translated into Fleta, I. 1, c. 18,
$ 4. “Nullam veritatem celabo, nec
celari permittam nec mudrari.” And

the words "pur murdre le droit," in the articles of that statute, are rendered in Fleta, ibid. § 8, “pro jure alicujus murdriendo." I will not conceal, or suffer to be concealed, or murdered;" for, “murdering, or suppressing, the right of any person."

(u) Glanv. 1. 14, c. 3.

(w) Bract. I. 3, tr. 2, c. 15, $ 7. Stat. Marlbr. c. 26; Fost. 281.

(r) Stiernh. I. 3. c. 4.
(y) 1. 3, tr. 2, c. 15.

(29) Abolished by 59 G. III. c. 46; vide, ante, 180, post, 346.

(30) A homicide, secretly commit

ted, out of all human sight, and without all human knowledge.

y to

by king Canute, to prevent his countrymen, the Danes, from being privily murdered by the English; and was afterwards continued by William the conqueror, for the like security to his own Normans (z). And therefore if, upon inquisition had, it appeared that the person found slain was an Englishman, (the presentment whereof was denominated englescherie,) (a), the country seems to have been excused from this burthen. But, this difference being totally abolished by statute 14 Edw. III. c. 4, we must now (as is observed by Staunforde) (6) define murder in quite another manner, without regarding whether the party slain was killed openly or secretly, or whether he was of English or foreign extraction.

Murder is therefore now thus defined, or rather described, now, an unlaw. by Sir Edward Coke (c); “when a person of sound me- malice premory and discretion, unlawfully killeth any reasonable creature in being, and under the king's peace, with malice aforethought, either express or implied.” The best way of examining the nature of this crime will be by considering the several branches of this definition.

First, it must be committed by a person of sound memory the offender and discretion : for lunatics or infants, as was formerly ob- sound mind, served, are incapable of committing any crime: unless in such cases where they shew a consciousness of doing wrong, and of course a discretion, or discernment, between good and evil (31).

ful killing with

pense;

must be of

(3) 1 Hal. P. C. 447.
(a) Bract. ubi supr.
(b) P. C. l. 1, c. 10.

(c) 3 Inst. 47.
(d) I Hal. P. C. 425.

(31) No infant under seven years of age can be punished for murder, or any other felony; 1 Hale, P. C. 27. Between the ages of seven and fourteen years, an infant is prima facie presumed to be doli incapar; though such presumption may be rebutted by strong evidence of his being able to distinguish right from wrong; I Hale, P. C. 26, 27; Fost. 72; Dalt. c. 147. At the age of fourteen years, an infant is presumed to be doli capar, and is punishable as an adult, without regard to sex; Fost. 70; 1 Russell, 4. It is not so easy to define in what cases a lunatic

shall be exempt from the consequences
of committing murder. If it appears
that the prisoner, from either natural
or accidental causes, is liable to aber-
rations of mind which deprive him, for
the time, of the ability to distinguish
right from wrong, the jury must deter-
mine whether he committed the offence
during such an aberration; and if they
find that he did, must acquit him, on
that ground ; 39 & 40 G. III. c. 94,
$1. But he must answer for what he
does in his lucid intervals ; 1 Hale,
P. C. 31. And if he is proved to have
formed a design to commit murder, and

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there must be an actual killing to Next, it happens that when a person of such sound dis

w cretion unlawfully killeth. The unlawfulness arises from [*196] the killing *without warrant or excuse: and there must also

be an actual killing to constituté murder: for a bare assault, with intent to kill, is only, a great misdemesnor, though formerly it was held to be murder (d) (32).: The killing may be by poisoning, striking, starving, drowning, and a thousand other forms of death, by which human nature may be overcome. And if a person be indicted for one species of killing, as by poisoning, he cannot be convicted by evidence of a totally different species of death, as by shooting with a pistol, or starving. But where they only differ in circumstance, as if a wound be alleged to be given with a sword, and it proves to have arisen from a staff, an axe, or a hatchet, this difference is immaterial (e) (33).

(d) 1 Hal. P. C. 425.

(e) Inst. 319. 2 Hal. P. C. 185,

to have been aware of the consequences A stroke must be expressly averred, of the crime, when he conceived or and an indictment stating that the committed it, he cannot be acquitted; prisoner murdered, or gave a mortal Arnold's case, 16 How. St. Tr. 764; wound, without saying that he struck, Lord Ferrer's case, 19, id. 947. And if is bad ; Rer. v. Long, 5 Co. Rep. 122, he had any sense of right and wrong, it a; 1 East, P. C. 342. It must also is immaterial how powerful the illusion be stated upon what part of the body under which he labours may be ; Belo the deceased was struck; 2 Hale, P. C. lingham's case, 1 Collinson on Lunacy, 185; and the length and depth of the 672. Under $ 2 of 39 & 40 G. III. wound must be shewn; id. 186; Hayc. 94, a defendant, who, on trial for a don's case, 4 Co. Rep. 42, a. Where misdemeanor, appears to be insane, and there are several wounds, the length is found so by the jury, may be confined and breadth of each need not be stated; during his Majesty's pleasure. See fur- Rerv. Mosley, R. & M. C. C. 97. And ther upon this subject, ante, 24 et seq. see Young's case; 4 Co. Rep. 40; Wal. in notis, post, 324, 395.

ker's case, id. 41; Rex v. Lorkin, * (32) But by the recent statute, 9 G. Bulstr. 124; 2 Hale, P. C. 184; Rer IV. c. 81, sections 11 & 12, every ag. v. Dale, R. & M. C. C. 5; as to the sault with intent to murder, by what wound, cause of death, &c. Where ever means, is made a capital felony. the death proceeded from suffocation See ante, 194, note (28).

from the swelling up of the passage of (33) See 1 East, P. C. 341, and the throat, and such swelling proceeded Sharwin's case, there cited, in which it from wounds occasioned by forcing was held that an averment of an as- something into the throat; it was held sault with a wooden staff, was satisfied sufficient to state in the indictment, by proof of an assault with a stone; that the things were forced into the the effect being the same ; see Rer v. throat, and the person thereby suffo Dale, 13 Price, 172; 9 J. B. Moore, 19. cated; and that the process immo

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