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The killing must. Lastly, the killing must be committed with malice aforemalico pre. thought, to make it the crime of murder. This is the grand
be done with
like intent, every such offender, and n. ; 1 Chit. Burn, 334. The rules
may be express,
press malice in.
criterion which now distinguishes murder from other killing : pense; malice and this malice prepense, malitia precogitata, is not so pro- or, implied, ex-; perly spite or malevolence to the deceased in particular, as cludes duelling; any evil design in general: the dictate of a wicked, depraved, and malignant heart (w); un disposition à faire un mal chose (x); and it may be either express or implied in law. Express *malice is when one, with a sedate deliberate mind 5*1997 and formed design, doth kill another: which formed design is evidenced by external circumstances discovering that inward intention; as lying in wait, antecedent menaces, former grudges, and concerted schemes to do him some bodily.
intent to procure her miscarriage. It is immaterial whether in fact the drug or other thing administered were likely or calculated to produce abortion, or whether the woman was with child at the time, or not; it is sufficient to prove that the prisoner, imagining her to be with child, administered the drug, &c. with intent to procure miscarriage; Rer v. Phillips, 3 Camp. 74. Where the indictment charged the prisoner with having administered a decoction of savin, proof that he administered an infusion of savin, was held to maintain the indictment; Id. If it turns out in evidence, that the woman was quick with child, at the time the drug, &c. was administered, it should seem that the prisoner must be acquitted; for this part of the Act extends expressly only to cases where the drug is administered to women “not being, or not being proved to be, quick with child at the time." Archb. C. P., title Caus ing Abortion.
It has, however, been recently decided that, on an indictment for admin istering a drug to a woman to procure abortion, “she being with child, but not quick with child," if it appears that the woman was not with child at all, the prisoner must be acquitted;
although it appears that the prisoner
As § 13 of the new statute makes
It has been held, with reference to
harm (y) (45). This takes in the case of deliberate duelling, where both parties meet avowedly with an intent to murder: thinking it their duty as gentlemen, and claiming it as their right, to wanton with their own lives and those of their fellow-creatures ; without any warrant or authority from any power either divine or human, but in direct contradiction to the laws both of God and man; and therefore the law has justly fixed the crime and punishment of murder, on them, and on their seconds also (z) (46). Yet it requires such a degree of passive valour to combat the dread of even undeserved contempt, arising from the false notions of honour too · generally received in Europe, that the strongest prohibitions and penalties of the law will never be entirely effectual to eradicate this unhappy custom; till a method be found out of compelling the original aggressor to make some other satisfaction to the affronted party, which the world shall esteem equally reputable, as that which is now given at the hazard of the life and fortune, as well of the person insulted, as of
Rer v. Southern, 1 Russell, 476. And the presence of an accomplice has been held to take the case out of the statute of 21 J. I. c. 27, on a prosecution for concealment; Rex v. Peat, 1 East, P. C. 229.
(45) It is the province of the judge, in a trial for murder, to decide whether the facts proved, if true, amount in law to malice, and of the jury to decide, whether those facts are true, and to find a verdict accordingly; and when they find a special verdict, they are not to express any opinion as to the malice, but merely to state the facts; Rex v. Oneby, 2 Ld. Raymd. 1485 ; Hazell's case, 1 Leach, 383; Fost. 257.
(46) Wherever two persons in cold blood meet and fight, on a precedent quarrel, and one of them is killed, the other is guilty of murder, and cannot excuse himself by alleging that he was
first struck by the deceased; or that he had often declined to meet him, and was prevailed upon to do it by his importunity; or that his only intent was to vindicate his reputation ; or that he meant not to kill, but only to disarm his adversary: for, as he deliberately engaged in an act in defiance of the law, he must at his peril abide the con. sequences; 1 Hawk. P. C. c. 31, $ 21;
Bulstr. 86, 7; 2 Bulstr. 147; Crom. 22, 6; 1 Rol. Rep.360; 3 Bulstr. 171; i Hale, P. C. 48. Therefore, if two persons quarrel over night, and appoint to fight the next day, or quarrel in the morning, and agree to fight in the afternoon,or such a considerable time after, by which, in common intendment, it must be presumed that the blood was cooled, and then they meet and fight, and one kill the other, he is guilty of murder ; 1 Hawk. P.C.c. 31, $ 22; 3 Inst. 51 ; I Hale, P. C. 48; Kel. 56; 1 Lev. 180.
him who hath given the insult. Also, if even upon a sudden'
(a) i Hal. P. C. 454, 473, 474. (e) 1 Hawk. P. C. 74.
ursqa m olitve s.
.. (47) It has been laid down, that not have been capable in all cases of where death proceeds from the passive producing the same effect. Therefore, negligence or active severity of a mas- it is murder in a gaoler to confine a: ter, the offence is murder ; Rex v. Self, prisoner in a damp unwholesome room, I Leach, 137. And, with respect to without allowing him the common con- ; parents and children, masters and veniences which the decencies of nature scholars, &c., if the correction exceed require, by which his constitution is so the bounds of moderation, either in the affected as to produce a distemper of 4 measure of it, or in the instrument which he dies ; Rer v. Huggins, 2 Ld. :: made use of, it will be either murder Raym. 1578. And it is an indictable ! or manslaughter according to the cir- offence wilfully and maliciously to supcumstances of the case; if with a weaponply prisoners of war with unwholesome not likely to kill, though improperly food, and not fit to be eaten by man ; used, manslaughter; if with a weapon Rer v. Treere, 2 East, P. C. 821. likely to kill, regard being had to the (48) As to the case of killing a man age and strength of the party, murder; in an uffray, and whether under the Fost. 262. Moreover, it is not material circumstances it amounted to murder . that the means used to perpetrate the see Rer v. Rankin, R. & R. C. C. 43. crime had no immediate effect, or would (49) See Rei v. Edmeads, 3 C. &
the law presumes malice unless the con
one of them kills a man; it is murder in them all, because of the unlawful act, the malitia præcogitata, or evil intended beforehand (d) (50).
Also in many cases where no malice is expressed, the law oved; will imply it: as where a man wilfully poisons another, in
such a deliberate act the law presumes malice, though no particular enmity can be proved (e). And if a man kills another suddenly, without any, or without a considerable provocation, the law implies malice; for no person unless of an abandoned heart, would be guilty of such an act, upon a slight or no apparent cause. No affront, by words or gestures only, is a sufficient provocation, so as to excuse or extenuate such acts of violence as manifestly endanger the life of another (f). But if the person so provoked had unfortunately killed the other, by beating him in such a manner, as shewed only an intent to chastise and not to kill him, the law so far considers the provocation of contumelious behaviour, as to adjudge it only manslaughter, and not murder (g) (51). In like manner if one kills an officer of justice, (d) I Hawk. P. C. 84.
P. C. 455, 456. (e) 1 Hal. P. C. 455.
(g) Fost. 291. (0) 1 Hawk. P. C. 82. Hal.
P. 390; Rer v. Whithorne, Id. 394;
(50) See further as to the meaning
(51) Where the resentment bears no proportion to the insult, the crime will be murder; 1 Russell, 436. There fore, no breach of word or promise, no trespass to lands or goods, no affront by bare words or gestures, will free the party killing from the guilt of murder, if it appear that his intention was to kill ; which intention may be inferred from the degree of ferocity expressed, or the kind of weapon used; and the use of a deadly weapon seems to be conclusive evidence of such intention; 2 Hawk. P. C. c. 13, SS 33, 34; Fost. 290; Kel. 55, 130, 131 ; 1 East, P. C. 233; 1 Russell, 435. Even blows, previously received, will not
extenuate the offence, where it is com-