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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
every person counselling, aiding, or laid down with respect to indictments
abetting such offender, shall be guilty for these offences under the old statute,
of felony, and being convicted thereof, seem, in other respects, equally appli-
shall be liable, at the discretion of the cable to the new Aet; and are there.
court, to be transported for any term fore subjoined.
not exceeding fourteen, and not less “To support an indictment, where
than seven years, or to be imprisoned, the woman was quick with child, it
with or without hard labour, for any must be proved; first, that the prisoner
term not exceeding three years, and if administered to, or caused to be taken
a male, to be once, twice, or thrice pub- by the woman, the drug, &c. men-
licly or privately whipped. By S 14, tioned in the indictment; but it seems
if any woman shall be delivered of a that proof of any other substance or
child, and shall, by secretly burying or thing, ejusdem generis, will be suffi-
otherwise disposing of the dead body cient; Rer. v. Phillips, 3 Camp. 74.
of the said child, endeavour to conceal It will not be sufficient, however, that
the birth thereof, every such offender the prisoner merely imagined that it
shall be guilty of a misdemeanor, and would have the effect intended, as in a
being convicted thereof, shall be liable case where the woman was not quick
to be imprisoned, with or without hard with child, but it must also appear that
labour, for any term not exceeding two the drug administered was either a
years; and it shall not be necessary to poison or some other noxious thing.
prove whether the child died before, at, Secondly it must be proved that the
or after its birth : provided, that if any drug was administered with intent to
woman tried for the murder of her procure miscarriage. Whether it were
child shall be acquitted thereof, it shall in fact a drug likely or calculated to
be lawful for the jury, by whose ver- produce that effect seems to be im-
dict she shall be acquitted, to find, in material, provided the intent be proved.
case it shall so appear in evidence, Thirdly, it must be proved that the
that she was delivered of a child, and woman was quick with child at the
that she did, by secret burying or time of the offence committed. In a
otherwise disposing of the body of such case where the woman herself gave
child, endeavour to conceal the birth evidence, and swore that she had not
thereof, and thereupon the court may felt the child alive within her; Law-
pass such sentence, as if she had been rence, J., held, that this evidence took
convicted upon an indictment for the the case out of the statute, although the
concealment of the birth. These witness also swore that she was in the
enactments are substantially the same fourth month of her pregnancy, and
as those of the 43 Geo. III. c. 58, medical persons proved that the child
upon the same subjects, except that by is usually alive at that period; Rer v.
section 14 of the new Act, the conceal. Phillips, 3 Camp. 77."
ment of the birth of a child is made an “ To support an indictment where
indictable misdemeanor, whereas, be- the woman was not quick with child, it
fore, the prisoner could only be found must be proved that the prisoner ad
guilty of the concealment upon an in ministered to, or caused to be taken
dictment charging her with murder; by the woman, a drug or mixture of
See Rer. V. Parkinson, 1 Russell, 475, some kind, and that he did this with

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.

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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
believed her to be with child, and gave
her the drug with intent to destroy the
child; Rer v. Scudder, R. & M. C. C.
216.

As § 13 of the new statute makes
it a capital felony to use any instrument
or other means with intent to procure
the miscarriage of a woman quick with
child, the crime it seems will be com-
plete, if the intent be felonious, whether
the instrument or other means be dan-
gerous or not. The expression “ quick
with child” means, when the woman
has felt the child move within her ; Rer
v. Phillips, 3 Camp. 77.

It has been held, with reference to
the former statute, that upon a trial on
the coroner's inquest for the murder of
a bastard child, a woman may be found
guilty of concealment of the birth;
Rer y, Maynard, R. & R. C. C. 386;
Rex v. Cole, 3 Camp. 371. And that a
woman may be found guilty of such
concealment, though from appearances
it was probable the child was still-born,
and though the birth was probably
known to an accomplice ; Rer v. Corn-
wall, R. & R. C. C. 336. Aliter, if
she has made known her pregnancy to
a person not an accomplice, and has
made preparations for her confinement;

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

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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'
provocation one beats another in a cruel and unusual manner,
so that he dies, though he did not intend his death, yet he is
guilty of murder by express 'malice; that is by an express
evil design, the genuine sense of malitia. As when a park-
keeper tied a boy that was stealing wood to a horse's tail, and
dragged him along the park; when a 'master corrected his
servant with an iron bar; and a schoolmaster stamped on his
seholar's belly; so that each of the sufferers died: these
were justly held to be murders, because the correction being
excessive, and such as could not proceed but from a bad :
heart, it was equivalent to a deliberate act of slaughter (a) (47). ?
Neither shall he be guilty of a less crime, who kills another
in consequence of such a wilful act as shews him to be an
enemy to all mankind in general; as going deliberately,
and with an intent to do mischief (6), upon a horse used to
strike, or coolly discharging a gun among a multitude of
people (c). So if a man résolves to kill the next man he
meets, and does kill him, it is murder, although he knew him
not; for this is universal malice. And, if two or more come
together to do an unlawful act against the king's peace, of
which the probable consequences might be bloodshed, as to
beat a man, to commit a riot (48), or to rob a park (49); and.

(a) i Hal. P. C. 454, 473, 474. (e) 1 Hawk. P. C. 74.
(b) Lord Raym. 143.
73

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.. (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. &

VOL. IV.

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;
Fost. 351, 355 ; 1 Hale, P. C. 442,
445; ante, 180, notes (4) and (5).

(50) See further as to the meaning
of malice ; 1 Russell, 422, n.; Fost.
256.

(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-
mitted from motives of malice or re-
venge; particularly where the provo-
cation appears to have been sought for,
as a pretext or colour for the revenge.
Therefore, where in consequence of a
quarrel in a cudgel-play, a battle with
fists took place between the prisoner
and the deceased, and continued till
the parties were separated, and the
prisoner then quitted the room in anger,
and, upon getting into the street,
threatened, with an oath, that he
“would fetch something and run him
(the deceased) through the body,” and
soon afterwards returned in a thicker
coat, and stood near the door with a
cudgel in his hand, apparently for the
purpose of renewing the cudgel-fight,
but with a deadly weapon concealed
under his coat, and then artfully drew
on a discourse on the past quartel, and,
on the deceased striking him once or

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