The killing must be done with malice pre Lastly, the killing must be committed with malice aforethought, to make it the crime of murder. This is the grand like intent, every such offender, and every person counselling, aiding, or abetting such offender, shall be guilty of felony, and being convicted thereof, shall be liable, at the discretion of the court, to be transported for any term not exceeding fourteen, and not less than seven years, or to be imprisoned, with or without hard labour, for any term not exceeding three years, and if a male, to be once, twice, or thrice publicly or privately whipped. By $ 14, if any woman shall be delivered of a child, and shall, by secretly burying or otherwise disposing of the dead body of the said child, endeavour to conceal the birth thereof, every such offender shall be guilty of a misdemeanor, and being convicted thereof, shall be liable to be imprisoned, with or without hard labour, for any term not exceeding two years; and it shall not be necessary to prove whether the child died before, at, or after its birth: provided, that if any woman tried for the murder of her child shall be acquitted thereof, it shall be lawful for the jury, by whose verdict she shall be acquitted, to find, in case it shall so appear in evidence, that she was delivered of a child, and that she did, by secret burying or otherwise disposing of the body of such child, endeavour to conceal the birth thereof, and thereupon the court may pass such sentence, as if she had been convicted upon an indictment for the concealment of the birth. These enactments are substantially the same as those of the 43 Geo. III. c. 58, upon the same subjects, except that by section 14 of the new Act, the concealment of the birth of a child is made an indictable misdemeanor, whereas, before, the prisoner could only be found guilty of the concealment upon an indictment charging her with murder; See Rex. v. Parkinson, 1 Russell, 475, The rules n.; 1 Chit. Burn, 334. laid down with respect to indictments for these offences under the old statute, seem, in other respects, equally applicable to the new Act; and are therefore subjoined. "To support an indictment, where the woman was quick with child, it must be proved; first, that the prisoner administered to, or caused to be taken by the woman, the drug, &c. mentioned in the indictment; but it seems that proof of any other substance or thing, ejusdem generis, will be sufficient; Rex. v. Phillips, 3 Camp. 74. It will not be sufficient, however, that the prisoner merely imagined that it would have the effect intended, as in a case where the woman was not quick with child, but it must also appear that the drug administered was either a poison or some other noxious thing. Secondly it must be proved that the drug was administered with intent to procure miscarriage. Whether it were in fact a drug likely or calculated to produce that effect seems to be immaterial, provided the intent be proved. Thirdly, it must be proved that the woman was quick with child at the time of the offence committed. In a case where the woman herself gave evidence, and swore that she had not felt the child alive within her; Lawrence, J., held, that this evidence took the case out of the statute, although the witness also swore that she was in the fourth month of her pregnancy, and medical persons proved that the child is usually alive at that period; Rex v. Phillips, 3 Camp. 77." 66 To support an indictment where the woman was not quick with child, it must be proved that the prisoner administered to, or caused to be taken by the woman, a drug or mixture of 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; experly 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 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 (w) Foster, 256. (x) 2 Roll. Rep. 461. [*199] 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; Rex 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 Causing Abortion. It has, however, been recently decided that, on an indictment for administering 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 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; Rex v. 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. Cornwall, 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 (y) 1 Hal. P. C. 451. (*) 1 Hawk. P. C. 82. Rex 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 consequences; 1 Hawk. P. C. c. 31, § 21; 1 Bulstr. 86, 7; 2 Bulstr. 147; Crom. 22, 6; 1 Rol. Rep. 360; 3 Bulstr. 171; 1 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 parkkeeper 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 scholar'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 [*200] enemy to all mankind in general; as going deliberately, and with an intent to do mischief (b), upon a horse used to strike, or coolly discharging a gun among a multitude of people (c). So if a man resolves 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. (b) Lord Raym. 143. (c) 1 Hawk. P. C. 74. (47) It has been laid down, that where death proceeds from the passive negligence or active severity of a master, the offence is murder; Rex v. Self, 1 Leach, 137 And, with respect to parents and children, masters and scholars, &c., if the correction exceed the bounds of moderation, either in the measure of it, or in the instrument made use of, it will be either murder or manslaughter according to the circumstances of the case; if with a weapon not likely to kill, though improperly used, manslaughter; if with a weapon likely to kill, regard being had to the age and strength of the party, murder; Fost. 262. Moreover, it is not material that the means used to perpetrate the crime had no immediate effect, or would VOL. IV. U not have been capable in all cases of (48) As to the case of killing a man: the law presumes malice trary is proved; 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 unless the con, 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, P. 390; Rex 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. Therefore, 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, §§ 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 committed from motives of malice or revenge; particularly where the provocation 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 quarrel, and, on the deceased striking him once or |