723 CHAPTER XIV. INDICTMENTS FOR OFFENCES AGAINST THE PRELIMINARY NOTES AS TO THE OFFENCE. -- HOMICIDE is either justifiable, excusable, or felonious. Felonious homicide is of two degrees, murder and manslaughter; of the former offence, petit treason is only an aggravated species, not differing in the circumstances which constitute the guilt, but assuming a deeper colouring from the relation between the deceased and the criminal. It will be more convenient, therefore, first to consider murder in general, and secondly, petit treason. Definition. MURDER AT COMMON LAW, AGAINST The offence. The term murder or murther, is derived by Mr. Justice Blackstone, from the Teutonic word Moerda, which originally imported a hiding or concealment, and was, there 1 (a) As to homicide in general, see 3 Inst. 47 to 57. Hale, 411 to 502. Hawk. b. 1. c. 26 to c. 33. Fost. 255 to 337. 1 East P. C. 214 to 391. Com. Dig. Justices, L. M. Bac. Abr. Murder and Homicide. Burn, J. Homicide. Williams, J. Homicide. Dick. J. Homicide. Cro. C. C. 285 to 300. 4 Bla. Com. 176 to 204. fore, anciently used only for the secret killing of another by the hands of an assassin, 4 Bla. Com. 194, 5. But it seems to be more correctly traced to the Saxon term Morth, synonymous with Mors, to which the barbarous Latin term Murdrum, and the French Meurdre, owe their origin, Jac. Dic. Murder. The offence, as it stands at the present day, is concisely defined by Lord Coke to be, "When a man of sound memory, and of the age of discretion, killeth any reasonable creature in rerum natura, and under the king's peace, by malice prepense, or aforethought, either expressed by the party, or implied by law.” 3 Iust. 47. 51. 1 East P. C. 214. To constitute murder, then, these circumstances must concur-the agent must be of sound memory and discretion-there must be an unlawful killing-the sufferer must be a reasonable creature, under the king's peace, and alive and there must be malice, either express or implied in the slayer-which parts of the definition of the crime we will now proceed distinctly to consider. 1. The agent must be of sound memory and discretion-But this is no other than is necessary to constitute any indictable offence. An infant within the age of discretion is incapable of crime, Hawk. b. 1. c. 1. s. 1. But what age shall be regarded as sufficient to render a child responsible to the law, is not ascertained with so direct a precision. Under the age of seven years, indeed, it seems that no circumstances of mischievous discretion can be admitted to overthrow the strong presumption of innocence which is raised by an age so tender, 1 Hale, 27, 8. 4 Bla. Com. 23. During the interval between seven and fourteen, the infant is primâ facie supposed to be destitute of criminal desigu; but this presumption diminishes as the age increases, and even during this interval of youth, may be repelled by positive evidence of vicious intention, 1 Hale, 27. 4 Bla. Com. 23. For a tenderness of years will not excuse a maturity in crime; and the maxim, in these cases, malitia supplet atatem, is allowed to prevail; since the power of contracting guilt is measured rather by the strength of the delinquent's understanding, than by days and years, 4 Bla. Com. 23. Thus, children of thirteen, eight, and ten years of age, have been executed for capital offences, because they respectively manifested a consciousness of guilt, and a mischievous discretion or cuuning, 1 Hale, 25, note, 26, 27. Fost. 72, and see Dalt. J. ch. 147. After the age of fourteen, an infant is on the same footing with those of the maturest years, DEFINITION. Offence. OFFENCE. 1 Hale, 25. In these cases, however, the evidence that the offender was doli capax, must be strong and clear beyond all doubt and contradiction, 4 Bla. Com. 24. Madness is another [725] cause which may render a man incapable of crime, and where it amounts to a total perversion or absence of the intellectual faculties, is an excuse for any enormity which may be committed under its influence, 3 Inst. 6. But where there is only such a partial derangement as leaves the party free to act or to forbear in the particular case in question, or where he is guilty of the crime during a lucid interval, he will be equally liable to punishment with those who are perfectly sane, See Earl Ferrer's case, 10 Harg. St. Tr. 478. Where, however, the mind labours under such a delusion, that though it discerns some objects clearly, it is totally deranged as to the objects of its attack, the party will be entitled to an acquittal. See this point, and indeed the whole subject, most ably argued and explained by Mr. Erskine, and acceded to by the court in Hadley's case, vol. v. of Erskine's Speeches, 1. Ridgway's ed. 1812. The temporary absence of reason produced by drunkenness, is not, in any case, a legal excuse for the acts which it may occasion or excite, but as Lord Coke observes, "a drunkard, who is voluntarius dæmon, hath no privilege thereby, but what hurt or ill soever he doth, his drunkenness doth aggravate it: nam omne crimen ebrietas et incendit et detegit." Co. Lit. 247. Plowd. 19. 2. To constitute murder, there must be an actual killing. But it is not necessary that death should be caused by direct violence: it is sufficient if the act done apparently endangers life, and eventually proves fatal, Hawk, b. 1. c. 31. s. 4. And, therefore, where a son carried his sick father against his will, in a cold and inclement season, from one town' to another, in consequence of which he died; where a woman left a new-born child in an orchard, covered only with leaves, in which situation it was killed by a kite; and where parish officers removed a child from parish to parish, till it perished for want of care and sustenance, they were adjudged guilty of murder, 1 Hale, 431, 2. Palm, 545. So if a prisoner die by the cruelty or neglect of the gaoler, or in legal language, " by duress of imprisonment," the party actually offending, is criminal in this degree, Fost. 321. So that where the keeper of a place of confinement obliged a party in his custody to lodge in a room with another infected with the small pox, by which means he took it and died, it was holden to be wilful murder. 2 Stra. 856. Fost. 322. And, where another person in the same office confiued his prisoner in a low damp, and unwhole some room, without any of the common necessaries of decency and health, so that he contracted distempers, which proved ultimately fatal, the court came to a similar decision, 2 Ld. Raym. 1578. Fost. 322. And if a master neglect to furnish his apprentice with sufficient food, or neglect him when ill, so that OFFENCE. he dies, he will be guilty of murder. 1 Leach, 137. 2 Campb. [ 726 ] 650. See 1 Russ. 621. where a party was convicted for such an offence, but the indictment being against husband and wife, the wife was acquitted, as it was not her duty to provide for the apprentice. The laying noisome and poisonous filth at a man's door, which kills him by corrupting the air which he breathes, amounts also to the same offence, 1 Hale, 432. And it has been said, that if the owner of a dangerous animal let it loose on purpose that it may do mischief, and it kills some one while at large, he is guilty of wilful murder; 4 Bla. Com. 197. 3 East, 595, 6. Hawk. b.1. ch. 31. though it has been objected that this opinion does not rest on any certain foundations, 1 Hale, 431. So if a man, knowing himself to be infected with a dangerous distemper, maliciously puts himself in the way of others, that they may take the infection which terminates in their death, it has been doubted to what extent he is legally guilty, 1 Hale, 431. It seems also to have been made a question, whether taking away a man's life under colour of the law, by falsely accusing him of a capital offence, and supporting the charge by perjury, is not wilful murder; but the better opinion seems to be in the negative, not because the moral guilt of such a mode of destruction is less than that of assassination itself, but because the law is unwilling to terrify its own witnesses by imposing on them a responsibility so awful, Fost. 131. 3 Inst. 48. 4 Bla. Com. 197. n. Chitty's edit. If a physician or surgeon give medicine to a patient with intent to cure him of any disorder under which he labours, which kills him, he will not be guilty of any criminal homicide, 1 Hale, 429. And though it has been said that persons not regularly practising the art of physic, will be chargeable with manslaughter, if they kill under pretence of curing, the notion is justly questioned, and is most probably erroneous, 1 Hale, 429. 4 Bla. Com. 197. Hawk. b. 1. ch. 32. s. 62. Nor is it murder to work on the imagination, so that death ensues, or to call the feelings into so strong an exercise as to produce a fatal malady, though such acts, if not OFFENCE. malicious, spring from a criminal thoughtlessness, 1 Hale, 429. 4 Bla. Com. 204. n. Chitty's edition. And in no case can a man be adjudged guilty of homicide, unless the death takes place within a year and a day after the injury to which it is ascribed; which computation is made inclusive of the day on which the wrong was committed, 4 Bla. Com. 197. And if the wound itself be not mortal, but by improper applications becomes so, and terminates fatally, and it can be clearly shewn that the medicine and not the wound was the cause of the death, the party who inflicted the latter will not be criminal, 1 Hale, 428. But where the wound was adequate to produce death, it will be no excuse to shew that, had proper care been taken, a recovery might have been effected, 1 Hale, 428. Procuring or abetting another person to commit suicide renders the party guilty of murder, Russ, & Ry. C. C. 523. Post, 730. 3. The party killed must be a reasonable being, alive, and in [ 727] the king's peace. And therefore, to take a potion in order to produce abortion, or to administer it to a pregnant female with the same design, or to strike her so that the child is killed, is not murder, at common law, because it is not in rerum naturâ, and the circumstance of its death cannot be ascertained with sufficient precision; though there seems to be some doubt whether, if the child be born alive, and afterwards die by reason of the violence it has received before its birth, it will be murder in the party who inflicted it. Hawk. b. 1. c. 31. s. 17, 18. 1 Hale, 433.. 3 lnst. 50. Bac. Abr. Murder and Homicide, B. It is, however, certain, that if a man persuade a woman who is with child, to destroy her offspring on its birth, and she follows his advice, he is an accessary to murder, though the object of his malice was not in being at the time he contrived its destruction. 1 Hale, 433. And now by 43 Geo. 3. c. 58. s. 1. it is a capital offence, wilfully, maliciously, and unlawfully to cause a woman to take any deadly poison, or other noxious and destructive substance or thing, with intent to procure miscarriage, she then being quick with child; and see post, 797. By the words, "under the king's peace," all persons, except an alien enemy, in the actual heat of war, seem to be included. And to kill even an alien enemy, except in battle, is murder, 1 Hale, 433. And to slay an attainted criminal, without warrant, is also murder, and his wife may support an appeal, 1 Hale, 433. So, though a savage idea once prevailed, that a party outlawed of felony was " caput lupinum," whom any one might destroy, it is now certain that such an officious interference is punishable |