Of all species of deaths, the most detestable is that of poison; because it can of all others be the least prevented either by manhood or forethought. (ƒ) And therefore by the statute 22 Hen. VIII, c. 9, it was made treason, and a more grievous and lingering kind of death was inflicted on it than the common law allowed, namely, boiling to death: but this act did not live long, being repealed by 1 Edw. VI, c. 12. There was also by the ancient common law, one species of killing held to be murder, which may be dubious at this day; as there hath not been an instance wherein it has been held to be murder for many ages past: (g) I mean by bearing false witness against another, with an express premeditated design to take away his life, so as the innocent person be condemned and executed. (h) The Gothic laws punished, in this case, both the judge, the witnesses, and the prosecutor: "peculiari poena judicem puniunt; peculiari testes, quorum fides judicem seduxit; peculiari denique et maxima auctorem, ut homicidam." (i) And, among the Romans, the lex Cornelia de sicariis, punished the false witness with death, as being guilty of a species of assassination. (k) And there is no doubt but this is equally murder in foro conscientia as killing with a *sword; though the modern law (to avoid [*197] the danger of deterring witnesses from giving evidence upon capital prosecutions, if it must be at the peril of their own lives) has not yet punished it as such. If a man, however, does such an act of which the probable consequence may be, and eventually is death; such killing may be murder, although no stroke be struck by himself, and no killing may be primarily intended: as was the case of the unnatural son who exposed his sick father to the air, against his will, by reason whereof he died; (7) of the harlot who laid her child under leaves in an orchard, where a kite struck it and killed it; (m) and of the parish officers, who shifted a child from parish to parish, till it died from want of care and sustenance. (n) (14) So, too, if a man hath a beast that is used to do mischief; and he knowing it, suffers it to go abroad, and it kills a man; even this is manslaughter in the owner: but if he had purposely turned it loose, though barely to frighten people, and make what is called sport, it is with us (as in the Jewish law) as much murder as if he had incited a bear or dog to worry them. (0) If a physician or surgeon gives his patient a potion or plaster (S) 3 Inst. 48. (g) Fost. 132. In the case of Macdaniel and Berry, reported by sir Michael Foster, though the then attorney general declined to argue this point of law, I have good grounds to believe it was not from any ap prehension of his that the point was not maintainable, but from other prudential reasons. Nothing therefore should be concluded from the waiving of that prosecution. (h) Mirror, c. 1, § 9. Brit. c. 52. Bract. 1. 3, c. 4. (1) Stiernh. de jure Goth. L. 3. c. 3. (k) Ff. 48. 8. 1. (2) 1 Hawk. P. Č. 78. (m) 1 Hal. P. C. 432. (n) Palm. 545. (0) Ibid. 431. But where an indictment charged that the injury was inflicted with a hatchet or knife, evidence was admitted to show that death was caused by a pistol. People v. Colt, 3 Hill, 432. Where the averment was that a razor or knife was the instrument employed to cause death, evidence was admitted to show that a blunt instrument was used. State v. Fox, 1 Dutch., 566. But a conviction is erroneous, when the indictment charged striking and killing by blows, but the fact appeared that the deceased was knocked down and, in falling, struck some substance which caused death. R. v. Kelly, 1 Moo. C. C., 113; R. v. Thompson, 1 id., 139. An averment that death was caused by a blow of a hammer is supported by evidence of a blow from any hard instrument held in the hand. R. v. Mertin, 5 C. and P., 128. See State v. Smith, 32 Me., 369; Miller v. State, 25 Wis., 384, and Archbolu's Cr. Pleading. 10th ed., 406, 407 for a collection of English cases on the point. (14) Where an apprentice died who, coming back from the bridewell sick and in a filthy condition, was not allowed by his master to sleep in bed, but was made to lie on bare boards, and did not receive proper medical attention, the master was held guilty of murder if the jury found malice. R. v. Self, 1 East P. C., 226. So, where an old woman died from neglect in the house of one who was under obligation to care for her. Reg. v. Marriott, 8 C. & P., 425. The withholding by a master of sufficient food from an apprentice may be murder. R. v. Squires, 1 Russ. Cr., 20. If a mother willfully neglects to nourish her infant child so that it dies, she is guilty of murder. R. v. Edwards. 8 C. & P., 611; R. v. Hughes, 7 Cox, 301; but not if the child is of such age that it is the duty of the father to furnish food. R. v. Saunders, 7 C. & P., 277. If a prisoner dies from unreasonably harsh treatment by his jailer, the latter is guilty of murder. R. v. Huggins, Stra., 882. And see Nun v. State, 11 Humph., 159; Reg. v. Plummer, 1 C. & K., 600; Roscoe Cr. Ev., 724. to cure him, which contrary to expectation, kills him, this is neither murder nor manslaughter, but misadventure; and he shall not be punished criminally, however liable he might formerly have been to a civil action for neglect or ignorance: (p) (15) but it hath been holden, that if it be not a regular physician or surgeon, who administers the medicine, or performs the operation, it is manslaughter at the least. (g) Yet, Sir Matthew Hale very justly questions the law of this determination. (r) (16) In order also to make the killing murder, it is requisite that the party die within a year and a day after the stroke received, or cause of death administered; in the computation of which, the whole day upon which the hurt was done shall be reckoned the first. (s) Farther; the person killed must be "a reasonable creature in being, and under the king's peace," at the time of the *killing. Therefore to kill an alien, a Jew, or an outlaw, who were all under the king's peace and [*198] protection, is as much murder as to kill the most regular-born Englishman; except he be an alien enemy-in time of war. (t). To kill a child in its mother's womb, is now no murder, but a great misprision: but if the child be born alive, and dieth by reason of the potion or bruises it received in the womb, it seems, by the better opinion, to be murder in such as administered or gave them. (u) But, as there is one case where it is difficult to prove the child's being born alive, namely, in the case of the murder of bastard children by the unnatural mother, it is enacted by statute 21 Jac. I, c. 27, that if any woman be delivered of a child which if born alive should by law be a bastard; and endeavours privately to conceal its death, by burying the child or the like; the mother so offending shall suffer death as in the case of murder, unless she can prove, by one witness at least, that the child was actually born dead. This law, which savours pretty strongly of severity in making the concealment of the death almost conclusive evidence of the child's being murdered by the mother, is nevertheless to be also met with in the criminal codes of many other nations of Europe: as the Danes, the Swedes, and the French. (v) But I apprehend it has of late years been usual with us in England, upon trials for this offence, to require some sort of presumptive evidence that the child was born alive, before the other constrained presumption (that the child whose death is concealed was therefore killed by its parent) is admitted to convict the prisoner. (17) Lastly, the killing must be committed with malice aforethought, to make it the crime of murder. This is the grand criterion which now distinguishes murder from other killing: and this malice prepense, malitia præcogitata, is not so properly spite or malevolence to the deceased in particular, as any evil design in general: the dictate of a wicked, depraved, and malignant heart; (w) un disposition a faire un male 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 (p) Mirr. c. 4. § 16. See book III. page 122. (r) 1 Hal. P. C. 430. (s) 1 Hawk. P. C. 79. (u) 3 Inst. 50. 1 Hawk. P. C. 80, but see, 1 Hal. P. C. 433. p. 462. (w) Foster, 256, (q) [*199] Britt. c. 5. 4 Inst. 251. (t) 3 Inst. 50. 1 Hal. P. C. 433. (v) See Barrington on the statutes, 425. (x) 2 Roll. Rep. 461. (15) A physician is liable to a civil action for damages for want of reasonable care and skill. Hallam v. Means, 82 Ill., 379; Gramm v. Boener, 56 Ind., 407; Hyatt v. Adams, 16 Mich., 180; Hathorn v. Richmond, 48 Vt., 557; Riper v. Menifee, 12 B. Mon., 465; Leighton v. Sargent, 11 Fost, 119; Simonds v. Henry, 39 Me., 155 (case of a dentist). (16) Whether one is a regular physician or not, he is bound to use competent skill, or the death of the patient may render him guilty of manslaughter. R. v. Spiller, 5 C. & P., 333. If a surgeon, regular or not, uses his best skill he is not liable for death. R. v. Williamson, 3 C. & P., 635; R. v. VanButchell, 3 C. & P., 629; R. v. Long. 4 C. & P., 398; Com. v. Thompson, 6 Mass., 134; Rice v. State, 8 Mo.. 561. Otherwise if the fatal treatment was adopted through obstinate rashness. Com. v. Thompson, ubi supra. But if one undertakes to act as surgeon, where competent assistance is attainable, he is responsible for the consequences, if death ensue. R. v. Webb, 1 Moo. & Rob., 405. (17) Statute 21 James I, c. 27, is repealed. The present law on the subject of this paragraph is 24 and 25 Vic., c. 100. VOL. II.-50 393 evidenced by external circumstances discovering that inward intention; as lying in wait, antecedent menaces, former grudges, and concerted schemes to do him some bodily harm (y) 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. (2) (18) 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 him who hath given the insult. (19) 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 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) (20) [*200] Neither shall he be guilty of a less crime, who kills another *in consequence of such a wilful act as shows him to be an 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 consequence might be bloodshed, as to beat a man, to commit a riot, or to rob a park: and 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) (21) Also, in many cases where no malice is expressed, the law will imply it, as, (y) 1 Hal. P. C. 451. (a) 1 Hal. P. C. 454, 473, 474. (z) 1 Hawk. P. C. 82. (b) Lord Raym. 143. (c) 1 Hawk. P. C. 74. (d) Ibid. 84. (18) On the subject of challenges and duels, see note p. 150, ante. (19) See the case of Commonwealth v. Webster, 5 Cush., 295, for the meaning of "malice aforethought." Also State v. Martin, 2 ed., 101; Whiteford v. Commonwealth, 6 Rand., 721; Dale v. State, 10 Yerg., 551; Shoemaker v. State, 12 Ohio, 43; U. S. v. Ross, 1 Gallis., 624. The words "premeditated design," it has been held, mean in legal effect the same as "malice aforethought." McDaniel v. State, 8 S. and M., 401. Whether it is legally with malice aforethought when one is killed upon the sudden impulse of passion without previous design, compare Commonwealth v. Webster, 5 Cush., 295, and People v. Austin, 1 Park. C. R., 154, with Clark v. State, 8 Humph., 671, and Bivens v. State, 6 Eng. (Ark.), 455, and the cases referred to in each. (20) See Bishop, Cr. L., 7th ed., §§ 663, 683; Whart. Cr. L., 7th ed., §§ 969-990. (21) "If the act from which death ensues be malum in se, it will be murder or manslaughter according to the circumstances; if done in prosecution of a felonious intent, but the death ensued against or beside the intent of the party, it will be murder; but on the other hand, if the intent went no further than to commit a bare trespass, it will be manslaughter. If a number of persons conspire to do an unlawful act, and they inflict death as a means of effecting the design. it is murder in all. If the unlawful act was a trespass, the murder to affect all must be done in the prosecution of the design. If the unlawful act be a felony, it will be murder in all, although the death happened collaterally or beside the principal design." Wharton Cr. L. §§ 997, 98; and see generally $$ 997-1001. 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 showed 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) In like manner, if one kills an officer of justice, either civil or criminal, in the execution of his duty, or any of his assistants, endeavouring to conserve the peace, or any private person endeavouring to suppress an affray or apprehend a felon, knowing his authority or the intention with which he interposes, the law will imply malice, and the killer shall be guilty of murder. (h) And if one intends to do another felony, and undesignedly kills a man, this is also murder. (2) Thus if one shoots at A and misses him, but kills B, this is murder; because [*201] of the previous felonious intent, which the law transfers from one to the other. The same is the case where one lays poison for A; and B, against whom the prisoner had no malicious intent, takes it, and it kills him; this is likewise murder. (j) So also if one gives a woman with child a medicine to procure abortion and it operates so violently as to kill the woman, this is murder in the person who gave it. (k) It were endless to go through all the cases of homicide which have been adjudged, either expressly or impliedly, malicious: these, therefore, may suffice as a specimen; and we may take it for a general rule, that all homicide is malicious, and, of course, amounts to murder, unless where justified by the command or permission of the law; excused on the account of accident or self-preservation; or alleviated into manslaughter, by being either the involuntary consequence of some act, not strictly lawful, or if voluntary, occasioned by some sudden and sufficiently violent provocation. And all these circumstances of justification, excuse, or alleviation, it is incumbent upon the prisoner to make out, to the satisfaction of the court and jury; the latter of whom are to decide whether the circumstances alleged are proved to have actually existed; the former, how far they extend to take away or mitigate the guilt. For all homicide is presumed to be malicious, until the contrary appeareth upon evidence. () (22) The punishment of murder and that of manslaughter, was formerly one and the same; both having the benefit of clergy; so that none but unlearned persons, who least knew the guilt of it, were put to death for this enormous crime. (m) But now by several statutes, (n) the benefit of clergy is taken (e) 1 Hal. P. C. 455. (n) 23 Hen. VIII, c. 1. (f) 1 Hawk. P. C. 82. 1 Hal. P. C. 455, 456. 1 Edw. VI, c. 12. 4 and 5 Ph. and M. c. 4. (g) Fost. 291. (22) As the majority of homicides are not, in fact, malicious, but occur through misadventure, or under circumstances which would reduce the offence to manslaughter, a legal presumption of malice seems inconsistent with the general doctrines of the criminal law, as well as with humanity. On this subject the reader is referred to the Review of the Trial of Prof. Webster, by Hon. Joel Parker, North American Review, No. 72, p. 178. That malice is not a legal presumption, from the fact of homicide, but an inference to be drawn by the jury from the surrounding circumstances, see Wharton Cr. L., 7th ed. § 712; Bish., 6th ed., §673; Farris v. Com., 14 Bush, 362; State v. Swayze, 30 La. Ann. II, 1323; Dukes v. State, 14 Fla., 499; Maher v. People, 10 Mich., 212; Stokes v. People, 53 N. Y., 164; State v. McDonnell, 32 Vt., 491; Clem v. State, 31 Ind., 480; Eiland v. State, 52 Ala., 322. In Com. v. Hawkins, 3 Gray, 463, it was held that the jury must infer malice, when the surrounding circumstances are known, limiting the application of the doctrine laid down in Com. v. Webster, 5 Cush., 295, and Com. v. York, 9 Met, 93. See also U. S. v Armstrong, 2 Curt. C. C., 446; Erwin v. State, 29 Ohio St., 186. away from murderers through malice prepense, their abettors, procurers, and counsellors. In atrocious cases, it was frequently usual for the court to direct the murderer, after execution, to be hung upon a gibbet in chains near the place *where the fact was committed: but this was no part of the legal [*202] judgment; and the like is still sometimes practised in the case of notorious thieves. This being quite contrary to the express command of the Mosaical law, (o) seems to have been borrowed from the civil law: which, besides the terror of the example, gives also another reason for this practice, viz.: that it is a comfortable sight to the relations and friends of the deceased. (p) But now in England, it is enacted by statute 25 Geo. II, c. 37, that the judge, before whom any person is found guilty of wilful murder, shall pronounce sentence immediately after conviction, unless he sees cause to postpone it; and shall, in passing sentence, direct him to be executed on the next day but one (unless the same shall be Sunday, and then on the Monday following), and that his body be delivered to the surgeons to be dissected and anatomized: (9) and that the judge may direct his body to be afterwards hung in chains, but in nowise to be buried without dissection. And, during the short but awful interval between sentence and execution, the prisoner shall be kept alone, and sustained with only bread and water. But a power is allowed to the judge, upon good and sufficient cause, to respite the execution, and relax the other restraints of this act. (23) By the Roman law, parricide, or the murder of one's parents or children, was punished in a much severer manner than any other kind of homicide. After being scourged, the delinquents were sewed up in a leathern sack, with a live dog, a cock, a viper, and an ape, and so cast into the sea. (r) Solon, it is true, in his laws, made none against parricide; apprehending it impossible that any one should be guilty of so unnatural a barbarity. (s) And the Persians, according to Herodotus, entertained the same notion, when they adjudged all persons who killed their reputed parents to be bastards. And, upon some such reason [*203] as this, we must account for the *omission of an exemplary punishment for this crime in our English laws; which treat it no otherwise than as simple murder, unless the child was also the servant of his parent. (t) For, though the breach of natural relation is observed, yet the breach of civil or ecclesiastical connexions, when coupled with murder, denominates it a new offence, no less than a species of treason, called parva proditio, or petit treason: which however is nothing else but an aggravated degree of murder; (u) although, on account of the violation of private allegiance, it is stigmatized as an inferior species of treason. (v) And thus, in the ancient Gothic constitution, we find the breach both of natural and civil relations ranked in the same class with crimes against the state and the sovereign. (w) Petit treason, (24) according to the statute 25 Edward III, c. 2, may happen three ways, by a servant killing his master, a wife her husband, or an ecclesiastical person (either secular or regular) his superior, to whom he owes faith and obedience. A servant who kills his master, whom he has left, upon a grudge conceived against him during his service, is guilty of petit treason: for the traitorous intention was hatched while the relation subsisted between them; (0) "The body of a malefactor shall not remain all night upon the tree, but thou shalt in any wise bury him that day, that the land be not defiled.' Deut. xxi. 23. (p) Famosos latrones, in his locis, ubi grassati sunt, furca figendos placuit: ut, et conspectu deter reantur alii, et solatio sit cognatis interemptorum eodem loco pœna reddita, in quo latrones homicidia fecissent." Ff. 48, 19, 28, § 15. (q) Fost. 107. (r) Ff. 41, 9, 9. (t) 1 Hal. P. C. 380. (u) Foster, 107, 824, 336. (w) "Omnium gravissima censetur vis facta ab incolis in patriam, subditis in regem, liberis in parentes, maritis in uxores, (et vice versa), servis in dominos, aut etiam ab homine in semet ipsum. Stiern. de jure Goth. 1. 8, c. 3. (8) Cic. pro. S. Roscio, § 25. (v) See page 75. (23) The act 25 Geo. II, c. 37, is repealed, and by 6 and 7 Wm. IV, c. 30, sentence of death in cases of murder was made the same as in other capital cases. (24) Petit treason is unknown to the law of the United States, and was abolished in England by statute 9 Geo. IV, c. 31, § 2. |