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False Witness Punished. By the common law, it was held to be murder to bear false witness against a party, with a design thereby to effect his death. In such case, the Goths punished the judge, the witness and the prosecutor, where a conspiracy between them existed; and among the Romans, the false witness was punished capitally, as being guilty of a species of assassination.
Consequential Murder. If a man does an act of which the probable consequence may be, and eventually is, death, such killing may be murder; although no killing be primarly intended; as was the case of a son, who exposed his sick father to the weather against his will, by reason of which he died. So too, if a man has a beast that is used to do mischief, and he, knowing it, suffers the beast to roam abroad, and it kills a man, even this is manslaughter in the owner; but if he purposely turned it loose, though for the sport of frightening people, it is as much murder, as if he had incited a bear or a dog to attack persons.
Negligence of a Physician. If a physician give his patient a potion or plaster to cure him, and it kills him, this is but misadventure, and he shall not be punished criminally, however liable he may be in a civil action for his ignorance or negligence.
Date of the Death. To make the killing murder, it is requisite that the party die within a year and a day after the stroke or cause of death administered; the day of the injury being computed therein.
Killing of an Alien Enemy. The killing must be of a reasonable creature in being, and under the king's peace. An alien or outlaw is entitled to as much protection in this sense as a subject, except he be an alien enemy, in time of war.
Unborn Child. To kill a child in its mother's womb is now no murder, but a great misprision; but if a child be born alive, and die by reason of the potion or bruises it received in the womb, it seems to be murder. In the murder of bastard children by unnatural mothers, there is difficulty in proving the child to have been born alive; hence, by a former statute, where such mother endeavors to conceal the death of her bastard offspring, by burying the child, or the like, she shall suffer death, unless she can prove by one witness at least, that the child was actually born dead. The law, which makes the concealment of the bastard's death almost conclusive evidence of its murder by the mother, is also the law of the Danes, Swedes and French. Of late years, the English law requires some sort of presumptive evidence, that the child was born alive.
Malice Aforethought must Exist. This is the criterion, which distinguishes murder from other killing; and this malice prepense, malitia praecogitata, is not so properly spite against the deceased, in particular, as any evil design in general, the dictate of a wicked heart.
Express Malice. This exists, where one, with deliberate mind and formed design, kills another. External circumstances indicate this inward intent, as lying in wait, menaces, previous grudges, and concerted schemes to do harm.
Duelling. This includes the offence of duelling, where both parties meet avowedly with intent to murder, thinking it their duty as gentlemen to risk their own lives and the lives of others, in contravention of human and divine laws. The law stigmatizes the act, where fatal consequences ensue, as murder, and punishes the seconds as well as the surviving principal. Yet it requires a degree of passive valor to combat the dread of even undeserved contempt, arising from prevalent false notions of honor; and the strongest laws will not eradicate this pernicious custom, until a method be found to compel the aggressor to render some other satisfaction to the affronted party, which the world shall esteem equally reputable.
Examples of Express Malice. Also, is, 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, he is guilty of murder by express malice; as where a master corrected his servant with an iron bar, a schoolmaster stamped upon a prostrate pupil, so that each of the sufferers died, they were justly deemed murderers, because the correction, being excessive, proceeded from a bad heart. So where the act of a man shows him to be the enemy of mankind, as by deliberately discharging his gun into a crowd, or by resolving to kill and subsequently actually killing the next man he chances to meet, So if parties conspire to do an unlawful act against the king's peace, of which the probable consequence may be bloodshed, and one of them kills a man, it is murder in all, because of the evil intended beforehand.
Implied Malice. The law often implies malice, where no malice is expressed; as where a man wilfully poisons another, though no particular enmity be proved. Also, if a man kills another suddenly, without any or considerable provocation, the law implies malice. No affront by words or gestures is a suffcient provocation to extenuate so violent an act. But if the person, so provoked, had unfortunately killed the other, by beating him a manner apparently intended only to chastise and not to kill him, the law would adjudge the crime manslaughter, and not murder.
Killing a Civil Officer. If one kills an officer of justice while executing his duty, or any of his assistants endeavoring to conserve the peace, or any private person striving to suppress an affray or to apprehend a felon, knowing his authority or intent, it is murder.
Felonious Design. And if one intends to commit felony, and undesignedly kills a man, it is murder. Thus if a man shoots at A, and misses him, but kills B, this is murder, because of the previous felonious intent. So where a person gives a woman a medicine to effect abortion, and it operates so violently as to kill her, this is murder.
What Constitutes Murder. As a general rule, all homicide is malicious, and amounts to murder, unless where justified by the command or permission of the law, excused on account of accident or self preservation, or alleviated into manslaughter, by either the involuntary consequence of some act, not strictly lawful, or if voluntary, occasioned by some sudden and sufficiently violent provocation.
Burden of Proof on the Prisoner. All these circumstances of justification or alleviation the prisoner must show, to the satisfaction of both court and jury; the latter of whom are to decide whether the facts alleged are proved to havs actually existed; the former how far they extend to take away or mitigate guilt. All homicide is presumed to be malicious, until the contrary be shown.
Punishment. Formerly murder and manslaughter were punished alike, but now by statute, the benefit of clergy is taken away from murderers through malice prepense, their abettors, procurers and counsellors. In atrocious cases, it was customary to hang the murderer, after execution, upon a gibbet in chains near the place where the crime was committed, but this was no part of the legal judgment, and the like is occasionally still practiced in the case of notorious thieves. This is contrary to the Jewish, but in accordance with the civil law; which assigns as one ground, that it would form a comforting sight to the relatives and friends of the deceased.
Parricide. By the Roman law, parricide, which was the term applied to the murder of one's parents or children, was punished more severely than any other species of homicide. After being scourged, the offender was sewed up in a leather sack, with a live dog, a cock, a viper, and an ape, and cast into the sea. In the ancient Gothic constitution, the breach both of natural and civil relations was ranked in the same class with crimes against the state and the sovereign.
Petit Treason. Petit treason may happen by a servant killing his master , a wife, her husband, or an ecclesiastical person his superior. This crime is murder in its most odious degree. A person, indicted of petit treason and acquitted, may be
A found guilty of manslaughter or murder. The punishment for petit treason in a man, was to be drawn and hanged, and in a woman to be drawn and burnt.
CHAPTER XV.-OFFENCES AGAINST THE PERSONS
Division. Some of these crimes, such as homicide, of which we have just treated, are felonies; others are simple misdemeanors. Of felonies, we will refer to mayhem, forcible abduction and marriage, rape, and to the crime against nature.
(1.) Mayhem. This is not only a civil injury, but also an atrocious breach of the king's peace. It is the violently depriving another of the use of such of his members, as may weaken him in fight. Hence the cutting off or disabling a man's hand or finger, the striking out his eye or foretooth, or depriving him of parts of the body which sustain his courage, are held to be mayhems. But the removal of the nose or ear, while they disfigure a man, do not make him less formidable as an antagovist.
Punishment. By the ancient law of England, he who maimed a man, whereby he lost a part of his body, was sentenced to lose a like part; membrum pro membro, which is still the law in Sweden. But the law of retaliation in England was found to be an inadequate punishment, and it fell into disuse. By statute of Charles II, this offence, when wilfully perpetrated, was punished as a felony, without benefit of clergy.
Shooting. A similar punishment was inflicted upon any one who wilfully and maliciously shot at any person, with apparent intent to kill or maim, even though no evil consequence resulted.
2. Forcible Abduction and Marriage. This was vulgarly called, stealing an heiress. By statute of Henry II, if any one for lucre took a woman against her will, who possessed or was heiress to property, and afterwards married or defiled her; such person, his procurers and abettors, shall be punished for felony, without benefit of clergy. This too, though the marriage or defilement be by her subsequent consent, if the first taking was against her will. So, vice versa, if the woman be originally taken away with her own consent; yet if she afterwards refuse to continue with the offender, and be forced against her will, she may be deemed from that time to be taken against her will. In such case, the woman may give evidence against the offender, though he is her husband de facto, contrary to the general rule of law, because he is no husband de jure, if the marriage was against her will. The defendant ought not to be permitted to take advantage of his own wrong, and oppose the taking of her testimony, because of the act of marriage, which is an ingredient of the crime charged.
Elopements of Minors. An inferior degree of the same kind of offence, but not attended with force, consists in the act of a person, over fourteen, unlawfully taking away any woman ehild, unmarried, within the age of sixteen years, from the possession, and against the will of her father, mother, guardian or governor. The punishment is increased, where he deflowers the child, or without the consent of her parents, marries her. The punishment of the consenting girl was the forfeiture of her lands to the next of kin, during the life of her husband. The latter part
1 Penal servitude was substituted.