the deceased was severely cut by the accused across the finger by an iron instrument, and refused to have the finger amputated. At the end of a fortnight lockjaw came on, and the finger was then amputated, but it was too late, and the lockjaw ultimately caused his death. The surgeon was of the opinion that early amputation would probably have saved the life of the decased, but it was nevertheless held that the accused was responsible.235

(g) Acts or Omissions of Third Persons— (1) In General.-If a person inflicts a wound, or is otherwise guilty of any criminal act or omission, and such act or omission is a

Beale's Cas. 163; Reg. v. Holland, 2 Mood. & R. 351, Beale's Cas. 164; State v. Morphy, 33 Iowa, 270, 11 Am. Rep. 122; Com. v. Hackett, 2 Allen (Mass.) 136.

235 Reg. v. Holland, supra. In Rex v. Rew, J. Kelyng, 26, Beale's Cas. 163, it was decided as early as the year 1662 that "if one gives wounds to another who neglects the cure of them, or is disorderly, and doth not keep the rule which a person wounded should do, yet, if he die, it is murder or manslaughter, according as the case is in the person who gave the wounds, because, if the wounds had not been, the man had not died; and therefore neglect or disorder in the person who received the wounds shall not excuse the person who gave them."

236

cause of the death of another, he is not relieved from responsibility for the homicide by the fact that the unlawful act or omission of a third person also contributed to cause the death, or would itself have caused the death. He is not responsible, however, if the act or omission of a third person was the sole cause of the death, even though, but for it, his own. act or omission would have resulted fatally.2 If a man wounds another, and the wound causes death, he is responsible for the homicide, though another wound, which would have proved fatal, had previously been inflicted by another. But in such a case the person who inflicted the first wound, if he was not acting in concert with the person who inflicted the second, is not guilty.23

If the criminal negligence of a person operates directly to cause another's death, he is none the less responsible because the negligence of a third person contributed.238

(2) Act or Negligence of Physician or

236 Reg. v. Haines, 2 Car. & K. 368, Beale's Cas. 170; Reg. v. Davis, 15 Cox, C. C. 174, Beale's Cas. 171; People v. Ah Fat, 48 Cal. 61; Fisher v. State, 10 Lea (Tenn.) 151.

237 People v. Ah Fat, supra.

238 Reg. v. Swindall, 2 Car. & K. 230, Beale's

Surgeon.-Persons accused of murder or manslaughter have frequently sought to escape responsibility for the homicide on the ground that it was caused by the act of a physician or surgeon in administering chloroform or performing an operation, or by his unskillfulness or neglect in treating the deceased. This defense, however, will not generally prevail. It has repeatedly been held, and it must be regarded as settled, that when a surgical operation is performed or chloroform administered in a proper manner, and under circumstances which render it necessary, in the opinion of competent surgeons, upon one who has received a dangerous wound, though the wound may not be necessarily mortal in itself, and the operation is ineffectual to save the life of the patient, or it or the chloroform is itself the immediate cause of the patient's death, the person who gave the wound is nevertheless responsible for the consequences.239

Cas. 167; Reg. v. Haines, 2 Car. & K. 368, Beale's Cas. 170.

239 Reg. v. Davis, 15 Cox, C. C. 174, Beale's Cas. 171; McAllister v. State, 17 Ala. 434, 52 Am. Dec. 180; State v. Bantley, 44 Conn. 537, 26 Am. Rep. 486; State v. Morphy, 33 Iowa, 270, 11 Am. Rep. 122; Com. v. McPike, 3 Cush.

Nor is he relieved from responsibility by the mere fact that improper or unskillful treatment or negligence on the part of the physician or surgeon contributed to cause death.240 If it appears, however, that improper treatment was the sole cause of death, the person who gave the wound is not respon-1 sible 241

238. Lapse of Time between Injury and Death.

To render one responsible for a homicide because of a wound or other injury inflicted by him, the death must occur within a year

(Mass.) 181, 50 Am. Dec. 727; Crum v. State, 64 Miss. 1, 60 Am. Rep. 44 (overruling McBeth v. State, 50 Miss. 81). See, also, Reg. v. Johnson, 1 Lewin, C. C. 164; Reg. v. Minnock, 1 Craw. & D 45; Reg. v. Lee, 4 Fost. & F. 63; U. S. v. Warner, 4 McLean, 463, Fed. Cas. No. 16,643; Parsons v. State, 21 Ala. 300; Bowies v. State, 58 Ala. 335; Kee v. State, 28 Ark. 155; Coffman v. Com., 10 Bush. (Ky.) 495; State v. Scott, 12 La. Ann. 274; State v. Baker, 1 Jones (N. C.) 267; Com. v. Green, 1 Ashm. (Pa.) 289.

240 Reg. v. Davis, 15 Cox, C. C. 174, Beale's Cas. 171; Com. v. Hackett, 2 Allen (Mass.) 136; Parsons v. State, 21 Ala. 300.

2411 Hale, P. C. 428; Reg. v. Cheverton, 2 Fost. & F. 833; Harvey v. State, 40 Ind. 516; State v. Morphy, 33 Iowa, 270, 11 Am. Rep. 122; Com. v. Hackett, 2 Allen (Mass.) 136.

and a day. If it does not, the law conclusively presumes that the death was due to some other cause."

242

(B) Murder at Common Law.

239. Definition. Murder is the unlawful killing of a human being with malice aforethought, express or implied.243

There is express malice-the homicide not being justifiable or excusable, and not being committed under extenuating circumstances reducing it to manslaughter

1. When there is an actual intent to cause the

death of the person killed.

2. When there is an actual intent to cause the death of any other person.

Malice is implied, with the same exceptions1. When there is an actual intent to inflict great bodily harm.

242 3 Inst. 53; 2 Hale, P. C. 179; 1 Hawk. P. C. c. 23; State v. Orrell, 1 Dev. (N. C.) 139, 17 Am. Dec. 563; People v. Aro, 6 Cal. 207; People v. Kelly, 6 Cal. 210; State v. Mayfield, 66 Mo. 125; Hardin v. State, 4 Tex. App. 355, 370.

243 Murder is committed, said Lord Coke, "when a person of sound memory and discretion unlawfully killeth any reasonable creature in being, and under the king's peace, with malice aforethought, either express or implied." 3 Inst. 47. See, also, 4 Bl. Comm. 195; 1 Hale, P. C. 451; Spies v. People, 122 Ill. 1, 3 Am. St. Rep. 320; Bivens v. State, 11 Ark. 455; Com. v. Webster, 5 Cush. (Mass.) 295, 52 Am. Dec. 711.