The name of the deceased, must also be proved, if stated; but if there be any variance in this respect, the cou

he indictment.(a). -]

(a) See ante, p. 100.

have power to amend

happens; this furnishes ground to presume that he who threatened the fact, was the perpe. trator, or instigator. So, if one be in a situation that he must have known the fact to have taken place, and concealed it, or gave no information of it, a presumption will arise against him, stronger or weaker, according to his duty to have made it known.

An instance of violent presumption has been stated by every writer on criminal law, from Sir Edward Coke, to the present time. If a man be found suddenly dead in a room, and another be found running out in haste with a bloody sword, this is violent presumption that he is the murderer: for the blood, the weapon, and the hasty flight, are all necessary concomitants on such horrid facts; and the next proof to the sight of the fact itself, is, the proof of those circumstances that do thus indicate the fact. The flight of a man charged with an offence, is presumptive evidence of his guilt; and the circumstance of his continuing quietly at home, after knowledge that he is charged with a crime, affords a presumption in his favor.

The introduction of a falsehood into his defence, is a strong presumption against the prisoner. This presumption is heightened if the falsehood is to be supported, as it commonly must be, by a witness conscious of it. There were circumstances to charge a man with the murder of his niece, but the body not being found, and the prisoner being admonished to produce her brought another child like her; and on examination, this being found not to be the true child, he was on this and the other circumstances, convicted and executed; but afterwards the child was found to be alive; while this case furnishes a caution againt convicting of murder, where the body is not found, it also furnishes a most powerful caution against an innocent man's introducing a falsehood into his defence.

Writers on the law have attempted to distinguish between violent, probable, and light presumptions: but no precise line of discrimination can be seen between them: they make only the different shades of presumption, which melt into each other.

Presumptions must have some ground to stand upon: some facts upon which they can arise. They must not rest upon mere suggestion, or surmise: but the facts must be made out by direct proof.

No certain rule can be laid down, in regard to weighing circumstances of presumption: but it must depend upon the discretion and prudence of the triers. The following general principles ought to be regarded.

The circumstances should be such as render the truth of the fact contended for, more probable than its falsehood: they ought not only to produce a preponderance of probability in favor of it, but should render the opposite supposition improbable: they ought to be consistent with the claim they are intended to establish, and inconsistent with that they are intended to oppose: they should be such as cannot be accounted for on the supposition of tl.9 innocence of the prisoner, but perfectly reconcileable with his guilt.

Amending Indictment.

[4] It will be borne in mind, that under the existing law of England if there be a variance between the indictment and evidence in the name of any person injured, the court, on application, will amend the indictment. Ante, p. 123.

At common law as the indictment is the finding of a jury upon oath, it cannot be amended without the concurrence of the grand inquest by whom it is presented. And it is the common practice for the grand jury to consent, at the time they are sworn, that the court shall amend matters of form, altering no matter of substance. Mere informalities may therefore be amended by the court, before the commencement of the trial; though it was formerly the practice to award process to the grand jury to come into court and amend them.

And the cause of death must be proved, in order to show that the death arose from the injury which the defendant had inflicted; and the death must be proved to have taken place within a year and a day from the time of the infliction of the injury, for the reason above mentioned. And this latter fact must be proved by express evidence, for it cannot in general be inferred from circumstances.(a)

(a) See ante, p. 208.

In the United States, there seems as yet an entire absence of statutory provisiou on this subject; so that the common law rule still governs here. "An indictment," says Mr. Barbour, (Barb. Cr. Law, 2nd ed., p. 347,) "which is a finding upon the oaths of the grand jury, can only be amended, with their consent, before they are discharged."

Variance in Name.

Where in an indictment a boy was called Edward Dobson, and he stated that his right name was Dobson, but that most persons who knew him called him Peach, and that his mother had married two husbands, the first named Peach and the second Dobson, and that he was told by his mother that he was the son of the latter, and that she always used to call him Dobson; it was held that the evidence that the boy's mother had always called him Dobson, must be taken to be conclusive as to his name, and that, therefore, he was rightly described in the indictment. Rex v. Williams, 7 C. & P. 298; Williams, J., after consulting Alderson, B.

But where, on the indictment of Francis Clark, for the murder of "George Lakeman Clark, a base-born infant male child," it appeared in evidence that the deceased child was a bastard son of the prisoner, and that she murdered it, as charged in the indictment, but that the child was christened George Lakeman, being the name of its reputed father, and that it was called George Lakeman, and not by any other name known to the witnesses, and that the prisoner called it George Lakeman; the judges held that as the child had not obtained his mother's name by reputation, he was improperly called Clark in the indictment; and as there was nothing but the name to identify him in the indictment, the conviction could not be supported. Rex v. Clark, Russ. & Ry. C. C. R. 358.

And so, where an illegitimate child, three weeks old, had been baptized by the name of "Eliza," but no surname was mentioned at the time of baptism, and neither the register nor any copy of it was produced at the trial, and an indictment for murder described her as "Eliza Waters," Waters being the name of her mother: it was held, upon a case reserved, that the child had not acquired the name of Waters by reputation, and that the conviction was wrong. Rex v. Waters, R. & M. C. C. R. 457; S. C. 7 C. & P. 250.

Where, however, an indictment charged the murder of Emma Evans, and it appeared that the deceased was an illegitimate child born in a workhouse, and baptized on the 9th of September by the name of Emma, and drowned on the 11th of the same month, when about six weeks old, and that up to the time of the baptism she was not called by any name, but that from the 9th to the 11th of September she was called Emma Evans, Evans being the mother's name; it was held that there was sufficient evidence of reputation for the consideration of the jury, and that this case was distinguishable from the last, because there was no evidence there, that the child was ever called Waters at all. Reg. v. Evans, 8 C. & P. 765. Erskine, J., after consulting Patteson, J.

And where, on an indictment for the murder of "a certain female child whose name to the jurors was unknown," it appeared that the child had not been baptized, but the prisoner had said that she should like it to be called "Mary Ann," and had called it "her Mary Ann" at one time, and "Little Mary" at another; the father was a Baptist and the child was a bastard, and twelve days old; and, upon a case reserved, it was held that the child had not gained a name by reputation, and therefore the indictment was right. Rex v. Smith, R. & M. C. C. R. 402; S. C. 6 C. & P. 151.

In cases where there is direct evidence of the defendant having committed the homicide, that evidence is first given; then any acts or words of the prisoner before or after the offence, which can indicate the motive with which he committed it; and lastly the evidence of a surgeon or other medical man, to describe the wounds, &c., and prove the cause of death. [5] But where the prisoner's guilt is to be [*213] proved by circumstantial evidence only, the first evidence given

Proof of Murder by Poison.

[5] In proving murder by poison, the evidence of medical men is frequently required, and in applying that evidence to the facts of the case, it is not unusual for difficulties to occur. Upon this subject the following observations are well deserving of attention. In general it may be taken that where the testimonials of professional men are affirmative, they may be safely credited; but where negative, they do not appear to amount to a disproof of a charge otherwise established by strong, various and independent evidence. Thus on the view of a body after death, on suspicion of poison, a physician may see cause for not positively pronouncing that the party died by poison; yet if the party charged be interested in the death, if he appears to have made preparations of poison without any probable just motive, and this secretly; if it be in evidence that he has in other instances brought the life of the deceased into hazard; if he has discovered an expectation of the fatal event; if that event has taken place suddenly and without previous circumstances of ill-health; if he has endeavored to stifle the inquiry by prematurely burying the body, and afterwards, on inspection, signs agreeing with poison are observed, though such as medical men will not positively affirm could not be owing to any other cause, the accumulative strength of circumstantial evidence may be such as to warrant a conviction, since more cannot be required than that the charge should be rendered highly credible from a variety of detached points of proof, and that supposing poison to have been employed, stronger demonstrations could not reasonably have been expected, under all the circumstances, to have been produced. Loft, in 1 Gilb. Ev. 302.

Whether occasioned by wound, or by improper treatment.

Doubts occasionally arise in cases of murder, whether the death has been occasioned by the wound or by the unskilful and improper treatment of that wound. The law on this point is laid down at some length by Lord Hale. If, he says, a man give another a stroke, which, it may be is not in itself so mortal, but that with good care he might be cured, yet if he dies within the year and day, it is a homicide or murder, as the case is, and so it has been always ruled. But if the wound be not mortal, but with ill applications by the party or those about him, of unwholesome salves or medicines the party dies, if it clearly appear that the medi cine and not the wound was the cause of the death, it seems it is not homicide, but then it must clearly and certainly appear to be so. But if a man receive a wound which is not in itself mortal, but for want of helpful applications or neglect, it turn to a gangrene or a fever and the grangrene or fever be the immediate cause of the death, yet this is murder or manslaughter in him that gave the stroke or wound; for that wound, though it was not the immediate cause of the death, yet if it were the mediate cause, and the fever or gangrene the immediate cause, the wound was the cause of the gangrene or fever, and so consequently causa causati. 1 Hale, P. C. 428. Neglect or disorder in the person who receives the wound will not excuse the person who gave it. Thus it was resolved, that if one gives wounds to another who neglects the cure of them, and is disorderly, and does not keep that rule which a wounded person should do, if he die it is murder or manslaughter, according to circumstances of the case, because, if the wounds had not been given the man had not died. Rews' case, Kel. 26.

So Maule, J., has held that a party inflicting the wound which ultimately becomes the

should be the finding of the body, and the state of it; in many cases, the next evidence should be that of a surgeon or other medical man,

cause of death, is guilty of murder though life might have been preserved if the deceased had not refused to submit to a surgical operation. R. v. Joseph Holland, 2 Moo. & R. 351. In the above case the deceased had been severely cut with an iron instrument across one of his fingers, and had refused to have it amputated. At the end of a fortnight lock-jaw came on, the finger was then amputated, but too late, and the lock-jaw ultimately caused death. The surgeon gave it as his opinion that if the finger had been amputated at first the deceased's life would most probably have been preserved.

Whether the infliction of a blow which, had the party upon whom it was inflicted been sober, would not have produced death, will, when inflicted upon a person intoxicated and producing death, be deemed murder or manslaughter, may admit of much question. The point arose in the following case:-Upon an indictment for manslaughter, it appeared that the prisoner and the deceased had been fighting, and the deceased was killed. A surgeon stated that a blow on the stomach in the state in which the deceased was, arising from passion and intoxication, was calculated to occasion death, but not so if the party had been sober. Hullock, B., directed an acquittal, observing, that where the death was occasioned partly by a blow and partly by a pre-disposing circumstance, it was impossible to apportion the operations of the several causes, and to say with certainty that the death was immediately occasioned by any one of them in particular. His lordship cited from his notes the following case (Brown's case, April, 1824): indictment charging with killing by striking. The jury found that the death was occasioned by over-exertion in a fight. The judges held that the prisoner was entitled to an acquittal. Johnson's case, 1 Lewin, C. C. 164. It may be doubted how far the ruing of the learned judge in this case was correct, for if by the act of the prisoner the death of the party was accelerated, it seems that the prisoner would be guilty of the felony. See Martin's case, 5 C. & P. 130. And although, a state of intoxication might render the party more liable to suffer injury from the blows, yet it is difficult to say that the intoxication was the cause of his death, any more than the infirmity of age or sickness, which could not, it is quite clear, be so esteemed.

Very few decisions are to be found in our own books on this subject, and it may, therefore, be allowable to illustrate it by a reference to a few cases in the Scotch law, which is in principle the same as our own on this point, and to the text writers on the criminal law of that country. It is clear, says Mr. Alison, that if the death be owing not to the effects of the wound, but to a supervening accident or misfortune, though induced by the first violence the prisoner cannot be convicted of homicide. Thus, if a person be wounded, no matter how severely, yet if he recover and engage in his ordinary occupations, and bear about with him no apparent seeds of his malady, the assailant cannot afterwards be involved in the consequences of his death, even though it was connected with the previous violence. So it was found in the case of Patrick Kinninmonth, Nov. 2, 1697. Alison's Prin. Crim. Law of Scot. 146; 1 Hume, 181. So if a person be wounded, but recovers after a long confinement, which induces a consumption which ultimately proves fatal, still the death is here so remotely connected with the original violence that human tribunals cannot consider the one as the cause of the other. Ib. Burnett, 550.

If, says Mr. Alison, the death be owing not to the natural and accustomed consequences of the injury, but to remote and improbable accidents which have since intervened, the prisoner must be acquitted. Alison's Prin. Crim. Law of Scot. 147. The prisoner was gamekeeper to Lord Blantyre, and in the course of the scuffle with a poacher, the latter discharged his piece, which lodged its contents in his thigh. He was carried to the Glasgow infirmary, where erysipelas at the time was extremely prevalent, and having been unfortu nately put into a bed formerly occupied by a patient with that disorder, he took it, and died in consequence. Till this supervened the wound bore no peculiarly dangerous symptoms. The public prosecutor strongly contended that if the man had not been fired at, he never would have been exposed to the contagion of the erysipelas, and therefore his death was by a circuitous, but legitimate conseqence, owing to the wound; but this was deemed too re

who has examined the wounds, &c., to prove the manner in which they were probably inflicted, as well as their being the cause of death; and then the facts and circumstances from which the jury are to imply that the prisoner committed the offence, and his motive for committing it.

2. It must be proved that the homicide was committed by the defendant, “feloniously, wilfully, and of his malice aforethought." It must be so laid in the indictment, (a) and proved.

(a) 14 & 15 Vict. c. 100, s. 4; ante, p. 207.

mote a conclusion, and the prisoner, under the direction of Lords Justices Clerk, Boyle, and Succoth, was acquitted. Campbell's case, Ibid. In like manner where the prisoner had thrown a quantity of sulpuhric acid in the face of the deceased, and produced such inflammation in the eyes, that bleeding was deemed necessary, and the orifice made by the surgeon inflamed, and of this the party died, but not of the injury in the face, the court held this second injury, produced by a different hand, not so connected with the original violence as to support the charge of murder, and the prisoner was convicted of assault only. Macmillan's case, Ib.

If the death be truly owing to the wound, it signifies not that under more favourable circumstances, and with more skilful treatment, the fatal result might have been averted. 1 Burnett, 551; Alison, 149. Thus, if an assault be made which opens an artery, it will be no defence to plead that by the assistance of a surgeon the wound might have been stanched and life preserved. 1 Hume, 184; Alison, 149. The prisoner was one of a party of smugglers who had fired at an officer of excise. The wounded man was carried to the nearest village, where he was attended by a surgeon of the country, who was not deficient in attention, but, fever ensuing, the party died at the end of three weeks. It was objected that by skilful treatment the man might have recovered, but the court said that it was for the prisoner to prove if he could, that death ensued ex malo regimine. Edgar's case, Alison, 149. The true distinction in all such cases is, that if the death was evidently occasioned by grossly erroneous medical treatment, the original author will not be answerable; but if it was occasioned from want merely of the higher skill which can only be commanded in great towns, he will, because he has wilfully exposed the deceased to a risk from which practically he has no means of escaping. Accordingly, where the prisoner was indicted for the culpable homicide of a boy in a manufactory, by striking him on the shoulder which dislocated his arm, it appearing that the arm had been worked upon two days after the blow by an ignorant bone-setter, whose operations did more harm than good, and that in consequence of the inflammation thus occasioned, acting upon a sickly and scrofulous habit of body, a white swelling ensued which proved fatal, the jury under the direction of Lord Meadowbank acquitted the prisoner. Macewan's case, Ib.

Though death do not ensue for weeks or months after the injury was received, yet if the wound be severe, and keep in a regular progression from bad to worse, so that the patient continually languishes and is consumed by it, as by a disease, this in reason and law is the same as if he had died on the spot. 1 Hume, 185; Alison's Princ. Cr. Law of Scot. 151. Thus, where the deceased, a post-boy, was robbed, cut and left on the ground all night, and death ensued at the end of two months, and it was proved by the medical evidence that the wound, with the cold which the deceased got by lying out all night, and the great loss of blood which followed on it were the cause of his death, the prisoner was convicted of the murder as well as the robbery. Caldwall's case, Burnett, 552 Alison Princ. 151.

However feeble the condition of the deceased may have been, and however short his tenure of life, it is equally murder, as if the person killed had been in the prime of youth and vigor. Acccordingly, where it appeared that the deceased, a sick and infirm old man, was violently beaten with a pair of tongs, of which in a few hours he died, and it was urged that his death was rather owing to his previous infirm condition than to the assault, it was held to be murder. Ramsay's case, 1 Hume, 183; Alison's Princ. Cr. Law of Scot. 149.