tive of the crime of murder, it is not to be understood merely in the sense of a principle of malevolence to particulars, but as meaning that the fact has been attended with such circumstances as are the ordinary symptoms of a wicked, depraved, and malignant spirit; a heart regardless of social duty, and deliberately bent upon mischief. (e) And in general any formed design of doing mischief may be called malice; and therefore not such killing only as proceeds from premeditated hatred or revenge against the person killed; but also, in many other cases, such killing as is accompanied with circumstances that shew the heart to be perversely wicked, is adjudged to be of malice prepense, and consequently murder. (d) Malice may be either express or implied by law. Express malice is, when one person kills another with a sedate deliberate mind and formed design: such formed design being evidenced by external circumstances, discovering the inward intention; as lying in wait, antecedent menaces, former grudges, and concerted schemes to do the party some bodily harm. (e) And malice is implied by law from any deliberate cruel act committed by one person against another, however sudden: (f) thus where 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. (g) So if a man wilfully poisons another; in such a deliberate act the law presumes malice, though no particular enmity can be proved. (h) And where one is killed in consequence of such a wilful act as shews the person by whom it is committed to be an enemy to all mankind, the law will infer a general malice from such depraved inclination to mischief. (i) 257. (c) Fost. 256, 262. (d) 1 Hawk. P. C. c. 31, s. 19. Fost. 1 Hale, 451 to 454. (e) 1 Hale, 451. 4 Blac. Com. 199. (f) 1 East, P. C. c. 5, s. 2, p. 215. (g) 4 Blac. Com. 200. (h) 1 Hale, 455. 4 Blac. Com. 200. (i) 1 Hale, 474. 1 Hawk. P. C. c. 29, s. 12. 4 Blac. Com. 200. 1 East, P. C. c. 5, s. 18. Malitia, in its proper or legal sense, is different from that sense which it bears in common speech. In common acceptation it signifies a desire of revenge, or a settled anger against a particular person: but this is not the legal sense; and Lord Holt, C. J., says: Some have been led into mistakes by not well considering what the passion of malice is; they have construed it to be a rancour of mind lodged in the person killing for some considerable time before the commission of the fact, which is a mistake, arising from the not well distinguishing between hatred and malice. Envy, hatred, and malice are three distinct passions of the mind.' Kel. 127. Amongst the Romans, and in the civil law, malitia appears to have imported a mixture of fraud, and of that which is opposite to simplicity and honesty. Cicero speaks of it (De Nat. Deor. Lib. 3, s. 30) as 'versuta et fallax nocendi ratio;' and in another work (De Offic. Lib. 3, s. 18) he says, 'mihi quidem etiam vera hæreditates non honestæ videntur And it should be observed as a general rule, that all homicide is presumed to be malicious, and of course amounting to murder, until the contrary appears, from circumstances of alleviation, excuse, or justification: () and that it is incumbent upon the prisoner to make out such circumstances to the satisfaction of the Court and jury, unless they arise out of the evidence produced against him. (k) 2 It should also be remarked that, where the defence rests upon some violent provocation, it will not avail, however grievous such provocation may have been, if it appears that there was an interval of reflection, or a reasonable time for the blood to have cooled before the deadly purpose was effected. And provocation will be no answer to proof of just cause may be assigned for the silence, as that it proceeds from madness, or some other disability or distemper. And in the statute 21 Edw. 1, De malefactoribus in parcis, trespassers are mentioned who shall not yield themselves to the foresters, &c., but immo malitiam suam prosequendo et continuando,' shall fly or stand upon their defence. And where the question of malice has arisen in cases of homicide, the matter for consideration has been (as will be seen in the course of the present and subsequent chapters) whether the act were done with or without just cause or excuse; so that it has been suggested (Chapple, J., MS. Sum.) that what is usually called malice implied by the law would perhaps be expressed more intelligibly and familiarly to the understanding if it were called malice in a legal sense. Malice, 'in its legal sense, denotes a wrongful act done intentionally without just cause or excuse.' Per Littledale, J. M'Pherson v. Daniels, 10 B. & C. 272, and approved by Cresswell, J., as the more intelligible expression in R. v. Noon, 6 Cox, C. C. 137. 'We must settle what is meant by the term malice. The legal import of this term differs from its acceptation in common conversation. It is not, as in ordinary speech, only an expression of hatred and ill-will to an individual, but means any wicked or mischievous intention of the mind. Thus in the crime of murder, which is always stated in the indictment to be committed with malice aforethought, it is neither necessary in support of such indictment to shew that the prisoner had any enmity to the deceased, nor would proof of absence of illwill furnish the accused with any defence, AMERICAN 1 In Texas, malice was defined to be "a condition of mind which shews a heart regardless of social duty and fatally bent on mischief, the existence of which is inferred from acts committed or words spoken." Harris v. S., 8 Tex. Ap. 90, 109. M'Kenney v. S., 8 Tex. Ap. 626. But the present Texas code defines malice to be any act done wilfully and purposely to the injury of another; and in Massachusetts it seems to mean something more — something in the nature of malevolence seems to be required. when it is proved that the act of killing was intentional, and done without any justifiable cause.' Per Best, J. R. v. Harvey, 2 B. & C. 268.1 (j) 4 Blac. Com. 201. In R. v. Greenacre, 8 C. & P. 35. Tindal, C. J., said, 'where it appears that one person's death has been occasioned by the hand of another, it behoves that other to shew from evidence, or by inference from the circumstances of the case, that the offence is of a mitigated character, or does not amount to the crime of murder.' Coleridge and Coltman, JJ., præsentibus. (k) Fost. 255. 4 Blac. Com. 201. 1 East, P. C. c. 5, s. 12, p. 224. On an indictment for murder it appeared that the deceased died of a wound inflicted in her chest with a knife; there was no evidence of any dispute; the prisoner asserted that she had killed herself, and this was his defence. The jury found the prisoner guilty, 'but we believe it was done without premeditation.' Byles, J., refused to receive this verdict, and told the jury that 'to reduce the crime to manslaughter, it must be shewn that there was provocation at the time, and provocation of a serious nature. The prosecutor is not bound to prove that the homicide was committed from malice prepense. If the homicide be proved, the law presumes malice; and although that may be rebutted by evidence, no such attempt has been made here. The defence is that the woman took her own life. question for you is, did the prisoner take his wife's life, or not? If he did, it was murder.' R. v. Maloney, 9 Cox, C. C. 6. The NOTES. Bishop, i. s. 429. See Jones v. C., 75 Pa. 403. Atkinson v. S., 20 Tex. 522. 2 This is so also in America. See C. v. York, 9 Metc. 93. S. v. Johnson, 3 Jones (Law), 266. Green v. S., 28 Miss. 687. P. v. March, 6 Cal. 543. Green v. S., 13 Mo. 382. S. v. Smith, 2 Strobh. 77. U. S. v. M'Ghee, 1 Curtis, C. C. 1. C. r. Vaughan, 9 Cush. 594. C. v. Macloon, 101 Mass. 1. P. v. Kirby, 2 Parker, C. R. 28. U. S. v. Mingo, 2 Curtis, C. C. 1. S. v. Willis, 63 N. C. 26. express malice; so that if, upon a provocation received, one party deliberately and advisedly denounce vengeance against the other, as by declaring that he will have his blood, or the like, and afterwards carry his design into execution, he will be guilty of murder; although the death happened so recently after the provocation as that the law might, apart from such evidence of such express malice, have imputed the act to unadvised passion. (1) But where fresh provocation intervenes between preconceived malice and the death, it ought clearly to appear that the killing was upon the antecedent malice; for if there be an old quarrel between A. and B., and they are reconciled again, and then, upon a new and sudden falling out, A. kills B., this is not murder. (m) It is not to be presumed that the parties fought upon the old grudge, unless it appear from the whole circumstances of the fact: (n) but if upon the circumstances it should appear that the reconciliation was but pretended or counterfeit, and that the hurt done was upon the score of the old malice, then such killing will be murder. (0) Where knowledge of some fact is necessary to make a killing murder, those of a party who have the knowledge will be guilty of murder, and those who have it not of manslaughter only. If A. assault B. of malice, and they fight, and A.'s servant come in aid of his master, and B. be killed, A. is guilty of murder; but the servant, if he knew not of A.'s malice, is guilty of manslaughter only. (p) Petit treason. By 24 & 25 Vict. c. 100, s. 8, every offence which before the commencement of the Act of the 9 Geo. 4, c. 31, would have amounted to petit treason, shall be deemed to be murder only, and no greater offence; and all persons guilty in respect thereof, whether as principals or as accessories, shall be dealt with, indicted, tried, and punished as principals and accessories in murder. (q) (7) 1 East, P. C. c. 5, s. 12, p. 224. (m) 1 Hale, 451. (n) 1 Hawk. P. C. c. 31, s. 30. (0) 1 Hale, 451. (p) 1 Hale, 446. Plowd. 100, post, p. 67. (q) This clause is taken from the 9 Geo. 4, c. 31, s. 2; and 10 Geo. 4, c. 34, s. 3 (1.) Petit Treason was a breach of the lower allegiance of private and domestic faith; and considered as proceeding from the same principle of treachery in private life as would have led the person harbouring it to have conspired in public against his liege lord and sovereign. At common law the instances of this kind of crime were somewhat numerous and involved in some uncertainty. 1 Hale, 376; but, by the 25 Edw. 3, st. 5, c. 2, they were reduced to the following cases: — — 1. Where a servant killed his master. 2. Where a wife killed her husband. 3. Where an ecclesiastical person, secular or regular, killed his superior, to whom he owed faith and obedience. The principles relating to wilful murder were also applicable to the crime of petit treason, which, though it appears to have been sometimes regarded differently, [by unwary people, as Foster, J., says, Fost. 323] was substantially the same offence as murder, differing only in degree. [Fost. 323, 327, 336. 4 Blac. Com. 203.] It was murder aggravated by the circumstances of the allegiance, however low, which the murderer owed to the deceased; and in consequence of that circumstance of aggravation, and of that alone, the judgment upon a conviction was more grievous in one case than in the other; though in common practice no material difference was made in the manner of the execution. As the offence of petit treason is now rendered the same as murder, the course is always to indict for murder, and it has therefore been thought unnecessary to reprint the chapter on Petit Treason, which was in former editions. C. S. G. SEC. II. The Party Killing, and the Party Killed. The party killing. The person committing the crime must be a free agent, and not subject to actual force at the time the fact is done: thus if A. by force take the arm of B. in which is a weapon, and therewith kill C., A. is guilty of murder, but not B. But if it be only a moral force put upon B., as by threatening him with duress or imprisonment, or even by an assault to the peril of his life, in order to compel him to kill C., it is no legal excuse. (r) If, however, A. procures B., an idiot, or lunatic, to kill C., A. is guilty of the murder as principal, and B. is merely an instrument. (8) So if A. lay a trap or pitfall for B., whereby B. is killed, A. is guilty of the murder as a principal in the first degree, the trap or pitfall being only the instrument of death. (t) If one persuade another to kill himself, the adviser is guilty of murder; (u) and if the party takes poison himself by the persuasion of another, in the absence of the persuader, yet it is a killing by the persuader; and he is principal in it, though absent at the taking of the poison. (v)1 And he who kills another upon his desire or command is, in the judgment of the law, as much a murderer as if he had done it merely of his own head. (w) 6 A girl of thirteen years of age was indicted for the murder of an infant ten weeks old. On the prisoner's behalf it was urged that it was not proved that she had capacity to commit the crime, or had acted with deliberate malice: per Pollock, C. B., The crimes of murder and manslaughter are, in some instances, very difficult of distinction. The distinction which seems most reasonable consists in the consciousness that the act done was one which would be likely to cause death. No one could commit murder without that consciousness. The jury must be satisfied before they could find the prisoner guilty [of murder] that she was conscious, and that her act was deliberate. They must be satisfied that she had arrived at that maturity of intellect which was a necessary condition of the crime charged.' (x) The party killed. Murder may be committed upon any person within the King's peace. Therefore, to kill an alien enemy within (r) 1 Hale, 433. Dalt. c. 145, p. 473. 1 East, P. C. c. 5, s. 12, p. 225. (s) 1 East, P. C. c. 5, s. 14, p. 228. 1 Hawk. P. C. c. 31, s. 7. (t) 4 Blac. Com. 35. (u) If present when he kills himself; but if absent, he is an accessory before the fact. See R. v. Russell, R. & M. C. C. R. 356. C. S. G. (v) 1 Hale, 431. Vaux's case, 4 Rep. 44 b. Provided the party taking knew not that it was poison. C. S. G. (w) 1 Hawk. P. C. c. 27, s. 6. Sawyer's case, Old Bailey, May, 1815. MS. S. P. And see R. v. Dyson, post, p. 10. (x) R. v. Vamplew, 3 F. & F. 520. Verdict, manslaughter. AMERICAN NOTE. 1 See C. v. Bowen, 13 Mass. 356. Brennan v. P., 15 Ill. 511. Blackburn v. S., 23 Ohio St. 146. 1 the kingdom, unless it be in the heat and actual exercise of war, (y) is as much murder as to kill the most regular born Englishman. (2) An infant in its mother's womb, not being in rerum natura, is not considered as a person who can be killed within the description of murder and therefore if a woman being quick or great with child, take any potion to cause an abortion, or if another give her any such potion, or if a person strike her, whereby the child within her is killed, it is not murder or manslaughter. (a) But by statute any person unlawfully administering poison, or other noxious thing, to procure the miscarriage of any woman, or unlawfully using any instrument or other means whatsoever with the like intent, is guilty of felony. (b) Where a child, having been born alive, afterwards died by reason of any potions or bruises it received in the womb, it seems always to have been the better opinion that it was murder in such as administered or gave them. (c) A prisoner was indicted for the manslaughter of an infant child; the prisoner, who practised midwifery, was called in to attend a woman who was taken in labour, and when the head of the child became visible, the prisoner, being grossly ignorant of the art which he professed, and unable to deliver the woman with safety to herself and the child, as might have been done by a person of ordinary skill, broke and compressed the skull of the infant, and thereby occasioned its death immediately after it was born: it was submitted that the indictment was misconceived, though the facts would warrant an indictment in another form; that the child being en ventre sa mere at the time the wound was given, the prisoner could not be guilty of manslaughter; but, the prisoner having been found guilty, the judges, upon a case reserved, were unanimously of opinion that the conviction was right. (d) Upon an indictment against Ann West for murder of her child, Maule, J., told the jury that if a person intending to procure abortion does an act which causes a child to be born so much earlier than the natural time that it is born in a state much less capable of living, and afterwards dies in consequence of its exposure to the external world, the person who by her misconduct so brings the child into the world, and puts it thereby into a situation in which it cannot live, is guilty of murder. (e) The murder of bastard children by the mother was considered as a crime so difficult to be proved, that a special legislative provision was made for its detection by the 21 Jac. 1, c. 27, which required that any (y) 1 Hale, 433. (z) 4 Blac. Com. 198. Formerly to kill one attaint in a præmunire was held not homicide, 24 Hen. 1, B. Coron. 197; but the 5 Eliz. c. 1, declared it to be unlawful. (a) 1 Hale, 433. (b) 24 & 25 Vict. c. 100, s. 58. (c) 3 Inst. 50. 1 Hawk. P. C. c. 31, s. 16. 4 Blac. Com. 198. 1 East, P. C. c. 5, s. 14, p. 228; contra, 1 Hale, 432, and Staund. 21; but the reason on which the opinions of the two last writers seem to be founded, namely, the difficulty of ascer taining the fact cannot be considered as satisfactory, unless it be supposed that such fact never can be clearly established. See Exod. c. 21, v. 22, 23. (d) R. v. Senior, R. & M. C. C. R. 346. (e) R. v. West, 2 C. & K. 784. AMERICAN NOTE. 1 As to killing an Indian; see S. v. Gut, 13 Minn. 341. Jim v. T., 1 Wash. Terr. 76. |