OFFENCE. MURDER-continued.

PUNISHMENT.

that this evidence was sufficient, for it showed the death to have been caused by suffocation (11). So where the indictment alleged the death to have been by suffocation, and the jury found that the death was caused by suffocation, but could not say how it was occasioned; the indictment was held proved (12). But where an indictment charged that the defendant struck the deceased with a brick, and it appeared that he knocked the deceased down with his fist, and the deceased fell upon a brick, which caused his death; it was holden that the cause of death was not properly stated (13). And the same where the defendant was charged as having assaulted the deceased, and struck and beat him upon the head, thereby producing his death, but the evidence showed the death to have been occasioned by the deceased falling on the ground in consequence of a blow on the head received from the defendant (14). And upon an indictment for shooting with a pistol loaded with gunpowder and a leaden bullet, it appeared that there was no bullet in the (13) Kelly's case, 1 Mood. C. C. 113.

(11) Per Patteson, J., Culkin's

case, 5 C. & P. 121.

(12) Per Denman, C.J., Water's

case, 7 C. & P. 250.

(14) Thompson's case, 1 Mood. C. C. 139.

EVIDENCE.

OBSERVATIONS.

of it, was sufficient evidence of the allegation (f). Born alive.]— It must be proved that the entire child has actually been born into the world in a living state (g). The birth is complete when the child is wholly produced, though still attached to the mother by the umbilical cord (h). As breathing may take place before the whole delivery is completed; proof that the child respired in the progress of its birth, is not sufficient evidence of its being born alive (i); but as many children are wholly born alive, and yet do not breathe until some time after, it is not essential that it should have breathed at the time it was killed (k). There must be an independent circulation before it can be accounted alive (/). It seems now to be decided, contrary to the opinion of Lord Hale (m), that where the child is born alive, it will be murder though the injury was given when the child was not wholly born. A person grossly ignorant, practising midwifery, in attempting to deliver a woman, as soon as the head of the child became visible, broke and compressed the skull, thereby occasioning death shortly after it was born. Being indicted for manslaughter, it was objected that the child was not wholly born when the injury was received; after a conviction, the Judges held the conviction right (n). Whether or not a child is born alive depends mainly on the evidence of medical men (o). The test of the lungs floating in water, and their doing so, being (k) Brain's case, ante, per

(g) Id.; Pulley's case, Id. 539; Brain's case, 6 C. & P. 349; Crutchley's case, 7 Id. 814; Sellis' case, Id. 850.

(h) Per Parke, B., Crutchley's case, ante; see Reeves' case, 9 C. & P. 25.

(i) Per Littledale, J., Poulton's case, ante; per Coltman, J., Sellis' case, ante. See Hunter, p. 17.

Park, J.

(1) Pulley's case, ante; Wright's case, 9 C. & P. 754.

(m) 1 Hale, 433. See 5 C. & P. 541 (a).

(n) Senior's case, 1 Mood. C. C. 346. See Parke, B.'s, remarks in Crutchley's case, ante.

(0) See Littledale, J.'s, remarks in Poulton's case, ante.

room where the act was done, and no bullet in the wound, and it was proved that the wound might have been occasioned by the wadding of the pistol; the indictment was held not proved (15). It is sufficient, however, to state the proximate cause of death, without stating the immediate effect resulting therefrom. Where the defendant was charged with having forced and thrust moss and dirt into a child's mouth, throat, and nose, whereby it was choked, and it appeared that the death was not immediate, but was occasioned by the passage to the lungs and stomach being closed by inflammation arising from the injury received; it was holden sufficient (16). Where the prisoner was indicted for cutting the throat of the deceased, and a surgeon proved that what is technically called the throat was not cut, as the wound did not extend so far round the neck; it was held that the indictment must be understood to mean what is commonly called the throat (17). Where the indictment is for a murder by wounding, it need not state the depth,

(15) Per Bollond, B., Park and Parke, Js., Hughes' case, 5 C. & P. 126.

(16) Tye's case, R. & R. 345;

see Webb's case, 1 Moo. & R. 405; and Hickman's case, 5 C. & P. 151. (17) Per Patteson, J., Edwards' case, 6 C. & P. 401.

OFFENCE.

PUNISHMENT.

MURDER-continued.

length, or breadth of the wounds (18). The wound must be stated to have been mortal (19); and that the deceased died of the injury he received (20). If the wound turn to a gangrene or fever for want of proper applications, or from neglect, and the man die of gangrene or fever from want of proper applications, this is a homicide or murder, according to the circumstances under which the wound was given (21) ; but if the death is caused by improper applications to the wound it is otherwise (22). The term struck must always be inserted, where a death by actual violence is charged (23); and the striking must be proved (24). The time both of the stroke and the death must be stated, that the latter may appear to have taken place within a year and a day of the mortal injury (25); or the law will presume some other cause of death (26). Where the death-blow is from an instrument, it is necessary to allege the manner of holding it, as in the right or left hand, or with both hands (27); also, with certainty, to what part of the body the wound or stroke was applied (28); merely stating the wound to be near or about

EVIDENCE.

OBSERVATIONS.

taken as proof of the child having been born alive, is not considered satisfactory (p). When the child is of full maturity (q), and there are marks of violence sufficient to have caused death, the presumptions are strongly against the prisoner. The appearances of the body are not however too readily to be regarded as conclusive, for a swollen, or red, or black appearance of the head or face is common in natural births (r). In the case of wounds, medical science professes to be able to discover whether the infliction was before or after death (s). By 9 Geo. iv. c. 31, s. 14, "if any woman tried for the murder of her child shall be acquitted thereof, it shall be lawful for the jury by whose verdict she is acquitted, to find, in case it shall appear in evidence, that she was delivered of a child, and that she did by secret burying, or otherwise disposing of the dead body of such child, endeavour to conceal the birth thereof; and thereupon the Court may pass such sentence as if she had been convicted upon an indictment for concealment of the birth;" see the offence, post, p. 280. By the above section it is immaterial as to the offence of concealing the birth, whether "the child died before, at, or after its birth." Where the bill for murder was not found by the grand jury, and the prisoner was tried for murder on the coroner's inquisition, it was held that she might be found guilty of the concealment (t).

(p) See Smith's For. Med. 321. Hunt, 17.

(9) Under the fifth month, no fœtus can be born alive; from the fifth to the seventh, it may be born alive, but cannot maintain existence; but at the seventh it may be reared. See Smith's For. Med. 312.

(r) See Smith's For. Med. 371; Hunt. 13; Jarvis on Coroners, pp. 127, 128.

(s) See Smith's For. Med, 241.

(t) Where the offence was under 43 Geo. iii. c. 58; Maynard's case, R. & R. 240; Cole's case, 2 Leach, 1095; 3 Camp. 371.

the breast would be defective (29); or if on the arm, hand or side, without saying whether the right or left, it is bad (3o). Variances as to these particulars are however immaterial (31); and objections to these allegations can now only be taken on demurrer (32). The value of the instrument is immaterial (33). Where the death is charged to have arisen from refusing to supply necessaries to an apprentice, the indictment must state that the apprentice was of tender years, unable to provide for himself (34). Where an imprisoning is charged that sufficiently shows a duty to supply food; otherwise that duty in the defendant must be alleged (35). The word "feloniously," and the words “with malice aforethought" must be inserted (36); so also, in the conclusion, the word "murder" must not be omitted (37). An indictment against two defendants, which states the death to be the result of two different injuries inflicted by each of the defendants separately, on different days, is bad (38). As to the indictment for CHILD MURDER, see Obs. ante, p. 275. (29) 4 Co. 406; 2 Hawk. c. 23, s. 80; 1 East, P. C. 342; see Edward's case, ante (17).

(30) 2 Hale, 185.

(31) Id. 186.

(32) By 7 Geo. iv. c. 64, s. 20.
(33) 2 Hale, 185; it seems un.

necessary to state the value.

(34) Friend's case, R. & R. 20; Marriott's case, 8 C. & P. 425. (35) Edward's case, 8 Id. 611. (36) 2 Id. 187.

(37) Dyer, 261, a.

(38) Devett's case, 8 C. & P. 639.

OFFENCE.

MURDER-continued.

Concealing "by secret burying or otherwise disposing of the dead body" of a child, by any woman who shall be delivered of such child. (M). 9 Geo. IV. c. 31, s. 14.

PUNISHMENT.

Imprisonment, with or without hard labour, for not more than Two years. See ante, p. 268, n.

The person killed]-Must be "a reasonable creature in being, and under the Queen's peace" (37); these latter words the Queen's peace,' mean only that it is not murder to kill an alien enemy in the actual exercise of war (38). As to CHILD MURDER, see Observations, ante, p. 275.

How killed-An unlawful killing must be proved, not such as is excusable or justifiable (39). It may be by any form of death by which human nature may be overcome; as by poisoning, starving, striking, drowning (40); or by any act, the probable consequence of which may be, and eventually is, death, although no stroke were struck by the accused himself (41). Where an apprentice died from harsh treatment and want of care upon the part of his master, while he was labouring under disease; this was held murder in the (37) 3 Inst. 47; as to the de- (40) 4 Bl. Com. 196; 1 Hale, scription of the party killed, in the 431. indictment, see unte, p. 274, n. (38) 3 Id. 50; 1 Hale, 433. (39) See Obs., ante, p. 273.

(4) Id.; 1 Hawk. c. 31, s. 5; 1 Russ, 426; 1 East, P. C. 225; see Stockdale's case, 2 Lew. C. C. 220.