breathed, but they could not take upon themselves to say whether it was wholly born alive, as breathing may take place before the whole delivery is completed, Littledale, J., said, that with respect to the birth, the being born must mean that the whole body is brought into the world, and that it is not sufficient that the child respire in the progress of its birth. Poulton's case, 5 C. & P. 329. The authority of this decision was recognized by Park, J., in Brain's case, where he said, “a child must be actually wholly in the world, in a living state, to be the subject of a charge of murder; but if it has been wholly born and is alive, it is not essential that it should have breathed at the time it was killed, as many children are born alive and yet do not breathe for some time after their birth. But the jury must be satisfied that the child was wholly born in the world before it was killed, or they cannot find the prisoner guilty of murder:" and he cited Poulton's case, (supra,) Brain's case, 6 C. & P. 349. In another case Mr. Justice James Parke ruled the same way, saying, that a child might breathe before it was born, but that its having breathed was not sufficient to make the killing murder, and that there must have been an independent circulation in the child, or that it could not be considered as alive for this purpose. Pulley's case, 5 C. & P. 539. See also R. v. Wright, 9 C. & P. 754.k

So where the prisoner was charged with the murder of her new-born child by cutting off its head, Coltman, J., held that in order to justify a conviction for murder, the jury must be satisfied that the entire child was actually born into the world in a living state, and that the fact of its having breathed was not a decisive proof that it was born alive, as it might have breathed and yet died before birth. Elizabeth Sellis's case, 7 C. & P. 850.1

Where an indictment charged, that the prisoner being big with child, did bring forth the child alive, and afterwards strangled it; Parke, B., held, that in order to convict upon an indictment so framed, the jury must be satisfied that the whole body of the child had come forth from the body of the mother, when the ligature was applied. The learned Baron added, that if the jury should be of opinion that the child was strangled intentionally, while it was connected with the umbilical cord to the mother, and after it was wholly produced, he should direct them to convict the prisoner, and reserve the point, his impression being that it would be murder if those were the facts of the case. The prisoner was acquitted. Crutchley's case, 7 C. & P. 814; see Senior's case, post; also R. v. Reeves, 9 Carr. & P. 25. In R. v. Trilloes, 2 Moo. C. C. 260, it was held that murder may be committed on a child still attached to the mother by the naval string.

It was held by Lord Hale, that if the child be born alive and afterwards die in consequence of the blows given to the mother, this is not homicide. 1 Hale, P. C. 433. And see 5 Taunt. 21. But Lord Coke, on the contrary, says, that if the child be born alive and die of the potion, battery or other cause, this is murder. [*696] 3 Inst. 50. *The latter is generally regarded as the better opinion, and has been followed by modern text writers. Hawk. P. C. b. 1, c. 31, s. 16; 4 Bl. Com. 198; 1 Russ. by Grea. 485. See 5 C. & P. 541,(a)°. And in conformity with the same opinion the following case was decided. 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, and thereby occasioned its 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, but the judge

Eng. Com. Law Reps. xxiv. 344. i Id. xxv. 433. j Id. xxiv. 446.

Id. xxxii. 767.

Id. xxxii. 749.

a Id. xxxviii. 21.

* Id. xxxviii. 322. • Id. xxiv. 447.

overruled the objection, and the prisoner being convicted, the judges held the conviction right. Senior's case, 1 Moo. C. C. 346.P

Where the indictment was for the murder of "a certain female child whose name was to the jurors unknown," and it appeared that the child was twelve days old, and that the child's mother had said she should like to have it called "Mary Anne," and on two occasions had called it by that name; the prisoner having been convicted, the judges held the conviction right. Smith's case, 6 C. & P. 151. Where the deceased was described as "George Lakeman Clark," and it was proved, that being a bastard child, he had been baptized "George Lakeman," (the name of his reputed father,) and there was no evidence that he had obtained or was called by the mother's name of Clark, the variance was held fatal. Clark's case, Russ. & Ry. 358. With regard to what is the sufficient evidence of a child being known by a certain name, it was said by Burrough, J., "It is proved by one of the witnesses that she should have known him by that name. It cannot be necessary that all the world should know him by that name, because children' of so tender an age are hardly known at all, and are generally called by a Christian name only." Sheen's case, 2 C. & P. 639.

The prisoner was charged with the murder of Eliza Waters, and it appeared that the deceased (who was about ten days old) was her illegitimate child, and the only evidence given of the name was by a witness, who stated, "the child was called Eliza. I took it to be baptized, and said it was Eleanor Waters's child.” It being objected that there was no evidence of the child's surname of Waters, Lord Denman, C. J., reserved the point, and the prisoner, who had been convicted, was afterwards pardoned. Ellen Waters's case, 7 C. & P. 250. An illegitimate child six weeks old was baptized on a Sunday, and from that day to the following Tuesday was called by its name of baptism and its mother's surname. Erskine, J., (after consulting Patteson, J.,) held that the evidence was quite sufficient to warrant the jury in finding that the deceased was properly described by those names in the indictment, which was for murder. Mary Evans's case, 8 C. & P. 765."

Where an indictment against a married woman for the murder of her illegitimate child, stated, that she, "in and upon a certain infant male child of tender age, to wit, of the age of six weeks, and not baptized, feloniously and wilfully," &c., did make an assault, &c. It was objected, that the child being born in wedlock ought to have been described by the surname of the father, or at least, to have been described as a certain child to the jurors unknown. The point being reserved for the consideration of the judges, they unanimously *held that the [*697] deceased was insufficiently described. Biss's case, 8 C. P. 773; S. C. 2 Moo. C. C. 93. An indictment for the murder of a bastard child described as Harriet Stroud, is not sustained by proof of a child christened Harriet, and only called by that name, though the mother's name was Stroud. The proper description is Harriet. A child, "whose name is to the jurors unknown," is not good, because the name of Harriet was known. R. v. Stroud, 2 Moo. 270; S. C. 1 C. & K. 187. See Hick's case, 2 Moo. & R. 302. But where the prisoners were indicted for the murder "of a certain illegitimate male child then late before born of the body of the said J. H.," and the fact as proved in evidence was, that the child had been destroyed by the prisoners almost instantly after its birth; Lord Denman, C. J., held, that the description was sufficient, observing that this was not the case

of a party whose name was unknown, but of one who had never acquired a name, and the indictment identified the party by showing the name of its parent. R. v. Mary and Jane Hogg, 2 Moo. & R. 380. See further R. v. Sarah Willis, 1 C. & K. 722; also R. v. Campbell, 1 C. & K. 82.3

Where a prosecutor has been baptized by one Christian name and confirmed by a different one, and has not acquired the former by common reputation, a description of him in an indictment by such baptismal name is erroneous. R. v. Bridget Smith, 1 Cox, C. C. 248.

Where the indictment charged the prisoner with the murder of "a female bastard child," it was held that proof of its being illegitimate lay upon the prosecutor, but the evidence of the prisoner having told a person, that she had only told of her being with child to the father of it, who had lately got married, was sufficient evidence to support the allegation. Poulton's case, 5 C. & P. 329.*

In a case of manslaughter, it was proved that the deceased was at an inn for three days, and that the innkeeper asked him what his name was, and that while there letters arrived at the inn directed in that name, which letters were delivered to the deceased and received by him. Patteson, J., held, that the innkeeper might be asked what name the deceased gave. Timmins's case, 7 C. & P. 499.*

Proof that the prisoner was the party killing.] When it has been clearly established, says Mr. Starkie, that the crime of wilful murder has been perpetrated, the important fact, whether the prisoner was the guilty agent, is, of course, for the consideration of the jury, under all the circumstances of the case. Circumstantial evidence in this, as in other criminal cases, relates principally,—1st, To the probable motive which might have urged the prisoner to commit so heinous a crime; for, however strongly other circumstances may weigh against the prisoner, it is but reasonable, in a case of doubt, to expect that some motive, and that a strong one, should be assigned as his inducement to commit an act from which our nature is abhorrent, and the consequence of which is usually so fatal to the criminal. 2dly, The means and opportunity which he possessed for the perpetrating the offence. 3dly, His conduct in seeking for opportunities to commit the offence, or in afterwards using means and precautions to avert suspicion and inquiry, and to remove material evidence. The case cited by Lord Coke and Lord Hale, and [ *698 ] which has already been *adverted to, is a melancholy instance to show how cautiously proof arising by inference from the conduct of the accused is to be received, where it is not satisfactorily proved by other circumstances, that a murder has been committed; and even where satisfactory proof has been given of the death, it is still to be recollected that a weak, inexperienced, and injudicious person, ignorant of the nature of evidence, and unconscious that the truth and sincerity of innocence will be his best and surest protection, and how greatly fraud and artifice, when detected, may operate to his prejudice, will often, in the hope of present relief, have recourse to deceit and misrepresentation. 4thly, Circumstances which are peculiar to the nature of the crime, such as the possession of poison, or of an instrument of violence corresponding with that which has been used to perpetrate the crime, stains of blood upon the dress, or other indications of violence. 2 Stark. Ev. 521, 2d ed.

On a trial for murder, where the case against the prisoner was made up entirely of circumstances; Alderson, B., told the jury, that before they could find the prisoner guilty, they must be satisfied "not only that those circumstances were consistent with his having committed the act, but they also must also be satisfied that Eng. Com. Law Reps. 722. ■ Id. xxxii. 600.

▾ Id. 82.

* Id. xxiv. 344.

the facts were such as to be inconsistent with any other rational conclusion than that the prisoner was the guilty party." Hodge's case, 2 Lew. C. C. 227.

In order to convict the prisoner of murder it is not necessary to prove that the fatal blow was given by his hand.(1) If he was present, aiding and abetting the fact committed, he is a principal in the felony. The presence need not always be an actual immediate standing by, within sight or hearing of the fact. 4 Bl. Com. 34. Thus, if several persons set out together, or in small parties, upon one common design, be it murder or other felony, or for any other purpose unlawful in itself, and each takes the part assigned him, some to commit the fact, others to watch at proper distances and stations to prevent a surprise, or to favour, if need be, the escape of those who are more immediately engaged, they are all, if the fact be committed, in the eye of the law present at it. Foster, 350. But in order to render a party principal in the felony, he must be aiding or abetting at the fact, or ready to afford assistance if necessary. Therefore, if A. happens to be present at a murder, but takes no part in it, nor endeavours to prevent it, nor apprehends the murderer, this, though highly criminal, will not of itself render him either principal or accessary. Foster, 350. But in case of assassination or murder committed in private, the circumstances last stated may be made use of against A., as evidence of consent and concurrence on his part, and in that light should be left to the jury, if he be put upon his trial. Foster, 350.

Where the prisoner is charged with committing the act himself, and it appears to have been committed in his presence by a third person, the indictment is sustained. Thus, where the indictment charged that the prisoner, "with both her hands about the neck of one M. D., suffocated and strangled," &c., and it was doubtful whether the murder was not committed in the prisoner's presence by third persons; Parke, J., in summing up, said, "If you are satisfied that this child came by her death by suffocation or strangulation, it is not necessary [ *699 ] that the prisoner should have done it with her own hands, for if it was done by any other person in her presence, she being privy to it, and so near as to be able to assist, she may be properly convicted on this indictment." Culkin's case, 5 C. & P. 121.b

In general, if a man in the prosecution of a felonious intent kill another, it will be murder. A. shoots at the poultry of B., and by accident kills a man; if his intention was to steal the poultry, which must be collected from circumstances, it will be murder by reason of the felonious intent; but if it be done wantonly and without that intention, it will be barely manslaughter. Foster, 259.

Although where a man goes out with intent to commit a felony, and in the pursuit of that unlawful purpose death ensues, it is murder; yet if several go out with a common intent to commit a felony, and death ensues by the act of one of the party, the rest will not necessarily be guilty of murder. If three persons, says Parke, J., go out to commit a felony, and one of them, unknown to the others, puts a pistol in his pocket, and commits a felony of another kind, such as murder, the two who did not concur in this second felony, will not be guilty of it, notwithstanding it happened while they were engaged with him in the felonious act for which they went out. Duffey's case, 1 Lewin, C. C. 194.

Three soldiers went together to rob an orchard; two got upon a pear tree, and

(1) If one throw a bludgeon to another with intent to furnish that other with a deadly weapon to assault, and the assault is made and murder committed, he who threw the bludgeon with such intent is equally guilty with him who struck the blow. Commonwealth v. Drew et al, 4 Mass. 391.

Eng. C. L. Reps. xxiv. 238.

the third stood at the gate with a drawn sword in his hand. The owner's son coming by, collared the man at the gate, and asked him what business he had there; whereupon the soldier stabbed him. It was ruled by Holt, C. J., to be murder in him, but that those in the tree were innocent. They came to commit an inconsiderable trespass, and the man was killed on a sudden affray without their knowledge. It would, said Holt, have been otherwise if they had come thither with a general resolution against all opposers. This circumstance, observes Mr. Justice Foster, would have shown that the murder was committed in prosecution of their original purpose. But that not appearing to have been the case, those in the tree were to be considered as mere trespassers. Their offence could not be connected with that of him who committed the murder. Foster, 353. The following is a leading case on this subject. A great number of persons assembled at a house called Sissinghurst, in Kent, and committed a great riot and battery upon the possessors of a wood adjacent. One of their names. viz. A., was

known, but the rest were not known, and a warrant was obtained from a justice of the peace, to apprehend the said A. and divers persons unknown, who were altogether in Sissinghurst house. The constable, with sixteen or twenty other persons, his assistants, went with the warrant to the house, demanded entrance, and acquainted some of the persons within that he was a constable, and came with the justice's warrant, demanding A. and the rest of the offenders who were in the house. One of the persons from within coming out, read the warrant, but denied admission to the constable, or to deliver A. or any of the malefactors, but going in, commanded the rest of the company to stand to their staves. The constable and his assistants, fearing mischief, went away, and being about five roods from the door, several persons, about fifteen in number, issued out and pursued the constable [*700] and *his assistants. The constable commanded the peace, but they fell on his company, killing one and wounding others, and they then retired into the house to their companions, of whom A. and one G., who read the warrant, were two. For this, A. and G., with those who had issued from the house, and others were indicted for murder, and these points were resolved by the court of K. B. 1. That although the indictment was that B. gave the stroke, and the rest were present aiding and assisting, and though in truth C. gave the stroke, or it did not appear upon the evidence which of them gave it, but only that it was given by one of the rioters, yet that such evidence was sufficient to maintain the indictment, for in law it was the stroke of all the party, according to the resolution in Macally's case, (9 Co. 67 b.) 2. That in this case all that were present and assisting to the rioters, were guilty of the death of the party slain, though they did not all actually strike him or any of the constable's company. 3. That those within the house, if they abetted or counselled the riot, were in law present, aiding and assisting, and principals as well as those that issued out and actually committed the assault, for it was but within five roods of the house and in view of it, and all done as it were at the same instant. 4. That there was sufficient notice that it was the constable, before the man was killed; because he was the constable of the village; and because he notified his business at the door before the assault; and because, after his retreat, and before the man was slain, he commanded the peace. 5. It was resolved that the killing the assistant of the constable was murder, as well as the constable himself. 6. That those who came to the assistance of the constable, though not specially called thereto, were under the same protection as if they had been called to his assistance by name. 7. That though the constable retired with his company upon the non-delivery up of A., yet the killing of the assistant in that retreat was murder; because the retreat was one continued act in pursuance of his