office, being necessary when he could not obtain the object of his warrant; but principally because the constable, in the beginning of the assault, and before the man was struck, commanded peace. In the conclusion the jury found nine of the prisoners guilty, and acquitted those within, not because they were absent, but because there was no clear evidence that they consented to the assault, as the jury thought. Sissinghurst House case, 1 Hale, P. C. 461.

Although the criminal intent of a single person, who, without the knowledge or assent of his companions, is guilty of homicide, will not involve them in his guilt, yet it is otherwise where all the party proceed with an intention to commit an unlawful act, and with a resolution at the same time to overcome all opposition by force; for if in pursuance of such resolution, one of the party be guilty of homicide, his companions will be liable to the penalty which he has incurred. Foster, 353; Hawk. P. C. b. 2, c. 29, s. 8.

A person of the name of John Thom, who called himself Sir William Courtnay, and who was insane, called a number of persons together, having a common purpose of resisting the lawfully constituted authorities, Thom having declared that he would cut down any constables who would come against him. Thom in the presence of the two prisoners afterwards shot an assistant of a constable who came to apprehend Thom, under a warrant. It was held by Lord Denman, C. J., that *the prisoners were guilty of murder as principals in the first degree, and [*701] that any apprehension that they had of personal danger to themselves from Thom, was no ground of defence for continuing with him after he had so declared his purpose; and also that it was no ground of defence, that Thom and his party had no distinct or particular object in view, when they assembled together and armed themselves. Tyler's case, 8 C. & P. 616, The apprehension of personal danger does not furnish any excuse for assisting in doing any act which is illegal. Ibid. See this case on another point, ante, 213.

On an indictment for murder against several, one cannot be convicted of an assault committed on the deceased in a previous scuffle, such assault not being in any way connected with the cause of death. R. v. Phelps, 2 Moo. C. C. 240; see ante, 296, also 685.

Proof of the means of killing.] The killing may be by any of the thousand forms of death by which life may be overcome. 4 Bl. Com. 196. But there must be a corporal injury inflicted, and therefore if a man by working upon the fancy of another, or by unkind usage, puts another into such a passion of grief or fear, as that he either dies suddenly or contracts some disease, in consequence of which he dies, this is no felony, because no external act of violence was offered of which the law can take notice. 1 Hale, P. C. 429. Some modes of killing are enumerated by Lord Hale: 1. By exposing a sick or weak person to the cold. 2. By laying an impotent person abroad so that he may be exposed to and receive mortal harm. 3. By imprisoning a man so strictly that he dies. 4. By starving or famine. 5. By wounding or blows. 6. By poisoning. 7. by laying noxious and noisome filth at a man's door to poison him. 1 Hale, P. C. 431. Forcing a person to do an act which is likely to produce and does produce death, is murder; and threats may constitute such force. The indictment charged, first, that the prisoner killed his wife by beating; secondly, by throwing her out of the window, and thirdly and fourthly, that he threatened to throw her out of the window and to murder her, and that by such threats and violence she was so terrified that, through fear of his putting his threats into execution, she threw herself out

Eng. Com. L. Reps. xxxiv. 553.

of the window, and of the beating and bruises received by the fall, died There was strong evidence that the death of the wife was occasioned by the blows she received before her fall, but Heath, J., Gibbs, J., and Bailey, J., were of opinion that if her death was occasioned partly by blows, and partly by the fall, yet if she was constrained by her husband's threats of further violence, and from a wellgrounded apprehension of his doing such further violence as would endanger her life, he was answerable for the consequences of the fall, as much as if he had thrown her out of the window himself. The prisoner, however, was acquitted, the jury being of opinion that the deceased threw herself out of the window from her own intemperance, and not under the influence of the threats. Evan's case, 1 Russ. by Grea. 489; see also R. v. Pitts, Carr. & M. 284.a

If a man has a beast which is used to do mischief, and he knowing this, purposely turns it loose, though barely to frighten people, and make what is called sport, and death ensues, it is as much murder as if he had incited a bear or a dog to worry the party; and if, knowing its propensity, he suffers it to go abroad, and [*702] it kills a man, even this *is manslaughter in the owner. 4 Bl. Com. 197; Palmer, 545; 1 Hale, P. C. 431.

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 endeavoured 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.

With regard to the law of principal and accessary, there is a distinction between the case of murder by poison and other modes of killing. In general, in order to render a party guilty as principal, it is necessary either that he should with his own hand have committed the offence; or that he should have been present aiding and abetting; but in the case of killing by poison it is otherwise. If A. with an intention to destroy B., lays poison in his way, and B. takes it and dies, A. though absent when the poison is taken, is a principal. So if A. had prepared the poison and delivered it to D. to be administered to B. as a medicine, and D. in the absence of A. accordingly administered it, not knowing that it was poison, and B. had died of it, A. would have been guilty of murder as principal. For D. being innocent, A. must have gone unpunished, unless he could be considered as principal.

• Eng. C. L. Reps. xli. 159.

But if D. had known of the poison as well as A. did, he would have been a principal in the murder, and A. would have been accessary before the fact. Foster, 349; Kel. 52; 1 Russ. by Grea. 35.

An indictment for the murder of A. B. by poison, stating that the prisoner gave and administered a certain deadly poison, is supported by proof that the prisoner gave the poison to C. D. to administer as a medicine to A. B., but C. D. neglecting to do so, it was accidently given to A. B. by a child; the prisoner's intention throughout being to murder. R. v. Michael, 2 Moo. C. C. 120; S. C. 9 C. & P. 356.

Whether or not the giving false evidence against another upon a capital charge, with intent to take away his life, (the party being *executed upon such [*703] evidence) will amount to murder appears to be a doubtful point. There are not wanting old authorities to prove that such an offence amounts to wilful murder. Mirror, c. 1, s. 9; Brit. c. 52; Bract. 1. 3, c. 4; see also Hawk. P. C. b. 1, c. 31, s. 7. But Lord Coke says, "it is not holden for murder at this day." 3 Inst. 43. The point arose in M'Daniel's case, where the prisoners were indicted for wilful murder, and a special verdict was found, in order that the point of law might be more fully considered. But the attorney-general declining to argue the point of law, the prisoners were discharged. Foster, 131. The opinion of Sir Michael Foster, who has reported the case, is against the holding the offence to be murder, though he admits that there are strong passages in the ancient writers which countenance such a prosecution. The practice of many ages, however, he observes, by no means countenances those opinions, and he alludes to the prosecution against Titus Oates, as showing that at that day the offence could not have been considered as amounting to murder, otherwise Oates would undoubtedly have been so charged. Foster, 132. Sir W. Blackstone states, on the contrary, that though the attorneygeneral declined in M'Daniel's case, to argue the point of law, yet he has good grounds to believe it was not from any apprehension of his that the point was not maintainable, but from other prudential reasons, and that nothing, therefore, should be concluded from the waiving of that prosecution. 4 Bl. Com. 196,(n.) And it is asserted by Mr. East that he has heard Lord Mansfield say that the opinions of several of the judges at the time, and his own, were strongly in support of the indictment. 1 East, P. C. 333, (n.) Sir W. Blackstone has not given any positive opinion against such an indictment, merely observing that the modern law (to avoid the danger of deterring witnesses from giving evidence upon capital prosecution, if it must be at the risk of their lives) has not yet punished the offence as murder. 4 Bl. Com. 197.

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 medicine 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; @ Eng. C. L. Reps. xxxviii. 152.

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 causâ causati.(1) 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 [*704] 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's case, Kel. 26.

So Maule, J., has held that a party inflicting the wound which ultimately becomes the 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 overexertion 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 ruling 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, post, p. 706. 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

(1) Commonwealth v. Green, 1 Ashmead, 289.

'Eng. C. L. Reps. xxiv. 242.

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. [*705] 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. Allison, 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 peace, 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 unfortunately 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 consequence, owing to the wound; but this was deemed too remote 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 sulphuric 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, [*706] and that in consequence of the inflammation thus occasioned, acting upon a sickly