other, if the punishment be moderate, the parent will be innocent as per infortunium. But if the correction exceeds the bounds of moderation, either in the manner, the instrument, or the quantity of the punishment, and death ensues, it is manslaughter at the least, and in some cases murder. Thus it will, as a rule, be murder if the instrument used is one likely to cause death; manslaughter, if the instrument is not of such a character, though an improper one. The act must also (c) be done with due caution to with due prevent danger; and therefore with more caution by caution. those using dangerous instruments or articles. Due caution is such as to make it improbable that any danger or injury should arise from the act to others. Thus throwing stones from a house, whereby the death of some one is caused may be murder, manslaughter, or homicide by misadventure: murder, if the thrower knew that people were passing, and gave no notice; manslaughter, if a time when it was not likely that any people were passing; excusable homicide if in a retired place, where persons were not in the habit of passing or likely to pass (a). It has been said that to be criminal, the negligence must be so gross as to be reckless (y), but it is impossible to define culpable or criminal negligence. homicide Felonious homicide, or homicide coupled with a Felonious felonious intention, is capable only of a negative de- negatively scription—the killing of a human creature of any age described. or sex without justification or excuse. The human creature killed may be either one's self or another. SUICIDE OR SELF-MURDER. Suicide is the felony of murder, inasmuch as it is the Suicide. murder of one of the sovereign's subjects. To be such (x) Fost. 262. (y) R. v. Noakes, 4 F. & F. 921, n. Punishment. offence, the act must be committed deliberately, and by one who has arrived at years of discretion, and is in his right mind. The supposed absence of the last requisite is often taken advantage of by a jury guilty of “an amiable perjury," in order to save the reputation of the deceased. In fact sometimes their verdicts shew they deem the very act of suicide evidence of insanity. Not only is he guilty of suicide who, in pursuance of a fixed intention, takes away his life, but also he who, maliciously attempting to kill another, occasions his own death; as where a man shoots at another, and, the gun bursting, he kills himself. But if a man is killed at his own request by the hand of another, the former is not deemed in law a felo de se, though the latter is a murderer. If one persuades another to kill himself, and he does so, the adviser is guilty of murder. So, also, if two persons agree to commit suicide together, if one escapes and the other dies, the survivor is guilty of murder (z), though it is extremely doubtful whether he would be executed. Formerly the punishment for this crime was an ignominious burial in the highway, without Christian rites, with a stake driven through the body; and the vicarious punishment of his friends by the forfeiture of all his goods and chattels to the Crown. But now the only consequence is the denial of Christian burial, the felo de se being buried in the churchyard or other burying ground, within twenty-four hours after the inquest, between the hours of nine and twelve at night (a). The forfeiture has been done away with in this as well as in other kinds of felony (b). (2) R. v. Dyson, R. & R. 523. (a) 4 Geo. 4, c. 52, s. 1. (b) 33 & 34 Vict. c. 23. "Suicide may be wicked, and is certainly injurious to society, but it is so in a much less degree than murder. The suicide. An attempt to commit suicide is not an attempt Attempted to commit murder within the Offences against the Person Act (c), but still remains a common law misde meanor. The felonious killing of another is either murder or Felonious manslaughter. In dealing with the crime of murder, killing of we shall anticipate, to some extent, the law of manslaughter, a great part of the law on the subject consisting in a distinction of the two crimes. MURDER. character. Murder is popularly regarded as the gravest crime Murder, varies known to the law. As a rule it would occupy the in its moral same position, regarded both from a moral and from a legal point of view. But that this is not always the case an example will serve to shew. Both of the following acts are murder, and punishable by death. A man, having received a slight insult from another, dogs his path for six months, and, with all circumstances of aggravation, kills him in cold blood. A man carrying a gun sees a hen and resolves to shoot and then appropriate it; he shoots, and by accident wounds a person who has come upon the scene; the wounded man dies nine months afterwards, though his life might have been saved if he had submitted to an operation, or if the physician had been more skilful. But, on the other hand, there is one mode of depriving of life which is at least equally culpable, viewing the matter morally, but which is not regarded as murder, namely, taking away a man's life by perjury (d). injury to the person killed can neither be estimated nor taken into account. The injury to survivors is generally small. It is a crime which produces no alarm, and which cannot be repeated. It would, therefore, be better to cease altogether to regard it as a crime, and to provide that any one who attempted to kill himself, or who assisted any other person to do so, should be liable to secondary punishment."-Fitz. St. 121. (c) 24 & 25 Vict. c. 100, s. 15. (d) R. v. Macdaniel, Fost. 131. Definition of murder. of the offender. We may adopt Coke's definition of murder for the purpose of explaining the crime. "When a person of sound memory and discretion unlawfully killeth any reasonable creature in being and under the king's peace with malice aforethought, either express or implied" (e). The sanity, &c., (a.) The offender must be of sound memory and discretion. Thus are excluded all idiots, lunatics, and infants, in accordance with the rules as to capability of committing crimes which have already been set forth (f). To which we may add, that a person would be guilty of manslaughter at the most if he were not conscious that the act done was one which would be likely to cause death (g). Of course the person procuring an idiot to commit murder, or indeed, any crime, is guilty himself of the crime. The unlawful killing. The form of death. (b.) Unlawfully killeth, that is, kills without justification or excuse.-As we have seen, the presumption is against the accused, and it is for him to purge the act of its felonious character by proving such justification or excuse. It is perfectly immaterial what may be the particular form of death, whether poisoning, striking, starving, drowning, or any other (h). Any act, the probable consequence of which may be, and eventually is, death, is murder, though no stroke be struck, and, what is more noticeable, though the killing be not primarily intended; for example, when a mother hid her child in a pig-stye, where it was devoured (2). So if one, under a well-grounded apprehension of personal violence, does an act which causes his death, as for instance, jumps out of a window, he who threatens is answerable for the consequences (k). A person may also be guilty through mere nonfeasance; as if it was his duty and in his power to supply food to a child unable to provide for itself, and the child died because no food was supplied (7). death. It is no defence to shew that the deceased was in ill- The cause of health and likely to die when the wound was given (m). Nor is it a defence that the immediate cause of death was neglect on the part of the doctor, or the refusal of the party to submit to an operation; though it would be otherwise if the death were caused by improper applications to the wound, and not the wound itself (n). To make the killing murder the death must follow within a year and a day after the stroke The time of or other cause; for if the death is deferred for that death. length of time, the law will presume that it arose from some other cause. the form of death. If a person is indicted for one species of killing, e.g., Variance as to poisoning, he cannot be convicted by evidence of a totally different species of death, e.g., starving. But if the difference consists only in a detail, e.g., whether the instrument was a sword or an axe, this is immaterial. As a general rule, proof is required of the finding of Finding of the the body of the deceased. But this rule is not in- body. flexible, as where the direct evidence brought before the jury is sufficiently strong to satisfy them that a murder has really been committed. (c.) Any reasonable creature in being and under the The person king's peace. Therefore killing a child in its mother's killed. (k) R. v. Evans, 1 Russ. 426. |