OXFORD CIRCUIT. OXFORD SUMMER ASSIZES, 1852. July 16. (Before Mr. JUSTICE CRESSWELL.) REG. v. NOON. (a) Murder-Manslaughter and misadventure-Definition of 'malice aforethought-Words no provocation in law. If a blow without provocation is wilfully inflicted, the law infers that it was done with malice aforethought, and if death ensues, the offender is guilty of murder, although the blow may have been given in a moment of passion. Irritating language by the deceased forms no provocation in law, so as to reduce the crime to manslaughter. The prisoner was indicted for the murder of his wife, and it appeared that on his return home late at night drunk, the deceased made use of some taunting language to him, upon which he took down a sword from the shelf, and unsheathed it, and struck her with the flat part of it, and she then attempted to reach the door of the room through which her daughter, who was on the outside, endeavoured to pull her, the prisoner following her. She immediately afterwards screamed, and on being pulled out of the room by her child, a wound on the left side was observed, of which she died in a few hours. The defence was, that the deceased in resisting the efforts of her daughter to remove her from the room, fell back on the sword, which the prisoner was too much intoxicated to know was unsheathed. Cresswell, J. directed the jury, that if the prisoner used the weapon wilfully, that was such malice aforethought as the law required, and he was guilty of murder; but if the deceased rushed on the sword accidently, he must be acquitted altogether, and if the wound was inflicted in a struggle at the door, the prisoner having the sword in his hand, but without any intention on his part, to use it, then there was a careless use of the sword, which made him guilty of manslaughter. LIJ The facts of the case appeared from the evidence of the prisoner's daughter, a little girl, twelve years of age. She stated that in consequence of her father not returning home on Saturday night the 2nd of May, her mother went to look for him soon after (a) Reported by J. E. DAVIS, Esq., Barrister-at-Law. REG. v. NOON. 1852. Murder midnight. They returned together in a few minutes; he was not sober. Her mother upbraided him with staying out so late. He took some money out of his pocket and counted it. She said he could treat other persons and not her. He then took down a sword from the shelf, pulled it out of the sheath, and struck the Manslaughter, deceased who was sitting down, on the back with the flat part of the sword. The child ran to the door and got outside; the mother got up and attempted to follow her, and her daughter took hold of her hand to pull her through. The father was standing in the room, and according to the child's first account, he went to his wife at the door, with the sword, and ran it into her left side, It appeared however that the witness could not see the actual thrust; but her mother screaming, the child pulled her out of the room into the street, where she fell down. She was then led to a neighbour's, and was subsequently taken back to her own house. The prisoner had in the meantime replaced the sword in its sheath on the shelf. On examination, a wound nine inches long was found in the left side of the deceased, of which she died in about twentyfour hours. The prisoner paid every attention to her during her last moments. The deceased stated in her husband's presence, that he had done it with a sword. She subsequently said to him, “Elijah, I freely forgive you, as I hope the Lord will forgive me, but always avoid passion." Pigott addressed the jury, contending that the facts proved were consistent with the supposition that the deceased, in resisting the effort of the daughter to remove her from the room, fell back on the sword, which the prisoner was too much intoxicated to know was unsheathed. In the course of his remarks, the learned counsel commented on the absence of express malice, and cited Russell on Crimes (2nd edit. vol. 1, p. 483.) Express malice is where 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. The CRESSWELL, J. in summing up, said: "The charge is one of wilful murder, and the indictment charges that the prisoner committed the crime with malice aforethought. It is my duty to explain to you what that means, and for that purpose I will read to you the language of a much higher authority than my own. use of those words does not require you to find any previous grudge or malignant feeling. It is sufficient if any act, likely to produce a serious injury, is done wilfully. In the first passage am going to quote, the author says, "When the law makes use of the terms malice aforethought as descriptive of the crime of murder, it is not to be understood in that narrow restricted sense to which the modern use of the word malice is apt to lead one, a principle of malevolence to particulars. For the law by the term malice in this instance, meaneth, that the fact hath been attended with such circumstances as are the ordinary symptoms of a wicked, REG. บ. NOON. 1852. Murder depraved, malignant spirit." (b) Now, if a person use a deadly weapon, that is evidence of malice. Again: "any formed design of doing mischief may be called malice, and therefore that is not such killing only as proceeds from premeditated hatred or revenge against the person killed, but also in many other cases, such as is accompanied with those circumstances that show the heart to be Manslaughter. perversely wicked, is adjudged to be of malice prepense, and consequently murder." (c) This is expressed more intelligibly by the late Mr. Justice Littledale, who says, "That malice in its legal sense, denotes a wrongful act, done intentionally without just cause or excuse." (d) Therefore, if you think the prisoner used the weapon wilfully, then that is such malice as the law requires. The great question for your consideration is, whether the wound was given wilfully. If done by the accident of the woman rushing on the sword, the prisoner would not be responsible. If you can find any evidence that he used the sword carelessly, and that without intending to inflict a wound, he caused it, then he is guilty of manslaughter; but if he used it intending to inflict a wound, then he is guilty of murder. Mr. Justice Cresswell then went through the evidence, and upon that part of it relating to the observations of the deceased immediately before the prisoner took the sword down, observed, that where death is occasioned, words form no justification in law. When in a contest, the law makes great allowance for blows and a personal encounter, but not for words. If therefore, in consequence of words, the prisoner was provoked and intended to do the deceased a grievous injury, that is no justification or alleviation of the offence. In conclusion, the learned judge said "There is no evidence of any conflict or of any provocation in law. If the prisoner used that sword intending to do a serious injury, that is such evidence of malice as the law holds to be murder. If the deceased woman rushed upon it, then it was an accident, and he is not guilty. If the wound was inflicted in a struggle at the door, without any intention on the part of the prisoner to use it, but having the sword in his hand, then there was such a careless use of that sword as to make him guilty of the crime of manslaughter. Verdict, Guilty of manslaughter. Cripps and Sawyer, for the prosecution. (b) Foster's Crown Law, p. 256. (e) I Hawkins' Pleas of the Crown, c. 31, s. 18, cited 1 Russell on Crimes, 2nd edit. p. 482. (d) M'Pherson v. Daniels, 10 B. & C. COURT OF CRIMINAL APPEAL. April 23, 1853. (Coram JERVIS, C. J., PARKE, B., ALDERSON, B., WIGHTMAN, J., and CRESSWELL, J.) REG. v. PRISCILLA PHILPOTT. (a) Parent and child-Cruelty-Neglect to provide necessary foodIndictment-Material averment-Actual injury-Evidence. Neglect on the part of a parent to provide an infant child with necessary food and clothing is not a misdemeanor at common law, unless some actual injury is done to the child; and in an indictment for that offence, an averment that the child was actually injured is a necessary and material allegation, and must be proved. Whether actual injury has been occasioned is a question of fact for the jury; but where, upon a case reserved, it appeared that a mother had· left her children for several days without food or clothing, so that, but for the attention of a neighbour, they might probably have died; but that, in consequence of that attention, they did not suffer any serious injury, though the neighbour thought that they did suffer in some degree; and the question was put to the court whether the injury was sufficient in degree to constitute the offence: Held, insufficient. AT T the General Quarter Sessions of the Peace for the County of Kent, holden at Maidstone on the 4th of January, 1853, Priscilla Philpott was tried upon an indictment which charged that, before and at the time of the committing of the offence next hereinafter-mentioned, to wit, on the 20th day of December, A.D., 1852, Priscilla Philpott, late of the parish of Chatham, in the county of Kent, was the mother of, and then had the care and custody of an infant female child, whose name is to the said jurors unknown, of tender years, to wit, of the age of seven years, and unable to support or maintain herself, or to provide herself with necessary and proper food and clothing; and the said Priscilla Philpott then was able to support and maintain the said infant child, and to provide the said infant child with necessary and proper food and clothing, whereby it became and was the duty of the said Priscilla Philpott to maintain and support said infant child, and to provide the said infant with necessary and proper food and clothing. Nevertheless the said Priscilla Philpott, being an evil-disposed person, and not regarding her said duty in (a) Reported by A. BITTLESTON, Esq., Barrister-at-Law. the REG. v. PRISCILLA 1853. that behalf, on the day and year aforesaid, at the parish aforesaid, in the county aforesaid, did unlawfully and wilfully neglect to support or maintain the said infant child, or to provide the said infant with necessary and proper food and clothing, and did then unlawfully and wilfully desert and abandon the said infant child, and did leave the said infant child without necessary food or clothing for a long space of time, to wit, four days, whereby and child-Cruelty by reason of which said unlawful and wilful neglect, desertion -Neglect. and abandonment, the said infant child became and was greatly injured and weakened; against the peace of our Lady the Queen, her crown and dignity. A second count in the indictment contained a similar charge against the prisoner for neglecting to support another of her children, being a female child of the age of six years. And there was a similar charge in a third count, with respect to another of her children, being a boy of the age of three years. It was proved upon the trial that the prisoner was the wife of a seaman in Her Majesty's service, who was absent on service; that she received a portion of his pay under a power given by her husband; that she had a house to herself in which she lived with her three children, the children mentioned in the indictment; that the prisoner was able to work and get her living if she chose; was a good needlewoman, and was used to work for the slopsellers. Parent and Mary Anne Crane, a witness for the prosecution, a neighbour of Case. the prisoner, stated that about five o'clock in the evening of the 20th December, prisoner called on her with another woman, Mrs. Gardner, who came to take leave of witness. Crane asked prisoner whether she was going to stay out all night again? That the prisoner made no answer and went away; that about half an hour afterwards witness went to see the children, the door of the house being only fastened with a latch; witness went in and found the children upstairs, in bed; that there was no food in the house; a flock-bed on the floor, with only one bit of blanket upon it; that the bed was wet; that witness gave the children a piece of bread and butter each; the little boy was crying; that witness went to them again the next morning, soon after five o'clock; the prisoner was not there, nor any body but the three children, who were asleep; that witness went home, and about eight o'clock made some coffee and took to them, with a piece of bread and some coals, and made a fire; that about noon witness went in again and found them alone, not in bed; that the two girls were perfectly naked, and the little boy had nothing but a piece of an old apron about him; that she saw no other clothes that the children might have put on; that witness gave them a mess of turnips and potatoes; that at night witness begged some food for them, which they had. They were alone that night, as far as witness knew; that on the following morning (Wednesday) witness gave the children some bread, and afterwards took them to the parish workhouse, and that on the next day (Thursday), about eight o'clock in the morning, the prisoner came to witness and asked her if she |