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fence that the defendant might have recovered if greater care or skill had been shown in his treatment, f or that if he had consented to an amputation he would probably not have died.g

Intervening surgical operation. — Where a surgical operation is performed in a proper manner, and under circumstances which render it necessary, in the opinion of competent surgeons, upon one who has received a wound apparently mortal, and such operation is ineffectual to afford relief and save the life of the patient, or is itself the immediate cause of death, the party inflicting the wound will nevertheless be responsible for the consequences. h And so when the wound brings on a fever which is the immediate cause of death. h1 Nor does the unskilfulness of the treatment applied affect the question, when the wound was dangerous, and the intent felonious. h2

Intervening mortal disease of the deceased. - If it should appear that the death of the deceased was accelerated by the violence of the prisoner, his guilt is not extenuated because death might and probably would have been the result of a disease with which the deceased was afflicted at the time of the violence, i Thus where the evidence was that the defendant dashed his wife violently on the brick floor of a kitchen, and then struck her with the tongs on her thigh, inflicting a severe bruise, but no injury in itself fatal ; and that she languished ten days, during which she, at his desire, and in effect driven away by him, sought shelter at a friend's where, at the end of that time, she died ; he providing no medical aid, and no doctor visiting her until the day before her death, when it was too late; it appearing from medical evidence that she was diseased, but that she might have lived for an indefinite period; and that the effect of the whole of the violence was to hasten her death, by a shock to the nervous system calculated to aggravate the disease: It was held that if this was so he was guilty of manslaughter. il

f Rew's case, Kel. 261 ; Com. v. Parsons v. State, 21 Alab. 300. See Green, 1 Ashmead, 289; U. S. v. War- Wharton on Homicide, 241, 242, 243, ner, 4 McLean, 464; McAllister v. 244, and cases in note f. Ante, $ 751. State, 17 Alab. 434 ; State v. Baker, 1 hi i Hale P. C. 428. Jones, 267; State v. Scott, 12 La. Ann. ha See authorities cited in notes f 274 ; Com. v. Hackett, 2 Allen, 137; and g, and Com. v. Hackett, supra; R. R. v. Lee, 4 F. & F. 63. Ante, $ 751. v. Minnock, 1 Cr. & Dix, 45.

9 R. v. Holland, 2 Moody & R. 351. i State v. Morea, 2 Ala. 275. Ante, Ante, $ 751.

$ 751. h Com. v. McPike, 3 Cush. 181;

So, also, where the evidence was that the defendant struck the deceased twice with a heavy stick, that he afterwards left him asleep by the side of a small fire in a country lane during the whole of a frosty night in the month of January, and the next morning, finding him just alive, put him under some straw in a barn, where his body was found some months afterwards. The jury was directed that if death resulted from the beating or from the exposure during the night in question, such exposure being the result of criminal negligence, or from the prisoner leaving the boy under the straw ill, but not dead, the defendant was guilty of manslaughter. 22

If, therefore, the wound was not of a character ordinarily to take life, and if the immediate cause of death was unskilful treatment, or some abnormal condition of the deceased, the weight of authority, as just given, is that the assailant is responsible for murder or manslaughter, as the proof of intent may require. It is true that in several cases this is qualified by saying that to produce these consequences the wound must have been dangerous. 23 If we construe dangerous in its largest sense, i. e. something that may bring danger, this is correct. But if it means lethal or mortal, using the term to denote a necessary and inevitable connection between the injury and the death, supposing the injury to have been inflicted on a perfectly healthy man, then the qualification is unsound. It conflicts with the elementary principle just stated, that it is enough if the cause be mediate. And it would in most cases of homicide prevent conviction. There are few deaths from wounds as to which there might not be a reasonable doubt as to whether, if the deceased had been perfectly healthy, or the treatment perfectly skilful, death might not have been averted. And there is scarcely a poison that might not be counteracted by the immediate exhibition of antidotes. The true question then is, was there a felonious attempt to take life, or inflict bodily harm? If so, and the deceased sustains any physical hurt which contributes to death, and without which death would not at that time have occurred, then the defendant is guilty of homicide, as has been already fully shown. i4

il R. v. Murton, 3 F. & F. 492. j? R. v. Marten, 11 Cox, 136.

23 See Com. v. Hackett; Parsons v. State, supra.

Where a judge charged the jury that if one person inflicts a mortal wound, and before the assailed person dies, another person kills him by an independent act, the former is guilty of murder, this, as has been noticed, was held to be error. i

The evidence must connect the death with the special means charged. k Thus, on an indictment for manslaughter by causing a fire, it is necessary, in order to sustain the case by an exhaustive process of proof, to show that the fire could not have arisen from any other cause than that charged ; it is necessary to leave no considerable interval of time in which some other cause might have acted. ki

$ 941 a. Death by terror or broken heart." The cases just cited serve in a great measure to solve the question whether, when a person dies through terror or nervous prostration, he who produces this state of mind is guilty of murder. Cases, for instance, are on record where men on the scaffold have died from terror before the axe fell. Suppose the execution in this case was wrongful; would the executioner be liable for homicide ? Or, to take the case of the student mentioned in Washington Allston's life, who died from a shock produced by the apparition of a pretended ghost : would the perpetrators of this trick have been in like manner liable? Or a wife dies of a broken heart, in consequence of her husband's neglect and unkindness, though without any physical injury inflicted : is the husband indictable for killing her? Undoubtedly there is moral guilt in such cases proportionate to the degree of malice. But there is no technical guilt which the law can punish, for the reason that the law has no test to measure the relation of cause and effect in matters purely psychological. How much of the terror or “ brokenheartedness" for instance, was due to the patient's own folly or wrong? What legal proof is possible of such terror or “ brokenheartedness ?” How can the death be, beyond reasonable doubt, traced to either ? Hence it is that the law, when the case consists of these bald elements, declines to interpose. ka

it See ante, $ 751.

į State v. Scates, 5 Jones N. C. 420. Ante, $ 751. k Post, $ 1064 ; ante, $ 751.

ki R. v. Gardner, 1 F & F. 669.

k? See 1 Hale P. C. 429 ; 1 East P. C. 225.


But it is otherwise when the factor of force or fraud intervenes and connects it directly with the death. Thus he who chases an enemy over a precipice is responsible for that enemy's death, though the leap was caused by terror, and no hand was imposed. k3

4. If an Infant, the Child must have been born alive. $ 942. To kill a child in its mother's womb is no murder ; but if the child be born alive, and die after birth through the potions or bruises it received in the womb, it is murder in the person who administered or gave them. l Where, also, a blow is maliciously given to a child whilst in the act of being born, as, for instance, upon the head as soon as the head appears, and before the child has breathed, it will be murder if the child is afterwards born alive, and dies thereof. m If the child has been wholly produced from the body of its mother alive, and she wilfully and of malice aforethought strangle it while it is alive, and has an independent circulation of its own, this is murder, although the child be still attached to its mother by the umbilical cord. But it must be proved that the entire child has actually been born into the world in a living state ; and the fact of its having breathed is not a conclusive proof thereof.o

k3 Erskine, J. in R. v. Pitts, C. & M. not be sustained. R. v. Wright, 9 C. & 284. Ante, 751; post, $ 964 a. P. 754 — Gurney. See also Evans v.

I 3 Inst. 50. See Wharton on Hom- People, 49 N. Y. 86; Com. v. Donahue, icide, 93, 94, 95, 96, 97, 98, &c. See 8 Phila. Rep. 623. An unskilful pracante, $ 748, 874 ; R. v. Poulton, 5 Car. titioner of midwifery wounded the & Payne, 329 ; R. v. Enoch, 5 Car. & head of a child before the child was Payne, 539; R. v. Wright, 9 Car. & perfectly born. The child was afterPayne, 754 ; Evans v. People, 49 N. wards born alive, but subsequently Y. 86. See ante, $ 745-6-7-8-9, 872- died of this injury: It was held 3-4-5-6, &c.

manslaughter, although the child was m R. v. Senior, 1 Mood. C. C. 346. in ventre sa mère at the time when the n R. v. Trilloe, 1 Car. & Marsh. wound was given. Rex v. Senior, 1 650; S. C. 2 Mood. C. C. 413. See R. M. C. C. 346; 1 Lewin C. C. 183, n. 1. Sellis, 7 C. & P. 850; and see Whar. Where the evidence went to prove ton on Homicide, 94, 95.

that the child had dropped from her R. v. Sellis, 7 C. & P. 850 ; R. v. whilst she was on the privy, and that Poulton, 5 C. & P. 329. Where it it had been smothered in the soil : appeared that the child must have It was held, that if the jury was of died before it had an independent cir- opinion that after it had been born the culation : It was held, that as the mother had the power of procuring child had never had an independent such assistance as might have saved circulation, the charge of murder could the child's life, and she neglected to

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If a person intending to procure abortion does an act which causes a child to be born so much earlier than the natural time, that it is born in a state much less capable of living, and afterwards dies in consequence of its exposure to the external world, the person who by this misconduct so brings the child into the world, and puts it thereby in a situation in which it cannot live, is guilty of murder ; and the mere existence of a possibility that something might have been done to prevent the death, would not render it less murder. p 5. The Homicide must be other than in the Course of Legitimate

Public War. $ 943. The words, “ in the peace of God and the said Commonwealth, then and there being," as used in the indictment, and in the definition of murder, mean merely that it is not murder to kill an alien enemy in time of war ; q but killing even an alien enemy within the kingdom, unless in the actual exercise of war, would be murder. r

The plea of an Indian war with the United States cannot avail as an excuse for murder committed by “friendly” Indians or “ Indians at war,” and in a part of the country not involved in hostilities.pl

But homicide by any person forming part of a belligerent army, recognized as such, is not murder when committed in due course of war. 22


1. Homicide from Malice aforethought Express ; where the Delib

erate Purpose of the Perpetrator is to deprive another of Life or do him some great Bodily Harm.

$ 944. Where the act is committed deliberately, with a deadly weapon, and is likely to be attended with dangerous conseprocure it, she was guilty of man- rl Jim v. Territory, 1 Wash. Terr. 76 slaughter. R. v. Middleship, 5 Cox and see proceedings in the Modocs C. C. 275 Erle. See ante, $ 748.

case, June, 1873. p R. v. West, 2 Car. & Kir. 783 ; 72 See post, $ 1785, and see Smith 2 Whart. on Homicide, 192–194. Post, Brazelton, 1 Heiskill, 44 ; Gunter i $ 1029 a; ante, $ 751.

Patton, 2 Heiskill, 261 ; Sequestratio 9 Wharton on Homicide, 259 ; cases, 30 Texas, 700, and other case Inst. 50; 1 Hale, 433. Ante, $ 210 q?. cited in an interesting review of thi

m 1 Hale, 433. See State v. Gut, topic in Southern Law Rev. Ap. 187 13 Minn. 341.

337. See also ante, $ 210 q1.


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