slaughter.(a) Neither shall he be guilty of a less crime who kills another *200] *in consequence of such a wilful act as shows him to be an enemy to all mankind in general; as going deliberately, and with an intent to do mischief,(b) upon a horse used to strike, or coolly discharging a gun among a multitude of people.(c) So if a man resolves to kill the next man he meets, and does kill him, it is murder, although he knew him not; for this is universal malice. And if two or more come together to do an unlawful act against the king's peace, of which the probable consequence might be bloodshed, as to beat a man, to commit a riot, or to rob a park, and one of them kills a man; it is murder in them all, because of the unlawful act, the malitia præcogitata, or evil intended beforehand. (d)

Also in many cases where no malice is expressed the law will imply it, as, where a man wilfully poisons another: in such a deliberate act the law presumes malice, though no particular enmity can be proved.(e) And if a man

(*) 1 Hal. P. C. 454, 473, 474.

(b) Lord Raym. 143.

(e) 1 Hawk. P. C. 74.

(d) Ibid. 84.
() 1 Hal. P. C. 455.

23 Homicide may be and is often extenuated by the circumstance of a mutual contest arising from the spur of the occasion, where no undue advantage is either sought or taken by either of the parties. See 5 Burr, 2793, and cases cited 1 East, P. C. 241 to 246. And in this case it is of no consequence from whom the first provocation arises. 1 Hale, 456. But if one with his sword drawn makes a pass at another whose sword is undrawn, and a combat ensues, if the former be killed it will only be manslaughter in the latter, but if the latter fall it will be murder in the former; for by making the pass before his adversary's sword was drawn he evinced an intention not to fight with but to destroy him. Kel, 61. Hawk. c. 31, s. 33, 34, a. And where a man, upon occasion of some angry words, threw a bottle at the head of his opponent and immediately drew, and when his adversary returned the bottle stabbed him, this was holden to be murder in him, because he drew previous to the first aggression. Kel. 119. 2 Ld. Raym. 1489. So, if two bailiffs arrest a man, and he abuse and threaten and strike them, and bring pistols, declaring that he will not be forced from his house, and on high words arising between them and on the bailiffs being struck and provoked they fall on him and kill him, they will be guilty of manslaughter only. 6 Harg. St. Tr. 195, Fost. 292. 293, 294. And where, on an affray in a street, a soldier ran to the combatants, and in his way a woman struck him in the face with an iron patten and drew a great deal of blood, on which he struck her on the breast with the pommel of his sword, and on her running away immediately followed and stabbed her in the back, he was holden to be guilty simply of felonious homicide, (Fost. 292; see 5 Burr. 2794;) and where, after mutual blows between the prisoner and the deceased, the prisoner knocked down the deceased, and after he was upon the ground stamped upon his stomach and belly with great force, it was held manslaughter only. Russ. & Ry. C. C. 166. On a quarrel between a party of keelmen and soldiers, one of the latter drew his sword to protect himself and his comrades from the assaults of the mob, and killed a person dressed like one of the former, whom he mistook for one of the keelmen; and this was held to be no more than manslaughter. Brown's case, 1 Leach, 148. If A. stands with an offensive weapon in the doorway of a room wrongfully to prevent T. S. from leaving it and others from entering, and C., who has a right to the room, struggles with him to get his weapon from him, upon which D., a comrade of A.'s, stabs C., it will be murder in D. if C. dies. Russ. & Ry. C. C. 228. See a late case where the judges, entertaining doubts as to whether the prisoner who killed another in an affray was guilty of murder, recommended him to a pardon. Russ. & Ry. C. C. 43. Where, after mutual provocation, the deceased and his opponent struggled, and in the course of the contest the former received his mortal wounds from a knife which the latter had previously in his hand in use, though the jury found the prisoner guilty of murder, the judges held the conviction wrong, and recommended him for a pardon. 1 Leach, 151. But in no case will previous provocation avail, if it was sought for by the act of the slayer, to afford him a pretence for gratifying his own malice. Nor will it alter the case that blows had previously been given, if they evidently left traces of a deadly revenge which seeks an opportunity of indulging itself by provoking a second contest to cover and excuse a deliberate attempt on the life of its object. 1 East, P. C. 239, 240.-CHITTY.

24 And see cases in 3 Chit. C. L. 729, 2d ed. Where, in an act which is r.ot malum in se but malum prohibitum, (it being prohibited, except to persons of a certain description,) as shooting at game, an unqualified person will not be more guilty, if, in shooting, he accidentally kills a human being, than one who is qualified. 1 Hale, 475. Fost. 259.CHITTY.

kills another suddenly, without any or without a considerable provocation, the law implies malice; for no person, unless of an abandoned heart, would bo guilty of such an act upon a slight or no apparent cause. No affront by words or gestures only is a sufficient provocation so as to excuse or extenuate such acts of violence as manifestly endanger the life of another.(f) But if the person so provoked had unfortunately killed the other by beating him in such a manner as showed only an intent to chastise and not to kill him, the law so far considers the provocation of contumelious behaviour as to adjudge it only manslaughter, and not murder.(g) In like manner, if one kills an officer of justice, either civil or criminal, in the execution of his duty, or any of his assistants endeavouring to conserve the peace, or any private person endeavouring to suppress an affray or apprehend a felon, knowing his authority or the intention with which he interposes, the law will imply malice, and the killer shall be guilty of murder.(h) 25 And if one intends to do another felony, *and undesignedly kills a man, [*201 this is also murder.(i) Thus, if one shoots at A. and misses him, but kills B., this is murder, because of the previous felonious intent, which the law transfers from one to the other. The same is the case where one lays poison for A., and B., against whom the prisoner had no malicious intent, takes it, and it kills him; this is likewise murder.(j) So also if one gives a woman with child a medicine to procure abortion, and it operates so violently as to kill the woman; this is murder in the person who gave it.(k) It were endless to go through all the cases of homicide which have been adjudged either expressly or impliedly malicious: these, therefore, may suffice as a specimen; and we may take it for a general rule that all homicide is malicious, and of course amounts to murder, unless where justified by the command or permission of the law, excused on the account of accident or self-preservation, or alleviated into manslaughter by being either the involuntary consequence of some act not strictly lawful, or (if voluntary) occasioned by some sudden and sufficiently violent provocation. And all these circumstances of justification, excuse, or alleviation, it is incumbent upon the prisoner to make out to the satisfaction of the court and jury, the latter of whom are to decide whether the circumstances alleged are proved to have actually existed, the former how far they extend to take away or mitigate guilt. For all homicide is presumed to be malicious until the contrary appeareth upon evidence.(1)

26

()1 Hawk. P. C. 82. 1 Hal. P. C. 455, 456.

(9) Fost. 291.

(A) 1 Hal. P. C. 457. Fost. 308, &c.

() 1 Hal. P. C. 465.

(Tbid. 466.
(*) Ibid. 429.
() Fost. 255.

25 It is murder to kill a constable, though he has no warrant and does not witness the felony committed, but takes the party upon a charge only, and that even though the charge be in itself defective to constitute a felony. Rex vs. Ford, R. & R. C. C. 329.CHITTY.

26 Francis Smith was indicted for murder at the Old Bailey, January 13, 1804. The neighbourhood of Hammersmith had been alarmed by what was supposed to be a ghost. The prisoner went out with a loaded gun with intent to apprehend the person who personated the ghost: he met the deceased, who was dressed in white, and immediately discharged his gun and killed him. Chief Baron Macdonald, Mr. J. Rooke, and Mr. J. Lawrence were unanimously of opinion that the facts amounted to the crime of murder. For the person who represented the ghost was only guilty of a misdemeanour, (a nuisance,) and no one would have had a right to have killed him, even if he could not otherwise have been taken. The jury brought in a verdict of manslaughter, but the court said they could not receive that verdict: if the jury believed the witnesses, the prisoner was guilty of murder; if they did not believe them, they must acquit. Upon this they found a verdict of guilty. Sentence of death was pronounced; but the prisoner was reprieved.— CHRISTIAN.

In many of the United States a distinction has been made in cases of murder, and the crime divided into two degrees.

Murder in the first degree is in general wilful and deliberate killing, or where the homicide is committed in the attempt to commit certain crimes, such as rape, robbery, burglary, or arson.

Murder in the second degree is all other homicide which would be murder at the common law.

The punishment of murder and that of manslaughter was formerly one and the same, both having the benefit of clergy; so that none but unlearned persons, who least knew the guilt of it, were put to death for this enormous crime.(m) But now, by several statutes, (n) the benefit of clergy is taken away from murderers through malice prepense, their abettors, procurers, and counsellors. In atrocious cases it was frequently usual for the court to direct the murderer, after execution, to be hung upon a gibbet in chains near the place *where the

*202] fact was committed: but this was no part of the legal judgment; and the

like is still sometimes practised in the case of notorious thieves. This, being quite contrary to the express command of the Mosaical law, (0) seems to have been borrowed from the civil law, which, besides the terror of the example, gives also another reason for this practice, viz., that it is a comfortable sight to the relations and friends of the deceased.(p) But now, in England it is enacted, by statute 25 Geo. II. c. 37, that the judge before whom any person is found guilty of wilful murder shall pronounce sentence immediately after conviction, unless he sees cause to postpone it, and shall, in passing sentence, direct him to be executed on the next day but one, (unless the same shall be Sunday, and then on the Monday following,) and that his body be delivered to the surgeons to be dissected and anatomized;(q) and that the judge may direct his body to be afterwards hung in chains,28 but in no wise to be buried without dissection. And during the short but awful interval between sentence and execution the prisoner shall be kept alone, and sustained with only bread and water. But a

()1 Hal. P. C. 450.

(*) 23 Hen. VIII. c. 1. 1 Edw. VI. c. 12. 4 & 5 Ph. and M.

c. 4.

() "The body of a malefactor shall not remain all night upon the tree, but thou shalt in any wise bury him that day, that the land be not defiled." Deut. xxi. 23.

(P)" Famosos latrones, in his locis, ubi grassati sunt, furca figendos placuit: ut, et conspectu deterreantur alii, et solatio sit cognatis interemptorum eodem loco pœna reddita, in quo latrones homicidia fecissent." Ff. 48, 19, 28, 15. (9) Fost. 107.

At common law every homicide is prima facie murder. The circumstances which may justify, excuse, or reduce the offence to manslaughter must be shown by the prisoner. Where the statutory offence of murder in the first degree exists, it is incumbent upon the State or commonwealth to show by affirmative evidence that the crime belongs to the higher grade. In other words, every homicide is still prima facie murder, but not murder in the first degree. To constitute wilful and deliberate killing, there must be an intent not merely to do bodily harm, but to take life; and that intent most commonly appears by the deadly character of the means or weapon. Where such intent plainly appears, it is not necessary that time should intervene to give the offence the character of deliberation. Wharton's Amer. Crim. Law, 490.-SHARSWOOD.

27 William Wyatt was convicted before Chambre, J., at Cornwall Lent Assizes, 1812, upon an indictment for murder. The day of the week on which the trial took place was Thursday, but by mistake it was supposed to be Friday; and, in passing sentence, the execution was directed to be on the following Monday instead of Saturday. Immediately after sentence the court was adjourned till the next morning, without the intervention of any other business, and, the error being discovered soon after the adjournment, the prisoner was directed to be brought up at the sitting of the court in the morning, which was accordingly done; and the sentence was given before any other business was entered upon, to be executed on the Saturday. An order was then made, pursuant to the authority given by the 4th and 7th sections of stat. 25 Geo. II. c. 37, to stay the execution and relax the restraints imposed by the act, in order to take the opinion of the judges upon the following questions:--1st. Whether the statute, so far as it requires the time of the execution to be expressed in pronouncing the sentence, is not to be considered as directory only, without invalidating the judgment when omitted, or preventing the entry of the proper judgment and record, specifying the time of execution. 2d. Whether, supposing the specification of time to be a necessary act in pronouncing sentence, the error was not legally corrected by what was done in open court the next morning, the court not having proceeded to any other business whatever in the intermediate time. The judges, on conference, held that the stat. 25 Geo. II. c. 37 is directory only so far as it requires the time of the execution to be expressed in pronouncing the sentence, and therefore the error in this case was rightly and legally corrected by the proceedings on the following morning, no other business having intervened between the conviction and pronouncing sentence. The prisoner was accordingly executed. 2 Burn, J. 24th ed. 1044.-CHITTY.

28 The judge, if he thinks it advisable, may afterwards direct the hanging in chains, by a special order to the sheriff; but it does not form any part of the judgment. Fost. 107.CHRISTIAN.

power is allowed to the judge, upon good and sufficient cause, to respite the execution and relax the other restraints of this act.29

By the Roman law, parricide, or the murder of one's parents or children, was punished in a much severer manner than any other kind of homicide. After being scourged, the delinquents were sewed up in a leathern sack with a live dog, a cock, a viper, and an ape, and so cast into the sea.(r) Solon, it is true, in his laws, made none against parricide, apprehending it impossible that any one should be guilty of so unnatural a barbarity.(s) And the Persians, according to Herodotus, entertained the same notion when they adjudged all persons who killed their reputed parents to be bastards. And upon some such reason as this we must account for *the omission of an exemplary punishment for this crime in our English laws, which treat it no otherwise than as [*203 simple murder, unless the child was also the servant of his parent.(t) For, though the breach of natural relation is unobserved, yet the breach of civil or ecclesiastical connections, when coupled with murder, denominates it a new offence, no less than a species of treason, called parva proditio, or petit treason, which, however, is nothing else but an aggravated degree of murder;(u) although, on account of the violation of private allegiance, it is stigmatized as an inferior species of treason. (v) And thus, in the antient Gothic constitutions, we find the breach both of natural and civil relations ranked in the same class with crimes against the state and the sovereign.(w)

30

Petit treason, according to the statute 25 Edw. III. c. 2, may happen three ways: by a servant killing his master, a wife her husband, or an ecclesiastical person (either secular or regular) his superior, to whom he owes faith and obedience. A servant who kills his master, whom he has left, upon a grudge conceived against him during his service, is guilty of petit treason; for the traitorous intention was hatched while the relation subsisted between them, and this is only an execution of that intention.(x) So, if a wife be divorced a mensa et thoro, still the vinculum matrimonii subsists; and if she kills such divorced husband she is a traitress.(y) And a clergyman is understood to owe canonical obedience to the bishop who ordained him, to him in whose diocese he is beneficed, and also to the metropolitan of such suffragan or diocesan bishop; and, therefore, to kill any of these is petit treason.(z) As to the rest, whatever has been said, or remains to be observed hereafter, with respect to wilful murder, is also applicable to the crime of petit treason, which is no other than murder in *its [*204 most odious degree, except that the trial shall be as in cases of high treason, before the improvements therein made by the statutes of William III.(a) But a person indicted of petit treason may be acquitted thereof and found guilty of manslaughter or murder;(b) and in such case it should seem that two witnesses are not necessary, as in case of petit treason they are." Which crime is also distinguished from murder in its punishment.

29 The stat. 25 Geo. II. c. 37 was repealed, but re-enacted, in almost all its provisions, by stat. 9 Geo. IV. c. 31. By stat. 2 & 3 W. IV. c. 75, s. 16, however, the enactment of this last statute as to dissection is repealed, and the court must direct that the prisoner shall be either hung in chains or buried within the precincts of the prison. But, by stat. 4 & 5 W. IV. c. 26, s. 1, so much of the stat. 2 & 3 W. IV. c. 75, s. 16 as authorizes the hanging the body of a murderer in chains is repealed; and, by stat. 6 & 7 W. IV. c. 30, the enactment as to the time of execution is also repealed, and sentence may be pronounced as in other capital offences. And under this last statute sentence of death may be recorded.--STEWART.

30 The distinction between petit treason and murder is now entirely abolished. 9 Geo. IV. c. 31, s. 2.-STEWART.

31 It has been determined that a person indicted for petit treason may upon the evidence of one witness be convicted of murder, though acquitted of the petit treason. Radbourne's case, Leach, 363.-CHRISTIAN.

The punishment of petit treason in a man is, to be drawn and hanged, and in a woman to be drawn and burned;(c) the idea of which latter punishment seems to have been handed down to us by the laws of the antient Druids, which condemned a woman to be burned for murdering her husband, (d) and it is now the usual punishment for all sorts of treasons committed by those of the female sex.(e)32 Persons guilty of petit treason were first debarred the benefit of clergy by statute 12 Hen. VII. c. 7, which has been since extended to their aiders, abettors, and counsellors, by statute 23 Hen. VIII. c. 1 and 4 & 5 P. and M. c. 4.

CHAPTER XV.

OF OFFENCES AGAINST THE PERSONS OF INDIVIDUALS.

*205] *HAVING in the preceding chapter considered the principal crime or public wrong that can be committed against a private subject, namely, by destroying his life, I proceed now to inquire into such other crimes and misdemeanours as more peculiarly affect the security of his person while living. Of these some are felonies, and in their nature capital; others are simple misdemeanours, and punishable with a lighter animadversion. Of the felonies, the first is that of mayhem.

1. Mayhem, mayhemium, was in part considered, in the preceding book, (a) as a civil injury; but it is also looked upon in a criminal light by the law, being an atrocious breach of the king's peace, and an offence tending to deprive him of the aid and assistance of his subjects. For mayhem is properly defined to be, as we may remember, the violently depriving another of the use of such of his members as may render him the less able, in fighting, either to defend himself or to annoy his adversary.(b) And, therefore, the cutting off or disabling or weakening a man's hand or finger, or striking out his eye or foretooth, or depriving him of those parts the loss of which in all animals abates their courage, are held to be mayhems. But the cutting off his ear or nose, or the like, are not held to be mayhems at common law, because they do not weaken but only disfigure him.

*206] *By the antient law of England, he that maimed any man whereby he lost any part of his body was sentenced to lose the like part, membrum pro membro; (c) which is still the law in Sweden.(d) But this went afterwards out of use, partly because the law of retaliation, as was formerly shown,(e) is at best an inadequate rule of punishment, and partly because upon a repetition of the offence the punishment could not be repeated. So that, by the common law as it for a long time stood, mayhem was only punishable with fine and imprisonment, (f) unless perhaps the offence of mayhem by castration, which all our old writers held to be felony: "et sequitur aliquando pœna capitalis, ali

(c) 1 Hal. P. C. 382. 3 Inst. 311.

(d) Cæsar de Bell. Gall. l. 6, c. 18.

(*) See page 93.

(a) See book iii. page 121.

(b) Britt. l. 1, c. 25. 1 Hawk. P. C. 111.

(e) 3 Inst. 118. Mes, si la pleynte soit faite de femme

qu'avera tolle a home ses membres, en tiel case perdra le feme la une meyn par jugement, come le membre dount de avera trespasse. Brit. c. 25.

(d) Stiernh. de jure Sueon. 1. 3, 1. 3.

() See page 12.

()1 Hawk. P. C. 112.

32 By the 30 Geo. III. c. 48, women shall no longer be sentenced to be burned; but in all cases of high and petit treason they shall be condemned to be drawn and hanged; and in petit treason they shall be subject besides to the same judgment with regard to dissection and the time of execution as is directed by the 25 Geo. II. c. 37 in cases of murder. Soon after the passing of the 25 Geo. II. c. 37, the majority of the judges agreed that in the case of men convicted of petit treason the judgment introduced by that statute should be added to the common-law judgment for petit treason. Fost. 107. -CHRISTIAN.