and weapons of offence. In our own law it has been said, that poisoning was thought not to be included in the category of murder, because it was not done by the hand of man. The first statute of 22 Henry VIII., c. 9, which ordered a wilful poisoner to be boiled to death, was passed in consequence of a cook, named Richard Roose, having poisoned a pot of porridge prepared for the Bishop of Rochester and his family, as well as the poor of the parish, on which occasion seventeen persons died. The cook's trade probably suggested the mode of death, but poison as a means of murder was no longer to be passed over by the law. The statute of Henry VIII. was repealed by one of Edward VI., which expressly declared killing by poisoning to be murder, and so included it in the common category; and enactments to the same effect have been continued to the present day.2 The murdering of a person by poison does not substantially differ from other cases, except in the peculiarity of the means by which poison operates. Poison is generally administered secretly, and a train of circumstances often intervenes between the original design and its execution. The essence of the crime lies in the deliberate intention, that the poison shall be so placed, that, by the operation of ordinary laws and in the usual course of affairs it will enter the body and cause death; and the fatal end is easily connected, if the poisoner has laid his train in a manner calculated to produce the effect intended. But it has been found, that between the laying of the poison and the effect produced very many accidents intervene. The intent may be so imperfectly worked out, owing to the production, not of a fatal, but only an injurious effect, or possibly a mere abortive result altogether the sequence of events may be so easily modified by supervening and unexpected interruptions-and the connection between the malicious design conceived and the final effect on the intended victim may be so obscure and remote, that a special enactment has been made to assign a more definite punishment to the different

1 Barringt. Stat. 525.

2 1 Ed. VI. c. 12; 24 & 25 Vic. c. 100, § 11. In the Welsh laws of the sixteenth century, if a convicted poisoner could not pay a double composition fine, he might be hanged, burned, or slain.-Welsh Laws, b. iv. c. 3. 31 East, P. C. §§ 12, 30; 4 Bl. Com. 200.

situations. And more frequently the offence assumes the form of an attempt to murder rather than murder itself. Consequently the subject will be found more appropriately treated under this last head.1

Killing must be consequence of the act charged.-There are many instances in which the murder of the individual has not been deliberately intended by the accused; nevertheless, if some other felonious act has been done, and the immediate consequence thereof is the death of such individual, the law views such death as if it were immediately and wilfully caused the doctrine being, that every man must have intended the natural consequences of his act, and if one of such consequences be the death of a third person, then the doer of the act which immediately caused it is a murderer. But if the death is not one of the natural consequences of the felonious act, then the crime committed has been said to be not murder, but only manslaughter, and perhaps not even that.2 It often happens, as formerly stated, that an illegal act miscarries, as to the individual intended to be murdered, and takes effect against one who was not so intended, and thus a person is killed partly by mistake for some other person. such cases the law, by the doctrine which may be called a transmutation of motives, imputes to the perpetrator the same guilty malice towards the person killed as actually existed against the person intended to be killed.3

In

Killing in order to be murder must be within the year.In tracing the connection between the death and the murderous blow, many legislatures have thought it incumbent to put some limit to the time during which this sequence of events must take effect. A statute of Henry VII. enacted, that murderers should be prosecuted within the year and day, though if acquitted, they might be kept in prison till the year and day passed; and the wife or heir anciently had a right of appeal within that time.* Hale

See post, Attempts to Murder. 2 R. v Horsey, 3 F. & F. 287. 3 R. v Lewis, 6 C & P. 161; Foster, 262; Kel. 111; 1 Hale, P. C. 441; R. v Saunders, Plowd. 474. See ante, p. 338.

4 3 Hen. VII. c. 2. In Bretagne the time of death must be within forty days, and in Lucca thirty days, and in the Stabbing Act of 2 Jas. L. c. 7, the death must have ensued within six months.— Barringt. Stat. 527. To get rid of difficulties like these, the Chinese

gives as the reason, why it is no murder, if the wounded do not die within year and day, that it cannot be discerned, as the law presumes, whether the death was violent or natural. In other words, if the death does not follow within that time, the connection between cause and effect is too remote and uncertain, and the evidence can never be sufficiently cogent to satisfy the mind. The application of such an arbitrary rule, which fixes on a mere limit of time as a criterion of cause and effect has unavoidably led to certain difficulties; for it is obvious there may be wounds, which, if carefully treated, might be cured, and if otherwise might be fatal. A slight blow may kill a sick person which would be harmless to a sound person; and hence further distinctions require to be made to meet the variations arising out of the state of the wounded person, and the different complexion given to the consequences of the wound. Where, therefore, a death has occurred, which is attributed to a wound given within a year and day previous, there seem to be two questions: (1) whether the wound was in itself mortal, that is, in the ordinary state of things, in all probability calculated to cause death; (2) whether the treatment of the wound was so careless, having regard to the reasonable means of care available to the wounded party, that the death is to be attributed to this careless treatment, or some supervening cause irrespective of the wound, rather than to the wound itself. In tracing the progress of the wound, it seems reasonable, that the accidents of life and the circumstances of the party as to health and otherwise should not be used to clear the party of the crime of murder; but should rather be used in favour of the party who has died; for the law is bound to protect the life of the careless and the careful, the sick and the sound, the odious and the virtuous, the poor and the rich alike; and the crime which in its essence existed if at all at the beginning, in the intent of the party wounding, should not be left to vary with the hazard of so many obscure.

code allowed the magistrates, when inquiring into the case of wounding, to fix the number of days during which the responsibility of the accused should last; and if the injured party died after that period, the offender should not be punished for a capital offence, but according to a lower scale of punishment.-Staunton, Code, 328.

3

sequences of events.1 Lord Hale said, that a man is not to be permitted to apportion his own wrong.2 Hence, where a blow accelerated the death of a sick personwhere a death was accelerated by administering Morison's pills to a person suffering from small-pox, it was held that murder was committed. And little regard is to be paid to any attempt of those, charged with murder, to show that the wounded person might have recovered if he had submitted to a surgical operation; or if his wounds had been properly treated; or if the brandy necessarily administered had not entered the lungs and so caused the death." If it happen that the wounded person does not recover, the guilt of murder will be the same, for due care cannot always be secured as a consequence of a dangerous wound, and it is right that that risk should be with him who caused it.8

Killing proved only when evidence of body found.-It has been said to be a rule, that no conviction for murder can be sustained, unless the body of the alleged murdered person has been first found; and Hale says it was a rule of the civil law also.10 This, however, is rather a rule of evidence or a maxim of caution; for, until there is some satisfactory proof that the murder was certainly committed, it would be idle to prove that the defendant committed it.11 It cannot, however, be laid down, that in no case can the murderer be convicted till the body of his victim be found, for the death may be proved by secondary evidence or by the circumstances of the death. And this was held to be sufficiently made out, where the deceased was thrown into the sea under circumstances which showed the body to be then dead.12 In such cases it is usual to call every witness who was present at the time of the alleged murder, so as to acquire the most certain knowledge of this preliminary fact.13 And until the body has been found,

2 1 Hale, P. C. 428.

4 R. v

1 1 Hale, P. C. 428; Rew's Case, Kel. 26. 3 R. v Martin, 5 C. & P. 128; R. v Murton, 3 F. & F. 492. Webb, 1 M. & Rob. 405. 5 R. v Holland, 2 M. & Rob. 351. R. Reading, 1 Keb. 17; R. v Rew, Kel. 26; R. v Pym, 1 Cox, C. C. 339. 7 R. McIntyre, 2 Cox, C. C. 379. 8 R. v Tinckler, 9 2 Hale,

1 East, P. C. 230; R. v West, 2 C. & K. 784.

290.

10 Dig. xxix. 5, 24.

12 R. v Hindmarsh, Leach, 569.

11 R. v Hopkins 8 C. & P.591. 13 R. v Holden, 8 C. & P. 606.

there is no rule of law, requiring an absolute presumption of guilt to be drawn from the fact that the prisoner has not accounted for the body, though last traced to his control1

Hale mentions however cases showing what great caution is required, when the dead body has not been with certainty traced; as where a cruel uncle corrected his niece, who ran away, and in his desperation he dressed up another child to resemble the lost one, who in full time returned and claimed her estate, the uncle having been meanwhile executed for her murder. In another case B was tried and executed for murdering A by burning him in an oven, the truth being that A had been sent by B beyond sea, and afterwards returned. In another case some men were tried and executed for murdering their captain and seizing his ship, the fact being that the captain had gone ashore on an island and was kept by the natives.3 And three persons were tried and executed for the murder of a gentleman, who had been in his walks suddenly seized by robbers and taken to foreign countries.*

Death by accident or misadventure.-Viewing the subject of death by misadventure apart from its historical treatment, it may be described negatively as including all such cases of homicide as do not amount to manslaughter or murder, or any negligent actionable wrong, and do not flow from any lawful conduct or business of the killer. There are many occasions in life, where the facts are so imperfectly understood, that it is impossible to say at first whether murder or manslaughter has been committed. But when, with or without full inquiry, the conclusion is arrived at, that neither of these crimes was committed, then the further conclusion follows as of course that the person, whose act occasioned the death of another is entirely free from guilt, though not free from civil liability owing to negligence. There is no middle course between the crime of manslaughter and entire freedom from criminal responsibility. His act may have been one of a chain of events -or it may have immediately preceded the death-but

1 R. v Hopkins, 8 C. & P. 591; R. v Cheverton, 2 F. & F. 833. 23 Inst. c. 104. 3 10 Parl. Hist. 284. 4 Perry's Case,

14 St. Tr. 1320.