other hand, it is clear that where death is occasioned by gross want of skill or care in the medical man (whether he be regularly licensed or not), it will amount to manslaughter; and cases of this kind have, in fact, been before the courts (k). [Further: the person killed must be a "reasonable creature, in being, and under the king's peace" at the time of the killing (1). To kill an alien or an outlaw, (who are both under the king's peace and protection,) is therefore as much murder as to kill the most regular-born Englishman. On the other hand, it is not murder to slay an alien enemy in the heat of battle (m); and, again, to kill a child in its mother's womb is not adjudged murder, but falls under a different description of crime, which will be presently considered (n). Lastly, the killing must be committed with malice aforethought, to make it the crime of murder. This is the grand criterion which distinguishes murder from other killing: and this malice prepense, malitia præcogitata, is not so properly spite or malevolence to the deceased in particular, as any evil design in general: the dictate of a wicked, depraved and malignant heart (o); un disposition à faire un male chose (p); and it may be either express or implied in law. Express malice is when one, with a sedate, deliberate mind and formed design doth kill another: which formed design may be evidenced by external circumstances, discovering that inward intention;-as lying in wait, antecedent menaces, former grudges, and concerted schemes to do him some bodily harm (7). This takes place in the case of deliberate duelling, where both parties meet avowedly with (k) See R. v. St. John Long, 4 C. & P. 398, 423; R. v. Spiller, 5 C. & P. 333. (7) 4 Bl. Com. 198. Hence if a foreigner should kill a foreigner on the high seas or on board a foreign ship, no offence is committed which is triable in this country. (See R. v. Lopez, 1 Dears. & B. 525.) (m) 3 Inst. 50; 1 Hale, P. C. 433. (n) Hale, ubi sup. ; vide post, P. 84. (0) Foster, 256. (p) 2 Roll. Rep. 461. [an intent to commit homicide,-thinking it their duty as gentlemen, and claiming it as their right, to wanton with their own lives and those of their fellow-creatures; without any warrant or authority from any power either Divine or human, but in direct contradiction to the laws both of God and man: and therefore the law has justly fixed the crime and punishment of murder on them and on their seconds also (r). Yet it requires a great degree of passive valour to combat the dread of even undeserved contempt, arising from false notions of honour (s). Also, if, even upon a sudden provocation, one beats another in a cruel and unusual manner, so that he dies, though he did not intend his death, yet he is guilty of murder by express malice; that is, by an express evil design, the genuine sense of malitia. As when a park keeper tied a boy that was stealing wood to a horse's tail, and dragged him along the park; when a master corrected his servant with an iron bar; and a schoolmaster stamped on his scholar's belly; so that each of the sufferers died, these were justly held to be murders; because the correction being excessive, and such as could not proceed but from a bad heart, it was equivalent to a deliberate act of slaughter (†). Neither shall he be guilty of a less crime, who in consequence of such a wilful act as shows him to be an enemy to all mankind in general, causes the death of a fellow creature; as by going deliberately, and with an intent to do mischief, upon a horse used to strike (u); or by coolly discharging a gun among a multitude of people (x). So if (r) Hawk. P. C. b. 1, c. 31, s. 31. See R. v. Murphy, 6 C. & P. 103; R. v. Young, ib. 645. (8) 4 Bl. Com. p. 199. Blackstone adds, that "the strongest "prohibitions and penalties of the "law will never be entirely effec"tual to eradicate this unhappy "custom; till a method be found "out of compelling the original aggressor to make some other sa "tisfaction to the affronted party, "which the world shall esteem "equally reputable, as that given "at the hazard of life and fortune, "as well of the party insulted, as "of him who hath given the in"sult." (t) 1 Hale, P. C. 454, 473, 474. (u) Lord Raym. 143. (x) Hawk. P. C. b. 1, c. 31, s. 12. [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 peace, of which the consequence may probably be bloodshed,-as to beat a man, to commit a riot, or to rob a park,—and one of them in the prosecution of such intent kills a man; it is murder in them all, because of the unlawful act, the malitia præcogitata, or evil intended beforehand (y). 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 (z): and if a man kill another suddenly, without any or without a considerable provocation, the law implies malice; for no person, unless of an abandoned heart, would be guilty of such an act upon a slight, or no apparent cause. No affront by words or gestures alone is a sufficient provocation, so as to excuse or extenuate such acts of violence as manifestly endanger the life of another (a). 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 (b). In like manner, if one kills an officer of justice, either civil or criminal, while resisting him in the execution of his duty, and knowing his authority or the intention with which he interposes, or if any of his assistants be killed under the like circumstances, the law will imply malice, and the killer shall be (y) Hawk. P. C. b. 1, c. 31, s. 10. (2) 1 Hale, P. C. 455. (a) Hawk. ubi sup. s. 33; Hale, ubi sup. 455, 456. See the Report of the Criminal Code Bill Commission, p. 24, where it is remarked that though "the au thorities for saying that words can . [guilty of murder (c); though it is manslaughter only, if the warrant under which the officer acts be void, or be executed in an unlawful manner (d). So, in case of a sudden affray, if a third person interpose to part the combatants, giving them notice of his friendly intention, and either of the combatants kill him in resisting his interposition, this is murder (e). And if one intend to commit felony of another kind, and, in the prosecution of such intent, undesignedly kills a man, this is also murder (f). 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; for the malice, as it has been sometimes expressed, egreditur personam (g). The same is the case where one lays poison for A.; and B., against whom the prisoner had no felonious intent, takes it, and it kills him; this is likewise murder (h). It were endless to go through all the cases of homicide which have been adjudged, either expressly or impliedly, malicious. These, therefore, may suffice for 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 account of accident or self-preservation in sudden quarrel; 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 (c) 1 Hale, P. C. 457; Hawk. P. C. b. 1, c. 31, s. 55; Foster, 270, 308, &c. As to killing a private person attempting to apprehend a felon, see 2 Hale, P. C. 84; Foster, 272, 309, 318. (d) Hawk. ubi sup. ss. 57, 58; Fost. 312. (e) Fost. 272. (f) 1 Hale, P. C. 465. (g) Fost. 262; see Reg. v. Smith, 4 Dearsley's C. C. R. 559. (h) 1 Hale, P. C. 466. [have actually existed; the former, how far they extend to mitigate or take away the guilt (i). For all homicide is supposed to be malicious, until the contrary appeareth upon evidence (). Although, as will appear hereafter at the proper place, the courts of this country can hear and determine all offences committed by British subjects on board British ships at sea or elsewhere within the Admiralty jurisdiction (1), it was formerly a fundamental principle in our law that murder or other crime committed on land abroad could not be tried or in any way dealt with in this country: but by many statutes this principle is now broken in upon, and amongst these by 24 & 25 Vict. c. 100, s. 9, which provides, as to the particular crimes of murder and manslaughter now under our consideration, that where either (i) Fost. 257; Hazel's case, 1 Leach, 406; R. v. Greenacre, 8 Car. & P. 35. (k) Fost. 255. Upon the distinction between murder and manslaughter, the Report of the Criminal Code Bill Commission (p. 23) observes, "The common law definition of murder is unlawfully killing with malice aforethought.' Manslaughter may in effect be defined as 'unlawful killing without malice aforethought.' The objections to these definitions is that the expression 'malice aforethought' is misleading. This expression taken in a popular sense would be understood to mean that in order that homicide may be murder, the act must be premeditated to a greater or less extent, the jury having in each case to determine whether such a degree of premeditation existed as deserved the name. This definition, as so understood, would be obviously too narrow, as without what would commonly be called premeditation, homicide might be committed which would involve public danger and moral guilt in the highest possible degree. Of course it can be pointed out that every intentional act may be said to be done aforethought, for the intention must precede the action. But even with this explanation the expression is calculated to mislead any one but a trained lawyer. The inaccuracy of the definition is still more apparent when we find it laid down that a person may be guilty of murder who had no intention to kill or injure the deceased or any other person, but only to commit some other felony, and the injury to the individual was a pure accident. This conclusion was arrived at by means of the doctrine of constructive or implied malice." (2) See 18 & 19 Vict. c. 91; 30 & 31 Vict. c. 124, and 41 & 42 Vict. c. 73. |