But if a man were wounded, and another applied to his wound sulphuric acid or something else which was of a dangerous character, and ought not to be applied, and which led to fatal results, then the person who applied this remedy would be answerable, and not the person who inflicted the wound, because a new cause had supervened. Reg. v. Markuss, 4 F. & F. 356.

Murder and Manslaughter.

259. Culpable homicide is murder,

(a) if the offender means to cause the death of the person killed;

(b) if the offender means to cause to the person killed any bodily injury which is known to the offender to be likely to cause death, and is reckless whether death ensues or not; (c) if the offender means to cause death, or, being so reckless as aforesaid, means to cause such bodily injury as aforesaid to one person, and by accident or mistake kills another person, though he does not mean to hurt the person killed;

(d) if the offender, for any unlawful object, does an act which he knows or ought to have known to be likely to cause death, and thereby kills any person, though he may have desired that his object should be effected without hurting any one. 55-56 V., c. 29, s. 227.

Murder at common law.]-The common law definition of murder isthe killing any person under the King's peace, with malice prepense or aforethought, either express or implied by law. 3 Inst. 47, 51; 1 Hawk. P.C. ch. 31, sec. 3; Fost. 256.

Malice may be either (1) express, or (2) implied by law. Express malice is when 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. 1 Hale 451.

Malice is implied by law from any deliberate cruel act committed by one person against another, however sudden. 1 East P.C. 215; 3 Russell Crim. (1896), 2. And it is a general rule that all homicide is presumed to be malicious until the contrary appears from circumstances of alleviation, excuse or justification. R. v. Greenacre (1837), 8 C. & P. 35.

Provocation reducing offence to manslaughter.]—See sec. 261 and note to same.

Corpus delicti.]-Corpus delicti in murder, is defined, as having two components, death as the result and the criminal agency of another as the means, and it is only where there is direct proof of one that the other can be established by circumstantial evidence. This ruling is an affirmance of the holding of Lord Hale (2 P.C. 290) that a conviction of murder or manslaughter cannot be had unless the fact be proved to be done or at least the body found dead. Where one is proven by direct evidence the other may be by circumstances, and in determining a question of fact upon

13-CRIM. CODE.

Intention.

a criminal trial from circumstantial evidence, the facts proved must not only be consistent with and point to the guilt of the prisoner, but must be inconsistent with his innocence. And see note 9 Can. Cr. Cas. 446.

On a trial for murder, if the fact of the death of a human being is established by direct proof and the remains of the dead man have been so destroyed by fire that direct identification is impossible, circumstantial evidence is admissible to prove the identity of the remains and also the identity of the person who caused the death. While the fact of death must always be established by direct proof, the fact of the killing by the defendant as alleged may be proved by circumstantial evidence supporting the charge beyond a reasonable doubt. R. v. Charles King, 9 Can. Cr. Cas. 426.

It has been considered a rule that no person should be convicted of murder unless the body of the deceased has been found, and a very great judge says, "I would never convict any person of murder or manslaughter unless the fact were proved to be done, or at least the body be found dead." 2 Hale 290. Lord Hale only laid this down as a caution, not as a rule in every case. Per Maule, J., in R. v. Burton (1854), Dears. C.C. 282. But this rule, it seems, must be taken with some qualifications; and circumstances may be sufficiently strong to shew the fact of the murder, though the body has never been found. 3 Russell Cr., 6th ed., 158. Thus, where the prisoner, a mariner, was indicted for the murder of his captain at sea, and a witness stated that the prisoner had proposed to kill the captain, and that the witness being afterwards alarmed in the night by a violent noise, went upon deck, and there observed the prisoner take the captain up and throw him overboard into the sea, and that he was not seen or heard of afterwards, and that near the place on the deck where the captain was seen a billet of wood was found, and that the deck and part of the prisoner's dress were stained with blood, the court, though they admitted the general rule of law, left it to the jury to say, upon the evidence, whether the deceased was not killed before his body was cast into the sea; and the jury being of that opinion, the prisoner was convicted, and the conviction being unanimously approved of by the judges, was afterwards executed. R. v. Hindmarsh (1792), 2 Leach 569.

And where the mate of a ship was seen to seize the captain from behind and throw him into the sea, and the captain fell, striking a boat, and leaving marks of blood upon it, but was never seen again, Archibald, J., allowed the case to go to the jury, and the prisoner was convicted of manslaughter. R. v. Armstrong (1875), 13 Cox C.C. 184.

But where upon an indictment against the prisoner for the murder of her bastard child, it appears that she was seen with the child in her arms on the road from the place where she had been at service to the place where her father lived about six in the evening, and between eight and nine she arrived at her father's without the child, and the body of a child was found in a tide-river, near which she must have passed in her road to her father's, but the body could not be identified as that of the child of the prisoner, and the evidence rather tended to shew that it was not the body of such child, it was held that she was entitled to be acquitted. The evidence rendered it probable that the child found was not the child of the prisoner, and with respect to the child, which was really her child, the prisoner could not by law be called upon either to account for it, or to say where it was, unless there were evidence to shew that her child was actually dead. R. v. Hopkins (1838), 8 C. & P. 591, Lord Abinger, C.B.; R. v. Cheverton (1862), 2 F. & F. 833, Erle, C.J.

Post-mortem examination.]-The medical practitioner should examine all the important organs for marks of natural disease and note down any unusual pathological appearances or abnormal deviations although they may at the time appear to have no bearing on the cause of death.

Mr. Clark Bell, in his 12th Amer. edition of Taylor's Medical Jurisprudence, 1897, page 23, says: "In medico-legal cases involving questions of life and death, the examination of the body cannot be too thorough and exhaustive; the omission of any one organ is a radical and sometimes a fatal defect. This was well illustrated in 1872 by two leading cases in the United States-that of Mrs. E. G. Wharton, charged with poisoning General Ketchum, and that of Dr. Paul Schoeppe, charged with poisoning Miss Steinnecke. In neither case was the post mortem sufficiently complete."

The body is inspected not merely to shew that a person has died as a result of the criminal act, but to prove that he has not died from any natural cause. Medical practitioners commonly give their attention exclusively to the first point, while lawyers, defending accused parties, very properly direct a most searching examination to the last mentioned point, i.e., the healthy or unhealthy state of those organs which are essential to life. If the cause of death is obscure after the general examination of the body, there is good reason for inspecting the condition of the spinal marrow. In certain obscure cases it may become necessary to institute a microscopic examination, especially of the brain and heart. Taylor's Medical Jurisprudence, 1897, 12th Am. Ed. 23.

In a trial for murder by committing an abortion resulting in the woman's death, it appeared that the post mortem examination was insufficient, and that, so far as the medical evidence was concerned, it was possible that death might have been occasioned by some undiscovered disease which a post mortem examination of other organs than those examined might have disclosed, and none of the medical men would swear positively to the cause of death; but there was other evidence tending to shew that death was caused by a criminal operation, and connecting the prisoners therewith. It was held, that such last mentioned evidence was properly submitted to the jury. R. v. Garrow (1896), 1 Can. Cr. Cas. 246 (B.C.).

Proving cause of death.]—A question has sometimes been raised whether a prisoner can be convicted of murder where it is impossible for any evidence to be given of the cause of death, in consequence of the state in which the body was found, but it would seem that it is a question for the jury, taking all the circumstances into consideration, whether the death was caused by violence or not, and whether that violence was the act of the prisoner. Per Kennedy, J. R. v. Macrae, Northampton Winter Assizes, 1892, cited 3 Russ. Cr., 6th ed., 160.

On a trial for murder, in order to prove the state of the health of the deceased prior to the day of his death, a witness was asked in what state of health the deceased seemed to be when he last saw him, and he began to state a conversation which had then taken place between the deceased and himself on this subject; and Alderson, B., held that what the deceased said to the witness was reasonable evidence to prove his state of health at the time. R. v. Johnson (1847), 2 C. & K. 354.

Dying declaration as evidence.]—The principle upon which dying declarations are admitted as evidence is stated by Eyre, C.B., in the case of R. v. Woodcock, 1 Leach, C.C., 502, as follows:

"The general principle on which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful consideration to speak the truth; a situation so solemn and so awful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice."

A dying declaration is only admissible in criminal cases, and then only in cases of murder or manslaughter, and only where the death is the subject of the charge, and the circumstances of the death the subject of the declara

tion. R. v. Mead, 2 B. & C. 605. But the dying declaration of a person was admitted in a case in which the prisoner was being tried, not for murdering the declarant, but another person, by the administration of poison, but in the perpetration of that act he had also inadvertently poisoned the declarant. In that case the court held that the same act caused the death of one as the other, and that, it being all one transaction, the evidence was admissible. R. v. Baker, 2 M. & Rob. 53.

The fact of a person having received extreme unction according to the rites of the Roman Catholic Church is some evidence that she thought herself to be in a dying state. Carver v. U.S., 1897, 17 S.C.R. (U.S.), 228; Minton's case, cited in R. v. Howell, 1 Denison Crown Cases 1; and so also is the rejection by a dying man belonging to the Roman Catholic faith, of an offer to bring him a priest, some evidence to shew that he did not think himself in articulo mortis. R. v. Howell, supra.

Such declarations being necessarily ex parte, the prisoner is entitled to the benefit of any advantage he may have lost by the want of an opportunity for cross-examination. R. v. Ashton, 2 Lewin Crown Cas. 147. So it has recently been held by the Supreme Court of the United States that it is error to refuse to permit the defendant to prove by witnesses that the deceased made statements to them in apparent contradiction of her dying declaration, and tending to shew that defendant did not shoot her intentionally. Whether these statements were admissible as dying declarations or not is immaterial, since they were admissible as tending to impeach the declaration of the deceased, which had already been admitted. Carver v. U.S. (1897), 17 Sup. Ct. Rep. (U.S.) 228. A dying declaration by no means imports absolute verity. The history of criminal trials is replete with instances where witnesses, even in the agonies of death, have, through malice, misapprehension, or weakness of mind, made declarations that were inconsistent with the actual facts; and it would be a great hardship to the defendant, who is deprived of the benefit of a cross-examination, to hold that he could not explain them. Dying declarations are a marked exception to the general rule that hearsay testimony is not admissible, and are received from the necessities of the case, and to prevent an entire failure of justice, as it frequently happens that no other witnesses to the homicide are present. They may, however, be inadmissible by reason of the extreme youth of the declarant (R. v. Pike, 3 Car. & P. 598), or by reason of any other fact which would make him incompetent as an ordin ary witness. They are only received when the court is satisfied that the witness was fully aware of the fact that his recovery was impossible, and in this particular the requirement of the law is very stringent. They may be contradicted in the same manner as other testimony, and may be discredited by proof that the character of the deceased was bad, or that he did not believe in a future state of reward or punishment. Carver v. U.S. (1897), 17 Sup. Ct. Rep. (U.S.) 228.

A dying declaration is not admissible if there existed in the mind of the party making it a hope of recovery or a hope of escape from almost immediate death; but if there is a firm, settled expectation by deceased of impending death and no hope of recovery remaining in his mind, the declaration is admissible, although such belief was the result of panic and not well founded. The fact, that a person making a dving declaration subsequently entertains a hope of recovery, is irrelevant, except in so far as it may be evidence of his state of mind at the time of the declaration. R. v. Davidson (1898), 1 Can. Cr. Cas. 351 (N.S.); R. v. Hubbard, 14 Cox 565; R. v. Laurin (No. 1), 5 Can. Cr. Cas. 324; R. v. Laurin (No. 4), 6 Can. Cr. Cas. 104.

The rule as to the admissibility of dying declarations in evidence is thus stated in Taylor on Evidence, 6th ed., vol. 1. p. 643: "It is not, however, necessary that the declarant should have stated that he was speaking

under a sense of impending death, providing it satisfactorily appears, in any mode, that the declarations were really made under that sanction; as, for instance, if the fact can be reasonably inferred from the evident danger of the declarant, or from the opinions of the medical or other attendants stated to him, or from his conduct, such as settling his affairs, taking leave of his relations and friends, giving directions respecting his funeral, receiving extreme unction or the like. In short, all the circumstances of the case may be resorted to, in order to ascertain the state of the declarant's mind. On the other hand, a firm belief that death is impending -by which is meant, not as was once thought, that it will almost immediately follow, but that it will happen shortly in consequence of the injury sustained-will suffice to render the statement evidence, though the sufferer may chance to linger on for some days, or even for two or three weeks. . . In general, it is no objection to their admissibility that they "the answers) were made in answer to leading questions, or obtained by earnest solicitations." R. v. Smith (1873), 23 U.C.C.P. 312.

It is essential to the admissibility of these declarations, and it is a preliminary fact to be proved by the party offering them in evidence, that they were made under a sense of impending death; but it is not necessary that they should be stated at the time to be so made; it is enough if it satisfactorily appears, in any mode, that they were made under that sanction, whether it be expressly proved by the express language of the declarant, or be inferred from his evident danger, or the opinion of the medical or other attendants, stated to him, or from his conduct, or other circumstances of the case; all of which are resorted to in order to ascertain the state of the declarant's mind. Greenleaf on Evidence, 12th ed., vol. 1, p. 183, sec. 158; R. v. Smith (1873), 23 U.C.C.P. 312; R. v. McMahon (1889), 18 O.R. 502; R. v. Jenkins, L.R. 1 C.C.R. 187.

The court must be satisfied that whatever statement is admitted in evidence must be shewn by credible testimony to have been made in full belief of approaching death, with an abandonment of all hope of life. R. v. Sparham (1875), 25 U.C.C.P. 143, 154; R. v. Osborne, 15 Cox C.C. 169.

The mere use of the words, "If I die" would not alone defeat an emphatic declaration of abandonment of all hope on the same occasion; and that the second declaration was receivable in order to explain the first. R. v. Sparham (1875), 25 U.C.C.P. 143.

An objection that part of the statement was made in answer to a leading question is not sustainable. R. v. Smith (1873), 23 U.C.C.P. 312.

The essential element of a dying declaration is the abandonment of hope of recovery, and evidence tending to shew a belief that death was impending is not displaced by a statement of deceased to his physician and members of the family that he did not think he could recover, but he knew they would do all they could for him. R. v. Magyar, 12 Can. Cr. Cas. 114.

It makes no difference that the words incriminating the prisoner preceded the words shewing the expectation of death. R. v. Sunfield, Dec. 7, 1907, Ont. C.A.

The jury should not be excluded during the preliminary enquiry as to whether a certain statement is admissible as a dying declaration. Rex v. Aho, 11 B.C.R. 114, 8 Can. Cr. Cas. 453.

The deceased must be proved to the satisfaction of the judge to have been, at the time of making the declaration, (a) in actual danger of death and (b) to have abandoned all hope of recovery. If these conditions concur, it is immaterial that he lingered for several days or even weeks. R. v. Bernadotti, 11 Cox C.C. 316; Craven's Case, 1 Lew. 77; or that he subsequently entertained hope. R. v. Hubbard, 14 Cox C.C. 565; R. v. Davidson, 1 Can. Cr. Cas. 351 (N.S.). The question as to whether there was a settled hopeless expectation of death is for the presiding judge.

R. v.