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Destruction of unborn child not homicide.


SCOPE OF TERM HOMICIDE is held to be committed only where a distinctly self-existent human life has been destroyed. Destruction of an unborn child, however short a time before delivery, may be criminal, but is not homicide (1).

The injury inflicted must be real and capable of being defined. Frightening a person, so as to bring on fever and cause death, is not homicide (2). Further, the death must result directly from the quence of injury. injury. If, after the injury, some other person have

Death must be

direct conse

done an act which is truly the cause of death, the person who caused the first injury cannot be held guilty of homicide. Thus, if A mortally stab B, but while it is still uncertain when he will die, C administer poison to B, and kill him, A cannot be found guilty of homicide, for the direct cause of death is the poison administered by C (3). Again, if the injured party have recovered so as to go abroad, and afterwards die at some distance of time, the presumption is that his death was not directly caused by the injury (4). And the same will hold if he die by disease, not supervening on the injury, but contracted solely by the confinement resulting from it (5). Further, there is no criminal homicide, if an injury not mortal has been

Cause of death must be a real injury.

Death from disease supervening.


Gross neglect aggravating injury.

1 Hume i. 186.-Alison i. 71, 72. -More ii. 360.-Jean Macallum, Perth, Oct. 11th 1858; 3 Irv. 187 and 31 S. J. 37.

2 Hume i. 182, 183, and cases of Duff and others: and Kinninmonth there. Alison i. 148.-More ii. 362.

3 Hume i. 181, 182.-More ii. 361. 4 Hume i. 181, case of Kinninmonth there. Alison i. 146. Daniel Houston, Nov. 25th 1833; Bell's Notes 70.

5 Hume i. 182, and case of Mitchell there.-Alison i. 146.


mer health of no

injury and death.

aggravated, by the wilful neglect or misconduct of the SCOPE OF TERM deceased (1), or by flagrantly unskilful treatment by himself or others (2). But the state of health of the Deceased's fordeceased at the time of the injury cannot alter its consequence. character. It is as criminal to kill a person who is dying of a mortal disease, as the healthiest man (3). Indeed, that may be criminal violence in the case of a frail person, which would not be such in the case of a person in good health (4). Nor does a long Interval between interval between the injury and the death make any difference, if the injury cause the death (5). And Deceased not though the injury was one not inevitably mortal, and from which the deceased might have recovered, if properly cared for and skilfully treated, this will not free the wrong-doer if the injury be still the direct cause of death (6). If by care and skill the life be saved, that is fortunate for the accused, but want of attention or skill on the part of others to the cure of the evil he has done, can never excuse his crime (7). Of Unless mismancourse if the accused can prove that the death was the flagrant, and direct result, not of the injury, but of flagrant mismanagement, and that but for this mismanagement

skilfully treated.

agement was

caused death.

1 Jas. Flinn and Margaret M'Donald or Brennan, Perth, Oct. 12th 1848; J. Shaw 9.

2 Hume i. 182, cases of Mason: and Crombie there.-Alison i. 147, case of Paterson there.-More ii. 364.-John M'Glashan; Bell's Notes 69.-Jas. Williamson, H.C., Nov. 18th, 1866; 5 Irv. 326.

3 Hume i. 183, and case of Ramsay there.-Alison i. 71, 72, 149.John Smith, Inverness, April 28th, 1858; 3 Irv. 72.-Case of Williamson, supra.

4 Hume i. 238.-Thos. Breckenridge, H.C., March 18th 1836; 1 Swin. 153 (Lord Meadowbank's opinion).-Compare Isabella Brodie, H.C., March 12th 1846; Ark. 45,

with Isabella Livingstone, Glas
gow, May 7th 1842; 1 Broun 247
and Bell's Notes 78.

5 Hume i. 185, 186.-Alison i. 150, 151.

6 Hume i. 184, case of Edgar there. Alison i. 149.-More ii. 364. 7 Francis Johnstone, Glasgow, April 17th 1831; Bell's Notes 69.Margaret M'Millan or Shearer H.C., Jan. 6th 1851; J. Shaw 468.-John Macglashan; Bell's Notes, 69.Jas. Williamson, H.C., Nov. 18th 1866; 5 Irv. 326.-Alex. Dingwall, Aberdeen, Sept. 19th and 20th 1867; 5 Irv. 466 and 4 S. L.R. 249 (Lord Deas' charge). This point is not mentioned in the Rubric in either report.


Death from disease caused by the injury.

proper treatment

the deceased would have survived, this would be a good defence to a charge of homicide (1).

If the death be caused by disease directly brought on by the injury, as for example, by lockjaw,

erysipelas, or brain fever supervening, the accused's Or brought on by act is still held to be the cause of death (2). But

this can hardly be extended to the case of unexpected evil consequences following upon proper medical treatment. Where the injuries made bleeding necessary, and the wound made in bleeding became inflamed, and was the cause of death, the inflammation being in no way connected with the injuries, the charge of murder was abandoned (3).

Criminal homicide divides itself into two classes, Murder and Culpable Homicide. Very fine distinctions require to be drawn in discriminating the one from the other. It is thus very difficult to treat of the one offence, without indirectly saying much about the other. But the general intention is to speak under “MURDER," of those cases which, though in

” reality murders, have circumstances which it might be thought reduced them to culpable homicide ; while under “CULPABLE HOMICIDE,” those cases will be alluded to, which are truly cases of culpable homicide, although they might appear to be more serious.

I. Murder is constituted by any wilful acts causing



1 Case of Williamson, supra.

2 Hume i. 185, case of Pretis in note 4.-More ii. 361.-Alex. Mackenzie, H.C., Mar. 14th 1827; Syme 158 (Lord Justice-Clerk Boyle's charge).—John Jones and Edward Malone, H.C., June 22d 1840 ; 2 Swin. 509.-Jas. Wilson, Glasgow, Jan. 10th, 1838 ; 2 Swin. 16 and Bell's Notes 70 (Lord Cockburn's charge). Margaret MoMillan or Shearer, H.C., Jan. 6th 1851 ; J. Sbaw 468.-Carl J. Peterson and Luciana Diluca, Aberdeen, April

28th 1874 ; 2 Couper 557. The report of the case of J. Campbell, Glasgow, April 1819, by Alison, was declared to be incorrect by the late Lord Justice-Clerk Hope (who was counsel for the Crown in the case), the fact being that the medical evidence established that the erysipelas was not caused by the injury.

3 Hugh M‘Millan and Euphemia Lawson or M‘Millan, H.C., Dec. 17th 1827 ; Syme 288 and Hume i. 184, note 1, and Lord Wood's MSS.

wilfully or totally

question of cir


the destruction of human life, whether intended to MURDER. kill, or displaying such utter and wicked recklessness, Causing death as to imply a disposition depraved enough to be recklessly. wholly regardless of consequences (1).

Malice aforethought is not necessary (2).

The amount of recklessness which may constitute Recklessness a murder, varies with circumstances. The same conduct cumstances. which would not indicate total recklessness in the case of an attack upon a strong full grown person, might do so in the case of an infant or aged person (3). One blow with the hand might be sufficient to infer a murder in the case of a child (4). And as regards frail and aged people it has been well said that violence to them is doubly reprehensible, and that the weak are entitled to protection against the degree of violence that will injure them (5).

Murder may be by personal violence, or by poison- Modes or ing, or by causing death while committing some other serious crime.

I. MURDER BY VIOLENCE.-It is not requisite that MURDER BY a deadly, or indeed any, weapon be used (6). It is Weapons not murder to smother by lying upon a person's chest (7), Smothering. or to kill by tossing sulphuric acid in a person's face. Throwing acids. Positive violence, in the strict sense, is not neces- Violence may sary, provided the probable result of the act done is structive. death. Locking up a person without food, or giving Starving. a slight push which sends a person over a precipice, Causing fall or cutting a rope (8), or tilting up a board hung over




be only con

from height

1 Hume i. 254, 265.-i. 256, case of Telfer in note 3.-i. 257, case of Rae in note 1.-i. 260, case of M'Craw in Note 1.-Alison i. 2, 3, 4.

2 Charles Macdonald, H.C., Dec. 16th 1867 ; 5 Irv. 525 and 40 S. J. 92 and 5 S.L.R. 120.

3 Hume i. 238.- Alison i. 5, 6.

4 Hume i. 238, case of Brown there.

5 Thomas Breckenridge, H.C.,

Mar. 18th 1836; 1 Swin. 153 (Lord
Meadowbank's opinion).

6 Hume 261, 262, and two
cases of Brown and case of Lindsay

7 This was the mode in the notorious case of Will. Burke and Helen M‘Dougal, H.C., Dec. 24th 1828 ; Syme 345.

8 John M'Callum and Will. Corner, H.C., July 22d 1853; 1 Irv. 259.


Spring gun.

the side of a ship, so that a person falls (1), or placing a spring-gun (2), or laying an explosive petard in a person's way, are all acts of murder if death ensue. Blows with fist. Even a continued repetition of blows with the fist

may amount to murder (3). Wherever there is manifest grievous bodily harm intended, or at least known to be a likely result of the act done, then the crime is Deadly weapon murder (4). But where the violence has been of a

and less deadly resorted to.

kind not likely to produce death, it will always be a ground for making a distinction, that the accused threw aside a deadly weapon, or did not use one which he had at hand. In such a case it will require very strong evidence of protracted outrage by the less deadly means used, to bring the guilt up to murder (5). But, on the other hand, it is not necessarily a good defence, that death was to some extent invited Fatal duelling. by the deceased. Thus, in law, death caused by duelling is murder, although the person killed was the challenger (6).


Poison need not be virulent.

Murder by poisoning may be committed in many ways besides administering by the mouth. Mingling poison with an injection, or pricking with a poisoned instrument, or shutting a person up in a room exposed to charcoal fumes, are all murderous acts. It cannot be doubted even that deliberately turning on a jet of gas in a closed room, and thus causing suffocation, would be murder. Nor is it essential that the substance used be a virulent poison. Murder may be committed with common and in themselves innocent

1 John Campbell, H.C., Nov. 9th 1836; 1 Swin. 309 and Bell's Notes 79.

2 Jas. Craw, June 26th 1826, and June 6th and 18th 1827; Syme 188 and 210, and Shaw 194.

3 Hume i. 262, and cases of Brown and Lindsay there, and case of Anderson and Glen in note a.

4 Hume i. 189, and case of Neil

son and others in note 2-i. 190, and cases of Wilson: Smith and others and Key there.-i. 256, 257, 258, and case of M'Farlane there.-i. 259, case of Home there. -i. 260, case of M'Iver there.

5 Hume i. 256, and case of Hamilton in note 1.-Alison i. 8.

6 Hume i. 230, 231, and cases of Robertson: Douglas: Mackay and Gray there.-Alison i. 53 to 56.

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