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POISON.

DEATH RESULT

OTHER CRIME.

abortion.

children.

drugs. If a person be suffering from flux, and MURDER BY another maliciously removes his medicines, and substitutes strong purgatives which aggravate the complaint and destroy the patient, he commits murder (1)

When death results from the perpetration of any MURDER BY serious and dangerous crime, though there was no ING FROM ANintention of injury, murder is committed. Thus, it is Procuring murder if an attempt be made to cause a pregnant woman to abort, by administering drugs or using instruments, or by any other process, and the woman die (2), or if a child of tender years die from being Exposure of exposed to the weather, without care or nourishment, and in total disregard of the consequences (3), or if by Firo-raising. an act of fire-raisivg, persons in the house or neighbouring houses are killed (4). Many other cases may be supposed. If, in a struggle with a robber, the Robbery. person injured is dashed against a wall, or to the ground, and has his skull fractured, and dies, the robber is guilty of murder (5). Wreckers who, by Wreckers shewthe exhibition of false lights, bring about the death ing false lights. of a ship's crew, commit murder, although the immediate object was only plunder. And the same Sinking ships. will hold of scuttling of a ship, though the object be to defraud underwriters,

Many still more indirect cases of murder may be INDIRECT Cases. imagined If a jailor maliciously place a prisoner in Confining person a cell with a dangerous wild animal, or even with a animal. violent lunatic, he is guilty of murder if death ensue (6). Another case may be supposed, that of a person maliciously bringing it about that another shall be killed

with dangerous

1 Hume i. 289, and case of Clerk and others there. -i. 290, case of Paterson in note 1.

2 Hume i. 263, 264, and case of Dalrymple and Joyner there. Alison i. 52.-Will. Reid, H.C., Nov. 10th and 11th 1858 ; 3 Irv. 235 and 31 S.J. 176.

3 Hume i. 190, cases of Smith
and others : and Key there.
Elizabeth Kerr, H.C., Dec. 24th
1860 ; 3 Irv. 645.

4 Hume i. 24.–More ii. 392.
6 Hume i. 24, 25.-Alison i. 52.
6 Hume i. 190.-Alison i. 73.

INDIRECT CASES by a third person in the discharge of duty. If an officer who has malice against an individual who is subGiving wrong ject to his orders, orders a sentry posted at a particular

pass-word, that sentry may shoot another.

spot to shoot any one who cannot give the countersign, and then sends the object of his malice on a duty which will take him to the sentinel's post, giving him a wrong word as the countersign; undoubtedly, if he be shot, his commander has murdered him. Though the sentinel's is here the innocent hand that does the deed, the officer is just as guilty as the man who mixes poison for another, and sends it to him as a wholesome medicine by the hands of a servant. The

False swearing causing execu

tion of innocent text-books speak of another case, that of one swearing

person.

falsely, and so procuring the execution of an innocent person. Hume seems to think it murder, Alison holds the contrary (1). The great difficulty of supposing such a case is, that by the law of Scotland not one can be convicted on the evidence of one witness only, without the additional evidence of other persons or circumstances, and it would therefore be difficult to make out that the person was executed because of the false evidence of an individual. But suppose that all the Crown witnesses (except the official witnesses to the prisoner's declaration, medical reports, and the like) are leagued together to swear falsely to obtain the conviction of an innocent person on a charge of murder. A. B. swears he saw him stooping over the murdered person, and rifling his pockets, and that he saw blood on his hands; C. D. that he found a bloody knife hid in the wall near his house; and E. F. that the accused confessed to him that he had done the deed. And the result of their combined evidence is that an innocent person is hanged. Such a case would seem to point to the soundness of Hume's view, for it is not possible to imagine a crime more horrible

1 Hume i. 190, 191.-Alison i. 73.

than this, and it is difficult to see any logical ground INDIRECT Cases. why it should not be held to be murder (1).

Taking life in self-defence will be spoken of under the ProvocatION. head of justifiable homicide, but though the conduct of the deceased may not support a plea of self-defence, still it may palliate the offence of killing him. Those cases of provocation which do not reduce the offence from murder to culpable homicide, fall to be noticed first. Words of insult, however strong, do not at all verbal abuse. excuse a murderous attack (2). Nor is any mere insulting or disgusting conduct, such as jostling, or tossing filth in the face (3). Even more serious pro- Throwing tilth. vocations may not reduce the offence to culpable homicide. A blow with the open hand, or even with Blow from hand. the clenched fist, forms no excuse for slaying the striker (4). To palliate retaliation causing death, Must be violence there must have been violence so extreme or con- able alarm. tinued, without the person attacked having the means of getting away, as to cause reasonable alarm of serious injury to the person (5). There seems, how- If retaliation not ever, to be room here for a distinction. If there was case necessary provocation by a blow, and the method of the retalia- murder. tion was not plainly murderous, then a murderous

will not so readily be presumed. For example, it was said above, that repeated blows even with the fist, might constitute murder.

But it seems reasonable, in such a case, if the blows were in retaliation of one struck by the deceased, to require

causing reason

to constitute

purpose will

1 One case mentioned by Baron Hume (Daniel Nicolson and others, í. 170, 171) may be referred to as illustrating the possibility of such a diabolical plot as that above supposed occurring in real life.-See More ii. 363.

2 Hume i. 247.

3 Hume i. 248, case of Aird there, and case of Hume in note 1. -Alison i. 12.

4 Hume i. 223, case of M‘Millan

there.—Will. Wright, H.C., Nov. 23d 1835; 1 Swin. 6 and Bell's Notes 77. In Lord Wood's MSS. the following occurs in notes of a charge of Lord Meadowbank in the case of Jas. Ross, Inverness, Sept. 9th 1826—“Law of England “ different from ours - & slight “bodily affront enough to palliate ; “but this rejected in Scotland.”

6 Hume i. 247.-Alison i. 7, 20, 21.

PROVOCATION.

Provocation no defence after interval.

tion may exclude

vocation.

strong evidence of continued and outrageous abuse before presuming a murderous purpose (1).

Provocation, though great, will not palliate guilt, if an interval have elapsed between the provocation and the retaliation. If A be struck by B, and provoked so that if A retaliated then and there, he might not be guilty of murder in killing B, this will not lessen A's guilt, if, after a sufficient interval has elapsed to cool his rage, he track B on his road home, and deliberately shoot him.

Such cold blooded revenge for a wrong, however great, is nothing less than Mode of retalia- murder (2). And the same will hold of taking the defence of pro-life of another on provocation, and immediately, if the

deed be so done as to display not mere excitement and rage, leading to dangerous violence, but deadly vengeance. If two persons come to blows, and the party provoked secretly draw a knife and stab with it from behind, or repeatedly, he will scarcely be heard to maintain that the offence is mitigated by the provocation (3). Again, it would certainly be murder, if a person, on provocation however great, were immediately to place poison in the other party's food or drink. The defence of provocation is of this sort, “Being greatly agitated and excited, and alarmed by " the violence of the deceased, I lost control over “myself, and took his life, when my presence of mind “had left me, and without thought of what I was

doing.” But this can never apply to a case of poisoning where the resolution, though sudden, is

deliberate and malignant in character (4). Killing trespasser

It is not a provocation that palliates the taking of the life of another, that he was trespassing, or stealing,

or thief.

1 See Hume i. 262.

2 Hume i. 252, and cases of Red-
path : Macara : and Peter in Note
1.--Alison i. 8 to 10.-Joseph
Alison and Maxwell Alison, H.C.,

July 16th 1838 ; 2 Swin. 167 and
Bell's Notes, 77, 78.

3 Burnett 46, case of Marsha there.

4 Hume i. 252.-Alison i. 9.

executing

or attempting to steal (1). It is only where there are PROVOCATION. violence and danger that the person aggrieved can be at all excused. To lay a spring-gun to shoot a poacher, or the plunderer of an orchard (2), is murder, if death ensue, and the same holds of shooting a thief caught in the act of stealing, unless the circumstances were such as to cause reasonable trepidation.

In the case of an officer of the law being killed Officer killed in while executing a warrant, it is no palliation that warrant. he was using violence, for this he is bound to do, if resisted (3). But if an officer execute a warrant Executing war.

rant erroneously. upon a wrong person, or execute a defective warrant, or arrest, without proclaiming himself an officer, and the purpose of the arrest, or beyond the jurisdiction of the magistrate issuing the warrant, the question whether murder is committed by resistance which causes his death, is one of circumstances.

Such errors and defects, though they justify resistance, will not, by themselves, palliate the guilt of putting the officer to death. Certainly, if the irregularity were unknown to the accused, he cannot plead that his resistance was based upon it. But even if the irregularity were known to him, and were pointed out by him to the officer, he will not be free from the guilt of murder if, on the officer endeavouring to execute the warrant, he at once put him to death. The same rule applies here as in an attack by an ordinary individual ; the person attacked is not excusable in killing the assailant, unless his conduct has been such as reasonably to excite serious apprehension of injury (4). An officer, though bound to go forward and execute a omi cer killing; warrant, is inexcusable if he kill the person to be threatened, comarrested, unless he can show that he was actually subjected to, or threatened with, very serious injury if

1 Hume i. 247.--Alison i. 21. 4 Hume i. 250, 251, and case of

2 Jas. Craw, H.C., June 4th and O'Neal there. See also i. 393.18th 1827 ; Syme 188 and 210. Alison i. 25, 26, 27. 3 Alison i. 24.

unless seriously

mits murder.

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