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then A. strike again, and B. kill A., the stroke hy A. is a new provocation, and it will be manslaughter only. Russ.ibid.

So, in case of other personal assaults, if it be resented imme- Other assaults. diately, and the aggressor killed in the heat of blood. 1 Russ. 487.

Coless indeed the revenge is disproportioned to the injury, and Outrageous outrageous and barbarous in its nature. Ibid.

revenge. So, where a man is restrained of his personal liberty. 1 Russ. Imprisonment. 487.

So, where an adulterer has been detected by the husband with Adulterer dehis wife. 1 Russ. 488.

tected. So, in many other cases, provocations which were not of any No use of serious nature have been allowed to extenuate the offence, where dangerous the party killing has not acted with cruelty, or used dangerous weapons. instruments. 1 Russ. 488. et seq.

But the plea of provocation will not avail the party killing, if it Where provocaappears that he sought for and induced the provocation, in order tion is sought to afford him an opportunity of wreaking his malice. 1 Russ. 490.

In cases of combat arising upon sudden quarrel or provocation, Mutual comand before the parties have time to cool, it will be manslaughter bars. only if death ensue, provided no undue advantage be sought or taken on either side. * 1 Russ. 495.

Though it is murder if any one kill an officer in the execution Officer or of his duty, in endeavouring to arrest such person, or kill a private other making individual legally assisting such officer, or legally taking such a lawful arrest. person into custody, for the purpose of bringing him to justice; yet this protection extends to such only as act upon proper authority, and use their authority in a proper manner : but if the officer or private person exceed his legal authority, it will be no tonger murder, but manslaughter. 1 Russ. 501, 502.

So the process, whether it be writ or warrant, must not be Process must defective in the frame of it, and it must issue in the ordinary be substantially course of justice, from a court or magistrate having jurisdiction. valid. 1 Russ. 511.

But it is not material that there may have been error or irregu- Previous irrelarity in the proceedings previous to the issuing of the process. gularity, not I Rüss. 511.

inaterial. If the process, however, is defective in the frame of it, as, if there is a mistake in the name or addition of the person on whom it is to be executed; or if the name of the officer or the party be inserted without authority, and after the issuing the process, this will make the crime no more than manslaughter. 1 Russ. 512.

On indictment against G. H. for stabbing I. S., to prevent the Warrant lawful apprehension of the said G. H., it appeared that 1. S. acted having a blank under a warrant to take H., of, &c. by whatsoever name he may tian name of be called or known, the son of Samuel H., to answer, &c. on the the person to oath of F. B., an officer of the sheriff of W., for assaulting him in be apprehended, the execution of his duty, and that G. H. stabbed him for attempts and giving no ing to take him on that warrant: on case, twelve judges (all who reason for such

omission, and met) held the warrant ill, because, if it omitted the Christian name,

not furnishing it should have assigned some reason, and have given some other

any distinguishdistinguishing particulars of G. H.; and his conviction was held ing particulars, wrong. M. T. 1830, R. v. Hood, MS. Bayley B. S. C. 1 M. 281. is bad.

Peace-officers, and all other ministers of justice, are bound not Officers must to exceed the necessity of the case in the execution of their duty, not use more If, therefore, they proceed to extremities, and death ensue, upon required.

a slight interruption, or without there being any reasonable necessity, it will be murder, or manslaughter, according as the circum

stances of the case may vary. 1 Russ. 529. 532. Correction of

The same principles apply, also, where the death of a child or child or ap

of an apprentice, &c. is occasioned by the undue correction of the prentice, &c.

parent or master. 1 Russ. 532. Death of child Giving a child, whilst in the act of being born, a mortal wound by unskilful

upon the head as soon as the head appears, and before the child midwife.

has breathed, will, if the child is afterwards born alive and dies thereof, and there is malice, be murder. E. T. 1832.

An unskilful man, who acted as midwise, to facilitate a woman's delivery, broke the child's skull before it had the opportunity to breathe, and the child died of the wound immediately after it was born :- It was insisted, that as the child was not born when the wound was given, the prisoner could not be guilty of manslaughter. But Bolland B. at the trial, and the judges (thirteen) afterwards, held he might, and conviction right. E. T. 1832, R. v. Senior,

MS. Bayley B. S. C. 1 M. 346. 9 G. 4, c. 31. By 9 G. 4. c. 31. $ 9., every person convicted of manslaughter Punishment of shall be liable, at the discretion of the court, to be transported manslaughter, beyond the seas for life, or for any term not less than seven years,

or to be imprisoned, with or without hard labour, in the common gaol or house of correction for any term not exceeding four years,

or to pay such fine as the court shall award. Contra form. R. v. Robert Chatburn, R.v. Thomas Rushworth. These prisoners

were tried before Bolland B., the former at York, the latter at necessary to

Appleby, Sum. Ass. 1833, on indictments for murder, and were portation for each convicted of manslaughter; and when sentence of transportlife.

ation for life was about to be passed, it was objected, that as the indictment did not conclude contr. form. stat., such sentence could not be passed :--The learned judge thought it unnecessary to conclude contr. form. stat., where the offence was not created by statute, but only the punishment increased (2 Haw. 8th edit. 477. 1 Vent. 13. Thomas Burgen's case, 2 Hale, 191.); and passed sentence of transportation in each case, but took the opinion of the judges, who were unanimously of opinion that he was right. M. T. 1833. MS.

stal. not

warrant trans

Murder, what.

Malice expressed.

V. vurder. Murder is, when a man of sound memory, and of the age of discretion, unlawfully killeth any person under the king's peace, with malice forethought, either expressed by the party, or implied by law, so that the party wounded or hurt die of the wound or hurt, within a year and a day. 3 Inst. 47.

By malice expressed, is meant a deliberate intention of doing any bodily harm to another, whereunto by law a person is not authorised. 1 Hale, 451.

And the evidences of such a malice must arise from external circumstances, discovering that inward intention; as lying in wait, menacings antecedent, former grudges, deliberate compassings, and the like, which are various, according to variety of circumstances. 1 Hale's Sum. 51.

Malice implied is in several cases; as when one voluntarily kills another without any provocation; for in this case the law pre

Malice implied.

sumes it to be malicious, and that he is a public enemy of mankind. i Hale, 455, 456.

Poisoning also implies malice, because it is an act of deliberation, 1 Hale, 455.

Also when an officer is killed in the execution of his office, it is murder, and the law implies malice. 1 Hale, 457.

Also where a prisoner dies by duress of the gaoler, the law implies malice, by reason of the cruelty. 3 Inst. 52.

And in general, any formed design of doing mischief may be Malice precalled malice, and therefore not such killing only as proceeds from pense. premeditated hatred or revenge against the person killed, but also. in many other cases, such as is accompanied with those circumstances that shew the heart to be perversely wicked, is adjudged to be of malice prepense, and, consequently, murder.2 Haw. 6.31. $ 18. 2 Str. 766.

For when the law makes use of the term malice aforethought, as Malice aforedescriptive of the crime of murder, it is not to be understood in thought. that narrow restrained sense to which the modern use of the word malice is apt to lead one, a principle of malevolence to particulars ; for the law by the term malice (malitia) in this instance meaneth, that the fact hath been attended with such circumstances as are the ordinary symptoms of a wicked heart, regardless of social duty, and fatally bent upon mischief. Fost. 256, 257.

And wherever it appears that a man killed another, it shall be intended primd facie that he did it maliciously, unless he can make out the contrary, by shewing that he did it on a sudden provocation, or the like. i Haw. c. 31.5 32.

Also, wherever a person in cool blood, by way of revenge, beats Beating a peranother in such a manner that he afterwards dies thereof, he is son in cold guilty of murder, however unwilling he might have been to have

blood. gone so far. 1 Haw. c. 31. § 38.

If A. procures B., an idiot or lunatic, to kill C., A. is guilty of Killing by the murder as principal, and B. is merely an instrument. So means of an

idiot, &c. if A. lay a trap or pitfall for B., whereby B. is killed, A. is guilty of the murder as a principal in the first degree, the trap or pitfall being only the instrument of death. 1 Russ. 423.

Murder may be committed upon any person within the king's Killing an alien peace: therefore, to kill an alien enemy within the kingdom, un.

enemy, outlaw, less it be in the heat and actual exercise of war, or to kill a Jew, an outlaw, one attainted of felony, or one in a premunire, is as much murder as to kill the most regular-born Englishman. i Russ. 424.

The killing may be effected by poisoning, striking, starving, It must be by drowning, and a thousand other modes by which life

some injury to be ex may

the body. tinguished; but there must be some external violence or corporal damage: and, therefore, where the mind is so affected by strong impressions, or by harsh and unkind usage, that either sudden death ensues, or some mortal disease is contracted, the killing is not such as the law can notice. 1 Russ. 425.

If a man, however, does an act which is likely to lead to death, Acts from and of which death is actually the consequence, such killing may which death be murder, although no stroke be struck by himself, and no Killing proceeds. may have been primarily intended : as where a person carried his sick father, against his will, in a severe season from one town to another, by reason whereof he died; and where a harlot, being delivered of a child, left it in an orchard covered only with leaves,

&c.

in which condition it was killed by a kite; in these and similar cases it was considered that the acts so done, wilsully and de.

liberately, were of malice prepense. 1 Russ. 425. By negligence Wherever there is found to be actual malice, or a wilful disposi. and harsh usage tion to injure another, or an obstinate perseverance in doing an towards an ap- act necessarily attended with danger, without regard to the conseprentice.

quences, as if a master, by premeditated negligence, or harsh usage, cause the death of his apprentice, it will be murder. 1 Russ. 426. See R. v. Friend, C. C. R. 20.

Thus, where the prisoner, upon his apprentice returning to him from Bridewell, whither he had been sent for misbehaviour, in a lousy and distempered condition, did not take that care of him which his situation required, and which he might have done; not having suffered him to be in a bed on account of the vermin, but having made him lie on the boards for some time without covering, and without common medical care; and the death of the apprentice, in the opinion of the medical persons who were examined, was mos probably occasioned by his ill treatment in Bridewell, and the want of care when he went home, and the medical persons inclined to think that, if he had been properly treated when he canie home, he might have recovered ; the court, under these circumstances, and others in favour of the prisoner, left it to the jury to consider, whether the death of the apprentice was occasioned by the illtreatment he received from his master after returning from Bridewell, and whether that ill-treatment amounted to evidence of malice; in which case they were to find him guilty of murder. The prisoner was found guilty of manslaughter. Self's case,

1 East's P. C. 226. Death of R. v. Squire and his wife, Stafford Lent Assizes, 1799, cor. apprentice Lawrence J. MS. The prisoner Charles Squire, and Hannah, his through cruel

wife, were indicted at Stafford Lent Assizes, 1799, for the murder usage, want of of Joseph Green, a parish apprentice, bound to the prisoner

, &c.

Charles. It was proved that both the prisoners had treated the apprentice in a most cruel and barbarous manner for a considerable length of time, by tying a cord round his middle when naked, and taking him to a brook, and drawing him by the rope up and down the brook over-head; by beating him naked with a twisted cord; by throwing flashes and sparks of fire from red-hot iron rods upon him when only in his shirt ; by beating him with a redhot iron rod and burning him; by repeated beatings with files, hammers, and sharp instruments, and with rods and fists, so that he was seldom without burns, cuts, wounds, and black eyes; by suspending him naked by a cord round his middle to a beam on the top of the shop, with one leg tied to the other thigh, and the great toe of the other just touching the ground, and his hands buckled behind; by suspending him by the heels by a cord tied round his ancles up to the beam, and hanging with his head towards the ground, but not touching it, and his hands tied behind him, so that he was black in the face, and blood gushed out at his mouth ; and leaving him in the shop in that situation and locking the door, so that he was speechless, and must inevitably have died, if a boy who passed by had not got the key, and gone into the shop and cut him down; by tying him and placing him on his naked back upon the floor in a small room all night, and other acts of inhuman barbarity; and, lastly, by not giving him sufficient food

and nourishment. The surgeon, who had examined the boy, and had seen hin before, deposed, that in his judgment the boy died from debility and for want of proper food and nourishment, and not from the wounds, &c. which he had received ; and while the learned judge was proceeding to examine the surgeon whether in his judgment the series of cruel usage the boy had received might not have so far broken his constitution as to promote the debility, and co-operate, along with the want of proper food and nourishment, to bring on his death, the surgeon was seized with a fainting fit, and was obliged to be taken out of court, and could pot afterwards attend. Mr. J. Lawrence called up Williams Serjt. and Ryder, who were of counsel for the prosecution, and stated his doubts, that, as it did not appear from the evidence of the surgeon that the death was occasioned by those acts of violence in which the wife was proved to have been as active as her husband, but, on the contrary, the death was not occasioned by them, and as unfortunately there was no evidence on the point the learned judge was inquiring into, by the accident that happened to the surgeon, the case was short as to the wife : for she being the servant of her husband, and, therefore, it not being her duty to provide the apprentice with sufficient food and nourishment, she was not guilty of any breach of duty in not providing him therewith. If, indeed, the husband had allowed her sufficient food for the apprentice, and she wilfully withheld it from him, then she would be guilty. (Mrs. Ridley's case, 2 Camp. 650.; and see tit. Apprentice.) But here the fact was otherwise, and, therefore, though in foro conscientia she is equally guilty with her husband, yet, in point of law, she cannot be said to be guilty of not providing the apprentice with sufficient food and nourishment. Williams Serjt. thereupon asked the judge, what he should have done if no surgeon had examined the body of the boy? To which he answered, that in such case he must have left it to the jury in the best manner he could: but here, a surgeon having examined the body, and given his opinion of the cause of the death, which went to negative that it proceeded from the wounds, &c. he could not leave it to the jury, and, indeed, had nothing to leave. That if any physician or surgeon were present who had heard the trial, he might be examined as to the point intended to be inquired into; but upon inquiry no such person being present, the learned judge delivered his opinion to the jury as before stated respecting the wife; and they accordingly acquitted her, and found the husband guilty. S. C. 1 Russ. 16. 426.

N. B. He was executed at Stafford, on Monday, the 1st of April, 1799.

And it seems to be agreed, that no breach of a man's word or No affront will promise, no trespass either to lands or goods, no affront by bare justify murder. words or gestures, however false or malicious it may be, and aggravated with the most provoking circumstances, will excuse him from being guilty of murder, who is so far transported thereby as immediately to attack the person who offends him in such a manner as manifestly endangers his life, without giving him time to put himself upon bis guard, if he kills him in pursuance of such an assault, whether the person slain did at all fight in his defence or not. 1 Haw. c. 31. § 33.

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