abroad, to the intent to infect another, and another is thereby infected and dies? whether this be not murder by the common law might be a question, but if no such intention evidently appear, tho de facto by his conversation another be infected, it is no felony by the common law, tho it be a great misdemeanor, and the reasons are,

1. Because it is hard to discern, whether the infection arise from the party, or from the contagion of the air, it is God's arrow, and 2. Nature prompts every man, in what condition soever, to preserve himself, which cannot be well without mutual conversation.

3. Contagious diseases, as plague, pestilential fevers, small pox, &c. are common among mankind by the visitation of God, and the extension of capital punishments in cases of this nature would multiply severe punishments too far, and give too great latitude and loose to severe punishments.[11]

II. the second consideration, that is common both to murder and manslaughter, is, who shall be said a person, the killing of whom shall be said murder or manslaughter.

If a woman be quick or great with child, if she take, [433] or another give her any potion to make an abortion, or if

a man strike her, whereby the child within her is killed, it is not murder nor manslaughter by the law of England, because it is not yet in rerum natura, tho it be a great crime, and by the judicial law of Moses (g) was punishable with death, nor can it legally be made known, whether it were killed or not, 22 E. 3. Coron. 263. so it is, if after such child were born alive, and baptized, and after die of the stroke given to the mother, this is not homicide. 1 E. 3. 23. b. Coron. 146.[12]

(g) Exod. xxi. 22.

that the opinions of several judges, including himself, were strongly in favour of the indictment. Most of the more recent writers, however, seem to incline to the opinion that a person cannot be indicted for murder in procuring another to be executed by falsely charging him with a crime of which he was innocent. 1 East, P. C. 333. See 4 Bl. Com. 196-7. Chitty's note. 1 Russell, 427. 3 Chitty, 726. Archbold, 319. Roscoe, 573. 10 Am. Jurist, 261. The Gothic laws punished this offence with death, (4 Bl. Com. 196, quotes Steirnh. de jure Goth. L. 3, c. 3. See also D. 48, 8, 1; and Pothier's Pandects, 48, 8, No. 3, by which it would seem that, in the Roman law, the judge also, if he were bribed, and, under the influence of the bribe, improperly condemned a man who suffered death in consequence, was guilty of murder.

[11] Castell's case, Stra. 856. Huggin's case, Stra. 882. Bantridge's case, 9 Har. State Trials, folio 17. quarto 452. 2 Paris & Fon. Med. Jur. 115. See ante, p. 432, note. [12] The person killed must be "a reasonable creature in being, and under the king's peace" at the time of the killing. Therefore to kill an alien, a Jew, or an outlaw, who are all under the king's peace and protection, is as much murder as to kill the most regular born Englishman, except he be an alien enemy in time of war. To kill a child in its mother's womb is now no murder. 4 Bl. Com. 197, 198. 3 Inst. 50.

Although to kill a child in its mother's womb is no murder, yet if the child be born alive, and die by reason of the potion or bruises it received in the womb, it is murder in the person who administered or gave them. 3 Inst. 50. 1 Hawk. c. 31. s. 16. so if a mor. tal wound be given to a child whilst in the act of being born, for instance, upon the head as soon as the head appears, and before the child has breathed, it may be murder, if the child is afterwards born alive and dies thereof. Rex v. Senior, 1 Moody, C. C. 346.

To justify a conviction on an indictment charging a woman with the wilful murder of

But if a man procure a woman with child to destroy her infant, when born, and the child is born, and the woman in pursuance of that procurement kill the infant, this is murder in the mother, and the procurer is accessary to murder, if absent, and this, whether the child were baptized or not. 7 Co. Rep. 9. Dyer 186.[13]

The killing of a man attaint of felony, otherwise than in execution of the sentence by a lawful officer lawfully appointed, is murder

a child of which she was delivered, and which was born alive, the jury must be satisfied, affirmatively, that the whole body was brought alive into the world; and it is not sufficient that the child had breathed in the progress of the birth. Rex v. Powlton, 5 Car. & P. 329.

If a child has breathed, before it is born, this is not sufficiently life to make the killing of the child murder. There must be an independent circulation in the child, or the child cannot be considered as alive, for this purpose. Rex v. Enoch, 5 Car. & P. 539.

If a child has been wholly produced from the body of its mother, and she wilfully, and of malice aforethought, strangle it, while it is alive, and has an independent circulation, this is murder, although the child be still attached to its mother by the umbilical cord. Reg. v. Trilloe, 1 Car. & M. 650.

An unskilful practitioner of midwifery wounded the head of a child, before the child was perfectly born. The child was afterwards born alive, but subsequently died of this injury:-Held, manslaughter, although the child was in ventre sa mère, at the time when the wound was given. Rex v. Senior, 1 M. C. C. R. 344; 1 Lewin, C. C. 183. n.

A girl was indicted for the murder of her child, aged sixteen days. She was proceeding from Bristol to Llandogo, and was seen near Tintern, with the child in her arms, at 6 P. M. She arrived at Llandogo between 8 and 9 P. M. without the child. The body of a child was afterwards found in the river Wye, near Tintern, which appeared not to be the child of the prisoner :-Held, that the prisoner must be acquitted, and that she could not, by law, either be called upon to account for her child, or to say where it was, unless there was evidence to show that her child was actually dead. Reg. v. Hopkins, 8 Car. & P. 591.

A prisoner was charged with the murder of her new born child, by cutting off its head-Held, that in order to justify a conviction for murder, the jury must be satisfied that the entire child was actually born into the world in a living state; and that the fact of its having breathed is not a decisive proof that it was born alive, as it may have breathed, and yet died before birth. Rex v. Sellis, 7 Car. & P. 850.

If a child was strangled intentionally, while it was connected with the mother by the umbilical cord, but after it was wholly produced into the world, quære, whether this would be murder? Rex v. Croutchly, 7 Car. & P. 814.

An indictment charged that the prisoner, being big with child, did bring forth the child alive, and afterwards strangle it :-Held, that the jury ought not to convict on this indictment, unless they were satisfied that the child was wholly born when it was strangled. Ibid.

The child must be actually wholly in the world in a living state, to be the subject of a charge of murder; but if it is wholly born and is alive, it is not essential that it should have breathed, but the jury must be satisfied that the child was wholly born into the world, at the time it was killed, or they ought not to convict the prisoner of murder. Rex v. Brain, 6 Car. & P. 349.

If a child be killed after it has wholly come forth from the body of the mother, but is still connected with her by means of the umbilical cord, it seems that such killing will be murder. Reg. v. Reives, 9 Car. & P. 25.

On a charge of child murder, it appeared that the child must have died before it had an independent circulation :-Held, that as the child had never had an independent circulation, the charge of murder could not be sustained. Reg. v. Wright, 9 Car. & P. 754. 1 Russ. on Crimes, 485, 486, 487.

In this connexion it may be added, that it is a general rule, that no person should be found guilty of murder, unless the body of the deceased is found; but this rule must be taken rather as a caution than as a maxim never to be departed from. 3 Chit. C. L. 738. [13] Where one counsels a woman to kill her child when it shall be born, who after. wards doth kill it in pursuance of such advice, he is an accessary to the murder. 1 Hawk. c. 31. s. 17.

or manslaughter, as the case happens, and tho there was some doubt, whether the killing of a person outlawed of felony were homicide or no, 2 E. 3. 6. yet it is homicide in both cases. 27 Assiz. 41.

Coron. 203.

If a person be condemned to be hanged, and the sheriff behead him, this is murder, and the wife may have an appeal. 35 H. 6. 58. (h)

If a man be attaint in a præmunire whereby he is put out of the king's protection, the killing of him was held not homicide, 24 H. 8. B. Coron. 197. But the statute of 5 Eliz. cap. 1(i) hath now put that out of question, declaring it to be unlawful.(k)

If a man kill an alien enemy within this kingdom, yet it is felony, unless it be in the heat of war, and in the actual exercise thereof.[14]

[434] III. The third inquiry is, who shall be said a person killing.

An infant under the age of fourteen, years in presumption of law is supposed without discretion, and therefore prima facie he cannot commit murder or manslaughter, but being indicted thereof, upon not guilty pleaded he ought to be found not guilty.

But if he be above that age, in presumption of law he is of discretion, and may be guilty.

But if he be under the age of fourteen, yet if upon circumstances it can appear, that he hath discretion, he may be convict of felony. 3 H. 7. 1. b. 12. a.(l) [15]

(h) See also Co. P. C. p. 52. quære, in case of treason, (where the sentence is, that the party shall be hanged, but not till he be dead, &c.) if the king remit all, but the hanging, whether it be not murder in the sheriff to hang him till he be dead?

(i) In fine.

(k) See Coron. 203. where it is declared felony to kill one outlawed for felony. (1) Vide supra, p. 27.

[14] 4 Bl Com. 178. Bracton, folio 120. 1 Hawk. P. C. 70. Dalton, c. 150. Finch, L. 31. 3 Inst. 52.

[15] Infants under the age of discretion ought not to be punished by any criminal prosecution whatever. 1 Hawk. P. C. 2. By the ancient Saxon law, the age of twelve years was established for the age of possible discretion, and the age of fourteen as that when he became completely liable as one arrived at years of discretion. 4 Bl. Com. 23. The presumption is as stated in the text; a presumption, however, which may be negatived either to involve those under, or to excuse those over that age: for the capacity of doing ill or contracting guilt, (says Blackstone, 4 Com. 23.) is not so much measured by years and days, as by the strength of the delinquent's understanding and judgment. Under seven years of age, however, an infant cannot be guilty of felony, (Mirror, ch. 4. s. 16.) but at eight years he may, (Dalt. c. 147.) if it be shown that he had knowledge and understanding, and felonious intent. There are many cases in which infants under the age of fourteen have been capitally convicted. Foster, 72. In a comparatively late case in England, the ancient doctrines were reaffirmed: it was ruled that if a child more than seven, and under fourteen years of age, is indicted for felony, it will be left to the jury to say whether the prisoner at the time of the offence, had a guilty knowledge that he or she was doing wrong. The presumption of law being that a child of that age has not such guilty knowledge, unless the contrary be proved by the evidence. Rex v. Owen, 4 Car. & P. 236. A boy of the age of twelve years and five months may be convicted on his own confessions of the crime of murder and executed. The capacity to commit a crime, necessarily supposes the capacity to confess it. State v. Guild, 5 Halst. N. J. 163. See ante, p. 26, note.

If a man be non compos mentis, and kill a man, he is to plead not guilty, and shall be acquitted, and is not driven to purchase a pardon, tho antiently it was so used. Stumford's P. C. 16. b. § libros ibi.

And the same law it is of a lunatic, that kills a man in the time of his lunacy; but if it be in those intervals, when he hath his understanding, then he is a felon, sed de his supra. p. 31.[16]

If there be an actual forcing of a man, as if A. by force take the arm of B. and the weapon in his hand, and there with stabs C. whereof he dies, this is murder in A. but B. is not guilty. Dalt. cap. 93. p. 242.(m) Plowd. Com. 19. a.

But if it be only a moral force, as by threatning, duress, or imprisonment, &c. this excuseth not.[17]

A feme covert is in law under the coercion of her husband, and therefore, if she commit larciny or burglary together with her husband, the husband is in law guilty, but regularly the wife is not guilty. Stamf. 26. a. Coron. 160. Dalt. cap. 104. p. 267.(n) [18] But if she commit murder, or treason, or manslaughter, it is no

(m) New Edit. cap. 145. p. 473.

(n) New Edit. cap. 157. p. 503.

[16] Murder or manslaughter cannot be committed by an idiot, lunatic, or infant, unless, indeed, he show a consciousness of doing wrong, and of course a discretion, or discernment between good and evil. 4 Black. Com. 195. 1 Hawk. c. 1. But if any person procure an idiot, &c. to murder another, the procurer is guilty of murder. 1 Hawk. c. 31, 8. 7. Or if he aid and abet him knowing that he entertains mischievous designs. Reg v. Tyler, 8 C. & P. 616. See ante, p. 37, note.

[17] A fear of death, well grounded, may excuse the doing of some acts which, under other circumstances, would be criminal; as joining rebels, or continuing with them: but an apprehension, however strong and well founded, of having property wasted or destroyed, or of suffering any other inischief not endangering the person, will afford no excuse. Rex v. Gordon, 1 East, P. C. 71. Rex v. McGrowther, 1 East, P. C. 71.

A., who was insane, collected a number of persons together, who armed themselves, having a common purpose of resisting the lawfully constituted authorities: A., having declared that he would cut down any constable who came against him. A., in the presence of C. and D., two of the persons of his party, afterwards shot an assistant of a constable, who came to apprehend A. under a warrant : Lord Denman held, that C. and D. were guilty of murder, as principals in the first degree, and that any apprehension that C. and D. had of personal danger to themselves from A., was no ground of defence for continuing with him after he had so declared his purpose; that it was no ground of defence that A. and his party had no distinct or particular object in view when they assem bled together and armed themselves; and that the apprehension of personal danger does not furnish any excuse for assisting in doing any act which is illegal. Reg v. Tyler, 8 Car. & P. 616.

[18] Although a wife cannot commit larceny in the company of her husband, for it is deemed his coercion and not her voluntary act, yet, if she do it in his absence, and by his mere command, she is then punishable as if she were sole; and the husband, it is said, may be accessary to the wife. Anon. 2 East, P. C. 559. When a felony is committed by the wife in the presence of the husband, it is a presumption only and not a conclusion of law, that it is done under his coercion. Rex v. Hughes, 2 Lewin, C. C. 229. Sce Conolly's case, 2 Lewin, C. C. 229. Rex v. Morris, R. & R. C. C. 270. 1 Russell, 18. Rex v. Dix, 1 Russell, 16. Rex v. Archer, R. & M. C. C. 143. Rex v. Morris, 2 Leach, C. C. 1096. Rex v. Atkinson, 1 Russell, 20. Rex v. Hassall, 2 Car. & P. 434. Reg v. Woodward, 8 Car. & P. 561. Rex v. Knight, 1 Car. & P. 116. Rex v. Price, 8 Car. & P. 19. Reg v. Čruse, 8 Cur. & P. 541. 2 M. C. C. R. 53. 4 Bl. Com. 28. Sce ante, p. 45, note.

plea to say she did it by coercion of her husband, but she is guilty, tho committed with her husband. Dalt. Ibid.[19]

[435]

CHAPTER XXXIV.

CONCERNING COMMANDING, COUNSELLING, OR ABETTING OF MURDER OR MANSLAUGHTER.

ALTHO this title may seem more proper under the title of principal and accessaries, yet because it relates to the inquiry, who shall be said a murderer or manslayer, and is common in some respects to both crimes, I shall take up the consideration thereof here.

He that counsels, commands, or directs the killing of any person, if he be absent, is an accessary to murder before the fact.

In case of poisoning, he that counsels another to give poison, if that other doth it, the counseller, if absent, is but accessary before Coke P. C. p. 49. Sir Thomas Overbury's case. (a)

But he that actually gives or lays the poison to the intent to poison, tho he be absent, when it is taken by the party, yet he is principal, and this was Weston's case,(b) Co. P. C. p. 49. in Sir Thomas Overbury's case, and 4 Co. Rep. 44. b. Vaux's case.

In case of murder, he that counselled or commanded before the fact, if he be absent at the time of the fact committed, is accessary before the fact, and tho he be in justice equally guilty with him that commits it, yet in law he is but accessary before the fact, and not principal.

If A. commands B. to beat C. and he beats him so that he dies thereof, it is murder in B. and A. if present, is also guilty of the offense, if absent, he is accessary to murder. Dalt. cap. 93.(c) Plowd. Com. 475. b. Co. P. C. p. 51. 3 E. 3. Coron. 314.

If A. counsel B. to poison his wife, B. accordingly obtains 436] poison from A. and gives it to his wife in a roasted apple,

the wife gives it to a child of B. not knowing it was poison, who eats it and dies, this is murder in B. tho he intended nothing to the child. Plowd. Com. 474. Saunder's case: and so it is, if an apothecary send a potion to the wife, and the husband mingle poison with it, and upon some dislike of the physic the apothecary is sent for, who to justify it to be wholesome voluntarily eats part of it, and

(a) See State Tr. Vol. I. p. 331. (b) State Tr. Vol. I. p. 313.

(c) New Edit. cap. 145. p. 472.

[19] 4 Bl. Com. 28. 1 Hawk. P. C. 3. Wife not guilty of any breach of duty, in neglecting to provide an apprentice of her husband with sufficient food and necessaries, whereby he died, as she was only the servant of her husband. Rex v. Squire, 1 Russell, 16.