3. The death must have been caused by the act or omission of the accused. If this is so, he is none the less responsible because other causes contributed.

4. Death must happen within a year and a day after the injury.

It may be

Mode of Treatment.-Every killing of one human being by another is a homicide, but every homicide is not a crime. justifiable, in which case no fault whatever is imputable to the slayer; or it may be excusable, in which case some fault is imputable to him, though he is not now punished. A homicide which is not justifiable or excusable is felonious. It is murder if committed with malice aforethought, and manslaughter if committed without malice aforethought. Before taking up these different grades or kinds of homicide, it is necessary to deal with those principles of the law of homicide that relate solely to the killing,-principles that determine, not whether a particular homicide was murder or manslaughter, or whether it was justifiable or excusable, but whether there has been any homicide at all. They relate to (1) the subject of a homicide, (2) the manner of causing death, and (3) the relation of cause and effect, or causal connection, be

tween the act or omission of the accused and the death.

234. The Subject of a Homicide.

(a) In General. The subject of a homicide must be a living human being. It follows that on a prosecution for murder or manslaughter it is always necessary that it shall appear, either by direct proof or by recognized presumptions, that the deceased was alive at the time when the injury is alleged to have been inflicted. 190 Ordinarily, if it is proved that he was alive shortly before the alleged injury, continuance of life may be presumed.191

1901 Whart Crim. Law (10th Ed.) § 309; U. S. v. Hewson, 7 Law Rep. 361, Fed. Cas. No. 15,360; Com. v. Harman, 4 Barr (Pa.) 269.

In U. S. v. Hewson, supra, a mother was charged with the murder of her child by throwing it overboard from a vessel. It appeared that at the time she was suffering from puerperal fever, and from great mental distress and excitement, and there was some doubt as to whether the child was alive or dead when she threw it overboard. Judge Story charged the jury that she could not be convicted without proof that the child was then alive, and she was acquitted.

191 Com. v. Harman, supra.

(b) Infanticide-Unborn Children.-A child is not a living human being, so as to be the subject of a homicide, until it has been fully born alive, and it is not fully born until an independent circulation has been establish→ ed.192 The destruction of an unborn child, even though it be destroyed in the very process of delivery, is not homicide at all, but, if it is any offense, it is simply a misdemeanor commonly known as "abortion."193 According to the better opinion, a child is not fully born, and is not the subject of homicide, until the umbilical cord has been severed, for until then the blood of the child is renovated through the lungs of the mother, and its circulation, therefore, is not independent.194 It is not enough to show that the child had

192 3 Inst. 50; 1 Hale, P. C. 133, Beale's Cas. 419; 1 Hawk. P. C. c. 31, § 16; Rex v. Enoch, 5 Car. & P. 539; Rex v. Brain, 6 Car. & P. 349; Reg. v. Trilloe, Car. & M. 650; Wallace v. State, 7 Tex. App. 570; Wallace v. State, 10 Tex. App. 255; State v. Winthrop, 43 Iowa, 519, 22 Am. Rep. 257; Evans v. People, 49 N. Y. 86; Com. v. O'Donohue, 8 Phila. (Pa.) 623.

193 Post, § 289 et seq.

194 State v. Winthrop, 43 Iowa, 519, 22 Am. Rep. 257. Some early English cases are to the contrary: Reg. v. Trilloe, Car. & M. 650; Reg. v.

breathed, for a child may breathe before it has an independent circulation.195

It is not necessary that the child shall be fully born before the injury is inflicted. If a child is wounded by an instrument, or if a drug is administered, while the child is in its mother's womb, or while it is in process of delivery, and it is fully born alive, and dies afterwards as a result of the wound or drug, it is homicide.196

(c) Criminal Sentenced to Death.-A criminal under sentence of death is as much

Reeves, 9 Car. & P. 25; Rex v. Crutchley, 7 Car. & P. 814.

195 Rex v. Sellis, 7 Car. & P. 850; Rex. V. Enoch, 5 Car. & P. 539. It is not necessary to show that the child had breathed, for a child may not breathe for a while after an independent circulation has been established. Rex v. Brain, 6 Car. & P. 349.

196 3 Inst. 50; Rex v. Senior, 1 Mood. C. C. 346, 1 Lewin, C. C. 183, note.

In Reg. v. West, 2 Car. & K. 784, it was held that if a person, intending to procure an abortion, does an act which causes a child to be born so much earlier than the natural time that it is born in a state in which it is much less capable of living, and it afterwards dies in consequence of its exposure to the external world, he is guilty of murder.

the subject of a felonious homicide as any other person. If he is executed in a way not authorized by law, or by a person not authorized by law to execute him, the homicide is felonious. 197 And a man is guilty of murder as principal in the second degree or accessary before the fact, according to the circumstances, if he advises or abets a criminal sentenced to death in the commission of suicide. 198

(d) Alien Enemies.-An alien enemy is the subject of a felonious homicide. It is not a crime to kill an alien enemy in time of war, and in the actual exercise of war, but, if the killing is not in the actual exercise of war, the homicide is murder or manslaughter, according to the circumstances. 199

235. Manner of Causing Death.

(a) In General. To render a person responsible for a homicide, it need not have been caused by any particular means. As was said in an early English case: "Murder may be committed without any stroke. The

197 Post, § 267. 198 Post, § 250;

7 Am. Dec. 154.

Com. v. Bowen, 13 Mass. 356.

199 3 Inst. 50; 1 Hale, P. C. 433, Beale's Cas. 419; State v. Gut, 13 Minn. 341.