considers, that no man possesses power to destroy life, but by commission from God the author of it; and as the suicide is guilty of a double offence; one spiritual, in evading the prerogative of the Almighty, and rushing into his immediate presence uncalled for; the other temporal, against the sovereign, who has an interest in the preservation of all his subjects; the law has therefore ranked this among the highest crimes, making it a peculiar species of felony, a felony committed on one's self. If one persuades another to kill himself, and he does so, the adviser is guilty of murder (r). And if two persons agree to commit suicide, and accordingly, both take poison or attempt to drown themselves together, but only one of them dies, it is murder in the survivor (s). A felo de se, therefore, is he who deliberately puts an end to his own existence, or commits an unlawful malicious act, the consequence of which is his own death: as if, attempting to kill another, he runs upon his antagonist's sword; or, shooting at another, the gun bursts and kills himself (t). The party must be of years of discretion and in his senses, else it is no crime. But this excuse ought not to be strained to that length, to which our coroners' juries are apt to carry it, by holding that the very act of suicide is evidence of insanity; as if every man who acts contrary to reason, had no reason at all: for the same argument would prove every other criminal non compos, as well as the self-murderer. The law very rationally judges, that every melancholy or hypochondriac fit does not deprive a man of the capacity of discerning right from wrong; which is necessary, as was observed in * a former chapter (u), to form a legal excuse. And therefore, if a real lunatic kills himself in a lucid interval, he is a felo de se as much as another man (x). But now the question follows, what punishment can human laws inflict on one who has withdrawn himself from their reach? They can only act upon what he has left behind him, his reputation and fortune. * 222] [* Accordingly, by statute 4 Geo. 4, c. 52, the remains of persons against whom a finding of felo de se is returned, are to be privately buried in the church-yard or other burial ground of the parish or place, where the remains might have been otherwise interred, the interment to take place within twenty-four hours from the finding the inquisition, between nine and twelve at night; and without performance of the rites of Christian burial. By suicide, also, the goods and chattels of the felon become forfeited to the crown; our law hoping that a man's care for either his reputation, or the welfare of his family may be some motive to restrain him from so desperate and wicked an act. And it is observable, that this forfeiture has relation to the time of the act done in the felon's lifetime, which was the cause of his death. As if husband and wife be possessed jointly of a term of years in land, and the husband drowns himself; the land shall be forfeited to the crown, and the wife shall not have it by survivorship. For by the act of casting himself into the water he forfeits the term, which gives a title to the crown, prior to the wife's title by survivorship, which could not accrue till the instant of her husband's death (y). And though it must be owned that the letter of the law herein borders a little upon severity, yet it is some alleviation that the power of miti (r) Keilw. 136. (8) R. v. Dyson, Russ. & Ry. 523; Reg. v. Alison, 8 Car. & P. 418. (t) 1 Hawk. P. C. 68; 1 Hale, P. C. 413. (u) Ante, p. 19, et seq. gation is left in the breast of the sovereign, who upon this (as on all other like occasions) is reminded by the oath of his office to execute judgment in mercy. (695) [* 223] Killing another. *The other species of criminal homicide is that of killing another man, and in this offence there are degrees of guilt which divide it into manslaughter and murder. The difference between which may be partly collected from what has been incidentally mentioned in the preceding articles, and principally consists in this, that manslaughter (when voluntary) arises from the sudden heat of the passions, murder from the wickedness of the heart. (1.) Manslaughter is therefore defined to be (z)—the unlawful killing of another without malice express or implied: which may be either voluntarily, upon a sudden heat; or involuntarily, in the commission of some (1.) Manslaughter. unlawful act. These were called, in the Gothic constitutions, "homicidia vulgaria; quæ aut casu, aut etiam sponte committuntur, sed in subitaneo quodam iracundiæ calore et impetu" (a). And hence it follows, that in manslaughter there can be no accessories before the fact; because it must be done without premeditation. As to the first or voluntary branch: if upon a sudden quarrel two persons fight, and one of them kills the other, this is manslaughter: and so it is, if Voluntary man- they upon such an occasion go out and fight in a field: for this slaughter. is one continued act of passion (6): and the law pays that regard to human frailty, as not to put a hasty and a deliberate act upon the same footing with regard to guilt. So also if a man greatly provoke another, as by pulling his nose, or other like indignity, and the person aggrieved immediately kills the aggressor, though this is not excusable se defendendo, since there is no absolute necessity for doing it to preserve himself; yet neither is it murder, in the absence of previous malice; but it is manslaughter (c). Yet, in this, and in every other case of homicide upon provocation, if there be a sufficient coolingtime for passion to subside and reason to interpose, and the person so provoked *afterwards kills the other, this act, being done through a deliberate [*224] feeling of revenge, not in heat of blood, accordingly amounts to murder (d). So if a man takes another in the act of adultery with his wife, and kills the adulterer directly upon the spot; though this was allowed by the laws of Solon (e), as likewise by the Roman civil law (if the adulterer was found in the husband's own house (f)), and also among the ancient Goths(g); yet in England it is not absolutely ranked in the class of justifiable homicide, as in case of a forcible rape, but it is manslaughter (h). Manslaughter, therefore, on a sudden provocation differs from excusable homicide se defendendo in this: that in one case there is an apparent necessity, for self-preservation, to (695) The offense of self-murder, or suicide, is not punishable in the United States. But if one counsel another to commit suicide, and the other, by reason of the advice, kills himself, the adviser is guilty of murder, as principal. Com. v. Bowen, 13 Mass. 356; and see Com. v. Dennis, 105 id. 162. kill the aggressor: in the other no necessity at all, being only a sudden act of revenge. (696) As to the second branch,-involuntary manslaughter, also differs from homicide excusable by misadventure, in this; that misadventure always Involuntary man- happens in consequence of a lawful act, but this species of slaughter. manslaughter in consequence of an unlawful one. As if two persons play at sword and buckler, unless, it is said (i), by the king's command, and one of them kills the other: this is manslaughter, because the original act was unlawful; but it is not murder, if the one had no intent to do the other any personal mischief (k). So where a person does an act, lawful in itself, but in an unlawful manner, and without due caution and circumspection: as when a workman flings down a stone or piece of timber into the street, and kills a man; this may be either misadventure, manslaughter, or murder, according to the circumstances under which the original act was done: if it were in a country village, where few passengers are, and the * workman [* 225 ] calls out to all people to have a care, it is misadventure only; but if it were in London, or other populous town, where people are continually passing, it is manslaughter, though he gives loud warning (7); and murder, if he knows of their passing, and gives no warning at all, for then there is evidence of malice against all mankind (m). And, in strictness, when an involuntary killing happens in consequence of an unlawful act, it is either murder or manslaughter, according to the nature of the act which occasioned it. If it be in prosecution of a felonious intent, or in its consequences naturally tended to bloodshed, it is murder; but if no more was meant than a mere civil trespass, it amounts only to manslaughter (n). All struggles in anger are clearly forbidden by our law, and should death result to one of the parties engaged in such a contest the survivor will be guilty of manslaughter, perhaps even of murder (o). And where a conflict, terminating fatally, thus occurs between two persons, with a view to ascertaining the degree of guilt which may attach to the survivor, attention should be directed to these points. Who was the first aggressor? Did the homicide (i) 1 Hale, P. C. 473; 1 Hawk. P. C. 74. (k) 3 Inst. 56. (2) Kel. 40. (m) 3 Inst. 57. (n) Foster, 258; 1 Hawk. P. C. 84. (696) No provocation that can be given is sufficient to render homicide justifiable, or even excusable. But if the provocation were great, the killing is manslaughter only. Allen v. State, 5 Yerg. (Tenn.) 453; State v. Tackett, 1 Hawks. (N. C.) 210; Preston v. State, 25 Miss. 383; Com. v. York, 9 Metc. (Mass.) 93; see Flanagan v. State, 46 Ala. 703. Thus, in a case where a man finds another in the act of adultery with his wife; if he kills either in the transport of passion, he is only guilty of manslaughter, and that of the lowest degree. State v. Samuels, 3 Jones (N. C.), 74; Maher v. People, 10 Mich. 212; Com. v. Whitler, 2 Brewster (Penn.), 388; see Briggs v. State, 29 Ga. 725. And generally, where death ensues, in heat of blood, on immediate provocation, there having been no previous malice, the offense is manslaughter. State v. Benham, 23 Iowa, 154; Gann v. State, 30 Ga. 67; McCann v. People, 6 Park. 629; Underwood v. State, 25 Texas, 389; Creek v. State, 24 Ind. 151. But however grievous the provocation may have been, if there be sufficient time for the excited passion to cool, and for reason to interpose, the killing will be murder. People v. Sullivan, 7 N. Y. (3 Seld.) 396; Gladden v. State, 12 Fla. 562; see State v. McCants, 1 Spear (S. C.), 384; Kilpatrick v. Com., 7 Casey (Penn.), 198; State v. Norris, 1 Hayw. (N. C.) 429; Com. v. Green, 1 Ashm. (Penn.) 289; State v. Yarborough, 1 Hawks. (N. C.) 78. occur pending the conflict, or after its conclusion, whilst the blood of the combatants was hot, or when passion had had time to cool? Is there patent, on the facts adduced in evidence, any formed design to kill another? or again, did the parties meet avowedly with an intent to murder? * On inquiring as to the legal character and quality of a homicide, nice and difficult questions may occur, especially where evidence is adduced in proof of negligence or breach of duty, causing death (p). The neglect of a personal duty, when death ensues as the consequence of such [* 226] neglect, may render the party guilty of it liable to an indictment for manslaughter; but not only must the neglect to make the party guilty of it liable to the charge of felony be personal, the death must have been the immediate result of that personal neglect (7). If a physician or surgeon gives his patient a potion or plaster to cure him, which, contrary to expectation, kills him, this is neither murder, nor manslaughter, but misadventure; and it is dispunishable. In regard to such cases the rule applicable has been thus laid down. There is here no difference between a licensed physician or surgeon, and a person acting as physician or surgeon without licence. In either case, if a party, having a competent degree of skill and knowledge, makes an accidental mistake in his treatment of a patient, through which mistake death ensues, he is not thereby guilty of manslaughter; but if, where proper medical assistance can be had, a person totally ignorant of the science of medicine takes on himself to exhibit a violent and dangerous remedy to one labouring under disease, and death ensues in consequence of that dangerous remedy having been so administered; then he is guilty of manslaughter" (r). We may add that if a wound, in itself not mortal, by improper applications becomes so, and terminates fatally, and it is clearly shown that the medicine, not the wound, was the cause of death, the party who inflicted the wound will not be guilty of murder (s). But where the wound was adequate to produce death, it will not be an excuse to show that, had [* 227] proper care been taken, a recovery might have been effected (t). (697) (2.) We are next to consider the crime of deliberate and wilful murder. (p) Reg. v. Dant, L. & C. 567, shows that, if a man having a horse which he knows to be so vicious as to be dangerous, nevertheless turns it out into a field where there are to his knowledge open unfenced paths likely to be frequented, and death is caused by the savageness of the horse, a conviction for manslaughter may be had. (9) Per Lord Campbell, C. J., Reg. v. Pocock, 17 Q. B. 34. As to the evidence which may * suffice to support a conviction for man- (697) As it regards medical malpractice, it has been held in this country, that if a person, however ignorant of medical science, assumes to act as a physician, and prescribes with an honest intention of curing the patient, but through ignorance of the quality of the medicine prescribed, or of the nature of the disease, or both, the patient dies in consequence of the treatment, contrary to the expectation of the person prescribing, he is not guilty of murder or manslaughter. Com. v. Thompson, 6 Mass. 134; Rice v. State, 8 Mo. 561. But if the party prescribing has sufficient knowledge of the fatal tendency of the prescription, that it may be reasonably presumed that he administered the medicine from an obstinate, willful rashness, and not with an honest intention and expectation of effecting a cure, he is guilty of manslaughter at least, though he might not have intended any bodily harm to the patient. Id.; Fairlee v. People, 11 Ill. 1; Holmes v. State, 23 Ala. 17. (2.) Murder. The term murder was anciently applied to the secret killing of another (u); (which the word moerda signifies in the Teutonic language (x);) and it was defined, "homicidium quod nullo vidente, nullo sciente, clam perpetratur" (y): for which the vill wherein it was committed, or (if that were too poor) the whole hundred was liable to a heavy amercement; which amercement itself was also denominated murdrum (z). This was an ancient usage among the Goths in Sweden and Denmark; who supposed the neighbourhood, unless they produced the murderer, to have perpetrated or at least connived at the murder (a): and according to Bracton (b), the usage was introduced into this kingdom by King Canute, to prevent his countrymen the Danes from being privily murdered by the English; and was afterwards continued by William the Conqueror, for the like security of his own Normans (c). Therefore, if, upon inquisition had, it appeared that the person found slain was an Englishman (the presentment whereof was denominated englescherie (d)), the country seems to have been excused from this burden. But this usage being totally abolished by statute 14 Edw. 3, c. 4, we must now (as is observed by Staundforde (e)) define murder in quite another manner without regarding whether the party slain was killed openly or secretly, or whether he was of English or foreign extraction. [* 228] Murder is thus defined or rather described by sir Edward Coke (ƒ); “when a person of sound memory and discretion, unlawfully killeth any reasonable creature in being, and under the king's peace, with malice aforethought, either express or implied." The best way of examining the nature of this crime will be by considering the several branches of this definition. 1st. It must be committed by "a person of sound memory and discretion:" for lunatics or infants, as was formerly observed (g), are incapable of committing crime: unless in cases where they show a consciousness of doing wrong, and of course a discretion, or capacity of discretion between good and evil. (698) Next, it happens when a person of such sound discretion "unlawfully killeth." The unlawfulness arises from the killing without warrant or excuse: and there must also be an actual killing to constitute murder. The killing may be by poisoning, striking, starving, drowning, and a thousand other forms of death, by which human nature may be cvercome. (699) Of all species of (u) Dial. de Scacch. 1. 1, c. 10. (x) Stiernh. de Jure Sueon. 1. 3, c. 3. The word murdre in our old statute also signified any kind of concealment or stifling. So in the statute of Exeter, 14 Edw. 1, "je riens ne celerai, ne sufferai estre celé ne murdré:" which is thus translated in Fleta, l. 1, c. 18, s. 4: "Nullam veritatem celabo, nec celari permittam nec murdari." And the words " pur murdre le droit" in the articles of that statute, are rendered in Fleta, ibid. s. 8, "pro jure alicujus murdriendo." (698) See ante, 341, 342, notes 609 and 611. (y) Glanv. 1. 14, c. 3. (2) Bract. 1. 3, tr. 2, c. 15, s. 7; Stat. Marl. c. 26; Fost. 281. (a) Stiernh, 1. 3, c. 4. (699) In an indictment for murder at common law, alleging the act to have been done with a specified instrument, it is not necessary to be proved that the act was done with that particular instrument. It will be sufficient if proved to have been done with some other instrument, if the nature of the violence and the kind of death occasioned by it be the same. See State v. Smith, 32 Me. 369; Miller v. State, 25 Wis. 384; State v. Fox, 1 Dutch. (N. J.) 566 ; VOL. II.-61 |