that even if the opposition took no more violent form than merely that of tripping up the officer, yet, should his fall accidentally kill him, the case would be one of murder1. But he appears to have drawn this severe doctrine merely from general language used in the old authorities; and there is, as he admits, no decision, nor even an express dictum of any judge, to be cited in support of it. In all the decided cases in which officers were killed, the actual means appear to have been intrinsically dangerous ones. Hence, in view of the modern tendency to narrow even the accepted rules as to constructive malice in murder, it may well be doubted whether the Court of Criminal Appeal would support this less definitely established doctrine. The existence of these six various forms of "murderous malice" shew it to be much wider than mere malice" in the popular sense, viz., ill-will; though much narrower than malice in the technical legal sense, viz., mens rea. Every intentional homicide is primâ facie presumed to have been committed with a murderous malice2; so that the defendant has the burden of shewing, if he can, that the circumstances were such as to reduce it to a manslaughter or a non-criminal homicide. But he may, of course, do this even by mere cross-examination of the Crown witnesses themselves. As regards the malice which is to be imputed to the various members of a group of wrong-doers when one of them commits a homicide, the rule is that, if several persons act together in pursuance of a common intent, every act done in furtherance of it by any one of them is, in law, done by all. Hence if persons have agreed to waylay a man and rob him, and they come together for the purpose armed with deadly weapons, and one of them happens to kill him, every member 1 Dig. Cr. Law, Art. 224. Illustration 11. 2 See Rex v. Thomas, 7 C. and P. 817; and the trial in Massachusetts, in 1850, of Prof. Webster, of Harvard University, for the murder of Dr Parkman (Bemis's Report, p. 457). Cf. 8 C. and P. 42, 117. of the gang is held guilty of the murder. But if their agreement had merely been to frighten the man, and then one of them went to the unexpected length of shooting him, such a murder would affect only the particular person by whom the shot was actually fired1. (6) A year and a day. "Day" is here added merely to indicate that the 365th day after that of the injury is to be included. Such an indication was rendered necessary by an old rule that, in reckoning a year from the doing of any act, the year was to be taken as beginning on the day on which this act was done". The doctrine that a charge of murder could not be sustained unless the death thus ensued within a limited period after the injury that caused it, was a wise precaution in view of the defectiveness of medical science in mediæval times. But no modern case seems to have arisen in which it has been judicially considered; and some medical writers have suggested that at the present day the Court of Criminal Appeal might be inclined to treat it rather as a rough practical warning to be given to juries than as a definite rule of law. Still Sir James Stephen, who was fully alive to the modern advances of medical jurisprudence, seems to have felt no doubt that the rule still retains its imperative character; and it was deliberately preserved by the framers of the draft Criminal Code of twenty years ago. The punishment of murder is death. In early times, those murders which constituted an act of petit-treason (e.g., where a person was murdered by his wife or servant, or a bishop by one of his clergy) received an enhanced punishment. The offender, instead of being taken in a cart to the scaffold, was dragged thither on a hurdle; and, if a woman, was not hanged but burned, as in the case of Catherine Hayes, in 1726, familiar to readers of Thackeray. By 31 Vict. 1 See Reg. v. Macklin, 2 Lewin 225 (K. S. C. 100). 2 Hob. 139. But now see Radclyffe v. Bartholomew, L. R. [1892] 1 Q. B. 161. c. 24, s. 2, every execution for murder must take place within the prison walls, before such persons only as the sheriff may admit. It should be noted that this enactment does not extend to the other three offences which still continue to be punishable with death, viz.:-treason, piracies that are accompanied by any act which endangers life1, and the arson of a royal dockyard or man-of-war2, or of any ship in the port of London. But, since 1828, petit-treason has been entirely assimilated to ordinary murder". As murder is so heinous an offence, the legislature has enacted severe penalties for even mere incipient approaches to it. Thus any conspiracy to murder, though it still remains only a misdemeanor, is by statute punishable with ten years' penal servitude", a far higher maximum of punishment than is allowed in the case of many felonies. And every attempt to commit a murder is now made by statute a felony, and is punishable with penal servitude for life. In concluding this subject, it may be added that murder affords a noteworthy exception to the general legal rule that "criminal jurisdiction is territorial"." Every nation tries and punishes all crimes committed in its own territory (or on its own ships), whether committed by its own subjects or by foreigners. Conversely, on the same principle, a nation usually does not concern itself with crimes committed anywhere else, even though committed by its own subjects. But to this latter branch of the rule, homicide has been made an exception in English law, by a succession of statutes commencing as far back as Henry VIII. The enactment now in force is 24 and 25 Vict. c. 100, s. 9; under which the courts of any part of the United Kingdom may try a British 1 7 Wm. IV. and 1 Vict. c. 88. 12 Geo. III. c. 24, s. 1; 7 and 8 Geo. IV. c. 28, ss. 6, 7. 39 Geo. III. c. 69, s. 104. 5 24 and 25 Vict. c. 100, s. 4. 49 Geo. IV. c. 31, s. 2. 6 Ibid. ss. 11, etc. ? Macleod v. Att.-Gen. of N. S. W., L. R. [1891] A. C. 455. subject for murder or manslaughter committed by him anywhere outside the United Kingdom, whether within or without the Empire, provided it were on land. The power thus does not extend to homicides committed on a foreign ship. It is immaterial whether the person killed were a British subject or not. (It may be convenient to add here that similarly bigamy, when committed by a British subject, even in a foreign country may, by virtue of s. 57 of the same statute, be tried in the United Kingdom.) CHAPTER X. OFFENCES AGAINST THE PERSON THAT ARE CRIMES of this class are of two sharply distinguished types, the sexual and the non-sexual; the one springing from lust, the other from anger. To these offences that are of the former type, a very brief reference will be sufficient for the purposes of the present volume. The medieval English law adopted, in all their entirety, the lofty ethical teachings of Christianity as to the mutual relations of the sexes. Those teachings are, for example, strictly followed by the common law in its doctrine of contract, when deciding what agreements shall be regarded as too immoral for the courts to enforce1. And the same teachings were enforced by punitive sanctions in the ecclesiastical courts; a jurisdiction which, though long obsolete in practice, has never been formally abolished'. But the common law had no penal prohibitions of similar comprehensiveness; its criminal rules taking cognisance only of those grosser breaches of sexual morality that were rendered peculiarly odious, either by the abnormality of the form they took, or by the violence with which they were accompanied; aggravations to which the legislature subsequently added that of the tender age of the female concerned in them. Hence, the voluntary illicit intercourse of the 1 Anson on Contracts, Part I. ch. 5, s. 1, e (8th ed. p. 248); Pollock on Contracts, ch. 6 (B). 2 Stephen, Dig. Cr. Law, Art. 170; Hist. Cr. Law, 11. 396-429. See the authorities cited arguendo in Phillimore v. Machon, L. R. 1 P. D. 481. 3 Stephen, Dig. Cr. Law, ch. XVIII. 4 Ibid. ch. xxix. |