837 



MURDER. 



MURDER. 



of the amercement having been the protection of Danes, and afterwards 

 of the Normans, from assassination by the English. (Glanville; Reeves.) 



By the grant of " murdra," which is commonly found in ancient 

 charters of franchises, the right to receive these amercements within 

 the particular districts, passed from the crown to the grantee. Amerce- 

 ments for non-presentment of Englishry were abolished in 1340. by 

 14 Edw. III., st. 1, c. 4. 



As the law formerly stood, every destruction of human life, not 

 effected in this secret manner, with whatever circumstances of malig- 

 nity and cruelty it might be accomplished, was treated as simple homi- 

 cide. The law appears to have been gradually altered by the judges, 

 in order to reach atrocious criminals whose offences would not formerly 

 have been punishable as murder. As the law now stands, murder is 

 the destruction of human life, accompanied with an intention on the 

 part of the perpetrator of the offence to kill or do great bodily harm, 

 or wilfully to place human life in peril ; or resulting from an attempt 

 to commit some other felony ; or occurring in the course of resistance 

 offered to ministers or officers of justice, or others rightfully engaged 

 in carrying the law into execution. All other cases of culpable homi- 

 cide, in which death is produced involuntarily, but is occasioned by 

 want of due caution ; or where, though death is produced voluntarily, 

 the crime is extenuated by circumstances ; or where a minister or 

 officer of justice is killed, but sufficient authority did not exist, or was 

 not communicated to the party before the fatal blow was given ; or 

 where any other circumstances essential to the crime of murder are 

 wanting amount only to simple felonious homicide, or, as it is com- 

 monly called, without regard to the age or sex of the party killed, 

 manslaughter. 



The law recognises the right of taking away life in the necessary 

 defence of person or property, and it admits, in some cases, previous 

 provocation as an extenuation of the offence. On the other hand, it 

 makes special provision for the protection of officers and ministers of 

 justice, where the killing of such officer or minister, though culpable, 

 does not under the circumstances amount to murder. 



In the modern law of England the crime of murder is characterised 

 by having been committed with malice aforethought, or, as it is some- 

 times called prepense ; which term, though in its ordinary signification 

 it imports premeditation, has been extended to cases not only where 

 the offender acts from a motive of ill-will towards another, with an 

 express intention to destroy or injure him, but also where, without the 

 existence of express malice, it is considered necessary, on grounds of 

 policy, to punish homicide with the highest degree of severity. 



The term " malice aforethought " is therefore frequently applied to 

 a state of things in which no malice is felt in the ordinary sense of the 

 term, but is only malice in a legal sense, by construction of law. 



If A shoots at B with intent to kill him, but by mere accident kills 

 C, this is a killing from implied malice. If A, by throwing a heavy 

 stone from the roof of a house into the street in which he knows that 

 people are continually passing, kills B, a mere stranger, this also is a 

 killing from implied malice. 



Implied malice is however very loosely denned in the law of Eng- 

 land, if it can be said to be defined at all. It is stated, that the 

 existence of implied malice is a pure question of law, or a conclusion 

 of law to be drawn from all the circumstances of the case ; and it is 

 in some cases made to depend upon a very abstruse technical doctrine. 

 The existence or non-existence of a criminal intention, even where that 

 intention has no reference to any personal injury, but happens to be 

 accompanied with a killing which is altogether accidental, is made to con- 

 stitute the distinction between the higher and lower species of culpable 

 homicide ; and in other cases the existence of such criminal intention 

 brings even an accidental killing within the scope of manslaughter. 



Mr. Justice Foster says, " When the law maketh use of the term 

 ' malice aforethought,' as descriptive of the crime of murder, it is not 

 to be understood in that narrow restrained sense to which the modem 

 use of the term ' malice ' is apt to lead one, a principle of malevolence 

 to particulars ; for the law, by the term ' malice ' in this instance 

 meaneth, that the fact hath been attended with such circumstances as 

 are the ordinary symptoms of a wicked, depraved, and malignant spirit. 

 The malng animus, which is to be collected from all circumstances, and 

 of which the court, and not the jury, is to judge, is what bringeth the 

 offender within the denomination of wilful malicious murder. And I 

 believe most, if not all the cases which in our books are ranged under 

 the head of implied maliee, will, if carefully adverted to, be found to 

 turn upon this single point that the fact hath been attended with 

 such circumstances as carry in them plain indications of a heart regard- 

 less of social duty and fatally bent upon mischief." (' Discourse on 

 Homicide,' 256, 257.) 



This vague and figurative description of that which is propounded 

 as a legal definition appears to furnish us with no certain test of the 

 crime of murder. It amounts to no more than this : that, to consti- 

 tute the crime of murder, the act must have been attended with such 

 circumstances as in the opinion of the court, and not of the jury, are 

 " the ordinary symptoms of a wicked, depraved, and malignant spirit," 

 of " a heart regardless of social duty, and fatally bent upon mischief." 

 It is a description of that which is rather matter of fact than of law. 

 Tin: question in each particular case is, whether the party acted in 

 wanton and wicked disregard of the probable consequences of an act 

 tending to the destruction of human life ; which is an inference to be 



deduced from the evidence ; and in arriving at which no assistance can 

 be deVived from the application of mere technical rules. The presence 

 of that evil disposition of the mind of the offender which makes the 

 offence murder, is known only by evidence of an act or omission by 

 which human life is wilfully or wantonly exposed to peril. 



Every homicide is presumed to be malicious until the contrary be 

 shown. But upon the investigation, circumstances may transpire 

 which extenuate the offence, and reduce it from the crime of murder 

 to that of manslaughter ; or the act may appear to amount either to 

 justifiable or excusable homicide. In cases of justifiable homicide, and, 

 according to modern practice, in cases of excusable homicide, the party 

 causing the death is discharged from responsibility. 



To constitute legal homicide, the death must result from injury to 

 the pa-son (as contradistinguished from causes operating upon the 

 mind) occasioned by some act done by, or some unlawful omission 

 chargeable upon, the party to whom such homicide is imputed. The 

 terms " wilful omission " apply to every case of noneompliance with a 

 legal obligation which the party may be under, to supply food, clothing, 

 or to furnish any other assistance, or to do any other act, for the sup- 

 port of life or for the prevention of injury to it. It is not homicide 

 unless death take place within a year and a day after the injury; or, 

 in other words, it is not considered homicide when the party injured 

 survives a whole year, exclusive both of the day of the injury and of 

 the day of the death ; nor where the death is to be attributed to 

 unskilful treatment, or other causes not resulting from or aggravated 

 by the injury sustained. 



The law of homicide applies to the killing of aliens, except alien 

 enemies slain in the heat and in the exercise of war ; to felons, except 

 when executed according to law ; and to persons outlawed, whether 

 on civil or on criminal process. But a child in center ea mere (in its 

 mother's womb) is not a subject of homicide, unless, subsequently to 

 the injury, it be born alive, and die, within a year and a day from its 

 birth, from the injury received whilst yet unborn. [INFANTICIDE.] 



Criminal homicide is one of three kinds, murder, manslaughter, and 

 self-murder. [SUICIDE.] 



I. Murder is committed by : 



1. Voluntary homicide, without circumstances of justification, 



excuse, or extenuation. 



2. Involuntary homicide, residting from the commission of a 



felony, or from an attempt to commit felony. 



3. Homicide, whether voluntary or involuntary, committed in 



unlawfully resisting officers or ministers of the law, or other 

 persons lawfully acting for the advancement or in the execu- 

 tion of the law. 



II. Manslaughter consists in : 



1. Voluntary but extenuated homicide, committed in a state of 



provocation, arising from a sufficient cause. 



2. Involuntary homicide, not excused as being occasioned by mere 



misadventure. 

 This second class may be subdivided into : 



1. Involuntary homicide, resulting from some act done, or from 



the wilful omission to do some act, with intent to occasion 

 bodily harm. 



2. Involuntary homicide, resulting from some wrongful act done 



to the person. 



3. Involuntary homicide, in committing, or in attempting to 



commit, an offence attended with risk of injury to the person. 



4. Involuntary homicide, resulting from some act done without 



due caution, or from the unlawful omission to do some act. 



Homicide not criminal is : 



1. Justifiable, as done for the advancement or in the execution of 



the law ; or 



2. Excusable, as done for the defence of person or property ; or 



because it has, without the fault of the party, become neces- 

 sary for his preservation. 



The offence is extenuated where the act, being done under the 

 influence of excitement from sudden provocation, or of fear, or of 

 alarm, which may, for the time, suspend or weaken the power of 

 judgment and self-control, is attributable to transport of passion or 

 defect of judgment so occasioned, without any deliberate intention to 

 kill or do great bodily harm ; regard still being had to the nature and 

 extent of violence used by the party inflicting the injury which causes 

 death, as compared with the cause of provocation. The offence is not 

 extenuated where, the cause of provocation being but slight, a return 

 is made so excessive and disproportionate, that the killing cannot be 

 attributed to mere heat of blood arising from the provocation given. 



Homicide is neither justified nor extenuated by reason of any consent 

 given by the party killed, as in cases of duels. 



Homicide is justifiable, where the act is done ill a lawful manner, by 

 an officer or other person lawfully authorised, in execution of the 

 sentence of a court of competent jurisdiction. 



Homicide is justifiable, where an officer of justice, or other person 

 duly authorised to arrest, detaiu, or imprison for any felony or for any 

 dangerous wound given, and using lawful means for the purpose, 

 cannot, otherwise than by killing, overtake the party in case of flight, 



