HOMICIDE. 



homicide. Murder Is Hie killing of a person who is 

 tinder the protection ot the laws, with malice pre- 

 pen-e, either express or implied. Malice is the 

 distinguishing characteristic ot murder. It is not 

 ..iry. in order to constitute the crime ot murder, 

 that the slayer should have the direct intention of 

 killing. It the act be done with a wicked, depraved, 

 malignant spirit, a heart regardless of social duty and 

 iielil)erately bent upon mischief, it is characterized 

 by what the law denominates malice, though it may 

 not result from any enmity or grudge against the 

 particular v ictim. Thus, for instance, if a man re- 

 solves to kill the first person he may meet, a homi- 

 cide committed in pursuance of such a resolution, is 

 accompanied by the malice contemplated by the law 

 as the characteristic of murder, although the parties 

 may never have known each other. So if a man 

 wantonly discharges a gun among a multitude of 

 people, whereby any one is killed, the act will be 

 done with that depravity of disposition which the law 

 considers malice. Another instance of this intention 

 of murder is, the purposely or wantonly letting fall a 

 heavy body from the top of a house, or other height, 

 into the street, where people are known to be fre- 

 quently passing, and whereby any one is killed. The 

 very definition of this crime imports that, like all 

 other crimes, indeed, it can be committed only by a 

 free agent. The crime presupposes a will, motive, 

 or disposition, on the part of the perpetrator. Nor 

 will any mere threat so far take away his freedom of 

 action as to excuse him for killing a third party, 

 though the coercion used for this purpose might 

 exonerate him from a contract made under its in- 

 fluence. An idiot or insane person cannot commit 

 this crime. But drunkenness is, in general, no excuse 

 for homicide, though the act be done under its im- 

 mediate influence. But some judges have held, that 

 where a person had been so long in the habits of in- 

 temperance, as to cause the kind of insanity known 

 under the name of mania apotu, and was accordingly 

 subject to an established derangement of mind, an 

 act of homicide by such a person was not murder, 

 but that he was to be considered as insane, and not 

 responsible for crimes any more than if his mental 

 disorder had been caused by any other vice, or with- 

 out any fault on his part. 



The manner of killing is not material. Whether 

 it be by sword, poison, beating, imprisonment, starva- 

 tion, or exposure to the inclemency of the atmosphere, 

 it will be equally murder. A son, who cruelly and 

 unnaturally exposed his sick father to the open air 

 during inclement weather, whereby his death was 

 occasioned, was held to be guilty of murder ; and so 

 was a woman, who caused the death of her child by 

 leaving it in an orchard scantily covered by leaves, 

 whereby it perished ; and so, also, persons having 

 the care of a child, who caused its death by remov- 

 ing it from parish to parish without supplying it 

 sufficient sustenance. A master who compelled his 

 apprentice to sleep on boards, exposed to the atmo- 

 sphere, and thereby occasioned his death, was held to 

 be guilty of murder. This crime may be committed 

 by mere advice and encouragement. As to the per- 

 son on whom a murder may be committed, the Eng- 

 lish law books say it must be one " in the peace of 

 the king," that is, a person entitled to the protection 

 of the laws, as is one of the public enemy, if he is 

 in the country and not participating in the war. An 

 infant unborn is within the protection of the law, and 

 it is laid down, that if, in consequence of poison 

 given or wounds inflicted before the birth of a child, 

 which is afterwards born alive, it dies soon after its 

 birth, the act is murder. 



The act of suicide is considered by the law to be 

 murder, and the person making away with himself, is 



accordingly styled a self murderer; and the laws of 

 Great Britain have heretofore attempted to punish 

 this crime by directing that the body of a suicide 

 should be ignominiously buried. But this was only 

 punishing the surviving relatives and friends of the 

 deceased for his offence ; and though it should be 

 admitted to be a discouragement of suicide, it would 

 be a very questionable justification of the law. which 

 will appear from applying the same rule to any other 

 offence ; as, for instance, we may suppose that if a 

 man knew that all his relatives, friends, and neigh- 

 bours would be whipped for any theft he might com- 

 mit, he might thereby possibly be induced, from 

 motives of humanity, to refrain from thieving ; but 

 the chance of this salutary influence upon a vicious 

 mind, would hardly be a sufficient justification of the 

 law. These laws, inflicting punishment upon the 

 living by the ignominious sepulture of suicides, have 

 accordingly been very rarely put into execution, and 

 the laws themselves begin to disappear from the sta- 

 tute book. 



The lines of distinction between felonious and ex- 

 cusable or justifiable homicide, and between man- 

 slaughter and murder, are, in many cases, nice and 

 difficult to define with precision. But, in general, 

 the accused has the advantage of any uncertainty or 

 obscurity that may hang over his case, since the pre- 

 sumptions of law are usually in his favour. The 

 characteristic distinction laid down in the books be- 

 tween murder and manslaughter is the absence of 

 malice in the latter. Most of the instances of homi- 

 cide which come under the term manslaughter, are 

 those which the law considers excusable. Sudden 

 provocation may be an excuse for striking another 

 with the hand, or with a stick held in the hand, 

 without the intention to give a deadly blow, and 

 though death ensue, the party may not be guilty of 

 murder. It is made a question whether mere words, 

 unaccompanied by acts, such as menacing gestures, 

 are a sufficient provocation to justify a blow or vio- 

 lence which results in homicide. Where a person, 

 whose pocket was picked in a crowd, to avenge him- 

 self threw the pickpocket into a neighbouring pond, 

 intending only to duck him, and the man was drowned, 

 it was held to be only manslaughter. For though a 

 bodily harm was intended, yet the injury which ap- 

 peared likely to result from the act, was not greater 

 than the provocation seemed to excuse, or at least 

 palliate. One circumstance, showing the degree of 

 malice, or, rather, showing its presence or absence, 

 is the kind of weapon used in giving a wound on a 

 sudden provocation ; and another circumstance of 

 importance is the fact of the weapon's being already 

 in the hand or not, for going to seek a weapon gives 

 time for deliberation. The ground of excuse of 

 homicide, in case of provocation merely, is the sup- 

 posed sudden passion, some influence of which the 

 law concedes to the frailty of human nature. But 

 the excuse of self-defence goes still further ; and 

 where a man is attacked, so that his own life is en- 

 dangered, or in such way that he may reasonably 

 suppose it to be so, he may repel the attack with 

 mortal weapons. One of the most frequent cases of 

 manslaughter is that occasioned by single combat ; 

 and on account of the firm hold which the point of 

 honour has taken of the civilized nations of the west, 

 this has long been among the most difficult subjects 

 of legislation. See Duel. 



The crime of murder, in its most aggravated de- 

 gree, is punished with death throughout the civilized 

 world; and, in England and the greater part of the 

 United States of America, this crime is so punished with- 

 out exception. But in Pennsylvania and some other 

 of the states, only murder in the first degree, that is, 

 with deliberate intent,or committed with circumstances 



