HOMICIDE. 261 
by flat. 3 Car. I. c. 4, and by flat. 16 Car. I. c. 4, till ment air, againH his will, by reafon whereof'he died; 
f'ome other aft lhall be made touching the continuance or 1 Hawk. P.C.c. 31 : of the harlot, who laid her child un- 
difeontinuance thereof. It feems that, in point of fblid der leaves in an orchard, where a kite ftruck it and killed 
and l’ubftantial juftice, it cannot be laid that the mode of it; 1 Hawl. P. C. 432 : and of the parilh officers, who 
killing, whether by ftabbing, ftrangling, or ffiooting, can 
either extenuate or enhance the guilt; unlefs where, as 
in the cafe of poiloning, it carries with it an internal evi¬ 
dence of cool and deliberate malice. But the benignity 
of the law hath conftrued the ftatute fo favourably in be¬ 
half of the fubjeft, and lb Itriftly when againlt him, that the 
offence of (tabbing now Hands alinolt upon the lame foot¬ 
ing, as it did at the common law. Fojl. 299, 300. 
Murder is that (hocking crime, in which the blood 
of the innocent lufferer “ crieth unto heaven for ven¬ 
geance.” It is by lord Coke and Hawkins defined to be,- 
the killing a fellow-creature by lying in wait for him, 
with malice prepenjed. The killing may be by divers afts 
of cruelty and violence ; but of all fpecies of murder, the 
rand deteftable is that by poifon ; becaule it can be the 
leaft guarded againlt either by ma'nhood or forethought. 
And therefore, by Hat. 22 Hen. VIII. c. 9, it was made 
treajoii, and a more grevious and lingering kind of death 
was infiifted on it than the common law allowed; name¬ 
ly, boiling to death ; blit this aft did not live long, being 
repealed by Hat. 1 Edw. VI. ,c. 12 ; which declares, that 
all wilful killing by poiloning of any perfon, lhall be ad¬ 
judged wilful murder, of malice prepenled. 
There-was alfo, by the ancient common law, one fpe¬ 
cies of killing held to be murder, which may be du¬ 
bious at this day, iince there has not been an inftance 
wherein it hath been held to be murder for many ages 
paH ; namely by bearing falle witnefs againH another, 
with an exprefs premeditated defign to take away his i <*, 
fo as the innocent perfon be condemned and executed. 
Bratton, 1 . 3. c. 4. There is no doubt but this is equally 
murder in foro confeientiic as killing with a fword ; though 
the modern law (to avoid the danger of deterring wit- 
nelfes from giving evidence upon capital prolecutions, if 
it muft be at the peril of their own lives) has not pu- 
nilbed it a-s Inch. 3 Injf. 48. 
The ufage of fining the ville or the hundred fora mur¬ 
der, was common among the ancient Goths, in Sweden 
and Denmark, who fuppoled the neighbourhood, unlefs 
they produced the murderer, to have perpetrated, or at 
lealt connived at, the murder ; and, according to Brac- 
ton, it was introduced into this kingdom by Canute, to 
prevent his' countrymen the Danes from being privily 
murdered by the Englifh; and was afterwards continued 
by William the Conqnc'ror, for the like fecurity of his 
countrymen the Normans. Bratton, l. 3. tr. 2. c. 15. And 
therefore if, upon inquifition jhad, it appeared that the 
perfon (Iain was an Englilhman, (the prefentment where¬ 
of was denominated Englefcherie,) the county feems to have 
been excufed from this burthen. 
A gaoler, knowing a prifoner to be infefted with an 
epidemic diltemper, confines another prifone'r, againH his 
will, in the fame room with him, by which he catches' the 
infeftion, of which the gaoler had notice, and the prifoner 
dies; this is a felonious killing. Stra. 856. So to confine 
a prifoner in a low, damp, unwholefome, room, not allow¬ 
ing him the common conveniences which the decencies 
of nature require, by which the habits of his confiitution 
are fo affected as to produce a diltemper of which he dies ; 
this is alfo a felonious homicide. Ld.Raym. 1578. For al¬ 
though the law invefis ’gaolers with all the necelfary 
powers, for the intereH of the commonwealth, they are 
not to behave with the lealt degree of wanton cruelty to 
their prifoners. Ai’Sd t’nofe were deliberate afts of cru¬ 
elty, and enormous violations of the trult the law repofeth 
in its minilters of juftice. Fojl. 322. 
If a man commits an aft, of, which the probable confe- 
quence may be, and eventually is, death, fuch killing may 
be murder, although no Itroke be llruck, and though no 
killing may be primarily intended;- as was the cafe of the 
unnatural Ion, who exoofed his lick father to an incle- 
Vol.X. No. 658. 
Ihifted a cluld from panfii to parilh, till it died for want 
of cqre and luHenance ; Palm. 545. So all'o, in general, 
any one who, ail tuning to take care of another, refutes 
them necelfary lubfiHence, or by any other feverity, though 
not of a nature to produce immediate death, as by putting 
the party in fuch a lituation as may poffibly be dangerous 
to life or health, if death aftually and clearly enlues in 
confequence of it, it is murder. And this mode of killing 
is of the moH aggravated kind, becaule a long time mull 
unavoidably intervene before the death can happen, and 
alfo many opportunities of deliberation and retleftion. 
Old Bailey, Feb. Sjji. 1776. 
If a man hath a beall that is ufed to do mifehief; and 
he, knowing it, buffers it to go abroad, and it kills a man, 
even this is manflaughter in the owner; but if he had 
purpofely turned it lool’e, though barely to frighten peo¬ 
ple, it is as much murder as if he had incited a bear or 
dog to worry them. 1 Hal. P. C. 431. So he who wilfully 
neglefts to prevent a mifehief, which he may and ought 
to provide againH, is, in judgment of the law, the aftual 
caule of the damage which enlues ; and therefore if a man 
have an ox or horle, which he knows to be mil'chievous, 
by being u(ed to gore or ffrike at thofe who come near 
them, and do not tie them up, but leave them to their 
liberty, and they afterwards kill a man, according to fome 
opinions, the owner may be indifted, as having liimfelf 
killed.. him; and this is agreeable to the Molhical law. 
However, it is agreed by all, that fuch a perfon is guilty 
of a very grofs mildemeanor. Fitz. Corone 311. Exodus, ii. 
29.—But in order to make the killing murder, it is requi- 
lite that the party die within a year and a day after the 
Hroke received, or 'caule of death adminillered ; in the 
computation of which, the whole day upon which the 
hurt was done lhall be reckoned the lirlt. 1 Hawk. P. C. 
c- 3i- 
The killing of one who is both wounded and dies out 
of the realm, or wounded out of the realm and dies here, 
cannot be determined at common law, becaule' it cannot 
be tried by a jury of the neighbourhood where the. Fact 
was done. But it is agreed, that the death of one who is 
both wounded and dies beyond fea, and the death of him 
who dies here of a wound given there, may be heard anti "* 
determined before the conftable and marlhal, according 
to the civil law, if the king appoint a confiable for that 
purpofe. And it is clear that fuch a faft, being examined 
by the privy council, may, by force of Hat. 33 Hen. VIII. 
c. 23, he tried (in relation to the principal offenders, but 
not as to the-acceffories) before commiffioners appointed 
by tlje king, in any county of England. Co. Lit. 75. Cro. 
Car. 247. A commiffion was iffued againH captain Roche 
for killing Mr. Fergufon at the Cape of Good'Hope. 
Murder at fea was anciently cognifable'only by the ci¬ 
vil law; but now, by force of Hats. 27 Hen. VIII. c. 4, 
28 Hen. VIII. c. 15, it may be tried and determined be¬ 
fore the king’s commiffioners in any county of England, 
according to the courfe of the common law ; yet the death 
of one who is at land, of a wound received at fea, is nei¬ 
ther determinable at common law, nor by force of either 
of thefe Hatutes; but it may be tried by the conltable 
and marlhal, or before the commiffioners appointed in 
purluance of the aforelaid Hatute of 33 Hen. VIII. c. 23. 
The commiffioners to be appointed are the admiral, or - 
his deputy, and four more (among whom two common- 
law judges are conffantly appointed), the indiftment be¬ 
ing lirlt found by a grand jury, and afterwards tried by 
another jury. This is now the only method of trying 
marjne felonies in the court of admiralty ; the judge of. 
the admiralty Hill preliding therein, juft as the lord mayor 
prelides at the feffious in London. 4 Blackjl. Comm. 269. 
By Hat. 2 Geo. II. c. 21, it is enafted, that where any 
perfon lhall be felohioafly Hricken or poifoned upon the 
3 X - fea. 
