lawfully" there, it must be shown by direct evidence that he had not the permission either of the tenant or landlord; the jury found the prisoner guilty, and unless the particular proof suggested was necessary, there was abundant evidence, not merely that the prisoner and those with him were on the land, but also in their conduct that they were unlawfully there; and upon a case reserved, it was held that the conviction was right. If persons are found at night armed and using violence to keepers, it cannot be necessary to call the tenant of the land or the owner to prove they were not there by permission.(z) (2) Reg. v. Wood, D. & B. C. C. 1. *BOOK THE THIRD. OF OFFENCES AGAINST THE PERSONS OF INDIVIDUALS. CHAPTER THE FIRST. [*667 OF MURDER. MURDER is the killing any person under the King's peace, with malice prepense or aforethought, either express or implied by law. (a) Of this description the malice prepense, malitia præcogitata, is the chief characteristic, the grand criterion by which murder is to be distinguished from any other species of homicide;(b) and it will therefore be necessary to inquire concerning the cases in which such malice has been held to exist. It should, however, be observed, that when the law makes use of the term malice aforethought as descriptive of the crime of murder, it is not to be understood merely in the sense of a principle of malevolence to particulars, but as meaning that the fact has been attended with such circumstances as are the ordinary symptoms of a wicked, depraved, and malignant spirit; a heart regardless of social duty, and deliberately bent upon mischief. (c) And in general any formed design of doing mischief may be called malice; and therefore not such killing only as proceeds from premeditated hatred or revenge against the person killed; but also, in many other cases, such killing as is accompanied with circumstances that show the heart to be perversely wicked, is adjudged to be of malice prepense, and consequently murder. (d)1 Malice may be either express or implied by law. Express malice is, when one person kills another with a sedate deliberate mind and formed design: such formed design being evidenced by external circumstances, discovering the inward intention; as (a) 3 Inst. 47, 51; 1 Hale 424, 448, 449; 1 Hawk. P. C. c. 31, s. 3.; Kel. 127; Fost. 256; 2 Lord Raym. 1487; 4 Blac. Com. 198; 1 East P. C. c. 5, s. 2, p. 214. (b) 4 Blac. Com. 198; Gastineaux's case, 1 Leach 417. (e) Fost. 256, 262. (d) 1 Hawk. P. C. c. 31, s. 18; Fost 257; 1 Hale 451 to 454. 1 In many of the United States, murder has been divided by statute into two degrees. The first alone is punished with death. Murder in the first degree in general is that which is accompanied with a deliberate intent to take life. All other kinds of murder or malicious homicide are murder in the second degree. The cases upon this subject are very numerous, and need not be here cited. It will be sufficient to refer to those cases in which the character of the deliberation is considered. In general no time is necessary-deliberation for a moment is held sufficient. But the state of the actor's mind is always to be taken into the consideration, and so drunkenness may be an important element. The character of the weapon, whether deadly in itself or not, is also an important element: Comm. v. Drum, 8 P. F. Smith 9; State v. Hoyt, 13 Minn. 132; Lanergass v. People, 50 Barb. 266; Lewis r. State, 3 Head. 127; M Adams v. State, 25 Ark. 405; M'Kenzie v. State, 26 Ibid. 334; Herrin v. State, 33 Tex. 638; Donnelly v. State, 2 Dutch. 463, 601; State v. Shoults, 24 Mo. 128; Jordan v. State, 10 Tex. 479; Sullivan v. People, 1 Parker C. R. 347; Kilpatrick D. Comm., 7 Casey 198; People v. Moon, 8 Cal. 90; Fahnestock v. State, 23 Ind. 231; Keenan v. Comm., 8 Wright 55; Fouts v. State, 4 Greene 500; Atkinson v. State, 20 Tex. 522; State v. M'Donnell, 32 Verm. 491; Sanchez v. People, 22 N. Y. 147; Warren v. Comm., 1 Wright 45; Resp v. Mulatto Bob, 4 Dall. 146; Comm. v. Green, 1 Ashm. 289; People v. Clark, 3 Seld. 385. The Act of the Legislature dividing the offence of murder into two classes does not change the common law offence of murder so as to require a different structure of the charging part of the indictment as to the malicious intent: Gehrke v. State, 13 Texas lying in wait, antecedent menaces, former grudges, and concerted schemes to do the party some bodily harm. (e) And malice is implied by law from any deliberate cruel act committed by one person against another, however sudden :(ƒ) thus where a man kills another suddenly without any, or without a considerable provocation, the law *668] implies malice; for no person, unless of an *abandoned heart, would be guilty of such an act upon a slight or no apparent cause.(g) So if a man wilfully poisons another; in such a deliberate act the law presumes malice, though no particular enmity can be proved. (h) And where one is killed in consequence of such a wilful act as shows the person by whom it is committed to be an enemy to all mankind, the law will infer a general malice from such depraved inclination to mischief.(?) And it should be observed as a general rule, that all homicide is presumed to be malicious, and of course amounting to murder, until the contrary appears, from circumstances of alleviation, excuse, or justification:(k) and that it is incumbent upon the (e) 1 Hale 451; 4 Blac. Com. 199. (g) 4 Blac. Com. 200. (f) East P. C. c. 5, s. 2, p. 215. (i) 1 Hale 474; Hawk. P. C. c. 29, s. 12; 4 Blac. Com. 200; 1 East P. C. c. 5, s. 18. Malitia, in its proper or legal sense, is different from that sense which it bears in common speech. In common acceptation it signifies a desire of revenge, or a settled anger against a particular person but this is not the legal sense; and Lord Holt, C. J., says: "Some have been led into mistakes by not well considering what the passion of malice is; they have construed it to be a rancour of mind lodged in the person killing for some considerable time before the commission of the fact, which is a mistake, arising from the not well distinguishing between hatred and malice. Envy, hatred, and malice are three distinct passions of the mind:" Kel. 127. Amongst the Romans, and in the civil law, malitia appears to have imported a mixture of fraud, and of that which is opposite to simplicity and honesty. Cicero speaks of it (De Nat. Deor. Lib. 3, s. 30) as "versuta et fallax nocendi ratio;" and in another work (De Offic. Lib. 3, s. 18) he says, "mihi quidem etiam veræ hæreditates non honestæ videntur si sint malitiosis (i. e. according to Pearce, a malo animo profectis) blanditiis officiorum; non veritate, sed simulatione quæsitæ." And see Dig. Lib. 2, Tit. 13, Lex 8, where, in speaking of a banker or cashier giving his accounts, it is said, "Ubi exigitur argentarius rationes edere, tunc punitur cum dolo malo non exhibet. *** Dolo malo autem non edit, et qui malitiose edidit, et qui in totum non edit.” Amongst us malice is a term of law importing directly wickedness, and excluding a just cause or excuse. Thus Lord Coke, in his comment on the words per malititiam, says, "if one be appealed of murder, and it is found by verdict that he killed the party se defendendo, this shall not be said to be per malititiam, because he had a just cause:" 2 Inst. 384. And where the statutes speak of a prisoner on his arraignment standing mute of malice, the word clearly cannot be understood in its common acceptation of anger or desire of revenge against another. Thus where the 25 Hen. 8, c. 3, says, that persons arraigned of petit treason, &c., standing "mute of malice or froward mind," or challenging, &c., shall be excluded from clergy, the word malice, explained by the accompanying words, seems to signify a wickedness or frowardness of mind in refusing to submit to the course of justice, in opposition to cases where some just cause may be assigned for the silence, as that it proceeds from madness, or some other disability or distemper. And in the statute 21 Edw. 1, De malefactoribus in parcis, trespassers are mentioned who shall not yield themselves to the foresters, &c., but "immo malitiam suam prosequendum et continuando," shall fly or stand upon their defence. And where the question of malice has arisen in cases of homicide, the matter for consideration has been (as will be seen in the course of the present and subsequent chapters) whether the act were done with or without just cause or excuse; so that it has been suggested (Chapple, J., MS., Sum.) that what is usually called malice implied by the law would perhaps be expressed more intelligibly and familiarly to the understanding if it were called malice in a legal sense. Malice, "in its legal sense, denotes a wrongful act done intentionally without just cause or excuse:" per Littledale, J., M'Pherson v. Daniels, 10 B. & C. 272 (21 E. C. L. R.), and approved by Cresswell, J., as the more intelligible expression in Reg v. Noon, 6 Cox C. C. 137. "We must settle what is meant by the term malice. The legal import of this term differs from its acceptation in common conversation. It is not, as in ordinary speech, only an expression of hatred and ill-will to an individual, but means any wicked or mischievous intention of the mind. Thus in the crime of murder, which is always stated in the indictment to be committed with malice aforethought, it is neither necessary in support of such indictment to show that the prisoner had any enmity to the deceased, nor would proof of absence of ill-will furnish the accused with any defence, when it is proved that the act of killing was intentional, and done without any justifiable cause :" per Best, J., Rex v. Harvey, 2 B. & C. 268 (9 E. C. L. R.). (k) 4 Blac. Com. 201. In Rex v. Greenacre, 8 C. & P. 35 (34 E. C. L. R.), Tindal, C. J., said, "where it appears that one person's death has been occasioned by the hand of another, it behoves that other to show from evidence, or by inference from the circum *prisoner to make out such circumstances to the satisfaction of the Court and [*669 jury, unless they arise out of the evidence produced against him (7) It should also be remarked that, where the defence rests upon some violent provocation, it will not avail, however grievous such provocation may have been, if it appears that there was an interval of reflection, or a reasonable time for the blood to have cooled before the deadly purpose was effected. And provocation will be no answer to proof of express malice; so that if, upon a provocation received, one party deliberately and advisedly denounce vengeance against the other, as by declaring that he will have his blood, or the like, and afterwards carry his design into execution, he will be guilty of murder; although the death happened so recently after the provocation as that the law might, apart from such evidence of express malice, have imputed the act to unadvised passion. (m) But where fresh provocation intervenes between preconceived malice and the death, it ought clearly to appear that the killing was upon the antecedent malice; for if there be an old quarrel between A. and B., and they are reconciled again, and then, upon a new and sudden falling out, A. kills B., this is not murder.(n) It is not to be presumed that the parties fought upon the old grudge, unless it appear from the whole circumstances of the fact :(0) but if upon the circumstances it should appear that the reconciliation was but pretended or counterfeit, and that the hurt done was upon the score of the old malice, then such killing will be murder.(p) On an indictment for murder it appeared that the deceased died of a wound inflicted in her chest with a knife; there was no evidence of any dispute; the prisoner asserted that she had killed herself, and this was his defence. The jury found the prisoner guilty, "but we believe it was done without premeditation." Byles J., re stances of the case, that the offence is of a mitigated character, or does not amount to the crime of murder." Coleridge and Coltman, JJ., præsentibus. (1) Fost. 255; 4 Blac. Com. 201; 1 East P. C. c. 5, s. 12, p. 224. (n) 1 Hale 451. 1 Every homicide is presumed to be malicious until the contrary appears: Comm. v. York, 9 Metc. 93; State v. Johnson, 3 Jones (Law) 266; Green v. State, 28 Miss. 687; Atkins v. State, 16 Ark. 568; People v. March, 6 Cal. 543; State v. Knight, 43 Maine 11. But see Coffee v. State, 3 Yerg. 283. It is sufficient to constitute murder, that it appear that malice existed at the time of the killing, without regard to the time which it had before existed: Green v. State, 13 Mo. 382. But ill-will towards the deceased personally is not necessary: Revel v. State, 26 Geo. 275. The rule of law is: that a man shall be taken to intend that which he does; or which is the immediate or necessary consequence of his act. A mortal wound given with a deadly weapon, in the previous possession of the slayer, without any or upon very slight provocation, is, primâ facie, wilful, deliberate, and premeditated killing; and throws upon the prisoner the necessity of proving extenuating circumstances: Hill's case, 2 Gratt. 594. If the act of a person which produces the death of another be attended with such circumstances as are the ordinary symptoms of a wicked, depraved and malignant spirit, the law from these circumstances will imply malice, without reference to what was passing in the person's mind at the time he committed the act: State v. Smith, 2 Strobh. 77. Where the prisoner fired a loaded pistol at a person on horseback, and declared that he did so only with the intention to cause the horse to throw him, and the ball took effect on another person and produced his death, it was held that the crime was murder: Ibid. A blow with a dangerous weapon calculated to produce, and actually producing death, if struck without such provocation as reduces the crime to manslaughter, is deemed by the law malicious, and the killing is murder: United States v. M'Glue, 1 Curtis C. C. 1. For other cases upon the subject of evidence of malice see Comm. v. Vaughan, 9 Cush. 594; Jones v. State, 29 Geo. 594; Lingo v. State, Ibid. 470; State v. Schoenwald, 31 Mo. 147; Bristow's case, 15 Gratt. 634; State v. Hogue, 6 Jones (Law) 381; Dazier v. State, 26 Geo. 156; Maher r. People, 10 Mich. 212; Ex parte Wray, 30 Miss. 673; McCoy v. State, 25 Texas 33; People v. Barry, 31 Cal. 557; Murphy v. People, 37 Ill. 447; State v. Bonds, 2 Nev. 265; Ake v. State, 30 Tex. 466; Moore v. State, 31 Ibid. 392; M Millan v. State, 35 Geo. 54; Clarke v. State, Ibid. 75; Warren v. State, 4 Cold. 130; State v. Brown, 12 Minn. 538; Comm. v. Drum, 8 P. F Smith 9; State v. Willis, 63 N. C. 26; Holland v. State, 12 Fla. 117; U. S. v. Mingo, 2 Curt. C. C. 1; U. S. v. Armstrong, Ibid. 446; Comm. v. Hawkins, 3 Gray 463; Comm. v. Fox, 7 Ibid. 585; State v. Harrison, 5 Jones (Law) 115; State v Johnson, Ibid. 247; State v. Gentry, Ibid. 406; People v. Kirby, 2 Parker C. R. 28; Murphy v. State, 1 Ala. (S. C.) 48; Comm. v. Macloon, 101 Mass. 1. fused to receive this verdict, and told the jury that "to reduce the crime to manslaughter, it must be shown that there was provocation at the time, and provocation of a serious nature. The prosecutor is not bound to prove that the homicide was committed from malice prepense. If the homicide be proved, the law presumes malice; and although that may be rebutted by evidence, no such attempt has been made here. The defence is that the woman took her own life. The question for you is, did the prisoner take his wife's life or not? If he did it was murder."(pp) Where knowledge of some fact is necessary to make a killing murder, those of a party who have the knowledge will be guilty of murder, and those who have it not of manslaughter only. If A. assault B. of malice, and they fight, and A.'s servant come in aid of his master, and B. be killed, A. is guilty of murder; but the servant, if he knew not of A.'s malice, is guilty of manslaughter only. (q) The person committing the crime must be a free agent, and not subject to actual force at the time the act is done: thus if A. by force take the arm of B. in which is a weapon, and therewith kill C., A. is guilty of murder, but not B. But if it be only a moral force put upon B., as by threatening him with duress or imprisonment, or even by an assault to the peril of his life, in order to compel him to kill C., it is no legal excuse.(r) If, however, A. procures B., an idiot, or lunatic, to kill C., A. is guilty of the murder as principal, and B. is merely an instrument.(s) So if A. lay a trap or pitfall for B., whereby B. is killed, A. is guilty of the murder as a principal in the first degree, the trap or pitfall being only the instrument of death.() If one persuade another to kill himself, the adviser is guilty of murder ;(u) and if the party takes poison himself by the persuasion of another, in the absence *670] of the persuader, yet it is a killing by the persuader; and he is principal in it, though absent at the taking of the poison.(v) And he who kills another upon his desire or command is, in the judgment of the law, as much a murderer as if he had done it merely of his own head. (w)1 A girl of thirteen years of age was indicted for the murder of an infant ten weeks old. She had bought a threepenny packet of " Battle's Vermin Killer," saying that her mistress had sent her for it, which was false. "Battle's Vermin Killer" is a powder containing about three-quarters of a grain of strychnine in the threepenny packet. When she was told that a coroner's inquest would be held, she asked, “Will they know whether it's poisoned or not?" and being answered "They will," she said, "How can they know? they are only men like master." She afterwards asked whether they would commit her to prison? and thereon a person said, “Surely you have not poisoned anything?" The prisoner said, "I have given it poison, but I did not think it would kill it so soon." Being asked whether she gave the poison in liquid or powder, she said, "In powder;" and being asked why, she said, “Because I was tired of lugging the child about." It was urged that it was not proved that the prisoner had capacity to commit the crime, or had acted with deliberate malice. Pollock, C. B., "The crimes of murder and manslaughter are, in some instances, (pp) Reg. v. Maloney, 9 Cox C. C. 6. (2) 1 Hale 446; Plowd. 100, post, p. 706. (r) 1 Hale 433; Dalt. c 145, p. 473; 1 East P. C. c. 5, s. 12, p. 225. (s) 1 East P. C. c. 5, s. 14, p. 228; 1 Hawk. P. C. c. 31, s. 7. (t) 4 Blac. Com. 35. (u) If present when he kills himself; but if absent, he is an accessory before the fact. See Rex v. Russell, R. & M. C. C. R. 356, ante, p. 71. C. S. G. (v) 1 Hale 431; Vaux's case, 4 Rep. 44 b. Provided the party taking knew not that it was poison. C. S. G. (w) 1 Hawk. P. C. c. 27, s. 6; Sawyer's case, Old Bailey, May, 1815, MS., s. P. And see Rex v. Dyson, post, p. 705. 1 If one counsel another to commit suicide, and the other by reason of the advice kills himself, the adviser is guilty of murder as a principal: Comm. v. Bowen, 13 Mass. 356. Where a judge charged that if one person inflicts a mortal wound, and while the wounded person is languishing, another person kills him by an independent act, the former is guilty of murder, it was held to be error: State v. Scates, 5 Jones (Law) 420; Comm. v. Fox, 7 Gray 585. All are alike guilty of homicide, who conspire to do an unlawful act where death follows the prosecution of the common object, although some are not present: Brennan v. People, 15 Ill. 511. |