was accessory before the fact to her taking it for that purpose:-Held that the prisoner was not guilty of murder. (a)

Where, on an indictment for murder, the evidence of the medical man who examined the body went to show that he had not at all examined the brain, and that he examined the organs of the abdomen, without cutting into any of them: that the fact of his having found the common carotid artery and jugular vein severed, left him in no doubt but that such severance had caused the death. Being asked, on cross-examination, if he had examined the cavity of the head, might not such examination have revealed some other cause of death? he replied: "There might have been, but the probabilities are against it."

It was contended that the Crown was bound tɔ give the best evidence the case admitted of as to the cause of death, and that, in the present advanced state of medical science, the Crown should have placed itself, by medical examination of the brain, in a position to negative, beyond all reasonable doubt, the hypothesis of death from any other cause than that alleged-Held that the evidence was sufficient to justify a conviction. (b)

It was formerly necessary, in an indictment for murder, to set forth the manner in which, or the means by which, the death of the deceased was caused; and where an indictment charged the prisoner, being the mother of an infant of tender age, and unable to take care of itself, with feloniously placing it upon the shore of a river, in an exposed situation, where it was liable to fall into the water, and abandoning it there, with intent that it should perish, by means of which exposure the child fell into

(a) Reg. v. Fretwell, 9 U. C. L. J. 138; L. & C. 161; 31 L. J. (M.. C.) 145. b Reg. v. Downey, 13 L. C. J. 193.

the river, and was suffocated and drowned, of which suffocation, etc., the child died:-Held that, to support the indictment, it was necessary to prove that the death was caused by drowning or suffocation. (a)

The 32 & 33 Vic., c. 20, s. 6, provides that it shall not be necessary, in any indictment for murder or manslaughter, to set forth the manner in which, or the means by which, the death of the deceased was caused; but it shall be sufficient, in any indictment for murder, to charge that the defendant did feloniously, wilfully, and of his malice aforethought, kill and murder the deceased; and it shall be sufficient, in any indictment for manslaughter, to charge that the defendant did feloniously kill and slay the deceased.

It is necessary, in an indictment for murder, to state that the act by which the death was occasioned was done feloniously, and especially that it was done of malice aforethought, and it must also be stated that the prisoner murdered the deceased. (b)

The word "murder" in the indictment is emphatically a term of art, (c) and it would be insufficient, in an indictment for murder, to state that the party did wilfully, maliciously, and feloniously, stab and kill, because it is equally indispensable to use the artificial term "murder" as it is to state that the offence was committed of " malice aforethought." The omission of either one of these expressions would render the prisoner liable to a conviction for manslaughter only. (d)

In an indictment for wounding, with intent to murder, the offence must be charged to have been committed by the prisoner wilfully, malicionsly, and of his malice afore

(a) Reg. v. Fennety, 3 Allen, 132.

(b) Re Anderson, 11 U. C. C. P. 62, per Richards, C. J. See also 32 & 33 Vic. c. 29, s. 27, and Sched. A.

(c) Ib. 69.

(db. 53.

thought, and judgment will be arrested when the indictment is defective in this respect. (a)

The punishment of murder is death. (b) C. 29 of this Act, s. 106, et seq. prescribe the manner in which sentence of death is to be executed.

Manslaughter.-The general definition of manslaughter is the unlawful and felonious killing of another, without any malice, either express or implied. (c) It is of two kinds :-(1) Involuntary manslaughter, where a man doing an unlawful act, not amounting to felony, by accident kills another, or where a man, by culpable neglect of a duty imposed upon him, is the cause of the death of of another. (2) Voluntary manslaughter is where, upon a sudden quarrel, two persons fight, and one of them kills the other, or where a man greatly provokes another, by some personal violence, etc., and the other immediately kills him. (d)

Manslaughter is distinguished from murder in wanting the ingredient of malice; and it may be generally stated that, where the circumstances negative the existence of malice, in the legal sense, and the killing is unlawful and felonious, it will amount to manslaughter.

In a case where the deceased, who complained of being robbed suddenly, and, without authority or license. entered the house where the prisoner lodged. The latter was in a bed-room below stairs, not armed with any deadly weapon, but having the fragment of a brick, and the back of a chair, in his hands. He then immediately retreated up stairs, and the deceased asked the prisoner, who was standing at the top of the stairs, if he had got his (deceased's) money, to which the prisoner

(a) Kerr v. Reg., 2 Rev. Critique, 238.

(b) 32 & 33 Vic. c. 20, s. 1.

(c) Re Anderson, 11 U. C. C. P. 63, per Richards, J. (d) Arch. Cr. Pldg. 623.

replied "If you come bothering me about your money, I will do something to you," and immediately threw out of his hand a piece of iron, about four or five feet long, being the handle of a frying-pan, which struck the deceased on the head, and fractured his skull. The whole transaction occupied only a few seconds, and was done in passion. In the opinion of the Judges, this was only a case of manslaughter. (a)

The general doctrine seems well established, that that which constitutes murder, when of malice aforethought, constitutes manslaughter when arising from culpable negligence. (b) And it would seem that the doctrine of contributory negligence cannot apply so as to justify the prisoner. (c)

It is culpable negligence for one who has a right to turn out horses on a common, intersected by public paths, which he knows are unenclosed, to turn out a vicious horse, knowing the propensities of the animal to kick, so that it may kick persons passing along or close to the paths on the common; and where a child, standing upon a common, close to a public path, was kicked by a vicious horse so turned out, and death ensued, the prisoner, who turned him out, was held guilty of manslaughter. It would seem that if the child, at the time she was kicked, had been upon a part of the common more remote from the path, the prisoner's offence would have been the same, sed quære as to this. (d)

The case for the prosecution was that the deceased, being the domestic servant of the prisoner, who kept a lodging-house, had died in consequence of insufficient

(a) Reg. v. Kennedy, 2 Thomson, 203.

(b) Reg. v. Hughes, 3 U. C. L. J., 153; 29 L. T. Rep. 266; Dears. & B. 248; 26 L. J. (M. C.) 202.

(c) See Reg. v. Dant, infra; Reg. v. Swindall, 2 C. & K. 230; Reg. v. Hutchinson, 9 Cox, 555; but see R. v. Berchall, 4 F. & F. 1087.

(d) Reg. v. Dant, 13 W. R. 663; L. & C. 567; 34 L. J. (M. C.) 119.

food and unwholesome lodging provided for her by the prisoner, or of the combined effect of those things, and a course of ill-treatment. It appeared, upon the evidence, that the deceased was a person of low intellect, and who had lived for about eighteen months in the service of the prisoner; that during the whole of that time she had been very cruelly treated, badly lodged, and badly fed, by the prisoner; that on the 21st of February, 1865, she had been taken to her aunt's by a person who was not called as a witness, and had died in the workhouse, on the 27th of the same month, from the effects of insufficient nourishment. But it also appeared that she was twentythree years of age when she entered the prisoner's service; that she had acted rationally as a servant, and had occasionally gone out on errands; that in August her aunt had given the prisoner warning for her, but that, upon the prisoner saying that she had agreed to stay on, her mother and aunt had allowed her to do so; about, and opened the door to a witness, on the 13th of February; and that, when she came to her aunt's, on the 21st of February, she was on foot. The Judge, in summing up, drew the attention of the jury to the distinction between the cases of children, apprentices and lunatics, under the care of persons bound to provide for them, and the case of a servant of full age, and directed them that, if they were satisfied upon the evidence that the prisoner had culpably neglected to supply sufficient food and lodging to the deceased during a time when, being in the prisoner's service, she was reduced to such an enfeebled state of body and mind as to be helpless, or was under the dominion and restraint of the prisoner, and unable to withdraw herself from her control, and that her death was caused or accelerated by such neglect, they might find her guilty:- Held that the direction was

that she was