3 Inst. 50.

1 Hal. P. C.

433.

3 Inst. 50.

80.

But see 1 Hal.
P. C. 433.

Foster, 256. 2 Roll. Rep. 461.

kill an alien, a Jew, or an outlaw, who are under the king's peace and protection, is murder. To kill a child in its mother's womb is no murder, but a great misprision; but if the child be born alive and die by reason of the potion or bruises it received in the womb, it is murder in such as administered or gave them. And the statute 21 Jac. 1, c. 27 (k), provides for 1 Hawk. P. C. the case of the murder of bastard children by the mother. The killing must be committed with malice aforethought. And this malice prepense, malitia precogitata, is not so properly spite or malevolence to the deceased in particular, as any evil design in general; the dictate of a wicked, depraved, and malignant heart; un disposition à faire un mal chose; and it may be either express or implied in law. If even upon a sudden provocation one beats another in a cruel and unusual manner, so that he dies, though he did not intend his death, yet he is guilty of murder by express malice; that is by an express evil design, the genuine sense of malitia. Nor shall he be guilty of a less crime who kills another in consequence of such a wilful act as shews him to be an enemy to all mankind in general; as coolly 1 Hawk. P. C. discharging a gun among a multitude of people. And if two or more come together to do an unlawful act against the king's peace, of which the probable consequences might be bloodshed, as to beat a man, to commit a riot, or to rob a park, and one of them kills a man, it is murder in them all, because of the unlawful act, the malitia precogitata, or evil intended beforehand.

74.

Ibid. 84.

The law presumes malice unless the con

trary is proved.

1 Hal. P. C.

455.

In many cases, where no malice is expressed, the law will imply it as where a man wilfully poisons another, in such a deliberate act the law presumes malice, though no particular enmity can be proved. And if a man kills another suddenly without any or without considerable provocation, the law 1 Hawk. P. C. implies malice. No affront by words or gestures only, is a sufficient provocation, so as to excuse or extenuate such acts of violence as manifestly endanger the life of another. But if the person so provoked, beats the other in such a manner as shews only an intention to chastise, and not to kill, and he

82.

1 Hal. P. C. 455, 456.

entertained the least doubt of this position, I might fortify it by referring to the opinion of Lord Ellenborough, in R. v. Williamson." And see Archbold's Criminal Pleading and Evid. by Jervis, 7th ed. 389.

(k) Repealed by 9 Geo. 4, c. 31; also repealed as to this offence by 7 Wm. 4, and 1 Vict. c. 85, which by s. 6, declares the offence felony, and the punishment transportation or imprisonment; see ante note (h) p. 540.

457.

Foster, 308,

dies of the injuries it is manslaughter only; the law considering Foster, 291. the provocation. If one kills an officer of justice, either civil or criminal, in the execution of his duty, or any of his assistants endeavouring to conserve the peace, or any private person endeavouring to suppress an affray, or apprehend a felon, knowing his authority, or the intention with which he inter- 1 Hal. P. C. poses, the law will imply malice, and the killer shall be guilty of murder. And if one intends to do another felony, and undesignedly kills a man, this is murder. Thus if one shoots 1 Hal. P. C. at A. and misses him, but kills B., this is murder; because of 465. the previous felonious intent which the law transfers from one to the other. If one lays poison for A., and B. against whom the prisoner had no malicious intent, takes it, and it kills him, this is murder. And if one gives a woman medicine to procure Ibid. 466. abortion, and it kills the woman, it is murder in the person

&c.

who gave it. And we may take it for a general rule that all Ibid. 429. homicide is malicious and amounts to murder, unless justified by the command or permission of the law; excused on account of accident or self-preservation: or alleviated into manslaughter, by being either the involuntary consequence of some act, not strictly lawful, or if voluntary, occasioned by some sudden and sufficiently violent provocation. And all these circumstances of justification, excuse, or alleviation, it is incumbent upon the prisoner to make out to the satisfaction of the court and jury, the latter of whom are to decide whether the circumstances alleged, are proved to have actually existed; the former how far they extend to take away or mitigate the guilt; for all homicide is presumed to be malicious until the contrary Fost. 255. appears upon evidence.

The punishment of murder and manslaughter is provided The punishfor by statute (1).

ment.

Petit treason, according to 25 Edw. 3, c. 2, might, until Petit treason. abolished, happen three ways; by a servant killing his master, a wife her husband, or an ecclesiastical person, either secular or regular, his superior, to whom he owed faith and obedience (m).

(1) The act 9 Geo. 4, c. 31, s. 9, prescribes the punishment for manslaughter, see ante, note (ƒ) p. 539; and by s. 3, every person convicted of murder, or being an accessary before the fact to murder, shall suffer death as a felon; and every accessary after the fact shall be liable, at the discretion of the court, to be transported for life, or to be imprisoned with or without hard labour for not exceeding four years.

(m) By 9 Geo. 4, c. 31, s. 2, every offence which before the act would have amounted to petit treason, shall be deemed to be murder only, and no greater offence; and all persons guilty in respect thereof, whether as principals or as accessaries, shall be dealt with, indicted, tried, and punished as principals and accessaries in murder.

CHAPTER XV.

Crimes affect

ing the persons

of individuals.

Mayhem.

Maliciously shooting. Abduction.

1 Hal. P. C. 660.

109.

OF OFFENCES AGAINST THE PERSONS OF INDIVIDUALS.

Of these some are felonious and in their nature capital, others are simple misdemeanors.

Of the felonious, the first is that of mayhem, before considered as a civil injury. It is also viewed in a criminal light by the law, being an atrocious breach of the king's peace, and the punishment for the offence is declared by statute (a).

Maliciously shooting at any person in any dwelling-house or other place is felony (b).

The offence of forcible abduction and marriage, is felony (c). The indictment for this offence must allege that the taking was for lucre; and to shew this, it must appear that the woman has substance, either real or personal, or is an heir apparent. And though the marriage or defilement be by her subsequent 1 Hawk. P. C. consent, yet this is felony if the first taking were against her will; and so vice versa if she be taken away with her consent, but afterwards refuse to continue with the offender, and be 1 Hawk. P. C. forced against her will. A woman thus taken away and married, may be sworn and give evidence against the offender, though he is her husband de facto; contrary to the general rule of law; because he is no husband de jure, in case the actual marriage was also against her will.

1 Hal. P. C. 660.

410.

1 Hal. P. C. 661.

Stra. 1162.

Rape.

The unlawfully conveying or taking away any woman-child unmarried, which is held to extend to bastards as well as legitimate children, is punishable with fine and imprisonment(d).

The crime of rape, raptus mulierum, or the carnal knowledge of a woman forcibly and against her will, which by the civil

(a) By 7 Wm. 4, and 1 Vict. c. 85, s. 4, ante, note (h) p. 540.

(b) By 7 Wm. 4, and 1 Vict. c. 85, s. 3, ante, note (h) p. 541. The Black Act, 9 Geo. 1, c. 22, is repealed by 7 & 8 Geo. 4, c. 27.

(c) By 9 Geo. 4, c. 31, which, by s. 19, declares the punishment for this offence. See ante, note (c), p. 529.

(d) By 9 Geo. 4, c. 31, s. 20, if any person shall unlawfully take, or cause to be taken, any unmarried girl under sixteen, out of the possession and against the will of her father or mother, or of any other person having the lawful care or charge of her, every such offender shall be guilty of a misdemeanor, and being convicted, shall be liable to suffer such punishment by fine or imprisonment, or by both, as the court shall award.

An infant cannot be con

under fourteen

victed of rape.

ravished is a

law is punished with death and confiscation of goods, is by the law of England also punished with death (e). A male infant under fourteen is presumed by law incapable to commit a rape. The party ravished may give evidence upon oath, and is in law The party a competent witness; but the credibility of her testimony competent must be left to the jury. If the witness be of good fame; if witness. she presently discovered the offence, and made search for the offender, if the party accused fled for it: these and the like are concurring circumstances, giving greater probability to her evidence. But if she be of evil fame and stand unsupported by others; if she concealed the injury for any considerable time after she had opportunity to complain; if the place where the fact was alleged to be committed, was where it was possible she might have been heard, and she made no outcry, these and the like circumstances carry a strong but not conclusive presumption that her testimony is false or feigned. If the rape be An infant committed on an infant under twelve she is a competent witness, if she has sense and understanding to know the nature and obligation of an oath; or even to be sensible of the wickedness witness. of telling a deliberate lie. But no hearsay evedince can be given dence of her of the declaration of a child who has not capacity to be nor can such child be examined in court without oath; and there is no determinate age at which the oath of a child ought either to be admitted or rejected.

sworn,

There is another offence of a still deeper malignity, the infamous crime against nature. A crime which ought to be strictly and impartially proved, and then as strictly and impartially punished. This is an offence of so dark a nature, so easily charged, and the negative so difficult to be proved, that the accusation should be clearly made out; for if false, it deserves a punishment inferior only to that of the crime itself (f).

under twelve competent

is sometimes a

Hearsay evi

declarations not admissible

where she is herself in

competent.
Brazier's case,

P. 19, Geo. 3.
Sodomy.

viduals.

The inferior offences, or misdemeanors that fall under the Misdemeanors head of offences against the personal security of the subject, affecting indiare assaults, batteries, wounding, false imprisonment, and kidnapping.

The nature of these offences in general, considered as private wrongs or civil injuries, for which a satisfaction or remedy is

Assaults, batteries, and

wounding.

(e) By 9 Geo. 4, c. 31, s. 16, every person convicted of the crime of rape shall suffer death as a felon.

(f) By 9 Geo. 4, c. 31, s. 15, this offence is to be punished with death. By s. 18, the proof of the offence required by the act is defined.

N N

given to the party aggrieved, has been before explained (g). But taken in a public light, as a breach of the king's peace, they are also indictable, and punishable with fines and imprison

1 Hawk. P. C. ment, or with other ignominious corporal penalties, when they are committed with any very atrocious design (h).

65.

Kidnapping.

The offence of kidnapping, being the forcible abduction or stealing away of a man, woman, or child, from their own country, and sending them into another, was by the civil law punished with death, and with us is punished with fine and imprisonment (¿). And provision is made against the leaving of such persons abroad as are thus kidnapped (j ).

(g) See ante, p. 354, 355.

(h) A party assaulted may either proceed by action or indictment, or both, or he may avail himself of the more summary remedy afforded by 9 Geo. 4, c. 31, s. 27, by which persons committing any assault or battery, may be compelled by two magistrates to pay fine and costs not exceeding 5l., and may be committed for non-payment. If the magistrates dismiss the complaint, they are to make out a certificate to that effect, which by s. 23, is to be a bar to any other proceedings. But by s. 29, these provisions do not apply to aggravated cases of assault, accompanied by any attempt to commit felony, upon which the magistrates are to abstain from adjudicating, as well as in cases where the title to lands, or any interest therein, comes in question, or as to any bankruptcy or insolvency, or any execution under the process of any court of justice. By s. 24, assaults on officers, magistrates, or other persons endeavouring to save shipwrecked property, is punishable with transportation for seven years, or imprisonment and hard labour. By s. 25, assaults with intent to commit felony; assaults on peace officers; or to prevent the arrest of offenders, or in pursuance of a conspiracy to raise wages, are punishable with imprisonment and hard labour. By s. 26, assaults on any seaman, &c., to prevent him from working; assaults with intent to obstruct the buying or selling of grain, or its free passage, are punishable before two magistrates, with imprisonment not exceeding three months.

(i) By 9 Geo. 4, c. 31, s. 21, child stealing is felony, punishable with transportation for seven years, or imprisonment with or without hard labour for not exceeding two years. But no person claiming to be the father of an illegitimate child, or to have any right to the possession of such child, can be prosecuted under this provision of the act. By s. 30, a master of a merchant vessel forcing any person on shore, or refusing to bring him home, is guilty of a misdemeanor, and liable to be imprisoned as the court shall award. The court may issue commissions for the examination of witnesses abroad, and the depositions taken thereunder may be received on the trial. (j) See 9 Geo. 4, c. 31, s. 30, in the last note, as to this offence.