May, in the year aforesaid, at the parish aforesaid, in the county aforesaid, did languish, and languishing did live; on which said third day of May, in the year aforesaid, the said J. N., at the parish aforesaid, in the county aforesaid, of the said mortal wound died: and so the jurors aforesaid, upon their oath aforesaid, do say, that the said J. S. the said J. N., in manner and form aforesaid, feloniously, wilfully, and of his malice aforethought, did kill and murder: against the peace of our lord the King, his crown and dignity. As to the venue, see ante, p. 3, 4, 5.

Felony, death. 23 H. 8. c. 1. 1 Ed. 6. c. 12. dictment, the defendant may be acquitted of the found guilty of manslaughter, or excusable homicide.

Evidence for the prosecution.

Upon this inmurder, and Vide post.

In and upon one J. N.] It must be proved that J. N. was the person killed; otherwise the defendant must be acquitted. Ante, p. 10, 11. If the name of the deceased be known, it should be stated so in the indictment. Id.

In the peace of God, and our said lord the King.] This does not require proof. If the deceased, however, were an alien enemy, and killed in the actual heat and exercise of war, this is matter of justification, which may be proved upon the part of the defendant. See 1 Hale, 433. But it is no matter either of excuse or justification, that the deceased was a jew, an outlaw, or one attainted of felony or præmunire. Id.

With a certain knife, &c.] It is not necessary to prove this strictly as laid; if it be proved that the deceased was killed with any other instrument, as with a dagger, sword, staff, bill, or the like, capable of producing the same kind of death as the instrument stated in the indictment, the variance will not be material. R. v. Mackally, 9 Co. 67 a. Gilb. Ev. 231. But if the species of death would be different, as if the indictment allege a stabbing or shooting, and the evidence prove a poisoning or starving, the variance would be fatal; Id.; and the same, if the indictment state a poisoning, and the evidence prove a starving. But if the indictment allege a death by one kind of poison, proof of a death by another kind of poison will support the indictment. Id. and see 2 Hale, 185, 186. 2 Hawk. c. 23. s. 84.

The value of the instrument is immaterial. It seems to be stated in the indictment, because the instrument is forfeited as a deodand to the King, and the township is liable for the value of it, if it be not forthcoming. See 2 Hale, 185.

In his right hand, &c.] It is necessary to allege in the in

dictment, in which hand the defendant held the weapon; 2 Hale, 185; but it is not necessary to prove it.

In and upon the right side.] The indictment must shew with certainty in what part of the body the deceased was wounded; and therefore if it allege the wound to have been on the arm, hand, or side, without saying whether the right or the left, it is bad. 2 Hale, 185. In this and in other instances, there is a particularity required in indictments for murder, that it would be ridiculous to attempt to account for, or justify; for the same strictness is not required as to the evidence necessary to support it; if, for instance, the wound be stated to be on the left side, and proved to be on the right, or alleged to be on one part of the body, and proved to be on another, the variance is immaterial. 2 Hale, 186.

Of his malice aforethought.] The law presumes every homicide to be murder, until the contrary appears. Fost. 255. Therefore the prosecutor is not bound to prove malice, or any facts or circumstances, besides the homicide, from which the jury may presume it; and it is for the defendant to give in evidence such facts and circumstances as may prove the homicide to be justifiable, or excusable, or that at most it amounted to but manslaughter. Vide post.

Did strike and thrust.] In all cases where the death is caused by personal violence, it is essential to the indictment that it should allege that the defendant struck the deceased; see 5 Co. 122 a. 2 Hale, 184. 2 Hawk. c. 23. s. 82; and it must also be proved. But we have seen (ante, p.211.) that it is not necessary to prove that he struck him with the instrument mentioned in the indictment; and therefore, although the indictment allege that the defendant did strike and thrust, proof of a striking which produced contused wounds only, would maintain the indictment.

In cases of express malice, the homicide is usually committed in secret, and it is rarely practicable to substantiate it by direct and positive testimony; in most cases, the defendant is convicted upon circumstantial evidence merely. Upon this subject, it is only necessary to refer to what has been already said upon the doctrine of Presumptions, ante, p. 77, 78; repeating here merely the rule laid down by Lord Hale, never to convict a man of murder or manslaughter, on circumstantial evidence alone, unless the body have been found. 2 Hale, 290.

In cases of implied malice (vide post), the homicide is usually committed in the presence of others, who may prove it; if not, it must be proved by circumstantial evidence.

One mortal wound of the breadth, &c.] The length and breadth of the wound must be shewn in all cases where it is possible to do so; but not where it is alleged that a limb was cut off, or that the wound was a contused wound merely. 2 Hale, 186. But even where necessary to be stated, it need not be proved as laid; evidence of another species of wound, in another part of the body, if the party died of it, is sufficient to maintain the indictment. Id.

Of which said mortal wound, &c.] The dates here stated in the indictment, need not be proved as laid. All that is necessary to be proved, to support this part of the indictment, is, that the deceased died of the wound or wounds given him by the defendant, within a year and day after he received them; for if he died after that time the law would presume that his death had proceeded from some other cause than the wounds. 1 Hawk. c. 23. s. 90.

If a man be wounded, and the wound turn to a gangrene or fever for want of proper applications or from neglect, and the man die of the gangrene or fever: this is a homicide, and murder, or not, according to the circumstances under which the wound was given. 1 Hale, 428. But if it appeared that the man's death was caused by improper applications to the wound, and not by the wound itself, it would be otherwise. Id.

Evidence for the defendant.

The defendant has to prove, either that the murder was not committed by him, or that the offence actually committed does not amount to murder. This defence may be, and frequently is, made out by the examination in chief of the witnesses for the prosecution; but if not, it may be proved from their cross-examination, or by witnesses called upon the part of the defendant.

We have seen (ante, p. 212.) that the prosecutor is not bound to prove that the homicide was committed from malice prepense; if he prove the homicide merely, the law from thence presumes the malice. The malice, in such a case, however, is only presumed; and the defendant may rebut that presumption, by proving that the homicide was justifiable, or excusable, or that at most it amounted to manslaughter only, and not to murder.

Justifiable homicide is of three kinds : 1. Where the proper officer executes a criminal, in strict conformity with his sentence. 2. Where an officer of justice, or other person acting in his aid, in the legal exercise of a particular duty, kills a person who resists or prevents him from executing it. 3. Where the homicide is committed in prevention of a forcible and atrocious crime: as, for instance, if a man attempt to rob or

murder another, and be killed in the attempt, the slayer shall be acquitted and discharged. 24 H. 8. c. 5. See Bract. 155. 1 Hale, 488. and post.

Excusable homicide is of two kinds: 1. Where a man, doing a lawful act, without any intention of hurt, by accident kills another: as, for instance, where a man is working with a hatchet, and the head by accident flies off and kills a person standing by. This is called homicide per infortunium, or by misadventure. 2. Where a man kills another, upon a sudden rencounter, merely in his own defence, or in defence of his wife, child, parent or servant, and not from any vindictive feeling; which is termed homicide se defendendo. If the defendant be found guilty of excusable homicide merely, he shall have a pardon and a writ of restitution of his goods, as a matter of right. And, indeed, to prevent the expence of a pardon, &c., in cases where the death has notoriously happened by misadventure or in self defence, the judges usually permit (if not direct) a general verdict of acquittal. Fost. 288. 4 Bl. Com.

188.

Manslaughter is the unlawful and felonious killing of another, without any malice either express or implied. It is of two kinds : 1. Involuntary manslaughter, where a man, doing an unlawful act not amounting to felony, by accident kills another. 2. Voluntary manslaughter, 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, &c., and the other immediately kills him. Manslaughter is felony, within clergy.

Murder is thus defined or described by Lord Coke: (3 Inst. 47): "Where a person of sound memory and discretion, unlawfully killeth any reasonable creature in being, and under the King's peace, with malice aforethought either express or implied."

i. It must be committed by a person of sound memory and discretion it cannot be committed by an ideot, lunatic, or infant, unless indeed he shew a consciousness of doing wrong, and of course a discretion, or discernment between good and evil. 4 Bl. Com. 195, 196. 20 et seq. 1 Hawk. c. 1. But if any person procure an ideot, &c. to murder another, the procurer is guilty of the murder, 1 Hawk. c. 31. s.7, although perhaps not present at the time it was committed.

2. It must be an unlawful killing, not excusable or justifiable. It may be by poisoning, striking, starving, drowning, and a thousand other forms of death by which human nature may be overcome. 4 Bl. Com. 196. 1 Hale, 431. Taking away a man's life by perjury, however, is not, it seems, in law, murder, see R. v. Macdaniel & al. Fost. 132, and sɛe 4 Bl. Com. 196 n., although in foro conscientiæ it is as much so as killing with a sword. If a man however do any other act, of which the

probable consequence may be, and eventually is, death, such killing may be murder, although no stroke were struck by himself: as was the case of the unnatural son who exposed his sick father to the air, against his will, by reason whereof he died; 1 Hawk. c. 31. s. 5; and of the harlot, who laid her child in an orchard, where a kite struck it and killed it. 1 Hale, 432. So, where an apprentice died, from harsh treatment, and want of care upon the part of his master, whilst he was labouring under disease: this was holden to be murder in the master. R. v. Squire & ux. 1 Russel, 620. If a man have a beast that is used to do mischief, and he, knowing it, suffer it to go abroad, and it kill a man, this it seems is manslaughter in the owner; but if he had purposely turned it loose, though barely to frighten people, and to make what is called sport, it is as much murder as if he had incited a bear or a dog to worry them. 1 Hale, 431. 4 Bl. Com. 197. If a man have a disease, which in all likelihood would terminate his life in a short time, and another give him a wound or hurt which hastens his death, this is such a killing as constitutes murder. 1 Hale, 428. So, if a man be wounded, and the wound turn to a gangrene or fever, for want of proper applications, or from neglect, and the man die of the gangrene or fever: this is also such a killing as would constitute murder; 1 Hale, 428; but otherwise if the death of the party were caused by improper applications to the wound, and not by the wound itself. Id. And it is a general rule, that to make the killing murder, the death must follow within a year and day after the stroke, or other cause of it.

3. The person killed must be a reasonable creature in being and under the King's peace. Therefore, to kill a child in its mother's womb, is no murder: 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 the person who administered or gave them. 3 Inst. 50. As to the words "the King's peace" in the definition of murder, they mean merely that it is not murder to kill an alien enemy, in time of war; 3 Inst. 50. 1 Hale, 433; but killing even an alien enemy within the kingdom, unless in the actual exercise of war, would be murder. 1 Hale, 433.

4. And lastly, the killing must be committed with malice aforethought. Malice is either express or implied. Express malice is when one, with a sedate and deliberate mind, and formed design, doth kill another: which formed design is evidenced by external circumstances discovering that inward intention; as lying in wait, antecedent menaces, former grudges, and concerted schemes to do him some bodily harm. 1 Hale, 451. Neither 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 mankind in general: as, going deliberately