ment thereof, or of conducting the business of such places, or receiving money or other valuable pertaining to the aforesaid contingencies, £50, with costs, or, on non-payment, three months' imprisonment, with or without hard labour, s. 4. Money so received, on a deposit or bet, may be recovered with full costs of suit in any court of competent jurisdiction. Penalty on persons exhibiting placards, or publishing or advertising any card, writing, or sign, or inviting persons to resort to such betting-houses, £30 and costs, or two months' imprisonment, s. 7. Penalties may be recovered by distress, or, in case of commitment for penalty and costs, the costs only may be levied by distress. One-half of every pecuniary penalty to be paid to the informer, and the other half to the poor of the parish.

By s. 11, justices may order the search of suspected houses, and the metropolitan police may enter and search suspected houses. One month's notice to prosecute must be given, and the prosecution commenced within three calendar months after the offence. Act extends to England and Ireland, not to Scotland.

CHAPTER XII.
Homicide.

HAVING in the preceding chapters considered those offences which either affect the government or the interests of religion, commerce and trade, or public order, health, and police, we come next to consider those which are directed against the persons, habitations, and property of individuals.

Of crimes injurious to the person, the principal is Homicide, which is the killing of a human being; and is either justifiable, excusable, or felonious. The first has no tinge of guilt; the second, very little; but the third is the greatest crime that man is capable of committing against a fellow-creature.

1. JUSTIFIABLE homicide, which it appears almost inconsistent to include in criminal delinquencies, is of divers kinds, including such as arise from unavoidable necessity or accident, without any imputation of blame or negligence in the party killing. Of this kind is homicide committed in the pursuit of justice, in the execution of any civil or criminal procedure; but in these cases the necessity must be real and apparent, as that the offender could not be arrested, or the riot suppressed, or the property stolen retaken, unless homicide had been committed.

Homicide is justifiable, committed in the prevention of any atrocious crime, as an attempt to murder, or to commit other capital offence. A woman is justifiable in killing one who attempts to ravish her; and so, too, the husband or father may justify killing a man who attempts a rape on his wife or daughter; but not if

he take them together by consent, for the one is forcible and felonious, not the other. Attempting a crime still more abominable may be punished by the death of the unnatural aggressor.

Justifiable homicide reaches not to crimes unaccompanied with violence, as the picking of pockets, or attempting to break open a house in the daytime, without an attempt at robbery. The general principle of the law appears to be this; that where a crime, in itself capital, is endeavoured to be committed by force, it is lawful to repel that force by the death of the party attempting it; but to kill a person in resisting a trespass or misdemeanor would be clearly manslaughter or murder.

2. EXCUSABLE homicide is committed either by misadventure or in self-defence. Homicide by misadventure is where a man, doing a lawful act, without any intention to hurt, unfortunately kills another; as where a man is at work with a hatchet, and the head flies off and kills a bystander; for the act is lawful, and the effect is accidental. So where a parent is moderately correcting a child, a master his apprentice or scholar, or an officer punishing a criminal, and death ensues, it is only misadventure; but, if he exceed the bounds of moderation, either in the manner, the instrument, or quantity of punishment, and occasion death, it is manslaughter at least, and may be murder; for the act of immoderate correction is unlawful.

As prize-fighting and sword-playing are illegal, if either of the parties be killed, such killing is felony, or manslaughter. And, in general, if death ensue from any idle, dangerous, and unlawful sport, the slayer is guilty of manslaughter.

There seems to be a solid distinction between boxing and fencing, which was adverted to in the case of Hunt v. Bell, 1 Bing. 1. To teach and learn to box and fence are equally lawful, they are both the art of self-defence; but sparring exhibitions are unlawful, because they tend to form prize-fighters, and prize-fighting is illegal.

Homicide in self-defence, from a sudden affray or quarrel, is rather excusable than justifiable in the English law. To excuse this species of homicide, it must appear that the slayer had no probable means by fleeing or otherwise to escape from his assailant.

Formerly no man was held entirely free from guilt who took away the life of another without permission of the law; and it is said that both justifiable and excusable homicide were anciently punished by fine or forfeiture. But now it is provided that no punishment or forfeiture shall be incurred by any person who shall kill another by absolute misfortune or in defence of his own life. In case of death from the neglect or default of another, a recent statute previously noticed (p. 497), provides.

3. FELONIOUS homicide is the killing of a human creature without justification or excuse, and is either murder, manslaughter, or self-destruction.

I. MURDER.

Murder is defined, or rather described, by Sir Edward Coke, to be," when a person of sound memory and discretion unlawfully killeth any reasonable creature in being, and under the king's peace, with malice aforethought, either expressed or implied."

Malice aforethought, by which is meant premeditated hatred of the deceased, or destructive intention, is the great criterion by which murder is distinguished from every other kind of homicide, and may be either expressed or implied. Express malice is that deliberate intention to take away the life of another which is manifested by external signs, by lying in wait, menaces, former grudges, or concerted schemes to do him personal harm. This description takes in the place of DUELLING. If one kill another in a deliberate duel, under provocation of charges against his character, however grievous, it is murder in him and his second, and also in the second of the deceased; and the bare incitement to fight, though under such provocation, is a high misdemeanor, Rex v. Rice, 3 R. E. 581. If two or more come together to do an unlawful act, of which the probable consequence may be bloodshed; as to maltreat a person, commit a riot, or to rob a house, and one of them kill a man, it is murder in them all, because of the unlawful act, the concerted evil intended aforethought.

Implied malice is that inference which arises from the nature of the act, though no direct malice can be proved; as where a man deliberately poisons another, the law presumes malice, though no particular enmity can be established. So, too, in a deliberate duel, it is no answer to a charge of murder, as Justice Patteson told the jury in King v. Jeffcott, to say that it was done solely to vindicate reputation; if time has intervened for reflection, malice will be inferred, though no evidence is adduced of particular ill-will towards the deceased. Again, if a master refuse his apprentice necessary food, or treat him with such continued harshness and severity that his death is occasioned thereby, the law will imply malice, and the offence will be murder, Leach, 127. So, if a prisoner die by the cruelty and neglect of the gaoler, the party offending is criminal in the same degree.

If a man kill another suddenly, without a considerable provocation, the law implies malice. But if the person provoked had unfortunately killed the other by beating him in such a way as showed only an intent to chastise and not to kill him, the law so far considers the provocation of contumelious behaviour as to adjudge it only manslaughter, and not murder.

If one, intending to commit a felony, undesignedly kill a man, it is murder. So, if a person give a woman with child a potion to procure abortion, and it operate so violently as to kill the mother, this is murder in the person who gave it.

If two persons incite each other to commit self-murder together,

and the means employed to procure death take effect upon one only, it is murder to the survivor. Reg. v. Allison, 8 C. & P. 418.

Although a bare attempt to kill is generally only a misdemeanor, yet an attempt to kill by certain means is felonious. Thus, by 24 & 25 V. c. 100, s. 11, to give, or cause to be given, poison, or other destructive thing, to any person, or by any means to cause an injury dangerous to life, with intent to commit murder, may be punished by penal servitude for life.

By s. 4, all persons who shall conspire, confederate, or agree to murder any person, whether he be a subject of her Majesty or not, and whether or not he be within the queen's dominions; and whoever shall solicit, encourage, or persuade, or propose to any person to murder another, whether a subject or not, is liable to penal servitude for not above ten, nor less than three years, or to imprisonment not exceeding two years, with or without hard labour.

Every person convicted of murder, or of being accessory thereto, is punishable with death. Rescuing, or attempting to rescue, a murderer, subjects to penal servitude for life, or not less than fifteen years, or to imprisonment for not exceeding three years, with or without hard labour or solitary confinement. Attempting

to rescue the body of a murderer, after execution, is punishable by penal servitude for four years.

As to the time of execution, it is not requisite the punishment should be carried into effect the next day but one after sentence passed; but the judges have, by 6 & 7 W. 4, c. 36, the same authority in convictions for murder as in other capital offences: an alteration introduced to preserve from irrevocable punishment persons who may have been convicted on erroneous or perjured evidence. Hanging in chains or dissection is prohibited by 4 & 5 W. 4, c. 26, and burial within the precincts of the prison substituted.

II. MANSLAUGHTER

Is defined the unlawful killing of another, upon a sudden heat of passion, without previous malice expressed or implied.

If, upon a sudden quarrel, two persons fight, and one kill the other, it is manslaughter; and so it is if they, upon such an oceasion, go out and fight in a field, for this is one continued act of passion. So, also, if a man be greatly provoked, as by pulling his nose, or by taking another in the act of adultery with his wife, and immediately kill the aggressor, it is only manslaughter. But in every case of homicide upon provocation, if there be a sufficient cooling time for passion to subside, and reason to interpose, and the person so provoked afterwards kill the other, this is deliberate revenge, and amounts to murder.

Manslaughter may also arise when, in the commission of some unlawful act, death ensues. As, if two persons play at sword and

buckler, which is an unlawful game, and one kill the other, it is manslaughter.

So, when a person does an act lawful in itself, but in an unlawful manner, without due caution and circumspection, as, when a workman flings down a stone, or piece of timber into the street, and kills a man, this may be either excusable homicide, manslaughter, or murder, according to the circumstances under which the original act was done. If it were in a country village, where few passengers are, and he called out to all people to have a care, it is a misadventure only; but if it were in London, or other populous towns, where people are continually passing, it is manslaughter, although he gave loud warning; and murder, if he knew they were passing and gave no warning at all to them, being malice to all mankind.

The distinction between murder and manslaughter will be illustrated by the case of Francis Smith, who was indicted for murder at the Old Bailey, January 13, 1804. The neighbourhood of Hammersmith had been alarmed by what was supposed to be a ghost. The prisoner went out with a loaded gun, with intent to apprehend the person who personated the ghost; he met the deceased, who was dressed in white, and immediately discharged his gun and killed him. Chief Baron Macdonald, Mr. Justice Rooke, and Mr. Justice Lawrence were unanimously of opinion that the facts amounted to the crime of murder. For the person who represented the ghost was only guilty of a misdemeanor, and no one would have had a right to have killed him, even if he could not otherwise have been taken. The jury brought in a verdict of Manslaughter, but the court said they would not receive that verdict; if the jury believed the witnesses, the prisoner was guilty of murder; if they did not believe them, they must acquit. Upon this the jury found a verdict of guilty. Sentence of death was pronounced, but the prisoner was reprieved.

The cases adduced by Mr. Justice Foster have been cited (iv. Criminal Law Report, 25) as apt illustrations of the higher and lower degrees of homicide. "A person driving a cart or carriage happeneth to kill. If he saw, or had timely notice of the mischief likely to ensue, and yet drives on, it will be murder, for it was wilfully and deliberately done. Here is the heart regardless of social duty which I have already taken notice of. If he might have seen the danger and did not look before him, it will be manslaughter, for want of due circumspection. But if the accident happened in such a manner that no want of care could be imputed to the driver, it will be accidental death, and the driver will be excused."- Discourse on Homicide, 263.

In Rex v. Martin, it was decided that causing the death of a child by giving it spirituous liquors, in a quantity unfit for its tender age, is manslaughter, 3 C. & P. 210.

The punishment of manslaughter is proportioned to the various shades of delinquency in the offence. By 24 & 25 V. c. 100,