XXVII.-Returning from Transportation, XXVIII.-Incest and Unnatural Offences, CHAPTER I. ON THE DIFFERENT KINDS OF HOMICIDE WITH REFERENCE TO THE INTENTION OF THE KILLER. HOMICIDE is the act which, either directly, or by natural consequence, takes away the life of another. It consists of four kinds, that which is inexcusable, that which is blameable, that which is justifiable, and that which is casual. Hence the division into Murder, and Culpable, Justifiable, and Casual Homicide. The act producing homicide may be considered in two lights with reference to the intention of the killer, and the circumstances under which the fatal injury is inflicted; and with reference to the effects upon the sufferer, and the circumstances under which it is received. Hence, the first branch of the subject relates to the distinctions between the different degrees of the crime, with reference to the person who committed the injury; the second, to the different effects which it produces in regard to the person who suffers from it. SECT. I.-OF MURDER. 1. Murder, the greatest crime known in the law, consists in the act which produces death, in consequence either of a deliberate intention to kill, or to inflict a minor injury of such a kind as indicates an utter recklessness as to the life of the sufferer, whether he live or die. In this essential particular, the law of Scotland coincides with that of England. "Our practice," says Hume, “does 1 Hume, i. 179. A not distinguish between an absolute purpose to kill and a purpose to do any excessive and grievous injury to the person, so that, if the pannel assault his neighbour, meaning to hamstring him, or to cut out his tongue, or break his bones, or beat him severely, or within an inch of his life; and if, in the prosecution of this outrageous purpose, he has actually destroyed his victim, he shall equally die for it as if he had run him through the body with a sword. This corrupt disregard of the person, and life of another, is precisely the dole or malice, the depraved and wicked purpose, which the law requires and is content with."1 "The malice prepense," says Blackstone, "essential in murder, is not so properly spite or malevolence to the deceased in particular, as an evil design in general, the dictate of a wicked, depraved, and malignant heart, and it may be either express or implied in law. Express, as when one, even upon a sudden provocation, beats another in a cruel and unusual manner, so that he dies, though he did not intend his death, or when a parkkeeper tied a boy that was stealing wood to a horse's tail and dragged him along the park, and a schoolmaster stamped on his scholar's belly, so that each of the sufferers died; these were justly held to be murders, because the correction being excessive, and such as could not proceed but from a bad heart, it was equivalent to a deliberate act of slaughter."2 Implied, as where one wilfully administers some poison to another, or a man gives a woman medicine to procure abortion, and she die, this is nothing less than murder in both cases, though in neither the life of the sufferer was intended to be taken. Dolosum homicidium est, quod vel animo et proposito occidendi, vel solum vulnerandi voluntate committitur. Malice, in the English law, does not signify hatred, nor is it used in its ordinary signification when applied to the matter of homicide; it is a term of law importing directly wickedness, and excluding any just cause of excuse." The deliberate intention to kill, so clearly constitutes the crime murder, that a few illustrations will be sufficient on that subject. Thus it is equally murder, whether the fatal violence be committed by blows with a hatchet on the head, or by ad 1 Hume, ii. 254-256; Burnett, 5.-2 Blackstone, iv. 199; Hale, i. 454, 472-4; Hawkins, i. 74; Foster, 291.- 3 Hale, 466; Blackstone, iv. 200.4 Carps, Quest. xxvii. No. 5.-5 Coke, ii. Inst. 384; Russell, i. 615. ministering poison to the stomach, or by lying over the victim and impeding respiration, as in the noted case of Burke and Hare. Whatever means, in short, the ingenuity and depravity of the human heart may adopt for the completion of the crime, it is equally murder, if death ensue from a deliberate intention to effect it. 2 But it is equally settled, by a long train of decisions, that the crime of murder is committed, if death ensue from an intention to commit an inferior bodily injury, provided it be of such a kind, as plainly, and, in the ordinary course of events, puts the life of the sufferer in hazard. Thus, in the case of Brown, tried by Lords Kilkerran and Elchies at Perth, in May 1753, it turned out in evidence, that a father and son were both concerned in an assault, and the father having seized the deceased, and holding him fast, called to his son "to come and pay well, but spare the life." The son, with a cudgel, having beat the man so severely that he died: the father had sentence of death. So also, in the case of Griffith Williams, 27th January 1800, it appeared that the accused had discovered an abstraction by the deceased of a sum of money, with which she had been entrusted; and he had declared his resolution to "beat her so as just to leave life in her." He beat her at intervals accordingly, and the woman died next day, for which he was condemned and executed. At Glasgow, on February 27. 1815, Colin Telfer was tried on an indictment, which charged him with having struck the deceased with a bone, in a butcher's stall, such a blow on the temple, that he fell to the ground, and died within a week. The external appearances of the wound were not considerable, and then the question emerged whether the crime of murder was committed, in consequence of death consequent upon such an injury. Lord Meadowbank observed, "That there was here a merciless blow struck on the temple of the deceased, certainly with an aim for that purpose. Death might in all probability not have been intended, but indifference whether it should follow or not must have been experienced by the pannel, otherwise the force exerted would have been less, and the weapon used less violent. Now, it is this indifference, this recklessness, as our books term it, of another's life, from which the law, when so indicated, pre 3 1 December 24. 1828; High Court, 2 Burnett, 4.—3 Hume, i. 257. |