3. If the death be owing to the usual and probable consequences of the injury, it is immaterial though a period of many months elapse between the one and the other, or in how feeble and declining a state the deceased may have been when he received the wound, or though, under more skilful treatment, he might have recovered.

In cases of this description, two different principles have been adopted in our law.

1. How feeble soever the condition of the sufferer may have been, and how short his tenure of life, it is equally murder as if the person killed had been in the prime of youth and vigour.1 Accordingly, in the case of Robert Ramsay, March 24. 1713, it appeared that the deceased, who was a sick and infirm old man, was violently beat with a pair of tongs, of which in a few hours he died. These circumstances were found relevant to infer the crime of murder, though it was strongly urged that the death was rather owing to his previous infirm condition.2 And an apt illustration of the same legal position may be found in the case which so often occurs of child-murder, where, if life be once proved to have existed, and been taken away, it is held altogether irrelevant to inquire whether the infant had ten minutes or eighty years to live.3

2. If the death be truly owing to the wound, it signifies not that, under more favourable circumstances, and with more skilful treatment, the fatal result might have been averted.* Thus if an assault be made which opens an artery, it will be no defence to plead that, by the assistance of a surgeon, the wound might have been staunched and life preserved.5 Or, suppose a person receive a gunshot wound at a remote part of the country, where no skilful surgeons are to be had, and that he dies of the wound, notwithstanding the best care of the practitioners there, such as they are; or that a person is robbed and severely beaten in the night in severe weather, and in a solitary place, so that lying there exposed to the cold till daylight he die upon the spot, or of the consequences shortly after; in all these and the like cases homicide is undoubted. Thus, in the case of David Edgar, July 6. 1747, it appeared that the pannel was one of a party of smugglers who had fired at an

1 Hume, i. 183.-2 Ibid; Burnett, 550.-3 Burnett, i. 550.- Ibid. 551; Hume, i. 184.5 Hume, i. 184.-6 Ibid.; Burnett, 551.

officer of excise: the wounded man was carried to the nearest village, where he was attended by the surgeon of the country, who was not deficient in attention; but a great collection of matter having formed in the leg, and fever ensued, the patient died at the end of three weeks. The relevancy of this libel was strongly objected to, because it was said by skilful treatment the man might have recovered; but the Court found it relevant, leaving to the pannel to prove, if he could, that death arose ex malo regimine. The true distinction in all such cases is, that, if the death was evidently occasioned by grossly erroneous medical treatment, the original author of the violence will not be answerable; but if it arise from want merely of the higher skill which can only be commanded in great towns, he will, because he has wilfully exposed the deceased to a risk from which he had practically no means of escaping. Accordingly, in the case of William Macewan, Perth, September 1830, the pannel was indicted for the culpable homicide of a boy in a manufactory of which he was the overseer, by striking him on the shoulder, which dislocated the arm. On the proof it appeared that the boy's arm had been worked upon two days after the blow by an ignorant bonesetter, whose operations did more harm than good; and in consequence of the inflammation thus occasioned, acting upon a sickly and scrofulous habit of body, a white swelling ensued, which proved fatal. The jury accordingly, under the direction of Lord Meadowbank, acquitted the pannel. On the other hand, in the case of William Mackenzie, March 14. 1827, it appeared that the pannel seized the deceased by the throat, and bruized him severely in several parts of the body, in consequence of which lockjaw supervened, and he died. Skilful medical advice was not called in till near the end of the illness, when the lockjaw was already come on; and in the interval he had acted imprudently, and aggravated the symptoms. The medical evidence clearly proved that the lockjaw was owing to the injury, and was a frequent result of it. The Court was unanimous that the homicide was proved, and he was convicted, and transported for fourteen years.1

1

3. Though death do not ensue for weeks or months after the injury was received, yet if the wound be severe, and keep in a regular progression from bad to worse, so that the patient con

1 Syme, 158.

1

tinually languishes, and is consumed by it as by a disease, this in reason and law is quite the same as if he had died on the spot. Accordingly, in the case of Edward and James Scrymgeour, January 5. 1619, where the deceased was wounded in September, and died in the succeeding January, the defence founded on the lapse of time was repelled. Again, the like plea was repelled in the case of John Young, July 30. 1630, who was indicted for murder, by striking" with a whinger on the shackle bone" in June, of which the sufferer died in October. Nay, in the case of William Lowis, April 16. 1610, it appeared from the libel that the person wounded had survived the injury for seventeen months, notwithstanding which it was sent to an assize.1 In the case of Peter Leith, November 15. 1686, the deceased died at the end of three months; but the Court sustained the relevancy, the prosecutor undertaking to prove that, after receiving the wound, "he languished thereof constantly from evil to worse." And, in the case of John Caldwall, July 1737, where the deceased, a postboy, was robbed, cut, and left on the ground all night, and death ensued at the end of two months, and it was proved by the medical evidence that the wound, with the cold which the deceased got by lying out all night, and the great loss of blood which followed on it, were the cause of death, the pannel was convicted of the murder as well as the robbery.5 So also in the case of William Somerville, December 1669, it appeared that the deceased received a wound in her forehead, not of its own nature mortal, with other fractures and contusions, and that the wounds, joined with the fractures, were incurable, and ultimately brought on a fever, which continued till the time of her death, which was three months after the injury. A long and able argument was here maintained by Sir George Mackenzie for the pannel, in which it was offered to be proved that the wound was not in its nature mortal, and that the fever was acquired by contagion unconnected with the wound. The libel, however, was found relevant, and the prisoner found guilty, though he obtained a pardon owing to an error on the part of the Court, in refusing to admit evidence that the death was owing to the fever acquired from another cause.

By the law of England it is settled, that if a man give ano

1

Hume, i. 185; Burnett, 552, note.-2 Ibid.-3 Ibid.

Ibid.-5 Ibid.

ther a stroke, not in itself so mortal, but that, with good care, he might have recovered; yet if the party die of this wound within year and day, it is murder, or other species of homicide as the case may be; though, if the wound appear not to be mortal, and it clearly appear that the death was owing to unskilful treatment, and not to the wound or its consequences, then it is no species of homicide.1 But when a wound, not in itself mortal, from want of proper application, or from neglect, turns to a gangrene or fever, which is the immediate cause of death, the party is deemed guilty of the homicide; for, though the fever or gangrene be the immediate cause of death, yet the wound being the cause of the gangrene or fever, is held the cause of death causa causati. Thus it was resolved, that if one inflict wounds on another, or neglect the cure of them, or be disorderly, and do not keep the rule which a wounded person should do; yet, if he die, it is murder or manslaughter, in the original aggressor, according as the case may be, because, say they, if the wounds had not been inflicted the man had not died, and the neglect and disorder of the person who received the wounds, shall furnish no excuse to him that gave them. How sick soever the sufferer may be, before he receive the wound, yet if the violence accelerate his death, it is homicide in the person guilty thereof. But it is agreed that no person shall be adjudged guilty of homicide, if the party injured does not die within year and day after the stroke received, or cause of death administered, in the computation of which the whole day upon which the hurt was received is to be reckoned the first.5

If a physician or surgeon give his patient a potion or plaster, intending to do him good, but, contrary to expectation, it kill him, this will, in the general case, be considered as misadventure.6 But if the medicine were administered, or the operation performed, by a person not a regular physician or surgeon, the killing would be manslaughter.7 Nay, the same will hold if the pretended remedy be obviously and notoriously perilous and unsuitable for the particular case where it produced fatal consequences, an instance of which recently occurred in the conviction of Mr St John Long for manslaugh→ ter, before the Old Bailey.

1 Russell, i. 428.--2 Hale, i. 428; Russell, i. 428.-3 Ibid.; Kel. 26; Russell, i. 429.- Hale, i. 428.5 Hawkins, i. c. 31. § 9; Erskine, i. 112, 343, 344. - Hale, i. 429; Russell, i. 428.—7 Inst. 251; Russell, i. 428.

CHAPTER III.

OF CHILD-MURDER, AND CONCEALMENT OF PREGNANCY.

THE extreme facility of extinguishing the infant life, at the time, or shortly after birth, and the experienced difficulty of proving this unnatural crime, has led, both in the Scotch and English law, to the passing of statutes, calculated to facilitate the proof of the offence, and mitigate its punishment. This was formerly done by the Scotch act 1690, c. 21, which declared the crime punishable with death, and under which many inhuman convictions took place; but this statute being now happily repealed, the law stands on a comparative lenient footing, which presents no difficulty in the execution.

1. If a woman "shall conceal her being with child, during the whole period of her pregnancy, and shall not call for, or make use of, help or assistance in the birth, and if the child shall be found dead, or be amissing, she shall be imprisoned for a period not exceeding two years." 1

1

By this statute it is not necessary to inquire whether the child has actually been killed or not; it is sufficient if the statutory presumptions are established, to subject the pannel to punishment. A concealment of pregnancy, and a failure to call for help or assistance in the birth, accompanied with the disappearance of the body, or its being found dead, are held to imply, præsumptione juris et de jure, that the infant died of the want of due and timeful assistance in the birth.2

In the interpretation of this statute it has been settled,

2. That it is incumbent on the prosecutor to establish that the woman was pregnant during such a period, as to have rendered the birth of a living child possible. If

1 49th George III. c. 14.2 Hume, i. 293.—3 Ibid.