2

sumes a degree of malignity against the individual, or disregard to the safety of the innocent, as imply the crime of murder.” 1 So also in the case of Joseph Rae, 22d July 1817, the libel stated that the deceased, a chimney-sweep boy of eleven years of age, having stuck fast in a vent, the accused fastened ropes to his legs," and did pull and draw the said ropes so fastened with great force, notwithstanding the cries of the said John Fraser (the deceased) and the remonstrances of several persons present, and until the said John Fraser died, in consequence of the force so applied, and was thereby murdered." The presiding Judge, Lord Justice-Clerk, with the concurrence of the whole Court, laid it down as clear law, "That this was an instance of absolute recklessness and utter indifference about the life of the sufferer; and that the law knew no difference between the guilt of such a case, and that of an intention to destroy." In the case of John Cowie, November 29. 1803, the accused was convicted of having killed the deceased by beating her with a stick, and trampling on her with his feet. He had used expressions proving that he was willing to run the risk of the event, whatever it should prove, to satisfy his rage. He received sentence of death 3. James Anderson and David Glen, 5th November 1823, had sentence of death, and were executed for the murder of a man on the road near Ayr, by blows on the head with the fist only, which produced concussion of the brain, and death in a few hours after. Lastly, in the case of Mary Horn or Mackstraffick, tried at Glasgow in autumn 1826, the libel charged her with murder, in consequence of having beat the deceased, a boy of twelve years of age, with a hammer on the head," with intent to murder :" the Jury found the pannel "guilty, but the intent to murder not proven." The case being certified for the consideration of the whole Court, upon this verdict, it was pleaded for the prosecutor, that, as the jury had found the pannel guilty of murder, but without the intention to commit that crime, the case resolved into one of death following an injury committed with an utter recklessness as to consequences. The Court were clearly of opinion, that such recklessness was a sufficient ingredient in intention to constitute the crime of murder; but, in that particular case, as the express intention to murder had been libelled, however unnecessarily,

1 Hume, i 257.- Ibid. i. 258. Ibid. i. 257.

they held that no capital sentence could follow on the verdict, and the accused had sentence of transportation for life1.

2. In considering the intention of the accused in this matter, many different circumstances must be taken into view. Special consideration is to be had of the age, sex, and strength of the sufferer; the same degree of violence, which is justly held to amount to utter recklessness in a person of tender years or delicate health, being indicative of a very different intention if applied to one of a stronger habit of body.

This principle cannot receive a stronger illustration than occurs every day in the case of child-murder, where the slightest application of violence is justly held to indicate a murderous intention, though, if applied to a person of stronger years, it could not amount to an offence of any sort. To expose the infant to cold, even for a short time to put a finger on the windpipe, to place the hand for a few minutes, on the mouth, may as effectually extinguish the feeble spark of life in infancy, as if the victim in maturer years were strangled with ropes, or thrown into the sea 2. One who smites, says Hume, a woman, a boy, or an infant, or an aged or infirm person, with his hand, and with all his might, takes a mode of assault as likely to be fatal as if he strike with a stone or a club one of his own years.'

Thus, in the case of Malcolm Brown, July 29. 1664, a libel was found relevant for killing a boy by a blow on the ear with a fist3; whereas it seems extremely doubtful whether, in modern practice, such a degree of violence would be held to infer a murderous or reckless intent, if applied to a grown person, unless the blow were extremely severe, or repeated with merciless severity. Again, in the case of Macraw, Perth, April 1806, the accused was charged with having seized a girl of ten years of age by the vagina, which was lacerated so much in consequence that she died. He was convicted of murder, under the direction of Lords Justice-Clerk Hope and Meadowbank, although the intention to kill could not have been inferred from

1 Unreported. High Court. See many more cases to the same purpose; Hume, i. 253; Burnett, p. 4.—2 Burnett, 7; Hume, i. 260.—3 Hume, i. 262.

It was otherwise in former times where the blows were very severe; Lindsay, Feb. 29. 1748; Hume, i. 262.

the act, nor even utter recklessness, if applied to one of maturer years. On July 28. 1735, James Brown was convicted of murder, and suffered death, for striking his mother with the hand, and treading her under foot. To the same purpose a libel was found relevant for murder against James Stewart, at Perth, autumn 1824, which charged him with having killed his wife, by beating her repeatedly on various parts of the body with his fist, though none of the injuries, taken singly, had produced very serious effects; but, when applied to a woman, and repeated to a great extent, they were justly held by Lord Justice-Clerk Boyle to amount to the crime of murder, though the pannel had the good fortune to escape with a verdict of culpable homicide.3

4

6

The law was the same in the Roman and English practice. "Unde et ex lege Cornelia de sicariis merito dixeris teneri eum, qui cujuscunque conditionis hominem, et quocunque instrumenti genere dolo malo occidit, vel etiam sine ullo instrumento extrinsecus assumpto, dum vel pugnis vel capitis, impetu aut calcibus ictis et conculcationibus dolo malo homicidium factum probetur." If a man in England does an act, of which the probable effect may be, and eventually is death, such killing is murder, though no stroke be struck by himself, and no killing may have been primarily intended.5 Thus, where a person carried his sick father, against his wish, in a severe season, from one town to another, by reason whereof he died; or where a harlot left her infant child in an orchard, covered only with leaves, in which condition it was killed by a kite; or where a child was placed in a hog-stye, where it was devoured; 7 or where a master refuses his apprentice necessary food or sustenance, or treats him with continued harshness and severity, and his death is occasioned thereby; or where the parish-officers shifted a child from parish to parish, till it died for want of care and sustenance. Great doubt was even entertained on the case, where a step-mother killed a step-child, a girl of ten years of age, by throwing a four-legged stool, of sufficient size to kill, at her, which hit her on the temple,10 though no intention to kill existed.

8

1 Burnett, 4.-2 Hume, i. 262.—3 Unreported. Voet. ad L. Corneliam De Sicariis, § 1. Blackstone, iv. 196.6 Hale, 431.- Hawkins, c. 31. § 5; Russell, i. 619; Ibid. i. 619.—8 Leach, 127.—9 Blackstone, iv. 197.—1o Leach, i. 371, 4th edit.

10

3. It is material, in estimating the intention of the accused, to consider the instrument with which the injury is inflicted; the taking of ponderous or lethal weapons being as material a circumstance against, as laying them aside before the violence commences is in favour, of the accused.

Cases of murder in rixa, generally occur from the use of a lethal weapon, as an axe, a hammer, a pair of tongs, or a knife; these being the instruments which most readily present themselves to the infuriated hands of passion; and, in general, it has been adjudged, that the assumption of such weapons, if followed by death, is a material, if not a fatal circumstance against the accused.' Thus, in the case of James Macara, 21st January 1811, it appeared that the accused had a verbal altercation with his brother Alexander, in consequence of some work which had gone wrong at one of the furnaces in which they were engaged. In the course of the strife the deceased hit the accused a sharp slap on the face with the open hand, which made him bleed a little at the mouth. The accused did not resent the injury at the moment, but, after walking about for some minutes with his hands in his pockets, suddenly seized a pair of heavy furnace tongs, and struck his brother violently with them on the belly, saying, "Sandie, you have struck me, and now, by God, you shall account for it;" and, upon the deceased laying hold of him by the collar, he shortened them in his hand, and struck him a fatal blow between the eyes, which occasioned death. Lord Justice-Clerk Hope laid it down that this was murder, though the accused had met with severe provocation, and his opinion is supported by Baron Hume, who bestows unusual censure on the jury for bringing in a verdict of culpable homicide. Again, in the case of Peter Scott, Aberdeen, spring 1823, it appeared that an altercation had taken place between the accused and another lad, in the course of which the accused had been struck more than once: the deceased interfered apparently to separate them, and the accused immediately drew a knife from his pocket, and stabbed him in the side, of which he soon after died. Lord Justice-Clerk Boyle held that this was murder, and the pannel was con

1 Hume, i. 252.-2 Ibid. i. 253.

victed and sentenced to death. In like manner, in the case of Pyper, 4th January 1802, it was proved that an altercation took place between the accused and the deceased, who was his fellow-servant, in the course of which the deceased threw the accused on the ground, but without striking him with his hand on getting up, the prisoner laid hold of a pair of tongs, and the parties prepared to fight; but the deceased was standing on the floor, with his back to the prisoner, the latter struck him a violent blow on the back of the head with the tongs, in consequence of which he died a few days after. The Court were of opinion that this was murder, but the jury found it culpable homicide only. Thus it appears, that even in cases of homicide in rixa, it is an established principle, that the assumption of a lethal weapon is always a material circumstance against the pannel; and unless when done immediately after the provocation, or in circumstances of strong and justifiable excitement, it will aggravate the case to murder.2

As much as the assumption of such lethal weapons aggravates the case against the accused, is it alleviated if they be laid aside before the mortal injury is inflicted. If the pannel, having a drawn sword in his hand, lay it aside and strike with a staff only; or having a loaded pistol, he fires it off and strikes with the butt end; or if, having a hammer, he throw it away, and strike with the fist only, he shall hardly, except on the clearest case of subsequent violence, be convicted of murder. Thus, in the case of Richard Hamilton, July 1807, the accused had killed an infirm old woman by several blows on the head with his fist; but before doing so, he had thrown aside a mell or hammer which he had used in breaking into the room, and he was accordingly found guilty of culpable homicide only, though of the most aggravated kind.5

4. The defence of provocation will not avail the accused, if the fatal acts are done at such a distance of time after the injury received as should have allowed the mortal resentment to subside, or with such weapons, or in such a manner, as indicates a desire of unmeasured revenge.

1 Burnett, 16.-2 Hume, i. 260.-3 Ibid. i. 256. Ibid. Ibid. i. 256.