"The malice necessary to the crime of murder," says Baron Hume, "is implied prima facie in the act of intentional killing, which is the highest possible injury; and thus it lies with the pannel to overcome, by evidence on his part, of some of those circumstances of necessity or excusable infirmity which may serve him for his defence." 1 "Non enim," says Malthæus, "eam defensionem proposuisse, satis est, nisi eadem idoneis argumentis probetur. In dubio enim cædes, sicut quævis injuria, præsumitur dolo malo facta." 2 The commentator has rightly said "sicut quævis injuria;" for this is not any strained or peculiar rule out of aversion to blood, but the ordinary rule which applies equally in any other case of bodily harm.3 Judgment has accordingly been given in a great variety of cases, overruling the plea, that malice or deadly hatred must be proved by the prosecutor. In all, the answer was sustained as good law, that the malice was necessarily inferred from the act of intentional killing, and that the prosecutor, prima facie, was required to do no more than establish that the death arose in that way, leaving it to the pannel to prove the innocent motive which led him to take away the life of another. William Aird, September 8. 1693; George Cuming, November 20. 1695; Lindsay and Brock, November 15. 1717; George Donald, August 4. 1730. No such plea has ever been advanced in later times; and, accordingly, no indictment for murder now libels on previous malice or deadly hatred, unless it is intended to prove previous expressions of ill-will as a separate article of charge. The law of England has adopted the same rule. " All homicide," says Blackstone," is presumed to be malicious, until the contrary appears from circumstances of alleviation, excuse or justification; and it lies upon the prisoner to make out such circumstances to the satisfaction of the Court and jury, unless they arise out of the evidence against them."5 But though this principle is thus so completely established in law, that previous malice is never alleged in a charge of murder, except as a separate article of indictment, and nowise essential to the principal crime, yet in practice the rule is of little importance. The circumstances of the case usually, and indeed almost necessarily, come out in the course of establish 1 Hume, i. 254.2 De sicariis, c. 3, No. 14.-3 Hume, i. 255. Ibid. i. 254, 255. 5 Blackstone, iv. 201; Foster, i. 255. D ing the fact of death having been intentionally inflicted; so that the prosecutor generally is obliged to prove that the death arose either from intention, or such recklessness as law deems equivalent to it, before the prisoner comes to substantiate any thing whatever in his defence. 17. It is murder if the pannel shoot or aim at one person, and by mistake kill another, if it would have been murder had the person aimed at died, or if he inflict death by such acts as may reasonably be expected to kill some person or another. If there be such an intention to kill as law deems essential to the crime of murder, and death follow, it matters not whether it take effect on the person intended, or whether there be any particular person in the contemplation of the killer, seeing "the killing a man, not any particular man, is murder."1 This is constantly illustrated in the case of soldiers firing on a mob, where no particular individual is selected for vengeance, or if there is, it generally occurs that the shot takes effect on a person at a distance, and comparatively innocent. Nay the same shall, though the fatal stroke, missing the person for whom it was intended, shall take effect upon an indifferent spectator, or on the dearest friend of the pannel, and whom at the hazard of his life he would have protected from any injury.2 In the case of Peter Robertson, 18th April 1818, it appeared that the pannel had, in a fit of passion, thrown a pair of tongs at his servant, which missed her and killed his own child: he was found guilty of culpable homicide; because the instrument used, as applied to the person against whom it was directed, did indicate a reckless intent. But, in the case of Andrew Ewart, already noticed, February 11. 1828, the pannel shot a companion of his own in the Churchyard of Libberton, whom he mistook for a resurrection man; and as the case would have been murder as against the resurrection man, it was adjudged nothing less though the shot had taken effect on the pannel's friend; and he had sentence of death.1 Judgment was long ago given to the same effect in the case of Carnegie of Finhaven, who hastily thrusting at Lyon of Bridgeton, 1 Burnett, 5.-2 .—2 Hume, i. 22, 23.—3 Ibid. i. 23.-1 Syme, 321. killed the Earl of Strathmore, to whom he bore the highest regard. In general, therefore, the rule is, that the law recognises no distinction between the case of the person killed having been intended or any other individual, but judges of the criminality of the accused precisely as it would have done had the fatal act taken effect where it was intended. The law of England is the same on this head. If it appear from circumstances that the injury intended to A, whether by poison, blow, or any other means of death, would have amounted to murder if he had been killed by it, it will amount to the same offence if B happen to fall by it.2 So, where A gave a poisoned apple to his wife, intending to kill her, and she gave it to her child, and it died in consequence, this was held to be murder, though the husband being present, tried to dissuade the wife from so doing.3 And the same was held where a woman mixed poison with some medicine received from an apothecary to kill her husband; and the poison not having proved fatal, the apothecary, to vindicate his reputation, tasted it himself, and it proved fatal to him.1 The crime will also be murder if death ensue in consequence of such acts, though directed against no particular person, as necessarily, or by reasonable probability, may be presumed to kill some one or other. Thus if a person fire from a window into a crowded street, or discharge a cannon loaded with small shot up a crowded alley, and death ensue, this seems to be nothing short of murder.5 Thus, in the case of James Niven, March 1796, it appeared that the pannel having loaded a small cannon with powder and a bit of iron, and pointed it up a lane or street of common passage, and fired it off there, when two persons were standing in the direction of the piece, and several others were passing at the time, this was held by the Court to be murder; though the accused, from defect of evidence, was acquitted by the jury. 18. It is murder if death ensue from an intention not to kill, but to do some other highly wicked and felonious act. Hume, i. 22.2 Hale, i. 441.3 Hale, i. 436; Russell, i. 659.-1 Hale, i. 436; Russell, i. 659.5 Hume, i. 23.6 Ibid. 3 If a person give a potion to a woman to produce abortion, and she die in consequence, this will be murder in the person giving, if the potion given was of that powerful kind which evidently put the woman's life in hazard.1 Thus, in the case of Robert Dalrymple and Robert Joiner, 10th May 1785, it was found a relevant charge of murder to state that the pannels gave a violent drug to two young women without their knowledge to procure abortion, and that they died in consequence in the same night.2 In like manner, if one wilfully set fire to a house with intent merely to destroy a building, but the fire kill an individual, this will be held as murder, though the fireraiser had no reason to believe that any person was in the house; or if he set fire to a stack-yard, and the flames spread to a dwelling-house, and kill any of the inmates, this is nothing less than murder. So also if a person proceed to the highway with intent to rob, and he attack a passenger, who resists, and in the struggle the passenger is killed, this also is murder; and this will hold though the robber has carried out no lethal weapon, and the fatal result ensue from the passenger falling in the struggle and breaking his neck. In like manner, if one from the desire of lucre set fire to a house of his own which is insured, and a life is lost in consequence in that house, or in his neighbour's, to which the flames have spread, this appears to be no lesser crime; for here equally, as in the other cases, death has ensued in consequence of the commission or attempt to commit a highly criminal act. The same would hold if a man, in attempting to ravish a woman, should kill her; or occasion the death of a child by indecent and libidinous practices. 6 But it is not to be understood that in every case it will be held murder if a person be versans in illicito, and death ensue. Thus, if a person be poaching, and, while shooting at game, he kill a person, this will be only culpable homicide; and in like manner if he shoot a fowl, intending to steal it, this will amount to no higher crime. Perhaps the safest rule that can be stated on this subject is, that homicide, though not originally intended, will be held as murder which is committed during the commission, or in the attempt to commit, a capital crime, 1 Hume, i. 264; Burnett, 5.-2 Burnett, 5; Hume, i. 263.-3 Burnett, 6; Hume, i. 24. Hume, i. 24.5 Ibid.— Ibid. i. 25.-7 Burnett, 6. or one obviously hazardous to life; but that, where it ensues, without being intended, during the course of an inferior delinquency, and from which no peril to life could reasonably have been anticipated, it will amount to culpable homicide only. The law of England on this subject recognises a variety of distinctions, which do not appear to have obtained a footing in our practice. Wherever an unlawful act, or an act malum in se, is done in prosecution of a felonious intent, and death ensue, it will be murder: as, if A shoot at the poultry of B, intending to steal the poultry, and by accident kill a man, this will be murder, by reason of the felonious intention of stealing; and if trespassers in deer parks kill the keeper, it is murder, even though the keeper had assaulted them first, and they fled and did not turn, till one of their party had been wounded. But if the death has ensued from the mere design to commit a trespass, it will be manslaughter only; as if a man kill another in firing at a fowl wantonly, and without the intent to steal. Generally, if any one voluntarily, knowingly, and unlawfully, intends to hurt the person of another, and produce death, his crime will be construed manslaughter or murder, according to the circumstances of the instrument used, and the manner of using it. So, throwing stones wantonly in play will, if it produce death, be construed manslaughter, or if fatal consequences follow any unlawful sport.1 3 19. Deliberate duelling, or fighting with lethal weapons, if death ensue, is murder; if with weapons not lethal, culpable homicide. Nothing is better established in law, how much at variance soever it may be with prevailing opinions or prejudices, than that where death ensues in a duel, it is murder, how fair and honourable soever the conduct of the parties may have been; and this equally in the receiver as the giver of the challenge.5 For the deliberate intention to kill, or put the life of a fellow creature in hazard, can never be either justified or alleviated, on the ground of any provocation. There is an essential dis 1 Foster, 258, 259; 259.-3 East. i. 256.— 6 Hume, i. 239. 6 East. i. 256; Russell, i. 661.- 2 Hale, i. 475; Foster, |