have reached him, he had procured money for the actual perpetrator, and had sent clothes to him, which were returned after the murder by a mutual friend. These circumstances, as indicating a fore-knowledge of the act, were justly held sufficient to implicate the pannel in the murder.1

2

If this be true of such accession after the fact as may seem nearly allied to assistance in its perpetration, much more will the same hold where all that is proved against the pannel is an attempt to screen the pannel from justice, or furnish him with the means of escape. Thus, in the case of Barbara Coutts, July 1746, her assisting to conceal the corpse of a murdered person, was only found relevant to infer an arbitrary punishment. And, in the case of Thomas Bryce, where a person was indicted as accessary to a murder, in respect he gave shelter to his son, who was taken red hand, and resisted a constable who was in pursuit, the plea that this did not amount to accession had the effect of extinguishing the prosecution. And, of course, all expressions of mere approbation, or satisfaction at the commission of the crime, how strong or pointed soever, will not per se involve the parties uttering them as accessaries to the principal offence, however important they may be when coupled with circumstances indicating previous knowledge or co-operation, as articles of evidence to infer legal accession."

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It only remains to add that, by our law differing in this particular from that of England, it is settled that the principal and accessaries may be tried on one and the same libel, and at one and the same time; 6 or the trial of the accessary may take place, though the principal has neither been charged, fugitated, nor is in custody, and, though not brought to trial, if he is accessible. Thus, in the case of James Edmonston, July 29. 1695, the pannel objected that he was brought to trial alone on a libel which stated that he was accessary to a murder committed by another; and it was strongly urged that the accessary could not be tried till the principal were convicted, or at least outlawed for non-appearance. The objection, after a full debate preserved in the record, was repelled. The like judgment had long before been given in the case of Muir of Auchindragne, July 1611, who objected without success, that Ken

1 Hume, i. 282; Burnett, 285.-2 Burnett, 287; Hume, i. 282.3 Maclaurin, No. 97. Hume, i. 282.-5 Burnett, 288; Hume, i. 282.-6 Hume, i 283; Burnett, 289.-7 Hume, i. 284. Ibid.

nedy, the actor, had not been discussed.' And the law was settled in the same way by the opinion of all the judges, delivered after great consideration in the case of Mackenzie v. Johnson and Jameson, 14. 1817.2 The species facti there was that Johnston was brought to the bar of the Court of Session for breach of interdict, committed by him as accessary to Mrs Taaffe, against whom the interdict had been directed. He pleaded that the accessary could not be tried till the principal had been discussed; but this plea, after being remitted for the opinion of all the judges, was overruled. The case was ultimately not pressed to a decision, on account of a compromise betwixt the parties; but the opinions of the whole judges were delivered on this point, and they were unanimous that this objection was ill-founded. When Burnett therefore asserts that the accessary cannot be tried till the principal is put to the bar, if the latter is in custody and can be tried, he is delivering what is not law.

3

According to the law of England, where divers persons resolve generally to resist all opposers in the commission of any breach of the peace, and to execute it in such a manner as naturally tends to raise tumults and affrays, as by going to beat a man, or rob a park, or standing in opposition to the sheriff's posse, they must, when they engage in such bold disturbances of the public peace, at their peril abide the event; and if, in doing any of these acts, they happen to kill, they will all be held guilty of murder. But in order to render the killing murder in all concerned, it must happen on account of the unlawful act in contemplation, and during the strife for its accomplishment, or within such a time thereafter as may leave it probable that no fresh provocation has intervened.1 Therefore, if divers persons be engaged in an unlawful act, and one of them with malice prepense kills a person, it shall not be construed murder in the rest, because it had no connexion with the crime in which they were engaged:5 so, where two men were beating another in the street, and a stranger made some observation upon the cruelty of the act, and one of the two drew a knife and stabbed the stranger, the other party was acquitted. Again, where a party of smugglers were met and

1 Hume, i. 283.-2 Unreported, First Division.-3 Hawkins, i. c. 31, § 51; Hale, i. 439; Blackstone, iv. 200; East. i. 257.4 East. i. 259.-5 Hawkins, c. 31, § 52.6 Ibid.

opposed by an officer of the crown, and during the scuffle a gun was discharged by a smuggler, which, by mistake, killed one of his own gang, it was agreed by the Court, that if this had taken effect on one of the King's party, or if the shot had been discharged in prosecution of the purpose for which the party was assembled, it would have been murder in the whole smugglers; but as it did not appear that the gun was discharged in prosecution of the common purpose, it was held to affect the person who fired it only.1

So far the English cases are analogous to our practice, and being obviously founded in reason and justice, they may fitly be quoted as authority in the Scotch courts. But in another particular the laws of the two countries vary, and this distinction must be attended to in this matter. They distinguish accessaries before the fact and after the fact, while aiding and abetting at the fact are considered as principals.2 An accessary before the fact is he who, being absent at the time the offence was committed, has yet procured, counselled, or abetted it. An accessary after the fact is one who, knowing that a felony has been committed by another, receives, relieves, comforts, or assists the felon. Any assistance given to one known to be a felon, in order to his being apprehended or tried, or suffering the punishment to which he is condemned, is sufficient to make a man an accessary of this description. Persons aiding and abetting at the commission of the crime, as by standing by or within sight or hearing of the fact, or keeping guard at a convenient distance, are not with them termed accessaries, but principals in the second degree. These principles have given. rise to a multitude of nice and subtile distinctions in this matter, which it would be useless to notice, as the difference of the two systems of law in this particular renders the precedents inapplicable to our practice.

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22. The crime of murder can only be committed on an existing human creature; but if it be alive, it is immaterial for how short a period life has to endure, or how worthless the being that is destroyed.

1 Foster, 352; and Marsell and Storbert's case; Hale, i. 440.—2 Blackstone, iv. 34-37; Hale, i. 529; Foster, 356.-3 Hale, i. 618. Ibid.; Blackstone, iv. 38.5 Blackstone, iv. 34, 35.

A child, though it has become quick, is regarded as pars viscerum matris, and not a separate being; and it cannot with any certainty be said whether it would have been born alive or not. The destruction of an unborn infant, therefore, though an atrocious crime, and severely punishable under a different denomination, is not murder.1 But if breathing once has begun, it is immaterial how frail may be the tenure by which life is held, or how worthless the existence which is terminated; and whether the person killed is an alien, a rebel at the horn, or a native Scotchman. A child which is only a minute old, or an old man on the brink of the grave, are equally entitled to have their lives protected by the pains of murder; for it belongs to the Supreme Disposer of events, not any human hand, to determine the duration of life, or prolong its thread.3

23. Murder may be committed not only by actual violence, or the administration of poison, but by such cruel and unnatural treatment as proves, though slowly and indirectly, fatal to life.

5

The law knows no distinction as to the mode in which human life is destroyed. It is equally murder, whether the deed be done by the hand of the pannel, as by shooting or stabbing, or by mingling poison with the food, which the intended victim takes of his own accord, or by exposing him to the wasting operation of some destructive power. Thus it is equally murder, if death ensue, to expose a new born infant, in a solitary place, and rigorous weather, as to squeeze its throat, or put a hand on its mouth. Nay, the same will hold with an infant or child, of maturer years, if exposed in such way, or in such circumstances, as to render the loss of life a matter of reasonable probability, and indicate an utter indifference as to the life of the sufferer, whether it live or die. Thus Elizabeth Key was indicted, and the charge found relevant, for the murder of her apprentice, a girl of eleven years of age, by carrying her out in the night, when sick and ailing, and exposing her in the open air, whereby she died of cold and hunger, though it was in the streets of a considerable town. The same would

Hume, i. 186.-2 Ibid. i. 183.3 Ibid. i. 190.- Ibid. Ibid. Aprik 10. 1699; Hume, i. 190.

hold if a parent or master were to confine his child or servant in a damp or unwholesome room, so that the victim of this cruelty at length sunk under its sufferings; or if a jailor should confine a prisoner in a cell with a maniac, or in one where the seeds of a contagious disorder are lurking, and should refuse to remove him, though he observe his dying condition,1 and, in consequence of such conduct, death should ensue.

By the Roman law, the like penalty was affixed to the case of one bearing false testimony against another, if a capital conviction follow. In England, however, it seems to be settled in the modern practice,3 different in that respect from the ancient common law,1 that this offence is not cognizable as murder. And, in Scotland, there seems to be no authority for holding that such an offence, how great soever, and however punishable as perjury or a conspiracy, could be made the subject of capital punishment.

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24. Legal evidence in murder, is founded either on the direct testimony of two witnesses, or of one witness with a train of circumstances, or of such a train of circumstances by themselves, as leave no reasonable doubt in the mind that the pannel was guilty.

Perhaps the most important branch of criminal law in practice, is one upon which little or no information is to be found in books, viz. the amount of evidence which is requisite to convict a criminal. This is, in an especial manner, the case in trials for murder, as the stake of the pannel is there so great, that the utmost exertions are rightly made by his counsel to screen him from punishment, and juries are perpetually misled by erroneous statements of what is really necessary to constitute legal proof.

It is matter of common observation, that legal evidence is something more than what produces moral conviction, and nothing is more usual than to hear jurymen say, when they have acquitted a prisoner who was clearly guilty, that they have no doubt of his guilt, but that they did not think it was legally proved. What, then, is it, which fills up that important mea

1 Hume, i. 190.-2 Dieg. lib. 48. tit. 8. 1. i.-3 Russell, i. 621.-4 Hawkins, i c. 31, §7; Blackstone, iv. 196.5 Leach, i. 44; Foster, 132.5 Hume, i. 186.