manslaughter, and that whether he is regularly qualified to act or not.-4 Car. & Payne, 398, 423; 1 Hale, 429.

To make the killing in any case murder, the party must die within a year and a day after the stroke received or cause of death administered; in the computation of which the whole day on which the hurt was done shall be reckoned the first.-1 Hawk, c. 31, s. 9.

If a person hurt by another die thereof within a year and a day, it is no excuse that he might have recovered if he had not neglected to take care of himself.-Ibid. s. 10; 1 Hale, 428.

But if it clearly appears that the death was caused by improper applications to the wound, and not by the wound itself, it is otherwise.-1 Hale, 428.

To kill a child in its mother's womb is not murder; but if it be born alive and die by reason of the potion or bruises it received in the womb, it seems to be murder, though there have been opinions to the contrary.--3 Inst. 50; 1 Hawk. c. 31, s. 16; 1 Hale, 433.

And by 9 Geo. IV. c. 31, sect. 13, it is a capital felony to administer a noxious thing, or use an instrument to procure the miscarriage of a woman quick with child, and a transportable felony where she is not proved to be quick with child.

As to the words "the king's peace" in the definition of murder, they mean merely that it is not murder to kill an alien enemy in time of war, and in the actual exercise thereof, for it is murder even to kill an alien enemy within the kingdom, unless in the actual exercise of war.-1 Hale, 433.

The malice aforethought" may be express or implied; express, as where the circumstances prove an inward intention against the individual; implied, as where a man discharges a gun among a multitude of people and thereby kills one of them, or kills upon slight provocation, or kills an officer of justice in the execution of his duty, or intending to commit another felony undesignedly kills a man,Arch. 313, 314.

In general all homicide is malicious and amounts to

murder, unless it falls within one of the several cases above specified, of innocent homicide or manslaughter. "And all the circumstances of justification, excuse, or alteration, it is incumbent upon the prisoner to make out to the satisfaction of the court and jury, the latter of whom are to decide whether the circumstances alleged are proved to have actually existed; the former, how far they extend to take away or mitigate the guilt. For all homicide is presumed to be malicious until the contrary appeareth upon evidence." -Fost. 257; 4 Bl. Com. 201.

Murder is felony at common law.

By 9 Geo. IV. c. 31, s. 3, every person convicted of murder, or of being an accessary before the fact to murder, shall suffer death as a felon. And every accessary after the fact to murder, shall be liable at the discretion of the court to be transported beyond the seas for life, or to be imprisoned, with or without hard labour, in the common gaol or house of correction for any term not exceeding four years.

By sect. 4, every person convicted of murder shall be executed according to law on the day next but one after that on which the sentence shall be passed, unless the same shall happen to be Sunday, and in that case on the Monday following; and the body of every murderer shall after execution either be dissected or hung in chains, as to the court shall seem meet; and sentence shall be pronounced immediately after the conviction of every murderer, unless the court shall see reasonable cause for the postponing the same. And such sentence shall express not only the usual judgment of death, but also the time hereby appointed for the execution thereof, and that the body of the offender shall be dissected, or hung in chains, whichsoever of the two the court shall order. Provided always, that after such sentence shall have been pronounced it shall be lawful for the court or judge to stay the execution thereof if such court or judge shall so think fit.

By sect. 6, every person convicted of murder shall after judgment be confined in some safe place within the prison

any

apart from all other prisoners, and shall be fed with bread and water only, and with no other food or liquor, except in case of receiving the sacrament, or in case of sickness or wound, in which case the surgeon of the prison may order other necessaries to be administered: and no person but the gaoler and his servants, and the chaplain and surgeon of the prison, shall have access to any such convict without the permission in writing of the court or judge before whom such convict shall have been tried, or of the sheriff or his deputy. Provided always, that in case the court or judge shall think fit to respite the execution of such convict, such court or judge may by a license in writing relax during the period of the respite all or any of the restraints or regulations hereinbefore directed to be observed.

By 2 & 3 Will. IV. c. 75, s. 16, so much of the last-mentioned act as authorizes the court if it shall see fit to direct that the body of a person convicted of murder shall after execution be dissected, is repealed; and it is enacted, that in every case of conviction of any prisoner for murder, the court before which such prisoner shall have been tried shall direct such prisoner either to be hung in chains, or to be buried within the precincts of the prison in which such prisoner shall have been confined after conviction, as to such court shall seem meet; and that the sentence to be pronounced by the court shall express that the body of such prisoner shall be hung in chains, or buried within the precincts of the prison, whichever of the two the court shall order.

By 25 Geo. II. c. 37, sect. 9, (the only section of this act which remains unrepealed by the effect of the two acts last cited,) if any person shall by force set at liberty, or rescue, or attempt to rescue or set at liberty any person out of prison who shall be committed for or found guilty of murder, or rescue, or attempt to rescue, any person convicted of murder going to execution, or during execution, every person so offending shall be deemed guilty of felony, and shall suffer death, without benefit of clergy.

By 9 Geo. IV. c. 31, sect. 7, if any of his majesty's subjects be charged in England with any murder or manslaughter, or with being accessary before the fact to any murder, or after the fact to any murder or manslaughter, the same being respectively committed on land out of the United Kingdom, whether within the king's dominions or without, he may be tried under a commission of oyer and terminer in any county or place that shall be appointed by the lord chancellor, or lord keeper, or lords commissioners of the great seal.

Proviso that persons entitled to privilege of peerage may, if indicted under such commission, be tried by their

peers.

By sect. 8, where any person being feloniously stricken, poisoned, or otherwise hurt upon the sea, or at any place out of England, shall die of such stroke, poisoning, or hurt in England, or being feloniously stricken, poisoned, or otherwise hurt at any place in England, shall die of such stroke, poisoning, or hurt upon the sea, or at any place out of England, every offence committed in respect of any such case, whether the same shall amount to the offence of murder, or of manslaughter, or of being accessary before the fact to murder, or after the fact to murder or manslaughter, may be dealt with, inquired of, tried, determined, and punished in the county or place in England in which such death, stroke, poisoning, or hurt shall happen, in the same manner in all respects as if such offence had been wholly committed in that county or place.

By section 11 of the same act, attempts to murder are in certain cases made capital felonies, as to which see post, Ch. XIII.

3. Self-Murder.

This consists in a man's deliberately putting an end to his own existence, or committing any unlawful malicious act, the consequence of which is his own death-as if attempting to kill another he runs upon his antagonist's

sword, or shooting at another the gun bursts and kills himself.-4 Bl. Com. 189; 1 Hale, 413.

But the act must be strictly his own, for if a man desire another to kill him, who complies, the person killed is not felo de se, though the killer is a murderer.-1 Hawk. c. 27, s. 6; 1 Russell, 424, 426.

So he must be of years of discretion, and in his senses. -4 Bl. C. 189.

There may be an accessary before the fact to self-murder, for if a man persuades another to kill himself, and he does so, the adviser is guilty of murder, as an accessary before the fact.-4 Bl. C. 189; Keilw. 136.

But if the adviser be also present and abetting at the self-murder, he is guilty of murder as a principal.

By 4 Geo. IV. c. 52, s. 1, it shall not be lawful for any coroner, or other officer having authority to hold inquests, to issue any warrant or other process directing the interment of the remains of persons against whom a finding of felo de se shall be had, in any public highway; but such coroner or other officer shall give directions for the private interment of the remains of such person felo de se, without any stake being driven through the body of such person, in the churchyard, or other burial-ground of the parish or place in which the remains of such person might, by the laws or customs of England, be interred, if the verdict of felo de se had not been found against such person, such interment to be made within twenty-four hours from the finding of the inquisition, and to take place between the hours of nine and twelve at night. Proviso not to authorize the performing of any of the rites of Christian burial on the interment of the remains of any such person, nor to alter the laws or usages relating to the burial of such person, except so far as relates to the interment of such remains in such churchyard or burialground at such time and in such manner.

By self-murder all the chattels, real and personal, which the felo de se has in his own right, are forfeited, and also all chattels real whereof he is possessed either jointly with his wife or in her right, and also all bonds and other per