Criminal Litigation


Every homicide is prima facie murder ; for every man is presumed to have known and to have intended the natural and necessary consequences of his act. It lies on the accused, therefore, to reduce his offence from murder to manslaughter, or to excuse or justify it. “When any man takes away the life of another, the law presumes that he did it of malice aforethought, unless there be evidence to show the contrary,” ^ ” Where it appears that one
person’s death has been occasioned by the hand of another, it behoves that other to show from evidence, or by
inference from the circumstances of the case, that the offence is of a mitigated character and does not amount
to the crime of murder.”- Hence it is for the person, who is proved to have caused the death of another, to bring forward evidence of any facts on which he relies to reduce the crime from murder to any lesser degree of homicide. If such evidence be tendered, it is for the jury to decide whether the facts alleged did really occur. On these facts, assuming them to have occurred, it is for the judge to direct the jury whether the prisoner should be convicted of murder or manslaughter, or is entitled to be acquitted altogether. In cases of doubt or difficulty, the jury may state the facts and circumstances in a special verdict, as they did in the case of ship^Tecked mariners who killed a boy to preserve theii* own lives.
If any man unlawfully causes the death of another with
malice aforethought express or implied, he is guilty of the
1 Per Rolfe, B., in ^. v. Kelly (ISiS), 2 C. & K. at p. 815.
2 Per Tindal, C. J., in R. v. Greenacre (1837). 8 C. & P. at p. 42.
» R. y. Dudley and Stephens (1884), 14 Q. B. D. 273.
felony of murder, and must be sentenced to death. ^ This
crime cannot be tried at Quarter Sessions. The gist of the
offence is the presence of ” malice afo]’ethought express or implied.” If this be absent, the crime cannot be more than^
manslaughter. ” On an indictment for murder the jury may convict the prisoner of manslaughter ; and it is the duty of the judge to inform the jury that they have power to do so, if they think it right, provided there are facts and
circumstances which would justify them in so doing ; and this is so “whatever the line of defence adopted by counsel ” for the prisoner.^ On this indictment also, if the victim be a child recently born, the prisoner can by
special statute be convicted of the misdemeanour of concealment of birth.^ The prosecution has in the first j)lace to prove that the
prisoner caused the death of the deceased within the meaning
of the rules laid down in the preceding chapter. As soon as
this is established, it will by a well-known rule of law be pre- sumed that the prisoner intended to cause that death. Hence
the burd(»n of proving that he did not in fact so intend lies strictly on him. But in actual practice the prosecution usually
accepts the onus of proving malice aforethought, instead of calling upon the prisoner to disprove it. What then is ” malice aforethought ” ? The phrase, in its original and only proper meaning, signifies this—that the
prisoner, before he struck the blow or did whatever other act caused the death, had conceived the deliberate intention of killing some one. It is not essential that the prisoner should
bear personal ill-will or hatred against his victim. Thus—
if A. deliberately intended to kill B. and does so
if A. deliberately intended to kill B. and kills (‘. in mistake for B. ; if A. deliberately intended to kill the first man he might
meet, and does so
in all three cases he is clearly guilty of causing death ^ith
express malice aforethought.
1 This is so, although the jury may have strongly recommended the prisoner to mercy, and although the judge is sure that the death penalty will not be inflicted. Since 1868 the execution must take place within the prison and in the presence only
of such persons as the sheriff may think it right to admit (31 & 32 Vict. c. 2i, s. 2).
2 R. V. Biipper, [1915] 2 K. B 431, 43.5.
3 24 & 25 Vict. c. 100, s. 60 18—2
If A. shoots at a man who is approaching him because he believes hira
to be his enemy B. and kills him, he is guilty of murder, although he sub- sequently discovers that the man whom he has killed is his friend C, or an
entire stranger. Such a mistake of identity makes no difference in the
quality and magnitude of the offence or in the amount of punishment due
to it. A. does iu fact intend to kill the man whom he sees approaching
him; and the fact that he erroneously Ijelieves him to be B. is immaterial. So where A. poisoned food and laid it where he thought B. would find it and eat it, but C, against whom A. had no ill-will, saw it fii-st, ate it and
died, A. was held guilty of murder.
A. incites B. to kill C, a person unknown to B. A. describes C. to B. and tells him where he will probably find C. at a certain hour. B. goes to that place at that hour and kills D., who answers to the description which
A. gave of C. A. is an accessory before the fact to the murder of D. A fugitive felon being pursued by the police enters a cottage and barri- cades the door ; he declares that he will shoot the first man who enters the cottage and does so, not knowing or caring who it is. He is guilty of murder, for he has caused death with malice aforethought ; it is not
necessaiT that the intention to kill should have been for any length of time preconceived.
If a criminal resists capture by an officer of justice, and kills him in order to escape, although he knows that he is an officer engaged in executing his ofiSce, the criminal is guilty of murder ; for his act makes it clear thac he intended to kill the officer if he could not otherwise succeed
in escaping. ^ It is in every case for the jury to determine whether the
prisoner intended to kill or not. In most cases they can look only at his acts or words, and infer from them his inward
intent. In some cases the existence of cii’cumstances which
suggest a jDossible motiye may bo material. In all cases the absence of any motive whatever for the crime will tell strongly
in the prisoner’s favour. Any words which amount to a
thi’eat to kill the deceased will also be material,^ unless they were spoken in great excitement or under the iniluence of drink or were Dierely vulgar abuse. A man’s acts, however,
are the best index to his intention. And whenever it is sought to convict a man of murder by purely circumstantial evidence, such evidence ought to be practically conclusive.^
It is a well-known rule of our law that every man must be presumed to know and to intend the natural and ordinary consequences of his acts ; and he is liable for all such con-
^ See 1 Russsll .^n Crimes, 7th ed., pp. 721 —728.
^ As, for instance. ” YouVe got to die,” in R. y. Linneker, [1906] 2 K. B. 99.
3 li. V. Franz (18(J1), 2 F. i: F. at p. 5s3.
sequences, even though he never intended or contemplated
that they would follow. This presumption is no doubt
rebuttable in certain cases.’ But if a man is aware that
certain consequences will probably follow the act which he
contemplates and yet deliberately proceeds to do that act, he must be taken to have intended those consequences to follow, even though he may have hoped that they would not.
If A. presents a loaded revolver at B.’s head and pulls the trigger, it is an almost irresistible inference from these facts that A. intended to kill B. Nor will the mere fact that he did not know for certain and took no pains
to ascertain whether the revolver was loaded or not, in any way excuse. the act. But the inference may be rebutted by clear proof that A. honestly and
on good grounds believed that the revolver was unloaded. Take, for instance, the case reported by Foster, .J.-:—A. went one Sunday with
his wife to have dinner at a friend’s house. Before entering the house he discharged his gun. During his visit his friend’s son, going out
shooting, took A.’s gun and on his return replaced it loaded where he had
found it. A. afterwards returned home with his wife, taking his gun with him, and feeling certain that it was unloaded,, presented it at his wife, pressed the trigger and to his horror shot his wife dead. He was acquitted ; f(jr, on the facts as known to him, it was impossible that his act should cause
death. Again, where the accused was drunk at the time when he struck the
fatal blow, the condition of his mind may be urged upon the jury as a ground for reducing the crime to manslaughter ; for it lessens the probability that he had formed any intention to kill. The presumption of such an intention drawn from his act will be rebutted by proof that he was in such
a state of drunkenness that he was incapable of forming any such intention.^ It is not necessary for him to prove that his state of mind was one
bordering on insanity. On the other hand, it is no defence to prove merely
that he was drunk. It must be shown ” that his mind is so affected by the drink he has taken that he is incapable of knowing that what he is doing
is dangerous, i.e., likely to inflict serious injury.” “* But cases ma}’ arise in which it is quite clear that as a matter of fact the prisoner did not intend to cause death
or grievous bodily harm to any one. Xevertheless, as the law stands at present, he may be found guilty of murder in a few such cases, and then malice aforethought is said to be
1 Per cur. in R. v. Meade, [1909] 1 K. B. at p. 899 ; and see ante,^. 116.
2 Anon. (1750 circa), Foster’s Crown Cases, 265.
* R. v. GrliMleil (1819), I Russell on Crimes, 7th ed., 88 (b) ; U. v. Boherty (18S7), 16 Cox, .306. * Per cur. in R. v. Meade, .sujtra ; nn-l see R. v. Beard (1911′), 11 Cr. App. Rep.
lie, and (H.L.) The Timex, March 6th, 1920.
implied. These are known as cases of ” constructive murder,”
and in them the term malice aforethought takes a wider
meaning. The hiw on the point is not quite clear, but it may- be stated thus :

]\[alic(^ aforethought will be implied as a matter of law, not
as an inference of fact, whenever the following circumstances concur :

(i.) the prisoner must intend to do an act which is either a felony or one of the graver misdemeanours
(ii. ) in the course of doing that act he must cause the death
of a human being ; (iii.) he must have known or ought to have known that such consequence would necessarily or in all ^probability follow from his act ; and
(iv.) if in spite of such knowledge or in disregard of the obvious facts he deliberately persists in his criminal design
and death ensues, he is guilty of murder.
A. imprisoned his wealthy uncle, B., and kept him without food or drink for three days, hoping thus to force him to sign a deed conveying
certain lauds to A., which on B.’s death would otherwise pass to another nephew, C. B. refused to sign this deed, and eventually A. released hiai ; for the last thing which A. desired was that B. should die before he had
signed that deed. B. died of exhaustion caused by his imprisonment and
starvation. A. has committed murder. A young man, A., quarrelled v,-ith an experienced swordsman, B., and
challenged him to fight a duel. Before the fight took place B. promised a
friend of A.’s that he would not hurt A. seriously ; he would ” only give him
a lesson.”‘ At the duel after some fencing, in which B. had A. entirely in
his power, B. thrust at A.’s shoulder, but A. unfortunately shifted his position at that moment, and the sword pierced his throat and killed him.
B. is guilty of murder.^ “Suppose chat a man, intending to commit a raj)e upon a woman, but without the least wish to kill her, squeezed her by the throat to overpower
her, and in so doing killed her, that would be murder. I think that every one would say in a case like that, that when a person began doing wicked
acts for his own base purposes he risked his own life as well as that of
others. That kind of crime does not differ in any serious degree from one committed by using a deadly weapon, such as a bludgeon, a pistol or a
knife. If a man once begins attacking the human body in such a way, he must take the consequences if he goes further than he intended when he began.” 2
1 See Errington’s Case (1838), 2 Lewin, 217.
2 Pfir Steplieii, J., in B. v. Seme and GoUlJinch (1837), Ki Cox, at p. 813 : and see R. V. Luinley (lal2), 22 Cox, mi>, post, p. 281.
CONSTEUCTIV^E MURDEK. 279 But why should malice aforethought be implied from the concurrence of the four circumstances set out above? It
is no longer a question of arguments pro and con on an issue
of fact, Did the prisoner intend to kill a human being or did he not ? It is admitted by the prosecution that he did not. He intended to do something quite different. But he intended
to commit a serious crime, and a crime moreover of a kind
which was likely to cause death or grievous bodily harm. These consequences he did not intend or desire ; but ho
either was or ought to have been aware that such conse- quences w^ould probably follow from the crime which he was
about to commit. There is, therefore, in his mind the ordinary mens rea, the intention to commit a crime ; and there is something more—-recklessness or heedlessness as to the probable
consequences of his act. Eeckless indifference as to the con- sequences of a criminal act may, no doubt, be stigmatised as malice. But heedlessness is not malice, and neither of them
surely amounts to malice aforethought. We venture therefore to state that in our opinion the law of constructive murder
should be abolished, and the term “malice aforethought”
restricted to cases in which the prisoner really intended to kill some one. Xo man should be hanged merely in obedience to a
legal presumption.
In the last two centuries the law on this point was frequently laid down
in terms more stringent than those stated above. Malice aforethought
cculd according to these authorities be implied from the prisoner’s hitention
to commit a felony, even though his act was not dangerous in itself and
not likely to cause death or grievous bodily harm to any one. Lord Coke,
indeed, had laid down a far wider rule, namely, ” If the act be unlawful, it is murder.” ^ He cited Bracton as his authority and gave as an instance of
this rule the following example : —”If A. meaning to steale a deei-e in the park of B. shooteth at the deer, and by the glance of the arrow killeth a boy that is hidden in a bush, this is murder, for the act was unlawful, although A. had no intent to hurt the boy, nor knew not of him. But
this dicfum was never followed. In favour of the prisoner the proposition was limited to felonious acts. If he intended to do an act which was a mere misdemeanour and in committing it unintentionally caused death, his crime was declared to be only manslaughter, even though its natural and
probable consequence was death. An intention to commit any felony was
1 3 Co. Inst. 56 ; see the remarks of Blackburn, J., on this point in R. v. Pembliton (1874), L. R. 2 C. C. R. at p. 121.
280 ‘ MURDER.
regarded as malice aforethought; au intention to commit a misdemeanour
was not. In tlie days when the penalty for almost every felony was death, enormous
importance was attached to the distinction between a felony and a mis- demeanour. Yet surely the presence or absence of implied malice afore- thought can no longer depend upon a distinction which now is merely
technical. It seems monstrous to assert that the well-known phrase that the prisoner ” did of his malice aforethought kill and murder J. S.” can
be taken to mean that the prisoner intended to steal the goods of A. B., and in stealing them accidentally killed J. S. Such killing clearly is not
malicious. Nevertheless, the proposition appears in many of the old books that, if one man in the course of committing any felony causes the death of
another, though unintentionally and without criminal negligence, malice aforethought will be irrebuttably presumed and he must be convicted of murder ; whereas, if the act which he was committing had been only a misdemeanour, he should be found guilty of manslaughter. No decision
of any Court, however, is cited in these books as an authority for this proposition ; nor is any reliable decision to be found earlier than 1762, the date of the first publication of Sir Michael Foster’s Crown Cases.^ The
proposition, indeed, appears to have been founded upon the following passage in that book – : —” A. shooteth at the poultry of B. and by accident
killeth a man ; if his intention was to steal the poultry, which must be
collected from circumstances, it will be murder by reason of that felonious
intent.” And this was copied over and over again as an unquestionable
authority. But as a matter of fact it is in direct conflict with a state- ment by an earlier writer, who is of at least equal, if not of even greater, authority.^ Sir Matthew Hale, C. J., in his Pleas of the Crown (written before 1676, but not published till 173()), lays it down that if A. threw ” a
stone to kill the poultry or cattle of B. and the stone hit and kill a
by-stander, it is manslaughter, because the act was unlawful, but not murder, because he did it not maliciously or with an intent to hurt the by-stander.” * The test in his judgment, then, is the presence of a malicious intent to hurt, and does not depend upon the distinction between a felony and a misdemeanour. Many cases, moreover, can be found in the old books in which a
prisoner, who had no intention to kill any one, was held to have committed murder, although his act which caused the death was not a felony but a misdemeanour. Thus a workman, who, without any warning to the people below, threw stones or rubbish from the top of a house into a public
1 Foster refers to the trial of Lord Morley (1666), reported in 6 St. Tr. at p. 770, for murder. But this case is no authority for the proposition ; for Lord Morley, who had under great provocation fought a duel and killed his opponent, was
acquitted of murder, but convicted of manslaughter. Foster also refers to Kelyng,
at p. 117, which gives a very hesitating statement of the law.
2 Discourse II., Of Homicide, pp. 2.58, 259.
8 Sii- Matthew Hale, born 1609, made Chief Justice of the King’s Bench 1671, died 1676. Sir Michael Foster, born 1689, made a puisne Judge of the King’s Bench 1745, died 1763.
* 1 Hale, 475. And see the discussion of this point, 3 F. & F. 288 (n.).
street at a time when he knew that it was crowded, was held guilty of murder.^ So was a man, who rode his horse violently into the midst of a crowd for the fun of seeing them disperse in alarm and so unintentionally
killed some one.- In both these cases, had no death ensued, the prisoner’s act would at common law have been only a misdemeanour ; and yet malice aforethought was implied. It is submitted, therefore, that it is no longer law that malice aforethought may be implied from the mere fact that the prisoner’s act which caused the death was felonious.^ Circumstances must also exist which show that the death was
the natural or probable consequence of the prisoner’s act, and
that the prisoner knew or ought to have known that this was
so. Some authority for this view will be found in the summing up of Stephen, J., in R. v. S<‘rne,^ in which he
says: —”I think that, instead of saying that any act done with intent to commit a felony and which causes death amounts to murder, it would be reasonable to say that any act known to be dangerous to life, and likely in itself to cause
death, done for the purpose of committing a felony, which
caused death, should be murder.”
The prisoner insured his house for a large amount and then set fire to it* Tuo of his little children were burnt to death. He was indicted for murder and acquitted, although his act was clearly felonious and directly caused the death of his children. He was subsequently indicted for arson and convicted.’^ If a man causes the death of a woman by raping her, he will probably not be convicted of murder, unless the attack upon her chastity was con- ducted with such brutality and violence as shows that the prisoner was
recklessly indifferent whether he killed her or not.*’ Again, more than one man has within living memory been hanged for causing the death of a woman
by administering a drug or performing an operation upon her with intent
to procure abortion.” But in a similar case in 1898, Bigham, J., told the
jury that they might find the prisoner guilty of manslaughter, if they thought that he could not reasonably have expected death to result from
his act.s And it has since been held by the Court of Criminal Appeal » that
1 B. V. Hull (1664), Kelyng, 40 ; but see B. v. Fenton (1830), 1 Lewin, 179.
2 Cf. B. V. Dant (1865), L. & 0. 667.
3 Though this has, no doubt, been laid down as clear law in many cases ; see, for instance, the summing up of Cockburu, C. J., in R. v. Desmond, Barrett and
others (1868), Times, April 28th.
* (1887), 16 Cox, at p. 313.
5 B. V. Ser?ie, supra. It is difScult to see why the prisoner was not on the first indictment convicted of manslaughter.
6 Ladd’s Case (1773), Leach. 96 : see 3 F. & F. 290 (n.)’.
T B. V. Russell (1832), 1 Moo. C. C. 356 ; and see the opinion expressed by
Erie, J., in R. v. Gaylor (1857), Dearsl. & B. at p. 293.
8 R. V. Whitmarsh (1898), 62 J. P. 711.
9 R. V. Luinley (1912). 22 Cox, 635.
where a person feloniously uses an instrument or other means with intent
to procure a miscarriage, and the woman dies in consequence of his felonious act, then, if when he did the act he must as a reasonable man have
contemplated that death or grievous bodily harm was likely to result, he is guilty of murder. But if when he did the act he had not at the time in contemplation, and could not as a reasonable man have contemplated, either
of those consequences, he is guilty only of manslaughter.
It is no defence to an indictment for murder that the
prisoner risked his own life, or that the deceased consented to expose himself to a similar risk. Thus, the facts that either party challenged the other to fight a duel, that the other accepted the challenge and met his antagonist at an agreed
time and place, are immaterial, if either party was killed in the duel. Any one, who incites or encourages another to kill a third person or even to kill himself, is liable, if death
ensues, as an accessory before the fact or, if present at the commission of the crime, as a principal in the second degree.
Where, upon a previous arrangement, and after there has been time for the blood to cool, two i^ersons meet with deadly weapons, and one of them is killed, the party who occasions the death is guilty of murder, and the seconds
also are equally guilty. With respect to others shown to be present, the question is, did they aid, assist, countenance or encourage the principals in their contest ? Mere presence will not be sufficient ; but if they sustain the
principals either by advice or assistance, or go to the ground for the purpose
of encouraging and forwarding the unlawful conflict, although they do not
say or do anytliing, yet if they are present, assisting and encouraging by
their presence at the moment when the fatal shot is fired, they are, in law, guilty of the crime of murder.^
If one of the combatants at a prize-fight is killed, the surviving combatant, both seconds and the referee are indictable for manslaughter ; so is any person who is present and encouraging the combatants.- But
mere voluntary presence at such a fight does not necessarily render those present guilty as aiding and abetting unless they do something to incite or encourage the combatants.^
So, if two persons mutually agree to commit suicide together, and the means employed to prodncc death take effect upon one only, the survivor
will, in point of law, be guilty of murder ; for each intended that the other should die, and each incited the other to commit the crime by agreeing
that he would himself commit suicide alsQ.^
1 R. V. Young mid Webber (1838), 8 C. & P. 644.
2 R. V. Murphy (1833), 6 C. & P. 103.
3 R. V. Coneij and others (1882). 8 Q. B. D. 534.
* R. V. Alison (1838), 8 C. & P. 418 : R. v. Di/so-n (1823), Russ. & Ry. 523. See
also R. V. Jcssop (1877), 16 Cox, 204.
The fact that the deceased coutributed to his own death is, as we have
seen, no defence.^ Any oue, who is convicted of being either a principal in the second degree or an accessory before the fact to a mnrder, is deemed as gnilty as the principal in the first degree and must
also be sentenced to death. An accessory after the fact to mui’der may be sentenced to penal servitude for life. An attempt to murder was a misdemeanour at common law, hat it has been made a felony by statute and is now punishable with penal servitude for
life.2 A conspiracy or incitement to murder any person is a misdemeanour
punishable with penal servitude for ten years. It is immaterial whether
the person, whose life is thus threatened, is a British subject or not, or is within the King’s dominions or not ; but the conspiracy must take place
in England.^
A murder is always triable in tlie coimty where it takes place,’* and murder on a British ship on the high seas is triable in the county in which
the ship first touched land. Murder committed by a British subject on any
land abroad may be tried in this country.^
1 Ante, p. 267.
2 24 & 26 Vict. c. 100, ss. 11—15 ; see post,


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