pulsion be by threats only,' or the command of one having authority.2

So where a parent, guardian, master, or other person, having the custody of a child, apprentice or servant of tender years, or of a sick man, insane man, or idiot, exposes him to a situation of manifest danger to life, or is guilty of gross neglect or cruelty towards him, and death ensue in consequence, it is a killing.

6

3

As where a parent places a helpless infant in a hog-stye, where it is devoured; or on a rock at sea, where it is washed away;5 or leaves it in a remote field, where it is destroyed by wild beasts or birds of prey, or trodden upon by cattle; or exposes it, where it may perish with cold or famine, or want of care;' or a parent, master, or guardian refuses to furnish a child or apprentice of tender years or infirm health, to whom he owes support, with sufficient or proper sustenance, or lodgings or clothing; or town officers, to avoid a charge, shift a child from town to town, without sufficient food, or clothing, or other care; or one carries his sick father, against his will, abroad in an inclement season; in each case, if the duty violated be plain, and the danger apparent, and death ensue in consequence of the act or neglect, it is a killing.

10

So where a jailer confines a prisoner in the same cell with an outrageous madman unbound; or with a person, dying of a malignant or contagious disease; or thrusts him into a loathsome and

1 Evans's C., O. B. Sept. 1812, MS. Bayley, J. in 1 Russell, 425.

2 Freeman's C., 4 Mason's R. 505. Here the defendant, the master of a ship, compelled a seaman in a state of great exhaustion and debility, known to the master, to go aloft, and the seaman fell from the mast and was drowned. The master was convicted of manslaughter.

31 Hale, 431, et seq.; 1 East, ch. 5; 3 Inst. 53; Kely. 56; 1 Russell, 426; Archbold, 319; 1 Hume, 279, and other authorities, infra.

4 1 East, ch. 5, § 13.

• Helen Wilson's C. 1 Hume, 278.

* 1 Hale, 431; 1 Hawk, ch. 31, § 5.

7 Beal's C. 1 Leon. 327; Margaret Smith's C. 1 Hume, 279.

Squire's C. 1 Russell, 426, note (n); Self's C. 1 Leach, 127; Gould's C. Salk. 381; Ridley's C. 2 Camp. 250; Elizabeth King's C. 1 Hume, 279. • Palmer, 545; Holloway's C. 1 Russell, 425.

10 1 Hawk, ch. 31, § 5; 1 Hale, 431-2.

pestilential dungeon, knowing the danger, and death follows in consequence, it is a killing by the jailer.'

It is not a killing, in any case, to give false testimony against the defendant in a capital trial, though he be, on this testimony, convicted and executed; nor to occasion death by the operation of words or signs upon the imagination or passions."

The words in the text are taken almost literally from the work of an eminent writer upon the Scotch criminal law, to which we have been much indebted, especially for illustrations, (1 Hume, 281), but the doctrine is undoubtedly that of the English common law. Britt. C. 11 § 9; Staunf. 36; 3 Inst. 52; Palmer 548; 1 Hale, 466; 1 Hawk. ch. 31 § 10, note; Foster, 322; Huggins's C. 2 L'd. R. 1574; 2 Stra. 882; Caster v. Bambridge, 2 Stra. 856; 1 East, ch. 5, § 92; 1 Russell, 459; Bac. Abr. Murder A. See the cases of Huggins, Bambridge and Acton, as reported at length in the State Trials, (Hargrave) 17 vol. (quarto) 310-452, et seq. (folio) 9 vol. 107, 146, 182, et seq.

The early writers laid down the law to be, that it was a killing to take away the life of another, by swearing deliberately falsely in a capital trial. Mirror, ch. 1, § 9; Britt. ch. 52; Bract. B. 3, ch. 4, and see 1 Hawk. ch. 31, § 10. But lord Coke says, (3 Inst. 48) "It is not holden for murder at this day," and such seems now to be the weight of authority. The only case we find is that of McDaniel and others, reported in Foster, 132, and 1 Leach, 44. The defendants were convicted, but judgment was respited, in order that the question of law might be fully considered. But the attorney general declined to prosecute the case further, and the prisoners were discharged from the indictment. The opinion of sir Michael Foster was against the indictment. Sir William Blackstone, however, says, (4 Com. 196) that the attorney general did not press the point on account of prudential reasons, and not from any apprehension that it was not maintainable, and in East's P. C. 50, it is added, that lord Mansfield had said, that the opinions of several judges, including himself, were strongly in favor of the indictment. Most of the more recent writers, however, seem to incline against holding it to be a killing. (4 Blk. Com. 196-7), Chitty's note, 1 Russell, 427; 3 Chitty, 726; Archbold, 319; Roscoe, 573; 10 Am. Jurist, 261; and see Staundf. 36. By our Revised Statutes, (p. 732) a particular punishment is provided for perjury in a capital trial. The Gothic laws punished this offence with death, 4 Blk. Com. 196, quotes Steirnh. de jure Goth. L. 3, ch. 3. See also, D. 48, 8, 1; and Pothier's Pandects, 48, 8, No. 3, by which it would seem, that in the Roman law, the judge also, if he were bribed, and under the influence of the bribe, improperly condemned a man who suffered death in consequence, was guilty of murder.

3 This seems to be the well established doctrine of the common law. The distinction between destroying life by mechanical means or bodily injury,

But if words or signs are used, inducing to an act, which causes death ; as if a blind man be directed to a precipice, or a deadly drug be recommended, and death ensue in consequence, it is a killing.1

So where one counsels or assists another to commit suicide, and he does commit it, it is a killing by him who thus counsels or assists.

and by operating upon the fears or passions, appears not to be derived from any difference in the criminal nature of the acts, for the latter in many cases may show the deeper design and darker malignity, but from the difficulty in the latter of the proof connecting the act with the result, and the dangerous latitude of the opposite principle. 1 Hale, 429; 1 East, 225; 3 Chitty, 726 ; 1 Russell, 425; 4 Starkie's Ev. 514; Roscoe, 470. See P. & F. Med. Juris. 110, note (a.) Mr. Livingston recommends the same provision in his project of a code, (p. 437); and Mr. Hume, (1 Hume, 267), states it to be the law of Scotland, and quotes the case of William Duff, of Braco, and others, who terrified a woman in childbirth, so that she died, but were yet acquitted of homicide. The British commissioners propose the opposite principle for the code of India, (ch. 18, § 294, illustration (b)), and in a note, (App. pp. 67–8), defend their opinion, and attack the doctrine of Mr. Livingston, without mentioning that it is also that of the common law, in an able and elaborate argument. We give a short extract. "There will be, indeed, few homicides of this sort. It appears to us that a conviction or even a trial in such a case, would be an event of extremely rare occurrence. There would not probably be one such trial in a century. It would be most difficult to prove, to any court, that death had really been the effect of excitement produced by words. It would be still more difficult to prove, that the person, who spoke the words, anticipated from them an effect, which, except under very peculiar circumstances and upon very peculiar constitutions, words would not produce. Still, it seems to us that these points might be made out by overwhelming evidence; and, supposing them to be made out, we are unable to perceive any distinction between the case of him, who voluntarily causes death in this manner, and the case of him, who voluntarily causes death by means of a pistol, or a sword;" and they put many supposed cases in illustration.

1 Davis's Cr. Law, 94; Liv. 437; and see Evans's C. and Freeman's C. above cited. The illustrations here are borrowed from Mr. Livingston.

2 Vaux's C., 4 Rep. 44, (b); 1 Hale, 431; 1 Russell, 424-29; 4 Blk. Com. 188; 1 Chitty, 726; Dyson's C., R. & R. 523; Bowen's C., 13 Mass. R. 356. The annotator in Wheeler's C. C. 231, appears to doubt this principle, but, it would seem, without any ground in reason or authority. Bowen's case is at any rate decisive as to the common law of this commonwealth. In New York, the adviser is guilty of manslaughter only, (2 R. S. 661 § 7). In

Where the hurt done is of a dangerous character, and the efficient cause of death, although there be a predisposing habit or condition of body, without which it would not have been fatal, it is, nevertheless, a killing by means of such hurt.'

most of the foreign codes, he is punishable as guilty of an offence less than murder.

Martin's C., 5 C. & P. 128; Ramsay's C., 1 Hume, 183; 1 Hale, 128, where lord Hale says that he has often heard that wise and learned judge, Mr. Justice Rolle, so direct; 1 Russell, 429; Archbold, 319; Roscoe, 544-6, quotes Alison, 149; Davis's Cr. Law, 94. The ruling of Hallock, B. in the case of Johnson, at nisi prius, York Assizes 1827, of which there is a meagre report in Lewin's Crown Cases, 164, would seem to be in conflict with this principle. There the defendant was indicted for killing the deceased while in a state of intoxication by a blow, which the physician testified might not have produced death if the party had been sober. Hallock, B. directed an acquittal, observing, that "where the death was occasioned partly by a blow, and partly by a predisposing cause, it was impossible to apportion the operations of the several causes, so as to be able to say with certainty that the death was immediately occasioned by any one of them in particular." The commissioners believe, that the doctrine thus laid down and applied to the case then on trial, cannot be the law. It is entirely at variance with the principle established by the previous authorities, and stated in the text; for it would be as applicable to any other predisposing cause, the infirmity of age and sickness, for instance, as that of intoxication. Roscoe questions the correctness of the decision, and it has nowhere, that the commissioners can see, any support in reason or authority. A case, involving the same question, was before the supreme judicial court of this commonwealth, (Suffolk, Jan. 1817) but the report of it (in pamphlet) does not enable us to state very precisely, the opinion of the court. Phillips, the defendant, was indicted for the murder of Denegri, by striking him on the head with a loggerhead, which produced an inflammation of the brain, of which he died. The physicians agreed in their testimony, that the blow was the immediate cause of the inflammation, which resulted in death; but that this inflammation was much increased, and perhaps rendered fatal, by the deceased's intoxication, at the time of the blow, and his subsequent exposure. The court seems to have ruled, (see charge of Parker, C. J. p. 16), that upon these facts, there was a sufficient killing, and the defendant was convicted and executed.

This question has been much discussed in other countries, and at different periods, and the doctrine of the text has been almost universally supported.— Such was the Aquilian law as to what should be deemed a killing, D. 9, 2, 7, § 5; Pothier's Pand. 9, 2, No. 4; for "that may be fatal to one, which is not so to another," and it is sufficient, if the injury be mortal in the particular

As if one, infirm from age or sickness, die of blows which would have done little injury to another of ordinary strength or health, it is a killing by him who gave the blows.'

case, so in Tittman's Compendium of the common criminal law of Germany, (published in German, 1822), it is said, "wounds may be mortal, either, first, generally, or secondly, only in the particular instance, according as they would always produce death, upon every human being, or only do so, in consequence of the peculiar bodily condition of the individual; as where the imperfection or peculiar condition of the body, gives to the wound a greater opportunity to become fatal. As for example, where there is an unnatural organization or defective structure of the body: or a particular weakness of any internal or external part, as of the heart or skull; or where the fluids of the body are corrupted; or where there are particular states of the body, as where the deceased is sick or pregnant, or of an advanced or tender age, or the stomach is unduly distended or the like;" and it is held to be equally a killing, whether the wound be such as produces death in the particular case, or such as would always and necessarily be fatal to all. See also Feuerbach's Compendium of the common penal law of Germany, (12th ed. 1831), 208, pp. 194, and note (b) by Mittermaier. Similar provisions exist in most of the foreign codes. Thus, in that of Saxony, (promulgated March 30, 1838), it is provided, (ch. iv. art. 120)" In reference to the crime of killing, it is of no consequence to the legal adjudication of the mortality of the injury, whether a similar injury might not in other cases be cured by the aid of skill; whether the fatal event might not have been averted by the timely application of proper means; whether the injury was such as would have been, in general, mortal, or occasioned death in the particular instance, only by the peculiar state of the body of the deceased." So in the project of a code for the Grand Duchy of Baden, (by Mittermaier, 1838) part ii. title 10, § 178. "Every injury is to be considered mortal, which has as the acting cause in the particular case produced death, without any distinction as to whether the fatal result might not have been, in other cases, averted by the help of art; whether even in the present proper means would not have prevented it; whether the injury, immediately, or through other intervening causes growing naturally out of it, has produced the death; whether the injury would have been, in general, mortal, or was so in the particular instance only, on account of the peculiar bodily condition of the individual, or the accidental circumstances, under which it was committed upon him." The same principle is contained in the Revised Penal Code of Bavaria, (1827) ch. xiv. art. 204; Criminal Code of the Canton of Basle, (1835) title iii. A. § 118; project of Criminal Code of Norway, (1835) ch. xiv. § 28; of Wurtemburg, (1836) title ii. ch. 1, art. 223; of the kingdom of Hanover, (1830) § 224; of the Grand Duchy of Hesse, title 32, art. 216, and in several others.