Where the hurt done is adequate to and does produce death, it is a killing by him who caused the hurt, although it appear, that, by the use of proper care, or more skilful means, a recovery might have been effected.

Thus if a wound be given, which opens an artery, and the man die from the loss of blood, it is a killing by means of the wound, though by ordinary diligence in procuring a surgeon, the wound might have been stanched and life preserved.*

And this is so, though the hurt be not directly, if it be naturally and efficiently, the cause of death.

As if a wound, though from neglect, turn to gangrene or induce fever, which is the immediate cause of death, it is a killing by him who gave the wound.3

But where the hurt done is not, in itself, either directly or mediately the efficient cause of death, but other positive and substantive agencies intervene ;

As where an injury, not adequate in itself to produce death, is made the occasion of death by means of injurious treatment or noxious medicines, it is not a killing by him, who caused the hurt.*

Thus where one by violence dislocates the arm of another, and an ignorant pretender operates upon the arm for several days, and a white swelling ensues, in consequence of the operation, which proves fatal, it is not a killing by means of the first violence."

1 Reeve's C. Kely. 26; Edgar's C. Roscoe, 573; quotes Alison, 149; 1 Burnett, 551; 1 Hale, 428; 4 Blk. Com. 197, note 30; 1 Hawk, 119; 1 East, 344; 3 Chitty, 726; 1 Russell, 428; Archbold, 319; 1 Hume, 184; 4 Starkie's Ev. 1; Wheeler, C. C. 264; Greene's C. Ashmead's R. 289; Davis, Cr. L. 94; Liv. 437.

1 Hume, 184, Edgar's C. above cited; Roscoe, 575.

31 Hale, 428; Reeve's C. above cited; I Russell, 428; Archbold, 319. 4 See citations in note, 1, supra. This part of the principle is somewhat ambiguously stated by the different authors and judges, and with many variations in phraseology. We have not followed either of them literally, but have endeavored to extract from a consideration of all, the true doctrine of the law, having regard as well to the reasonableness of the rule, as the authority by which it may appear to be supported.

• Macowan's C. Roscoe, 573.

So if death be owing to any incidental and supervening misfortune, which could not have been foreseen, having an accidental and remote connection only with the hurt, it is not a killing by means of such hurt.'

Thus where one, on account of a wound given, is sent to a hospital, where he takes the erysipelas by infection and dies of it ;here, though he would not have gone to the hospital, and so taken the erysipelas, but for the first injury, yet it is no killing by him, who gave the wound.2

So where one strikes another, injuring him seriously but not mortally, and the latter is in consequence placed upon a table or stool for examination, and he accidentally falls from the table or stool and dies in consequence of the fall, it is not a killing by the first.3

But where no agency, excepting such as occurs in the natural course of things, and has its efficacy by reason of the hurt, or the act of him, who gave it, intervenes between the hurt and the death, it is otherwise :

As where robbers give a wound to one, not mortal under common circumstances, and leave him disabled from the injury by the road-side, exposed to the cold, and the wound is thus made fatal, it is a killing by the robbers."

No person can be adjudged, by any act or omission, to have killed another, unless death ensue within a year and a day from the hurt done; in the computation of which period of time, the whole of the day on which the hurt was done, is included."

1 Wrigley's C. Lew. C. C. 171; Campbell's C. Roscoe, 575; quotes Alison,

4 Caldwell's C., Burnett, 552, in Roscoe, 576.

5 3 Inst. 53; 1 Hawk, ch. 31, § 9; 1 East, 343-4; 1 Russell, 428; 4 Blk. Com. 197; 3 Chitty, 726; 2 Deacon, 899; Davis, Cr. L. 95. The reason of this rule arises from the danger of connecting, as cause and effect, events, remote from each other in point of time.

The commissioners have not thought it necessary, either here or in any other part of the code, to introduce any particular rule, as to the proof of what

is called the corpus delicti, i. e., the proof of the fact of the killing. The law fixes the rules, as to the competency of evidence, but what ought to be considered sufficient proof in any given case, is generally matter of fact to be decided by the jury, in each instance, on its own circumstances, rather than of positive, legal, regulation. Some writers suppose that the finding of the body of the deceased, is the only sufficient evidence of the fact of the killing.

Lord Hale, with that humanity which is one of the best elements of his truly great character, and which nobly distinguishes him among the great criminal lawyers of England, says (2 Hale, 290) “I never would convict any person of murder or manslaughter, unless the fact were proved, or at least the body found," and he cites two cases of persons convicted on circumstantial evidence, of the murder of others, who were supposed to be dead, but afterwards proved to have been living. The case of the Bournes, of Manchester, Vt., convicted on circumstantial evidence and their own deliberate confession, of the murder of Colvin, who, it is said was proved to have been living, (Bennington county, Oct. 1819,) is of the same character, and has often been referred to, in illustration of the danger of such convictions. The passage from lord Hale is copied without remark by Blackstone, 4 Com. 358; Deacon (1 vol. 442) and Chitty speaks of it (1 Chitty, 563) as "a good general rule." Russell quotes it, and adds, (1 Russell, 473) "But this rule it seems must be taken with some qualifications; and circumstances may be sufficiently strong to show the fact of the murder, though the body has never been found.' See also Archbold, 124.

In Hindmarshe's case, (2 Leach, 571) the prisoner, a sailor, was charged with having killed his captain with a club, and thrown him overboard, at sea. Garrow, for the prisoner, claimed his acquittal, on the ground that there was no proof of the death of the captain, and mentioned a case as having been tried before Mr. J. Gould, where the two prisoners were seen to strip a child and throw it into the dock, and its body was not afterwards seen. The learned judge observed, that it was possible "the tide might have carried out the living child," and the jury upon this ground acquitted the prisoners.

The court in Hindmarshe's case admitted the general rule stated by Garrow, but according to the report, left it to the jury to find whether the deceased was not dead, before his body was cast into the sea. They convicted the prisoner, and all the judges approving the conviction, he was executed.

The opinion of Gould, J., in the case stated by Garrow, (and his statement is the only authority for the case) might have been influenced by the allegations of the indictment, as to the place and manner of the death; for the judge does not intimate that there was not evidence of the death of the child, to go to the jury, but the ground seems to have been that there was not sufficient evidence that it died "in the dock," (as the allegation probably was,)" as the tide, which ebbed and flowed there, might have carried out the living infant." (See 1 Russell, 463, note 1.) In the other case also, the ruling might have

2. THE KILLING MUST BE OF A HUMAN BEING.

Any one, belonging to the human species, alive and in being, of whatever age or condition, may be the subject of murder,' though

depended upon the pleadings. In neither is any general doctrine so laid down in the report, that much reliance can be placed upon it.

There have been three cases certainly before the circuit court of the U. S. for the district of Massachusetts, of trials for murders on the high seas, where this supposed principle has been disregarded or denied by the court. (The case of Williams and others, tried Dec. 1818, and reported in pamphlet ; Freeman's C. 4 Mason's R. 505; and the very recent case of Gibert and others, (the pirates) 2 Sumner's Reports, 19.

In the last mentioned case, Mr. Justice Story said, "This proposition" (that a conviction cannot take place, where the body is not found) "cannot be admitted as correct, in point of common reason, or of law, unless courts of justice are to establish a positive rule to screen persons from punishment, who may be guilty of the most flagitious crimes. In the case of murders committed on the high seas, the body is rarely, if ever, found: and a more complete encouragement and protection for the worst offences of this sort could not be invented than a rule of this strictness. It would amount to a universal condonation of all murders committed on the high seas." The same reasoning would apply, where the murderer burnt or otherwise destroyed the body.

Starkie says, (4 Starkie, 944,) “ Although it be certain, that no conviction ought to take place, unless there be most full and decisive evidence as to the death; yet it seems that actual proof of the finding of the body is not absolutely essential, and it is evident, that to lay down a strict rule to that extent might be productive of the most horrible consequences."

Professor Davis, also, in his work on the criminal law of Virginia, (p. 92) bears most decided testimony against the rule.

Upon the whole, the commissioners are of opinion, that the proposition of lord Hale, certainly as it has been generally understood, has not been established as an inflexible principle of law, and that it would be unsafe to adopt a rule as applicable to all cases, which is fitted only for a class of them, however large, and which would exempt from punishment every murderer, who should conceal or destroy the murdered body. Undoubtedly, in many cases, the fact, that the body has not been found, would have and ought to have a decisive influence; in others, as where one already rendered helpless, but still living, is thrown into the sea, it would have, probably, little weight; but in all, the question of what is sufficient evidence to prove the death, (and it must be established beyond all reasonable doubt) should be left, without the restraint of artificial rules, to the understandings and consciences of the jury.

1 1 Hale, 428; Archb. 319; 3 Inst. 49; Feuerbach's Comp. (12 edit. 1836) § 207.

he be an idiot or insane person,' an alien enemy, convicted of a capital crime, or struck with a mortal disease.*

The life, which is destroyed, must be complete by the birth of the person deprived of it."

A child, in its mother's womb, is not in being, nor is it born, so as to be the subject of murder, until its whole body is brought into the world, and it has an independent circulation.

But if a child be born alive, and then die in consequence of potions administered or violence done, before its birth or during its birth, it is the killing of a human being."

1 Daft Jamie's C., 1 Hume, 275.

1 Hale, 433; Inglis's C., 1 Hume, 275; Maxwell's C., ib.

3 Bowen's C., 13 Mass. R. 356; in this case the deceased was to have been hung the next day. Vin. Abr. Murder, B. 3.

4 Martin's C., 5 C. & P., 128; Jean Ramsay's C., 1 Hume, 267.

5 Livingston, 346; 1 Hale, 433; Roscoe, 565; Davis's Cr. Law, 97, and authorities, infra.

The law was formerly otherwise. Bracton said that it was murder, to destroy a child in the womb of the mother, if it was formed, and especially if it had quickened there; and the contemporary writers support the same opinion, (Bracton 1, 3 f; Fleta, B. 1, ch. 23, § 10, 11, 12,) although the contrary is now well settled in conformity with the statement in the text. See citations in note ".) The question seems to have been much discussed by the philosophers and lawyers of Rome, (Poth. Pand. 48, 8, No. 5,) as it has also been by the writers of the common law of the continent of Europe. Tittman's Compendium, § 145. And the better opinion would seem to have been, with both, that the destruction of a child in the mother's womb, after it had quickened there, was the killing of a human being.

7 Enoch's C. 5 C. & P. 329; Brain's C. 6 C. & P. 344. 8 Pulley's C. 5 C. & P. 539.

9 The commissioners have here stated the common law as they believe it to exist. There are no cases in the American, and but two, which they find in the English books upon the subject. The earliest is a case before sir G. Scrope, reported in the Year books, (1 Edw. 3, 23, pl. 18.) See it in full, 24 Eng. C. L. Reps. 447, note (a). There the defendant had beaten a woman, pregnant with two children. One of them was dead born; the other was born alive, and baptized, but died two days after the injury, in consequence (as was charged) of the beating of its mother before its birth. The judges held that the defendant was not guilty of a felony, (murder or any homicide) but of a misdemeanor only.

The doctrine of this case is maintained by lord Hale, (1 Hale, 443,) and sir Geo. Staundford, (Staund. 21). But lord Coke denied it to be the law, and