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promises to pay a stipulated sum of money, or to deliver some other thing to each other, according as some prefixed and equally uncertain contingency shall happen within the terms upon which the contract is made. By the 8 & 9 Vic. c. 109, s. 18, no proceedings can be had to recover a wager, or deposit with a stakeholder (a).

Common gamblers, who conspire with false dice to cheat the king's subjects, may be indicted for such offence. By 33 Hen. 8, c. 9, s. 11 (repealed by 8 & 9 Vic. c. 109, as to bowling, tennis, or other games of mere skill), no person, of what degree, quality, or condition soever, shall by himself or agent, for his gain, lucre, or living, keep any house or place for playing at any game prohibited by any statute, or any new unlawful game afterwards invented, on pain of forty shillings a day, and 6s. 8d. for every person frequenting such gaminghouse. By 8 & 9 Vic. c. 109, the owner or keeper, &c., of any common gaming house, shall, on conviction before two justices, be liable, in addition to the penalties of 33 Hen. 8, c. 9, to pay a penalty of not more than £100, or to be imprisoned for six months; or the party may be indicted. Provisions are made for licensing billiard tables, and severe penalties inflicted for keeping unlicensed tables, or allowing play between one and eight in the morning, or on any holy day. And every person who shall, by fraud in play or betting, win any money, &c., shall be punished as for a false pretence.

By 10 & 11 Will. 3, c. 17, and 6 Geo. 4, c. 60, all pretended lotteries are suppressed. However, art unions are legalised by 8 & 9 Vic. c. 57.

The making, selling, and firing squibs and other fireworks is a common nuisance, and punishable by. fine; and there are statutes regulating the making and conveying of gunpowder.

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Game.]-By 9 Geo. 4, c. 69 (extended by 7 & 8 Vic. c. 29) if any person shall, by night (which commences at the expiration of one hour after sunset, and concludes at the beginning of the last hour before sunrise) unlawfully take or destroy any game or rabbits. in any land, or any public road or path, or the sides, openings, &c., thereof, or shall by night be in such place with any gun, net, engine, &c., for the purpose of taking or destroying game, he shall be imprisoned, for the first offence, for three months, with hard labour, and find sureties; for a second offence he is to be imprisoned for six months, and to find sureties; for a third offence, he may be transported for seven years, or be imprisoned for two years. So, unlawfully entering such lands or road, by night, to the number of three or more together, for the purpose of taking or destroying game or rabbits, any of such persons being armed with any gun or other offensive weapon, subjects a party to transportation for fourteen years, and not less than seven years, or imprisonment with hard labour for three years.

CHAP. XLV.

OFFENCES AGAINST THE PERSON.

[See 4 Black. Com. chaps. 14, 15; 4 Steph. Com. chap. 4.]

Homicide.]-Homicide, or the killing of any human creature, is of three kinds: justifiable, excusable, and felonious.

Justifiable homicide.]Justifiable homicide has no share of guilt at all, as it must be occasioned by some unavoidable necessity, and without any inadvertence or negligence in the party killing; as by virtue of such an office as obliges one in the execution of public justice to put a malefactor to death, who has forfeited his life by the laws and verdict of his country; or where an officer in the execution of his office, either in a civil or criminal case, kills a person that assaults and resists him; or for the prevention of any forcible or atrocious crime.

Excusable homicide.]-Excusable homicide is either per infortunium, by misadventure; or se defendendo, in self defence. Homicide per infortunium is where a man, doing a lawful act, without any intention to hurt, unfortunately kills another;

HOMICIDE, ETC.

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as where a man is at work with a hatchet, and the head thereof flies off, and kills a bystander. Homicide se defendendo, is where a man, to protect himself from an assault, or the like, in the course of a sudden brawl or quarrel, happens to kill him who assaults him; and this is frequently called chance medley, as proceeding from a casual affray. To excuse this species of homicide, it must appear that the slayer had no possible means of escaping from his assailant. By the 9 Geo. 4, c. 31, s. 10, no punishment or forfeiture is incurred by any person who kills another by misfortune or in his own defence, or in any other manner without felony. So that all practical distinction between justifiable and excusable homicide is now done away with, except, indeed, as to actions for compensation under the 9 & 10 Vic. c. 93.

Felonious homicide is the killing of a human creature, of any age or sex, without justification or excuse, and consists either in self-murder, manslaughter, or murder.

Self-murder.]-A felo de se is he that deliberately puts an end to his existence, or commits any unlawful malicious act, the consequence of which is his own death. The party must be of years of discretion, and in his senses, else it is no crime. The punishment for this offence is burial without Christian rites; and all his goods and chattels are forfeited to the king.

Manslaughter.]-Manslaughter arises from the sudden heat of the passions, and is defined to be the unlawful killing of another without malice, either express or implied. The offence may be committed either on a sudden quarrel, as if upon a sudden quarrel two persons fight, and one of them kill

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the other; or in the commission of an unlawful act, as if two persons play at sword and buckler, unless by the king's command, and one of them kill the other. As it must be done without premeditation, or any deliberate intention of doing mischief, there can be no accessaries to this offence before the fact. The punishment for manslaughter is, by 9 Geo. 4, c. 31, s. 9, transportation for life, or for not less than seven years, or imprisonment for not more than four years, and to pay a fine.

Murder.]-Murder arises from the deliberate wickedness of the heart, and is defined to be "when a person of sound memory and discretion unlawfully killeth any reasonable creature in being, and under the king's peace, with malice aforethought, either express or implied."

Malice is the greatest criterion by which murder is distinguished from every other kind of homicide; for, as we have already shown, homicide may be founded in the dispensations of public justice, occasioned by mere accident, done for self-preservation, arise from a sudden transport of passion, or, lastly, be committed in malice. Express malice is that deliberate intention to take away the life of a fellow creature which is manifested by external circumstances capable of proof; as lying in wait, antecedent menaces, former grudges, and concerted schemes to do him some bodily harm. Implied malice is that inference which arises from the nature of the act, though no particular malice can be proved; as when a man suddenly kills another without any apparent provocation; when he gives poison to another without any known inducement; when he wilfully suffers a beast, notoriously mischievous, to wander abroad, and it kills a man. The punishment of murder and manslaughter was formerly

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