The Criminal Law Consolidation Acts.

AN ACT RESPECTING OFFENCES AGAINST THE PERSON.

32-33 VICT., CH. 20.

Whereas it is expedient to assimilate, amend and consolidate the Statute Law of the several Provinces of Quebec, Ontario, Nova Scotia and New Brunswick, relating to offences against the person, and to extend the same as so consolidated to all Canada: Therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

MURDER.

Sect. 1.-Whosoever is convicted of murder shall suffer death as a felon.-24-25 Vict., ch. 100, s. 1, Imp.

Sect. 2.-Upon every conviction for murder the Court shall pronounce sentence of death, and the same may be carried into execution, and all other proceedings upon such sentence and in respect thereof may be had and taken in the same manner, and the Court before which the conviction takes place shall have the same powers in all respects, as after a conviction for any other felony for which a prisoner may be sentenced to suffer death as a felon.-24-25 Vict., ch. 100, s. 2, Imp.

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Sect. 6.—In any indictment for murder or manslaughter, or for being an accessory to any murder or manslaughter, it shall not be necessary to set forth the manner in which, or the means by which the death of the deceased was caused, but it shall be sufficient in any indictment for murder to charge that the defendant did feloniously, wilfully, of his malice aforethought, kill and murder the deceased; and it shall be sufficient in any indictment for manslaughter to charge that the defendant did feloniously kill and slay the deceased; and it shall be sufficient in any indictment against any accessory to any murder or manslaughter to charge the principal with the murder or manslaughter, as the case may be, in the manner hereinbefore specified, and then to charge the defendant as an accessory in the manner heretofore used and accustomed or by law provided.-24-25 Vict., ch. 100, s. 6, Imp.

The words "or by law provided" are not in the English Act.

By sect. 12 of the Procedure Act of 1869, it is enacted that no court of General or Quarter Sessions or Recorder's Court, nor any Court, but a Superior Court having criminal jurisdiction shall have power to try any treason, or any felony punishable with death, or any libel.

Indictment... ... The Jurors for Our Lady the Queen, upon their oath present, that A. B., on..

at....

...in the County (or District) of.... did feloniously, wilfully, and of his malice aforethought, kill and murder one C. D., against the peace of Our Lady the Queen, her crown and dignity.

Upon this indictment the defendant may be acquitted of the murder, and found guilty of manslaughter.--Archbold, 620.

The following rules of law apply to murder and manslaughter.

1. The law takes no cognizance of homicide unless death result from from bodily injury, occasioned by some act or unlawful omission, or contradistinguished from death occasioned by any influence on the mind, or by any disease arising from such influence. 2. The terms "unlawful omission" comprehend every case where any one, being under any legal obligation to supply food, clothing or other aid or support, or to do any other Act, or make any other provision for the sustentation of life, or prevention of injury to life, is guilty of any breach of duty. 3. It is essential to homicide of which the law takes cognizance that the party die of the injury done within one year and a day thereafter: In the computation of the year and the day from the time of the injury, the whole of the day on which the act was done or of any day on which the cause of injury was continuing, is to be reckoned the first. 4. A child in the womb is not a subject of homicide in respect of any injury inflicted in the womb, unless it afterwards be born alive it is otherwise if a child die within a year and a day after birth of any bodily injury inflicted upon such child, whilst it was yet in the womb.-4th Cr. L. Com. Report, p. XXXII, 8th of March, 1839.

If a man have a disease which in all likelihood would terminate his life in a short time, and another give him a wound or hurt which hastens his death, it is murder or other species of homicide as the case may be. And it has been ruled that though the stroke given is not in itself so mortal but that with good care it might be cured, yet if the party die of this wound within a year and day, it is murder or other species of homicide as the case may be. And when a wound, not in itself mortal,

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for want of proper applications or from neglect, turns to a gangrene or a fever, and that gangrene or fever is the immediate cause of the death of the party wounded, the party by whom the wound is given is guilty of murder or manslaughter, according to the circumstances. For though the fever or gangrene, and not the wound, be the immediate cause of death, yet the wound being the cause of the gangrene or fever is the immediate cause of the death, causa causati. So if one gives wounds to another, who neglects the cure of them or is disorderly, and doth not keep that rule which a person wounded should do, yet if he die, it is murder or manslaughter, according to the circumstances: because if the wounds had not been, the man had not died; and therefore neglect or disorder in the person who received the wounds shall not excuse the person who gave them.-1 Russell, 700.

So if a man be wounded, and the wound become fatal from the refusal of the party to submit to a surgical operation. Reg. vs. Holland, 2 M. & Rob. 351; Reg. vs. Pym, 1 Cox 339; Reg. vs. McIntyre, 2 Cox 379; Rex. vs. Martin, 5, C. & P. 128; R. vs. Webb, 1 M. & Rob. 405. But it is otherwise if death results not from the injury done, but from unskilful treatment, or other cause subsequent to the injury.-4th Rep. Cr. L. Comrs., p. XXXII, 8th of march, 1839.

Murder is the killing any person under the king's peace, with malice prepense or aforethought, either express or implied by law. Of this description the malice prepense, malitia precogitata, is the chief characteristic, the grand criterion by which murder is to be distinguished from any other species of homicide, and it will therefore be necessary to inquire concerning the cases in which such malice has been held to exist. It should, however,

be observed that when the law makes use of the term malice aforethought, as descriptive of the crime of murder, it is not to be understood merely in the sense of a principle of malevolence to particulars, but as meaning that the fact has been attended with such circumstances as are the ordinary symptoms of a wicked, depraved, and malignant spirit; a heart regardless of social duty, and deliberately bent upon mischief. And in general any formed design of doing mischief may be called malice. And therefore, not such killing only as proceeds from premeditated hatred or revenge against the person killed, but also, in many other cases, such killing as is accompanied with circumstances that show the heart to be perversely wicked is adjudged to be of malice prepense and consequently murder.-1 Russell, 667.

Malice may be either express or implied by law. Express malice is, when one person kills another with a sedate deliberate mind and formed design; such formed design being evidenced by external circumstances, discovering the inward intention; as lying in wait, antecedent menaces, former grudges, and concerted schemes to do the party some bodily harm. And malice is implied by law from any deliberate cruel act committed by one person against another, however sudden; thus, where a man kills another suddenly without any, or without a considerable provocation, the law implies malice; for no person, unless of an abandoned heart, would be guilty of such an act upon a slight or no apparent cause. if a man wilfully poisons another: in such a deliberate act the law presumes malice, though no particular enmity be proved. And where one is killed in consequence of such a wilful act as shows the person by whom it is committed to be an enemy to all mankind, the law will infer a general malice from such depraved inclination to

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