the door was shut, the interchange of blows will make no difference; for if A. has malice against B. and meets B. and strikes him, B. draws, A. flies to the wall, A. kills B., it is murder. Nay, if the case had been that there was mutual malice, and they had met ard fought, the killing would have been murder. All the judges are of opinion that in this case there was malice in the prisoner. The defense rests upon this being a sudden quarrel in which there was great provocation from the deceased; but if there was sufficient time for the blood to cool, and reason to get the better of the transport of passion before the mortal wound was given, the killing will be murder, and all the Judges are of opinion that the act was deliberate. It was not necessary that malice should be found by the jury in the special verdict. This is matter of law for the Court. The jury may find a general verdict, either that the prisoner is guilty of murder or of manslaughter; but if they find the facts specially, the court is to draw the conclusion, whether there was malice, or whether the deed was done on a sudden transport of passion. It has been adjudged that if two men fall out in the morning, and meet and fight in the afternoon, and one of them is slain, this is murder, for there was time to allay the heat, and their meeting was of malice. Though the law of England is so far peculiarly favorable (I know no other law that makes such a distinction between murder and manslaughter) as in some instances to extenuate the greatest of private injuries, as the taking away a man's life is, yet it must be such a passion as for the time deprives him of his reasonable faculties; for if it appears that reason has resumed her sway over him, if it appears that he reflects, deliberates and considers before he gives the fatal stroke, the law will no longer, under the pretext of passion, exempt him from the punishment inflicted on murder. It is urged that, from the prisoner's three wounds, a new and sudden quarrel might have arisen, in which Mr. Gower might be the aggressor; but it lies on the party indicted to prove this quarrel, and none such being found by the jury, we are not at liberty to presume that there was any. The last fact relied upon is, that Mr. Gower on his death-bed allowed that the fight was fair. The answer is, that if A. have malice against B., and they meet and fight, though the fight is never so fair according to the law of arms, yet if A. kills B. it will be murder." Lord Raymond then cited all the authorities on the subject from the earliest times in support of the doctrines he had laid down, and he concludes his own report of the case with the following "Memorandum: As soon as I delivered this resolution, I desired my brothers Fortescue, Reynolds, and Probyn, that if they disapproved anything I had laid down, they would expresstheir disapprobation, but they publicly declared that they consented in omnibus." The prisoner declared that, "as he hoped for mercy at the hands of Almighty God, he had never used the expression so much pressed against him, 'I will have your blood;" and, having fought with distinction in all the Duke of Marlborough's campaigns, he prayed "that he might be recommended to his Majesty's clemency for his past services in the cause of his country." Lord Raymond: "As to the words, seeing that they were sworn to, and stand in the special verdict, I am sorry to say your denial can avail you nothing; and we sitting here only to declare the law, you must apply elsewhere for mercy." Mr. Justice Fortescue, the senior Puisne Judge, pronounced sentence of death. Before the day fixed for the execution, came news of the death of George I. at Osnaburgh, and great interest was made with the new Sovereign to begin his reign with an act of grace by pardoning Major Oneby; but George II. declared that, "the Judges having unanimously adjudged the prisoner guilty of murder, the law should take its course." Nevertheless, Major Oneby disappointed the executioner by opening an artery in his arm, so that he bled to death, the night before the day when he was to be hanged at Tyburn,' and he was buried in a highway with a stake 1 2 Lord Raymond, 1500. One contemporaneous account says,-" About seven in the morning he said faintly to his footin an, who came into the room, Who is that, Philip?" A gentleman, coming to his bed-side soon after, called 'Major! Major!' but hearing no answer, drew open the curtains and found him weltering in his blood and just expiring. Mr. Green, a neighboring surgeon, was instantly sent for, but before he came the major was dead. He had made so deep a wound in his wrist with a penknife that he bled to death." driven through his body. Although he had been a gallant soldier, he was a man of very bad moral character, having lived, since his regiment was reduced at the Peace of Utrecht, as a professional gamester, and having before killed several antagonists in duels brought on by his extreme arrogance.' The next trial for murder which I have to mention arose out of an address to the public by THCMSON, in his WINTER, in favor of the miserable victims then confined in our jails. This was caused by the death of a prisoner in Fleet of the name of Arne, who had been confined for debt, and had expired under circumstances the most heartrending. The poet, after a compliment to the humanity of some humane individuals who, "touched with human woe," had searched "into the horrors of the gloomy jail," thus proceeds: "Where sickness pines, where thirst and hunger burn, And poor misfortune feels the lash of vice. O great design! if executed well, With patient care and wisdom-tempered zeal. In consequence, the affair was taken up by the House of Commons, who, after an investigation by a select committee, addressed the Crown, praying that John Huggins, the warden, and James Barnes, the deputy warden, of the Fleet, should be prosecuted by the Attorney General for the murder of Edward Arne. The trial came on at the Old Bailey before Mr. Justice Page, when the jury returned a special verdict, finding "that while Huggins was warden, and Barnes deputy warden, of the Fleet, Arne was committed to that prison; that Barnes confined him in a cold, damp, unwholesome cell over the common sewer, knowing the same to Be dangerous to life, and he kept him there forty days, absque solamine ignis, necon sinè aliquà matula, scaphis, vel aliquo alio hujusmodi utensilii; that Arne died from this imprisonment; and that during his de 117 St. Tr. 30-74; 2 Str. 766; 2 Ld. Raym. 1485; 1 Burr. 178; Select Trials at the Old Bailey, li. 153. All indictments and special verdicts were still in Latin. tention in the cell, Huggins was once present, saw him under the duress of the said imprisonment, and turned away without doing anything to relieve him." After the special verdict had been twice argued before the Judges, Lord Raymond delivered judgment: "In this case two questions arise:-1. What crime the facts found upon Barnes in the special verdict will amount to? 2. Whether the prisoner Huggins is guilty of the same offense with Barnes? As to the first question, it is very plain that the facts found upon Barnes do amount to murder in him. Murder may be committed without any stroke. The law has not confined the offense to any particular circumstances or manner of killing; there are as many ways to commit murder as to destroy man. Murder is where a man kills another of malice, so he dies within a year and a day; and malice may be either expressed or implied. Upon the facts found there is plain malice arising in construction of law. If a prisoner by duress of the jailer comes to an untimely end, it is murder, without any actual strokes or wounds. The law implies malice in such a case, because the jailer acts knowingly in breach of his duty. A prisoner is not to be punished in jail, but to be kept safely. The nature of the act is such as that it must apparently do harm. It is also cruel, as it is committed upon a person who cannot help himself. So the charge of murder against Barnes is fully established. 3. The next question is, whether Huggins be guilty of the same offense; and the Judges are unanimously of opinion that upon the facts found he is neither guilty of murder or manslaughter. As warden, he shall answer for the acts of his deputy civilly, but not criminally. It nowhere appears in the special verdict, that he ever commanded or directed, or consented to, this duress of imprisonment which was the cause of Arne's death. The verdict finds that once the prisoner Huggins was present, and saw Arne under the duress of the imprisonment, and turned away; but it by no means follows that he knew the man to be under this duress. We are told by the counsel for the Crown that if he saw the man under this duress he must know it, and it was his duty to deliver "Sub duritie imprisonamenti prædicti et se avertit." him. But we cannot take things by inference in this manner. The seeing him does not imply a knowledge of the several facts which make the duress, which consists of several ingredients and circumstances not to be discovered upon sight. If the evidence would have warranted it, the jury should have found that he knew and that he consented to what Barnes had done. Malice is an inference of law for the Court, but consent is a fact to be found by the jury. Then if the verdict be defective, we are pressed for a new trial; but, without determining the question whether after a special verdict in felony there may be a venire de novo, we are all of opinion that this verdict is not so uncertain as that judgment cannot be given upon it. The facts found are positively found; but, taken together, are not sufficient to make Huggins guilty of murder, and therefore he must be adjudged NOT GUILTY.' There is one other case of the same kind before Lord Raymond, which is worthy of notice. In the popular rage then prevailing against jailers, Thomas Bambridge, a former warden of the Fleet, was indicted for the murder of Robert Castell, on the ground that he had confined him in a house in which there was a man lying ill of the small-pox, a disease which Castell had not had, and which he caught and died of. The indictment coming on for trial at the Old Bailey before Mr. Justice Page, Bambridge was easily acquitted on the evidence for the prosecution; but, instigated by a mobbish confederation, who subscribed large sums of money to gain their object, Mrs. Castell, the widow, sued out an "appeal of murder" against Bambridge, and likewise against Corbett, his deputy, who, in case of need, was to have been called as his principal witness. The appellees, instead of waging battle and defending themselves by their champions in the listed field, as they might have done, put themselves upon the country, and they were tried by Lord Raymond and a jury of London merchants. The prosecution was conducted with great zeal by Mr. Reeves, afterwards Chief Justice of the Common Pleas, and Mr. Lee, afterwards Chief Justice of the King's' Bench; and they contrived, by dextrous management, 117 St. Tr. 297-382; 2 Lord Rayı. 1574. |