Page:The American Cyclopædia (1879) Volume XII.djvu/61

MURDER a sufficient excuse ; but nothing less than a compulsion of this character would have this effect ; as no command from a master, and no threat of a whipping, would be any excuse at all for a servant. But a jury, who can now judge of the law as well as the fact in crimi- nal cases, if they were satisfied, from the evi- dence of command or threat, of the absence of all malice, either general or individual, would seldom render a verdict of murder. So if a crime be committed by a wife in presence of her husband, it is presumed by the law that she did the act under his coercion, and she is not herself guilty. But murder and treason are exceptions to this rule ; and here it is said that no proof of actual constraint by the husband operates as an excuse. It seems quite well settled, as a general rule, that if many are con- federate in any unlawful act, and some one of them, in doing the act, commit a murder, all are guilty ; as if several conspire to seize a ves- sel forcibly and run away with her, and one opposing them is killed in the conflict, all are guilty of murder, in law, who are present, aid- ing and abetting in the unlawful act. No con- sent or even request of the party killed is any excuse whatever. At common law, counselling of suicide, if it causes the suicide, is murder. So if two persons agree to commit suicide to- gether, and use means which take effect only on one, it is murder in the survivor, provided he was present when the act was committed, as otherwise he is only an accessory before the fact. In such a case, however, the jury would be very likely to treat the case as manslaughter. If one, by working on the fears of another, or by mere unkind usage, put one into " a passion of grief or fear " whereof he or she, being per- haps at the time in feeble health, dies, this, says Hale, though murder or manslaughter in the sight of God, is not so at common law. Most later writers have adopted this view, which is said to be in accordance with the codes of France and of Scotland ; while in some coun- tries the law is held to be, as an English judge in a recent case declared it to be in England, that one is guilty if he cause death by force " applied either to the body or the mind." We consider Sale's view as being that of the com- mon law, and of the prevailing law of the United States. It was a rule of the common law, that it was murder to procure the con- viction and execution of an innocent person charged with a capital crime by perjury. Now, however, we are satisfied that both in England and in the United States such a crime would be punished only as an aggravated case of per- jury. The question has arisen, whether one can be indicted in a state or country for mur- der, if the criminal did actually in that state give the fatal blow, or fire the fatal shot, but the injured party went into another state or country and died there. The weight of au- thority, and we think of reason, is that no such indictment can be maintained. No country can punish a crime committed abroad, or partially MURDOCH 53 abroad, unless by its own municipal provisions, applied to its own citizens. In accordance with this view, the statute of the United States against "murder on the high seas" has been held inapplicable to a case where a fatal blow was given with malice on the high seas, but the wounded person reached the shore and died on land. An important question has exercised the courts, both of England and the United States, in respect to the evidence of murder and the burden of proof. Some courts have held that if the government proved the death alleged, and that this death was caused by the prisoner, the burden of proof then shifted, and it lay on the prisoner to prove want of malice, or acci- dent, or self-defence, or any other justification. Other courts hold the contrary, and we are satisfied that in cases of murder, the actual and practical rule whereby the fate of the prisoner is determined should be and is that the bur- den of proof remains on the government until they have proved their whole case, which in- cludes the killing and the intent, or " the malice aforethought," without which there can be no murder. This evidence may undoubtedly be indirect or circumstantial, and must be so gen- erally, because malice is a condition of mind and purpose. But it would not be enough in modern times to charge A with the murder of B, and rest the charge upon the mere proof that A killed B, unless there were something in the time, place, or circumstances of the kill- ing, or of the conduct of the prisoner in refer- ence to it, which brought home to a jury a belief that he was moved by malice afore- thought. In some of the states, although not generally, the crime of murder has been divided into degrees ; and where capital punishment is retained, only murder in the first degree is punishable with death. It should be added, that whenever a person is indicted and tried for murder, it is competent for the jury to bring in a verdict of manslaughter. MURDOCH, James Edward, an American actor, born in Philadelphia, Jan. 25, 1811. He first appeared on the stage in the Arch street thea- tre, subsequently played in various southern cities, and in June, 1838, appeared in the Park theatre, New York, in leading characters, in support of Ellen Tree. He withdrew from the stage in 1842 to devote himself to the teaching of elocution, and also gave a series of lectures on Shakespeare's characters in Boston, Phila- delphia, and New York. On Oct. 20, 1845, he appeared as Hamlet in the Park theatre, New York, and subsequently made professional tours in Canada, California, and England, appearing in the Haymarket theatre, London, in 1856. In 1858 he retired to a farm in Lebanon, Ohio. During the civil war he gave elocutionary en- tertainments throughout the north in aid of the sanitary commission, devoted himself to the care of sick and wounded soldiers, and served for a while on the staff of Gen. Rous- seau. Since then he has resided in Philadel- phia as a professional elocutionist. In con-