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The Green Bag,
ation is wilful murder. Performing an ille gal operation is a felony, and if the woman dies in consequence the operator has killed her feloniously, wilfully, and of his malice aforethought. In another well known case, killing a policeman in the discharge of his dut)' was held to be wilful murder. In both these cases there was no intention on the part of the convict to kill his victim. This distinc tion, indeed, is not only pointed out, but defended in Sir J. F. Stephen's works on the Criminal Law (see, for instance the article Murder in his " Digest of the Criminal Law." And in the case of Reg. v. Cruise, reported in 8 Carrington and Payne, Mr. Justice Paterson told the jury that a crime which would be murder if the victim died might not be an attempt to murder if he recovered — the distinct intention to kill which was essential to the latter crime, not being essential to the former. The popular distinction sometimes drawn, that murder is a successful attempt to kill, while attempt to murder is an unsuccess ful attempt to kill, has no foundation in English law. Murder may not be an attempt to kill at all. The person who performs an illegal operation on a woman does not intend to kill her, but quite the. reverse. He wishes for many reasons that tb ¿ patient will recov er, but if she dies the crime is murder, notwithstanding, under English law. And comparing the decision as announced by Mr. Matthews with that which Mr. Leslie Stephen attributes to his late brother in his ufe, we at once notice that the latter has omitted 'he words " with intent to murder." The judge knew that the jury had not found anything of the kind, and evidently confined himself to what they did find; but the Home Secretary went beyond what the jury found and added a finding of his own — a finding on which he afforded the prisoner no opportunity of producing either evidence or argument, pronouncing sentence.
But why did the Home Secretary thus go outside of the verdict of the jury? The answer is plain. In order to obtain an ap parent justification for the sentence of penal servitude for life which he meant to impose. Had the prisoner been convicted of felo niously, wilfully, and of her malice afore thought administered poison to her husband, with the intention to injure, aggrieve, or annoy him, the maximum sentence would have been three years' penal servitude. Mrs. M ay brick has been in penal servitude for upwards of seven years. If, indeed, the juryhad gone on to find that her husband's life had been endangered by the administration, ten years' penal servitude (which in the case of a female convict in England is reducible by one-third for good conduct) would have been possible as the maximum sentence. It might perhaps be argued that the jury, in finding that the man died of the arsenic administered, found that his life had been terminated by the administration. Hut it seems inconceivable that any reader of the medical evidence could have arrived at the conclusion that life had been undoubt edly endangered by the administration of arsenic, though it was doubtful whether death had resulted from it. The doctors who ascribed the symptoms of disease to arsenic also ascribed death to it, and the doctors who said that death had not resulted from arsenic made the very same assertion about the preceding illness. It seems clear that the arsenic (whoever administered it) either killed Mr. Maybrick or did him no perceptible harm. But even if we waive the point, the difference between a life-sen tence and one for ten years is immense. And what reason have we to think that, if the jury had convicted Mrs. Maybrick of a criminal administration of arsenic which en dangered her husband's life, the presiding judge would have imposed the maximum sentence on a delicately nurtured woman in feeble health and a first offender? As regards the Home Secretary's charge
