MURDER,.—The law presumes every homicide to be malicious, or a murder, until the contrary is proved. It is murder when the killing is unlawful and malicious ; manslaughter when unlawful but not malicious ; excusable or justifiable when the killing is forced upon the person charged in order that he may defend himself. Murder is punishable with death; manslaughter with penal servitude, even for life; justifiable homicide entails no punishment. Malice as an element in murder is legal malice, and not malice in the ordinary sense of the term. If A. shoots at 13. with intent to kill him, but by mere accident kills C., this is a killing from implied malice. In the case of Reg. v. Sernk and Goldfinch, the prisoners' premises having been burnt down under suspicious circumstances, and a boy consequently burnt to death, they were charged with his murder. On the facts of the case, however, they were acquitted on the charge of murder. In summing up to the jury Mr. Justice Stephen said : " There was wilful murder accord ing to the plain meaning of the term, or there was no murder at all in the present case. The definition of murder is unlawful homicide with malice aforethought, and the words malice aforethought are technical. You must not therefore construe them, or suppose that they can be construed, by ordinary rules of language. The words have to be construed according to a long series of decided cases, which have given them meanings different from those which might be supposed. One of those meanings is, the killing of
another person by an act done with intent to commit a felony. Another meaning is, an act done with the knowledge that the act will probably cause the death of some person. Now it is such an act as the last which is alleged to have been done in this case ; and if you think that either or both of those men in the dock killed this boy, either by an act done with in tent to commit a felony, that is to say, the setting of the house on fire in order to cheat the insurance company, or by conduct which to their know ledge was likely to cause death, and was therefore eminently dangerous in itself—in either of these case the prisoners are guilty of wilful murder in the plain meaning of the word." Homicide is not criminal when it occurs in the practice of a lawful sport or exercise of weapons not of a deadly nature, and without intent to do bodily harm, and where no unfair advantage is intended or taken. But no provocation can render homicide justifiable ; nor will consent, as in the case of a duel. Great provocation may perhaps reduce a charge of murder to one of manslaughter, but if the killing is done with a deadly weapon the provocation must be very great indeed.