Implied malice is however very loosely defined in the Law of Eng land, if it can be said to be defined st all. it is stated, that the existence of implied malice is a pure question of law, or a conclusion of law to be drawn from all the circumstances of the case ; and it is in some cases made to depend upon a very abstruse technical doctrine. The existence or non-existence of a criminal intention, even where that intention has no reference to any personal injury, but happens to be accompanied with a killing which is altogether accidental, is made to con stitute the distinction between the higher and lower species of culpable homicide; and in other cases the existence of such criminal intention brings even an accidental killing within the scope of manslaughter.
Mr. Justice Foster says, " When the law maketh use of the term malice aforethought,' as descriptive of the crime of murder, it is not to be understood in that narrow restrained sense to which the modern use of the term malice' is apt to lead one, a principle of malevolence to particulars; for the law, by the term `malice' in this instance meaneth, that the fact bath been attended with such circumstances as are the ordinary symptoms of a wicked, depraved, and malignant spirit. The males animus, which is to be collected from all circumstances, and of which the court, and not the jury, is to judge, is what bringeth the offender within the denomination of wilful malicious murder. And I believe most, if not all the cases which in our books are ranged under thls bead of implied malice, will, if carefully adverted to, be found to turn upon this single point—that the fact hath been attended with auch circumstances as carry in them plain indications of a heart regard less of social duty and fatally bent upon mischief." t" Discourse on Homicide,' 256, 257.) This vague and figurative description of that which is propounded as a legal definition appears to furnish us with no certain test of the crime of murder. It amounts to no more than this : that, to consti tute the crime of murder, the act must have been attended with such circumstances as in the opinion of the court, and net of the jury, are "the ordinary symptoms of a wicked, depraved, and malignant spirit," of " a heart regardless of social duty, and fatally bent upon mischief." It is a description of that which is rather matter of fact than of law. The question in each particular case is, whether the party acted in wanton and wicked disregard of the probable consequences of an act tending to the destruction of human life ; which is an inference to be deduced from the evidence ; and in arriving at which no assistance can be from the application of mere technical rules. The presence
of that evil disposition of the mind of the offender -which makes the offence murder, is known only by evidence of an act or omission by which human life is wilfully or wantonly exposed to peril.
Every homicide is presumed to be malicious until the contrary be shown. But upon the investigation, circumstances may transpire which extenuate the offence, and reduce it from the crime of murder to that of manslaughter ; or the act may appear to amount either to justifiable or excusable homicide. In cases of justifiable homicide, and, according to modern practice, in cases of excusable homicide, the party causing the death is discharged from responsibility.
To constitute legal homicide, the death must result from injury to the person, (as contradistinguished from causes operating upon the mind) occasioned by some act done by, or some unlawful omission chargeable upon, the party to whom such homicide is imputed. The terms " wilful omission " apply to every case of noncompliance with a legal obligation which the party may be under, to supply food, clothing, or to furnish any other assistance, or to do any other act, for the sup port of life or for the prevention of injury to it. It is not homicide unless death take place within a year and a day after the injury; or, in other words, it is not considered homicide when the party injured survives a whole year, exclusive both of the day of the injury and of the day of the death ; nor where the death is to be attributed to unskilful treatment, or other causes not resulting from or aggravated by the injury sustained.
The law of homicide applies to the killing of aliens, except alien enemies slain in the heat and in the exercise of war ; to felons, except when executed according to law ; and to persons outlawed, whether MI civil or on criminal process. But a child in renter ea mere (in its mother's womb) is not a subject of homicide, unless, subsequently to the injury, it be born alive, and die, within a year and a day from its birth, from the injury received whilst yet unborn. [Investrienns,] Criminal homicide is one of three kinds, murder, manslaughter, and self-murder. [SutcruE.] L Murder is committed by : 1. Voluntary homicide, without circumstances of justification, excuse, or extennation.