Odger's English Common Law

BOOK II.—PAET III.
OFFENCES AGAINST THE PERSON.
Chapter I.
HOMICIDE, OR CAUSING DEATH.
The law of England recognises (independently of the crime
of suicide) two degrees of culpable homicide, murder and
manslaughter ; it recognises also two degrees of homicide
excusable and justifiable—which do not expose to punish-
ment. But in all these cases the first question always is:
Did the prisoner cause the death of the deceased ? If not,
there is no homicide.
Homicide occurs when one.human being causes the death
of another. That other may be an alien, an outlaw, or a
person subject to the pains and penalties of a prcemuriire,
" Killing even an alien enemy within the kingdom, unless
in the actual exercise of war, would be murder." 1 But
the person killed must have a separate existence ; he must
have been completely born; it is not homicide to kill a
babe whilst it is being born ;
—
2 still less while it is en ventre sa
mere. The whole body xrf the babe must have emerged from
the body of the mother ; else it is not born. And it must be
born alive. A babe must be proved to have breathed by the
natural movement of its own lungs before it can be the subject
of homicide; the fact that the child cried is generally
accepted as sufficient evidence of this. And if after the child
has thus attained a separate existence it dies from injuries
inflicted before or during its birth, this will be homicide.
But the phrase "causing death" requires some farther
explanation; there are many cases in which in ordinary
i 1 Hale, 433.
2 B. v. Poulton (1832), 5 C. & P. 329* ; R. v. Brain (1834), 6 C. & P. 349.