Odger's English Common Law

282 MURDER.
where a person feloniously uses an instrument or other means with intent
to procure a miscarriage, and the woman dies in consequence of his
felonious act, then, if when he did the act he must as a reasonable man have
contemplated that death or grievous bodily harm was likely to result, he is
guilty of murder. But if when, he did the act he had not at the time in
contemplation, and could not as a reasonable man have contemplated, either
of those consequences, he is guilty only of manslaughter. "
If is no defence to an indictment for murder that the
prisoner risked his own life, or that the deceased consented to
expose himself to a similar risk. Thus, the facts that either
party challenged the other to fight a duel, that the other
accepted the challenge and met his antagonist at an agreed
time and place, are immaterial, if either party was killed in
the duel. Any one, who incites or encourages another to kill
a third person or even to kill himself, is liable, if death
ensues, as an accessory before the fact or, if present at the
commission of the crime, as a principal in the second degree.
Where, upon a previous arrangement, and after there has been time for
the blood to cool, two persons meet with deadly weapons, and one of them is
killed, the party who occasions the death is guilty of murder, and the seconds
also are equally guilty. With respect to others shown to be present, the
question is, did they aid, assist, countenance or encourage the principals in
their contest ? Mere presence will not be sufficient ; but if they sustain the
principals either by advice or assistance, or go to the ground for the purpose
of encouraging and forwarding the unlawful conflict, although they do not
say or do anything,' yet if they are present, assisting and encouraging by
their presence at the moment when the fatal shot is fired, they are, in law,
guilty of the crime of murder. 1
If one of the combatants at a prise-fight is killed, the surviving com-
batant, both seconds and the referee are indictable for manslaughter ;
so is any person who is present and encouraging the combatants. 2 But
mere voluntary presence at such a fight does not necessarily render those
present guilty as aiding and abetting unless they do something to incite or
encourage the combatants. 3
So, if two persons mutually agree to commit suicide together, and the
means employed to produce death take effect upon one only, the survivor
will, in point of law, be guilty of murder ;
for each intended that the other
should die, and each incited the other to commit the crime by agreeing
that he would himself commit suicide also. 4
1 B. v. Young and Webber (1838), 8 C. & P. 644.
2 B. v. Murphy (1833), 6 C. & P. 103.
' B. v. Coney and others (1882), 8 Q. B. D. 534.
* B. v. Alison (1838), 8 C. & P. 418 ; B. v. Dyson (1823), Russ. & Ry. 523. See
also B. v. Jessop (1877), 16 Cox, 204.