B) An act of man destroying life

of living by or through any connection with its mother. But the fact of a child’s being still connected with the mother by the umbilical cord will not prevent the killing from being a murder390. If the child is born alive, it does not seem, according to the more authoritative doctrine, that it is necessary to prove that the child was capable of continued life (vitale)391 .

With the special crime of infanticide, we shall deal later on.

“At the trial of a person charged with murder, the fact of death is provable by circumstantial evidence, notwithstanding that neither the body nor any trace of the body has been found and that the accuses has made no confession of any participation in the crime. Before he can be convicted of the crime, the fact of death should be proved by such circumstances as render the commission of the crime certain and leave no ground for reasonable doubt: the circumstantial evidence should be so cogent and compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for” . The statement in the judgment of the New Zealand Court of Appeal in the case Rex v. Horry (1952) was quoted with approval in the recent case in England of "Rex v. Onofrejczyk"392 .

(B) An act of man destroying life

The second condition of the crime of wilful homicide is that life has been taken away by an act of man. "The killing may be by poisoning, striking, starving, drowning, and of a thousand other forms of death by which human life can be overcome"393 .

The act which destroys life may be an act of commission or an act of omission. Of certain acts of omission it is hardly necessary to speak. Count Ugolino who, in the Tower of Pisa, died because the person who had imprisoned him therein deliberately failed to take food to him, clearly died at the hands of that person. But another man, witness of the fact, who had no duty, to take food to the prisoner, if, though he could, he did not come to his assistance, would he be guilty of homicide? Most undoubtedly any right-thinking man would, in such circumstances, feel bound by the laws of

390 Cfr. authorities quoted in Archbold, op. cit., pp. 898 - 893 391 Cfr. Maino, op. cit., art. 254 “nato vivo e vitale”, para. 1573 392 Cfr. L.T., 11/02/1955 393 Blackstone, op. cit., Vol. IV, para. 196

morality and humanity to help his fellow-man. But by the positive law, such man could not be punished for the death because his act was not the cause of death. Nor would a man who by the law has the direct duty to prevent crime, e.g., a policeman, and who, though he could, does not prevent the killing, would be guilty of homicide - unless, of course, he was an accomplice. In fact, the killing in such case is not the direct result of any act on his part (Arabia, op. cit., p. 255). But if a person has the duty to provide food, e.g., a gaoler, to a prisoner, then if with the requisite intent he omits to do so and death ensues, he would be guilty of the homicide. In England "premeditated neglect .... by persons having custody, charge, or control of helpless persons, whether children, imbeciles, or lunatics, or sick or aged, by deliberate omission to supply them with necessary food, etc., if attended with fatal results, may be murder". (Archbold, op. cit., p. 914).

We shall see later on how our law deals with the abandonment and exposure of children.

According to some, the act causing death must ne a material act, that is, an act operating physically on the body of the deceased; “un atto che agisce sul morale, per esempio il cagionare un dolore, uno spavento, che producessero la morte, non sarebbero sufficienti alla nozione dell’omicidio”394. This is not in accordance with the more commonly accepted doctrine. "II mezzo non e’ certo necessario che sia materiale, perchè’ se le torture morali, che vengono o dal dolore, o della privazione della volontà, o dallo spavento possono uccidere, quando ciò’ sia provato, il giudice ben può condannare per omicidio” Altavilla says:

“II mezzo può essere fisico o morale; un trauma fisico ed un trauma psichico. E’ noto che si può unccidere con uno spavento, un dolore”395 .

The law in England is now also to the same effect: “It used formerly to be thought”, says Kenny396 ,

“that killing by a mental shock would not be murder; but, in the clearer

394 Pincherle, op. cit., p. 344 395 Trattato di Diritto penale, Vol. X, pp. 13 - 14 396 Op. cit., p. 149