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Where the grand jury return the bill of indictment only a true of the finding bill for manslaughter, and ignoramus as to the murder, it is stated the bill of in

dictment by to have been the usual course to strike out, in the presence of the

the grand jury. grand jury, the words“ maliciously” and “of malice aforethought,” and “ murder," and to leave only so much as makes the bill to be one for manslaughter; (b) and this appears to be the practice at the present time upon some of the circuits : (c) but it has been thought to be the safer way, to present a new bill to the grand jury for manslaughter. (dl) Though the same indictment may charge one with murder and another with manslaughter, yet if it charge both with murder, the grand jury cannot find it a true bill against one, and manslaughter as to the other; but a finding against one for murder will be good, and there ought to be a new bill against the other for manslaughter. (e)

If, as is very commonly the case, there be an indictment for Arraignment. murder, and the coroner's inquisition for the same offence against the same person, at the same sessions of gaol delivery, the usual practice appears to be to arraign and try the prisoner upon both, in order to avoid the plea of autrefois acquit or attaint; and to indorse his acquittal or attainder upon both presentments. (S)

Where a man has been acquitted generally upon an indictment Pleas of autrefor murder, autrefois acquit is a good plea to an indictment for the fois acquit, and

autrefois atmanslaughter of the same person; and è converso where a man has been acquitted on an indictment for manslaughter, he shall not be indicted for the same death as murder; the fact being the same, and the difference only in the degree. (a) And upon similar grounds it should seem, that one who has been convicted upon an indictment for manslaughter, and had his clergy allowed, may plead autrefois convict to an indictment, charging the same death upon him as a murder. (.r) And it is clear that autrefois convict of manslaughter, and clergy thereupon allowed, was a good bar in an appeal of murder.(y) And auterfois acquit, or autrefois attaint, upon an indictment for murder, is a good plea to an indictment charging the same death as petit treason.(2)

As a final determination in a court having competent jurisdiction is conclusive in all courts of concurrent jurisdiction, it has been held that a party who has killed another in a foreign country,


(6) 2 Hale 162.

equally where the party has been ac(c) Ex relat. Mr. Pugh, Clerk of quilted upon a fornier indictment for Assize, on the Oxford Circuit, 1816. manslaughter, the plea in the latter

(d) By Lord Hale, (2 Hale 162.) on case is clearly proper, upon the ground, the ground that the words of the in- that if the party was not guilty even of dorsement do not make the indictment, manslaughter, he cannot be charged but only evidence the assent or dissent with having caused the death, with the of the grand jury, and that the bill it- circumstances of aggravation necesself is the indictinent when affirmed. sary to constitute murder.

(e) i East. P. C. c. 5. s. 116. p. 347. (y) Rex v. Wigges, 4 Co. 45. (f) i East. P. C. c.5. s. 134. p. 371. (2) 2 Hale 246, 252. Fost. 329. As (a) Rex v. Holcroft, 4 Co. 46 b. 2 to the general doctrine of these pleas, Hale 246.

and that they can only avail where the (x) The only objection would be first indictment was valid, see 1 Chit. that he could not bave been convicted Crim. L. 452, et seq. And see Rex v. of murder upon the former indict- Clark, post. 472, 473. ment; and though this might be said

Of the cvidence.

and been there prosecuted, tried, and acquitted, may avail himself of such acquittal in answer to any charge against him in this country for the same offence. (e)

In a case where the prisoner had been tried for murder, and convicted of manslaughter, and had received the benefit of clergy, and was subsequently tried for murder, and convicted of manslaughter, in killing another individual (who died after the first trial) by the same act which caused the death of the first; the Judges were unanimously of opinion, that the former allowance of clergy protected the prisoner against any punishment upon the second verdict; and that if the prisoner were to be called up for judgment, he might rely upon such allowance as a bar. ()

The evidence, in cases of murder, will consist of the proof of the particular facts and circumstances which shew the killing as stated in the indictment, and that it was committed by the party accused, of malice aforethought. It should be observed, however, that when the fact of killing is proved, all the circumstances of accident, necessity, or infirmity, are to be satisfactorily shewn by the prisoner, unless they arise out of the evidence produced against him ;. for the law presumes the fact to have been founded in malice until the contrary appears. (g)

A charge of murder by forcing a person to take, drink, and swallow down oil of vitriol, will be sufficiently supported by evidence of forcing him to take it into his mouth and throat, if that produced the death; and negative evidence that none could have been swallowed down, and that the effect upon the throat must have produced the death, will not vary the case. The indictment was, that the prisoner, contriving to murder J. S. with oil of vitriol, gave him a quantity thereof, and forced him to take it into his mouth and throat, knowing it would occasion his death; by means whereof he became disordered; and by the oil of vitriol aforesaid, and by the disorder, choaking, &c. occasioned thereby, died : and to this indictment there was a plea of autrefois acquit. The former indictment stated, that the prisoner, contriving to murder J. S. by poison, gave him poison; that is, oil of vitriol, and forced him, to take, drink, and swallow it down, by means whereof he became sick; and by the poison so by him taken, drank, and swal

(e) Rex v. Hutchinson, 1 Show. 6. Russ. and Ry. 388. The act which Bull. N. P. 245. 3 Mod. 194. 1 Leach occasioned the death of the two indi135, note (a). The defendant being viduals (two children) was one and the apprehended here, and committed to same. The general effect of the allowNewgate, was brought into K. B. by ance of clergy, after the s Eliz. c. 4., habeus corpus ; where he produced an was to discharge all offences precedeut exemplification of the record of his within clergy; but not such as were acquittal in Portugal: but the King not entitled to the benefit of clergy. (Car. 2.) being willing to have him But by the late act, 6 Geo. 4. c. 25. s. Tried here for the same osfence, re- 4., the allowance of the benefit of ferred the point to the consideration clergy to any person who shall be conof the Judges ; who all agreed, that as victed of any felony, shall not render the party had been already acquitted the person to whom such benefit is of the charge by the law of Portugal, allowed dispunishable for any other he could not be tried for it again in felony, by him or her committed, beEngland.

fore the time of such allowance. f) Rex v. Jennings, East. T: 1819. (8) Fost. 255. Ante, 422, 423.

been found.

lowed down as aforesaid, and of the sickness occasioned thereby, he died. On demurrer, the plea was overruled, subject to a case, and the prisoner was tried and convicted. The case was argued ; and it was urged, that on the first indictment swallowing must have been proved, which in fact had been negatived; and that proof of forcing J. S. to take it into his mouth and throat would not have been sufficient : but eleven Judges (Wood, B. being absent) held otherwise. It was also urged, that upon the first indictment it must have been proved, that oil of vitriol was a poison, which, in the second, would not be necessary: but the Judges seemed to think, that the second indictment implied, that oil of vitriol was a poison, and a pardon was recommended. (a)

It has been holden as a rule, that no person should be convicted Rule as to its of murder unless the body of the deceased has been found : and a being shewa very great Judge says, “I would never convict any person of mur- of the de “ der or manslaughter, unless the fact were proved to be done, or ceased has “ at least the body be found dead.” (h) But this rule, it seems, must be taken with some qualifications; and circumstances may be sufficiently strong to shew the fact of the murder, though the body has never been found. Thus, where the prisoner, a mariner, was indicted for the murder of his captain at sea, and a witness stated that the prisoner had proposed to kill the captain, and that the witness being afterwards alarmed in the night by a violent noise, went upon deck, and there observed the prisoner take the captain up and throw him overboard into the sea, and that he was not seen or heard of afterwards; and that, near the place on the deck where the captain was seen, a billet of wood was found, and that the deck and part of the prisoner's dress were stained with blood; the court, though they admitted the general rule of law, left it to the jury to say, upon the evidence, whether the deceased was not killed before his body was cast into the sea; and the jury being of that opinion, the prisoner was convicted, and (the conviction being unanimously approved of by the Judges) was afterwards executed. )

It is better not to put forth more of the special circumstances Proof of the of the case, in an indictment for murder, than are required by the averments in established rules : but if all the special matter in respect of which ment. the law implies malice be set forth, it is laid down that a variance

(a) Rex o. Clarke, Hil. T. 1820. | mother and reputed father of a bastard Brod. and Bingh. 473.

child were observed to take the child (h) 2 Hale 290.

to the margin of the dock, at Liver. (i) Rex v. Hindmarsh, 2 Leach 571. pool; and, after stripping it, cast it into It was urged on the prisoner's behalf the dock. The body of the infant was at the trial by Garrow, (now Mr. Baron not afterwards seen; and as the tide of Garrow,) that he was entitled to be ac- the sea flowed and reflowed into and quitted, on the ground that it was not out of the dock, the learned Judge, proved that the captain was dead; and upon the trial of the father and mother ibat as there were many ships and ves- for the murder of their child, observed sels near the place where the transac- that it was possible the tide might have tion was alleged to have taken place, carried out the living infant; and upon the probability was, that he was taken this ground the jury, by bis direcup by some of them, and was then tion, acquitted the prisoners. But alive. And the learned counsel men- qu. the form of the indictment in this tioned a remarkable case which had happened before Mr. J. Gould. The


between the indictment and the evidence is not material, provided the substance of the matter be found. (i) Upon this principle, where an indictment for the murder of a serjeant at mace of the city of London supposed that the sheriff of London, upon a plaint entered, made a precept to the serjeant at mace to arrest the defendant, and it appeared that there was not any such precept made, and that, by the custom of London, after the plaint entered, any serjeant, ex officio, at the request of the plaintiff

, might arrest a defendant, absque aliquo præcepto, ore tenus vel aliter, it was holden that this statement of the precept was but circumstance not necessary to be supported in evidence, and that it was sufficient if the substance of the matter were proved without any precise regard to circumstance. (k) And if a capias ad satisfaciendum, fieri facias, writ of assistance, or any other writ of the like kind, issue directed to the sheriff, and he or any of his officers be killed in the execution of it, it is sufficient, upon an indictment for this murder, to produce the writ and warrant, without shewing the judgment or decree. (1)

In a case where the prisoner was charged with murder by poisoning, and the indictment stated that she delivered the poisoned food to the deceased, it was ruled that such allegation was proved, by shewing that the prisoner put the poison in some pudding meal, which was in a bowl in the milk house, from whence it was taken by the deceased, as usual, to make the pudding for the fa

mily, and afterwards eaten by her. (m) Dying decla

There is one important species of evidence occasionally resorted rations of the to in cases of homicide, namely, the dying declarations of the party party killed. killed, which will be considered in a future part of this Treatise.(n) Of the verdict.

The jury may, upon an indictment for murder, find the prisoner guilty of the offence charged, or of the lesser offences of manslaughter or excusable homicide. (o) Where, howerer, the facts of the case amount only to excusable homicide, it is usual for the Judge, at the present day, to permit or direct a general verdict of acquittal, unless some considerable blame appears to attach to the conduct of the party. (P) And several persons present cide may be guilty in different degrees, one of murder, the other only of manslaughter. So a wife or servant may be guilty of petit treason, and a stranger of murder, being all present at the

fact. (9)

Verdict of By the 39 Geo. 3. c. 37. s. 2. any person tried for murder or manslaughter manslaughter committed upon the sea, by virtue of any commission when the of

directed under the 28 Hen. 8. c. 15. (r) and found guilty of manfence was committed on slaughter only, shall be entitled to the benefit of clergy in like the seas, and manner, and shall be subject to the same punishment as if he had is tried by commission.

committed such manslaughter upon land. And by the 43 Geo. 3.
c. 113. s. 6. (s) in case any offender shall, in pursuance of that act,
or the act of 33 Hen.8. c. 23.(t) be indicted for murder, and, upon

(i) i East. P. C. c. 5. s. 115. p. 345. Lit. 282, a.
(k) Rex v. Mackally, 9 Co. 67. (p) Post. Chap. on Excusable Homi-
(1) Fost. 311, 312.

cide. Fost. 279, 289. (m) Rex v. Nicholson 1 East. P. C. (9) 1 East. P. C. c. 5. s. 135. p. 371. c. 5. s. 116. p. 346.

(r) Ante, 463. (n) Post, Book VI. upon Evidence. (s) Ante, 464. (o) i Hale 449. % Hale 302. Co. (1) Anle, 464.

the trial, shall appear to be guilty only of manslaughter, the jury may, on such indictment, find the party guilty of manslaughter only; or, in case of doubt or difficulty, may find a special verdict, upon which there shall be the like proceedings, judgment, &c. as if the offence had been committed within any county of the realm, and the trial had been had and verdict been found upon an indictment for murder, according to the course of the common law, by a jury of the county within which the offence was committed.

In every case where the point turns upon the question whether The jury the homicide was committed wilfully and maliciously, or under should attend circumstances justifying, excusing, or alleviating, the matter of tions of the fact, namely, whether the fucts alleged by way of justification, court. excuse, or alleviation, are true, is the proper and only province of the jury. But whether, upon a supposition of the truth of the facts, such homicide be justified, excused, or alleviated, must be submitted to the judgment of the court; for the construction which the law puts upon facts stated and agreed, or found by a jury, is in this, as in all other cases, undoubtedly the proper province of the court. In cases of doubt and real difficulty it is commonly recommended to the jury to state facts and circumstances in a special verdict. But where the law is clear, the jury, under the direction of the court in point of law, matters of fact being still left to their determination, may, and if they are well advised, always will, find a general verdict, conformably to such direction. (u) And if the jury bring in a verdict of manslaughter in a case which clearly amounts to murder, the court should not receive the verdict. (a)

The statute 43 Geo. 3. c. 58. which repeals the 21 Jac. 1. Of the verdict, c. 27., and the Irish act 6 Anne, (w) provides that the trials, in &c. where England and Ireland, of women charged with the murder of any for the murissue of their bodies, which being born alive would by law be der of their bastard, shall proceed by the like rules of evidence and presump- bast

ren are action as are allowed to take place in respect to other trials for

quitted of the murder. And the statute further enacts, (x)

“ That it shall and murder, and may be lawful for the jury, by whose verdict any prisoner found guilty of

concealing the charged with such murder as aforesaid shall be acquitted, to birth. “ find, in case it shall so appear in evidence, that the prisoner was “ delivered of issue of her body, male or female, which, if born

alive, would have been bastard; and that she did, by secret “ burying, or otherwise, endeavour to conceal the birth thereof; " and thereupon it shall be lawful for the court before which such

prisoner shall have been tried to adjudge that such prisoner “ shall be committed to the common gaol, or house of correction, “ for any time not exceeding two years.” (h)

bastard child

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(u) Fost. 255, 256.

and does not inake the concealment (a) Rex v. Smith, ante, 459. And an offence for which an indictment see Slaughterford's case cited Str. 855. can be preferred. Rex v. Parkinson, (w) Ante, 424.

Carlisle Sum.Ass. 1821. (MS. Bayley, J.) (x) S. 4.

In consequence much difference of (h) This statute only empowers a opinion and practice is stated to have jury to find the prisoner guilty of the prevailed amongst the gentlemen servconcealment of the birth of a bastarding upon the grand juries of the coun child, when she is tried upon an in- try, upon the question whether, when dictment for the murder of such child, there clearly is ou case upon which


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