CHAP. I. § 6.] Indictment, Trial, &c. Where accidental death. But if the correction exceed the bounds of due moderation, either in the measure of it, or in the instrument made use of for that purpose, the death ensuing will be either murder or manslaughter, according to the circumstances of the case. the fact is done with a dangerous weapon, improper for correction, and likely (the age and strength of the party being duly considered) to kill or maim; such as an iron bar, a sword, a pestle, or great staff; or where the party is kicked to the ground, his belly stamped upon, and so killed, it will be murder. (2) Thus, where a master had employed his apprentice to do some work in his absence, and on his return found it had been neglected, and thereupon threatened to send the apprentice to Bridewell, to which the apprentice replied, "I may as well work there, as with such a "master;" upon which the master struck the apprentice on the head with a bar of iron which he had in his hand, and the apprentice died of the blow; it was held murder: for if a father, master, or schoolmaster, correct his child, servant, or scholar, it must be with such things as are fit for correction, and not with such instruments as may probably kill them; otherwise, under pretence of correction, a parent may kill his child; and a bar of iron is no instrument of correction. (a) lowing their If persons, in pursuit of their lawful and common occupations, Persons folsee danger probably arising to others from their acts, and yet per- common ocsist, without giving sufficient warning of the danger, the death cupations. which ensues will be murder. Thus, if workmen throwing stones, rubbish, or other things from a house, in the ordinary course of their business, happen to kill a person underneath, the question will be, whether they deliberately saw the danger, or betrayed any consciousness of it. If they did, and yet gave no warning, a general malignity of heart may be inferred, (b) and the act will amount to murder from its gross impropriety. (c) So if a person driving a cart or other carriage, happen to kill, and it appear that he saw, or had timely notice of the mischief likely to ensue, and yet drove on, it will be murder. (d) The act is wilful and deliberate, and manifests a heart regardless of social duty. (e) SECT. VI. Of the Indictment, Trial, &c. ALTHOUGH the prisoner may be charged with murder by the inqui- Indictment. sition of the coroner, it is usual also to prefer an indictment against him. And it is said to be proper to frame an indictment for the 1 (z) 1 Hawk. P. C. c. 29. s. 5. Hale 453, 473. Rex v. Keite, 1 Lord Raym. 144. (a) Rex v. Grey, Kel. 64. Fost. (b) Ante, 454. (c) 3 Inst. 57. 4 Blac. Com. 194. 1 East. P. C. c. 5. (d) 1 Hale 475. P. C. c. 5. s. 38. (e) Fost. 263. s. 38. p. 262. Fost. 263. 1 East. p. 262. In what place the offender must be indicted. Trial, when committed in Wales. offence of murder in all cases where the degree of the offence is at all doubtful; (f) and unquestionably where there is any reasonable ground for supposing that the facts, as they will be given in evidence, may lead to the conclusion of the higher offence having been committed, it will be culpable not to prefer an indictment for murder. With respect to the place in which the indictment is to be preferred, it will be necessary to state some of the legislative enactments by which trials for murder are regulated. Murder, like all other offences, must regularly, according to the common law, be inquired of in the county in which it was committed. It appears however to have been a matter of doubt at the common law, whether, when a man died in one county of a stroke received in another, the offence could be considered as having been completely committed in either county: (g) but by the statute 2 and 3 Edw. 6. c. 24. s. 2. it is enacted, that the trial shall be in the county where the death happens. The fourth section of this statute also makes provision for the trial of an accessory, where the murder is committed in one county and the party is accessory thereto in any other county; and enacts, that an indictment against such accessory in the county where the offence of accessory is committed, shall be as effectual as if the principal offence had been committed within the county where the indictment against the accessory shall be found. And authority is given to the Judges of gaol delivery, &c., or two of them, of the county where the offence of the accessory shall have been committed, on suit to them made, to write to the keeper of the records where the principal shall have been convicted, to certify them whether such principal be attainted, convicted, or otherwise discharged, which he is required to certify under his seal. (h) If a person be stricken and die in the county of A., and the body be found in B., it is to be removed into A. for the coroner of that county to take the inquest. (i) By the statute 26 Hen. 8. c. 6. it is enacted, that murder and the murder is other felonies committed in Wales may be inquired of and tried upon an indictment in the next adjoining English county where the King's writ runneth: and Herefordshire has been holden to be the next adjoining English county to South Wales, and Shropshire to North Wales:(j) but it has been considered as a doubtful point in what place the trial ought to be, supposing the strcke given in an English county, and the death in Wales.(k) There are also statutes which relate to the trial of murder, and other offences which have been committed upon the sea, and either within the King's dominions or without. (f) 1 East. P. C. c. 5. s. 105. p. 340. (g) 2 Hawk. P. C. c. 25. s. 36. 1 East. P. C. c. 5. s. 128. p. 361. (h) 2 & 3 Edw. 6. c. 24. s. 4. Ante, 40. Before this statute, the coroner, super visum corporis, might have inquired at common law, of all accessories or procurers before the fact, though the procurement were in another county. 1 Hale 427. (i) 2 Hale 66. 1 MS. Sum. 54. 1 East. P. C. c. 5. s. 127. p. 361. (1) Athos' case, (father and son,) 8 Mod. 136. Parry's case, 1 Leach 125. 1 Stark. Cr. Pl. 15. (k) 1 East. P. C. c. 5. s. 129. p. 363, et seq. where see a learned argument upon this point. And see also I Stark. Cr. Pl. 14, 15. 66 CHAP. I. § 6.] Indictment, Trial, &c. on the sea, or admiral has ju The 28 Hen. 8. c. 15. s. 1. enacts, that all felonies, murders, When it is &c. committed upon the sea, or in any haven, river, creek, or committed upplace where the admiral has or pretends to have power, authority, in any haven, or jurisdiction, shall be inquired, tried, &c. in such shires and &c. where the places in the realm as shall be limited by the King's commission, risdiction; or in like form as if such offences had been committed upon the land. in foreign The proceedings upon this statute and the extent of the Admiralty parts. jurisdiction have been already considered: () it may however be again mentioned in this place, that by the 15 Rich. 2. c. 3. the Admiral has jurisdiction given to him to enquire "of the death of a man, and of a mayhem done in great ships hovering in the "main stream of great rivers, only beneath the bridges of the same rivers, nigh to the sea, and in none other places of the "same rivers." In a late case at the Admiralty session, of a murder committed in a part of Milford haven, where it was about three miles over, about seven or eight miles from the mouth of the river or open sea, and about sixteen miles below any bridges over the river, a question was made, whether the place where the murder was committed was to be considered as within the limits to which commissions granted under the statute 28 Hen. 8. c. 15. extend by law: and upon reference to the Judges, they were unanimously of opinion that the trial was properly had. (m) With respect to accessories to felonies committed upon the high seas, it is enacted by the 43 Geo. 3. c. 113. s. 5., that they shall be liable to be tried by such court and in such manner as is directed by the the upon statute 28 Hen. 8. c. 15., for trying felonies committed high seas.(n) By a late statute, the 46 Geo. 3. c. 54., all murders and other offences committed upon the sea, or in any haven, river, &c. where the Admiral has jurisdiction, may be enquired of and tried according to the common course of the laws of the realm, used for offences committed upon the land within the realm, and not otherwise, in any of his Majesty's islands, plantations, colonies, dominions, forts, or factories, under the King's commission; and the commissioners are to have the same powers for such trial within any such island, &c. as any commissioners appointed under the statute 28 Hen. 8. c. 15. would have for the trial of offences within the realm. The provisions of this act are extended by a more recent statute, the 57 Geo. 3. c. 53., to murders and manslaughters committed in places not within his Majesty's dominions. It enacts, that murders and manslaughters committed on land at the settlement in the bay of Honduras, by any person residing or being within the settlement, and in the islands of New Zealand and Otaheite, or within any other islands, countries, or places not within his Majesty's dominions, nor subject to any European state or power, nor within the territory of the United States of America, by the master or crew of any British ship or vessel, or any of them, or by any person sailing in or belonging thereto, or that shall have sailed in and belonged to, and have quitted any British ship or vessel to live in any of the said islands, &c., or that shall be there living, may be tried and punished in any of his Majesty's (1) Ante, 107. (m) Rex v. Bruce, 2 Leach 1093. Ante, 107. Trial.-After examination before the islands, plantations, colonies, &c. by the King's commission issued by virtue of the 46 Geo. 3. c. 54. in the same manner as if such offences had been committed upon the high seas.(0) With respect to murders and other capital crimes committed in Newfoundland and the isles thereto belonging, it is enacted by the 10 & 11 W. 3. c. 25. s. 13. that they may be tried in any county of England: and though the King is enabled by subsequent statutes (p) to erect courts of civil and criminal jurisdiction in that country, it does not appear that those statutes take away the jurisdiction given by the statute 10 & 11 W. 3. The 33 Hen. 8. c. 23. enacts, that if any person being examined before the King's council, or three of them, upon treasons, murking's council. ders, &c. confess such offences, or the council, or three of them, upon such examination, think any person so examined to be vehemently suspected of any treason or murder, the King's commission may be made to such persons and into such shires and places as shall be named and appointed by the King for the speedy trial of such offenders; and gives power to the commissioners to enquire and determine such offences within the shires and places limited by their commission, in whatsoever other shire or place, within the King's dominions or without, such offences so examined were done or committed. This statute did not extend to accessories; but by the 43 Geo. 3. c. 113. s. 6. it is provided that its powers and authorities shall be extended to the offence of procuring, &c. or otherwise becoming an accessory before the fact to any murder. (9) It was in one case objected that the statute 33 Hen. 8. c. 23. did not extend to murders committed out of the realm: but the court over-ruled the objection, the statute being clear as to that point. (r) Trial under 33 H. 8. Of murders commit ted by subjects of this country in foreign states. Though this statute of 33 Hen. 8. is not confined to offences committed within the King's dominions; yet, in a case where a prisoner at war abroad had entered on board an English merchant ship, and whilst in that capacity had committed an offence upon an Englishman in a foreign country, it was decided that he could not be tried for it here under this statute, on the ground that he could not be deemed a subject of this country. The offender, Depardo, was a Spaniard, and taken prisoner at sea; and whilst abroad entered on board an Indiaman, sailed to China, and murdered an Englishman in the Canton river: it was within the tideway, about eighty miles from the sea. Upon a case reserved for the opinion of the Judges, it was urged that the prisoner was not liable to be tried here, because he never became subject to the laws of this country; that he was not so by birth, and did not become so by entering on board the Indiaman. No judgment was given, but the prisoner was discharged. (a) But a British subject is indictable under the 33 Hen. 8. for the 76. continued by 34 Geo. 3. c. 44. and 35 Geo. 3. c. 25. (0) 57 Geo. 3. c. 53. s. 1. The 2d section provides that the act shall not be construed to repeal the 33 Hen. 8. c. 23. And see further as to the trial of offences committed on land in the bay of Honduras, the stat. 59 Geo. 3. c. 44. (P) 32 Geo. 3. c. 46. 33 Geo, 3. c. (q) By s. 7. this act of the 43 Geo. 3. is not to extend to Ireland. (r) Rex v. Ealing, 1 East. P. C. c. 5. s. 133. p. 369. (a) Rex v. Depardo, Mich. T. 1807. 1 Taunt, 26. Russ. & Ry. 136. murder of another British subject, though the murder were within the dominions of a foreign state. And the indictment need not allege in terms that either the deceased or the offender were British subjects the statement that the person murdered was at the time in the King's peace being considered a sufficient allegation that he was a British subject; and the conclusion in the indictment that the offence was against the King's peace, being considered as shewing sufficiently that the offender was a British subject. The indictment charged in substance that the prisoner, at Lisbon, in the kingdom of Portugal, in parts beyond the seas without England, one H. G., in the peace of God and of our lord the King, then and there being, feloniously did assault, shoot, and murder, against the peace of our said lord the King. After a conviction upon this indictment it was objected,-1. That the offence being out of the King's dominions and within the dominions of a foreign state, was not triable under the 33 Hen. 8.; and-2. that the prisoner and the deceased should have been stated to have been subjects of our lord the King at the time. But, after argument, the Judges held that the offence was triable here, though committed in a foreign kingdom, the prisoner and the deceased being both subjects of this realm at the time; and that the stating H. G. to be in the King's peace at the time sufficiently imported that he was the King's subject at the time; and that the statement that this was against the King's peace sufficiently imported that the prisoner was also a subject of this realm at that time. The prisoner was executed. (b) 66 66 Trial.—Where the wound, &c. is upon the sea, or abroad, and the death on shore; or wound, &c. is upon the death at sea, or abroad. shore, and the Where a person was struck, &c. upon the high seas and died upon shore, it was holden that the admiral had no cognizance of the offence by virtue of his commission. (s) And it was doubtful whether such offence could be tried at common law :(t) the statute 2 Geo. 2. c. 21. has therefore made provision for such cases. It where the enacts "that where any person shall be feloniously stricken or "poisoned upon the sea, or at any place out of England, and "shall die of the same stroke or poisoning within England; or "where any person shall be feloniously stricken or poisoned at any place within England, and shall die of the same stroke or poisoning upon the sea, or at any place out of England; in "either of the said cases an indictment thereof found by the jurors "of the county in England in which such death, stroke, or poi"soning, shall happen respectively as aforesaid, whether it shall "be found before the coroner upon the view of such dead body, " or before the justices, &c. who shall have authority to enquire "of murders, shall be as good and effectual in the law, as well "against the principals in any such murder as the accessories "thereunto, as if such felonious stroke and death thereby ensu"ing, or poisoning and death thereby ensuing, and the offence of "such accessories, had happened in the same county where such "indictment shall be found." And it further provides, that the (b) Rex v. Sawyer, East. T. 1815. MS. Bayley, J., and Russ. & Ry. 294. Another objection was that the indictment ought to have concluded contra formam statuti: but that was also overVOL. I. 2 H ruled. (s) 2 Hale 17, 20. 1 East. P. C. c. 5. s. 131. p. 365, 366. Ante, 108. (1) Id. and I Hawk. P. C. c. 31. s. 12. |