justices of gaol delivery &c. shall proceed thereon, and that the offender shall receive the like trial, &c. as if the murder and offence of such accessories had happened in that county in which such indictment is found. Where a person standing on the shore of a harbour fired a loaded musket at a revenue cutter which had struck upon a sandbank in the sea, about a hundred yards from the shore, by which another was maliciously killed on board the boat, it was holden that the trial must be in the Admiralty court, and not at common law. (u) A few of the general rules relating to the form of the indictment may be mentioned in this place. If the name of the party killed be not known, it may be laid to be a certain person to the jurors unknown.(w) A bastard must not be described by his mother's name till he has gained that name by reputation. Frances Clark was indicted for the murder of George Lakeman Clark, a base-born infant male child, aged three weeks. The child was her's; and had been christened George Lakeman, the father's name. The murder was proved, but there was no evidence that the child had ever been called Clark; and on a case reserved the Judges held that as it had not obtained the mother's name by reputation, it was improperly called Clark in the indictment; and that as there was nothing but the name to identify it in the indictment, the conviction could not be supported. (a) It is not necessary to state the addition of the party killed, though it may sometimes be convenient to do so for the sake of distinction. (x) Nor is it necessary to allege that the party killed was "in the peace of God and of our lord the king, &c.' though such words are commonly inserted, for they are not of substance, and perhaps the truth may be that the party was at the time actually breaking the peace. (y) If a constable, watchman, or other minister of justice, be killed in the execution of his office, the special matter need not be stated, but the offender may be indicted generally of murder by malice prepense. (2) The indictment should in all respects be adapted as closely to the truth as possible. It is essentially necessary to set forth particularly the manner of the death, and the means by which it was effected:(n) and this statement may, according to the circumstances of the case, be one of considerable length and particularity.(0) But it will be sufficient if the manner of the death proved agree in substance with that which is charged. Therefore if it appear that the party were killed by a different weapon from that described, it will maintain the indictment: as if a wound or bruise alleged to have been given with a sword be proved to have (u) Rex v. Coombe, 1785-6, 1 Hawk. P. C. c. 37. s. 17. 1 Leach 388. 1 East. P. C. c. 5. s. 131. p. 367. Ante, 108. (2) Rex v Mackally, 9 Rep. 68. I Hale 460. 12 Rep. 17. (n) 1 East. P. C. c. 5. s. 107. p. 341. (0) As in the case of Jackson and others, 9 St. Tri. 715. (ed. by Hargr.) where the indictment stated a murder by a long course of barbarous usage. But see post, 473, as to the statement (y) 2 Hawk. P. C. c. 25. s. 73. 2 of special circumstances. (w) 1 East. P. C. c. 5. s. 114. p. 345. Hale 186. CHAP. 1. § 6.] Indictment, Trial, &c. been given with a staff or axe; or a wound or bruise alleged to have been given with a wooden staff, be proved to have been given with a stone. So if the death be laid to have been by one sort of poisoning, and it turn out to have been by another, the difference will not be material. But if a person be indicted for one species of killing, as by poisoning, he cannot be convicted by evidence of a species of death entirely different, as by shooting, starving, or strangling. (b) Where the manner of the death is doubtful, it will be proper to lay it differently in different counts, so as to meet the evidence.(c) It seems to be necessary to aver a striking where the death has been occasioned by a wound, bruise, or other assault: and it appears to have been holden that an indictment stating that the party of malice aforethought murdered, or gave a mortal wound, without saying that he struck, &c. was bad. (d) But this doctrine has been questioned, (e) though it is admitted to be most safe to use the term where it may seem to be required by the nature of the fact. (f) In a late case, where the indictment charged that the prisoners with certain stones of no value, which they in their right hands then and there had and held, in and upon the back part of the head of him the said W. W., then and there feloniously, &c. and of their malice aforethought did cast and throw, and that they with the stones aforesaid, so as aforesaid cast and thrown, the said W. W. in and upon the back part of the head of him the said W. W., feloniously, &c. did strike, &c.-objection was taken that the mode of causing the death was not properly stated. But the point being submitted to the consideration of the Judges, they were unanimously of opinion that the cause of the death was sufficiently stated; it being clear that the stones were what were cast and thrown at the deceased; and the word with might be rejected, or the words cast and throw might be considered to be used as neuter verbs. (2) It seems also that if the death be occasioned by any instrument holden in the hand of the party killing at the time, it should be so alleged; and that regularly the instrument should be stated to be of a certain value or of no value: but an able writer says that he could not find the grounds for the first of these averments, and that the latter does not seem to be essential.(g) It has been considered as necessary to state in what part of the body the wound was given, and also to state the length and depth of it. (h) But this doctrine was overruled, or at least qualified, in (b) 1 East. P. C. c. 5. s. 107. p. 341. 2 Hawk. P. C. c. 23. s. 84. 2 Hale 185, 186. 2 Inst. 319. Mackally's case, 9 Co. 67. (c) As in Rex v. Hindmarsh, 2 Leach 569. (d) Rex v. Long, 5 Co. 122 a. Dy. 99. 2 Hale 184. Rex v. Lorkin, 1 Bulstr. 124. (e) 2 Hawk. P. C. c. 23. s. 82., referring to Cro. Jac. 635. Sum. 207. Yelv. 28. (f) 2 Hawk. P. C. ibid. (z) Rex v. Dale and others, Hil. T. 1824. 1 Ry. & Mood. C. C. 5. (g) 1 East. P. C. c. 5. s. 108. p. 341, 342. In the case of Rex v. Dale, ante, note (z), it was objected that after the words "certain stones" there should have been a videlicet, mentioning the number, and also that it was not expressed in what hand the stones were held by each of the prisoners: but the objections were not considered as material. (h) 2 Hale 185, 186. 2 Hawk. P. C. c. 23. s. 80, 81. Trem. Ent. 10. Staundf. 78 b. 79 a. 4 Co. 40 b. 41. 5 Co. 120, 121 b. 122. Cro. Jac. 95. Stark. Cr. L. 375, 380. 2H 2 66 a late case. The indictment, after stating that the prisoners feloniously and of their malice aforethought made an assault on the party killed, and threw him down upon the ground; and with their hands and feet, while he was upon the ground, in and upon his head, stomach, breast, belly, back, and sides, feloniously, &c. divers times, with great force and violence did strike, beat, and kick, and with their hands, feet, and knees did strike, push, press, and squeeze, proceeded thus,-"giving to the said J. D. then and there, as well by the pulling, pushing, casting, and throwing of "him the said J. D. down, unto and upon the ground as aforesaid, "and by the striking, beating, and kicking, of him the said J. D., "whilst he was so lying and being upon the ground as aforesaid, "in and upon the head, stomach, breast, belly, back, and sides, of "him the said J. D. as aforesaid, as also by the striking, pushing, pressing, and squeezing of him the said J. D., whilst he the " said J. D. was so lying and being upon the ground as aforesaid, in and upon the belly, breast, stomach, and sides of him the said "J. D., with the hands, knees, and feet of them the said R. M. "and B. M. in manner aforesaid, several mortal bruises, lacera❝tions, and wounds, in and upon the belly, breast, stomach, and "sides, of him the said J. D.;" of which said several mortal bruises, lacerations, and wounds, the said J. D., from, &c. did languish, &c.; and then it averred the death and the murder in the usual form. A conviction having taken place, the prisoner's counsel moved in arrest of judgment. It was urged that the indictment was insufficient in stating only that there were several mortal bruises, lacerations, and wounds, on several parts of the body, of which the party languished and died; that a considerable degree of certainty was necessary in the statement of the wounds on the face of the indictment, and of the situation, length, &c. of each; that it was necessary to describe the particular parts of the body on which the wound or wounds is or are alleged to be; that charging a wound to be inflicted on the side or sides of a man is bad, without more particularity, as non constat whether it is to be taken to be the side or sides of the body, or of the head, or of any or of what limb; that the indictment, according to ancient forms, should so state the fact as that a finger might be placed upon the part of the body where the wound is described to be; that this was still requisite, although a conviction might take place upon evidence varying from it, for the particulars ought to be stated accurately according to the facts as they are supposed to be, for the previous information of the court and of the party charged, with a view to a due investigation, and in order that it might appear, by such statement of particulars, that a due enquiry had been made by the grand jury or the coroner's inquest as to thesc circumstances, before a party should be put to undergo the pain and peril of a trial; and that the facts ought not to be wantonly or purposely varied from in such statement; and 2 Hale P. C. 185, 186, was cited and observed upon. Judgment was respited; and the matter submitted to the consideration of the Judges, who met twice for the purpose of considering the case. At the second meeting the majority of the Judges, viz. Gaselee, J., Hullock, R., Garrow, B., Burrough, J., Park, J., Bayley, J., Graham, B., Alexander, L. C.B., Best, L. C. J., and Abbott, L. C. J., held the conviction right, as it appeared in several old precedents (a) that the length, breadth, and depth, of the wounds were not stated; and also that Mr. Justice Lawrence had instructed the clerk of assize upon the Oxford circuit to omit these particulars when there were more wounds than one, and that his instructions had been followed. And they held that although they might have felt great difficulty had the precedents been uniform; yet, as there were precedents against the objection, they might consider whether common sense required a statement of these particulars: and as the statement, if introduced, need not be proved, they thought it unnecessary. Littledale, J., and Holroyd, J., differed from the other Judges, and thought the indictment bad. (b) It had long been settled that though it was considered necessary to state the manner and place of the hurt, and its nature, in order that the indictment might be good as to its formality; yet, if it appeared upon the evidence that the party died of another kind of wound, in another place, the indictment was nevertheless maintainable.(k) It is necessary, in all cases, that the death by the means stated should be positively alleged, for it cannot be taken by implication: if, therefore, it be stated that the death was caused by any stroke, the indictment should proceed to aver that the prisoner thereby gave to the deceased a mortal wound or bruise, whereof he died; (7) and an indictment setting forth that the prisoner choaked the deceased, qua suffocatione obiit, instead of de qua suffocatione, &c was adjudged to be erroneous. (m) And if the means of the death be alleged to be by poison, it should be averred, after stating particularly the manner in which the poison was administered, that the party died of the poison so taken, and the sickness thereby occasioned. (2) And an indictment which stated the death to have been caused by means of ravishing an infant, but omitted to aver that a mortal wound or bruise was given, was holden to be defective. (0) In a case where the death proceeded from suffocation, by the swelling up of the passage of the throat; and such swelling proceeded from wounds occasioned by forcing things into the throat; it was held that the statement might be that the things were forced into the throat, and the deceased thereby suffocated; and that it was not necessary to mention the immediate cause of suffocation; namely, the swelling of the throat. The indictment charged a murder, by forcing and thrusting moss and dirt into the mouth, nose, and throat of a child, by which forcing and thrusting of the moss and dirt into the mouth, &c. the child was then and there suffocated. It appeared that this forcing of the moss and dirt did not produce immediate strangulation, and that they were (a) Rast. Entr. 263, 382. Co. Entr. 355. West. Symb. 117, 151, 153, 154, 155, 235, 260, 261. (b) Rex v. Mosley and another, cor. Holroyd, J., York Lent Ass. 1825, and decided by the Judges at their second meeting, Trin. T. 1825. Ry. & Mood. C. C. 97. (k) 2 Hale 185, 186. 2 Hawk. P. C. c. 23. s. 81. (1) 2 Hale 186. (m) 1 Roll. 137. 2 Hawk. P. C. c. 23. s. 83. (n) 1 East. P. C. c. 5. s. 111. p. 343. 2 Hawk. P. C. c. 23. s. 82, 83. (0) Rex v. Lad, 1 Leach 96. Averment of malice aforethought, statement of time, place, &c. and conclusion. removed before the child died: but the forcing them into the throat made the throat swell so as to choak up the passage; and then the child died of suffocation. Upon a case reserved, the Judges held, that as the primary cause of the suffocation was the forcing the moss into the throat of the child, it was not necessary to state in the indictment the intermediate process; viz. the swelling up of the passage of the throat, which occasioned the suffocation, such swelling having arisen by forcing the moss into the throat. (a) It is necessary to state, that the act by which the death was occasioned was done feloniously, and especially that it was done of malice aforethought, (p) which, as we have already seen, is the great characteristic of the crime of murder; (g) and it must also be stated, that the prisoner murdered the deceased. (r) If the averment respecting malice aforethought be omitted, and the indictment only allege that the stroke was given feloniously, or that the prisoner murdered, &c. or killed, or slew the deceased, the conviction can only be for manslaughter. (s) It is also necessary to allege the time and place, as well of the wound as of the death; so that where the party is indicted in the county where the death happened, under the statute 2 and 3 Edw. 6. c. 24., (t) the stroke should be alleged in the county where it really was; and by the same rule the offence must be alleged in the place where it was committed in indictments upon the statutes 28 Hen. 8. c. 15. and 33 Hen. 8. c. 23. (u) for murders upon the sea, or in other places therein mentioned. (2) A charge that A., on such a day, at, &c. made an assault upon B., and him with a knife feloniously struck, killed, and murdered, was held not to import sufficiently that the stroke was at the same time and place as the assault, for want of the words "then and there;" and for this and other exceptions an outlawry on this charge was reversed. (a) And the respective times of the wound and death must be shewn, that it may appear that the deceased died within a year and a day from the stroke or other cause of death: but though the day or year be mistaken, it is not material, if it appear by the evidence that the death happened within the time limited, without which the law does not attribute the death to the stroke or poison. (y) The indictment is concluded, by charging the murder upon the party by way of consequence from the antecedent matter, in a positive allegation that the prisoner in manner and by the means aforesaid feloniously, wilfully, and of his malice aforethought, did (poison,) kill, and murder. (2) And where the stroke was at one time or place, and the death at another, if the day be specially alleged, it should be that on which the party died, and not that on which he was stricken; for until he died it was no murder. (0) (a) Rex v. Tye, East. T. 1818. MS. (p) 2 Hale 186, 187. Staund. P. C. (r) 2 Hawk. P. C. c. 23. s. 77. Anon. (s) 1 East. P. C. c. 5. s. 116. p. 345, 346. (t) Ante, 462. (u) Ante, 463, 464. (x) 1 East. P. C. c. 5. s 112. p. 343. (y) 2 Hawk. P. C. c. 23. s. 90. 2 Inst. 318. 1 East. P. C. c. 5. s. 112. p. 343. (a) Rex v. Buckler, Dy. 69 a. |