CHAP. I. § 6.] Trial, Plea, &c. Where the grand jury return the bill of indictment only a true bill for manslaughter, and ignoramus as to the murder, it is stated to have been the usual course to strike out, in the presence of the 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. (d) 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) Of the finding dictment by the bill of inthe grand jury. 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. (f) autrefois at 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 manslaughter of the same person; and è converso where a man has taint. 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. (.) 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. (z) 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, (b) 2 Hale 162. (c) Ex relat. Mr. Pugh, Clerk of Assize, on the Oxford Circuit, 1816. (d) By Lord Hale, (2 Hale 162.) on the ground that the words of the indorsement do not make the indictment, but only evidence the assent or dissent of the grand jury, and that the bill itself is the indictment when affirmed. (e) 1 East. P. C. c. 5. s. 116. p. 347. (f) 1 East. P. C. c. 5. s. 134. p. 371. (a) Rex v. Holcroft, 4 Co. 46 b. 2 Hale 246. (x) The only objection would be, that he could not have been convicted of murder upon the former indictment; and though this might be said equally where the party has been ac- (y) Rex v. Wigges, 4 Co. 45. (z) 2 Hale 246, 252. Fost. 329. As to the general doctrine of these pleas, and that they can only avail where the first indictment was valid, see 1 Chit. Crim. L. 452, et seq. And see Rex v. Clark, post. 472, 473. Of the evidence. 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. (ƒ) 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. Bull. N. P. 245. 3 Mod. 194. 1 Leach 135, note (a). The defendant being apprehended here, and committed to Newgate, was brought into K. B. by habeas corpus: where he produced an exemplification of the record of his acquittal in Portugal: but the King (Car. 2.) being willing to have him tried here for the same offence, referred the point to the consideration of the Judges; who all agreed, that as the party had been already acquitted of the charge by the law of Portugal, he could not be tried for it again in England. (f) Rex v. Jennings, East. T. 1819. Russ. and Ry. 388. The act which occasioned the death of the two individuals (two children) was one and the same. The general effect of the allowance of clergy, after the S Eliz. c. 4., was to discharge all offences precedent within clergy; but not such as were not entitled to the benefit of clergy. But by the late act, 6 Geo. 4. c. 25. s. 4., the allowance of the benefit of clergy to any person who shall be convicted of any felony, shall not render the person to whom such benefit is allowed dispunishable for any other felony, by him or her committed, before the time of such allowance. (g) Fost. 255. Ante, 422, 423. 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 of murder unless the body of the deceased has been found: and a very great Judge says, "I would never convict any person of mur"der or manslaughter, unless the fact were proved to be done, or "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. (i) Rule as to its being shewn that the body of the deceased has been found. the indict 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 v. Clarke, Hil. T. 1820. Brod, and Bingh. 473. (h) 2 Hale 290. mother and reputed father of a bastard (i) Rex v. Hindmarsh, 2 Leach 571. It was urged on the prisoner's behalf at the trial by Garrow, (now Mr. Baron Garrow,) that he was entitled to be acquitted, on the ground that it was not proved that the captain was dead; and that as there were many ships and vessels near the place where the transaction was alleged to have taken place, the probability was, that he was taken up by some of them, and was then alive. And the learned counsel mentioned a remarkable case which had case. happened before Mr. J. Gould. The Dying declarations of the party killed. Of the verdict. Verdict of manslaughter when the offence was committed on the seas, and is tried by commission. 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 family, and afterwards eaten by her. (m) There is one important species of evidence occasionally resorted to in cases of homicide, namely, the dying declarations of the party killed, which will be considered in a future part of this Treatise. (n) 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, however, 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 at a homicide 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. (q) By the 39 Geo. 3. c. 37. s. 2. any person tried for murder. or manslaughter committed upon the sea, by virtue of any commission directed under the 28 Hen. 8. c. 15. (r) and found guilty of manslaughter only, shall be entitled to the benefit of clergy in like manner, and shall be subject to the same punishment as if he had 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 Lit. 282, a. (i) 1 East. P. C. c. 5. s. 115. p. 345. (m) Rex v. Nicholson 1 East. P. C. (n) Post, Book VI. upon Evidence. (p) Post. Chap. on Excusable Homicide. Fost. 279, 289. (g) 1 East. P. C. c. 5. s. 135. p. 371. 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. to the direc court. 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, 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) 66 The statute 43 Geo. 3. c. 58. which repeals the 21 Jac. 1. c. 27., and the Irish act 6 Anne, (w) provides that the trials, in England and Ireland, of women charged with the murder of any issue of their bodies, which being born alive would by law be bastard, shall proceed by the like rules of evidence and presump. tion as are allowed to take place in respect to other trials for murder. And the statute further enacts, (a) "That it shall and "may be lawful for the jury, by whose verdict any prisoner charged with such murder as aforesaid shall be acquitted, to "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) 66 (u) Fost. 255, 256. (a) Rex v. Smith, ante, 459. And see Slaughterford's case cited Str. 855. (w) Ante, 424. (x) S. 4. (h) This statute only empowers a jury to find the prisoner guilty of the concealment of the birth of a bastard child, when she is tried upon an indictment for the murder of such child, and does not make the concealment Of the verdict, &c. where for the murder of their bastard child women tried ren are ac quitted of the murder, and found guilty of concealing the birth. |