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rectified during the assizes by having the prisoner again brought up and passing the sentence de novo. Upon a conviction for the murder of a bastard child, the award of dissecting and anatomizing was omitted in passing sentence: other sentences were then passed, and the court adjourned to the Judges' lodgings. In the calendar the award was made. Upon a case reserved all the Judges held that it would have been remedied if the Judge, after the adjournment to the lodgings, had gone again into court and pronounced the right judgment: and Lord Ellenborough, Lord Alvanley, M‘Donald, C. B., Heath, J. Rooke, J. and Chambre, J., held that the statute was directory only, and the omission immaterial: but the other six Judges held otherwise; and the prisoner was pardoned upon condition of transportation. (a)

But it is not essential to award the day of execution in the sentence, the statute in that case being directory only; and if a wrong day is awarded, it will not vitiate the sentence : at least it may be set right during the assizes ; especially if the mistake is discovered and set right before any other business has been done, though on a following day. A trial for murder took place on Thursday; the prisoner was convicted and sentence pronounced for execution upon the Monday following. The court immediately adjourned, but the mistake was discovered in the evening; and on the Friday morning before any other business was done, the prisoner was brought up and sentence awarded for the Saturday; but the execution was respited. Upon a case reserved, Lord Ellenborough, M‘Donald, C. B., Heath, J., Grose, J., Chambre, J., and Bayley, J., against Thomson, B., Le Blanc, J., Graham, B., and Wood, B., thought the statute directory only, and that the time did not form a necessary part of the sentence : and all agreed that the mistake might be set right during the assizes, and that the attainder was therefore right. (b)

It has been decided by the house of peers, that a peer, con- The stat. 25 G. victed of murder, ought to receive judgment according to the 2.00 37. excom

tends to peers. provisions of this statute : and it was also decided in the same case that, supposing the day appointed by the judgment for execution should lapse before such execution done (which, however, the law will not presume), a new time may be appointed for the execution either by the high court of parliament, before which such peer shall have been attainted, or by the court of King's Bench, the parliament not then sitting, the record of the attainder being properly removed into that court. (f)

By the fourth section of the statute, it is enacted, that after Execution sentence pronounced, “ in case there shall appear reasonable may be stayed.

cause, it shall and may be lawful, to and for such judge or "justice before whom such criminal shall have been so tried, to

stay the execution of the sentence, at the discretion of such

(a) Rex v. Fletcher, Trin. T. 1803. Judgment was pronounced accordingMS. Bayley, J. and Russ. & Ry. 58. ly, awarding execution on Thursday

(6) Rex v. Wyatt, East. T. 1812. the 21st April: but the prisoner was MS. Bayley, J. & Russ. and Ry. 230. not executed till the 5th of May, wben

(f) Earl Perrer's case, Fost. 138, there was a writ under the great seal 139.

1 Fast. P. C. c. 5. s. 136. p. 374. for that purpose. 19 St. Tr. 961,973.

judge or justice, regard being always had to the true intent and purpose

of this act.” Treatment of By the sixth, seventh, and eighth sections, certain regulations murderers

are given, for the treatment of a murderer, after conviction. It after conviction.

is enacted, that such criminal shall be confined in a separate cell, and that no person but the gaoler or his servants shall have access to him, without licence under the hand of the judge or sheriff: and that he shall, between sentence and execution, be fed with bread and water only (except on receiving the sacrament, or in case of necessaries administered medicinally by a professional man), under a penalty upon the gaoler of 201., and imprisonment till it be paid, and forfeiture of his office. But in case the judge or justice shall see cause to respite the execution, he may relax any or all of these

restraints, by licence in writing, signed by him.(g) Sentence after

Where two persons had been convicted of a barbarous murder removal of the indictment in Pembrokeshire at the Hereford assizes, being the next English to the King's county, and the indictment had been removed by certiorari into Bench by cer- the court of King's Bench, in order to argue some exceptions .

which were overruled, that court decided, after some question made whether the prisoners ought not to be sent back to Herefordshire to receive sentence, that they had the same jurisdiction over facts committed in Wales, as if committed in the next adjacent county in England; and the prisoners were therefore sentenced in the King's Bench, and were executed by the marshal.() But it seems to have been considered in a late case, that sentence pursuant to the statute 25 Geo. 2. c. 37. may be passed by a judge at Nisi Prius upon an indictment for murder, removed by certiorari into the court of King's Bench, and afterwards tried at Nisi Prius, without remitting

the transcript of the record to the court of King's Bench.(i) (8) S. 7.

fendants, being in the custody of the (h) Athos' case (father and son) as marshal, were executed at St. Thomas cited in note(r). Hale 463. where it a Waterings, near the end of Kent is said, that the prisoners were exe- Street. And see also the case in 1 Str. cuted at Kennington gallows, near 553, and 8 Mod. 136.; and see SissingSouthwark. In Taylor's case, 5 Burr. hurst-house case, ante, 452, note (t). 2797. the reporter says, that he re- (i) Rex v. Thomas, 4 M. and S. 447. members this case ; and that the de

CHAPTER THE SECOND.

OF PETIT TREASON.

Petit treason is a breach of the lower allegiance of private and domestic faith; and considered as proceeding from the same principle of treachery in private life as would have led the person, harbouring it, to have conspired in public against his liege lord and sovereign. At common law the instances of this kind of crime were more numerous than they are at present, and involved in some uncertainty :(a) but, by the statute 25 Edw. 3. st. 5. c. 2. they were reduced to the following cases,–1. Where a servant kills his master. 2. Where a wife kills her husband. 3. Where an ecclesiastical person, secular or regular, kills his superior, to whom he owes faith and obedience.

The principles which have been laid down, with respect to Principles rewilful murder, are also applicable to the crime of petit treason, lating to wil

ful murder, which, though it appears to have been sometimes regarded differ

are applicable ently,(b) is substantially the same offence as murder, differing to petit treaonly in degree.(c) It is murder aggravated by the circumstance of the allegiance, however low, which the murderer owed to the deceased; and in consequence of that circumstance of aggravation, and of that alone, the judgment upon a conviction is more grievous in one case than in the other; though in common practice no material difference is made in the manner of the execution.(d) Accordingly a person guilty of petit treason may be indicted for murder:(e) and a wife or servant joining with a stranger in the murder of the husband or master, may be charged in one indictment (which could not be if their offences were not substantially the same); and such indictment concluding that they feloniously, traitorously, and of malice afore-thought,

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(a) i Hale 376.

treason is made liable to such further (b) By unwary people, as Mr. J. pains and penalties as are declared by Foster says. Fost. 323.

25 G. 2. c. 37. with respect to persons (c) Fost. 323, 327, 336. A Blac. Com. convicted of wilful murder. 203.

(e) i Hale 378. Fost. 325, et sequ. (d) Fost. 323. And now by 30 G. 3. There is a case contrà cited in Coke v. c. 48. in all cases of conviction of any Woodburn, 6 St. Tr. 224. : but Mr. J. woman for high or petit treason, the Foster gives good reasons for the conjudgment shall be that she shall be clusion that no such case ever existed, drawn and hanged, and not burned; Fost. 326. and any woman convicted of petit

VOL. I.

21

murdered,” is good for both, reddendo singula singulis. (f) But, though the indictment may be for murder only, it is considered as most proper to prefer an indictment for petit treason, because the judgment is different, and because a person indicted for petit treason is entitled to a peremptory challenge of thirty-five.(g) And this doctrine was acted upon by a very learned judge, in a case of late occurrence. The prisoner was arraigned on the last day of the assizes, and after the grand jury had been discharged, upon an indictment charging her with the wilful murder of her sister; when Lawrence, J., upon reading the depositions taken before the coroner, found that she had acted as a servant in her sister's family; upon which, after conferring with the counsel for the prosecution, and citing the authority of Foster, J.,(1) he refused to try her upon that indictment, and ordered her to be detained in prison ; and that an indictment for petit treason should

be preferred against her at the next assizes.(i) A prisoner in- Upon an indictment for petit treason, if the killing of the de. dicted for petit ceased with malice be proved, but not the relation between the be found guilty parties;(k) or if the fact can only be proved by one witness, or by of murder, and the examination of the deceased before a magistrate, by virtue of acquitted of the statutes of Philip and Mary, the prisoner may be found guilty the treason.

of murder, and acquitted of the treason :(?) and upon such an indictment the prisoner may be acquitted of the treason, and found

guilty of manslaughter.(m) Servant kill- The statute of the 25 Edw. 3. has been construed so strictly ing master or that no case which could not be brought within the meaning of

the words, however heinous in its nature, has been expounded to be within the equity of them; and, therefore, it has been held that the murder of a father by a son shall not be punished as petit treason, unless the son may by a reasonable construction come under the word servant. But, if he be bound apprentice to his father or mother, or is maintained by them, or does for them any necessary service, though he do not receive wages, he may be in. dicted by the description of servant (n); and a near relation, as a

mistress.

(f) Fost. 329. Swan's case, Fost. ment fur petit treason for the same 105. Dalis. 16.

fact, and so è converso. See also a (g) Swan's case, Fost. 104, et sequ. Hale, 246, 252. 3 Inst. 213. It may be And see Fost. 328, where the learned observed as to the challenge of thirtyauthor says, that in cases where, upon five, that it was restored by 1 & 2 Ph. any indictment for murder, it should & M. c. 10. come out in evidence, that the crime (1) Ante, note (g). amounted to petit treason, he should (i) Rex v. Edwards, cor. Lawrence, make no sort of difficulty of discharg- J. Stafford Ass. MS. ing the jury of the indictment for (k) i Hale 378. 2 Halo 184, 292. murder, and ordering a fresh indict- Fost. 328. ment for petit treason; and that he (?) Radbourne's case, I Leach 457. thought it by no means advisable to And see i Hale 305. 2 Hale 284. Fost. direct the jury to give a verdict of 328. The statutes 1 & 2 Ph. and M. acquittal, as a person charged with a c. 13, and 2 and 3 Ph. & M. c. 10. excrime of so beinous a nature ought tend only to felonies. not to have the chance given bim by (m) i Male 378. the court of availing himself of the (n) i Hawk. P.C. c. 32. s. 2. 1 East. plea of autrefois acquit. And in Fost. P. C. c.5. s. 99. p. 336. At common 329, it is laid down that autrefois law, the son would have been guilty of acquit or utlaint upon an indictment petit treason, though not a servant. for murder is a good bar to an indict- i Hale 380.

sister, may be a servant within the meaning of the statute, if she acts as such in the family (o). The murder of a mistress, or of a master's wife, has been adjudged petit treason within the statute, on the ground of those persons being within the meaning of the word muster, which is used to signify any person to whom another stands related as servant. (p) And the murder of a person by one who was his servant, upon malice conceived during the service, though it be not within the express words of the statute, is within their meaning; for it is but the execution of the treasonable intention of the party conceived while he was a servant. (9)

A wife, though divorced a mensi et thoro, is still within the Wife killing statute, because the vinculum matrimonii subsists: but other- her husband. wise, if there be a divorce causâ consanguinitatis, or precontractûs; for then the vinc:lum is dissolved.(r) A wife de facto is not sufficient; and therefore if A. be married to B., and during that intermarriage marry C., the second marriage being merely void, C. is not a wife within this law; though perhaps she might, under circumstances, be considered as a servant, if she cohabit with A., and he find her necessaries for her subsistence. (s) But a husband cannot be guilty of petit treason by killing his wife, for there is no reciprocity of obedience and subjection.(*)

A clergyman is understood to owe canonical obedience to the Clergyman bishop who ordained him, to him in whose diocese he is beneficed, killing his

superior. and also to the metropolitan of such suffragan or diocesan bishop; and, therefore, to kill any of these is petit treason. And if he have livings in two dioceses, the bishops of both are his iinmediate ordinaries; for he swears obedience to both.(u)

If a wife or servant procure a stranger to kill the husband or Of principals master, in the absence of such wife or servant, neither the pro

and accesso

ries. curer nor actor are guilty of petit treason, but only of murder; as it is an allowed maxim that the offence of an accessory can never be of a higher kind than that of the principal. But, if the wife or servant be either actually present when the crime is committed, or present only in the judgment of the law by being in the same house, though not in the same room, such wife or servant will be deemed principals equally with the stranger, and they will be guilty of petit treason, and the stranger of murder. (w) If a wife procure a servant to kill the husband, she being absent, it will be petit treason in the servant, and the wife will be an accessary : (.r) and it seems, that if a stranger procure a wife or servant to kill the husband or master, such stranger may be indicted as an accessory to petit treason. (y)

If a servant and a stranger, or if a wife and a stranger, conspire to rob the husband or master; and the servant or wife be present when the master happens to be killed in prosecution of

(0) Rex v. Edwards, ante, note (1). (1) 1 Hawk P. C. c. 32. s. 9.

(p) i Hale 380. 1 Hawk. P.C. c. 32. (u) 4 Blac. Com. 203. | East. P.C. S. 3.

c. 5. s. 101. p. 338. 1 Hate 381. 1 (9) 1 Hawk. P. C. c. 32. s. 4. i Hale Hawk. P. C. c. 32. s. 10. 380. 1 East. P. C. c. 5. s. 99. p. 336. (W) 1 Hawk. P. C. c. 32. s. 7. I

(r) i Hale 380. I Hawk. P. C. c. 32. Hale 378, 379. s. 9. 4 Blac. Com. 203.

() I Hawk. P. C. c. 32. s. 8. 1 (8) I Hale 380. But the learned East. P. C. c. 5. s. 102. p. 338. writer adds lamen quære.

(y) i Hawk. P. C. c. 32. s. 8.

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