year aforesaid, the said B., at the parish aforesaid, in the county aforesaid, of the said mortal wound died; and the jurors aforesaid, upon their oath aforesaid, do say, that the said A. the said B., in manner and form aforesaid, feloniously, wilfully and of his malice aforethought did kill and murder, against the peace of our said lord the King, his crown and dignity.

Murder.

9 Geo. 4, c. 31.

Evidence.

The main features of the evidence required upon sion, are:

I. The death of the deceased.

this occa

II. That the fatal act was committed by the prisoner.
III. That the killing was malicious.

First, with regard to the death of the deceased; his name, as stated in the indictment, must be accurately proved: a variance will be fatal. Next it must appear that the deceased died of the wound he received (but the particular part of the body need not exactly correspond with that mentioned in the indictment,) and that he died by a stab from an instrument of the same description with that mentioned in the indictment. For example, a killing by a sharp sword, or other sharp weapon, will support a charge for killing with a knife. And it must also be shown, that the deceased died within a year and a day next following the stroke. The length and depth of the wounds, however, need not be proved as laid.* Persons of the medical profession are frequently called as witnesses upon these occasions, to testify that death would arise from the consequences of the prisoner's stroke.

Secondly, the injury must be shown to have been committed by the prisoner, or must be given in evidence that he was present aiding and abetting,

And, lastly, the act must appear to have been committed maliciously, or, as the indictment expresses it, of malice aforethought. The evidence of malice is either expressed or implied. There is no difficulty where a deliberate intention to murder is disclosed; but the law will, on some occasions, infer malice, although there be no positive proof of an intended murder.

These cases of construction of malice, being for the consideration of the jury, cannot be otherwise than generally mentioned here, for they vary almost in every instance. But if

* Ry. & M. 97.

Murder. a person be engaged in an unlawful act, and murder ensue, he must abide the consequences, and on many such occasions 9 Geo. 4, c. 31. the law will imply the constructive malice above noticed. So again, in the case of an officer acting in the execution of his duty, under a warrant, or for the preservation of the public peace, the law will imply malice, if he be killed whilst so acting; and a very slight notification of his office is enough to render inexcusable the person who kills him, without the production of any warrant (unless demanded,) or the display of his staff. It is, however, customary to produce the staff, or to declare the cause of the interference, and the risk of resistance becomes then very considerable.

Having thus shown that the deceased died of the stroke given by the prisoner, together with some proof that the killing was malicious, the prisoner must have recourse to some extenuating circumstances in order to clear himself, for the law, in fact, considers all homicides as murder, unless the offence be in some measure explained away or excused. And it is observable here, that the defences of prisoners are so various, as to make it impossible to enter into a minuter detail of them.

If unable to set up an alibi, the prisoner should endeavour to show that the death was occasioned by some other means than those alleged, or that he was in some measure justified or excused in taking life under the circumstances. He might show that death ensued from the unskilful treatment of the wound, and thus make it appear that the hurt was not originally mortal. He might show that the deceased was afflicted with some disorder at the time, and call medical men to prove that the wound was not such as, under ordinary circumstances, would occasion death; and, moreover, that the wound was not the proximate cause of death.

Again, admitting the full extent of the transaction, the prisoner might show that the stroke happened by accident, by negligence, or in defence of himself, &c.

In the case of a public officer, he might prove an attempt to arrest without any previous notice; or that the supposed officer had no authority, and was acting in fact, as a private person, no felony having been committed. These are a few, amongst many topics of extenuation or justification, which may be brought forward in answer to the indictment above

set out.

Indictment for Murder, by Shooting with a Gun, &c. Hertfordshire The jurors, &c. [as in the last precedent to to wit, J" did make an assault,"] and that the said A.

a certain [pistol] [gun] of the value of .

then and there

loaded and charged with gunpowder, and [one leaden bullet]

Murder.

[divers leaden shot,] which [gun] [pistol] he the said A. 9 Geo. 4, c. 31. in [his right hand] [both his hands] then and there had and held, to, against and upon the said B. then and there feloniously, wilfully and of his malice aforethought did shoot and discharge, and that the said A. with the [leaden bullet aforesaid] out of the pistol aforesaid, [leaden shot aforesaid, out of the gun aforesaid,] then and there by force of the gunpowder, shot, discharged and sent forth as aforesaid, the aforesaid B. in and upon the left side, &c. [describe the place] then and there with the [leaden bullet aforesaid] [leaden shot aforesaid] out of the [pistol] [gun] aforesaid, by the said A. so as aforesaid shot, discharged and sent forth, feloniously, wilfully and of his malice aforethought, did strike, penetrate and wound, giving to the said B. with the [leaden bullet] [leaden shot] aforesaid, so as aforesaid shot, discharged and sent forth out of the [pistol] [gun] aforesaid by the said A. in and upon the left side, &c. [as before] one mortal wound of the depth of four inches, and of the breadth of two inches, of which said mortal wound the aforesaid B. then and there [instantly died] [or, as in the last precedent, did languish, &c. as the case may be] And so the jurors aforesaid, &c. [conclude as in the last precedent.]

Evidence.

Here, as in the last case by stabbing, you must show the death of the person shot, and fix the guilt on the prisoner and it will be sufficient to show that the act was perpetrated by an instrument of a similar description to that stated in the indictment. So that a murder committed by the discharge of a gun, might be evidenced by showing that the deed was done by a pistol. But if the offence were committed by means of a poker, or some other such dissimilar instrument, the prisoner would be acquitted.

* If aiders and abettors are included in the indictment, proceed thus : "And that the said C. and D. then and there feloniously, wilfully and of their malice aforethought, were present aiding, helping, abetting and completely assisting and maintaining the said A. in the felony and murder aforesaid, in manner and form aforesaid, to do and commit. And so the jurors, &c."

Murder.

Indictment for Murder by Strangling.

9 Geo. 4, c. 31. Hertfordshire, The jurors, &c. [us before, as far as "di

to wit. Jmake an assault,"] and that the said A. both his hands about the neck and throat of him the said B. then and there feloniously, wilfully and of his malice aforethought did fix and fasten; and that he the said A., with both his hands so as aforesaid fixed and fastened about the neck and throat of the said B., him the said B. then and there feloniously wilfully and of his malice aforethought did choke and strangle, of which said choking and strangling he the said B. then and there instantly died; and so the jurors aforesaid, [conclude s before.]

Evidence.

Here again you prove the death, the guilt of the prisoner, and the mode of committing the offence.

If the strangling were done by a cord or handkerchief, it would be prudent to state the death in the indictment accordingly; but it seems that murder done by a cord would be sufficiently proved by showing that the strangling had been effected by means of a handkerchief, or even by the hands, because the kind of death is the same in all these cases.

Indictment for Murder by Drowning.

Hertfordshire, The jurors, &c. [as before to " did make an to wit. Jassault,"] and that the said A. then and there feloniously, wilfully and of his malice aforethought, did take the said B. into both the hands of him the said A., and did then and there feloniously, wilfully and of his malice aforethought cast, throw and push the said B. into a certain pond there situate, wherein there then was a great quantity of water, by means of which said casting, throwing and pushing of the said B. into the pond aforesaid, by the said A. in manner aforesaid, he the said B. in the pond aforesaid, with the water aforesaid, was then and there choked, suffocated and drowned, of which said choking, suffocating and drowning he the said B. then and there instantly died; and the jurors, &c. [conclude as before.]

Evidence.

The evidence upon this occasion is similar to that which has been so often adverted to before, namely, the death, the pri

soner's guilt, and the evidence of the means by which the offence was committed; but this is a case in which evidence

Murder.

of the finding of the body is, with very few exceptions, abso- 9 Geo. 4, c. 31. lutely requisite.

Indictment for Murder by Poisoning.

Hertfordshire, The jurors for our lord the King, upon their
to wit. Joath present, that A. late of the parish of
in the county of of his malice aforethought, contriving
and intending one B. in his life-time to deprive of his life, and
him feloniously to kill and murder, on the first day of May in
the year
and [on divers other days and times between
the said first day of May and the first day of June in the year
aforesaid,] with force and arms, at the parish aforesaid, in the
county aforesaid, did knowingly, wilfully, feloniously and of
his malice aforethought, mix and mingle a certain deadly poi-
son, to wit, one drachm of white arsenic,* in certain tea which
had been at divers days and times during the time aforesaid,
prepared for the use of the said B., to be drunk by him the
said B., he the said A. then and there well knowing that
the said tea with which he the said A. did so mix and mingle
the said deadly poison as aforesaid, was then and there pre-
pared for the use of the said B., with intent to be then and
there administered to him for his drinking the same, and the
said A, then and there also, well knowing that the said [white
arsenic] so as aforesaid by him mixed and mingled into and with
the said tea to be deadly poison, and that the said B. afterwards,
to wit, on the said first day of May, &c. [and on the said divers
other days and times,] not knowing the said poison to have
been mixed with the said tea, did drink and swallow down
into his body † a large quantity, to wit, half a pint of the said
tea with which the said white arsenic was so mixed and mingled
by the said A. as aforesaid, by means whereof he the said B.
then and there became sick and greatly distempered in his body,
and the said B. of the poison aforesaid, so by him drank and
swallowed down as aforesaid, and of the sickness occasioned
thereby, from the said several days and times on which he had
so drank and swallowed down the poison as aforesaid, until
the said first day of June in the year aforesaid did languish,
and languishing did live, on which said ·

day of

in

* The nature of the poison is not material, but be as accu rate as possible.

The swallowing must be alleged.