term not exceeding two years, with or without hard labour, or to pay such fine as the Court shall award, in addition to or without any such other discretionary punishment as aforesaid.

Note. This clause is taken from the 9 Geo. 4, c. 31, s. 9, and 10 Geo. 4, c. 34, s. 12 (I.)

As to hard labour, &c., see ante, p. 5.

6. In any indictment for murder or manslaughter, Indictment or for being an accessory to any murder or man- for murder slaughter, it shall not be necessary to set forth the or manslaughter. manner in which or the means by which the death of the deceased was caused, but it shall be sufficient in any indictment for murder to charge that the defendant did feloniously, wilfully, and of his malice aforethought kill and murder the deceased; and it shall be sufficient in any indictment for manslaughter to charge that the defendant did feloniously kill and slay the deceased; and it shall be sufficient in any indictment against any accessory to any murder or manslaughter to charge the principal with the murder or manslaughter (as the case may be) in the manner herein-before specified, and then to charge the defendant as an accessory in the manner heretofore used and accustomed.

Note.-This clause is taken from the 14 & 15 Vict. c. 100, s. 4, which applied only to indictments for murder and manslaughter, and a serious doubt was entertained whether in an indictment against an accessory to murder or manslaughter, it might not still be necessary to adopt the old form of indictment, and in order to render that course unnecessary the new parts of this section were introduced.

The word "indictment" includes a coroner's inquisition whereby any person is charged with murder or manslaughter, or as an accessory before the fact to either of those offences; indeed, it is the term most appropriately applied to such

an inquisition; for the term inquisition includes all inquests before the coroner, whether terminating in a charge against any person or not, and whether held in a case of death or otherwise; e. g. in a case of treasure trove. All our best law writers apply the term indictment quite as often as inquisition to a coroner's inquisition charging any one with any of the above offences. See 2 Inst. 32, 550; 4 Inst. 271; 2 Hale, P. C. 61, 64, 65, 66; 2 Hale, P. C. 130; 2 Hawk. P. C. c. 9, ss. 15, 16, 17, 22, 26, 35, and c. 25, ss. 6, 119, 128. Lord Coke also, 3 Inst. 134, and Hawkins, 2 Book, c. 25, passim, whilst treating of indictments introduce such coroner's inquisitions. In Borough v. Holcroft, 2 Leon. 160, and Wrote v. Wigges, 4 Rep. 45, which were appeals of murder, the defendants pleaded auterfois acquit on coroners' inquisitions, and in the pleas the inquisitions appear to have been called indictments. The legislature also in the 1 & 2 Will. and Mary, c. 13, s. 5, (repealed by the 7 Geo. 4, c. 64, s. 32), calls a coroner's inquisition "the inquisition or indictment." And the 2 & 3 Ed. 6, c. 24, s. 2, (repealed by the 9 Geo. 4, c. 31, s. 1, from the 1st of June, 1828, except as to offences previously committed) enacts that where any person shall be feloniously stricken or poisoned in one county and dies in another, an indictment found where the death happened, whether found before the coroner or before justices, &c., shall be good, &c.: and every coroner's inquest that has been held whilst the 2 & 3 Ed. 6, c. 24, continued in force, has been held by virtue of the word "indictment" in that Act. So that there can be no doubt whatever that a coroner's inquisition which finds any person guilty of the above-mentioned offences is an indictment. See also the Introduction, ante, p. xvi. In 1842 in Reg. v. Great Western Railway Company, 3 Q. B. 333, the Court erroneously treated the 2 & 3 Ed. 6, c. 24, s. 2, as still in force, and applied the term indictment to an inquisition for feloniously striking or poisoning.

Mr. Davis (Crim. L. 247) says, "The provision respecting the mode of charging accessories only applies to accessories after the fact, as every accessory before the fact may be indicted in all respects as a principal felon " under 24 & 25 Vict. c. 94, s. 1. This is an entire mistake. Under this clause and sec. 2 of that Act, any accessory before the fact may be charged as such, and cases may easily be suggested where it may be advisable so to proceed. If any one were accessory before the fact in England to a murder committed in Paris, it would certainly be advisable to insert a count charging the accessory as such. It is perfectly clear that where two clauses permit or authorise different modes of procedure, either may be adopted.

7. No punishment or forfeiture shall be incurred Excusable by any person who shall kill another by misfortune homicide. or in his own defence, any other manner without

felony.

or in

Note. This clause is taken from the 9 Geo. 4, c. 31, s. 10, and 10 Geo. 4, c. 34, s. 13 (I.).

8. Every offence which before the commencement Petit of the Act of the ninth year of King George the treason. Fourth, chapter thirty one, would have amounted to petit treason, shall be deemed to be murder only, and no greater offence; and all persons guilty in respect thereof, whether as principals or as accessories, shall be dealt with, indicted, tried, and punished as principals and accessories in murder.

Note. This clause is taken from the 9 Geo. 4, c. 31, s. 2; and 10 Geo. 4, c. 34, s. 3 (I.).

or man

9. Where any murder or manslaughter shall be Murder committed on land out of the United Kingdom, slaughter whether within the Queen's dominions or without, abroad.

and whether the person killed were a subject of Her Majesty or not, every offence committed by any subject of Her Majesty, in respect of any such case, whether the same shall amount to the offence of murder or of manslaughter, or of being accessory to murder or manslaughter, may be dealt with, inquired of, tried, determined, and punished in any county or place in England or Ireland in which such person shall be apprehended or be in custody, in the same manner in all respects as if such offence had been actually committed in that county or place; provided that nothing herein contained shall prevent any person from being tried in any place out of England or Ireland for any murder or manslaughter committed out of England or Ireland, in the same manner as such person might have been tried before the passing of this Act.

Note. This clause is framed from the 9 Geo. 4, c. 31, s. 7, and 10 Geo. 4, c. 34, s. 10 (I.).

By the 9 Geo. 4, c. 31, s. 7, any person charged with any offence specified in this clause might be examined and committed by any justice of the place where the person so charged was, and thereupon a special commission was to be issued for the trial of such person. By the 10 Geo. 4, c. 34, s. 10, where any person was charged in Ireland with any offence specified in this clause, he might be examined and committed by any justice of the place where the person so charged was, and thereupon he might be tried in that place in the same manner as if his offence had been there committed. This was a much better provision than that in the 9 Geo. 4, c. 31, s. 7, as it got rid of the necessity for a special commission, and avoided a difficulty which was very likely to arise under the 9 Geo. 4, c. 31, s. 7; for the special commission issued under that section recited the offence charged before the justice, and authorised the trial for that offence, and a fatal variance might well arise on the trial between the facts proved and the offence charged before the justice. The present section is substantially the same as the

10 Geo. 4, c. 34, s. 10, but uses the terms of 9 Geo. 4, c. 31, s. 8, and under it the party charged may be examined before any justice of the place where he is, and tried in the same place. The words "dealt with" apply to justices of the peace: "inquired of" to the grand jury; "tried" to the petit jury; and "determined and punished" to the Court; as was held by Lord Wensleydale in Rex v. Ruck, 1 Russ. C. & M. 827.

The 9 Geo. 4, c. 31, s. 7; and 10 Geo. 4, c. 34, s. 10 (I.), were confined to accessories after the fact in manslaughter, but the present clause is so framed as to include an accessory before the fact in that offence, if there can be such an accessory. It is generally laid down in the books that there can be no such accessory. 1 Hale, 437, 466, 615; 1 Hawk. P. C., c. 30, s. 2. But this position rests on Bibithe's Case, which certainly does not appear to warrant any such general proposition. That case is reported in 4 Rep. 43, in Moor. 461, as Goose's Case, and in Cro. Eliz. 540, as Goff v. Byby. It appears from these reports, that it was an appeal of murder against Bibithe as principal, and H. David as accessory before the fact. On the trial of the principal he was found guilty of manslaughter only, and had his clergy. The trial was at Nisi Prius, and the Queen's Bench are reported to have held that the accessory before was discharged "because he cannot be accessory before the fact in case of manslaughter; for manslaughter ought to follow upon sudden debate or affray, for if it be premeditated, it is murder" (4 Rep. 43), or because "the verdict for the principal has found that there was not any precedent intent to kill." Cro. Eliz. 540. none of the reports does it appear how the death was caused, and the decision plainly turned on what appeared on the face of the record. It may therefore well be, and the "sudden debate or affray" referred to rather leads to the inference, that the death was caused by violence inflicted on a single occasion, and the ruling

In