time upon some of the circuits;(t) but it has been thought to be the safer way to present a new bill to the grand jury for manslaughter. (u) And a very learned Judge has ordered this to be done where the grand jury have returned manslaughter upon a bill for murder, saying he thought it the better course to prefer a new bill, although the usual course on the circuit had been to alter the bill for murder, on the finding of the grand jury.(v) 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; [*769 but a finding against one for murder will be good, and there ought to be a new bill against the other for manslaughter.(w) And where the grand jury returned a true bill for murder against one, and for manslaughter against another, the one was tried for murder on that indictment; but a new bill for manslaughter was preferred against the other.(x)

If, as is very commonly the case, there be an indictment for murder, and a 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.(y)

And where the coroner's jury have found a verdict of manslaughter, and the grand jury a bill for murder, the prisoner has been arraigned and tried on both the inquisition and indictment at the same time.(z) So where the grand jury have found a bill for manslaughter, and the coroner's jury a verdict of wilful murder.(a) So where the grand jury have found a bill against more prisoners for murder than the coroner's jury.(b)

Where a man has been acquitted generally upon an indictment for murder, autrefois acquit is a good plea to an indictment for the manslaughter of the same person; and è converso where a man has 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. (c) And upon similar grounds it should seem, that one who had been convicted upon an indictment for manslaughter, and had his clergy allowed, might have pleaded autrefois convict to an indictment, charging the same death upon him as a murder.(d) And it is clear that autrefois

(t) Ex relat. Mr. Pugh, Clerk of Assize, on the Oxford Circuit, 1816.

(u) 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. See Rex v. Ford, Yelv. 99.

(v) Turner's case, 1 Lew. 176, Parke, B., at Carlisle.

(w) 1 East P. C. c. 5, s. 116, p. 347.

(x) Reg. v. Bubb, 4 Cox 455, ante, p. 682, after consultation between Williams, J., Lord Campbell, C. J., and the Editor. See Rex v. Cary, 3 Bulst. 206; 1 Roll. R. 407, as Rex v. Carew.

(y) East P. C. c. 5, s. 134, p. 371.

(z) Reg. v. Walters, Hereford Sum. Ass. 1841, Coltman, J., MSS.; C. S. G.; Reg. v. Powell, Hereford Sum. Ass., Erskine, J., MSS. C. S. G.

(a) Reg. v. Smith, 8 C. & P. 160 (34 E. C. L. R), Bosanquet and Coltman, JJ., and Bolland, B.

(b) Reg. v. Dwyers, Glouc. Sum. Ass. 1842, Erskine, J., MSS. C. S. G. (c) Rex v. Holcroft, 4 Co. 46, b; 2 Hale 246.

(d) 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

1 There is a strong current of American authorities in favor of treating a conviction for a lesser offence which is an ingredient of a greater crime, as a bar to a subsequent prosecution for the greater: Wilson v. State, 24 Conn. 57. After an indictment for murder and a verdict found for manslaughter, if the prisoner obtains a new trial, he will be tried only for the offence of which he was found guilty: Brennan v. People, 15 Ill. 511. A conviction of murder in the second degree acquits of murder in the first degree: State v. Ball, 27 Mo. 324; Jones v. State, 13 Texas 168; Minnesota v. Lessing, 16 Minn. 75. See State v. Ross, 29 Mo. 32; State v. Twady, 11 Iowa 350; People v. Gilmore, 4 Cal. 376; Livingston's case, 14 Gratt. 592; Bailey v. State, 26 Geo. 579. Finding a person indicted for murder guilty of manslaughter is an acquittal of the charge of murder; and however contrary to the law and the evidence it may appear to the Court, it cannot order a new trial: Jordan v. State, 22 Geo. 545.

convict of manslaughter, and clergy thereupon allowed, was a good bar in an appeal of murder. (e) And autrefois acquit or autrefois attaint, upon an indictment for murder, was a good plea to an indictment charging the same death as petit treason.(ƒ)

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, and has 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 (g)

*In a case where the prisoner had been tried for murder, and convicted *770] 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 pris oner were to be called up for judgment, he might rely upon such allowance as a bar.(h)

The evidence in cases of murder, will consist of the proof of particular facts and circumstances which show the killing, 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 shown 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.(i)1

It has been considered 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 murder or manslaughter, unless the fact were proved to be done, or at least the body be found dead."(k) But this rule, it seems, must be taken with some qualifications; and the circumstances may be sufficiently strong to show 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

acquitted upon a former indictment for manslaughter, the plea in the latter case is clearly proper, upon the ground that if the party was not guilty even of manslaughter, he cannot be charged with having caused the death with the circumstances of aggravation necessary to constitute murder.

(e) Rex v. Wigges, 4 Co. 45.

(f) 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 Rex v. Clarke, 1 B. & B. 473 (5 E. C. L. R.), and Burglary, p. 829.

(g) Rex v. Hutchinson, 3 Kebl. 785, cited in Beak v. Thyrwhit, 1 Show. 6; Bull. N. P. 245; 3 Mod. 194; 1 Leach 135, note (a). The defendant being apprehended in England, 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.

(h) Rex v. Jennings, East. T. 1819, R. & R. 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 8 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 6 Geo. 4, c. 25, s. 4, the allowance of the benefit of clergy to any person who was convicted of any felony, did not render the person to whom such benefit was allowed dispunishable for any other felony, by him or her committed, before the time of such allowance.

(i) Fost. 255, ante, p. 668.

(k) 2 Hale 290. Lord Hale only laid this down as a caution; not as a rule in every case, per Maule, J., in Reg. v. Burton, Dears. C. C. 282.

1 Where a murder is accompanied with robbery, possession of the fruits of the crime is of great weight in establishing the murder: Williams v. Comm., 5 Casey 102.

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 *[771 *conviction being unanimously approved of by the Judges) was afterwards executed.()

But where upon an indictment against the prisoner for the murder of her bastard child, it appeared that she was seen, with the child in her arms, on the road from the place where she had been at service to the place where her father lived, about six in the evening, and between eight and nine she arrived at her father's, without the child, and the body of a child was found in a tide river, near which she must have passed in her road to her father's, but the body could not be identified as that of the child of the prisoner, but the evidence rather tended to show that it was not the body of such child; it was held that she was entitled to be acquitted; the evidence rendered it probable that the child found was not the child of the prisoner; and with respect to the child, which was really her child, the prisoner could not by law be called upon either to account for it, or to say where it was, unless there were evidence to show that her child was actually dead (m)

On a trial for murder, in order to prove the state of the health of the deceased prior to the day of his death, a witness was asked in what state of health the deceased seemed to be when he last saw him, and he began to state a conversation which had then taken place between the deceased and himself on this subject; and Alderson, B., held that what the deceased said to the witness was reasonable evidence to prove his state of health at the time.(n)1

Upon an indictment for murder by the explosion of certain grenades, a novel kind of explosive instrument, evidence of other deaths and wounds caused by the explosion at the same time and place is admissible for the purpose of proving the character of the grenades.(0) Where in the same case a witness was called to prove that he made the grenades, it was held that the name of the person who gave

(1) Rex v. Hindmarsh, 2 Leach 569. It was urged on the prisoner's behalf at the trial, by Garrow (the late 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 happened before Mr. J. Gould. The mother and reputed father of a bastard child were observed to take the child to the margin of the dock at Liverpool, and, after stripping it, cast it into the dock. The body of the infant was not afterwards seen; and, as the tide of the sea flowed and reflowed into and out of the dock, the learned Judge, upon the trial of the father and mother for the murder of their child, observed that it was possible that the tide might have carried out the living infant; and upon this ground the jury, by his direction, acquitted the prisoners. But qu. the form of the indictment in this case.

(m) Reg. v. Hopkins, 8 C. & P. 591 (34 E. C. L. R.), Lord Abinger, C. B.; Reg. v. Cheverton, 2 F. & F. 833, Erle, C. J., S. P.

(n) Reg. v. Johnson, 2 C. & K. 354 (61 E. C. L. R.).

(0) Reg. v. Bernard, 1 F. & F. 240. But surely the evidence was admissible as proof of what the single act of the principals effected, just as in a case of arson, if one rick is set fire to and several others burnt, evidence of all is always admitted.

1 It is not essential to a conviction for murder, that the body of the deceased be found: Stocking v. State, 7 Ind. 326; U. S. v. Gilbert, 2 Sumn. 19. As to the necessity of the proof of the corpus delicti generally in other cases as well as homicide, see Ruloff v. People, 18 N. Y. 179; Mass v. State, 36 Ala. 211; Nesbit v. State, 43 Geo. 239; Smith v. State, 21 Gratt. 809; State v. Davidson, 30 Verm. 377; State v. Keeler, 28 Iowa 551; Pitts v. State, 43 Miss. 472; Jenkins v. State, 41 Ibid. 582; U. S. v. Clifford, C. C. 5; State v. Scott, 39 Mo. 424; People v. Jones, 31 Cal. 565; State v. Williams, 7 Jones (Law) 446. It is certainly the generally received rule not to convict upon the mere confession of the prisoner without adequate proof of the corpus delicti.

2 It is competent to prove that deceased after drinking a supposed poison said, "he did not feel comfortable," though the prisoner was not present: People v. Robinson, 2 Parker C. R. 235.

the order for them might be proved, as a fact in the transaction, even though he had not then been shown to be connected with the prisoner.(p)

It has already been shown that if A. be indicted as having given the mortal stroke, and B. and C. as present aiding and assisting, and upon the evidence it appeared that B. gave the stroke, and A. and C. were aiding and assisting, or it be not proved which gave the stroke, the charge is proved, for in law it is the *772] *stroke of all.(2) So if a prisoner be indicted for strangling the deceased with her own hands, and upon the evidence it turns out that the deceased was strangled by some one else in the presence of the prisoner, who was privy to it, and so near as to be able to assist, that is sufficient.(r)

An indictment for murder, stating that the prisoner gave and administered poison, is supported by proof that the prisoner gave the poison to A. to administer as a medicine to the deceased, and that A. neglecting to do so, it was accidentally given to the deceased by a child, the prisoner's intention to murder continuing. Upon an indictment for murder, which alleged that the prisoner feloniously, &c., did administer a large quantity of laudanum to a child, it appeared that the prisoner delivered to one S. Stephens, with whom the child was at nurse, about an ounce of laudanum, telling her it was proper medicine for the child and directing her to administer to the child every night a tea-spoonful thereof, which was quite a sufficient quantity to kill the child; the prisoner's intention in so doing, as shown by the finding of the jury, was to kill the child. Stephens took home the laudanum, and thinking the child did not require medicine, did not intend to administer it at all, and left it on the mantel-piece of her room. A few days afterwards a little boy of the said S. Stephens, during her accidental absence, removed the laudanum from its place and administered a much larger dose than a tea-spoonful to the child, in consequence of which the child died. The jury were directed that if the prisoner delivered the laudanum to Stephens, with intent that she should administer it to the child, and thereby produce its death, the quantity so directed to be administered being sufficient to cause death; and that, if the laudanum was afterwards administered by an unconscious agent, while the prisoner's original intention continued, the death of the child, under such circumstances, was murder by the prisoner, and that if the tea-spoonful was sufficient to produce death, the administration of a much larger quantity by the little boy would make no difference. The jury found the prisoner guilty, and, upon a case reserved for the opinion of the Judges, whether the facts above stated constituted an administering of the poison by the prisoner to the child, they were unanimously of opinion, that the administering of the poison by the child was, under the circumstances of the case, as much, in point of law, an administering by the prisoner, as if she had actually administered it with her own hand.(s)

Upon an indictment, alleging that the prisoner did an act which caused the death, it is sufficient to prove that the prisoner caused and procured the act to be done by an innocent agent. An indictment charged that the prisoner, a certain plaster made by the prisoner of certain dangerous ingredients, feloniously did place *773] and fix upon the head of the deceased: the prisoner was proved to have applied two plasters over the head of the deceased, but a third, which was applied last before the deceased died, was applied by the child's mother, in the absence of the prisoner, it being made with materials, which had been given by the prisoner to the mother for that purpose; it was objected that the indictment was not proved; but it was held that, though indictments often go on to say, that the prisoner "caused and procured" the thing to be done, yet if the plaster was made by the direction of the prisoner, that was enough.(t)

There is one important species of evidence occasionally resorted to in cases of (p) Ibid.

(g) Ante, p. 706; 1 Hale 462.

Rex v. Culkin. 5 C. & P. 121 (24 E. C. L. R.), Park, J. A. J., Parke and Bolland, Bs. (s) Reg. v. Michael, 2 Moo. C. C. R. 120; s. c., 9 C. & P. 356 (38 E. C. L. R.). "If A. gives poison to B., intending to poison him, and B., ignorant of it, gives it to C., a child, or other near relation of A., against whom he never meant harm, and C. takes it and dies, this is murder in A., and a poisoning by him. Plowd. Com. 474 a.; Dalt. cap. 93, but B., because ignorant, is not guilty:" 1 Hale 431. See ante, p. 739. (t) Rex v. Spiller, 5 C. & P. 333 (24 E. C. L.

R.), Bolland, B. and Bosanquet, J.

homicide, namely, the dying declarations of the party killed, which will be considered in a future part of this Treatise.(u)

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; (v) or of an attempt to commit the murder by the 14 & 15 Vict. c. 100, s. 9. 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. (w) And several persons present at a homicide may be found guilty in different degrees, one of murder, the other only of manslaughter.(x)

We have seen that by the 24 & 25 Vict. c. 100, s. 68, (y) any person may be tried for murder or manslaughter, which has been committed upon the sea, in any county or place in which he shall be apprehended or be in custody, and shall be subject to the same punishment as if he had committed such murder or manslaughter upon land.

In every case where the point turns upon the question, whether the homicide was committed wilfully and maliciously, or under justifying, excusing, or alleviating circumstances, the matter of fact, namely, whether the facts alleged by way of justi fication, 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. (2) 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. (a) 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.(b)

*The 43 Geo. 3, c. 58, which repealed the 21 Jac. 1, c. 27, and the Irish [*774 Act 6 Anne, provided that the trials, in England and Ireland, of women charged with the murder of any issue of their bodies, which would by law be bastard, should proceed by the like rules of evidence and presumption as were allowed to take place in respect to other trials for murder; and that the jury, by whose verdict any prisoner charged with such murder as aforesaid should be acquitted, might find, "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, endeavor to conceal the birth thereof."

This provision, as it could only be acted upon where the child was a bastard and where the party was charged with murder by an inquisition or an indictment, (c) was open to much objection, and has been repealed by the 9 Geo. 4, c. 31; and that Act by the 24 & 25 Vict. c. 95.

(u) Post, Book VI., upon Evidence.

(v) 1 Hale 449; 2 Hale 302; Co. Lit. 282 a.

(w) Post, chap. on Excusable Homicide; Fost. 279, 289.

(z) See post, p. 795.

(y) Ante, p. 762.
(a) Fost. 255, 256.
case, cited Str. 855.

(z) Reg v. Fisher, 8 C. & P. 182 (34 E. C. L. R.).. (b) Rex v. Smith, ante, p. 749. And see Slaughterford's (c) This statute did not make the concealment an offence for which an indictment could be preferred: Rex v. Parkinson, Carlisle Sum. Ass. 1821. MS., Bayley, J. The 49 Geo. 3, c. 14, which repeals the Scotch Act of Parliament, relating to the murder of bastard children, differs from the 43 Geo. 3, c. 58, and does not make the concealment a matter which can only be found by the jury upon the trial of an indictment for murder, but enacts (sec. 2) "that if any woman in Scotland shall conceal her being with child during the whole period of her pregnancy, and shall not call for and make use of help or assistance in the birth, and if the child be found dead or be missing, the mother, being lawfully convicted thereof, shall be imprisoned for a period not exceeding two years, in such common gaol or prison as the Court before which she is tried shall direct and appoint.

1 State v. Kirby. 57 Maine 30.