INDICTMENTS FOR MURDER AT COMMON LAW, AGAINST AIDERS AND ACCESSARIES.

Aiders and accessaries.-The law as to what constitutes principals in the second degree, and accessaries before and after the fact, has already been fully considered in the first Volume, see 1 vol. 256 to 267. and the mode of charging them in an indictment will be found in 1 vol. 269, 272, 3, 4. It seems almost anomalous in law, that where several are present at a murder, though one only gave the mortal blow, it may be charged as the act of all; or if one be particularly accused, it will be no variance to shew that the stroke proceeded from another, 1 Hale, 437, 8. Dougl. 207 n. 8. ante 1 vol. 259, 260. If several be indicted for murder, and the jury find a special verdict, it is necessary in order to affect principals in the second degree, either to state that they were actually present in direct terms, or to shew some acts done by them from which presence can be necessarily inferred-or to allege that they were of the same party, in the same pursuit, and under the same engagements, with the person by whom the crime was actually committed, Dougl. 207.

Crim. Law.

VOL. III.

M

PETIT TREASON.

The offence.

The offence.-Petit Treason is only an aggravated description of murder. Foster 107, 324, 336. All that is requisite to constitute the latter offence, is equally necessary to complete the former; and it differs only in the relations subsisting between the parties, and the obedience which is broken by the offender. The instances in which it can be committed were reduced to three, by 25 Edw. III. st. 5. c. 2. though at common law they were more numerous. These are by a servant killing his master, a wife her husband, and an ecclesiastical person, either secular or regular, his superior. A servant who kills his master after he has left him, on malice conceived before, will be guilty in this degree. Hale, 380. 3 Inst. 20. Under the term master, the master's wife is held to be included. id. ibid. A child, in murdering either of his parents, can only be guilty of petit treason as a servant, in which capacity if he receive wages from them, or sustenance in return for his labour, his crime. will receive this deeper colouring. id. ibid. A wife though divorced a mensâ et toro, may be guilty of petit treason in killing her husband for the vinculum matrimonii still subsists. 1 Hale 381. Nor can a woman whom a man may have married, having a former wife living, commit petit treason by murdering him, unless indeed she were his servant. 1 Hale $81. A husband who kills his wife is not thus' guilty, because no obedience is broken, which is the foundation on which this aggravation of murder rests. A clergyman may commit this offence by the murder of the bishop who ordained him, of him in whose diocese his benefice lies, or of the metropolitan of such suffragan or diocesan bishop. 1 Hale 381, 4. Bla. Com. 203. To constitute this offence, there must be such malice express or implied as would make the killing amount to murder, had no peculiar relation subsisted; so that if on an indictment of petit treason against a servant for the death of his master, it appear to have been done on a sudden provocation, or in the heat of passion, he may be found guilty of manslaughter only. 1 Hale $78. There may be accessaries to this crime both before and after the fact as to any other felony. Thus if a servant murder his master by the procurement of the wife, he is a principal traitor, and she an accessary to the treason. But if the wife had

incited a stranger to the same deed, she could be implicated only in murder, because the guilt of the accessary can never be of a higher kind than that of a principal. 1 Hale 379. If, however, the stranger had committed the murder, not only by her advice but in her presence so as to make her a principal in the second degree, she would be guilty of treason and he of murder only. 1 East P. C. 358. And if a servant and indifferent person conspire to rob the master of the former, and in the prosecution of this design the master be killed in the presence of the servant, he may be indicted for petit treason. Id. ibid. And the same rule will apply if the servant or wife, intending to kill a stranger, kill the one the master, and the other the husband by accident 1 Hale 380. These principles apply also mutatis mutandis to a clergyman in relation to his Superior.

The indictment.-As all petit treason includes murder, it is con- The indicttended by Lord Hale and Mr. Justice Foster, that a person guilty ment. of the former may be indicted for the latter. 1 Hale 378.Fost. 325, 8. But Foster thinks it advisable, where the prisoner is indicted for murder, and the evidence seems to prove him criminal in the higher degree, to quash the indictment and prefer another, because the judgment is different, and the prisoner is entitled to thirty-five peremptory challenges. Fost. 327. and see the case of Swan and Jeffereys. Fost. 104. And if through a mistake on the part of the prosecutor, the prisoner should be indicted for a common mur der, and the evidence should shew that it is petit treason, it will not be advisable to direct the jury to find a verdict of not guilty in order to prefer another indictment, lest the defendant should plead the acquittal, but the jury may be discharged of the indictment for murder, and another preferred for treason, Fost. $28. At all events, there is no doubt that a defendant if tried for petit treason may be found guilty of murder if the indictment be properly framed; and this not only where the proof of the relationship fails on which the aggravation depends, but where the fact itself though satisfactorily proved by circumstantial evidence, is not supported by the testimony of two credible witnesses. 1 Leach, 457. Fost. 328. Two persons implicated in the same crime, but one as a traitor and the other as a murderer only, may be joined in the same indictment, which if it conclude, that both of them feloniously, traitorously, and of their malice aforethought did kill and murder the deceased, will be good for both, reddendo singula singulis. Fost. 329. But if they insist on their right to challenge, they must be tried separately, as, in petit treason, the defendant is entitled to thirty-five, and, in murder, to only twenty peremptory challenges. Fost. 106. The indictment for petit treason should

The evidence.

The sentence.

contain all the requisites of one for murder, and must, in addition, charge the offence to have been traitorously committed. 1 East. P C. 346. A former acquittal of petit treason is a good bar to an indictment of murder in respect to the same killing, though it seems doubtful whether an acquittal of murder is a sufficient bar to an indictment of petit treason: because on the trial for petit treason, the defendant might certainly be found guilty of murder, if the latter crime were supported in evidence, but it is not so certain that, if the proof amounted to treason, on a charge of murder, any conviction could ensue.

The evidence. By the 1 Edw. VI. c. 12. s. 22. and 5 and 6 Edw. VI. c. 11. s. 12. to convict a man of either high or petit treason, two witnesses in open court or a voluntary confession are made requisite. These statutes were indeed supposed to be repealed by 1 and 2 Ph. and M. c. 10. which directed all prosecutions for treason to be conducted according to the course of the common law, though the intention of that act was, no doubt, rather to extend than diminish the privileges of the party indicted. At the present day, however, it is certain that two witnesses are required to convict on every indictment for petit treason. 1 Leach 457. though where these cannot be procured, we have seen that the defendant may be convicted of murder. Radbourne's case Leach, 363. ante 743. In order to substantiate the relationship between husband and wife, on an indictment against the latter for petit treason, it is not necessary to prove the actual marriage either by producing a copy of the register, or by the testimony of some one present at its celebration; but it will be sufficient to shew cohabitation, and the language of both parties respecting each other. 1 East. P. C. 377.

The sentence.-Petit treason was first ousted of clergy by 23 Hen. VIII. c. 1. to those who were convicted by verdict and confession; and by 25 Hen. VIII. c. 3. to those who stood mute, challenged peremptorily more than 35, or refused to answer. These acts were rendered perpetual by 32 Hen. VIII. c. 3. repealed by 1 Edw. VI. c. 12. and, it is said, revived by 5 and 6 Edw. VI. though the latter seems not quite certain, see ! Co. 29. But the surest ground on which clergy is taken away, is under the words “wilful murder" in 1 Edw. VI. since we have seen that it is only an aggravated kind of murder and subject in a great degree, to the same rules. Fost. 330. 1 Hale 340. And it is under these words only, that clergymen are excluded from the benefit of their order, since their privileges are expressly excepted in all previous provisions. Accessaries before the fact, as they were not named, so neither were they affected till,

4 and 5 Ph. and M. placed them on a footing with principals. The judgment against men has always been "that they be drawn to the place of execution and there hanged;" and women who were formerly burned, as in other kinds of treason, now receive the same sentence. 30 Geo. II. 48. The additional severities introduced by 25 Geo. II. c. 37. for the punishment of murder have been holden to apply also to petit treason, and therefore, in every case, they now form part of the sentence. Fost. 107. For a statement of these regulations, see i vol. 704, 5.