against the wi aided and as That M. H. late of, &c. yeoman, and E. B. late of, &c. widow, For murder & (late the wife of S. B., late of the same place, laborer,) not having, petit treason by shooting, &c. but being moved and seduced, &c. on, &c. with force and arms, viz. against the person who at, &c. aforesaid, feloniously, wilfully, and of their malice afore- shot, for marthought, and she the said E. B. also, traitorously, did make an assault der, and upon the said S. B., the husband of her the said E. B., in the peace dow of the deof God, and our said lord the king, then and there being, and that ceased, who the said M. H. a certain gun of the value of five shillings, then and sisted, for petit treason. (p) there charged, and loaded with gunpowder and divers leaden shot, which gun, he the said M. H., in both his hands then and there had and held to, against, and upon the said S. B. then and there, feloniously, wilfully, and of his malice aforethought, did shoot and discharge, and that the said M. H., with the 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 S. B. in and upon the left side of the head of him the said S. B., near the left ear of him the said S. B., then and there, with the leaden shot aforesaid, out of the gun aforesaid, by the said M. H., so as aforesaid, shot, discharged, and sent forth, feloniously, wilfully, and of his malice aforethought, did strike, penetrate, and wound, giving to the said S. B. with the leaden shot aforesaid, so as aforesaid, shot, discharged, and sent forth out of the gun aforesaid, by the said M. H. in and upon the left side of the head of him the said S. B. near the left ear of him the said S. B., one mortal wound, of the depth of four inches, and of the breadth of two inches, of which said mortal wound the said S. B. then and there instantly died. And that the said E. B. the wife of him the said S. B. then and there, feloniously, traitorously, wilfully, and of her nralice aforethought, was present, aiding, helping, abetting, comforting, assisting, and maintaining the said M. H., the felony and murder aforesaid, in manner and form aforesaid, to do and commit and so the jurors, &c. do say, that the said M. H., feloniously, wilfully, and of his malice aforethought, and the said E. B. feloniously, traitorously, wilfully, and of her malice aforethought, him the said S. B. then and there, in manner and form aforesaid, did kill and murder, against the peace, &c. (p) From Cro. A. 456. 10 St. Tr. 1. See also Stark. 368. This joinder is proper, though if the parties chose to insist on their On the 1 Jac. 1. c. 8. for INDICTMENTS FOR MURDER, ON THE STATUTE That J. A. late of, &c. not having the fear of God before his stabbing. (q) eyes, but being moved and seduced by the instigation of the devil, on, &c. at the hour of nine in the afternoon of the same day, with force and arms, at, &c. aforesaid, in and upon one G. H., in the peace of God, and of our said lord the king, then and there being, the aforesaid G. H. not having any weapon then drawn, nor the aforesaid G. H. having first stricken, (r) the said J. A. feloniously did make an assault, and that the aforesaid J. A. with a certain drawn sword, of the value of five shillings, which he the said J. A. in his right hand then and there had and held, the said G. H., in and upon the right side of the belly, near the short ribs of him the said G. H., the aforesaid G. H. as is aforesaid, then and there, not having any weapon drawn, nor the aforesaid G. H. then and there having first stricken, (s) the said J. A., then and there, feloniously did stab and thrust, giving unto the said G. H. then and there, with the sword aforesaid, in form aforesaid, in and upon the right side of the belly, near the short ribs of him the said G. H. mortal wound, of the breadth of one inch, and of the depth of nine inches, of which said mortal wound, he the said G. H. then and there instantly died. And so, the jurors aforesaid, upon their oath aforesaid, do say, that the said J. A., him the said G. H., on the aforesaid, &c. at, &c. aforesaid, in manner and form aforesaid, feloniously did kill, against the peace, &c. and against the form of the statute, (t) &c. The like, charging an aider with abetting.(u) one That C. D. late of, &c. [as in the last indictment to the end, and then as follows]. And the jurors, &c. do further say, that S. W., late of, &c. and G. W. late of, &c. at the time of the doing, (9) See similar precedents, Burn. J. Indictment IX. Cro. C. C. 273. Starkie, 382. and Imp. Off. Cor. 487. See notes at large, ante 746 to 749. (r) These words are necessary, as being part of the description of the offence in the statute. 2 Hale, 170. (s) See ante 747, 8. (t) This conclusion is unnecessary, as the statute creates no new offence, but only takes away clergy where before it was allowed; but it cannot prejudice; and if the defendant is found guilty of man slaughter at common law, may be rejected as superfluous. 1 Hale, 468, 9. ante 748, 9. (u) From Imp. Off. Cor. 486. As the statute takes away clergy only from the party actually stabbing, the principal in second degree where the offence would be manslaughter had death occurred by other means, is guilty of manslaughter only. In that case, if it were proved in evidence that the blow was given by the party charged as an abettor, both could only be found guilty of simple manslaughter. and committing of the felony and manslaughter aforesaid, feloniously were present, abetting, aiding, assisting, comforting, and maintaining the said C. D., to kill, and slay the said A. B. in manner aforesaid, against the peace, &c. INDICTMENTS FOR MANSLAUGHTER. * driver of a [As ante 750 to omitting the terms, "malice aforethought." Against the in the king's highway, there, in and upon one E. F. feloniously, cart for manslaughter. (v) and wilfully, did make an assault, and a certain cart of the value of five pounds, then and there drawn by two horses, of the value of ten pounds, which he the said A. B. was then and there driving in and along the said highway, in and against the said E. F. feloniously did force and drive, and him the said E. F. did thereby, then and there, throw to, and upon the ground, and did then and there, feloniously, force and drive one of the wheels, to wit, the off wheel of the said cart, against, upon, and over the head of him the said E. F., then lying upon the ground, and thereby did then and there give to the said E. F. in and upon his head, one mortal fracture and contusion, of which the said E. F. then and there instantly died. And so, the jurors, &c. do say, that the said A. B. him the said E. F., in manner and by the means aforesaid, feloniously did kill and slay, against the peace, &c. (v) See similar precedent, Starkie, 381. The nature of manslaughter will be found sufficiently stated in the description of murder, when the alleviations of that offence were considered, see ante 738. It may be described exactly like murder, except in the omission of the words "murder," and "malice aforethought." Like MAYHEM.(w) PRELIMINARY NOTES ON OFFENCE, &c. The offence. The offence. I. AT COMMON LAW.(x) Mayhem, at common law, is the violently depriving another of the use of such of his members as may render him less able in fighting, either to attack his adversary or to defend himself. Hawk. b. 1. c. 55. s. 1. The mere disfiguring, therefore, of the party injured, in such a way as not to affect his strength or power of fighting, such as the cutting off the ear, slitting the nose, &c. do not come within this definition. Hawk. b. 1. c. 55. s. 2. But the cutting off a limb, or disabling or weakening the hand or finger, or striking out an eye or front tooth, or castrating, which is supposed to debilitate and render unwarlike, were always regarded as mayhems, 4 Bla. Com. 205. To bring any wound within this denomination, it is said it must be done maliciously, though it matters not how sudden the occasion. 1 East, P. C. 393. All malicious maiming is said at common law to be felony, though none was ever capital except castration. Hawk. b. 1. c. 55. s. 3. The last offence seems indeed to have been regarded as highly criminal, on whatever provocation it was committed. 3 Inst. 118. 4 Bla. Com. 206. The ancient law as to Mayhems, perhaps with this exception, adjudged the offender to suffer the same injury with that which he had inflicted on the principle of the lex talionis of Moses. 3 Inst. 118. But this practice has been long exploded; and nothing but fine and imprisonment is left by the common law as a penalty for an offence so barbarous.—We pass on therefore to consider II. MAIMING ON STATUTES. The first statute on this subject is the 5 Hen. IV. c. 5. and relates to the cutting out of tongue and eyes, which was some (w) As to this offence in general see Hawk. b. 1. c. 55. 3 Inst. 118. Com. Dig. Justices, S. 6. 4 Bla. Com. 205 to 208. 1 East, P. C. 392 to 403. (x) See precedent Rast. Ent. 487. West, 336. and against the principal and abettors in the same indictment. Trem. P. C. 33. eyes times done to prevent parties otherwise injured from giving evidence against those who had ill used them. It provides that "in such case the offenders that so cut out tongues, or put out the of any, and if it be duly proved and found that such deed was done of malice prepense, shall incur the pain of felony." The 37 Hen. VIII. c. 6. enacts, that whoever shall maliciously, unlawfully, and wittingly cut or cause to be cut off the ears of any one of the king's subjects, otherwise than by authority of law, chance, medley, sudden affray or adventure, shall forfeit treble damages to the party grieved by action of trespass, and ten pounds to the king as a fine. But the most important and extensive ancient statute on this subject is the 22 and 23 Car. II. c. 1. commonly called the Coventry Act, from the circumstances to which it owes its origin. For it was passed in consequence of some armed mẹn having lain in wait for Sir John Coventry, a man of rank and consequence of the time, and having slit his nose, and so wounded him that he was not only disfigured, but his life brought into great danger. 1 Leach, 261. After reciting this transaction the statute proceeds to enact, "That if any person shall, on purpose, and of malice aforethought, and by laying in wait, unlawfully cut out or disable the tongue, put out an eye, slit the nose, cut off a nose or lip, or cut off or disable any limb or member of any subject of his majesty, with intention in so doing to maim or disfigure in any of the manners above mentioned, such his majesty's subject, that then the person so offending his counsellors, aiders, and abettors, (knowing of, and privy to the offence aforesaid) shall be guilty of felony without benefit of clergy." To constitute the offence against which this provision was directed, there must be a maiming--a lying in wait-and an intent to disfigure. I. There must be a maiming, and for this purpose a wound in the throat or on the neck will not suffice to bring the offender within the statute, 1 Leach, 51. But to constitute a slitting the nose, it is not necessary that the nostrils should be perforated, for a wound across the upper part of the nose on a level with the eyes, if it cuts the flesh, and divides the frontal vessels of the forehead, will fix the party by whom it was given, with the guilt of a capital felony, 1 Leach, 55. 6 Harg. St. Tr. 223. II. There must a lying in wait. But it is not necessary that the prisoner should lurk in any particular place, and effect the mischief by suddenly rushing from it. It will suffice if, having formed an intention to maim, he takes a convenient opportunity of effecting his purpose, 1 Leach, 259. And, therefore, where the party injured was surrounded by a gang of thieves, and, in the scuffle, some of the party asked the rest where their knives |