from the indictment that the wound given was sufficient to cause the 4. Murder. death; and for this reason, unless it otherwise appear that the wound was sufficient to cause death, the length, depth, and breadth of the wound must be shewn. (R. v. Moseley, R. & M. C. C. 97: two of the judges diss.) And this is not necessary when a man is shot with a bullet, or run through the body with a sword, and it be so stated in the indictment. (5 Co. 121, 122; 2 Hawk. c. 23, s. 81; sed vid. 1 Ld. Raym. 145 ; and see R. & M. C. C. 5). Where an infant died in consequence of the violence with which a rape was committed upon her, the indictment for murder was held bad, because it did not state that a mortal wound was given. (1 Leach, 96).

Where death is caused by a wound or stroke, it is necessary to set forth the part of the body to which the violence was applied; and therefore, if the indictment merely state the wound to be near or about the breast, it would be defective. (4 Co. 40b; 2 Hawk. c. 23, s. 80; 1 East's P. C. 342). But the statement need not be proved. (2 Hale, 186). And the omission of the statement can only be taken advantage of by demurrer. (See 7 Geo. IV. c. 64, s. 20).

Where the prisoner was indicted for cutting the throat of the de- Cutting throat. ceased, and a surgeon proved that what was technically called the throat was not cut, as the wound did not extend so far round the neck: Patteson, J., held, that the indictment must be understood to mean what is commonly called the throat. (R. v. Edwards, 6 C. & P. 401).

It is not necessary to state in an indictment the length, breadth, or depth of a wound. (R. v. Moseley, 1 Mood. C. C. 97).

If the death proceeds from suffocation from the swelling up of the passage of the throat, and such swelling proceeds from wounds occasioned by forcing something into the throat, it will be sufficient to state in the indictment, that the things were forced into the throat, and the person thereby suffocated, the process immediately causing the suffocation, viz. the swelling, need not be stated. (R. v. Tye, R. & R. 345). Where an indictment charged that the prisoner with both her hands about the neck of the deceased, the neck and throat of the deceased did squeeze and press, and by such squeezing, &c., did suffocate and strangle the deceased; and the evidence was, that the prisoner suffocated the deceased by placing one hand on his mouth and the other on the back of his head: Patteson, J., held, that it was sufficient if the death was caused by suffocation, and that the evidence supported the indictment. (R. v. Culkin, 5 C. & P. 121).

Suffocation.

It must be stated, that the party murdered died of the injury that he Death of party. received. (1 Roll. Rep. 137; R. v. Tye, R. & R. 345).

If a man be wounded, and the wound turn to a gangrene or fever for want of proper applications, or from neglect, and the man die of the gangrene or fever; or, if it become fatal from the refusal of the party to undergo a surgical operation, (Reg. v. Holland, 2 M. & Rob. 351), this is a homicide, and murder or not, according to the circumstances under which the wound was given. (1 Hale, 421). But, if it appeared that the man's death was caused from improper applications to the wound, and not by the wound itself, it would be otherwise. (Ib.)

An indictment against two defendants, which states the death to be the result of two different injuries inflicted by each of the defendants separately, on different days, is bad. (Reg. v. Devett, 8 C. & P. 639).

The time both of the stroke and death should be stated on the record; Time of offence. the former because the escheat and forfeiture of lands relate to it; the latter, in order that it may appear that the death took place within a year and a day after the mortal injury was received. (2 Hale, 179; Cro. Eliz. 739; 2 Inst. 318).

In drawing the conclusion, that so the defendant murdered, &c. if time be again expressed, repugnancy should be carefully avoided; for, if the injury was on one day and the death on another, and the indictment

4. Murder.

Place.

Necessary terms.

Conclusion.

Evidence.

concludes, that so the prisoner murdered, &c., on the former, it will be bad, because the felony is committed when the death occurs, and not when the cause of the death arises. (4 Co. 42; 2 Hawk. c. 23, s. 8). But if the latter day be stated, no objection can be taken, though it i said to be the best way generally, that so the defendant murdered, &c, without any repetition of time. (Id.)

A variance in evidence from that laid is immaterial. (2 Inst. 318: and see post, tit. "Indictment ").

Where the offence is begun in one county and completed in another, the trial had in the latter, by virtue of 7 Geo. IV., the stroke ought a be alleged in the county where it was actually given. (2 Hawk. c. 23, s. 92; i East's P. C. 343; and see as to averment of place, in general, post, tit. "Indictment”).

On an indictment for murdering a British subject abroad, under the 9th Geo. IV. c. 31, s. 7, post, 817, the place of the murder should be stated, without any addition of place in this kingdom. (R. v. Helsham, 4 C. & P. 394, post, 817).

The offence must also be stated to have been committed with "malis aforethought." 2 Hale, 187). And the words "feloniously murdered" will not aid the omission. (Dyer, 99, pl. 63). The word felonie must be inserted as in other felonies.

If the words "malice aforethought," or "feloniously," be omitted, de fendant can only be convicted of manslaughter. (5 East's P. C. 345),

The indictment must, after stating the circumstances, conclude ty stating that so the prisoner, the defendant, feloniously, &c. did killaz murder, the last word being an artificial term, which it is requisite to use. (Id.; Dyer, 261 a). It is not necessary to repeat the words "fe loniously and of malice aforethought" to every allegation; for, if the assault be stated to have thus been made, and the indictment proceed to aver that the defendant then and there struck, &c., it will be good withe out repeating them, because the acts are sufficiently connected. (40% 41 b; Dyer, 69 a; Godb. 65-6). And where, in an indictment for po soning, it was alleged that the prisoner did wilfully, feloniously, and of his malice aforethought, mix poison with other ingredients, in order that they might be eaten by the deceased, it was held, that there was no occasion to add these words to the allegation of the delivery of the poison. (1 East's P. C. 346).

3. THE EVIDENCE IN MURDER.

The requisite evidence both for and against the prosecution may be collected from the preceding observations, as to what will constitute murder or not, ante, 809 to 813; and also what averments in the indict ment must be strictly proved, ante, 814, 815.

It has been already observed, ante, 810, that the prosecutor is not bound to prove that the homicide was committed from malice prepesas, if he prove homicide merely, the law presumes malice, and calls en the defendant to rebut it, by proving, either from the cross-examinetion of the prosecutor's witnesses, or from witnesses on his behalf, that the homicide was justifiable, or excusable, or that at most it amounted to manslaughter only, and not to murder. (Rex v. Greenacre, 8 C. A P. 4). If, however, there be direct evidence of malice prepense, the prosecutor had better prove it.

A. was indicted for the murder of H.-It was opened that A., having malice against P., hired H. to murder him, and that H. did so; but that H. being detected, A. had murdered H. to prevent a discovery of his (A.'s) guilt respecting the murder of P. Evidence was given of expresions of malice used by A. towards P., and it was held, that the prosecutor might also give evidence to shew that H. was, in fact, the person by whom P. had been murdered. (R. v. Clewes, 4 C. & P. 221).

As to the evidence by the dying declarations of the deceased, see tit. 4. Murder. "Evidence," Vol. II. p. 380.

4. PLACE OF TRIAL FOR Murder.

British subjects may be tried in der or manslaughter committed

England, for mur

abroad.

By 9 Geo. IV. c. 31, s. 7, "If any of his Majesty's subjects shall be charged in England with any murder or manslaughter, or with being accessary before the fact to any murder, or after the fact to any murder or manslaughter, the same being respectively committed on land out of the United Kingdom, whether within the king's dominions or without, it shall be lawful for any justice of the peace of the county or place where the person so charged shall be, to take cognizance of the offence so charged, and to proceed therein as if the same had been committed within the limits of his ordinary jurisdiction; and if any person so charged shall be committed for trial, or admitted to bail to answer such charge, a commission of oyer and terminer under the great seal shall be directed to such persons, and into such county or place as shall be appointed by the Lord Chancellor, or Lord Keeper, or Lords Commissioners of the great seal, for the speedy trial of any such offender; and such persons shall have full power to inquire of, hear, and determine all such offences, within the county or place limited in their commission, by such good and lawful men of the said county or place, as shall be returned before them for that purpose, in the same manner as if the offences had been actually committed in the said county or place: Pro- Proviso. vided always, that if any peers of the realm, or persons entitled to the privilege of peerage, shall be indicted of any such offences by virtue of any commission to be granted as aforesaid, they shall be tried by their peers in the manner heretofore used: provided also, that nothing herein contained shall prevent any person from being tried in any place out of this kingdom for any murder or manslaughter committed out of this kingdom, in the same manner as such person might have been tried before the passing of this act."

In an indictment, in pursuance of the above enactment of 9 Geo. IV. c. 31, s. 7, for murder committed by a British subject abroad, it must, it seems, be averred that the prisoner and the deceased were subjects of his Majesty. (R. v. Helsham, 4 C. & P. 394, coram Bayley, J.)

To prove such allegation that the prisoner was a subject of his Majesty, his own declaration is evidence to go to the jury; and it will be for them to say, whether they are satisfied that he is in fact a British born subject. (Id.)

A bill of indictment for such offence, it seems, ought not to state it to have been committed "at Boulogne, in the kingdom of France, to wit, at the parish of St. Mary Le Bow," &c.; and it being so stated, the Court directed the London venue to be struck out before the bill was found by the grand jury. (Id.)

See the case of R. v. Sawyer, as to the trial for murder abroad, (R. & R. 294); and the judgment more fully reported in Carr. C. L. 103-4. By 9 Geo. IV. c. 31, s. 8, "Where any person, being feloniously stricken, poisoned, or otherwise hurt upon the sea, or at any place out of England, shall die of such stroke, poisoning, or hurt in England; or being feloniously stricken, poisoned, or otherwise hurt at any place in England, shall die of such stroke, poisoning, or hurt, upon the sea, or at any place out of England; every offence committed in respect of any such case, whether the same shall amount to the offence of murder or of manslaughter, or of being accessary before the fact to murder, or after the fact to murder or manslaughter, may be dealt with, inquired of, tried, determined, and punished in the county or place in England in which such death, stroke, poisoning, or hurt shall happen, in the same manner, in all respects, as if such offence had been wholly committed in that county or place."

VOL. III.

GGG

Trial for murder and manslaughter,

where or cause of death

happens in Eng

land, or at sea.

4. Murder.

Boundaries of counties, &c.

In the Fleet.

Murders and manslaughters com mitted in certain

foreign parts, may be tried in any of H. M.'s foreign plantations, in

same manner as offences committed on high seas.

Murder, &c. com

ras.

As to the trials for murder and other felonies committed on the bourdaries of counties, or partly in one county and partly in another, &c. post, tit. “Indictment,” (Venue).

By stat. 22 Geo. II. c. 33, art. 28, all murders committed by any perse in the fleet shall be punished with death, by the sentence of a court martial. Stat. 57 Geo. III. c. 53, for the more effectual punishment of murder: and manslaughters committed in places not within his Majesty's dominio, after reciting, that "Whereas grievous murders and manslaughters have been committed at the settlement in the bay of Honduras in South Ame rica, the same being a settlement, for certain purposes, in the possessic and under the protection of his Majesty, but not within the territory and dominion of his Majesty, by persons residing and being within the said settlement; and the like offences have also been committed in the South Pacific ocean, as well on the high seas as on land, in the islands of New Zealand and Otaheite, and in other islands, countries, and place not within his Majesty's dominions, by the masters and crews of Brin ships, and other persons who have for the most part deserted from left their ships, and have continued to live and reside amongst the irhabitants of those islands; whereby great violence has been done, and a general scandal and prejudice raised against the name and character of British and other European traders: and whereas such crimes and of fences do escape unpunished, by reason of the difficulty of bringing to trial the persons guilty thereof:" for remedy thereof, enacts,"Ti, from and after the passing of this act, all murders and manslaughters committed or that shall be committed on land at the said settlement in the bay of Honduras by any person or persons residing or being within the said settlement, and all murders and manslaughters mitted or that shall be committed in the said islands of New Z land and Otaheite, or within any other islands, countries, or places 2 within his Majesty's dominions, nor subject to any European star power, nor within the territory of the United States of America, by the master or crew of any British ship or vessel, or any of them, or by any person sailing in or belonging thereto, or that shall have sailed in or be longed to and have quitted any British ship or vessel to live in any ef the said islands, countries, or places, or either of them, or that shall be there living, shall and may be tried, adjudged, and punished in any of his Majesty's islands, plantations, colonies, dominions, forts or factories, under or by virtue of the king's commission or commissions, which shall have been or which shall hereafter be issued under, and by virtue, and in pursuance of the powers and authorities of an act passed in the forty-sixth year of his present Majesty, intituled, An Act for the re speedy trial of offences committed in distant parts upon the sea, in the same manner as if such offence or offences had been committed on the high seas."

And, by stat. 59 Geo. 3, c. 44, s. 1, all murders, manslaughters, rape mitted in Hondu- robberies, and burglaries committed, or that shall be committed a land, at the settlement in the bay of Honduras, may be inquired «, tried, heard, determined, and adjudged, within the said settlement, under the king's commission, under the great seal of Great Britain, to be directed to four or more persons.

Punishment.

Sentence of death.

5. PUNISHMENT, SENTENCE, EXECUTION, and Treatment of MURDERERS The 9 Geo. IV. c. 31, s. 3, "Every person convicted of murder, ar being an accessary before the fact to murder, shall suffer death as a fel And every accessary after the fact to murder shall be liable, at the dis cretion of the court, to be transported beyond the seas for life, or to be imprisoned, with or without hard labour, in the common gaol or houst of correction, for any term not exceeding four years."

The 6 & 7 Will. IV. c. 30, s. 2, after repealing the 9 Geo. IV. c. 31, a. enacts, "That from and after the passing of this act, sentence of deat

may be pronounced, after convictions for murder, in the same manner, and the judge shall have the same power in all respects, as after convictions for other capital offences." This latter provision would seem to empower the judge to direct the sentence to be recorded under stat. 4 Geo. IV. c. 48, s. 1, (see Reg. v. Hogg, 2 Moody & Rob. 380), and would perhaps be held to repeal the provision applicable to burying within the precincts of the prison noticed, infra. Under the old law, where the judge, having mistaken the time of execution, called the defendant again to the bar and rectified it, it was holden by some of the judges that the statute was in this respect merely directory, and that the judge might order the defendant to be executed at any time within forty-eight hours; but all the judges were of opinion that a mistake in this respect might be rectified at any time during the assizes. (R. v. Wyatt, R. & R. 230). But where the judge had omitted that part of the sentence which formerly related to dissection, it was doubted whether it was not an essential part of the sentence, and the defendant was pardoned. (R. v. Fletcher, R. & R. 58). In R. v. Garside, (2 Ad. & Ell. 266), the sheriff of the city of Chester refused to execute the prisoners, who were removed by habeas corpus in the Court of King's Bench, and executed by the marshal of the Marshalsea, assisted by the sheriff of Surrey. See 5 & 6 Will. IV. c. 1, s. 1. (Jervis, Ar. C. L. 9 ed.)

4. Murder.

By the 2 & 3 Will. IV. c. 75, s. 16, reciting, "And whereas an act Dissection abowas passed in the ninth year of the reign of his late Majesty for consoli- lished.

dating and amending the statutes in England relative to offences against Burial in prison. the person, by which latter act it is enacted, that the body of every person convicted of murder shall, after execution, either be dissected or hung in chains, as to the Court which tried the offender shall seem meet; and that the sentence to be pronounced by the Court shall express that the body of the offender shall be dissected or hung in chains, whichsoever of the two the Court shall order;" it is enacted, "That so much of the said last recited act as authorizes the Court, if it shall see fit, to direct that the body of a person convicted of murder shall, after execution, be dissected, be and the same is hereby repealed; and that in every case of conviction of any prisoner for murder, the Court before which such prisoner shall have been tried shall direct such prisoner either to be hung in chains, or to be buried within the precincts of the prison in which such prisoner shall have been confined after conviction, as to such Court shall seem meet; and that the sentence to be pronounced by the Court shall express that the body of such prisoner shall be hung in chains, or buried within the precincts of the prison, whichever of the two the Court shall order."

Hanging in chains

By the 4 & 5 Will. IV. c. 26, s. 1, after reciting 9 Geo. IV. c. 31, ss. 4, 5, and 2 & 3 Will. IV. c. 75, s. 16, it is enacted, "That so much of the abolished. Said recited act made and passed in the ninth year of the reign of his Majesty King George the Fourth, as authorizes the Court to direct that the body of a person convicted of murder should after execution be hung in chains and also so much of the said recited act made and passed in the tenth year of the same reign as authorizes the Court to direct that the body of a person convicted of murder should after execution be dissected or hung in chains, and also so much of the said recited act made and passed in the second and third year of the reign of his present Majesty as provides that in every case of conviction of any prisoner for murder, the Court shall direct such prisoner to be hung in chains, shall be and the same is hereby repealed."

The 9 Geo. IV. c. 31, s. 6, contains provisions as to the mode of treat- Prison regulations ing prisoners confined in gaols under conviction of murder, which see

ante, "Gaols," p. 370.

as to murderers.

By stat. 25 Geo. II. c. 37, s. 10, "If, after execution, any person shall Rescuing the by force rescue or attempt to rescue the body, he shall be guilty of fe- body. lony, and transported for seven years." See Rescue," Vol. V.