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one might kill him, though he could not otherwise be taken. The jury,
however, brought in a verdict of manslaughter : but the court said that
tliey could not receive that verdict, and told the jury that if they believed
the evidence they must find the prisoner guilty of murder; and if they
did not believe the evidence they should acquit the prisoner. The jury
then found the prisoner guilty, and sentence was pronounced : but the
prisoner was afterwards reprieved. (p)

Gaolers and their officers are under the same special protection as purees of
other ministers of justice : but in regard to the great power which they nJem i>t"
have, and, while it is exercised in moderation, ought to have, over their gaolers,
prisoners, the law watches their conduct with a jealous eye. If there-
fore, a prisoner under their care die, whether by dccca.se or accident, the
coroner upon notice of such death, which notice the gaoler is obliged to
give in due time, ought to resort to the gaol; and there, upon view of the
body, make inquisition into the cause of death ; and if the death Mas
owing to cruel and oppressive usage on tlie part of the gaoler, or any
officer of his, or, to speak in the language of the law, to (hi7ri!s of impri-
sonment, it will be deemed wilful murder in the person guilty of such
duress. (y) The person fjuilty of such duress will he the party liable to

(w) 0. B. 13th Oct. 1G90, Rokcby's MS. cited in Serjt. Foster's MS., and in 1 East, P. C.
312.

(n) Dixon's case, Kinpst. Ass. 1756, cot. Dennison, J. (said to be 1768, in Serjeant Foster's
MS.,) cited in 1 Kiist, P. C. c. 5, s. 80, p. 313.

(o) By Ilenth. J., in Warden v. Bailev, 4 Taunt. 77.

(/)) Rex t'. Smith, 0. B. Jan., 1804. ' MS. Bayky. J. 4 Bla. Com. 201, n.

\q) Fost. 321. 1 Hale, 4G5.



546



OF MURDER.



[book in.



Case of



^547



prosecution, because, though in a civil suit, the principal may in some
cases be answerable in damages to the party injured through the default
of the deputy ; yet, in a capital prosecution, the sole object of which is
the punishment of the delin(|ucnt, each man must answer for his own
acts or defaults. (?•}

A gaoler knowing that a prisoner infected with the small pox lodged
in a certain room in the prison, confined another prisoner against his will
in the same room. The second prisoner, who had not had the distemper,
of which fact the gaoler had notice, caught the distemper, and died of it j
this was holden to be murder, (s)

Huggins was warden of the Fleet prison, with power to execute the
ajufBarnes ^^^^ ^^ 'deputy, and appointed one Gibbon, who acted as deputy. Gib-
bon had a servant, Barnes, whose business it was to take care of the
prisoners, and particularly of one Arne j and Barnes put Arne into a
new-built room, over the common sewer, the walls of which were damp
and unwholesome, and kept him without fire, *chamber-pot, or other
necessary convenience, for forty-four days, when he died. It appeared
that Barnes knew the unwholesome situation of the room, and that Hug-
gins knew the condition of the room fifteen days at least before the
death of Arne, as he had been once present at the prison, and seen Arne
under such duress of imprisonment, and turned away ; at which time
Barnes shut the door of the room, in which Arne continued till he died.
It was found that Arne had sickned and died by duress of imprison-
ment, and that dui-ing the time Gibbon was deputy, Huggins sometimes
acted as warden. Upon these facts the court were clearly of opinion
that Barnes was guilty of murder. But they thought that Huggins was
not guilty, as it could not be inferred, from merely seeing the deceased
once during his confinement, that Huggins knew that his situation was
occasioned by the improper treatment, and that he consented to the con-
tinuance of it : and they said, that it was material that the species of
duress, by which the deceased came to his death, could not be known
by a bare looking-in upon him. Huggins could not know the circum-
stances under which he was placed in the room against his consent, or
the length of his confinement, or how long he had been without the
decent necessaries of life : and it was likewise material that no appli-
cation was made to Huggins, which perhaps might have altered the
case. And the court seemed also to think, that as Barnes was the ser-
vant of Gibbon, and Gibbon had the actual management of the prison,
the accidental presence of the principal would not amount to a revocation
of the authority of the deputy. (^)

With respect to the duty of ofiicers in the execution of criminals, it has
been laid down as a rule, that the execution outjht not to vary from the
judyment ; for if it doth, the oflacer will be guilty of felony at least, if
not of murder, (m) And in conformity to this rule it has been holden,
that if the judgment be to be hanged, and the officer behead the party,
it is murder ;(r) and that even the king cannot change the punishment

(r) Fost. 322. Rex v. Huggins .and Barnes, 2 Sir. 882. See Rex v. Allen,' 7 C. & P. 153,
and Rex v. Green,2 7 C. & P. 156, post.

(s) Fost. 322, referring to the case of Castell v. Bambridge and Corbet (an appeal of
murder,) 2 Sir. 854.

{t) Rex V. Husgins and Barnes, 2 Str. 882. 2 Lord Raym. 1574. Fost. 322. 1 East, P. C.
c. 5, s. 92, p. 331, 332.

{^l) 1 Hale, 501. 2 Hale, 411. 3 Inst. 52, 211. 7 Blac. 179.

{v) 1 Hale, 433, 454, 466, 501. 2 Hale, 411. 3 Inst. 52. 4 Bla. Com. 179.
' Eng. Com. Law Reps, xxxii. 475. ^ ib. 477.



Duty of
officers in
the execu
tion of
criminals.



CHAP. I. § 5.] LAWFUL ACTS IMPROPERLY PERFORMED. 547

of a law by altering the hanging or burning into beheading, though, when
beheading is part of the sentence, the king may remit the re8t.(?r) But
others have thought more justly that this prerogative of the crown,
founded iu mercy and iinnienioiiully exercised, is part of the common
law ;(./•) and that thougli the king cannot by his prerogative vary the
execution so as to aggravate the puuishniciit beyond the intention of the
law, yet he may mitigate the pain or infamy of it; and accordingly that
an oflBcer, acting upon a warrant from the crown for beheading a person
under sentence of death for felony, would not be guilty of any offence. (.y)
But the rule may apply to an officer varying from the judgment of his
own head, and without warrant or the colour of authority. Iz).

Parents, masters, and other persons having authority in foro domestico CoTrection
may crivc reasonable correction to those under their *case : and if death '"/"'■"
ensue without their fault, it will be no more than accidental death. But *543
if the correction exceed the bounds of due moderation, either iu the mea-
sure of it, or in the instrument maile use of for that purpose, the death
ensuing will be either murder or manslaughter, according to the circum-
stances of the case.f Where the fact is done with a dangerous weapon,
improper for correction, and likely (the age and strength of the party
being duly considered) to kill or maim ; such as an iron bar, a sword, a
pestle, or great staffj or where the party is kicked to the ground, his
belly stamped upon, and so killed, it will be murder. (;.-:) Thus, where a
master had employed his apprentice to do some work in his absence,
and on his return found it iiad been neglected, and thereupon threatened
to send the apprentice to Bridewell, to which the apprentice replied, " I
may as well work there, as with such a master;" upon which the mas-
ter struck the apprentice on the head with a bar of iron which he had
in his hand, and the apprentice died of the blow ; it was held murder :
for if a father, master, or schoolmaster, correct his child, servant, or
scholar, it must be with such things as are fit for correction, and not
with such instruments as may probably kill them; otherwise, under pre-
tence of correction, a parent may kill his child; and a bar of iron is no
instrument of correction. («)

If persons, in pursuit of their lawful and common occupations, seePi^r.^ons
danger probably arising to others from their acts, and yet persist, with-^^'l?^'"*^
out giving sufficient warning of the danger, the death which ensues will mon occu-
be murder. Thus, if workmen throwing stones, rubbish, or other things P*'''*'^^'
from a house, in the ordinary course of their business, happen to kill a
person underneath, the question will be, whether they deliberately saw

(w) 3 Inst. 52. 2 ITalc, 412. (x) Fost. 270. F. N. B. 244, h. 19 Uym. Foed. 284.

(y) Fost. 2(18. 4 Bin. Com. 40.'). 1 East. P. C. c. 5, 8. 9G, p. 335.

(z) It was, liowever, tlie practice, fouiuled in liumaiiity, when women were comlemncil tn
be burned for treason, to strangle thorn at the stakes before the fire reached them, thoupli
the letter of the judgment was that they should l)e burnt in the fire //// tfiei/ u-rrf dt:ad. Fost.
2o8. The 30 (ieo. 3, c. 48, now directs that they shall be hanged as otlier olfeuders.

(z) 1 Hawk. P. C. c. 29, 8. 6. 1 Hale, 453, 473. Ilex v. Kcile, 1 Lord lUym. 144.

(a) Rex V. Grey, Kel 64. Fost. 202.



f [The master has not the right to slay his slave, or to inflict what the law calls great
bodily harm, to wit, maiming or ilismemberinp him ; and the slave lias a right to defend
himself against unlawful attempts. Jnhoh v. The Slate, 3 Humphreys, 483. The right of
the master to the obedience and submission of his slave in all lawful things is perfect, and
the power belongs to the master, to inflict any punishment on his slave not affecting life or
limb, which he may consider necessary for the purpose of keejiing of him in such submission
and enforcing such obedience to his commands : and if in the exercise of it. with or without
cause, the slave resist and slay his master, it is murder and not manslaughter, because the
law cannot recognise a violence of the maatcr as a legitimate cause of murder. Ibid.]



548



OF MURDER.



[book III.



the danger, or betrayed any consciousness of it. If they did, and yet
gave no warning, a general malignity of heart may be inferred, (6) and
the act will amount to murder from its gross impropriety, (c) So if a
person driving a cart or other carriage, happen to kill, and it appear that
he saw, or had timely notice of the mischief likely to ensue, and yet
drove on, it will be murder. (J) The act is wilful and deliberate, and
manifests a heart regardless of social duty.(fi)



*549



SECT. VI.



Indict-
ment.



Of the Indictment, Trial, &c.(K\

Although the prisoner may be charged with murder by the inqui-
sition of the coroner, it is usual also to prefer an indictment against him.
And it is said to be proper to frame an indictment for the ofi'ence of
murder in all cases where the degree of the offence is at all doubtful ;(/)
and unquestionably where there is any reasonable ground for supposing
that the facts, as they will be given in evidence, may lead to the conclu-
sion of the higher offence having been committed, it will be culpable not
to prefer an indictment for murder.

With respect to the place in which the indictment is to be preferred,
it will be necessary to state some of the legislative enactments by which
trials for murder are regulated.

Murder, like all other offences, must regularly, according to the com-
mon law, be inquired of in the county in which it was committed. It
appears, however, to have been a matter of* doubt at the common law,
whether, when a mau died in one county of a stroke received in another,
the offence could be considered as having been completely committed in
either county :(r/) [1] but by the 2 & 3 Edw. 6, c. 24, s. 2, it was enacted,

{b) Ante, p. 540.

(c) 3 Inst. 57. A Bla. Com. 192. 1 East, P. C. c. 5, s. -SR. p. 262.

{d) 1 Hale, 475. Fust. 263. 1 East, P. C. c. 5, s. 38, p. 262.

{e) Fost. 203.

(/) 1 East, P. C. c. 5, s. 105, p. 340.

{q) 2 Hawk. P. C. c. 25, s. 36. 1 East, P. C. c. 5, s. 128, p. 361.



In what
place the
offender
must be
indicted.



(A) Pennsylvania. — In an indictment for murder it is not necessary so to describe the
ofifence, as to show whether it be murder of the first or second degree, nor that the indict-
ment should conclude against the form of the act of assembly. White v. Commcnivealth, 6
Binn. 179. Nor is it necessary that an indictment for murder should charge it to have been
committed by a wilful, deliberate and premeditated killing, as expressed in the act of assembly.
Commomvealth v. Joyce Jj- al. cited in the above case, 6 Binn. 288.

When a statute creates an ofl'ence, the indictment must charge it as being done against the
form of the statute ; but when the statute only inflicts a penalty upon that which was an
offence before, it need not be against the form of the statute, because in truth the offence
does not violate the statute. So decided in the case of Commonwealth v. Searle, 2 Binn. 339.
6 Binn. 182.

The omission of the technical epithets, feloniously, wilfully, and of malice aforethought,
as applied to the manner of killing, in an indictment for murder, is fatal. The indictment
stated that the assault was made feloniously, wilfully, &c., but did not allege, that the
striking, kicking, &c., (which constituted the manner of killing in that case,) were done
feloniously, wilfully, &c. Commoniveallli v. Iloneyman, 2 Ball. 288.

The words " languishing did live," in an indictment for murder, are not a material part
of the indictment, and may be struck out. Fennsylvaiiia v. Bell, Addis. 171, 173.

[1] jBy statute of 1795, c. 45, (Massachusetts) when any person is feloniously struck,
poisoned, or injured in one county, and dies of the same stroke, &c., in another county — and
when any person is struck, &c., on the high seas, without the limits of the state, and dies of



CHAP. I. § 6.] INDICTMENT, TRIAL, ETC. 549

that the trial should be in the county where the death happened. That
statute was, however, repealed by the 7 Geo. 4, c. G4, the twelfth peetion 7 Geo. 4, c.
of which << for the more effectual prosecution of offences coniniitted near . ,■' ^■•, , '■'
the boundaries of counties, or partly in one county and partly in another,"
enacts, " that where any feluny or mi.sdeameanor .shall be eoniuiitted on
the boundary or boundaries of two or more counties, or within the dis-
tance of five hundred j'ards of any such boundary or boundaries, or shall
be begun in one county and completed in another, every such felony or
misdemeanor may be dealt with, imjuired of, tried, determined, and
punished, in any of the said counties, in the same manner as if it had
been actually and wholly committed therein." The ninth section also
enacts as to the trial of accessories before the fact, << that in case the g^^ g ^q_
principal felony shall have been committed within the body of any cc-i<f*orie8
county, and the offence of counseling, &e. shall have been committed ^*^*^'
within the body of any other county, the last mentioned offence may be
inquired of, tried, kv., in either of such counties." 8o with respect to
the trial of accessoiies after the fact, the tenth section enacts, "that insec. 10. Ac-
casc the principal felony shall have been committed within the body of <^*''*8ories
any county, and the act by reason whereof any person shall have become
accessory shall have been committed within the body of any other
county, the offence of such accessory may be inquired of, tried, deter-
mined, and punished in either of such counties."

It has been held under section 12, that where the blow is given in one
county, and the death takes place in another, the trial may be in the
latter county. Upon an indictment for manslaughter, found by the
grand jury of the county of the city of Worcester, *alleging the blow *550
which caused the death to have been struck in the county of Worcester,
it was objected that the words " began in one county and completed in
another," did not apply to such a case, as the word "completed" neces-
sarily imported some active and continuing agency in the person com-
mitting the offence in the county where the felony was completed ; but
it was held that the clau.se did extend to this easc.(//)

The twelfth section only applies to trials in counties, and docs not
extend to limited jurisdiction within counties. Where, therefore, a
larceny was committed in the city of London, but within five hundred
yards of the boundary of the county of Surrey and of the borough of
Southwarkj it was held that the offence could not be tried by the
quarter sessions for the borough of Southwark.(<')

If a person be stricken and die in the county of A., and the body be
found in B., it is to be removed into A. for the coroner of that county
to take the inquest. (J)

(h) Rex V. Jones, Worcester Lent Ass. 1830, Jervis, K. C, MSS. C. S. G. Mr. Bellamy,
the clerk of araigns, linil consulted Mr. J. Littlcdalc about this cnsc, and he thought that
the indictment ougiit to be preferred in the city, and it had been so preferred accordingly.
C. S. G.

(i) Rex t'. Welsh, R. & M. C. C. R. 175.

Ij) 2 Hale, GO. 1 MS. Sum. 63. 1 Ea.st, V. C. c. 5, s. 127, p. 301.

the same stroke, &c., in the state — the offender may bo indicted and tried in the county
where the death happen.*.

This statute is not repugnant to the declaration in the constitution of the state, that " in
criminal prosecutions the verification of facts in the vicinity where tliey happen, is one of
the greatest securities of the life, &c., of the citizen." 2 Pick. 650, Commonuealth v. M. ;}•
W. rarker.]

[Where a deadly blow is struck in one county and the party struck dies thereof in another
county, the offence will be held to have been committed in the county in which the blow was
struck, and the olfender must be indicted in such county. Jiilet/ v. The Stale, 9 Kemp. 646.]



550 OF MURDER. [bOOK III.

It has recently been held that a coroner has no jurisdiction to hold
an inquest, in a case of an accidental death where the cause of death
occurred out of his jurisdiction, (i. e. in a county, he being the coroner
for a borough,) although the deatli took place within his jurisdiction. (j)')
But see now the G & 7 Vict. c. 12.
Trial when ]]y ^\^q oQ Hen. 8, c. 6, it is enacted, that murder and other felonies

t lie inuruor

is cdiiuuit- committed in Wales may be inquired of and tried upon an indictment
ted in in the next adjoining English county where the king's writ runneth :
and Herefordshire has been holden to be the next adjoining English
county to South Wales, and Shropshire to North Wales: (A-) but it has
been considered as a doubtful point in what place the trial ought to be,
supposing the stroke given in an English county, and the death in
Wales. (/)

There are also statutes which relate to the trial of murder, and other
offences which have been committed upon the sea, and either within the
king's dominions or without.
When it is The 28 Hen. 8, c. 15, s. 1, enacts, that all felonies, murders, &c. com-
upon the flitted upon the sea, or in any haven, river, creek, or place, where the
sea, or in admiral has or pretends to have power, authority, or jurisdiction, shall
lY T'^^"' be inquired, tried, &c., in such shires and places in the realm as shall be
the admiral liniited by the king's commission, in like form as if such offences had
has juris- \)qq-q committed upon the land. The proceedinss upon this statute

(iiction * or i o X

in foreign ^^^ the extent of the Admiralty jurisdiction have been already con-
parts, sidered :{m) it may, however, be again mentioned in this place, that by
the 15 Rich. 2, c. 3, the admiral has jurisdiction given to him to inquire
" of the death of a man, and of a mayhem done in great ships hovering
in the main stream of great rivers, only beneath the bridges of the same
rivers, nigh to the sea, and in none other places of the same places."
In a case at the Admiralty session, of a murder committed in a part of
Milford Haven, where it was about three miles over, about seven or
eight miles from the mouth of the river or open sea, and about sixteen
miles below any bridges over the river, a question was made, whether
*551 the place where the murder was committed was *to be considered as
within the limits to which commissions granted under the 28 Hen. 8,
c. 15, extend by law : and upon reference to the judges, they were
unanimously of opinion that the trial was properly had.(?() [1]

(i;) Reg. V. The Great Western Railway Company, E. T. 1842. 11 Law J., N. S. Mag. C.

(k) Athos case, (father and son,) 8 Mod. 136. Parry's case, 1 Leach, 108. 1 Stark. Cr.
PI. 15.

(/) 1 East, F. C. c. 5, s. 129, p. 363, et seq. where see a learned argument upon this point.
And see also 1 Stark. Cr. PI. 14, 15.

(m) Ante, p. 100. (n) Rex v. Bruce, 2 Leach, 1093, ante, p. 100.

[ {The statute of the United States, 1790, c. 36, ^ 8, (1 U. S. Laws, 84, Story's ed.)
enacts, " that if any person shall commit, upon the high seas, or in any river, haven, basin,
or bay, out of the jurisdiction of any particular state, murder, &c., which if committed
within the body of a county, -would, by the laws of the United States, be punishable with
death — every such oifender, being convicted thereof, shall suffer death ; and the trial of
crimes committed on the high seas, or in any place out of the jurisdiction of any particular
state, shall be in the district where the offender is apprehended, or into which he may first
be brought.

Under this statute, the death, as well as the mortal stroke, &c., must happen on the high
seas, &c., — if the death occurs on shore, the federal courts have no jurisdiction of the
otfence. 4 Dallas, 42(), United States v. 31' Gill. The " high seas," in this statute, mean any
waters on the sea coast which are without the boundaries of low water mark ; the courts of
the United States, therefore, have cognizance of the offences mentioned in tlie statute, though
committed in an open roadstead, adjacent to a foreign territory, and within half a mile of



CHAP. I. § 6.] INDICTMENT, TRIAL, ETC. 551

By tlio 4G Geo. 3, c. 5-i, all murders and other offences committed -IG Geo. 13,
upon the sea, or in any haven, river, &c., where the admiral has juris-
diction, may be imjuii'od of and tried according to the common course
of the laws of the realm, used for offences committed upon the land
within the realm, and not otherwise, in any of his majesty's islands,
plantations, colonies, dominions, forts, or factories, under the king's
commission; and the commissioners are to have the same powers for
such trial within any such island, &c., as any commissioners appointed
under the 28 lien. 8, c. 15, would have for the trial of offences within
the realm. The provisions of this act are extended by the 57 (Jco. ii, 57 Geo. 3,
c. 53, to murders and manslaughters committed in places not within his*^- ^^•
majesty's dominions. It enacts, that murders and manslaughters com-
mitted on land at the settlement in the Bay of Honduras, by any person
residing or being within the settlement, and in the islands of New Zea-
land and Otaheite, or within any other islands, countries, or places not
within his majesty's dominions, nor subject to any European state or
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 and
belonged to, and have quitted any British ship or vessel to live in any
of the said islands, etc., or that shall be there living, may be tried and
punished in any of his majesty's islands, plantations, colonics, &c., by
the king's commission, issued by virtue of the -AG Geo. 3, c. 54, in the
same manner as if such offences had been committed upon the high
seas, (o)

(o) 57 Geo. 3, c. 58, s. 1. The second section provides, that the act shall not be construed
to repeal the 33 Ilcn. 8, c. 24. And sec further as to the trial of oti'ences committed oo
land in the Bay of Honduras, the 59 Geo. 3, c. 44.

the shore. 1 Gallison, 624, Unitrd States v. Foxs. But this statute does not confer on the
courts of the United States jurisdiction of the offences committed on the waters of a state,
where the tide ebbs and Hows. 3 Wheat. 330, United Stales v. Bevans.

The courts of the United States have jurisdiction of murder, &c., committed on the hi;:h
seas, although not committed on board a Tcssel of the United States ; as if she has no
national character, but is held by pirates not lawfully sailing under the Hag of any foreign
nation. If the offence be committed on board of a foreign vessel, by a citizen of the United



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