was of malice prepense or not. But if C. used any unfair advantage, as if he struck with a deadly weapon, whilst B. was unarmed or the like, he would be guilty of murder. R. v. Langden, R. & Ry. 228. Or if B. were an officer of justice in the due execution of his duty, both A. and C. would be guilty of murder. 1 Hawk. c. 31, s. 57. So, if A. maliciously intending to kill B., take his servants with him, without informing them of his purpose, and he meet B. and fight with him, and A.'s servants seeing their master engaged take part with him, and kill B.,-A. is guilty of murder, but his servants of manslaughter only, 1 Hawk. c. 31,я. 55. 1 Hale, 449. R. v. Salisbury et al., Plowd. 97, unless B. were an officer of justice at the time in the due execution of his duty, in which case it would be murder in the servants also. 1 Hawk. c. 31, s. 57. But where A. beat B., a constable, and they were parted; then C., a friend of A., fell upon the constable, and in the struggle killed him, but A. was not engaged in this, after he was parted from B.: Holt, C. J., and Rokesby, J., held that this was murder in C. alone, and A. was acquitted. 1 East, P. C. 296. So, if A. and B. on a sudden quarrel, fight, and C., having malice against B. come up and assist A., and B. is killed, this is manslaughter in A., murder in C. 1 East, P. C. 350. So if A. a constable have apprehended B., and whilst he is in his custody, C. come up, and in rescuing B. he kill A., this will be murder or manslaughter in C. according to circumstances, and in B. also if he took part in it; but if B. took no part in the attack of C. upon A., he is not guilty of any offence. Sir Chas. Stanley's case, Kel. 87. In Tooley's case (2 Ld. Raym. 1296) seven of the judges held that the offence of C. in killing the constable, or rather his assistant, as above mentioned, was manslaughter; five were of opinion that it was murder; and Mr. Justice Foster states it as his opinion that it was murder. Fost. 312-318. See also Adey's case, 1 Leach, 206. 1 Hawk. c. 31, s. 60, cont. As to principals generally, see ante, p. 10.

Accessories before the fact.] An accessory before the fact to murder, is one who counsels, incites, moves, procures, hires, or commands another to commit it, but is not himself present aiding or abetting in the commission of it. Ante, p. 14. And he may do it through the intervention of a third party. If A. bid his servant hire somebody, no matter whom, to murder B., and furnish him with money for that purpose; and the servant procure C., a person whom A. never saw or heard of to do it: A., who is manifestly the first mover and contriver of the murder, is accessory before the fact; for he who procures a felony to be committed, is a felon if present, he is a principal; if absent, an accessory before the fact. Per Foster, J., in the case of MacDaniel et al., Fost. 125. 121. And

if A. command B. to beat C., and B. beats him so that he dies, B. is guilty of murder as principal, and A. as accessory; for he who in anywise commands or counsels another to commit an unlawful act, is accessory to all that ensues upon it, but is not accessory to anything distinct from it. 4 Bl. Com. 37. And if there be some variance between the advice or command and the execution of it, it is immaterial, provided it be the same in substance as if a person advise a man to kill another in the day, and he kills him in the night, or to kill him in the fields, and he kills him in the town,-or to poison him, and he stabs or shoots him :-in these cases he is as much an accessory, as if his advice or command had been strictly pursued. 2 Hawk. c. 29, s. 20. But if the execution vary in substance from the advice or command,—as if a man advise another to kill A., and he kill B.-in this case the party who advised or commanded, cannot be deemed an accessory before the fact to the felony actually committed. Id. s. 21.

There can be no accessory before the fact in manslaughter; for that offence, in its nature, cannot be premeditated. 1 Hale, 616. 2 Hawk. c. 30, s. 2. And therefore if A. be indicted for murder, and B. as accessory before the fact,-if A. be found guilty of manslaughter merely, B. must be discharged.

The punishment of accessory before the fact to murder, is death. 9 G. 4, c. 31, s. 3. See the form of the indictment, ante, p. 16.

Accessories after the fact.] There may be accessories after the fact, both in murder and manslaughter. R. v. Greenacre, 8 Car. & P. 35. As to the law upon the subject, see ante, p. 17; and as to the form of the indictment against an accessory after the fact, see ante, p. 18.

Accessories after the fact in murder, are punishable with transportation for life,-or imprisonment with or without hard labour for not more than four years. 9 G. 4, c. 31, s. 3.

Accessories after the fact in manslaughter, are punishable with imprisonment, with or without hard labour, for not more than two years. 9 G. 4, c. 31, 8. 31.

Verdict, &c.] As to the verdict for murder, see ante, pp. 173, 174, 175. As to the judgment, ante, p. 180, and the form of it, ante, p. 193. As to the execution, ante, pp. 202, 203. As to costs, see ante, 176; and costs of apprehension, see ante, p. 189.

2. Manslaughter.

Indictment.

The jurors for our Lady the Queen, upon their

to wit. Soath present, that A. B., on the

day of

in the year of our Lord

,

feloniously did kill and slay one

C. D. against the peace of our Lady the Queen, her crown and dignity.

Transportation for life, or for not less than seven years, —or imprisonment, with or without hard labour, for not more than four years, or to pay such fine as the court shall award. 9 G. 4, c. 31, s. 9..

As to the form of the indictment, see stat. 14 & 15 Vict. c. 100, s. 4, ante, p. 206; and as to the venue, see ante, p. 68. As to manslaughter abroad or on the high seas, the indictment may readily be framed from the forms, ante, pp. 207, 208. Care should be taken to insert the name of the deceased correctly. See ante, p. 207. Except where the offence is clearly manslaughter, it is usual in practice to indict for murder; and then at the trial if the judge deem it manslaughter only, the jury may give a verdict accordingly.

Evidence.

To support this indictment, the prosecutor must prove

1. The killing of the deceased by the defendant, and the deceased's name, if known and stated in the indictment,-in the same manner as in murder is directed, ante, pp. 208-213.

2. Circumstances showing that the homicide was not justifiable, or excusable, but amounted in law to manslaughter. Manslaughter is the unlawful killing of another, without malice prepense, express or implied. It may be either voluntary, upon a sudden heat or passion, or involuntary, in the commission of some unlawful act. This subject the reader will find treated of at large, under the head "Homicide," ante, p. 226, &c.; and it is unnecessary again to notice it in this place. In what cases homicide by accident may be manslaughter, see ante, pp. 216-221; in what cases homicide in furtherance of justice may be manslaughter, see ante, pp. 221 -223; in what cases homicide in self-defence, or se et sun defendendo, may be manslaughter, see ante, pp. 223-226; in what cases homicide on provocation, or in sudden combat, is manslaughter, not murder, see ante, pp. 226-236; in what cases the killing of officers of justice in the execution of their duty, of gamekeepers by poachers, and of persons pressing or impressed to the sea service,-is manslaughter only, not murder, see ante, pp. 236-249.

3. Administering Poison.

Indictment.

The jurors for our Lady the Queen, upon their oath present, that A. B., on the

to wit.

in the year of our Lord

day of

feloniously did administer to

one C. D, ["administer to, or cause to be taken by any person"] a certain poison, [" any poison or other destructive thing,"] to wit, two drachms of a certain deadly poison called arsenic, with intent in so doing, feloniously, wilfully, and of his malice aforethought, to kill and murder the said C. D.: against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. [If necessary, add another count, charging that the prisoner "did cause to be taken by the said C. D. a certain poison, to wit," &c. And if there be any doubt as to the quality of the poison, add other sets of counts, naming it differently; and add also a set of counts stating it to be "a certain destructive thing to the jurors aforesaid unknown.” Felony, death. 1 Vict. c. 85, s. 2. Accessories before the fact, the same punishment. Id. s. 7; see ante, pp. 14, 15. Accessories after the fact, imprisonment, with or without hard labour, for not more than two years. Id. ss. 7, 8; see ante, pp. 17, 18.

Evidence.

To maintain this indictment, the prosecutor must prove

1. That the prisoner administered the arsenic or other poison or destructive thing mentioned in the indictment. In R. v. Harley, 4 Car. & P. 369, it appeared that the prisoner, who was a female servant of the prosecutrix, in preparing the breakfast of her mistress, had put arsenic into the coffee pot, and afterwards told her that she had prepared the coffee for her; upon which the mistress took the coffee for her breakfast: Parke, J., held that this was an administering of poison, within the meaning of the former statute upon this subject (9 G. 4, c. 31, s. 11). In another case, where the prisoner, after mixing corrosive sublimate with moist sugar, and putting it in a paper parcel, with a written direction on it "to be left at Mrs. Daws, Townhope," left it on the counter in a tradesman's shop where she had purchased some salt; and the tradesman finding it there, but mistaking the direction, sent it to a Mrs. Davis, who used some of it as sugar: Gurney, B., held this to be an administering of the poison, within the meaning of the statute; if it were intended for Mrs. Daws, and found its way to Mrs. Davis, and she took it, the crime was as much within the Act, as if it had been for Mrs. Davis. R. v. Lewis, 6 Car. & P. 161. The propriety of this decision, however, has since been doubted by Parke, B., and Alderson, B., in R. v. Ryan, 2 Mo. & R. 213, where the poison being intended for A., was taken by B., and the offence charged was causing the poison to be taken by B. with intent to murder B., which was not the fact; Parke, B., therefore

ordered a fresh indictment to be preferred, stating the intent to have been "to commit murder," in the words of the statute, without saying of whom, and on that indictment the prisoner was tried and convicted. Upon an indictment on a former statute (43 G. 3, c. 58,) for administering poison to one Elizabeth Davies, it appeared that the prisoner gave Davies a piece of a cake containing the poison, and pressed her to eat it; but, suspecting from circumstances that it contained poison, she merely put it into her mouth, spit it out again, and did not swallow any part of it: it being referred to the judges to consider whether this amounted to an administering of the poison, within the meaning of the statute, it is stated in the case, as reported, that they seemed to think that swallowing the poison was not essential to the completion of the offence; but they held that the mere delivery of it to the woman, was not an administering of it within the meaning of the statute; and a pardon was accordingly recommended. R. v. Cadman, Ry. & M. 114. The accuracy of this report, however, so far as respects the reason of the judges for their decision, is doubted; and Parke, J., in R. v. Harley, supra, said that the judges, in determining that case, had holden that the poison was not administered within the meaning of the statute, because it had not been taken into the stomach, but only into the mouth. Where it appeared that the prosecutrix had accused the prisoner, her maid servant, of stealing a table cloth; the next morning the prisoner brought a tea pot, and cup and saucer, into her bed room, (she being in the habit of taking her breakfast in bed), and went down stairs; and the prosecutrix then helped herself to some of the tea from the tea pot, which she found to have an acid taste, and on its being analysed, it was found to contain oxalic acid: the jury found that she administered the poison; but they also found that she did not intend to murder, which was of course holden to be equivalent to a verdict of not guilty. R. v. Draper, 1 Car. & K. 176. Where upon an indictment for poisoning, it was proved that the prisoner administered two berries of the coculus indicus to a child of nine weeks old, with intent to murder it; it was proved that the kernel, which is a strong narcotic poison, is inclosed in a strong shell or pod, very difficult to break, which is innoxious, and that the digestive powers of a child of that age would not break or affect the pod, so as to allow the kernel to act, but that it would either be ejected from the stomach, or pass through such a child without harm; and in fact such was the case,-one berry was thrown up, and the other passed through, without injury to the child: it was objected that under the circumstances, these berries could not be deemed poison, for being in the pods they could not effect any injury to such a child; the prisoner was convicted, and the question being reserved for the opinion of the criminal appeal court,