MURDER,

OFFENCE of.

Person killed must be a reasonable being, under the king's peace.

Malice expressed.

Malice implied.

Malice prepense.

Malice aforethought.

Mere kiling is prima facie evidence of malice.

He who kills another upon his desire or command is, in the judgment of the law, as much a murderer as if he had done it merely of his own head. 1 Hawk. c. 27, s. 6; Sawyer's case, O. B. 1815, S. P. MS.; Ĭ Russ.C. § M.617. It seems agreed, that where one counsels a woman to kill her child when it shall be born, who afterwards doth kill it in pursuance of such advice, he is an accessary to the murder. 1 Hawk. c. 31, s. 17; and see ante, Accessary, Vol. I. p. 19.

We have already noticed as to what homicide is justifiable or excusable, ante, 245 to 247.

The death, to constitute murder, must take place within a year and a day after the stroke or other cause of it.

The Person killed must be a reasonable Creature, in being, and under the King's Peace]-Therefore, to kill a child in its mother's womb, is no mur-. der: but if the child be born alive, and die by reason of the potion or bruises it received in the womb, it is murder in the person who administered or gave them. 3 Inst. 50; 1 Hawk. c. 31, s. 16. As to Abortion, &c., see ante, Abortion, Vol. I. p. 9.

The words "the King's peace" in the definition of murder, mean merely that it is not murder to kill an alien enemy in time of war; 3 Inst. 50; 1 Hale, 433; but killing even an alien enemy within the kingdom, unless in the actual exercise of war, would be murder. 1 Hale, 433.

It is a good general rule, that no person should be found guilty of murder unless the body of the deceased is found, but this rule must be taken rather as a caution than as a maxim never to be departed from. 2 Hale, 290; 3 Chit. C. L. 738.

The Killing must be committed with Malice aforethought]—By malice expressed, is meant a deliberate intention of doing any bodily harm to another, whereunto by law a person is not authorized. 1 Hale, 451.

And the evidences of such a malice must arise from external circumstances discovering that inward intention; as lying in wait, antecedent menacings, former grudges, deliberate compassings, and the like, which are various, according to variety of circumstances. 1 Hale's Sum. 51.

Malice implied is in several cases: as when one voluntarily kills another without any provocation; for in this case the law presumes it to be malicious, and that he is a public enemy of mankind. i Hale, 455, 456.

Poisoning also implies malice, because it is an act of deliberation. 1 Hale, 455.

Also, when an officer is killed in the execution of his office, it is murder, and the law implies malice. 1 Hale, 457.

Also, where a prisoner dies by duress of the gaoler, the law implies malice, by reason of the cruelty. 3 Inst. 52.

And in general, any formed design of doing mischief may be called malice, and therefore not such killing only as proceeds from premeditated hatred or revenge against the person killed, but also in many other cases, such as is accompanied with those circumstances that shew the heart to be perversely wicked, is adjudged to be of malice prepense, and, consequently, murder. 2 Hawk. e. 31, s. 18; 2 Str. 766.

For when the law makes use of the term malice aforethought, as descriptive of the crime of murder, it is not to be understood in that narrow restrained sense to which the modern use of the word malice is apt to lead one, a principle of malevolence to particulars; for the law by the term malice (malitia) in this instance meaneth, that the fact hath been attended with such circumstances as are the ordinary symptons of a wicked heart, regardless of social duty, and fatally bent upon mischief. Fost. 256, 257.

And wherever it appears that a man killed another, it shall be intended prima facie, that he did it maliciously, unless he can make out the contrary, by shewing that he did it on a sudden provocation, or the like. 1 Hawk. c. 31, s, 32.

Also, wherever a person in cool blood, by way of revenge, beats another in such a manner that he afterwards dies thereof, he is guilty of murder,

INDICTMENT

FOR.

however unwilling he might have been to have gone so far. 1 Hawk. c. 31, Other points. §. 38.

If a man resolve to kill the next person he meets, and do kill him, it is murder, although he knew him not, for it is universal malice. 4 Bl. Com. 400.

Duelling after a

If two fall out upon a sudden occasion, and agree to fight in such a field, and each of them go and fetch their weapon and go into the field, and sudden quarrel. therein fight, and the one killeth the other, this is no malice prepense; for the fetching of the weapon and going into the field is but a continuance of the sudden falling out, and the blood was never cooled. But if there were deliberation, as, that they met the next day, nay, though it were the same day, if there were such a competent distance of time that in common presumption they had opportunity for deliberation, then it is murder. 3 İnst. 51; 1 Hale, 453.

blood.

And the law so far abhors all duelling in cold blood, that not only the Duelling in cold principal who actually kills the other, but also his seconds are guilty of murder, whether they fought or not. the party slain are likewise guilty as accessaries. 1 Hawk. c. 31, s. 31; 1 East's P. C. 242.

And it is holden that the seconds of

(2) Endictment for Murder.

Venue]-As to the venue in general, see title Endictment, Vol. III.; as to the venue, where the murder takes place on the borders of counties, or abroad, &c., post, 253, 254.

Deceased's Name]-As to this, see title Endictment, (Names in), Vol. III.

Indictment for

murder.

Statement of the Offence]-The means by which the death was effected Statement of ofmust be stated; and a mere statement that the defendant killed, will not fence. suffice. 2 Hawk. c. 23, s. 84. It will suffice, if, from the whole tenor of the charge, the statement be sufficiently clear to furnish an intelligible description of the manner of committing the offence. R. v. Dale, 13 Price, 172. An allegation of one kind of death, will not be supported by evidence of another essentially different; so that if it be alleged that the murder was committed by stabbing, and it be shewn to have been by drowning or poisoning, the prisoner must be acquitted. Id.; 2 Hale, 185.

And in an indictment for murder or manslaughter, when the cause of the death is knocking a person down with the fist, upon a stone or other substance, and the mortal wound is from such stone or substance, the charge should be accordingly; a charge that the prisoner, with a stone, &c. which he held in his hand, gave and struck a mortal blow, will not be sufficient, especially if there be no statement that the prisoner knocked the deceased down upon the ground. R. v. Kelly, R. & M. C. C. 113; R. v. Thompson, Id. 139.

But if the act of the prisoner, and the means of death proved, agree in substance with those which are alleged, the nature of the violence, and the kind of death occasioned by it being the same, a mere variance as to the name or kind of instrument used will not be material. See Stark. C. L. 2nd edit. 91; R. v. Clark, 1 B. & B. 473; Bulst. 87.

And an indictment for murder occasioned by one description of poison, will be supported in evidence by proof of murder by a poison of another description. 3 Campb. 75; and see R. v. Clark, 1 B. & B. 473; 1 East's P. C. 341.

Where the death was occasioned by a blow from some instrument, it seems necessary to state, that the defendant held it in his right or left hand, or in both his hands. 2 Hale, 185; sed vide 1 East's P. C. 341; see 13 Price,

MURDER,

INDICTMENT
FOR.

Time of offence.

Place.

Necessary terms.

Conclusion.

The price of the instrument is usually stated, or else it is averred that it is of no value, because it is forfeited as a deodand to the crown; but this does not appear to be absolutely requisite. 2 Hale, 185.

Where the death is occasioned by actual violence, the term struck should always be inserted. Cro. Jac. 635; 1 Bulst. 184; 5 Co. 122; 2 Hale, 184, 6, 7; 2 Hawk. c. 23, s. 82.

When the death is occasioned by a wound, it should be stated to have been mortal. 1 Leach, 96; Kel. 125; 2 Hale, 186. It must appear from the indictment that the wound given was sufficient to cause the 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. & M. C. C. 97; two Justices 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. 121-2; 2 Hawk. c. 23, 8. 81; sed vid. 1 Ld. Raym. 145; and see R. & M. C. C. 5. As to death by stoning, ante, 251.

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. 40 b; 2 Hawk. c. 23, s. 80; 1 East's P. C. 342.

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. C. C. 345.

On the other hand, 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.

It must be stated, that the party murdered died of the injury that he received. 1 Roll. Rep. 137; R. & R. C. C. 345.

The time both of the stroke and death should be stated on the record: 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 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. 88. But if the latter day be stated, no objection can be taken, though it is said to be the best way to say 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 title Endictment, Vol. III.

Where the offence is begun in one county and completed in another, and the trial had in the latter, by virtue of 7 Geo. IV., the stroke ought to be alleged in the county where it was actually given. 2 Hawk. c. 23, s. 92; 1 East's P. C. 343; and see as to averment of place, in general, title Endict= ment, Vol. III.

The offence must also be stated to have been committed with "malice aforethought." 2 Hale, 187. And the words "feloniously murdered" will not aid the omission. Dyer, 99, pl. 63. The word feloniously must be in

serted as in other felonies.

The indictment must, after stating the circumstances, conclude by stating that so the prisoner, the defendant, feloniously, &c., did kill and 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 "feloniously and of malice aforethought," to every allegation; for, if the assault be stated to have been thus made, and the indictment proceed to aver that the defendant then and there struck, &c., it will be good without repeating them, because the acts are sufficiently connected. 4 Co. 41b; Dyer, 69a; Godb. 65-6. And where, in an indictment for poisoning, 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.

If the words "malice aforethought," or "feloniously," be omitted, defendant can only be convicted of manslaughter. 1 East's P. C. 345.

(3) The Evidence in Murder.

PLACE OF

TRIAL.

The requisite evidence both for and against the prosecution may be col- Evidence. lected from the preceding observations, as to what will constitute murder or not, ante, 241 to 251; and also what averments in the indictment must be strictly proved, ante, 251, 252.

It has been already observed, ante, 250, 248, that the prosecutor is not bound to prove that the homicide was committed from malice prepense; if he prove homicide merely, the law presumes malice, and calls on the defendant to rebut it, which he may do, either from the cross-examination of the prosecutor's witnesses, or from witnesses on his behalf. If 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 expressions 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 title Evidence, Vol. II. p. 33.

(4) Place of Trial for Murder.

British subjects may be tried in England, for murder or manslaughter committed

abroad.

By 9 Geo. IV. c. 31, s. 7, it is enacted, "That 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: provided always, that if any peers of the realm, Proviso. 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

MURDER, PLACE OF

TRIAL FOR.

Alterations.

Privision for the trial for murder

and manslaughter, where the death

death happens in

England, or at sea.

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.'

"

This act repeals the stat. 33 Hen. VIII. c. 23, and 43 Geo. III. c. 113. By the repealed provisions, justices had no power to commit, and the commitment could only be by the privy council; those acts were not limited to his Majesty's subjects, nor to places on land within the King's dominions, or without, but extended to all places, and contained no limitation as to persons. This statute also extends to accessaries after the fact in murder, which those did not, and also to accessaries after the fact in manslaughter; and the proviso for trials in places out of the kingdom is new; this, therefore, materially alters the law as it before stood. See Carr. C. L.

103.

See the late case of R. v. Sawyer, as to the trial for murder abroad. R. & R. C. C. 174; and the judgment more fully reported in Car. C. L.

103-4.

the

By the 8th sect. of the same act of the 9 Geo. IV., it is enacted, “That where any person, being feloniously stricken, poisoned, or otherwise hurt upon sea, or at any place out of England, shall die of such stroke, poior the cause of the soning, 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.'

Alterations.

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 com

seas.

This enactment as to manslaughter is new.

This act repeals the stat. 2 Geo. II. c. 21. The stat. 2 & 3 Edw. VI. c. 24, which relates to the trial of murder, where the stroke or poisoning is in one county and the death in another, is repealed by the statute 7 Geo. IV. c. 64.

As to the trials for murders and other felonies committed on the boundaries of counties, or partly in one county and partly in another, &c. See tit. Endictment, (Venue), Vol. III.

By stat. 22 Geo. II. c. 33, art. 28, all murders committed by any person 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 murders and manslaughters committed in places not within his Majesty' dominions, after reciting, that'Whereas grievous murders and manslaughters have been committed at the settlement in the bay of Honduras in South America, the same being a settlement, for certain purposes, in the possession and under the protection of his Majesty, but not within the territory and dominion of his Mamitted on the high jesty, 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 places not within his Majesty's dominions, by the masters and crews of British ships, and other persons who have for the most part deserted from or left their ships, and have continued to live and reside amongst the inhabitants 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 offences do escape unpunished, by reason of the difficulty of bringing to trial the persons guilty thereof:' for remedy thereof, enacts, "That, from and after the passing of this act, all murders and man