The prisoner, a foreigner, committed a larceny in England, and went to Hamburgh; a police-officer pursued him thither, and *with the assistance of the

*763] police of Hamburgh arrested him there, and brought him against his will

on board an English steamer, in order that he might be tried for the larceny. The steamer left, the prisoner being in irons, and whilst the steamer was on the high seas, he shot the officer, who died of the wound. If the killing had been by an Englishman in England, it would have been murder. It was contended that as there was no extradition treaty between England and Hamburgh, the arrest and detention were illegal, and the offence only manslaughter; but it was held, on a case reserved, that where the killing was done with the intent of preserving liberty, the crime was reduced to manslaughter; but it must be taken here that the prisoner killed the officer, not to obtain his liberty, but out of revenge and malice prepeuse; in which case it is murder even if the custody were unlawful. For the prisoner, a foreigner, was in an English ship, and was under the protection of the English laws, and therefore owed obedience to those laws, and was guilty of the crime of murder against those laws-that is to say, he shot a detective officer, not for the purpose of obtaining his liberation, but for revenge and of malice prepense.(0)

We have already dealt with many cases occurring within the jurisdiction of the Admiralty, and it is sufficient to refer to that part of the work in this place.(p) A few of the general rules relating to the form of the indictment may be mentioned in this place.1

If the name of the party killed be known, it should be correctly stated in the indictment; but it is sufficient to describe a party by the name by which he is commonly known. (q) A peer should properly be described only by his Christian name, and his name of dignity; as James, Duke of G.(r)__ But it seems that he may be described by his surname also; as William Byron, Baron Byron.(s) And

3, c. 37, s. 1, no doubt provides generally, that every offence committed upon the high seas shall be of the same nature, &c., as if it had been committed on shore, but it is by no means clear that that enactment applies to any offence created by a subsequent statute, and it was much better not to leave the matter open to any such question. In Ireland it was necessary to issue a special commission under the 11, 12, & 13 Jac. 1, c. 2 (I.); and 23 & 24 Geo. 3, c. 14, s. 4 (I.), for the trial of all offences committed on the seas; but in England such offences might be tried under the ordinary commissions of Oyer and Terminer, or Gaol Delivery, by the 7 & 8 Vict. c. 2. The present section follows that Act in providing for the trial and form of indictment in such cases, and renders the law the same in both countries.

(0) Reg. v. Sattler, D. & B. C. C. 525; see ante, p. 160. Hamburgh is sixty miles from the sea, but the tide flows higher up than the place where the steamer was when the prisoner was put on board. The questions reserved were, "Was the custody of the prisoner on board the steamer lawful, and is there any distinction as to the times when the steamer was in the river Elbe, and whilst she was upon the high seas? [On this the Court gave no opinion.] And, supposing the custody not to have been lawful, was the killing necessarily only manslaughter?"

(p) See ante, p. 153, et seq.

(q) 2 Hale 237; Rex v. Norton, R. & R. 510; Rex v. Williams, 7 C. & P. 298 (32 E. C. L. R.), Williams, J., and Alderson, B.; Rex v. Berriman, 5 C. & P. 601 (24 E. C. L. R.), Park, J.

(r) 2 Inst. 666.

(8) 19 St. Tr. 1177. In Rex v. Brinklett, 3 C. & P. 416, an indictment for manslaughter described the deceased as Henry Sandford, Baron Mount Sandford, of, &c., in Ireland, and it was proved that his Christian name was Henry, his surname Sandford, and his title Baron Mount Sandford, and it was held by Vaughan, J., that this was no variance.

1 See State v. Conley, 39 Maine 78; People v. Thurston, 2 Parker C. R. 49; Boyd v. State, 17 Geo. 194; Brester v. State, 26 Ala. 107; State v. Houston, 19 Mo. 211; State v. Jones, 20 Ibid. 58; State v. Taylor, 21 Ibid. 477. A variance as to the instrument is not material, provided the party died the same kind of death as that alleged in the indictment: State v. Fox, 1 Dutch. 566.

Under an indictment for murder, the jury may find the prisoner guilty of the lesser offence of manslaughter, either voluntary or involuntary, and the verdict will be legal, although there is no count for manslaughter in the indictment: Reynolds v. State, 1 Geo. 227; Roy v. Kansas, Kansas 405. All acts of felonious homicide may be prosecuted and punished under an indictment for murder, framed as at common law: Livingston's case, 14 Gratt. 592.

although the proper way to describe a baron be to describe him by his Christian name, and his degree in the peerage, as William Baron B., yet it is sufficient if he be described as William Lord B.(t) If the name of the party killed be not known, it may be laid to be a certain person to the jurors unknown.(u) Where a party has a name, an indictment must either state the name or that the name was unknown to the jurors. An indictment stated that the prisoner murdered “ an infant male child, aged about six weeks, and not baptized;" it was objected that the indictment was bad, as it neither stated the name of the child, *nor that the name was unknown to the jurors; and, upon a case reserved, the Judges [*764 held that the objection was good, and the judgment was arrested. (v) But where an indictment alleged that the prisoner, a single woman, on the 27th day of August did bring forth a male child alive, and that she afterwards on the day and year aforesaid made an assault, &c., on the said child; it was objected that the indictment was bad, as it neither stated the name of the child, nor that its name was unknown: but Coleridge, J., overruled the objection on the ground that there was no presumption that an illegitimate child had any name, as it could only gain a name by reputation, and that to state that its name was unknown assumed that it had acquired a name; and this decision was held right. (w) So where the prisoners were indicted for the murder of "a certain illegitimate male child, then lately before born of the body of" one of them, it was held right; for it was the case of a party who had never acquired a name, and the indictment identified the party by showing the name of the parent. (x) A bastard must not be described by his mother's name till he has gained that name by reputation. Frances Clark was indicted for the murder of George Lakeman Clark, a base-born infant male child, aged three weeks. The child was her's, and had been christened George Lakeman, the father's name. The murder was proved, but there was no evidence that the child had ever been called Clark; and, on a case reserved, the Judges held that, as it had not obtained the mother's name by reputation, it was improperly called Clark in the indictment; and as there was nothing but the name to identify it in the indictment, the conviction could not be supported.(y) Upon an indictment for the murder of "a certain female child whose name to the jurors was unknown," it appeared that the child had not been baptized, but the prisoner had said she should like it to be called "Mary Ann," and had called it "her Mary Ann" at one time, and "Little Mary" at another; the father was a baptist, and the child was a bastard, and twelve days old: and, upon a case reserved, it was held that the child had not gained a name by reputation, and therefore the indictment was good.(z) And where an illegitimate child, three weeks old, had been baptized by the name of "Eliza," but no surname was mentioned at the time of baptism, and neither the register, nor any copy of it, was produced at the trial, and an indictment for murder described her as "Eliza Waters," Waters being the name of her mother; it was held, upon a case reserved, that the child had not acquired the name of Waters by reputation, and that the conviction was wrong. (a) Where, however, an indictment charged the murder of Emma Evans, and it appeared that the deceased was an illegitimate child born in a workhouse, and baptized on the 9th of September by the name of Emma, and drowned on the 11th of the same month, when about six weeks old, and that up to the time of the baptism she was not called by *any name, but that from the 9th to the 11th of September she was called [*765 Emma Evans, Evans being the mother's name; it was held that there was sufficient evidence of reputation for the consideration of the jury, and that this case was distinguishable from the last, because there was no evidence there that the

(1) Reg. v. Pitts, 8 C. & P. 771 (34 E. C. L. R.), Erskine, J.

(u) 1 East P. C. c. 5, s. 114, p. 345.

(v) Reg. v. Bliss, 2 Moo. C. C. R. 93; 8 C. & P. 773 (34 E. C. L. R.); Reg. v. Hicks, 2 M. & Rob. 302, s. p.

(w) Reg. v. Willis, 1 Den. C. C. 80; 1 C. & K. 722 (47 E. C. L. R.).

(z) Reg. v. Hogg, 2 M. & Rob. 380, Lord Denman, Č. J.

(y) Rex v. Clark, East. T. 1818; MS., Bayley, J., and R. & R. 358.

(2) Rex v. Smith, R. & M. C. C. R. 402; 6 C. & P. 151 (25 E. C. L. R.), s. c.

(a) Rex v. Waters, R. & M. C. C. R. 457; 7 C. & P. 250 (32 E. C. L. R.).

child was ever called Walters at all.(b) Where one count described the child murdered as Lewis Drake; another as Lewis Tavern, and a third as a certain bastard male child called Lewis; the prisoner was the mother of the child, and sometimes called it Lewis, and by that name alone it had been baptized. It had been put out to nurse by its mother, who then went by the name of Tavern; the nurse used to call it Lewis, and when she learnt the mother's name was Drake, she called it Lewis Drake when speaking of it to other persons. The child was about two years old. There was no proof that the prisoner was married, and her brother had never heard of her marriage; but she had been absent from him thirteen years. It was held that there was no evidence of the child being Lewis Tavern; but that the case must go to the jury as to the two other names. As to the name of Lewis the child went by that name and was baptized by it; and it was for the jury to say whether, from the evidence they were not satisfied that the prisoner was never married; she went by her maiden name of Drake; she pleaded to that name in the indictment, and was there described as a single woman, and her brother never heard of her marriage. Whether all this might not satisfy the jury that the child was a bastard it was for them to decide, but undoubtedly there was evidence for them to consider.(c) The prisoner was indicted for the murder of her infant child, which was described in one count as Harriet Stroud, and in another as a female infant of tender age, whose name is to the jurors unknown. The prisoner, a single woman, gave birth to the child on the 16th of June, and it was called Harriet, and was baptized by that name on the 16th of July; no copy of the register was given in evidence; but it was said that the child was baptized by the name of Harriet, and not Harriet Stroud, and there was no evidence that she had ever been called by any name except Harriet; and the description was held wrong; the proper description would have been Harriet, the base-born child of the prisoner. The want of description is only excused where the name cannot be known.(d) Where an indictment for murder described the deceased as a certain infant female child not named, it was held sufficient; for though "not baptized" would not have been enough, "not named," which means that she had acquired no name, by baptism or usage, was quite sufficient.(e) Where the prisoner was indicted for killing William Scarborough, and he was the illegitimate son of the prisoner, and four years of age, and generally called "William" or "Coley," after his reputed father; but frequently spoken of as "Sarah Scarborough's child," and sometimes, his aunt said, she might have heard him called *766] the jury that the deceased, being Sarah Scarborough's bastard, and being frequently and generally addressed as William, had also acquired by reputation the name of William Scarborough; and a party may acquire more names than one by reputation, and he may be indifferently described by either in an indictment (ƒ)

*William Scarborough;" it was held that there was some evidence to go to

Where there was no evidence of the name of the deceased as stated in two counts, and the third count described her as "a certain woman whose name is to the jurors unknown," and it appeared that the prisoner had asked for lodgings in Oxford "for himself and his wife," and the prisoner came with the deceased to the lodgings and they lived there as husband and wife for three or four days, and when taken up by the marshal the prisoner was asked if he had a wife in Oxford, and he said he had; but on the marshal's saying that she was dead, the prisoner replied "she is not my wife, she is a woman I have been travelling with for the last eight months." Erskine, J., held, that if the jury were satisfied that she was not the wife of the prisoner, and that the name could not be ascertained by any reasonable diligence, the description was right; but if the jury should think that she was the prisoner's wife, the description was wrong, for she ought then to have been described by the surname of the prisoner.(g)

(b) Reg. v. Evans, 8 C. & P. 765 (34 E. C. L. R.), Erskine and Patteson, JJ. See Rex v. Sheen, 2 C. & P. 639 (12 E. C. L. R.).

(c) Reg. v. Drake, 4 Cox C. C. 333, Patteson and Talfourd, JJ.

(d) Reg. v. Stroud, 2 M. C. C. 270; 1 C. & K. 187 (47 E. C. L. R.).

(e) Reg. v. Waters, 1 Den. C. C. 356; 2 C. & K. 864 (61 E. C. L. R.).

(f) Reg. v. Scarborough, 3 Cox C. C. 72, Coltman, J. It is said in the marginal note that the deceased had been called William Scarborough in his mother's presence. (g) Reg. v. Campbell, 1 C. & K. 82 (47 E. C. L. R.).

Where a child was described as Annie Welton, and no evidence of any name was adduced; Byles, J., amended the indictment by inserting "a certain female child whose name is to the jurors unknown," under the 14 & 15 Vict. c. 100, s. 1, which, his Lordship said, should have a wide construction. (h)

In other respects great particularity was required formerly in an indictment for murder. It was necessary to allege the manner of the death and the means by which it was caused, and many other particulars; but this led to so many acquittals wholly beside the merits of the case, that a simple form of indictment was rendered sufficient by the 14 & 15 Vict. c. 100, s. 4, which was repealed by the 24 & 25 Vict. c. 95; but by the 24 & 25 Vict. c. 100, s. 6, "In any indictment for murder or manslaughter, or for being an accessory to any murder or manslaughter, it shall not be necessary to set forth the manner in which or the means by which the death of the deceased was caused, but it shall be sufficient in any indictment for murder to charge that the defendant did feloniously, wilfully, and of his malice aforethought kill and murder the deceased; and it shall be sufficient in any indictment for manslaughter to charge that the defendant did feloniously kill and slay the deceased; and it shall be sufficient in any indictment against any accessory to any murder or manslaughter to charge the principal with the murder or manslaughter (as the case may be) in the manner herein-before specified, and then to charge the defendant as an accessory in the manner heretofore used and accustomed.”(i)

The word "indictment" in the 24 & 25 Vict. c. 100, s. 6, has been since held to include a coroner's inquisition.()

(h) Reg. v. Welton, 9 Cox C. C. 297. The indictment was for attempting to drown the child.

(i) This clause is taken from the 14 & 15 Vict. c. 100, s. 4, which applied only to indictments for murder and manslaughter, and a serious doubt was entertained whether in an indictment against an accessory to murder or manslaughter, where the accessory was charged as an accessory and not as a principal, it might not still be necessary to adopt the old form of indictment, and in order to render that course unnecessary the new parts of this section were introduced.

The word "indictment" includes a coroner's inquisition whereby any person is charged with murder or manslaughter, or as an accessory before the fact to either of those offences; indeed, it is the term most appropriately applied to such an inquisition; for the term inquisition includes all inquests before the coroner, whether terminating in a charge against any person or not, and whether held in a case of death or otherwise: e. g. in a case of treasure trove. All our best law writers apply the term indictment quite as often as inquisition to a coroner's inquisition charging any one with any of the above offences. See 2 Inst. 32, 550; 4 Inst. 271; 2 Hale P. C. 61, 64, 65, 66; 2 Hale P. C. 130; 2 Hawk. P. C. c. 9, ss. 15, 16, 17, 22, 26, 35, and c. 25, ss. 6, 119, 128. Lord Coke also, 3 Inst. 134, and Hawkins, 2 Book, c. 25, passim, whilst treating of indictments, introduce such coroners' inquisitions. In Borough v. Holcroft, 2 Leon. 160, and Wrote v. Wigges, 4 Rep. 45, which were appeals of murder, the defendants pleaded auterfois acquit on coroners' inquisitions, and in the pleas the inquisitions appear to have been called indictments. The legislature also in the 1 & 2 Will. and Mary, c. 13, s. 5 (repealed by the 7 Geo. 4, c. 64, s. 32), call a coroner's inquisition "the inquisition or indictment." And the 2 & 3 Edw. 6, c. 24, s. 2 (repealed by the 9 Geo. 4, c. 31, s. 1, from the 1st of June, 1828, except as to offences previously committed), enacts that where any person shall be feloniously stricken or poisoned in one county and dies in another, an indictment found where the death happened, whether found before the coroner or before justices, &c., shall be good, &c.; and every coroner's inquest that has been held whilst the 2 & 3 Edw. 6, c. 24, continued in force, has been held by virtue of the word "indictment" in that Act. So that there can be no doubt whatever that a coroner's inquisition which finds any person guilty of the above mentioned offences is an indictment. In 1842 in Reg. v. Great Western Railway Company, 3 Q. B. 333 (43 E. C. L. R.), the Court applied the term indictment, in the 2 & 3 Edw. 6, c. 24, s. 2, to an inquisition for feloniously striking or poisoning. See also Reg. v. King, 2 Cox C. C. 95, and the introduction to Greaves' Cr. Acts, p. xvi, 2d Ed. (u) Reg. v. Ingham, 10 Law T. 456, B. R. 9 Cox C. C. 508.

1 In a prosecution for murder, the defendant may be convicted, though it turns out that the mortal wound was given with a different weapon from the one mentioned in the indictment: People v. Townsend, 3 Hill 479. An indictment for murder, by poison, need not specify the particular kind of poison; and if it do so state, it will not be necessary that the proof correspond: Carter v. State, 2 Cart. 617. An indictment for murder need not set out the length, breadth, or depth of the wound: Lacier v. Comm., 10 Gratt. 708.

*There can be no doubt that, where several join in a murder, both the

*767] principal in the first and the principal in the second degree may be charged that they feloniously, wilfully, and of their malice aforethought murdered the deceased; and thus the difficulties which arose in first charging the principal in the first degree, and then alleging that the principal in the second degree was present aiding and assisting, may be avoided. And as the 24 & 25 Vict. c. 94, s. 1,(k) has made accessories before the fact liable to be indicted as principals, it is equally clear that an indictment may charge an accessory before the fact and a principal in the same manner in which we have stated that two principals may be charged. And there is this great advantage in adopting each of these courses; that on such an indictment it is quite immaterial which of the prisoners was principal in the first degree in the one case, or whether the party were accessory before the fact or a principal in the other case, and consequently the jury will be relieved from considering these questions.()

This clause has made it quite unnecessary to retain in this chapter many cases which were decided on the allegations in the indictments which are rendered unnecessary by it, as well as on the questions which had arisen whether those allegations were supported by the evidence.

This clause has also got rid of the difficulty of proving what the cause of death was, as it is clear that, if the jury are satisfied that the deceased was killed by any means, that is sufficient, although it may be impossible to prove what those means were. It was always necessary to state, that the act by which the death was occasioned *768] was done feloniously, and especially that it was done of malice aforethought, (m) which, as we have already seen, is the great characteristic of the crime of murder;(n) and it must also be stated, that the prisoner murdered the deceased.() If the averment respecting malice aforethought be omitted, and the indictment only allege that the stroke was given feloniously, or that the prisoner murdered, &c., or killed, or slew the deceased, the conviction can only be for manslaughter." (p)

66

Where an inquisition, after correctly charging the principal in the first degree, alleged that the two other prisoners, at the time of the felony aforesaid “(to wit) on the day and year aforesaid, at the parish aforesaid, in the county aforesaid, were feloniously present, then and there abetting, aiding, and assisting the said N." &c., it was objected that the word " feloniously" only applied to "present," and not to abetting, aiding, and assisting;" and it was held that the inquisition was bad on this ground. (q) And where an indictment for murder, after correctly charging the principal in the first degree, proceeded to alleged that "at the time of the felony and murder was committed (to wit)" &c., precisely in the same terms as in the ceding case, and, upon demurrer, it was objected that the indictment was bad, and that case was relied upon as in point; Coltman, J., said, that it was a grave authority in support of the objection, but he would reserve the point, as the case was so serious a one: it was further objected that the bad English made the averment insufficient, but Coltman, J, was inclined to think that the word "was" might be rejected, he however would reserve this point also. (r)

pre

Where the grand jury return the bill of indictment only a true bill for manslaughter, and ignoramus as to murder, it is stated to have been the usual course to strike out, in the presence of the grand jury, the words "maliciously" and " of malice aforethought," and "murder," and to leave only so much as makes the bill to be one for manslaughter;(s) and this appears to be the practice at the present

(k) Ante, p. 67.

(1) See Reg. v. Downing, 1 Den. C. C. 52, ante, p. 707.

(m) 2 Hale 186, 187; Staund. P. C. 130; Bradley v. Banks, Yelv. 205.

(n) Ante, p. 667, et seq.

(0) 2 Hawk. P. C. c. 23, s. 77; Anon., Dy. 304, post, note (p).

(p) 1 East P. C. c. 5, s. 116, p. 345, 346; 2 Hale 186.

(9) Rex v. Nicholas, 7 C. & P. 538 (32 E. C. L. R.), Littledale and Patteson, Js.

(r) Reg. v. Phelps, C. & M. 180 (41 E. C. L. R.), and MSS., C. S. G. The principals in the second degree were acquitted, so it became unnecessary to reserve the points.

C. S. G.

(8) 2 Hale 162.