33 Hen. 8, for the murder of another British subject, though the murder were within the dominions of a foreign state; and that the indictment need not allege in terms that either the deceased or the offender were British subjects: the statement that the person murdered was at the time in the King's peace, being considered a sufficient allegation that he was a British subject; and the conclusion in the indictment that the offence was against the King's peace, being considered as shewing sufficiently that the offender was a British subject. The indictment charged, in substance, that the prisoner, at Lisbon, in the kingdom of Portugal, in parts beyond the seas without England, one H. G., in the peace of God and of our lord the King, then and there being, feloniously did assault, shoot, and murder, against the peace of our said lord the King. After a conviction upon this indictment, it was objected-1st, That the offence being out of the King's dominions, and within the dominions of a foreign state, was not triable under the 33 Hen. 8 ; and, 2nd, that the prisoner and the deceased should have been stated to have been subjects of our lord the King at the time. But, after argument, the judges held that the offence was triable here, though committed in a foreign kingdom, the prisoner and the deceased being both subjects of this realm at the time; and that the stating H. G. to be in the King's peace at the time, sufficiently imported that he was the King's subject at the time; and that the statement that this was against the King's peace, sufficiently imported that the prisoner was also a subject of this realm at that time. (s) But it has since been held, upon the 9 Geo. 4, c. 31, that The indictthe indictment must aver, that the prisoner and deceased were subjects of his Majesty, but that the declarations of the prisoner were evidence to go to the jury to prove this fact. The indictment the deceased charged the murder to have been committed "at Boulogne, in the kingdom of France, to wit, at the parish of St. Mary-le-Bow, in the ward of Cheap, &c." The grand jury objected to finding the bill, as it stated the death to have occurred in two different places. Bayley, J. (having conferred with Bosanquet, J. and the Recorder), directed the words "to wit, at the parish of St. Mary-le-Bow, in the ward of Cheap, &c." to be struck out. His Lordship also said, that it was deemed by the Court to be necessary to have inserted in the bill an allegation that the prisoner and the deceased were subjects of his Majesty; and the bill was so amended accordingly. Upon the trial it appeared, that the deceased was killed in a duel at Boulogne, and that he was an Englishman, born at Islington; and the prisoner had said he was an Irishman, and had come from Kilkenny. It was objected that, under the 9 Geo. 4, c. 31, it was necessary to prove that the parties were natural born subjects of his Majesty; the present act differed from the 33 Hen. 8, c. 23, the words of which were "any person or persons." It never could have been intended that this act should apply to foreigners domiciled in England, or naturalized either by act of Parliament, or by service to the state. That it was necessary to prove, by some one acquainted with the fact, where the prisoner was born, which was a fact the prisoner

(s) Rex v. Sawyer, East. T. 1815. MS. Bayley, J., and Russ. & Ry. 294. Another objection was that the indictment ought to

have concluded contra formam statuti: but
that was also overruled.

ment must

state that the prisoner and

were British subjects.

9 Geo. 4,
c. 31, s. 8.
Provision for
the trial of

murder and

manslaughter,

where the death, or the cause of death

only, happens in England.

could not know of his own knowledge. But it was held, that the declaration of the prisoner, unexplained, was, as against himself, cvidence to go to the jury; and the case was left to the jury to say, whether they were satisfied by the evidence that the prisoner was a British born subject; for that they must be quite satisfied that such was the fact before they could pronounce him guilty. (t)

Where an indictment for manslaughter, stated that the prisoner being a subject of his Majesty, on land out of the United Kingdom, to wit, at Zanzibar, in the East Indies, did make an assault on J. K., and did give him divers mortal wounds, &c., of which he died, at Zanzibar aforesaid, and it appeared that the prisoner, a Spaniard, being in England, entered into certain articles to serve in a ship bound on a voyage to the Indian seas, and elsewhere, on a seeking and trading voyage (not exceeding three years' duration), and back to the United Kingdom, and on the ship's arrival at Zanzibar, an island in the Indian seas, under the dominion of an Arab king, the captain left the vessel, and set up in trade there, and engaged the prisoner (who was a black, and said to be by birth the son of a governor on another part of the African coast), to act as interpreter, the new captain not requiring his services, but the rest of the crew not consenting. The ship went one or two short voyages without the prisoner, and having returned to anchor in a roadstead, a few hundred yards from Zanzibar, and the crew being allowed to go on shore, some dispute arose between the prisoner and the deceased, who was one of the crew, which led to the blows on the land, of which the deceased afterwards died on board the ship. It was held that there was no evidence of the prisoner being a British subject or under British protection. To claim his allegiance, it must at least be shewn, that he was under British protection. And although he was on board a British ship for a time, yet it seemed as if the articles were abandoned, and he was living on shore, and had been so for months. And, secondly, that the offence was alleged to have been committed on land out of the United Kingdom, but though the blows were given on land, the death took place on board ship, and there was no clause in the 57 Geo. 3, c. 53, providing for such a case. (u)

Where a person was struck, &c. upon the high seas, and died upon shore, it was holden that the admiral had no cognizance of the offence by virtue of his commission. (uu) And it was doubtful whether such offence could be tried at common law: (v) the 2 Geo. 2, c. 21, therefore made provision for such cases, but that act was repealed by the 9 Geo. 4, c. 31, which, by sec. 8, enacts, "that 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 fe

(t) Rex v. Helsham, 4 C. & P. 394, coram Bayley and Bosanquet, Js., and Knowlys, R.

(u) Rex v. M. A. de Mattos, 7 C. & P. 458, Vaughan and Bosanquet, Js. It was doubted in this case by Rolfe, S. G., whether the limitation put upon the 9 Geo. 4, c. 31, s. 7, in Rex v. Helsham, was correct, and the Court seem to have thought that that construction was too narrow. Vaughan,

J., in charging the grand jury said, "there are other ways which may constitute a man a British subject; as, for instance, he may owe allegiance for protection:" and the case was decided on the ground that the prisoner was not a British subject in any sense of those words. C. S. G.

(un) 2 Hale, 17, 20. 1 East, P. C .c. 5, s. 131, p. 365, 366. Ante, 101. (v) Id. and 1 Hawk. P. C. c. 31, s. 12.

loniously 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 manslaughter, or of being accessory 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."

Where a person standing on the shore of a harbour fired a loaded musket at a revenue cutter which had struck upon a sandbank in the sea, about a hundred yards from the shore, by which another was maliciously killed on board the boat, it was holden that the trial must be in the Admiralty Court, and not at common law. (v)

Provision for

at sea.

Not to affect the laws relating to the

forces

indictment.

the party

killed.

The 9 Geo. 4, c. 31, s. 32, enacts, "that all indictable offences 9 Geo. 4, mentioned in this act, which shall be committed within the jurisdic- c. 31, s. 32, tion of the Admiralty of England, shall be deemed to be offences of offences the same nature, and liable to the same punishments, as if they had against this act been committed upon the land in England, and may be dealt with, committed inquired of, tried, and determined in the same manner as any other offences committed within the jurisdiction of the Admiralty of England: (vv) provided always, that nothing herein contained, shall alter or affect any of the laws relating to the government of his Majesty's land or naval forces." A few of the general rules relating to the form of the indict- Form of the ment may be mentioned in this place. If the name of the party killed be known, it should be correctly Description of stated in the indictment; but it is sufficient to describe a party by the name by which he is commonly known. (w) A peer should properly be described only by his christian name, and his name of dignity; as James, Duke of G. (x) But it seems that he may be described by his surname also; as William Byron, Baron Byron. (3) And 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. (2) If the name of the party killed be not known, it may be laid to be a certain person to the jurors unknown. (a) An indictment must either state the name of the party killed, or that the party 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 held that the

(v) Rex v. Coombes, 1785-6. 1 Hawk. P. C. c. 37, s. 17. 1 Leach, 388. 1 East, P. C. c. 5, s. 131, p. 367, ante, 102.

(vv) All offences committed within the jurisdiction of the Admiralty may be tried in the Central Criminal Court, by the 4 & 5 Wm. 4, c. 36, s. 22, ante, p. 104.

(w) 2 Hale, 237; Rex v. Norton, R. & R. 510. Rex v. Williams, 7 C. & P. 298, Williams, J., and Alderson, B. Rex v. Berriman, 5 C. & P. 601, Parke, J. (r) 2 Inst. 666.

(y) 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.

(z) Reg. v. Pitts, 8 C. & P. 771, Erskine, J.

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

A bastard

must not be described by its mother's name till gained by reputation

Smith's case.

Waters' case.

Evans' case.

Statement of

66

objection was good, and the judgment was arrested. (b) 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 that as there was nothing but the name to identify it in the indictment, the conviction could not be supported. (c) 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. (d) 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. (e) 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 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 child was ever called Waters at all. (ƒ) It is not necessary to state the addition of the party killed, though it may sometimes be convenient to do so for the sake of distinction. (g) Nor is it necessary to allege that the party killed was "in the peace of God and of our Lord the King, &c.," though such words are commonly inserted, for they are not of substance, and perhaps the truth may be that the party was at the time actually breaking the peace. (h) If a constable, watchman, or other minister of justice, be killed in the execution of his office, the special matter need not be stated, but the offender may be indicted generally of murder by malice prepense. (i)

The indictment should in all respects be adapted as closely to

(b) Reg. v. Biss, 2 Moo. C. C. R. 93. 8 C. & P. 773.

(c) Rex v. Clark, East. T. 1818. MS. Bayley, J., and Russ. & Ry. 358.

(d) Rex v. Smith, R. & M., C. C. R. 402. 6 C. & P. 151, S. C.

(e) Rex v. Waters, R. & M. C. C. R. 457, 7 C. & P. 250.

(f) Reg. v. Evans, 8 C. & P. 765. Erskine and Patteson, Js. See Rex v. Sheen, 2 C. & P. 639.

(g) 2 Hale, 182.

(h) 2 Hawk. P. C. c. 25, s. 73. 2 Hale, 186.

(i) Rex v. Mackally, 9 Rep. 68. 1 Hale, 460. 12 Rep. 17.

of death agree

in substance

with that

the truth as possible. It is essentially necessary to set forth par- the manner of ticularly the manner of the death, and the means by which it was the death, and the means by effected: () and this statement may, according to the circum- which it was stances of the case, be one of considerable length and particu- effected. larity. (k) But it will be sufficient if the manner of the death It is sufficient proved agree in substance with that which is charged. Therefore if the manner if it appear that the party were killed by a different weapon from that described, it will maintain the indictment: as if a wound or bruise alleged to have been given with a sword be proved to have charged. been given with a staff or axe; or a wound or bruise alleged to have been given with a wooden staff, be proved to have been given with a stone. So if the death be laid to have been by one sort of poisoning, and it turn out to have been by another, the difference will not be material. So if an indictment allege that a woman "with both her hands about the neck" of a child, did press and squeeze, and thereby suffocated and strangled the child, it is sufficient to prove that the child came by its death by strangulation or suffocation, and it is not necessary that the prisoner should have done it with her own hands, for if it was done by any other person in her presence, she being privy to it, and so near as to be able to assist, that is sufficient. So where a count charged the death to be by suffocation, by the prisoner having placed her hand on the mouth of the deceased, and the evidence was that the deceased had died from suffocation and pressure; it was held that, if any violent means were used to stop respiration, and the death was thereby caused, the count was proved. (m) But if a person be indicted for one species of If one kind of killing, as by poisoning, he cannot be convicted by evidence of a killing is species of death entirely different, as by shooting, starving, or charged and strangling. (n) So where an indictment charged that the prisoner it is insufficient. struck the deceased with a piece of brick, and it appeared probable, not that the prisoner struck with the brick, but that the prisoner struck with his fist, and that the deceased fell from the blow upon the piece of brick, and that the fall on the brick was the cause of the death; it was held, upon a case reserved, that, as the indictment did not contain any charge of throwing the deceased down, the prisoner ought to have been acquitted. (o) So where the indictment charged the death by striking and beating on the head, and the evidence was that the prisoner knocked the deceased down by a blow upon the head, and that in falling upon the ground the deceased received a mortal wound; it was held, upon a case reserved, that the cause of death was not truly stated. (p) So where the indictment charged the wound to have been inflicted by a blow with a hammer held in the prisoner's hand, and the injury might have been occasioned by a fall against the lock or key of a door; it was held, that if the injury

(5) East, P. C. c. 5, s. 107, p. 341. (k) As in the case of Jackson and others, 9 St. Tri. 715, (ed. by Hargr.) where the indictment stated a murder by a long course of barbarous usage. But see post, as to the statement of special circum stances.

(1) Rex v. Culkin, 5 C. & P. 121. Parke, J. J., Park, J. A. J., and Bolland, B. The allegation" about the neck was also held sufficiently certain, as it means round the neck, though circiter pectus would

another proved,