CHAPTER II.

OFFENCES AGAINST THE PERSONS OF INDIVIDUALS.

SECT. 1. Murder.

2. Manslaughter.

3. Assault, Battery, &c.

4. False Imprisonment.

5. Abduction.

6. Rape.

7. Sodomy.

SECT. 1.

Murder.

Indictment for murder, by stabbing.

MIDDLESEX, to wit:-The jurors for our lord the King upon their oath present, that J. S., late of the parish of B., in the county of M., labourer, not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, on the third day of May, in the first year of the reign of our sovereign lord William the Fourth, with force and arms, at the parish aforesaid, in the county aforesaid, in and upon one J. N., in the peace of God and our said lord the King, then and there being, feloniously, wilfully, and of his malice aforethought, did make an assault; and that the said J. S., with a certain knife, of the value of sixpence, which he the said J. S. in his right hand then and there had and held, the said J. N., in and upon the left side of the belly, between the short ribs of him the said J. N., then and there feloniously, wilfully, and of his malice aforethought, did strike and thrust, giving to the said J. N. then and there, with the knife aforesaid, in and upon the said left side of the belly, between the short ribs of him the said J. N., one mortal wound, of the breadth of three inches, and of the depth of six inches; of which said mortal wound the said J. N., from the said third day of May, in the year aforesaid, until the fifteenth day of the same month of May, in the year aforesaid, at the parish aforesaid, in the county aforesaid, did languish, and languishing did live; on

which said fifteenth day of May, in the year aforesaid, the said J. N., at the parish aforesaid, in the county aforesaid, of the said mortal wound died: and so the jurors aforesaid, upon their oath aforesaid, do say, that the said J. S. the said J. N., in manner and form aforesaid, feloniously, wilfully, and of his malice aforethought, did kill and murder; against the peace of our lord the King, his crown and dignity. As to the venue, see ante, p. 20. Upon this indictment, the defendant may be acquitted of the murder, and found guilty of manslaughter. Vide post.

Felony, death. 9 G. 4, c. 31, s. 3. The sentence must be pronounced immediately after conviction, unless there be reasonable cause for postponing it, and the defendant must be executed on the day next but one after that on which the sentence is passed, unless that day be Sunday, when the execution must take place on Monday. The sentence must express the usual judgment of death, the time when the execution is to take place, and that the body of the defendant be dissected or hung in chains, as the court shall direct. After sentence, the judge may stay the execution. 9 G. 4, c. 31, s. 4. Where that part of the sentence which relates to the dissection of the body was omitted by the judge, it was doubted whether it was not an essential part of the sentence, and the defendant was pardoned. R. v. Fletcher, R. & R. 58. But where

the judge having mistaken the time of execution, called the defendant again to the bar and rectified it, it was holden by some of the judges that the statute was in this respect merely directory, and that the judge might order the defendant to be executed at any time within forty-eight hours; but all the judges were of opinion that a mistake in this respect might be rectified at any time during the assizes. R. v. Wyatt, R. & R. 230.

Evidence for the Prosecution.

In and upon one J. N.]-It must be proved that J. N. was the person killed; otherwise the defendant must be acquitted. Ante, p. 31. If the name of the deceased be unknown, it should be stated so in the indictment. Id.

In the peace of God and our said lord the King]-This does not require proof. If the deceased, however, were an alien enemy, and killed in the actual heat and exercise of war, this is matter of justification, which may be proved upon the part of the defendant. See 1 Hale, 433. But it is no matter either of excuse or justification, that the deceased was a Jew, an outlaw, or one attainted of felony or præmunire. Id.

With a certain knife, &c.]—It is not necessary to prove this strictly as laid; if it be proved that the deceased was killed with any other instrument, as with a dagger, sword, staff, bill, or the

like, capable of producing the same kind of death as the instrument stated in the indictment, the variance will not be material. R. v. Mackally, 9 Co. 67 a. Gilb. Ev. 231. But if the species of death would be different, as, if the indictment allege a stabbing or shooting, and the evidence prove a poisoning or starving, the variance would be fatal; Id.; and the same, if the indictment state a poisoning, and the evidence prove a starving. Thus, where an indictment stated that the defendant assaulted the deceased, and struck and beat him upon the head, and thereby gave him divers mortal blows and bruises, of which he died, and it appeared in evidence, that the death was caused by the deceased falling on the ground in consequence of a blow on the head received from the defendant, it was holden that the cause of the death was not properly stated. R. v. Thompson, R. & M. 139. And the same where an indictment charged that the defendant struck the deceased with a brick, and it appeared that he knocked the deceased down with his fist, and that the deceased fell upon a brick which caused his death. R. v. Kelly, R. & M. 113. But if the indictment allege a death by one kind of poison, proof of a death by another kind of poison will support the indictment. Id. and see 2 Hale, 185, 186. 2 Hawk. c. 23, s. 84. And where an indictment for the murder of a bastard child stated that the defendant forced and thrust moss and dirt into its throat, mouth, and nose, and that by forcing and thrusting the moss and dirt into the throat, mouth, and nose of the child, the child was choaked &c., and it appeared that the child was not immediately suffocated by the moss and dirt, but that the moss and dirt caused an injury and inflammation in the throat, which closed the passage to the lungs and stomach, of which the child died; it was holden, that the evidence supported the indictment, and that it was sufficient to state the proximate cause of the death, without stating the intermediate process resulting from that proximate cause. R. v. Tye, R. & R. 345.

The value of the instrument is immaterial. It seems to be stated in the indictment, because the instrument is forfeited as a deodand to the King, and the township is liable for the value of it, if it be not forthcoming. See 2 Hale, 185.

In his right hand, &c.]—It is necessary to allege in the indictment in which hand the defendant held the weapon; 2 Hale, 185; but it is not necessary to prove it; and, therefore, the want of this allegation can now only be objected to by demurrer. 7 G. 4, c. 64, s. 20. See ante, p. 77.

In and upon the right side]-The indictment must shew, with certainty, in what part of the body the deceased was wounded; and, therefore, if it allege the wound to have been on the arm, hand, or side, without saying whether the right or the left, it is bad. 2 Hale, 185. In this and in other

instances, there is a particularity required in an indictment for murder, that it would be ridiculous to attempt to account for, or justify; for the same strictness is not required as to the evidence necessary to support it; if, for instance, the wound be stated to be on the left side, and proved to be on the right, or alleged to be on one part of the body, and proved to be on another, the variance is immaterial; 2 Hale, 186; and, for this reason, the objection can now only be taken by demurrer. 7 & 8 G. 4, c. 64, s.20. See ante, p. 77.

Of his malice aforethought]-The law presumes every homicide to be murder, until the contrary appears. Fost. 255. Therefore the prosecutor is not bound to prove malice, or any facts or circumstances, besides the homicide, from which the jury may presume it; and it is for the defendant to give in evidence such facts and circumstances as may prove the homicide to be justifiable, or excusable, or that at most it amounted to but manslaughter. Vide post.

Did strike and thrust]—In all cases where the death is caused by personal violence, it is essential to the indictment that it should allege that the defendant struck the deceased; see 5 Co. 122 a. 2 Hale, 184. 2 Hawk. c. 23, s. 82; and it must also be proved. But we have seen, (ante, p. 309), that it is not necessary to prove that he struck him with the instrument mentioned in the indictment; and therefore, although the indictment allege that the defendant did strike and thrust, proof of a striking which produced contused wounds only, would maintain the indictment.

In cases of express malice, the homicide is usually committed in secret, and it is rarely practicable to substantiate it by direct and positive testimony; in most cases, the defendant is convicted upon circumstantial evidence merely. Upon this subject it is only necessary to refer to what has been already said upon the doctrine of presumptions, ante, p. 113-115, repeating here merely the rule laid down by Lord Hale, never to convict a man of murder or manslaughter, on circumstantial evidence alone, unless the body have been found. 2 Hale, 290.

In cases of implied malice, (vide post), the homicide is usually committed in the presence of others, who may prove it; if not, it must be proved by circumstantial evidence.

One mortal wound of the breadth, &c.]—It was formerly considered to be necessary to state in an indictment for murder the length and breadth of the wound in all cases where it was possible to do so; but not where a limb was cut off or the wound was a contused wound merely. 2 Hale, 186. But it never was necessary to prove the wound as laid; Ib.; and it has been decided by ten judges that it is not necessary to state in an indictment for

murder the length, breadth, or depth of the wounds. R. v. Mosley, R. & M. 97.

Of which said mortal wound, &c.]-The dates here stated in the indictment need not be proved as laid. All that is necessary to be proved, to support this part of the indictment, is, that the deceased died of the wound or wounds given him by the defendant, within a year and day after he received them; for if he died after that time, the law would presume that his death had proceeded from some other 'cause than the wounds. 1 Hawk. c. 23, s. 90.

If a man be wounded, and the wound turn to a gangrene or fever for want of proper applications or from neglect, and the man die of the gangrene or fever: this is a homicide, and murder, or not, according to the circumstances under which the wound was given. 1 Hale, 428. But if it appeared that the man's death was caused by improper applications to the wound, and not by the wound itself, it would be otherwise. Id.

Evidence for the Defendant.

The defendant has to prove, either that the murder was not committed by him, or that the offence actually committed does not amount to murder. This defence may be, and frequently is, made out by the examination in chief of the witnesses for the prosecution; but if not, it may be proved from their cross-examination, or by witnesses called upon the part of the defendant.

We have seen (ante, p. 310) that the prosecutor is not bound to prove that the homicide was committed from malice prepense; if he prove the homicide merely, the law from thence presumes the malice. The malice, in such a case, however, is only presumed; and the defendant may rebut that presumption, by proving that the homicide was justifiable, or excusable, or that at most it amounted to manslaughter only, and not to murder.

Justifiable homicide is of three kinds:-1. Where the proper officer executes a criminal, in strict conformity with his sentence. 2. Where an officer of justice, or other person acting in his aid, in the legal exercise of a particular duty, kills a person who resists or prevents him from executing it. 3. Where the homicide is committed in prevention of a forcible and atrocious crime; as, for instance, if a man attempt to rob or murder another, and be killed in the attempt, the slayer shall be acquitted and discharged. See 9 G. 4, c. 31, s. 10. Bract. 155. 1 Hale, 488. and post.

Excusable homicide is of two kinds:-1. Where a man, doing a lawful act, without any intention of hurt, by accident kills another; as, for instance, where a man is working with a hatchet, and the head by accident flies off and kills a person standing by. This is called homicide per infortunium, or by misadventure. 2. Where a man kills another upon a sudden rencounter, merely in