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provision be made respecting it; and as this has never been done, it is in full force at present. It seems, however, to be the better opinion that it is merely declaratory of the common law, passed to

prevent the too indiscriminate compassion of juries who admitted [*747] * that to be an alleviation of homicide which still left it murder in

law. Kel. 55. 1 Hale, 456. Fost. 298. And, indeed, it seems ex-
ceedingly difficult to discover what this act has rendered capital
which was not so on general principles; for surely it follows from
the cases already considered, that where one man stabs another
who has drawn no weapon to oppose him, neither in self-defence,
nor in support of public justice, it is primâ facie murder. The
statute indeed dispenses with the proof of express malice, but
this, we have seen, is never requisite. At all events, the construc-
tion of this act has rendered it almost nugatory, if ever it appear. .
ed severe. Thus the case of a husband who takes another in the
act of adultery with his wife, has been holden not to be within it.
i Hale, 486. Sir Tho. Raym. 212. So where an officer entered
violently and abruptly into a gentleman's chamber early in the
morning to arrest him, without telling him his errand, or using
any words of arrest, and the party ignorant of his official capacity,
on the first surprise took down a sword that hung near and stab-
bed him, it was ruled manslaughter only, though the indictment
was framed on the statute. 1 Hale, 470. Fost. 298. And where
any blow has been struck by the deceased, the act will not aggra-
vate the offence, though the first assault proceeded from the de-
fendant. Sir W. Jones, 340.(e) Nor will the act affect cases of
justifiable homicide, though within its letter. For where a man
was beset by thieves in his house, who neither strike him nor
have any weapon drawn, and he stabs one of them, he is not within
the act. Fost. 298. And if on a false alarm of thieves, the mas.
ter of the house killed one of his family by mistake, who had con-
cealed himself in a closet, this was only holden to be homicide
by misfortune. Cro. Car. 538.

With respect to what offences come within the words of the statute, it has been laid down, that shooting with any kind of fire

(e) This case is questioned by Lord Holt, Skin. 668.

arms, or thrusting from a staff or other blunt weapon is intended by the terms “ stab or thrust," i Hale, 470. And this rule will extend to shooting with a bow or sling, or using any instrument to produce death by incision in the hand of the party at the instant of discharging it, but not to throwing any kind of missile instru. ments or substances from the hand itself, so that no weapon remains in it at the time the stroke is given, Fost. 300. A stroke with a hammer is not stabbing within the intent of the statute, Sir W. Jones, 432. Kel. 131. The person stabbed must also, to bring the case within the act, have no weapon then drawn, nor have first stricken. A common cudgel or other instrument fit for defence or annoyance * is holden to be a weapon drawn within this [*7487 exception, though not a small wand or cane which could do no serious injury, 1 Hale, 470. And a sword within its scabbard could scarcely be thus described, and yet, as Mr. Justice Foster observes, there are some swords still remaining which probably have not been drawn since the revolution, as well fitted for attack or defence as an ordinary cudgel, Fost. 301. Whether the word then in this part of the act is to be confined to the instant of the stab, or extended to the whole of the combat, seems still to be undetermined, and it is a question on which the judges have been cqually divided, and it seems alınost equally doubtful whether the term “ first stricken," means gave the first blow, or had struck at all previous to the stabbing, Sir W. Jones, 340. Skin. 668, ante 747*. Certain it is, that in no case is any aider, abettor, or accessary ousted of clergy by this provision, for as they are not named in the act the law will never presume they were intended, 1 Hale, 468, 9. Alleyn, 44. I Ld. Raym. 141. ante 1 vol. 260*. And it seems that in indictments on this act, the main question is, after all, whether the defendant be guilty of murder at common law, or to what degree is the killing reduced by the circumstances by which it was preceded, Fost. 301, 2. The enactments in the 4.3 Geo. III. c. 5. as to stabbing, &c. with intent to murder, &c. will hereafter be considered.

The Indictment. It is said to have been the former practice to the in. prefer two indictments, one for murder at common law, and the dictment. other for manslaughter under the statute, that if the defendant were acquitted on the former he might be tried on the latter: but, as we have seen nearly the same evidence would be required to support both, it is not now the course to rely on more than one of

them, 1 Hale, 468. Fost. 299. The indictment under the statute must precisely follow its language, and must state, that the pri. soner did with a sword, &c. stab the deceased, he having no weapon drawn, nor having struck first, or he can only be found guilty of common manslaughter, and must be admitted to his clergy, 2 Hale, 170. It seems also that it is necessary to state, that the deceased died within six months after he received the injury, or, at all events, that must appear on the face of the proceedings, 1 East, P. C. 347, 8. As, under this act, clergy is taken away only from the individual actually stabbing, the fact must be laid truly, and not as in murder at common law indiscriminately as the stroke of all, or indifferently as that of either, ante 1 vol. 260*. And, therefore, if one be indicted for stabbing, and two others for aiding and abetting, and it be proved that one of the latter gave the

stroke, all must be admitted to clergy, though they may be found (*749] guilty of manslaughter, as the * two abettors might have been, had

the indictment been correct as to the principal. The indictment usually concludes, contrary to the form of the statute , but this is unnecessary, as no new offence is created and only an old privivilege is taken away, 1 Hale, 468, 9. ante 1 vol. 290*. Where it is found that the prisoner has been guilty of manslaughter at common law only, these words may be rejected as surplussage.



The of. fence.

The Offence, &C.~Until lately an anomalous rule of evidence existed respecting the murder of illegitimate children. By the 21 Jac. 1. c. 27, it is enacted, that if any woman be delivered of a child, which if born alive should by law be a bastard, and endeave our privately to conceal its death, the mother should be deemed to have murdered it, unless she could prove that it was born dead by the testimony of one witness. It is unnecessary to enter on

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the constructions of this statute, because it is repealed by 43 Geo. III. c. 58, which enacts, " that the trials of women charged with the murder of an issue of their bodies, male or female, which being born alive, would by law be bastard, shall proceed and be governed by the like rules of evidence and presumption, as are by law allowed in respect of other trials of murder, provided that it shall be lawful for the jury, by whose verdict any prisoner charged with such murder shall be acquitted, to find, if it so appear in evidence, that she did by secret burying or otherwise, endeavour to conceal the birth thereof; and thereupon it shall be lawful for the court to commit such prisoner to the common gaol, or house of correction, for any time not exceeding two years.” It has been holden that the liberty given to the jury by the last clause of this act to find the defendant guilty, applies not only to case where she is indicted, but where she is tried on the inquisition of the coroner, 2 Leach, 1095, 3 Campb. 371.




Essex, to wit, (f) the jurors for our lord the king upon their General oath present, that A. B. late of , in the parish of in the county of — , labourer, (s) not having the fear of God ment &

conclusion before his eyes, but being moved and seduced by the instigation of an inof the * devil, (h) on the day of — (i) in the

dictment for mur. der. (e)

[*751] (e) See form Cro. C. C. 8th of the defendant, see 1 vol. 202 Ed. 272. 4 Bla. Com. Append. II. to 217", and ante 2 vol. 1*, 2*, 3*. Co. Ent. 354. b. 355 a. 355.b.

(h) These words are usually in- . (s) The venue is to be laid serted in indictments for murder, where the death occurred. See 2 but they do not appear to be requi. and 3 Edw. VI. c. 23, ante 733*. site, Burn J. Indictment IX. 6 East. and ante 1 vol. 179*.

472. 3, 4. ante 1 vol. 245*.
(8) As to the name and addition (i) A day must be stated when

year of the reign of our sovereign lord George the third, by the grace of God, of the united kingdom of Great Britain and Ireland, king, defender of the faith, with force and arms, (k) at the parish aforesaid, in the county aforesaid, in and upon one E. F., (!) in the peace of God and our said lord the king then and there being, (m) feloniously, (n) wilfully and of his malice aforethought (o) did make an assault and that, † &c. [here state the means and manner of the killing, and the consequent death according to the facts, as in the succeeding precedents, and the general principles affecting which statement are considered ante 734*, 5*, 6*, and then con. clude thus.] And so (1) the jurors aforesaid, upon their oath aforesaid, do say, that the said A. B., him the said E. F. in the manner and by the means (or “ in manner and form”) aforesaid, (9) (or in the conclusion of a second or subsequent count, “last aforesaid,"') feloniously, (r) wilfully, and of his malice aforethought, (8) did kill and murder, (1) against the peace of our said lord the king, his crown and dignity.

the assault was made, though a (n) As to the necessity for this variance from the real time is im- statement, though of a seeming material, ante 736*. and 1 vol. 222*. conclusion from the premises, see 224.

ante 737*. and ante 1 vol. 232*. (k) These words are unneces. 243*, sary, as the force is implied from (9) Same precedent, allege time the nature of the offence, Hawk. and place, as “then and there, B. 2. c. 23. s. 85. id. c. 25. s. 90, 1. feloniously, &c.” see Hand. Prac. 2 Hale, 187. ante 733*, 4*. and ante 422. but this is unnecessary, and 1 vol. 240®, 1'. *

it seems better to omit these words, (1) How to describe the party ante 736., 7*. Hawk. b. 2. c. 23. s. killed, see ante 733*. and ante 1 88. vol. 211., &c.

(r) The term “feloniouslyis (m) This allegation is unneces- essential, supra, note o. sary, and if the party deceased (8) The omission of the words were breaking the peace, the aver. " malice aforethought,will renment would be improper, 4 Co. 41. der the indictment merely a pro. b. 1 East, P. C. 345. 2 Hale. 186. secution for manslaughter, ante ante 733*,

737, and ante 1 vol. 243'. 2 Hale, (n) This word must be inserted, 187. as in case of other felonies, Cro. • () The term “murder" is es. Eliz. 193.

sential to an indictment for mur. (0) This allegation is absolutely der, and if omitted, the prosecution necessary in a charge of murder: will be merely for manslaughter, where manslaughter only is meant, ante 737. and ante 1 vol. 243*. ? they are omitted, 1 Hale 187, Hale, 187. Dyer, 261. a. ante 737*.

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