of which * [Commencement as ante 750*. to the t] And that the By shooting with a said C. D. a certain pistol of the value of five shillings, (x) then pistol in and there charged with gunpowder and one leaden bullet, which the belly, said pistol he the said C D. in his right hand then and there had the party and held, (y) then and there (z) feloniously, wilfully, and of his immedi a elydied malice aforethought, (a) did discharge and shoot off, to, against, (u) and upon the said A. B.; and that the said C. D. with the leaden [*752] bullet aforesaid, out of the pistol aforesaid, then and there by the force of the gunpowder aforesaid, by the said C. D. discharged and shot off as aforesaid, then and there feloniously, wilfully, and of his malice aforethought, did strike, (6) penetrate, and wound the said A. B. in and upon the right side of the belly of him the said A. B. near the right hip (c) of him the said A. B. giving to him the said A. B. then and there with the leaden bullet aforesaid, so as aforesaid discharged and shot out of the pistol aforesaid, by force of the gunpowder aforesaid, by the said C. D. in and upon the right side of the belly of him the said A. B. near the said right hip of him the said A. B. one mortal wound (d) of the depth of four inches and of the breadth of half an inch, (e) of which said mortal (u) This precedent is from Hand. Prac. 421, and see 10 Harg. St. Tr. 139. See a similar precedent charging the bullet as "penetrating the brain," Imp. Off. Cor. App. 476. 1 Leach, 360, and post. 756. Shooting with a gun, 9 Harg. St. Tr. 315. 1 Leach, 360. 388. post. Shooting with a pistol, 6 Harg. St. Tr. 195. 10 Harg. St. Tr. 139. For shooting a constable in execution of office like the above, only adding after the word "assault," "he the said G. L. then and there being a constable of the said parish of, &c. and in the due execution of his office," which may be omitted in a 2d count, 1 Leach, 515. (x) This though usual does not seem requisite, 2 Hale, 185. (y) This is said to be essential, 2 Hale, 185; but it has been ob. served that there is no reason for VOL. II. such an averment, 1 East, P. C. (2) Time must here be stated (a) See ante 737*. and 751*. (b) The word "strike" should always be inserted where the death is caused by violence, Cro. Jac. 635. 1 Bulstr. 105. 5 Co. 122. 2 Hale, 184. 6, 7. (c) As to the description of the part where the wound or blow was given, see ante 734*, 5*. 2 Hale, 185. (d) This should be averred, 1 Leach, 96. Kel. 125. 2 Hale 186.] (e) The length and depth of the wound must be shown, in order that it may appear adequate to the production of death, 5 Co. 121, 2. 2 Hale, 186. Hawk. B. 2. c. 23 s. 81. See exception to this rule ante 734", 5". 3 S Another for murder wound he the said A. B. then and there instantly died; (f) and so, &c. [conclusion as ante 751*.] *[Commencement as ante 750* to †.] And that he the said C. D. by shoot a certain pistol of the value of two shillings, then and there being ing with a pistol, charged with gunpowder and a leaden bullet, which pistol he the where the said C. D. in his right hand then and there had and held at, party did not die against, and upon him the said A. B. then and there feloniously, immedi wilfully, and of his malice aforethought, did discharge and shoot ately. (g) [*753] off; and that he the said C. D. with the leaden bullet aforesaid, by force of the gunpowder aforesaid, out of the said pistol by him the said C. D. so as aforesaid discharged and shot off, him the said A. B. in and upon the left side of the said A. B. a little under the lowest rib of the said A. B. then and there feloniously, wilfully, and of his malice aforethought, did strike and wound, giving to the said A. B. then and there with the leaden bullet aforesaid, out of the said pistol so as aforesaid discharged and shot off, in and upon the said left side, a little under the lowest rib of the said A. B. one mortal wound of the breadth of one inch and depth of four inches, of which said mortal wound the said A. B. on and from the said, &c. until, &c. at, &c. aforesaid, did languish, and languishing did live, on which said, &c. about the hour of nine o'clock in the morning, he the said A. B. at, &c. aforesaid, of the mortal wound aforesaid, died. (h) And so, &c. [as ante <*751*.] Against several, one as Admiralty of England. (i)-The jurors for our lord the king. upon their oath present, that W. P. late of, &c. J. E. late of, &c. principal H. V. late of, &c. G. C. late of, &c. [five others of the like addidegree, tion], and divers other evil disposed persons (whose names to the jurors aforesaid are as yet unknown) not having the fear of God in the first (f) It must always be stated that he died of the injury, 2 Hale, 186. 1 Rol. Rep. 137, ante 736*. and time must be stated to the death as well as the stroke which is here sufficiently stated by the word "instantly," 1 East, P. C. 344. 2 Hale, 186. (g) This was the indictment against the Earl of Ferrers, on which he was convicted. 10 Harg. St. Tr. 480. where see the whole of the proceedings. (h) This is the proper mode of description when time intervenes between the stroke and death, see ante 736*, 7*. (i) As the venue must be laid where the death happened, and not where the cause of the death arose, the offenders were held to be properly triable at the Admiralty Sessions. 1 Leach, 388. As to the Jurisdiction of the Court of Admiralty. See 1 vol. 151 to 156. before their eyes, but being moved and seduced by the instigation others as aiders of the devil, on, &c. with force and arms, upon the high sea, within and abetthe jurisdiction of the admiralty of England, about the distance tors, for shooting of half a mile from Christchurch harbour in the county of South- on shore a person, ampton, in and upon W. A. then and there being in the peace of God and our said lord the king, feloniously, wilfully, and of their with the admiralty malice aforethought, did make an assault, and that the said W. jurisdic P. a certain gun of the value of five shillings, then and there tion. (k) charged with gunpowder and one leaden bullet, which gun he [*754] the said W. P in both his hands then and there had and held, then and there feloniously, wilfully, and of his malice aforethought, did shoot off and discharge to, against, and upon him the said W. A. and that the said W. P. with the leaden bullet aforesaid, out of the gun aforesaid, then and there by force of the gunpowder aforesaid, by the said W. P. shot, discharged, and sent forth as aforesaid, then and there feloniously, wilfully, and of his malice aforethought did strike, penetrate, and wound the said W. A. in and upon the right side of the belly of him the said W. A. giving to him the said W. A. then and there with the leaden bullet aforesaid, so as aforesaid by him the said W. P. shot, discharged, and sent forth out of the gun aforesaid, by force of the gunpowder aforesaid, in and upon the said right side of the belly of him the said W. A. one mortal wound of the depth of four inches, and of the breadth of half an inch, of which said mortal wound he the said W. A. from the said, &c. until, &c. upon the high sea aforesaid, within the jurisdiction aforesaid, did languish, and languishing did live, on which said, &c. upon the high sea aforesaid, within the jurisdiction aforesaid, he the said W. A. of the mortal wound aforesaid died; and that the said J. E., H. V., G. C. &c. [the names of the other five], and the said other persons (whose names to the jurors aforesaid are as yet unknown) at the time of committing the felony and murder aforesaid, then and there upon the high sea aforesaid, within the jurisdiction aforesaid, feloniously, wilfully, and of (k) From Cro. C. C. 7th Ed. 707. See the case reported, 1 Leach. 388. whence it appears one of the prisoners was convicted and executed. See another against principals, in 1st and 2nd degree, indictment against Reason and Tranter, 6 Harg. St. Tr. 195. See the Indictment against Taylor and Shaw, 1 Leach, 360. post. 756. on who died their malice aforethought, were present, aiding, helping, abetting, comforting, assisting, and maintaining the said W. P. to kill and murder the said W. A. in manner and form aforesaid: (/) and so the jurors aforesaid, upon their oath aforesaid, do say, that the said W. P., J. E. &c. [as before] and the said other persons (whose names to the jurors aforesaid are as yet unknown) then [*755] and there upon the high sea aforesaid, within the * jurisdiction aforesaid, feloniously, wilfully, and of their malice aforethought, in manner and form aforesaid did kill and murder the said W. A. against the peace of our said lord the king, his crown and dignity. Against a principal Middlesex, to wit. (o) [The assault was stated jointly by the in the first principal in the first and in the second degree as ante 750*.] And and in the the aforesaid R. C. with a certain gun called a pistol, of the value second de an acces where the murder was com gree, and of five shillings, then and there charged with gunpowder and one leaden bullet, which gun the said R. C. in his right hand then and sary before the fact to there had and held in and upon the aforesaid J. T. then and there a murder, feloniously, voluntarily, and of his malice aforethought, did shoot by shooting with a off and discharge, and the aforesaid R. C. with the leaden bullet pistol; aforesaid, from the gun aforesaid, then and there sent out, the aforesaid J. T. in and upon the left part of the breast of him the said J. T. then and there feloniously struck, giving to the said J. T. then and there with the leaden bullet as aforesaid, near the ty, and the left of him the said J. T. one mortal wound of the breadth of accessary pap procured half an inch and depth of five inches, of which mortal wound the aforesaid J. T. at, &c. aforesaid, () instantly died; and that J. I. feloniously and of his forethought malice, then and there was mitted in one coun in another. (n) (1) These prisoners being principals in the first degree, the mortal stroke might have been laid as given by them all, or indifferently by any one of them; and if it appeared that any one had fired, in the presence, and by the incite ment of the others, the indictment would have been supported. 3 T. R. 105. 1 Leach, 359, n. a. Fost. 351, 425. Hawk. b. 2. c. 23. s. 76. 2 Hale, 344. See the Law as to principals in the second degree, at large, 1 vol. 256* to 262*. (n) See form 9 Co. 116. Burn. J. Accessary. This was the indict ment against Lord Sanchar and his agents, on which he was convicted and executed, see 9 Co. 117. where see a full account of the proceedings. See the law of accessaries how to proceed against them, 1 vol. 261 to 275*. (0) The venue by 2 and 3 Ed. 6. c. 24. when a party is accessary in one county and the guilt is perpetrated in another, may be laid in either. (1) Though the venue is laid where the accessary proceeds, c. the murder must be laid in the true county. 3 Inst. 49. present, aiding, assisting, abetting, comforting, and maintaining the aforesaid R. C. to do and commit the felony and murder afore. said, in form aforesaid; (9) and so the aforesaid R. C. and J. C. I. the aforesaid J. T. at, &c. aforesaid, in manner and form aforesaid, feloniously, voluntarily, and of their forethought malice, killed and murdered, against the peace, &c. And that one R. C. late of, &c. esquire, not having God before his eyes, but being seduced by the instigation of the devil, before the felony and murder aforesaid, by the aforesaid R. C. and J. T. in manner and form aforesaid done and committed, that is to say, on, &c. the aforesaid R. C. at the aforesaid parish of St. Margaret in Westminster aforesaid, in the county of Middlesex aforesaid, to do and commit the felony and murder aforesaid, in manner and form aforesaid, malicously, feloniously, voluntarily, and of his forethought malice, did stir up, * move, abet, counsel, and procure, (r) against the [*756] peace of the said lord the king that now is, his crown and dignity. [Commencement as ante 750 . to the † —charging the assault as der by made by both defendants.] And that the said J. T. a certain gun shooting called a carbine of the value of ten pounds, then and there charged against with gunpowder and a leaden bullet, which said gun he the said principal J. T. in both his hands then and there had and held at and against degree, the said S. G. then and there feloniously, wilfully, and of his ma- and the lice aforethought, did shoot off and discharge, and that the said other as being preJ. T. with the leaden bullet aforesaid, by means of shooting off sent, aiding and asand discharging the said gun so loaded, to, at, and against the sisting. (s) said S. G. as aforesaid, did then and there feloniously, wilfully, and of his malice aforethought, strike, penetrate, and wound the said S. G. in and upon the right side of the head of him the said S. G. near his right temple, giving to him the said S. G. then and there with the leaden bullet aforesaid, by means of shooting off and discharging the said gun so loaded, to, at, and against the said S. G. and by such striking, penetrating, and wounding the For mur. two as a in the first (9) See how to charge principals in 2nd degree last precedent. and 1 vol. 256* to 262*. (r) It seems advisable to follow the words of 4 and 5 Ph. and M. c. 4. which ousts accessaries before the fact of clergy, which are "command, hire, and maintain," but this is not absolutely requisite. And. (8) This was the indictment |