may be laid in either county: see ante, tit. "Indictment.' For the manner of laying the venue in cases where the stroke is given at sea, &c., see the 8th section of this statute. The allegation, in indictments for murder, of the prisoner's "not having the fear of God," &c. &c., the allegation, vi et armis, and that of the deceased having been in the peace of God,&c., though usual, are not necessary: 2 Stark. Cr. Pl. 385. The description of the injury is usually prefaced by a necessary averment, that the defendant, "in and upon A. B., feloniously, wilfully, and of his malice aforethought, did make an assault, &c.:" 1 Stark. Cr. Pl. 91; R. v. Belfryman, Leach, 641. If the name of the deceased be not known, he may be described as a certain person, to the jurors unknown: 1 E. P. C. 345. But a bastard child cannot be described by his mother's name, if he has not gained that name by reputation: Frances Clarke's case, R. & R. 358. When the death is occasioned by a weapon, it is usual to allege the manner in which the weapon was held, and to state its value: see ante, tit. "Indictment," and 2 H. P. C. 185. It is especially necessary to set forth, particularly, the manner of the death, and the means by which it was effected; and an omission in this respect is not aided by a general conclusion, that the defendant so murdered, &c. Therefore, if a person be indicted for one species of killing, as by poisoning, he cannot be convicted by evidence of a totally different species of death, as by shooting, starving, or strangling. But if the means of death proved agree in substance with that charged, it is sufficient. And, therefore, if the death be charged to have been occasioned by a weapon described in the indictment, and the weapon vary from that de

scription; as, for instance, if a wound or bruise be alleged to be given with a sword, and it prove to be with a staff or axe, the variance is immaterial, 1 E. P. C. 341; and in Sharwin's case, cited ibid., it was held, that an allegation of an assault with a wooden staff is satisfied by evidence of an assault with a stone, the effect being the same. In like manner, if the death be laid to be by one sort of poisoning, and it turn out to be by another, the variance is immaterial. When the death is occasioned by a wound, bruise, or other assault, the stroke should be expressly laid; and for want of this averment, an indict. ment, stating that the party of malice aforethought murdered or gave a mortal wound, without saying that he struck, &c., was held bad: 1 E. P. C. 342; R. v. Long, 5 Rep. 122, a. The indictment should also show in what part of the body the deceased was wounded; and, therefore, if it be super brachium, or manum, or latus, without saying either right or left, it is not good: 2 H. P. C. 185. where a wound is given, the length and depth of it must be shown: 2 H. P. C. 186; Haydon's case, 4 Rep. 42, a. It is said, nevertheless, that though the manner and place of the hurt and its nature be requisite, as to the formality of the indictment, and that they should be laid as near the truth as may be, yet, if upon evidence it appear to be another kind of wound, in another place, if the party died of it, it is sufficient to maintain the indictment: 2 H. P. C. 186. But where there are many wounds, it has been decided, that the length and breadth of each need not be stated: R. v. Mosley, R. & M. 97. For more, as to averments regarding the wound, the cause of death, &c., see Young's case, 4 Rep. 40; Walker's case, 4 Rep. 41; R. v.

And

2

Lorkin, 1 Bulstr. 124, 2 H. P. C. 184; R. v. Dale, R. & M. 5. In a case where the death proceeded from suffocation from the swelling up of the passage of the throat, and the swelling proceeded from wounds occasioned by forcing something into the throat, it was held sufficient to state in the indictment, that the things were forced into the throat, and the person thereby suffocated; and that the process immediately causing the suffocation, namely, the swelling, need not be stated: Tye's case, R. & R. 345. In all cases, the death by the means stated should be positively alleged, and cannot be taken by implication: 1 E. P. C. 343. And in cases where the death has been occasioned by a stroke of any sort, a further allegation has been deemed necessary; namely, that the prisoner thereby gave the deceased a mortal wound or bruise, whereof he died: H. P. C. 186; Kel. 125; Lad's case, Leach, 96, 4th ed. It is necessary to state the time and place as well of the wound as of the death. Under the repealed statute of 2 & 3 Ed. 6, c. 24, where the party was indicted in the county in which the death happened, the stroke having been given in another, it was considered essential that the stroke should be alleged in the county where it was given: 1 E. P. C. 34. And there seems to be no reason why the same strictness should not still be pursued in similar cases. The respective times of the wound, and the death, are required to be shown, in order that it may appear that the deceased died within a year and a day from the stroke or other cause of death; in the computation of which, the day on which the act was done shall be reckoned the first: 2 E. P. C. 344; 2 Inst. 318. But an exact statement of the day or the year is immaterial, if it appear by the evidence that the death hap

pened within the time limited. The indictment is concluded by charging the murder upon the party by way of consequence from the antecedent matter, and the word murdered is indispensable: 2 H. P. C. 187. Where the grand jury return the bill of indictment only a true bill for manslaughter and ignoramus as to the murder, it seems to be the practice in some circuits to strike out, in the presence of the grand jury, the words “ maliciously," and "of malice aforethought," and "murder," and to leave so much as makes the bill to be one for manslaughter; but it has been thought safer to present a new bill to the grand jury for manslaughter: 1 Russ. 471; 2 H. P. C. 162. If, as as is very commonly the case, there be an indictment for murder, and the coroner's inquisition for the same offence against the same person, at the same sessions of gaol delivery, the usual practice appears to be to arraign and try the prisoner upon both, in order to avoid the plea of autrefois acquit, or attaint, and to indorse his acquittal or attainder upon both presentments: 1 E. P. C. 371.

Murder is where a man of sound memory, and of the age of discretion, unlawfully kills within the realm any reasonable creature in rerum naturâ under the king's peace, with malice aforethought, either express or implied, so as the party wounded or hurt, &c. died of the wound or hurt, &c. within a year and a day after the same: 3 Inst. 47. In this definition of murder, the principal point to be considered is the malice. Malice express is that which appears from extrinsic circumstances, as lying in wait, menaces, &c.; malice implied is that which is presumed from the act itself, until that presumption be rebutted by circumstances to the contrary. And the most usual instance of this kind of

malice, is where death is occasioned by poison. In all cases of murder, it is for the judge to determine whether the facts given in evidence, if true, would in law amount to malice; and it is for the jury to consider whether the facts are true, and to give their verdict accordingly. If, therefore, they give a special verdict, it is not their duty to give an opinion as to the malice, but simply to state the facts: R. v. Oneby, 2 Lord Raym. 1485; Hazell's case, 1 Leach, 383; Fost. 257. On the meaning of the word malice, which in law imports a general spirit of wickedness, and not merely a desire of revenge or settled anger against a particular person, see the note in 1 Russ. 422, and Fost. 256. As malice, in the sense just mentioned, is the gist of the offence, it follows, that if such malice be the means of death, it is not material that the person killed was not the person intended to be killed. Therefore, if a man lay poison, to the intent that B. should take it, and C. by mistake takes it, and dies in consequence, this is murder: 1 H. P. C. 431; Plowd. 474. Nor is it material that the means used to perpetrate the crime had no immediate effect, or would not have been capable of producing the same effect in all cases. If the means were adequate to the purpose, that is sufficient. Therefore, it is murder to confine a prisoner in a damp unwholesome room, without allowing him the common conveniences which the decencies of nature require, by which his constitution is so affected as to produce a distemper of which he dies: R. v. Huggins, 2 Lord Raym. 1578. And it has been laid down, that if death proceeds from the passive negligence or active severity of a master, the law will imply malice, and the of fence will be murder: R. v. Self, 1 Leach, 137. But where the facts

me

are not sufficiently strong to support a presumption of malice, the jury may find the prisoner guilty of manslaughter; and in Selfe's case, before cited (and see 1 E. P. C. 226), where an apprentice had been sent to his master's from bridewell, in a lousy and distempered condition, and the master did not suffer him to lie in bed on accouut of the vermin, but made him to lay on the boards for some time without covering and without common dical care, and was also proved to have used harsh words to the deceased; these facts, though flagrant, were not deemed sufficient to constitute evidence of malice, inasmuch as there was no evidence of any personal violence having been used by the prisoner, and it was proved that the apprentice had had sufficient sustenance; and the prisoner had a general good character for treating his apprentices with humanity, and had made application to get the boy into the hospital. But, in this case, it may be observed that the medical men were of opinion that the boy's death was occasioned by his ill-treatment in bridewell, as well as the want of care when he went home. Where a child was shifted, by parish officers, from parish to parish, till it died for want of care and sustenance, the prisoners were adjudged guilty of murder: Palm. 145. In a more modern case, a man was found guilty of murder in causing the death of his apprentice, by not providing him with sufficient food and nourishment, without reference to other acts of cruelty committed by the prisoner against the deceased: R. v. Squire, 1 Russ. 426. The law will imply malice in cases of violent and excessive correction. Thus, where a boy came into a park to steal wood, and, seeing the woodman, climbed up a tree to hide himself, and the woodman, upon his coming down from the tree, struck

him twice, and then bound him to his horse-tail, and dragged him till his shoulder was broke, this was ruled to be murder, 1 H. P. C. 454; and, with regard to parents and children, masters and scholars, &c., if the correction exceed the bounds of moderation, either in the measure of it or in the instrument made use of, it will be either murder or manslaughter, according to the circumstances of the case; if with a weapon not likely to kill, though improperly used, manslaughter; if with a weapon likely to kill, due regard being had to the age and strength of the party, murder: Fost. 262. Where a master struck a child, who was his apprentice, with a great staff, of which it died, it was ruled murder: 1 H. P. C. 474. Though in some cases (see ante, tit. "Manslaughter") the provocation received is permitted to rebut the conclusion of malice, yet there are many trivial and some considerable provocations which will not be allowed to do so. Therefore, no breach of a man's word or promise, no trespass either to lands or goods, no affront by bare words or gestures, however aggravated, will free the party killing from the guilt of murder, if it appear that his intention was to kill or to do some great bodily harm; and this intention may be collected either from the degree of ferocity manifested, or the kind of weapon employed; and it seems that the use of a deadly weapon is conclusive evidence of such intention: 2 Haw. P. C. c. 13, s. 33, 34; Fost. 290; Kel. 55, 130, 131; 1 H. P. C. 455, &c.; 1 E. P. C. 233; 1 Russ. 435. Homicide, arising from resentment for a violent assault, may, in many cases, be deemed manslaughter only; but, when the resentment bears no proportion to the insult, the crime will be murder: 1 Russ. 436. And, where homicide is the consequence of a fight, ma

lice will be presumed, and the crime will be deemed murder, according to circumstances. Thus, in the words of Lord Coke, if two fall out upon a sudden occasion, and agree to fight in such a field, and each of them go and fetch their weapon, and go into the field, and therein fight, and the one killeth the other, here is no malice prepense; for the fetching of the weapon and going into the field, is but a continuance of the sudden falling out, and the blood was never cooled. But, if they appoint to fight the next day, that is malice prepense: 3 Inst. 51. And even in the case of a fight following immediately upon a quarrel, there may be circumstances attended with malice, which will make the homicide murder: as where some undue advantage is taken before or during the fight by the party killing, Fost. 295, 1 H. P. C. 479; R. v. Anderson, 1 Russ. 446; or where the parties fight, and, after a short separation, one lies in wait for the other, with a deadly weapon, with a design to provoke him, and, under that colour, to revenge his former quarrel by stabbing him: R. v. Snow, 1 E. P. C. 245. And, generally, blows previously received will not extenuate homicide arising from deliberate malice and revenge; especially where it appears that the provocation was sought for the purpose of colouring the revenge. Thus, where, in consequence of a quarrel in a cudgel-play, a battle with fists took place, between the prisoner and the deceased, and continued till the parties were separated, and the prisoner then quitted the room in anger, and, upon getting into the street, threatened, with an oath, that "he would fetch something and run him (the deceased) through the body," and, soon afterwards, returned in a thicker coat, and stood near the door with a cudgel in his hand, apparently for the

purpose of renewing the cudgelfight, but with a deadly weapon concealed under his coat, and then artfully drew on a discourse on the past quarrel, and, upon the deceased striking him once or twice with a cudgel in order to renew the engagement, immediately dropped his own cudgel and stabbed the deceased to the heart; the offence, from the many circumstances of deliberate malice and deep revenge, was clearly held to be murder: Mason's case, 1 E. P. C. 239. The law implies malice when a minister of justice, as a bailiff, constable, or watchman, &c., is killed in the execution of his office: 1 H. P. C. 457. And may be laid down as a general rule, that where persons, having authority to arrest or imprison, using the proper means for that purpose, are resisted in so doing, and killed, it will be murder in all who take a part in such resistance, 1 Russ. 499; and it is immaterial that the party killing is innocent of the offence for which he was about to be arraigned: 1 E. P. C. For circumstances palliating this kind of homicide, see ante, tit. "Manslaughter." Lastly, a general species of malice will frequently be implied where there is an intention to com mit some other felony, orto do some general mischief, though the malice be not particularly directed against the individual killed. Thus, 1. If A., meaning to steal a deer, shoots at the deer, and, by the glance of the arrow, kills a boy who is hidden in a bush, this is murder: 3 Inst. 56; Fost. 258. And 2. If a man, knowing that people are pass ing along the street, throws a stone, or shoots an arrow over the house or wall, with an intent to do hurt to people, and one is thereby slain, this is murder: 1 H. P. C.; 3 Inst. 57. So, also, if a man go deliberately, and with an intent to do mischief, upon a horse used to strike,

or coolly discharge a gun amongst a multitude of people, and death be the consequence of such acts, it will be murder: 1 H. P. C. 475; 4 Blac. Com. 200; 1 E. P. C. 231. Aud also, that where the intent is to do some great bodily harm to another, and death ensues, it will be murder: as, if one person beat another, with preconceived malice, in so violent a manner as to occasion his death, though death be not intended; or throw a stone which kills another, though the intention be merely to hurt and not to kill: Fost. 259; 1 H. P. C. 440. Lastly, it may be observed, that where several join to do an unlawful act in breach of the peace, and in doing any such act they happen to kill a man, they are all guilty of murder. But the fact must appear to have been committed strictly in prosecution of the purpose for which the party was assembled: 1 E. P. C. 257; 1 Russ. 455.

With respect to the persons capable of committing murder, it may be observed that no infants under the age of seven years can be punished for that crime, or any other felony; that between the ages of seven and fourteen an infant is primiâ facie presumed to be doli incapax; but that this presumption may be rebutted by strong evidence that the delinquent could distinguish between right and wrong: Alice de Walborough's case, 1 H. P. C. 26; Spigurnell's case, ibid.; and see 3 H.7, Pl. 13; Plowd. 191; and York's case, Fost. 70, 1 Russ. 4, that on the attainment of the age of fourteen, infants are presumed to be doli capaces, and punishable as adults; and that in these matters no distinction is made between the sexes. As to lunatics, there is some difficulty in determining in what cases their informality shall exempt them from the consequences of committing homicide. If it appear that the