ed in Hawkins, b. 2. c. 23. and 2 Institutes, 314 to 321. 5 Burr.* 2793. but as it is of no practical utility at the present [*733] day, it will not require discussion here. We shall therefore confine our attention to the indictment. This, it seems better, if there is any doubt as to the degree of the offence, to frame for wilful murder, because the charge may afterwards be modified according to the evidence. And the defendant committed on such a charge may be brought up by habeas corpus, when, if it appears from the depositions that the homicide was either justifiable or excusable, he may be admitted to bail; though this is a responsibility which justices of the peace ought not to incur. i East, P. C. 340. So that. he can sustain no great inconvenience from the charge being thus framed, and he has this advantage, that an acquittal of murder will bar any subsequent prosecution for manslaughter, because, on the trial, had the latter appeared in evidence, the jury might have found him guilty in this degree, 4 Cro. Rep. 45, 6. 2 Hale, 246. Fost. 329. and see post. 739, as to the verdict in murder.

The Venue. By the common law, if a mortal wound was The ingiven in one county, and the party died in another, the of- dictment. fender could not be indicted in either; for a jury of the last could not enquire of the wounding in the first, nor could the grand inquest of the former take cognizance of the death in the latter. Hawk. b. 2. c. 25. s. 36. and see 1 vol. 178, 9, &c. But by 2 and 3 Edw. 6. c. 24. the venue is to be laid in the county where the party dies. And as the same difficulty existed in the case of accessaries, who planned a murder in one jurisdiction which was perpetrated in another, the 43 Geo. III. c. 113. s. 5. allows the prosecutor to indict them in which of the two he pleases. If the stroke be in England, and the death in Wales, the indictment should be in the latter, and vice versa. 1 East, P. C. 363, 4, 5. 1 Vol. 185. As to the rules which regulate the venue when the offence is on the high seas or beyond the seas, or partly on the sea and partly on land, see 1 Vol. 186 to 189.

Description of the deceased, &c.-If the name of the party deceased be known, it should be stated; ante 1 vol. 212, 3. but there is no occasion to state the addition, although, for the sake of distinction, it may sometimes be proper. 2 Hale, 182. And if the name of the person killed cannot be ascertained, an indictment for the murder "of a certain person to the jurors unknown" will be valid. 2 Hale, 181. It is usual, but not necessary, to state the deceased as "in the peace of God and our lord the king then and there being," but this is not requisite, and, in cases where he was breaking the peace at the time, would be improper. 2 Hale, 186 Hawk. b. 2. c. 25. s. 73. post 751. n. (m.) The terms "with

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force and arms" are said to be unnecessary, being so fully implied in the description of the violence employed, Hawk. b. 2. c. 23. s. 85.

Description of the offence.-The indictment must set forth the means by which the death was effected, and a mere statement that the defendant killed will not suffice. Hawk. b. 2. c. 23. s. 84. An allegation of one kind of death will not be supported by evidence of another essentially different, so that if it be alleged that the murder was committed by stabbing, and it be shewn to have been by drowning or poisoning, the prisoner must be acquitted. id. ibid. 2 Hale, 185. So where the manner of the death is doubtful, it may be laid differently in different counts, so as to meet the evidence. 2. Leach, 569. But if the particular species of weapon be stated, it will be no variance to prove that another was used, so that an indictment for assaulting with a staff is supported by evidence that the violence was offered by a stone. 1 East, P. C. 341. And an indictment for murder, occasioned by one description of poison, will be supported in evidence by proof of murder by a poison of another description. 3 Campb. 75. It is usual, where the death was occasioned by a blow from some instrument, to state, that the defendant held it in his right or left hand, or in both his hands; and this is said to be essential. 2 Hale, 185. though Mr. East says he finds no ground for this particularity. 1 East, P. C. 341. The price of the instrument is also usually stated, or else it is averred that it is of no value, because it is forfeited as a deodand to the crown; but this does not appear to be absolutely requisite. 2 Hale, 185. Where the death is occasioned by actual violence, the term struck, (formerly percussit) should always be inserted; for though some doubts have been entertained whether it is absolutely necessary, it would be very unsafe to omit it. Cro. Jac. 635. 1 Bulst. 184. 5 Co. 122. 2 Hale, 184, 6, 7. Hawk. b. 2. c. 23. s. 82. Formerly it was said that the indictment should state percussit dans, and not percussit et dedit, the blow, because the former is not so certain, and another stroke might be intended. 1 Ld. Raym. 145. When the death is occasioned by a wound, it should be stated to have been mortal, nor will the want of this term be supplied by the allegation that the deceased died in consequence of the injuries he received. 1 Leach, 96. Kel. 125. 2 Hale, 186. Regularly also the length and depth of the wound should be shewn, that it may appear to have been an adequate cause of death; but this is not necessary, where a man is shot or run through the body with a bullet or sword, but it will then suffice to say, that the defendant struck the person killed in a certain part of the body, and gave him there a mortal wound [*735] penetrating in and through the body, because this is evi

dently of such a depth as to prove fatal. 5 Co. 121, 2. Hawk. b. 2. c. 23. s. 81. acc. 1 Ld. Raym. 145. cont. And where a limb is cut off, it is impossible thus to describe the injury, and therefore in such a case it cannot be requisite. id. ibid. The precision required where death arises from a blow or wound, is equally necessary when is was effected by any other means. And therefore where it was alleged that the defendant persuaded the deceased to take a poisonous mixture under pretence that it was medicine, and that he "nesciens prædictum potum cum veneno fore intoxicatum, sed fidem adhibens dictæ persuasioni dicti C. D. recepit et bibit," the proceedings were holden insufficient, because it is not expressly stated that he received and drank the poison: nor was the defect cured by the words immediately following,-" per quod idem A. B. immediate post receptionem prædicti veneni per tres horas immediate sequentes languebat et obiit," though no stronger implication could have arisen. 4 Co. 44. But the means of death must be stated clearly and positively, and then if the death was caused by a stroke, the indictment should proceed to aver that the offender thereby gave to the deceased a mortal wound or bruise, of which he died; or where by poison, after stating how it was administered, that the party died of the poison so taken, and the sickness that arose from its operation. 1 East, P. C. 343. And therefore, where an infant died in consequence of the violence with which a rape was committed upon her, the indictment for murder was held bad, because it did not state that a mortal wound was given. 1 Leach, 96. It seems to have been supposed that this case affects the position first stated, that there are instances in which the extent of the wound need not be shewn; but those rest on the principle that the indictment shews, with sufficient clearness, that the injury was capable of producing death, and here nothing of the kind could be presumed from the facts stated on the record. For the same reason, where death is caused by a wound or stroke, it is necessary to set forth the part of the body to which the violence was applied, and therefore, if the indictment merely stated the wound to be near or about the breast, it would be defective. 4 Co. 40. b. And it is even said that if the wound were on the arm, leg, or side, it must be shewn whether it was on the right or the left, or the description will be too uncertain. Hawk. b. 2. c. 23. s. 80. 1 East, P. C. 342. though this may be doubted, because it would be equally mortal on either; nor will an uncertainty in this respect be aided by describing other wounds with sufficient precision, if there be a general conclusion that the death was by reason of them all; for it might have arisen chiefly from that which is imperfectly described. Hawk. b. 2. c. 23. s. 80. But it is sufficient to* [*736] Crim. Law.

VOL. III.

Y

state the wound to have been given in the breast, the neck, the stomach, or even the body. 4 Co. 41. Cro. Jac. 95. 5 Co. 121. Hawk. b. 2. c. 23. s. 80. And if a more uncertain or unintelligible description be added, it may be rejected as surplusage. 4 Co. 41. Hawk. b. 2. c. 23. s. 80.

It is absolutely necessary to state that the party mudered died of the injury that he received; and therefore it was held that an indictment setting forth the means of strangling, and then averring qua suffocatione obiit, instead of de qua suffocatione, was erroneous. 1 Rol. Rep. 137. where the death was caused by several poisons, bruises, and wounds, it may either be stated that the death arose from them all, or that the deceased died of the first, and would otherwise have died of the second, and that in case he had survived these, the third would have been fatal. Hawk. b. 2. c. 23. s. 83. Where the indictment is for the murder of an officer, or in any case where the circumstances are complicated, it will be unnecessary to set out any of the details; but the requisites here stated will suffice. Cro. Jac. 280. If more of the special circumstances in evidence of malice, &c. be stated than is necessary, the prosecutor will not be compelled to prove them, but they may be rejected as surplusage. 9 Co. 62.

The time both of the stroke and death should be stated on the record, the former, because the escheat and forfeiture of lands relate to it, the latter, in order that it may appear that the death took place within a year and a day after the mortal injury was received. 2 Hale, 179. Cro. Eliz. 739. 2 Inst. 318. 1 vol. 222. This may be done by stating, according to the fact, either that he died instantly of the wound, or that he languished to a day specified, and then died. 1 East, P. C. 344. If either fact occurred in the night, it should be so stated, though this would not be material in an indictment, whatever it might in an appeal. It is not sufficient to lay the offence between two specified days, or about a certain day, or on a Saint's day, of which there are two of the same name, without an addition to distinguish them. Hawk. b. 2. c. 23. s. 8. An impossible day, as the thirty-first day of June, will vitiate, and leave the proceedings as if no time had been stated. Moor, 555. When the indictment states that the prisoner on a certain day assaulted the deceased, it will not be sufficient to proceed with averring that he feloniously struck him, without introducing" then and there" between the asassault and the blow. For although these words would be supplied by the natural construction of the sentence, and would be sufficient in civil actions and in indictments for common batteries, a greater certainty is here required, be[*737] cause the mortal stroke is so much higher an offence than what is implied in assaulting. Dyer, 69, a. 2 Hale, 80. Hawk,

b. 2. c. 23. s. 88. In drawing the conclusion that so the defendant murdered, &c. if time be again expressed, repugnancy should be carefully avoided. For if the injury was on one day and the death on another, and the indictment concludes that so the prisoner murdered, &c. on the former, it will be bad, because the felony is committed when the death occurs, and not when the cause of the death arises. 4 Co. 42. Hawk. b. 2. c. 23. s. 88. But if the latter day be stated, no objection can be taken, though it is said to be the best way to say generally, that so the defendant murdered, &c. without any repetition of time. Id. ibid. Notwithstanding these niceties respecting the statement of the day, a variance in evidence from that laid is immaterial. 2 Inst. 318. see ante 1 vol. 224. and books there cited. But then, if forfeiture occurs, the jury must specially find the day on which the offence was committed. 2 Hale 179.

any

Place as well as time must be stated to the allegation both of the injury and the death, in order that it may appear that the charge is cognizable by the tribunal before which it is preferred. Cro. Eliz. 738. 2 Hale 180. And where the of fence is begun in one county and completed in another, and the trial had in the latter by virtue of 2 and 3 Edw. VI. c. 24. the stroke ought to be alleged in the county where it was actually given. Hawk. b. 2. c. 23. s. 92. 1 East, P. C. 343.

But not only must all the circumstances of the offence be thus precisely stated, certain terms of art must be employed, or the indictment will still be defective. The term feloniously is indispensable here as in all other felonies. Cro. Eliz. 193. The offence must also be stated to have been committed with "malice aforethought," which we have seen enter so materially into the definition of the offence, and which it is absolutely necessary to aver. 2 Hale, 187. nor do the words "feloniously murdered," aid the omission. Dyer, 99. pl. 63. The indictment must also, after stating the circumstances, draw the conclusion that so the prisoner, the defendant, feloniously, &c. did kill and murder, the last word being an artificial term, which it is requisite to use. Id. ibid. Dyer 261. a. If either of these averments be omitted, the defendant can be found guilty of manslaughter only, and, indeed, the indictment for this offence differs only from one of murder in this omission, id. ibid. 1 East, P. Č. 345, 6. But it is not necessary to repeat the words "feloniously, and of malice aforethought," to every allegation; for if the assault be stated to have been thus made, and the indictment proceed to aver that the defendant then and there struck, &c. it will be good without repeating them, because the acts are sufficiently* connected. 4 Co. 41, b. Dyer 69, a. Godb. 65, 6. And where, in an indictment for poisoning, it was alleged that

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