ry. the prisoner did wilfully, feloniously, and of his malice aforethought, mix poison with other ingredients, in order that they might be eaten by the deceased, it was held that there was no occasion to add these words to the allegation of the delivery of the poison. 1 East, P. C. 346. The other circumstances, and the conclusion of the indictment, do not differ from those to be observed in other capital felonies. See 1 vol. c. 5. Finding of Finding of Grand Jury.-It has been said that if the grand Grand Ju- jury consider the crime to be manslaughter only, they may strike out the words "maliciously," " of malice aforethought" and the conclusion charging murder, and then to find a true bill of the charge so amended. 2 Hale, 162. Bac. Abr. Indictment, D. 1 East, P. C. 347. But this seems very questionable; and it is certain, that if, without alteration, they were to indorse the indictment" billa vera for manslaughter," the finding would be invalid, and might be quashed on motion. 2 Rol. Rep. 52. 3 Bulst. 206. 1 Rol. Rep. 407, 8 Cowp. 325. And, in such case, it is clearly the better course to prefer a bill for manslaughter, which the jury may immediately find. 2 Hale, 162. Bac. Abr. Indictment A. And though the indictment may charge one with murder, and the other with manslaughter only, yet if both are accused in the higher degree, the grand inquest should return their finding against one for the capital, and the other for the inferior offence; but in such case the bill will be good against the former, and nugatory as to the latter, 3 Bulst. 306. It is indeed said, that wherever the fact of homicide is clear, the jury should find the bill for murder, in order to prevent the defendant from being harassed with any fresh accusation; for if they throw out the bill, he may be again indicted, which can never take place after an open acquittal. Cowp. 325. Hawk. b. 2. c. The evidence. 25. s. 2. The evidence. It is said to be a good general rule, that no man should be found guilty of murder, unless the body of the deceased is found; because instances have arisen of persons being executed for murdering others, who have afterwards been found to be alive. 2 Hale 290. ante 1 vol. 563. But this rule must be taken rather as a caution than as a maxim to be universally observed; for it would be easy, in many cases, so to conceal a body as to prevent it from being discovered. Indeed, in a case of supposed drowning in the sea, an objection founded on this rule was holden unfounded. 2 Leach, 569. And presumptive evidence must_often be admitted where the crime is necessarily secret. Sometimes indeed it is better than the direct testimony of wit[*739] nesses,* because they may be influenced to commit perjury from motives of revenge, but it is scarcely possible so to influence circumstances, as to make them fix a conviction, that a particular individual is guilty. Where the charge is for murder of an officer in the attempt to execute a ca. sa., fi. fa., &c. it will be sufficient to produce the writ and warrant, without shewing the judgment of the previous proceedings. Fost. 311. One class of evidence, which is most frequently adduced in case of murder-the dying declaration of the party killed-we have fully considered already. See ante 1 vol. 568, 9. We have seen that it is not necessary to prove in evidence, the precise day or place laid in the indictment-but it will suffice if the time of the death be shown to be within a year and a day of the stroke, and the place of the death be shown to be within the jurisdiction of the court, before which the accusation is preferred, ante 1 vol. 222, 3, to 200-225. The verdict. If upon the trial of an indictment for mur- The ver der, the prisoner appear to the jury to be guilty of man- dict. slaughter, they may find him guilty of the latter offence. 2 Hale, 302. Where the killing be proved, but the circumstances show it to have been a misfortune, or to have arisen in self-defence, they anciently found the special matter, and left the court to judge of its effect; who, it is said, might give judgment for manslaughter, or even murder, though the jury concluded et sic per infortunium, or sic se defendendo. 2 Hale, 302. And even if the court agreed with the jury as to the innocence of the party accused, the verdict was recorded, and his goods forfeited. Id. ibid. But it was long ago the practice, in cases of infancy and insanity, for the jury, under the direction of the court, to find a verdict of acquittal. 2 Hale 303. Fost. 279. And Mr. Justice Foster ably contends for the legality of the practice of finding general verdicts of not guilty, in every case where the mind is free from crime, and the defendant has been merely the unfortunate instrument of another's destruction. Fost. 271 to 289. He thinks, however, that there are some cases in which the party has been guilty of neglect, where the judge may properly direct a special finding, and so compel him to sue out his pardon under the statute of Gloucester, c. 9. which by that statute he is entitled to receive. All his personal property will, in this case, be forfeited, unless the king, in whom it is vested, thinks proper to restore it. Fost. 289. Where the jury doubt whether the facts proved amount in law to murder, they find a special verdict, in which the facts are stated as proved, and the inference is left to the judges; who may give judgment of death, if they think the offence is murder, though malice* is not stated in terms, nor the killing [*740] found to be felonious. 9 Co. 69. Palm 548. The sentence and punishment. Sentence and punishment.-Clergy is taken away in all cases of murder and petit treason, from accessaries before as well as principals, and lands and goods are forfeited, and the forfeiture relates both to the stroke or other cause of the death. 1 East, P. C. 215. For the mode by which murder was ousted of clergy, see ante, 1 vol. 678. and all points respecting the sentence, the interval between it and the execution, with the mode of the latter, will be found in 1 vol. 704. The forfeiture is governed by the same rules which operate in all other felonies. See 1 vol. Index, title Forfeiture. [*741] INDICTMENTS FOR MURDER AT COMMON Aiders and accessaries.-The law as to what constitutes principals in the second degree, and accessaries before and after the fact, has already been fully considered in the first Volume, see 1 vol. 256 to 267. and the mode of charging them in an indictment will be found in 1 vol. 269, 272, 3, 4. It seems almost anomalous in law, that where several are present at a murder, though one only gave the mortal blow, it may be charged as the act of all; or if one be particularly accused, it will be no variance to shew that the stroke proceeded from another. 1 Hale, 437, 8. Dougl. 207 n. 8. ante 1 vol. 259, 260. If several be indicted for murder, and the jury find a special verdict, it is necessary, in order to affect principals in the second degree, either to state that they were actually present in direct terms, or to shew some acts done by them, from which prescence can be necessarily inferred-or to allege that they were of the same party, in the same pursuit, and under the same engagements, with the person by whom the crime was actually committed. Dougl. 207. The offence. [*742] PETIT TREASON. The offence.*-Petit Treason is only an aggravated description of murder. Foster 107, 324, 336. All that is requisite to constitute the latter offence is equally necessary to complete the former; and it differs only in the relations subsisting between the parties, and the obedience which is broken by the offender. The instances in which it can be committed were reduced to three, by 25 Edw. III. st. 5. c. 2. though at common law they were more numerous. These are by a servant killing his master, a wife her husband, and an ecclesiastical person, either secular or regular, his superior. A servant who kills his master after he has left him, on malice conceived before, will be guilty in this degree. Hale, 380. 3 Inst. 20. Under the term master, the master's wife is held to be included. Id. ibid. A child, in murdering either of his parents, can only be guilty of petit treason as a servant, in which capacity, if he receive wages from them, or sustenance in return for his labour, his crime will receive this deeper colouring. Id. ibid. A wife, though divorced a mensâ et toro, may be guilty of petit treason in killing her husband, for the vinculum matrimonii still subsists. 1 Hale 381. Nor can a woman whom a man may have married, having a former wife living, commit petit treason by murdering him, unless indeed she were his servant. 1. Hale 381. A husband who kills his wife is not thus guilty, because no obedience is broken, which is the foundation on which this aggravation of murder rests. A clergyman may commit this offence by the murder of the bishop who ordained him, of him in whose diocese his benefice lies, or of the metropolitan of such suffragan diocesan or bishop. 1 Hale 381, 4. Bla. Com. 203. To constitute this offence, there must be such malice express or implied as would make - the killing amount to murder, had no peculiar relation subsisted; so that if on an indictment of petit treason against a servant for the death of his master, it appear to have been done on a sudden provocation, or in the heat of passion, he may be found guilty of manslaughter only. 1 Hale 378. There may be accessaries to this crime both before and after the fact as to any other felony. Thus, if a servant murder his master by the procurement of the wife, he is a principal traitor, and she an accessary to the treason. But if the wife had incited a stranger to the same deed, she could be [*743] implicated only in murder, because the guilt of the accessary can never be of a higher kind than that of a principal. 1 Hale 379. If, however, the stranger had committed the murder, not only by her advice but in her presence, so as to make her a principal in the second degree, she would be guilty of treason, and he of murder only. 1 East, P. C. 358. And if a servant and indifferent person conspire to rob the master of the former, and in the prosecution of this design the master be killed in the presence of the servant, he may be indicted for petit treason. Id. ibid. And the same rule will apply if the servant or wife, intending to kill a stranger, kill, the one the master, and the other the husband by accident. 1 Hale 380. These principles apply also mutatis mutandis to a clergyman in relation to his superior. dictment. The indictment. As all petit treason includes murder, it The inis contended by Lord Hale, and Mr. Justice Foster, that a person guilty of the former may be indicted for the latter. 1 Hale, 378, Fost. 325, 8, But Foster thinks it advisable, where the prisoner is indicted for murder, and the evidence seems to prove him criminal in the higher degree, to quash the indictment and prefer another, because the judgment is different, and the prisoner is entitled to thirty-five peremptory challenges. Fost. 327. and see the case of Swan and Jeffereys. Fost. 104. And if through a mistake on the part of the prosecutor, the prisoner should be indicted for a common murder, and the evidence should shew that it is petit treason, it will not be advisable to direct the jury to find a verdict of not guilty, in order to prefer another indictment, lest the defendant should plead the acquittal, but the jury may be discharged of the indictment for murder, and another preferred for treason. Fost. 328. At all events, there is no doubt that a defendant, if tried for petit treason, may be found guilty of murder, if the indictment be properly framed; and this not only where the proof of the relationship fails, on which the aggravation depends, but where the fact itself, though satisfactorily proved by circumstantial evidence, is not supported by the testimony of two credible witnesses. 1 Leach 457. Fost. 328. Two persons implicated in the same crime, but one as a traitor and the other as a murderer only, may be joined in the same indictment, which if it conclude, that both of them feloniously, traitorously, and of their malice aforethought, did kill and murder the deceased, will be good for both, reddendo singula singulis. Fost. 329. But if they insist on their right to challenge, they must be tried separately, as, in petit treason, the defendant is entitled to thirty-five, and, in murder, to only twenty peremptory challenges. Fost. 106. The indictment for petit treason should *744] contain all the requisites of one for murder, and must, in addition, charge the offence to have been traitorously committed. 1 East, P. C. 346. A former acquittal of petit treason is a good bar to an indictment of murder in respect to the same killing, though it seems doubtful whether an acquittal of murder is a sufficient bar to an indictment of petit treason: because, on the trial for petit treason, the defendant might certainly be found guilty of murder, if the latter crime were supported in evidence, but it is not so certain that, if the proof amounted to treason, on a charge of murder, any conviction could ensue. The evidence. 1 The evidence. By the 1 Edw. VI. c. 12. s. 22. and 5 and 6 Edw. VI. c. 11. s. 12. to convict a man of either high or petit treason, two witnesses in open court or a voluntary confession are made requisite. These statutes were indeed supposed to be repealed by 1 and 2 Ph. and M. c. 10. which directed all prosecutions for treason to be conducted accordiug to the course of the common law, though the intention of that act was, no doubt, rather to extend than diminish the |