privileges of the party indicted. At the present day, however, it is certain that two witnesses are required to convict on every indictment for petit treason. 1 Leach 457. though where these cannot be procured, we have seen that the defendant may be convicted of murder. Radbourne's case, Leach 363. ante 743. In order to substantiate the relationship between husband and wife, on an indictment against the latter for petit treason, it is not necessary to prove the actual marriage either by producing a copy of the register, or by the testimony of some one present at its celebration; but it will be sufficient to shew cohabitation, and the language of both parties respecting each other. 1 East, P. C. 377. The sentence.-Petit treason was first ousted of clergy, by The sen23 Hen. VIII. c. 1. to those who were convicted by verdict tence. and confession; and by 25 Hen. VIII. c. 3. to those who stood mute, challenged peremptorily more that 35, or refused to answer. These acts were rendered perpetual by 32 Hen. VIII. c. 3. repealed by 1 Edw. VI. c. 12. and, it is said, revived by 5 and 6 Edw. VI. though the latter seems not quite certain, see 11 Co. 29. But the surest ground on which clergy is taken away, is under the words "wilful murder," in 1 Edw. VI. since we have seen that it is only an aggravated kind of murder, and subject, in a great degree, to the same rules. Fost. 330. 1 Hale 340. And it is under these words only, that clergymen are excluded from the benefit of their order, since their privileges are expressly excepted in all previous provisions. Accessaries before the fact, as they were not named, so neither were they affected, till 4 and 5 Ph. and M. placed them on a footing with principals. The judgment against men has always been," that they be drawn to the place of execution, and there hanged;' and women who were formerly burned, as in other kinds of treason, now receive the same sentence. 30 Geo. II. 48. The additional severities introduced by 25 Geo. II. c. 37. for the punishment of murder have been holden to apply also to petit treason, and therefore, in every case, they now form part of the sentence. Fost. 107. For a statement of these regu lations, see 1 vol. 704, 5. 180 The offence. MURDER ON THE STATUTE OF STABBING. The offence.-The 1 Jac. I. c. 8 was enacted at a critical period, and intended to remedy an immediate evil. It is [*746] said to have been directed against a number of persons, who adopted a method of deadly revenge by wearing short daggers under their clothes, which they were prepared to use on slight provocations, and those frequently sought for by themselves. Fost. 298. Its particular object is thus stated in the preamble, which may serve to direct us in its construction : To the end, that stabbing and killing men on the sudden done and committed by many inhumane and wicked persons, in the time of their rage, drunkenness, hidden displeasure, or other passion of mind, may henceforth be restrained through fear of due punishment to be inflicted on such cruel and bloody malefactors, who heretofore have been emboldened by presuming on the benefit of clergy," after which it proceeds to enact," that every person which shall stab or thrust any person that hath not then any weapon drawn, or that hath not then first stricken the party which shall so stab or thrust, so that the person so stabbed or thrust shall thereof die within the space of six months then next following, although it cannot be proved that the same was done of malice aforethought, yet the party so offending shall be excluded from the benefit of his clergy, and suffer death as in case of wilful murder." This enactment is followed by a proviso, that it shall not extend to any killing se defendendo, by misfortune, or in other manner than aforesaid; nor to manslaughter, in a bona fide attempt to preserve the peace; nor to death, happening in chastisement or correction of a child or servant when death was not intended. (d) This act was originally but temporary, but by 17 Car. I. c. 4. it is with other statutes continued till some further 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, [*747] who admitted 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 exceedingly difficult to discover what this act has rendered capital which was not so on general (d) This last proviso is very singular; for it is difficult to conceive in what way stabbing could occur in lawful correction; and we have seen already that wherever a deadly instrument is used to correct, and death ensues, it is murder at common law, ante 730. 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 prima facie murder. The statute indeed dispenses with the proof of express malice, but this, we have seen, is never requisite. At all events, the construction of this act has rendered it almost nugatory, if ever it appeared 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. 1 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 stabbed 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 aggravate the offence, though the first assault proceeded from the defendant. 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 master of the house killed one of his family by mistake, who had concealed 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 arms, or thrusting from a staff or other blunt weapon, is intended by the terms "stab or thrust," 1 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 instruments 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 [*748] drawn within this 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, (e) This case is questioned by Lord Holt, Skin, 668. The in 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 equally divided, and it seems almost 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. 1 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 43 Geo. III. c. 5. as to stabbing, &c. with intent to murder, &c. will hereaf ter be considered. The indictment.-It is said to have been the former pracdictment. tice to prefer two indictments, one for murder at common law, and the 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 prisoner 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 guilty of manslaughter, as the two abettors might have been, had the indictment [*749] been correct as to the principal. The indictment usually con cludes, contrary to the form of the statute; but this is unnecessary, as no new offence is created and only an old privi lege 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 surplusage. MURDER OF ILLEGITIMATE CHILDREN. * The offence, &c.-Until lately an anomalous rule of evi- The of dence existed respecting the murder of illegitimate children. fence. By the 21 Jac. 1. c. 27, it is enacted, that if any woman be [*750] delivered of a child, which if born alive should by law be a bastard, and endeavour 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 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 coFoner, 2 Leach 1095. 3 Campb. 371. INDICTMENTS FOR MURDER BY VIOLENT MEANS. Essex, to wit, (f) the jurors for our lord the king upon General their oath present, that A. B. late of in the parish of com mence. in the county of, labourer (g) not having the ment and (e) See form Cro. C. C. 8th Ed. 272. 4 Bla. Com. Append. II. Co. Ent. 354. b. 355. a. 355. b. (f) The venue is to be laid where the death occurred. See 2 and 3 Edw. VI. c. 24, ante 733. and ante (g) As to the name and addition conclusion of an in dictment for mur der. (e) |