feloniously, wilfully, and of his malice aforethought did kill and murder one C. D.; against the peace of our Lady the Queen, her crown

and dignity.

(Death.-9 G. 4, c. 31, s. 3.)

By stat. 14 & 15 Vict. c. 100, s. 4, in any indictment for murder or manslaughter "it shall not be necessary to set forth the manner *in which, or the means by which, the death of the de- [*207] ceased was caused, but it shall be sufficient in every indictment for murder to charge that the defendant did feloniously, wilfully, and of his malice aforethought kill and murder the deceased, and it shall be sufficient in every indictment for manslaughter to charge that the defendant did feloniously kill and slay the deceased."[1]

by Mr. Erskine, and acceded to by the court in Hadley's case, vol. v. of Erskine's Speeches, 1 Ridgway's ed. 1812. 14 Amer. Jurist, 253-274; 1 Wheeler Cr. C. 48; Jackson v. Van Dusen, 5 Johns. R. 158; 1 Russell, 7; et seq. Every person at the age of discretion is presumed sane unless the contrary appears. 2 Stark Ev. (new ed.) 929; Mathews on Presumption, &c. ch. 11 See also Jerry v. State, 1 Blackford R. 396.

แ

The temporary absence of reason produced by drunkenness, is not, in any case, a legal excuse for the acts which it may occasion or excite, but as Lord Coke observes, a drunkard, who is voluntarius dæmon, hath no privilege thereby, but what hurt or ill soever he doth, his drunkenness doth aggravate it: nam omne crimen ebrietas et incendit et detegit." Co. Lit. 247. Plowd. 19. Roscoe's Dig. Cr. Ev. 784; 1 Russell, 7 et seq.; U. States v. Drew, 5 Mason, 28; Burroughs v. Richman, 1 Green (N. J.) R. 233. But insanity of which the remote cause is habitual drunkenness is an excuse for an act done by the party while so insane, but not at the time under the influence of liquor. U. States v. Drew, supra. See also, 3 Amer. Jurist, 5-20; Burnet v. State, Martin & Yerger, (Tenn.) R. 133; Cornwell v. State, Martin & Yerger, 147; Penn v. M'Fall, Addis. R. 257. 2. To constitute murder there must be an actual killing. 3. The party killed must be a reasonable being, alive. 4. There must be malice, either express or implied.

Advantages of Modern English Statute.

[1] The English statute, dispensing with the necessity of setting forth in the indictment, the manner in which, or the means by which, the death of the deceased was caused, is a very great improvement, over the particularity of statement, required at common law.

The object of pleading, whether in civil or criminal actions, is to inform the parties of the facts alleged by each against the other, with such clearness and distinctness, as to enable them to prepare for the trial of disputed facts, or for the application of the law, to those which are admitted. In its application to criminal cases, it is a statement of a crime imputed to the prisoner with such a particularity of circumstances only, as will enable him to understand the charge, and prepare for his defence, and as will authorize the court, to give the appropriate judgment upon conviction.

The fact of the killing of the deceased, wilfully, and with malice aforethought, or unlawfully and feloniously without any malice, as the case may be, is the great question, in every trial for murder or manslaughter; and the defendant does not need to be apprised of the circumstances by which the death was effected. With these, he is perfectly familiar. They are the proof by which the charge must be sustained-the evidence of the great fact in issue; and the objection to inserting them in the indictment, is, that while they are useless so far as giving any information to the defendant is concerned, they burthen the indictment and embarrass the prosecution.

The name of the deceased should be stated, if it be known; if not known, he may be described as "a certain person to the jurors aforesaid

Particularity of Statement required at common law.

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. 1. And it has even been said that if the wound were on the arm, leg, or side, it must be shown whether it was on the right or left, or the description will be too uncertain. Hawk. b. 2, ch. 23, s. 80.

At common law, it is essentially necessary to set forth particularly the manner of the death and the means by which it was effected, and this statement may, according to the circumstances of the case, be one of considerable length and particularity. As in the case of Jackson and others, 9 State Trials, 715, (ed. by Hargr.) where the indictment stated a murder by a long course of barbarous usage. But it will be sufficient if the manner of the death proved agree in substance with that which is charged. Therefore if it appear that the party were killed by a different weapon from that described, it will maintain the indictment: as if a wound or bruise alleged to have been given with a sword be proved to have been given with a staff or axe; or a wound or bruise alleged to have been given with a wooden staff, be proved to have been given with a stone. So if the death be laid to have been by one sort of poisoning, and it turn out to have been by another, the difference will not be material. So if an indictment allege that a woman "with both her hands about the neck" of a child, did press and squeeze, and thereby suffocated and strangled the child, it is sufficient to prove that the child came by its death by strangulation or suffocation, and it is not necessary that the prisoner should have done it with her own hands, for if it was done by any other person in her presence, she being privy to it, and so near as to be able to assist, that is sufficient. Rex v. Culkin, 5 C. & P. 121. Parke, J. J., Park, J. A. J., and Bolland, B. The allegation "about the neck” was also held sufficiently certain, as it means round the neck, through circiter pectus would be bad, 2 Hale, 185. So where a count charged the death to be by suffocation, by the prisoner having placed her hand on the mouth of the deceased, and the evidence was that the deceased had died from suffocation and pressure; it was held that, if any violent means were used to stop respiration, and the death was thereby caused, the count was proved. Rex v. Waters, 7 C. & P. 250. Lord Denman, C. J. But if a person be indicted for one species of killing, as by poisoning, he cannot be convicted by evidence of a species of death entirely different, as by shooting, starving, or strangling. 1 East, P. C. c. 5, s. 107, p. 341. 2 Hawk. P. C. c. 23, s. 84. 2 Hale, 185, 186. 2 Inst. 319. Mackally's case, 9 Co. 67. So where an indictment charged that the prisoner struck the deceased with a piece of brick, and it appeared probable, not that the prisoner struck with the brick, but that the prisoner struck with his fist, and that the deceased fell from the blow upon the piece of brick, and that the fall on the brick was the cause of the death; it was held, upon a case reserved, that, as the indictment did not contain any charge of throwing the deceased down, the prisoner ought to have been acquitted. Rex v. Kelly, R. & M. C. C. R. 113. 1 Lew. 193. So where the indictment charged the death by striking and boating on the head, and the evidence was that the prisoner knocked the deceased down by a blow upon the head, and that in falling upon the ground the deceased received a mortal wound; it was held, upon a case reserved, that the cause of death was not truly stated. Rex v. Thompson, R. &. M. C. C. R. 139. 1 Lew. 194. So where the indictment charged the wound to have been inflicted by a blow with a hammer held in the prisoner's hands, and the injury might have been occasioned by a fall against the lock or key of a door; it was held, that if the injury was occasioned by a fall against the door, produced by the act of the prisoner, it was not sufficient, but if the injury was occasioned by a blow with a hammer or any other hard substance held in the hand, the indictment was proved. Rex v. Martin, 5 C. & P. 128, Parke, J. So where the indictment alleged the death to have been caused by striking, and the jury found it was caused by over-exertion in the fight, the judges held the prisoner entitled to an acquittal. Brown's case, 1 Lew. 165, cited by Hullock, B. Where the manner of the death is doubtful

unknown."(a) But where a woman was indicted for murdering her illegitimate child immediately after its birth, and in the indictment it

(a) Ante, pp. 79, 80.

it will be proper to lay it differently in different counts, so as to meet the evidence. As in Rex v. Hindmarsh, 2 Leach, 569.

It seems to be necessary to aver a striking where the death has been occasioned by a wound, bruise, or other assault; and it appears to have been holden that an indictment stating that the party of malice aforethought murdered, or gave a mortal wound, without saying that he struck, &c., was bad. Rex v. Long, 5 Co. 122 a. Dy. 99. 2 Hale, 184. Rex v. Lorkin, 1 Bulstr. 124. But this doctrine has been questioned, (2 Hawk. P. C. c. 23, s. 82, referring to Cro. Jac. 635. Sum. 207. Yelv. 28,) though it is admitted to be the safest course to use the term where it may seem to be required by the nature of the fact. 2 Hawk. P. C. ibid. In a late case, where the indictment charged that the prisoner with certain stones of no value, which they in their right hands then and there had and held, in and upon the back part of the head of him, the said W. W., then and there feloniously, &c., and of their malice aforethought did cast and throw, and that they with the stones aforesaid, so as aforesaid cast and thrown, the said W. W. in and upon the back part of the head of him the said W. W. feloniously, &c., did, strike, &c., an objection was taken that the mode of causing the death was not properly stated. But the judges, upon a case reserved, were unanimously of opinion that the cause of the death was sufficiently stated; it being clear that the stones were what were cast and thrown at the deceased; and the word with might be rejected, or the words cast and throw might be considered to be used as neuter verbs. Rex v. Dale, Hil. T. 1824. 1 R. & M. C. C. 5. It seems also that if the death be occasioned by any instrument holden in the hand of the party killing at the time, it should be so alleged; and that regularly the instrument should be stated to be of a certain value or of no value: but an able writer says that he could not find the grounds for the first of these averments, and that the latter does not seem to be essential. 1 East P. C. c. 5, s. 108, p. 341, 342. In the case of Rex v. Dale, it was objected that, after the words "certain stones," there should have been a videlicet, mentioning the number, and also that it was not expressed in what hand the stones were held by each of the prisoners; but the objections were not considered material. It has been considered as necessary to state in what part of the body the wound was given, and also to state the length and depth of it. 2 Hale, 185, 186. 2 Hawk. P. C. c, 23, s. 80, 81. Trem. Ent. 10. Staundf. 78 b, 79 a. 4 Co. 40 b, 41. 5 Co. 120, 121. Cro. Jac. 95. Stark. Cr. L. 375, 380. But this doctrine was overruled, or at least qualified, in a late case. The indictment, after stating that the prisoners feloniously and of their malice aforethought, made an assault on the party killed, and threw him down upon the ground; and with their hands and feet, while he was upon the ground, in and upon his head, stomach, breast, belly, back and sides, feloniously, &c., divers times, with great force and violence did strike, beat and kick, and with their hands, feet, and knees did strike, push, press, and squeeze, proceeded thus,-"giving to the said J. D. then and there, as well by the pulling, pushing, casting, and throwing of him, the said J. D. down, unto and upon the ground as aforesaid, and by the striking, beating, and kicking of him the said J. D., whilst he was so lying and being upon the ground as aforesaid, in and upon the head, stomach, breast, belly, back, and sides, of him the said J. D. as aforesaid, as also by the striking, pushing, pressing, and squeezing of him the said J. D., whilst he the said J. D. was so lying and being upon the ground as aforesaid, in and upon the belly, breast, stomach, and sides of him, the said J. D., with the hands, knees, and feet of them the said R. M. and B. M. in manner aforesaid, several mortal bruises, lacerations, and wounds, in and upon the belly, breast, stomach, and sides, of him the said J. D.; " of which said several mortal bruises, lacerations, and wounds, the said J. D., from, &c., did languish, &c.; and then it averred the death and the murder in the usual form. A conviction having taken place, the prisoner's counsel moved in arrest of judgment, that the indictment was insufficient in stating only that there were several mor

was neither described by any name, nor as a child whose name was to the jurors unknown; and an objection on this ground was made in

tal bruises, lacerations, and wounds, on several parts of the body, of which the party languished and died; that a considerable degree of certainty was necessary in the statement of the wounds on the face of the indictment, and of the situation, length, &c. of each; that it was necessary to describe the particular parts of the body on which the wound or wounds is or are alleged to be; that charging a wound to be inflicted on the side or sides of a man is bad, without more particularity, as non constat whether it is to be taken to be the side or sides of the body, or of the head, or of any or of what limb; that the indictment, according to ancient forms, should so state the fact as that a finger might be placed upon the part of the body where the wound is described to be; that this was still requisite, although a conviction might take place upon evidence varying from it, for the particulars ought to be stated accurately, according to the facts as they are supposed to be, for the previous information of the court, and of the party charged, with a view to a due investigation, and in order that it might appear, by such statement of particulars, that a due inquiry had been made by the grand jury of the coroner's inquest as to these circumstances, before a party should be put to undergo the pain and peril of a trial; and that the facts ought not to be wantonly or purposely varied from in such statement; and 2 Hale, P. C. 185, was cited and observed upon. Judgment was respited; and the matter submitted to the consideration of the judges, who met twice for the purpose of considering the case.

At the second meeting the majority of the judges, viz: Gaselee, J., Hullock, B., Garrow, B., Burrough, J., Bayley, J., Graham, B., Alexander, L. C. B., Best, L. C. J., and Abbot, L. C. J., held the conviction right, as it appeared in several old precedents, that the length, breadth, and depth of the wounds were not stated; and also that Mr. Justice Lawrence had instructed the clerk of assize upon the Oxford circuit to omit these particulars when there were more wounds than one, and that his instructions had been followed. And they held that, although they might have felt great difficulty had the precedents been uniform; yet, as there were precedents against the objection, they might consider whether common sense required a statement of these particulars: and as the statement, if introduced, need not be proved, they thought it unnecessary. Littledale, J., and Holroyd, J., differed from the other judges, and thought the indictment bad. Rex v. Mosley and another, cor. Holroyd, J., York Lent Ass. 1825, and decided by the judges at their second meeting, Trin. T. 1825; Ry. & Mood. C. C. 97.

The ground of the preceding decision was, that as common sense did not require the length, depth, and breadth of the wounds to be stated, it was not necessary that they should be stated. And upon the authority of this case, where an indictment stated the length and breadth of a wound, but not the depth, and it was objected that as there was only one wound, the depth ought to be stated; it was held that it was not necessary, for if common sense did not require it where there were several wounds, common sense did not require it where there was only one. Rex v. Tomlinson, 6 C. & P. 370. So where an indictment merely alleged the giving of "one mortal bruise," and it was urged that the dimensions of the bruise ought to have been described, Mr. J. Parke said, "I am disposed to go further than the judges in Mosley's case, and to say that it is not necessary to describe the bruises at all, such rule being, in my judgment, most consistent with common sense." Turner's case, 1 Lewin, 177.

It had long been settled, that though it was considered necessary to state the manner and place of the hurt, and its nature, in order that the indictment might be good as to its formality: yet, if it appeared upon the evidence that the party died of another kind of wound, in another place, the indictment was nevertheless maintainable. 2 Hale, 185, 186; 2 Hawk. P. C. c. 25, § 81. It is necessary, in all cases, that the death by them eans stated should be positively alleged, for it cannot be taken by implication: if, therefore, it be stated that the death was caused by any stroke, the indictment should proceed to aver that the prisoner thereby gave to the deceased a mortal wound or bruise, whereof he died; and an indictment

arrest of judgment: Coleridge, J., held the indictment to be correct; the child being illegitimate, could have no name but by reputation, and

setting forth that the prisoner choaked the deceased, qua suffocatione obiit, instead of de qua suffocatione, &c., was adjudged to be erroneous. 1 Roll. 137; 2 Hawk. P. C. c. 23, § 83. And if the means of the death be alleged to be by poison, it should be averred, after stating particularly the manner in which the poison was administered, that the party died of the poison so taken, and the sickness thereby occasioned. 1 East P. C. c. 5, § 111, p. 343. But an indictment for poisoning, which alleges that the deceased swallowed the poison, and that she died of the sickness caused thereby is good. An indictment stated that the prisoners administered a large quantity of a certain deadly poison, called white arsenic, to the deceased, and that she swallowed down into her body the said white arsenic, by means of which swallowing down the said white arsenic she became mortally sick, of which said mortal sickness she languished from, &c, until &c., on which day she "of the said mortal sickness died;" it was objected, in arrest of judgment, that the indictment ought to have alleged that she died of the poison and of the sickness occasioned thereby, and that it was not suf ficient to allege that by reason of the swallowing of the poison she became mortally sick, and that she afterwards died of the said mortal sickness. Erskine, J., overruled the objection, and, upon a case reserved, the judges held that the indictment was good. Reg. v. Sandys, Erskine, J., Chester Sum. Ass. 1841, and M. T. 1841. 2 Hale, 184. 2 Hawk. P. C. 23, § 82, 83, and Kel. 125, were cited in support of the objection. The surgeon in this case proved that the deceased died of the inflammation caused by the poison. It is apprehended that this indictment was in the most correct form, for a person poisoned never dies of the poison, but always of the effects produced by the poison, and it would be just as correct to say that a party who was stabbed died of the knife, as to say that a party who was poisoned died of the poison. C. S. G. An indictment which stated the death to have been caused by means of ravishing an infant, but omitted to aver that a mortal wound or bruise was given, was holden to be defective. Rex v. Lad, 1 Leach, 96. S. C. 1 C. & Mars. 345. It is sufficient in the indictment to state the act done by the prisoner, and it is not necessary to allege the causes merely natural which contributed to the death. An indietment alleged in several counts that the prisoner administered noxious and deleterious substances to the deceased, and that he died of the sickness occasioned thereby. The two first counts did not state that the deceased was ill, the others did, but they all alleged the death to have been occasioned by the operation of the medicine and the sickness occasioned thereby. C. S. G. The prisoner had administered to the deceased, while ill of small-pox, large quantities of Morison's pills, and his death was thereby accelerated; it was objected that the indictment was not supported by the evidence, which proved nothing more than that the deceased died of a natural disorder, accelerated by improper treatment; than the charge in the indictment was a different one, viz: that the party died solely of a mortal sickness caused by the medicine and improper treatment: that the indictment was framed as though the small-pox had nothing to do with the cause of death; and yet that there was no evidence whatever to show that the party would have died but for that distemper: it was answered that it was not necessary to allege more than the act with which the prisoner was charged: that it was not the practice to allege the state of body in which the deceased might be, however much that state of body might assist to render the act of the prisoner fatal; and the indictment was held good, as all the witnesses agreed that the death was accelerated by the pills. Rex v. Webb, 2 Lewin, 196. S. C. 1 M. & Rob. 405. Lord Lyndhurst, C. B.

In a case where the death proceeded from suffocation, by the the swelling up of the passage of the throat; and such swelling proceeded from wounds occasioned by forcing things into the throat; it was held that the statement might be that the things were forced into the throat, and the deceased thereby suffocated; and that it was not necessary to mention the immediate cause of suffocation; namely, the swelling of the throat. The indictment charged a murder, by forcing and thrusting moss and dirt into the mouth, nose, and throat of a child, by which forcing and thrusting of the moss and dirt into the mouth, &c., the child