In the case of mnrder committed abroad, the indictment states that "A. B. being a subject of our Lady the Queen, on the day of in the year of our Lord, on land, out the United Kingdom of Great Britain and Ireland, to wit, at [Boulogne in the Kingdom

of France,] feloniously, *wilfully, and of his malice afore- [*208] thought, &c.,(a)

In the case of murder at sea, the offence is alleged to have been committed "on the high seas."(b) It is not necessary to allege that it was committed within the jurisdiction of the Admiralty; (c) nor need the indictment conclude "Contra formam statuti.”(d)[1]

(a) See stat. 9 G. 4, c. 31, s. 7, and ante, p. 66; and see R. v. Azzopardi, 1 Car. & K. 203. As to the venue, see ante, p. 66.

(b) See 7 & 8 Vict. c. 2, s. 1, ante, p. 68.

(c) R. v. Jones et al., 2 Car. & K. 165. (d) R. v. Serva et al., 2 Car. & K. 23. As to the venue, see ante, p. 66.

of Emma, and drowned on the 11th of the same month, when about six weeks old, and that up to the time of the baptism she was not called by any name, but that from the 9th to the 11th of September she was called Emma Evans, Evans being the mother's name; it was held that there was sufficient evidence of reputation for the consideration of the jury, and that this case was distinguishable from the last, because there was no evidence there, that the child was ever called Waters at all. Reg. v. Evans, C. & P. 765. Erskine and Patteson, Js. See Rex v. Sheen, 2 C. & P. 639. It is not necessary to state the addition of the party killed, though it may sometimes be convenient to do so for the sake of distinction. 2 Hale

182.

In Indiana, (Dias v. State, 7 Blackf. Rep. 20,) an indictment concluding with an allegation that the prisoner did kill and murder, omitting the name of the deceased in such conclusion, was held to be sufficient.

An indictment upon which it does not appear that the death happened within a year and a day after the wound was given, is fatally defective; because when the death does not ensue within a year and a day, after the wound is inflicted, the law presumes that it proceeded from some other cause. State v. Orrell, 1 Dev. 139.

The Venue.

[1] The venue is stated in the margin next after the caption, thus:-"Saratoga County, ss."-" City and County of New York, ss." See The United States v. Grush, 5 Mason, 290, 302. Where an indictment commences, "State of Tennessee, Hardin County, and the offence is laid to have been committed "in the county aforesaid," the venue is well laid. Barnes v. State, 5 Yerger, 186. In North Carolina, it is held, that an indictment is sufficient without a venue, if it lay the commission of the offence within the jurisdiction of the court. State v. Glasgow, Cam. & Nor. 38, and an indictment ought to show expressly, that the county in which the offence was committed was within the jurisdiction of the court. State v. Adams, Martin (N. Car.) 33. The place where the offence was committed, must be charged on the body of the commitment; it is not sufficient to charge it in the margin only. Missouri v. Cook. 1 Miss. 547. See Stephen's case, 2 Leigh, 759; State v. Godfrey, 3 Fairf. 361.

When an offence shall have been committed within this state, on board of any vessel, an indictment may be found in any county through which or any part of which such vessel shall be navigated in the course of the same voyage or trip, or in the county where such voyage or trip shall terminate. Where the mortal wound, &c. is given in one county and death takes place in another, the indictment may be found in the county where the death happened.

There is a similar statute in New York. 2 R. S. (4th ed. Banks, Gould & Co. 1852) p. 910, sec. 45. In Massachusetts and Maine, any offence committed on the boundary of two coun

Evidence.

To support this indictment the prosecutor must prove

1. That the prisoner killed the deceased. Lord Hale(a) lays it down as a general rule, never to convict a person of murder, unless the body

(a) 2 Hale, 290.

ties, or within one hundred rods of the dividing line, may be alleged in the indictment to have been committed, and may be prosecuted and punished in either county. R. S. of Mass. ch. 133, sec. 7; R. S. of Maine, ch. 166, sec. 4. Also, in Wisconsin. R. S. of Wis. ch. 141, sec. 7. See 2 R. S. 4th ed. p. 811, secs. 47 and 50; R. S. of Wis. ch. 141, secs. 8, 9; R. S. of Mass. ch. 133, sec. 8; R. S. of Maine, ch. 166, secs. 5 and 6.

In Massachusetts, by statute, 1795 ch. 45, (R. S. ch. 123, secs. 8, 9,) when any person is feloniously struck, poisoned, or injured in one county, and dies of the same stroke, &c. in another county-and when any person is struck, &c. on the high seas without the limits of the state, and dies of the same stroke in the state the offender may be indicted and tried in the county where the death happened. This statute is not repugnant to the declaration in the constitution of the state, that in criminal prosecutions the verification of the facts in the vicinity where they happen is one of the greatest securities of the life, &c. of the citizen. Com. v. Parker, 2 Pick. 550.

If a person be stabbed, in Virginia, and die of his wounds in another state, he cannot be tried for the murder in any county in Virginia; but he may be tried for the stabbing in the county where the blow was inflicted. Com. v. Linton, 2 Va. Cas. 205.

An indictment for murder, which stated that A. B., late of Bladen county, &c., with force and arms, in the county aforesaid, &c. was held to contain a sufficient description of the place where the murder was alleged to have been committed. State v. Lamon, 3 Hawks 175.

Jurisdiction of the United States Courts, in Murder.

The courts of the United States have jurisdiction of murder, &c., committed on the high seas, although not committed on board a vessel of the United States; as if she has no national character, but is held by pirates not lawfully sailing under the flag of any foreign nation. If the offence be committed on board of a foreign vessel, by a citizen of the United States, or on board a vessel of the United States by a foreigner, or by a citizen or foreigner on board a piratical vessel, the offence is equally cognizable by the courts of the United States. United States v. Holmes and others, 5 Wheat. 412; United States v. Pirates, 5 Wheat. 184, et seq. But they have not jurisdiction of a murder committed by one foreigner on another foreigner, or board a foreign vessel, on the high seas.

5 Wheat. 184, et seq.

By sec. 12 of the above mentioned statute, it is enacted that if any seaman or other person shall commit manslaughter upon the high seas, &c., &c., such person being thereof convicted, shall be imprisoned, &c.

Under this section the courts of the United States have no jurisdiction of manslaughter committed by the master upon one of the crew on board a merchant vessel of the United States, lying in the river Tigris, thirty-five miles above its mouth, one hundred yards from the shore, below water mark. The description of places in sec. 8, cannot be conferred to sec. 12, so as to give jurisdiction of manslaughter committed in the river of a foreign country, and not on the high seas. United States v. Wiltberger, 5 Wheat. 76. See S. C. 3 Wash. C. C. Rep. 515.

The statute of 1825, c. 276, § 5, (3 U. S. Laws, 2000, Story's ed.) has given jurisdiction to the courts of the United States, of offences committed on board a ship belonging to a citizen of the United States, while lying in a port or place within the jurisdiction of any foreign state or sovereign, by any of the company of the ship, or any passenger, in the same manner as if the offence had been committed on the high seas-with a proviso, that a trial

have been found. And where a girl was indicted for the murder of her illegitimate child, and the evidence was that about six o'clock in the evening she was seen with the child, going in the direction from the place where she had been in service towards her father's, that she arrived between eight and nine at the father's without the child, and

for the offence in a competent court of such foreign state or sovereign, shall exempt the offender from another trial in a court of the United States.

The 6th, 7th, 8th, and 22d sections of the statute provide for the punishment of divers offences committed "upon the high seas, or in any arm of the sea, or in any river, haven, creek, basin, or bay, within the admiralty jurisdiction of the United States, and out of the jurisdiction of any particular state.”

In this statute, the words "high seas mean the unenclosed waters of the ocean on the sea-coast outside of the fauces terræ. Where an arm of the sea, or creek, haven or bay, is so narrow that a person standing on one shore can reasonably discern, and distinctly see, by the naked eye, what is doing on the opposite shore, the waters are within the body of a county. The state courts have jurisdiction of offences committed on arms of the sea, creeks, &c., within the ebb and flow of the tide, when those places are within the body of a county; and the courts of the United States have no jurisdiction under this statute. But it seems that in such waters the admiralty and common law courts have concurrent jurisdiction. United States v. Grush, 5 Mason, 290, Lewis' Cr. Law, pp. 384-5.

To give the circuit court of the United States, jurisdiction of the crime of murder, not only the stroke, but the death, must happen on the high seas. U. S. v. Magill, 1 Wash. C. C. Rep. 463.

It has been held that, under the United States statutes of the 30th April, 1790, c. 9, § 8, the "high seas mean any waters on the sea coast which are without the boundaries of low water mark. U. S. v. Ross, 1 Gallis, 624. A vessel lying outside of the bar of a harbor of the United States, within three miles of the shore, is on the high seas. U. S. v. Smith, 1 Mason, 147. Waters of havens, where the tide ebbs and flows are not properly the high seas, unless those waters are without low water mark. U. S. v. Hamilton, 1 Mason, 152. The words "high seas," in the act of congress of 1825, section 22, mean the unenclosed waters of the ocean on the sea coast, ouside of the fauces terræ. U. S. v. Grush, 5 Mason, 290. A vessel at anchor in a foreign open roadstead, is "upon the high seas," within the act of 1790, section 8. U. S. v. Pirates, 5 Wheaton, 184. Admitting that the 3d article of the constitution of the United States which declares that "the judicial power of the United States shall extend to all cases of admiralty and maritime jurisdiction," vests in the United States exclusive jurisdiction of all such cases; and a murder committed on the waters of a state where the tide ebbs and flows is a case of admiralty and maritime jurisdiction; still congress have not exercised the power of conferring jurisdiction on the courts of the United States in such cases. Such cases are within the jurisdiction of the state where the offence was committed. U. S. v. Bevans, 3 Wheat. 336; 4 Pet. Cond. R. 279. To give jurisdiction to the United States courts under the 8th section of the act of 1790, it is the river, haven, bay, &c., and not the offence, which must be “out of the jurisdiction of the state." This section is not repealed by the act of 3rd March, 1819. U. S. v. Pirates, supra. The courts of the United States have jurisdiction of a murder committed on the high seas from a vessel of the United States, by a foreigner or board such vessel upon another foreigner on board of a foreign vessel. But they have no jurisdiction of a murder committed by one foreigner upon another foreigner, both being on board a foreign vessel. The words "out of the jurisdiction of any particular state" refer to the states of the Union. The courts of the United States have jurisdiction under the act of April 30, 1790, of a murder commited on the high seas, although not committed on board of a vessel of the United States, as, if she had no national character, but was held by prirates, or persons not sailing under the flag of any nation. Lewis Cr. Law, p. 382. U. S. v. Holmes, 5 Wheat. 412. See also 1 Wash. C. C. R. 463; 5 Mason, 28; 4 Mason, 505; 1 Gallis. 62.

that the body of a child was found in a tide river near which she must have passed, but there was no evidence to show that it was her child, and the evidence rather tended to prove that it was not: Lord Abinger, C. B., ruled that as there was no evidence to show that the girl's child was actually dead, she must be acquitted; she could not be called upon to show what had become of it.(a)

But where the indictment was for murder of a captain of a ship by a seaman on the high seas, and a witness proved that being on board of the ship, and hearing a violent noise on the deck, he came up, and he then saw the prisoner take the captain up and throw him into the sea, and that he was never seen or heard of afterwards; and that on the deck, near to where this happened, a billet of wood was found, and the deck and part of the prisoner's dress was stained with blood: this was left as evidence of the killing, and they found the prisoner guilty, and (the conviction being approved of by the judges) he was execu ted.(b)[2]

(a) R. v. Hopkins, 8 Car. & P. 591.

(b) R. v. Hindmarsh, 2 Leach, 569.

The body must be found.

[2] The corpus delicti, that a murder had been committed by some one, is essentially necessary to be proved, and Lord Hale advises that in no case should a prisoner be convicted, where the dead body has not been found-where the fact of murder depends upon the fact of disappearance.

An uncle, who had the bringing up of his niece, to whom he was heir at law, correcting her for some offence, she was heard to say, Good uncle, do not kill me! after which she could not be found. The uncle was committed on suspicion of having murdered her, and was admonished by the judge of the assizes to find out the child by the next assizes. Being unable to discover his niece, he brought another child, dressed like his niece, and resembling her in person and years; but, on examination, the fraud was detected, and upon the presumption of guilt which these circumstances afforded, he was found guilty and executed. The child afterwards re-appeared, when of age, to claim her land. On being beaten by her uncle, she had run away, and had been received by a stranger. Roscoe's Cr. Ev. p. 18.

The rule that the body must be found dead, is adhered to with great strictness in the English courts. Where the father and mother of a bastard child threw it into the dock, and the body was never afterwards found, an acquittal was directed, because the flow of the tide might have carried out the body of the living infant. Case cited by Garrow, arg. in Hindmarsh's case, 2 Leach, 571; Russ. on Cr. 682, note S. C. Though it must be confessed that Hindmarsh's case itself looks much like a departure from a strictness absolutely safe. There a sailor having been seen to throw his captain overboard, it was put to the jury, on the circumstances of a previous scuffle between them, a billet of wood on the deck, and stains of blood on the deck and the prisoner's clothes, whether he had not killed the deceased before he threw him overboard; and so the dead body might be said to have been found (seen) by the witness, within the rule. 2 Leach, 571. Russ. on Cr. 682, S. C.

On this subject, however, Mr. Chitty, (1 Chitty's Cr. Law, p. 738,) says: "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. 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."

It is of little matter by what means the death was effected:—whether by poisoning, or shooting,―stabbing, cutting, or wounding,—whether with a deadly weapon or with a stick or fists,—or by drowning, suffocating, or strangling, or the like.[3]

So if a man deliberately do a thing, calculated to endanger the life of another, and it causes his death, he is guilty of homicide:(a)

as where a jailer, knowing *that a prisoner ill with the small [*209] pox lodged in a certain room, confined another person in the same room against his will; and the second prisoner caught the disease, and died of it: this was holden to be homicide in the jailer.(b) So, where a jailer put a prisoner into a room, the walls of which were damp and unwholesome, and kept him thus confined, without fire, and without the convenience of a chamber pot, &c., for forty-four days, by which the prisoner contracted an ill habit of body, which brought on disease, of which he died: this was holden to be homicide in the jailer.(c) So if spirits be given to a child, in such a quantity as to be quite unfit for its tender age, whereby the child is killed ; (d) or inducing an adult to drink such a quantity of spirits as kills him ;(e) if a man give medicine to a woman to procure abortion, or use instruments for the purpose, and the woman is thereby killed, (g) or the child, by being born before its time, dies :(h) in all these cases, the offending party will be guilty of homicide. Where a woman, being delivered of a child left it in an orchard, covered only with a few leaves and a kite struck it and killed it, this was holden to be homicide in the mother.() So, where a woman was delivered of a child on the high road, and after

(a) 1 Hawk. c. 31, s. 4.

(b) Fost. 322.

(c) R. v. Huggins et al., 2 Str. 882.

(d) R. v. Martin, 3 Car. & P. 211; per Vaughan, B.

(e) See R. v. Packard et al., Car. & M. 236. (g) 1 Hale, 429; Tinkler's case, 1 East, P.

C. 220, 354.

(h) R. v. West, 2 Car. & K. 784.
(i) 1 Hawk. c. 31, s. 6.

In the case of Com. v. Webster, 5 Cush. Rep. 295, the fact of the identity of the body of the deceased, with that of the dead body, parts of which were found at the medical college, was mainly shown by blocks of mineral teeth found in the furnace of defendant's laboratory. These fragments, together with others elsewhere found, having been collected, were identified as those of the deceased, the teeth having been declared by a dentist to be the parts of a set made for the deceased.

The most difficult cases in establishing the corpus delicti are those of infanticide.

Of the Means of Killing.

[3] The killing may be effected by poisoning, striking, starving, drowning, and a thousand other forms of death, by which human nature may be overcome. 4 Bla. Com. 196, moriendi mille figuræ, 1 Hale, 431; 1 Hawk. P. C. c. 31, s. 4. But there must be some external violence, or corporal damage to the party; and therefore where a person, either by working upon the fancy of another, or by harsh and unkind usage, puts him into such passion of grief or fear that he dies suddenly, or contracts some disease which causes his death, the killing is not such as the law can notice. 1 Hale, 427, 429; 1 East, P. C. c. 5, s. 13, p. 225.