greater number is taken in, the watermen shall be transported as felons. to, and do enjoy; and in case any greater number of persons shall be received, taken into, or carried, in any such tilt-boats, row-barges, ferry-boats, or other boats or wherries than are respectively allowed to be carried as aforesaid, and any passenger or passengers shall then be drowned, every such person or persons who shall work or navigate such tilt-boats, row-barges, ferry-boats, or other boats or wherries, offending therein, and being thereof lawfully convicted, shall be deemed guilty of felony, and shall be transported as felons. MISPRISION OF FELONY. If the sheriff, coroner, or any other bailiff within a franchise, or without, for reward, or for prayer, or for fear, or for any manner of affinity, conceal, consent, or procure to conceal the felonies done in their liberties; or otherwise will not attach nor arrest such felons there, as they may, or otherwise will not do their office, for favour borne to such misdoers, and be attainted thereof, they shall have one year's imprisonment, and after make a grievous fine, at the king's pleasure, if they have wherewith; and, if they have not whereof, they shall have imprisonment of three years. 3 Hen. 7, c. 1. The justices of the peace of every shire of this realm, for the time being, may take by their discretion an inquest, whereof every man shall have lands and tenements to the yearly value of forty shillings, at the least, to inquire of the concealments of other inquests taken afore them, and afore others, of such matters and offences as are to be inquired and presented afore justices of the peace, whereof complaint shall be made by bill, or by bills, as well within franchise as without. And, if any such concealment be found of any inquest, as is afore rehearsed, had or made within the year afore the same concealment, every person of the same inquest to be amerced for the same concealments, by discretion of the same justices of the peace; the said amerciaments to be sessed in plain sessions. Punishment of principal and accessories in murder: MURDER. 9 Geo. 4, c. 31. III. Be it enacted, that every person convicted of murder, or of being an accessory before the fact, to murder, shall suffer death as a felon; and every accessory after the fact, to murder, shall be liable, at the discretion of the court, to be transported beyond the seas for life, or to be imprisoned, with or without hard labour, in the common gaol or house of correction, for any term not exceeding four years. execution IV. And be it enacted, that every person convicted of Period of murder shall be executed according to law on the day and marks next but one after that on which the sentence shall be of infamy. passed, unless the same shall happen to be Sunday, and in that case, on the Monday following; and the body of every murderer shall, after execution, either be dissected or hung in chains, as to the court shall seem meet; and sentence shall be pronounced immediately after the conviction of every murderer, unless the court shall see reasonable cause for postponing the same; and such sentence Sentence to shall express not only the usual judgment of death, but also the time hereby appointed for the execution thereof, mediately and that the body of the offender shall be dissected or after conhung in chains, whichsoever of the two the court shall order provided always, that after such sentence shall have been pronounced, it shall be lawful for the court or judge to stay the execution thereof, if such court or judge shall so think fit. be pronounced im viction, Power to respite. of murder V. And be it enacted, that whenever dissection shall The bodies be ordered by such sentence, the body of the murderer, ers to be deif executed in the county of Middlesex or city of London, livered for shall be immediately conveyed by the sheriff or sheriffs, or dissection. his or their officers, to the hall of the Surgeons' Company, or to such other place as the said company shall appoint, and shall be delivered to such person as the said company shall appoint, for the purpose of being dissected; and the body of the murderer, if executed elsewhere, shall in like manner be delivered to such surgeon as the court or judge shall direct, for the same purpose. to murder VI. And be it enacted, that every person convicted of Prison remurder shall, after judgment, be confined in some safe gulations as place within the prison, apart from all other prisoners, ers under and shall be fed with bread and water only, and with no sentence. other food or liquor, except in case of receiving the sacrament, or in case of any sickness or wound, in which case the surgeon of the prison may order other necessaries to be administered; and no person but the gaoler and his servants, and the chaplain and surgeon of the prison, shall have access to any such convict, without the permission, in writing, of the court or judge, before whom such convict shall have been tried, or of the sheriff or his deputy provided always, that in case the court or judge shall think fit to respite the execution of such convict, such court or judge may, by a licence in writing, relax, during the period of the respite, all or any of the restraints or regulations hereinbefore directed to be observed. British sub- VII. And be it enacted, that if any of his majesty's jects may be subjects shall be charged in Englund with any murder or England for manslaughter, or with being accessory before the fact to tried in murder abroad. any murder, or after the fact to any murder or mancommitted slaughter, the same being respectively committed on land out of the united kingdom, whether within the king's dominions or without, it shall be lawful for any justice of the peace, or the county or place where the person so charged shall be, to take cognizance of the offence so charged, and to proceed therein as if the same had been committed within the limits of his ordinary jurisdiction; and if any person so charged shall be committed for trial, or admitted to bail to answer snch charge, a commission of oyer and terminer under the great seal shall be directed to such persons, and into such county or place as shall be appointed by the lord chancellor, or lord keeper, or lords commissioners of the great seal, for the speedy trial of any such offender; and such persons shall have full power to inquire of, hear, and determine all such offences, within the county or place limited in their commission, by such good and lawful men of the said county or place as shall be returned before them for that purpose, in the same manner as if the offences had been actually committed in the said county or place: provided always, that if any peers of the realm, or persons entitled to the privilege of peerage, shall be indicted of any such offences, by virtue of any commission to be granted as aforesaid, they shall be tried by their peers in the manner heretofore used: provided, also, that nothing herein contained shall prevent any person from being tried in any place out of this kingdom for any murder or manslaughter committed out of this kingdom, in the same manner as such person might have been tried before the passing of this act. Proviso. Provision of murder and man slaughter, where the death, or the cause of death only, happens in England. VIII. And be it enacted, that where any person, being for the trial feloniously stricken, poisoned, or otherwise hurt upon the sea, or at any place out of England, shall die of such stroke, poisoning, or hurt in England, or being feloniously stricken, poisoned, or otherwise hurt at any place in England, shall die of such stroke, poisoning, or hurt, upon the sea, or at any place out of England, every offence committed in respect of any such case, whether the same shall amount to the offence of murder or of manslaughter, or of being accessory before the fact to murder, or after the fact to murder or manslaughter, may be dealt with, inquired of, tried, determined, and punished in the county or place in England, in which such death, stroke, poisoning, or hurt shall happen, in the same manner, in all respects, as if such offence had been wholly committed in that county or place. Note. The venue in an indict- stroke is given in one county, and ment for murder, in cases where the the death takes place in another, may be laid in either county: see ante, tit. "Indictment." For the manner of laying the venue in cases where the stroke is given at sea, &c., see the 8th section of this statute. The allegation, in indictments for murder, of the prisoner's not having the fear of God," &c. &c., the allegation, vi et armis, and that of the deceased having been in the peace of God,&c., though usual, are not necessary: 2 Stark. Cr. Pl. 385. The description of the injury is usually prefaced by a necessary averment, that the defendant, "in and upon A. B., feloniously, wilfully, and of his malice aforethought, did make an assault, &c.:" 1 Stark. Cr. Pl. 91; R. v. Belfryman, Leach, 641. If the name of the deceased be not known, he may be described as a certain person, to the jurors unknown: 1 E. P. C. 345. But a bastard child cannot be described by his mother's name, if he has not gained that name by reputation: Frances Clarke's case, R. & R. 358. When the death is occasioned by a weapon, it is usual to allege the manner in which the weapon was held, and to state its value: see ante, tit. "Indictment," and 2 H. P. C. 185. It is especially necessary to set forth, particularly, the manner of the death, and the means by which it was effected; and an omission in this respect is not aided by a general conclusion, that the defendant so murdered, &c. Therefore, if a person be indicted for one species of killing, as by poisoning, he cannot be convicted by evidence of a totally different species of death, as by shooting, starving, or strangling. But if the means of death proved agree in substance with that charged, it is sufficient. And, therefore, if the death be charged to have been occasioned by a weapon described in the indictment, and the weapon vary from that de scription; as, for instance, if a wound or bruise be alleged to be given with a sword, and it prove to be with a staff or axe, the variance is immaterial, 1 E. P. C. 341; and in Sharwin's case, cited ibid., it was held, that an allegation of an assault with a wooden staff is satisfied by evidence of an assault with a stone, the effect being the same. In like manner, if the death be laid to be by one sort of poisoning, and it turn out to be by another, the variance is immaterial. When the death is occasioned by a wound, bruise, or other assault, the stroke should be expressly laid; and for want of this averment, an indict. ment, stating that the party of malice aforethought murdered or gave a mortal wound, without saying that he struck, &c., was held bad: 1 E. P. C. 342; R. v. Long, 5 Rep. 122, a. The indictment should also show in what part of the body the deceased was wounded; and, therefore, if it be super brachium, or manum, or latus, without saying either right or left, it is not good: 2 H. P. C. 185. where a wound is given, the length and depth of it must be shown: 2 H. P. C. 186; Haydon's case, 4 Rep. 42, a. It is said, nevertheless, that though the manner and place of the hurt and its nature be requisite, as to the formality of the indictment, and that they should be laid as near the truth as may be, yet, if upon evidence it appear to be another kind of wound, in another place, if the party died of it, it is sufficient to maintain the indictment: 2 H. P. C. 186. But where there are many wounds, it has been decided, that the length and breadth of each need not be stated: R. v. Mosley, R. & M. 97. For more, as to averments regarding the wound, the cause of death, &c., see Young's case, 4 Rep. 40; Walker's case, 4 Rep. 41; R. v. And 2 pened within the time limited. The indictment is concluded by charging the murder upon the party by way of consequence from the antecedent matter, and the word murdered is indispensable: 2 H. P. C. 187. Where the grand jury return the bill of indictment only a true bill for manslaughter and ignoramus as to the murder, it seems to be the practice in some circuits to strike out, in the presence of the grand jury, the words "maliciously," and of malice aforethought,' and "murder," and to leave so much as makes the bill to be one for manslaughter; but it has been thought safer to present a new bill to the grand jury for manslaughter: 1 Russ. 471; 2 H. P. C. 162. If, as as is very commonly the case, there be an indictment for murder, and the coroner's inquisition for the same offence against the same person, at the same sessions of gaol delivery, the usual practice appears to be to arraign and try the prisoner upon both, in order to avoid the plea of autrefois acquit, or attaint, and to indorse his acquittal or attainder upon both presentments: 1 E. P. C. 371. Lorkin, 1 Bulstr. 124, 2 H. P. C. Murder is where a man of sound memory, and of the age of discretion, unlawfully kills within the realm any reasonable creature in rerum naturâ under the king's peace, with malice aforethought, either express or implied, so as the party wounded or hurt, &c. died of the wound or hurt, &c. within a year and a day after the same: 3 Inst. 47. In this definition of murder, the principal point to be considered is the malice. Malice express is that which appears from extrinsic circumstances, as lying in wait, menaces, &c.; malice implied is that which is presumed from the act itself, until that presumption be rebutted by circumstances to the contrary. And the most usual instance of this kind of |
