( \> I c 
 
 A_ ^ iA-Cf 
 
Cornell University Law Library 
 
 The Moak Collection 
 
 PURCHASED FOR 
 
 The School of Law of Cornell University 
 
 And Presented February 14, 1893 
 
 IN riEnORY OF 
 JUDGE DOUGLASS BOARDMAN 
 
 FIRST DEAN OF THE SCHOOL 
 
 By his Wife and Daughter 
 A. M. BOARDMAN and ELLEN D. WILLIAMS 
 
Cornell University Library 
 KF 9305. W55 
 
 A treatise on the law of homicide In the 
 
 3 1924 020 193 144 
 
Cornell University 
 Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924020193144 
 
A 
 
 TREATISE 
 
 LAW OF HOMICIDE 
 
 UNITED .STATES 
 
 TO WHICH IS APPENDED 
 
 A SERIES OF LEADING CASES ON HOMICIDE, NOW OUT OF PRINT, 
 OR EXISTING ONLY IN MANUSCRIPT. 
 
 FRANCIS WHARTON, 
 
 AUTHOR OF " A TREATISE ON THE CRIMINAL LAW OP THE UNITED STATES," " PRECEDENTS OP 
 IN'DICTMSNTS AND PLEAS," "STATE TRIALS OF THE UNITED STATES," ETC. 
 
 PHILADELPHIA: 
 KAY & BROTHER, 17 & 19 SOUTH FIFTH STREET— EAST SIDE, 
 
 FIRST STORE ABOVE CHESTNUT, 
 LAW BOOKSELLEKS AN1> PUBLISHEES. 
 
 1855. 
 
Entered according to act of Congress in the year 1854, by Kay & Bkother, in the 
 Office of the Clerk of the District Court of the United States, in and for the Eastern 
 District of Pennsylvania. 
 
PREFACE. 
 
 I MAKE claim to very little originality in this book, except- 
 ing so far as relates, (1) to those parts which are peculiar to 
 the criminal law of the United States, (2) to the condensed 
 view of the civil law in relation to criminal evidence given to- 
 wards the close, and (3) to the general arrangement and analysis 
 of the subject-matter. The leading English cases have indeed 
 received from English text-writers so authoritative a discus- 
 sion, and have been for a long time invested with glosses and 
 adjusted in relations to which the professional opinion has been 
 so entirely reconciled, that it would have been presumptuous 
 in me to have subjected them, so far as the common law is 
 concerned, to a fresh review. I have, therefore, in transferring 
 them to my own pages, taken them in the language and with 
 the commentary of Mr. East and Sir W. Russell, the most co- 
 pious and faithful, if not the most philosophic, of the English 
 authorities' on this branch of jurisprudence. 
 
 So far as concerns the American portions of the following 
 pages, they will speak for theniselves. I cannot, however, 
 omit here to express the acknowledgments which I feel are 
 due to a great master of criminal law, whose labours in that 
 field, I fear, are now closed. Edward King was president of 
 the Court of Common Pleas in Philadelphia from 1826 to 1852^ 
 during which period the entire criminal practice of that juris- 
 diction, with very few exceptions, passed under his super- 
 vision, and was moulded by his hands. By him the accepted 
 exposition of the statute discriminating murder into two de- 
 grees, was first framed ; and wherever, in the numerous States 
 
PKBFACB. 
 
 in which that statute has been adopted, the learning of that 
 branch of homicide is considered, it is upon his simple and yet 
 most luminous commentary on that once vexed question, that 
 both counsel and courts finally repose. Of the same manly 
 and just power of comprehension and perspicuousness of style, 
 the charges and opinions, at the close of this volume, on Riot- 
 ous Homicide, may be taken as still more signal illustrations; 
 and I am glad to have the opportunity of saying now, what I 
 was unwilling to say at the time of its publication when Judge 
 King was on the bench and in the meridian of his intel- 
 lectual faculties and reputation, that whatever credit the first 
 edition of my work on Criminal Law is entitled to, is due 
 in part to his opinions, which were interspersed in its pages, 
 but chiefly to the general tone of sentiment I gathered from 
 him during a period of two years in which I occupied an 
 official position which brought me in constant intercourse 
 with him while in the exercise of his judicial functions. Ten 
 years have passed since then; many changes have taken 
 place; in the vicissitudes of life, particularly of judicial life, 
 new objects of official respect and personal admiration have 
 arisen before the bar; before another opportunity like the pre- 
 sent would enable me to speak, death itself might come in to 
 close the power of the one to hear or the other to tender such a 
 tribute as the present; and I am admonished therefore to take 
 this moment of recording my acknowledgments, and, as I 
 conceive, those of all who are interested in the administration 
 of penal justice, to a judge who, I think, has done more than 
 any other living man to establish in our midst a wise, liberal 
 and humane system of criminal jurisprudence. If in the pre- 
 sent volume I have contributed anything towards bringing 
 such a system more fully before the professional eye, my 
 labours will be amply rewarded. 
 
 F. W. 
 
TABLE OF CONTENTS. 
 
 HOMICIDE. 
 CHAPTER I. 
 
 GENERAL CLASSIFICATION AND DEFINITION, . . - 34 
 
 I. Murder, ..... 34 
 
 II. Manslaughter, . . . . .35 
 
 III. Excusable Homicide, .... 36 
 
 IV. Justifiable Homicide, - . . .37 
 
 CHAPTER n. 
 
 HOMICIDE FROM INDIVIDUAL MALICE, . . . .38 
 
 I. Towards the party killed, ... 38 
 
 (1.) Intent to kill, ..... 39 
 
 (2.) Intent to do bodily harm, ... 41 
 II. Towards a third party, when the blow falls on the 
 
 deceased by mistake, .... 42 
 
 CHAPTER ni. 
 
 HOMICIDE FROM GENERAL MALICE, OR FROM COLLATERAL UNLAW- 
 FUL PURPOSE, . . . • .45 
 L General depraved inclination, ... 45 
 II. Intent to commit collateral felony, . . .46 
 
 III. Intent to commit collateral misdemeanor, . 46 
 
 IV. Intent to resist authority, or to create public dis- 
 
 turbance, ..... 46 
 
 CHAPTER IV. 
 
 HOMICIDE BY OFFICERS OP JUSTICE AND PERSONS AIDING THEM, 
 
 I. In obedience to a writ of execution, 
 II. In effecting an arrest, 
 
 (1-^ Civil, . - . . , . 
 
 (2.) Criminal, .... 
 
 III. In prevention of an escape, 
 IV- In preservation of the peace, 
 V. When acting improperly, or with unnecessary severity, 
 VL When acting without authority. 
 
 47 
 47 
 47 
 47 
 
 48 
 50 
 51 
 52 
 
 52 
 
 VII. When acting in self-defence, ... 53 
 
Tl CONTENTS. 
 
 
 CHAPTER V. 
 
 
 HOMICIDE OF OFFICEKS OF JUSTICE, AND OTHEKS AIDING THEM 
 
 , 54 
 
 I. Who have anthoritj to arrest, . 
 
 56 
 
 1st. Officers of justice, 
 
 56 
 
 (1.) Constables and policemen, 
 
 56 
 
 ^2.1 Bailiffs and tipstaves, in civil matters, 
 
 58 
 
 (3.) Officer acting out of jurisdiction, or without 
 
 
 warrant, .... 
 
 59 
 
 (4.) Notice, what constitutes it, and the effect of 
 
 want of it, ... 
 
 60 
 
 (5.) By whom a warrant may be executed, 
 
 62 
 
 (6.) How long a warrant continues in force, 
 
 63 
 
 (7.^ When process is illegal, . 
 
 (8.) When arrest is made without any warrant. 
 
 64 
 
 68 
 
 2d. Ships' officers, .... 
 
 71 
 
 3d. Private persons, 
 
 71 
 
 II. In what eases, ..... 
 
 74 
 
 1st. Felonies, .... 
 
 74 
 
 2d. Misdemeanors, .... 
 
 75 
 
 3d. Affrays, .... 
 
 77 
 
 4th. Street-walkers and vagrants. 
 
 82 
 
 III. When an arrest may be made. 
 
 82 
 
 IV. Officers taking opposite parts, . 
 
 83 
 
 V. How arrests may be made, and herein of breaking 
 
 
 open doors, ..... 
 
 84 
 
 VI. How far third parties may resist, 
 
 89 
 
 CHAPTER VI. 
 
 
 INFANTICIDE AND SELF-MUEDER, .... 
 
 93 
 
 I. Infanticide, ..... 
 
 93 
 
 II. Self-Murder, 
 
 98 
 
 CHAPTER Vn. 
 
 HOMICIDE BY NEGLIGENCE, ..... 
 
 I. Officers of steam and other vessels, 
 
 II. Persons driving or riding, .... 
 
 III. Persons having charge of children or of dependants, 
 
 IV. Medical men, apothecaries, &c., 
 V. Manufacturers and workmen, 
 
 VI. Prize-fighters, and persons engaged in athletic sports, 
 VII. Persons from mischief, or other collateral unlawful 
 purpose, doing bodily harm, 
 
 101 
 112 
 117 
 131 
 144 
 147 
 
 149 
 
CONTENTS. 
 
 VII 
 
 CHAPTER VIII. 
 
 PRINCIPALS AND ACCESSAKIES IN HOMICIDE, 
 
 I. Statutes, . . . • 
 
 1st. United States, . 
 
 2d. Massachusetts, 
 
 3d. New York, 
 
 4tli. Pennsylvania, 
 
 5th. Virginia, 
 
 (1.) Principals in first degree, 
 (2.^ Principals in second degree, 
 (3.) Accessaries before the fact, 
 (4.) Accessaries after the fact, 
 
 153 
 153 
 153 
 153 
 154 
 154 
 155 
 155 
 157 
 162 
 166 
 
 2d. 
 3d. 
 4th. 
 5th. 
 
 CHAPTEE IX. 
 
 DEFENCE IN HOMICIDE CASES, ..... 168 
 
 I. Provocation, ..... 168 
 
 1st. Words, gestures, and other light provocations, . 168 
 
 (1.) When the intent is to kill, . . 168 
 
 (2.) When it is only to chastise, . . . 175 
 
 Dishonour, ..... 177 
 
 Cooling time, ..... 179 
 
 Trespass, ..... 185 
 
 Blows, . . . . . .186 
 
 (1.) When the parties are equal, . . 186 
 When there is a disparity in strength or weapons, 189 
 Where the intent is to kill, . . 194 
 Where the intent is to chastise, . . 196 
 Where the mortal blow is given after the de- 
 ceased was disarmed or helpless, . 197 
 (6.) Where the attack is sought by the party kilUng, 197 
 ^7.) Where the revenge is cruel and unusual, . 197 
 (8.1 When there was an old grudge, . . 198 
 (9.) Where a third party interferes in the combat 
 
 of others, .... 201 
 
 6th. Restraint or coercion, .... 203 
 
 7th. Duelling, ..... 204 
 
 II. Misadventure, . . . . .208 
 
 III. Excuse and justification, . . . 211 
 
 1st. Repulsion of a felonious assault, . . 212 
 
 (1.) On person, .... 212 
 
 U.) What the nature of the assault must be, . 212 
 
 (b.) How far retreat is necessary, . . 213 
 
 (c.) What certainty must exist as to felonious intent, 214 
 
 (d.) By whom the right may be exercised, 230 
 
 (e.) How far want of premeditation is necessary, 230 
 
 (2.) On property, .... 232 
 
Vlll 
 
 CONTENTS. 
 
 2d. Execution of the law, 
 
 3d. Killing of fugitives from arrest, 
 
 4th. Self-preservation in shipwreck, 
 
 IV. Death from other causes, 
 V. Character of the defendant, 
 
 VI. Character of the deceased, 
 
 235 
 285 
 236 
 241 
 244 
 249 
 
 CHAPTEK X. 
 
 INDICTMENT, PLEAS 
 
 I. Name, . 
 
 AND VERDICT, 
 
 II. 
 III. 
 
 IV. 
 
 V. 
 
 VI. 
 
 VII. 
 
 VIII. 
 
 IX. 
 
 X. 
 
 XI. 
 
 XII. 
 
 XIII. 
 
 xrv. 
 
 XV. 
 XVI. 
 
 XVII. 
 
 XVIII. 
 
 XIX. 
 
 XX. 
 XXI. 
 
 XXII. 
 
 Addition, ..... 
 Time and place, .... 
 
 'Force and arms," .... 
 'Moved and seduced by the instigation of the devil,' 
 'In and upon one E. I\," . . . 
 
 'In the peace of Grod, and the said State, then anc 
 
 there being," .... 
 'Feloniously, wilfully, and of his malice afore 
 
 thought, did make an assault," 
 With a certain knife" (means of death,) 
 Of the value of, &c.," 
 Which he, the said A. B., in his right hand then 
 
 and there had and held," 
 'Him, and the said E. F., in and upon the left 
 
 breast of him, the said E. F., 
 
 Then and there feloniously, 
 malice aforethought," . 
 
 wilfully, and of his 
 
 Did strike and thrust, giving to the said E. F. 
 then and there, with the knife aforesaid," 
 
 In and upon the said left side of the breast of him 
 the said E. F.," ... 
 
 One mortal wound of the breadth of three inches 
 and of the depth of one inch," . 
 
 Of which said mortal wound the said E. F. from 
 &c., to, &c., at, &c., did languish, and Ian 
 guishingly did live," 
 
 Of which the said, &c., at, &c., of the wound afore- 
 said, did die," .... 
 
 And so the jurors 'aforesaid, &c., do say, that the 
 
 said A. B., him, the said E. F., in manner and 
 
 form as aforesaid, feloniously, wilfully, and of 
 
 his own malice aforethought, did kill and 
 
 murder," . . . . . 
 
 "Contrary to the form," &c.. 
 
 Distinctive features of manslaughter. 
 
 Pleas, ...... 
 
 XXIII. Verdict, 
 
 250 
 250 
 251 
 254 
 256 
 257 
 257 
 
 259 
 
 260 
 261 
 267 
 
 267 
 
 267 
 
 268 
 
 269 
 
 272 
 272 
 
 274 
 274 
 
 276 
 277 
 282 
 282 
 284 
 
CONTENTS. IX 
 
 CHAPTER XI. 
 
 HOMICIDE AS AFFECTED BY SLAVERY, .... 
 
 I. Homicide of slave by master, or other white person, 286 
 II. Homicide of master or other free person, by slave, 288 
 
 CHAPTER XII. 
 
 EVIDENCE IN HOMICIDE, ..... 306 
 
 1. Dying declarations, . . . 306 
 
 2. Proof of corpus delicti, . . . 312 
 
 3. Presumptions, .... 318 
 1st. Presumptions drawn from marks of violence indi- 
 cating, ..... 319 
 
 (1.) "Weapon used, .... 319 
 (2.) Whether the wounds were accidental, self-in- 
 flicted, or given by another, . . 320 
 (3.) Whether the wounds, if given by another, are 
 to be considered as the result of a momentary 
 passionate impulse, or of premeditation, 321 
 2d. Presumptions drawn from the instrument of death, 322 
 3d. Presumptions drawn from poison, . . 323 
 4th. Presumptions drawn from materials appropriate 
 
 to be converted into instruments of crime, 328 
 5th. Presumptions drawn from detached circumjacent 
 
 bodies,. .... 330 
 (1.) Position of the deceased, 
 (2.^ Traces of blood, 
 (3.) Liability of the deceased to attack, . 
 
 6th. Presumptions drawn from liability to attack, 381 
 
 (1.) The possession of money or valuable articles, 331 
 
 (2.) An old grudge, such as a previous quarrel, 331 
 
 (3.) Jealousy, .... . 331 
 
 7th. Presumptions in infanticide, . . 333 
 
 (l.) Condition of the body of the child, . . 333 
 
 ^2.^ The poison suspected, . . . 336 
 
 ^3.^ Cause of death, .... 337 
 
 (4.) Quickness, .... 339 
 
 CHAPTER XIII. 
 
 KIOTOUS HOMICIDE, ...... 344 
 
 I. The responsibility incurred by individuals who, though 
 not actually and specifically parties to the overt act, 
 are present, and consenting to the assemblage by 
 whom it is perpetrated, .... 345 
 II. How far provocation affects the degree, . . 350 
 
 (1.) Hot blood, . . . . .350 
 
 (2.) Cooling time, .... 351 
 
 (S.\ Public wrong, . . . . .352 
 
 (4.) Killing innocent third parties, . . 353 
 
CONTENTS. 
 
 CHAPTEK XIV. 
 
 MURDER IN THE SECOND DEGREE, .... 354 
 
 (1.) Wilful, 368 
 
 (2.) Deliberate, ..... 369 
 
 (3.) Premeditate, . ... . 372 
 
 (4.) Indictment and verdict, . . . 387 
 
 APPENDIX. 
 
 Smith's Case — Malice — Provocation, . . ' . 389 
 
 Selfridge's Case — Provocation — Self-Defence, . 417 
 
 Phila. Riots — Judge King's Charge to Grand Jury, . 460 
 
 Daley's Case — Riotous Homicide — Murder in Second Degree, 466 
 
 Hare's Case, " " " " 477 
 
 Sherry's Case, " _ " " " 481 
 
 Collyer's Case — Steamboat Negligence, . . . 483 
 
 ERRATA. 
 
 P. 112, after note 1, add, "see also, U. S. v. Collyer, Appendix, 483; U. S. v. Tay- 
 lor, Wh. Cr. Law, (3d ed.) p. 416." 
 
 P. 129, note 5, for "6" C. & P. read "7" C. & P. 
 
 P. 187, note 1, 25th line from bottom, for "executed," read "excusable." 
 
 P. 245, after first line of note 3, add, "though see Wh. Cr. Law, 3d ed. 294, where 
 this point is reviewed." 
 
 P. 249, 8th line from bottom, after "great," insert "latitude in the." Note 4, 
 insert "215" before "216, 217." 
 
 P. 286, note 1, 3d line from bottom, read "2 Strob.," instead of "2d Stroth." 
 
 P. 310, text, 12th line from bottom, insert "in Tennessee" at beginning of line. 
 
 P. 345, Dele lines 31 and 32, (IIL IV.) 
 
 P. 361, note 1, for "69 Connect.," read "19 Connect." 
 P. 481, text, 17th line from top, for "writs," read "riots.'' 
 
TABLE OF CASES. 
 
 Allen V. Martin, 10 Wend. 300, 85, 88 
 Allen V. State, 5 Yerger, 453, 168, 186 
 Allistock's cases, 3 Gratt. 650, 276 
 Anderson v. State, 5 Pike, 445, 
 
 260, 276 
 Ann.v. State, 11 Humph. 189, 
 
 124,128,152 
 Antony v. State, 1 Humph. 265, 807 
 Antony v. State, 1 Meigs, 265, 307 
 Aveson V. Lord Kennaird, 6 East, 
 
 198, 310 
 
 Baker's case, 1 Leach, 112, 87 
 
 Barlow v. Bateman, 3 P. Wms. 
 
 54, 251 
 
 Baxter v. The People, 2 Grilman, 
 
 368, 165 
 
 • Beak v. Thyrwhit, 1 Show, 6, 283 
 Beckwith v. Phelby, 6 B. & C. 
 
 638, 677 
 
 Beets V. State, 1 Meigs, 106, 346,310 
 Bennett's case, 11 Leigh, 749, 385 
 Benson v. Offley, 2 Shaw, 570, 161 
 Berry v. Adamson, 6 B. & G . 528, 88 
 Black V. State, 2 Maryl. 376, 284 
 Boles \r. State, 9 Sb.N.L. 284, 45 
 Boom's case, 1 Greenleaf on Ev., 
 
 sec. 214, 313, 318 
 
 Bradley v. Bank, Yelv. 205, 260 
 Brattonv. State,10 Humph. 103, 367 
 Brigg's case, 1 Eol. Eep. 336, 85 
 
 Broumwhich's case, 1 Lev. 180, 204 
 Brown's case, 1 Leach, 148, 230 
 
 Buckners' case, Stylle, 467, 203 
 
 Burdett v. Abbott, 14 East, 157, 85 
 Burgess V. Com., 2 Virg. cases, 
 
 484, 375 
 
 Burton's case, 1 Str. 481, 180 
 
 Busby V. Watson, Bla. Eep. 1050, 256 
 
 Caffire's case, IVentr. 216, 52 
 Campbell v. State, 11 Georgia, 
 
 355, 307 
 
 Carroll v. State, 3 Humph. 315, 244 
 
 Carter v. State, 2 Virg. Cases, 244 
 
 Carter v. People, 2 Hill's N.Y. E. 
 
 217, 311 
 
 Carter v. The State, 2 Carter, Ind. 
 
 617, 264 
 
 Castel V. Bambridge, 2 St. Va. 
 
 854, 856, 316 
 
 Case of Mary Norkot and others, 
 
 14 Sta. Tr. 1324, 320 
 
 Case of the crew of the Pitt packet, 
 
 4 Boston Law Eeporter, 369, 71 
 Chadwell v. Blake, 5 Tirw. 186, 60 
 Clanricard (Earl) v. Stokes, 7 
 
 East, 520, 279 
 
 Claxton V. State, 2 Humph. 181, 213 
 Coffee V. State, 3 Yerg. 283, 34 
 
 Coit V. Starkweather, 8 Com. 280, 253 
 Cole V. Com., 5 Gratt. 696, 247 
 
 Com. V. Andrews, 3 Mass. 126, 165 
 Com. V. Bangs, 9 Mass. 387, 340 
 
 Com. V. Bob, 4 Dall. 125, 
 
 35,374,375 
 Com. V. Bowen, 2 Wheel. C. C. 
 321; 13 Mass. Eep. 359, 
 
 99, 158 
 Com. T. Briggs, 5 Peck, 429, 163 
 Com. V. Burgess, 7 Va. Cases, 484, 
 
 385 
 Com. V. Chauncey, 2 Ashmead, 
 
 227, 44, 359 
 
 Com. V. Crane, Gen. At. of Vir- 
 ginia, 2 Wheeler's C. C. 587, 199 
 Com. V. Crause, 3 Am. L. J. 399, 212 
 Com. V. Daley, Appendix, 466 
 
 Com. V. Daley, 4 Penn. L. Jour. 
 
 153; Appendix, 72, 133, 160, 
 213,230,232 
 Com. V. Dedham, 10 Mass. 146, 254 
 Com. V. Demain, 6 P. L. J. 29, 340 
 Com. v. Dougherty, 1 Brown, Ap- 
 pendix, 18 ; 2 Smith's L. 695, 
 34,43,181,362,368,876,382 
 Com. V. Drew, 4 Mass. 391, 
 
 34, 54, 55, 56, 185, 212 
 Com. V. Dudley, 6 Leigh's Va, 
 
 E. 614, 165 
 
Xll 
 
 TABLE OP CASES. 
 
 Com. V. Earl, 1 Wharton, 525, 264, 284 
 Com. V. Flanagan, 8 Watts& Serg. 
 
 415, 387 
 
 Com. V. Flavel, MSS. 1846, 363 
 
 Com. V. Gable, 7 S. & R. 433, 284 
 Com. V. Gibson, 2 W. C. 70, 276 
 Com. V. Gilbert, 2 Va. Cases, 70, 387 
 Com. V. Gillespie, 7 S. & R. 469, 257 
 Com. V. Green, 1 Ashm. 289, 
 
 41,175,182,316,352,381 
 Com. V. Gregory, 2 Dana, 417, 278 
 Com. V. Haggerty, Lewis's C. L. 
 
 403, 369, 386 
 
 Com. V. Hardy, 2 Mass. 317, 245 
 Com. V. Hare, 4 Penns. Law Jour. 
 
 160, 180, 401 ; (Appendix,) 
 
 72, 386 
 Com. V. Hare, Appendix, 477 
 
 Com. V. Harman, 4 Barr. 269, 
 
 275 315 
 Com. V. Hill, 11 Mass. 136, ' 156 
 Com. Y. Hopkins, 2 Dana, 419, 
 
 244, 247 
 Com. V. Hoxey, 16 Mass. 385, 278 
 Com. V. Jones, 1 Leigh, 610, 
 
 362, 368, 369, 379 
 Com. T. Keeper of Prison, 2 Ash- 
 mead, 227, 44, 359 
 Com. V. Knapp, 9 Pick. 496, 10 
 
 Pick. 477, 164, 
 
 153,158,164,165,167 
 Com. V. Lewis, 1 Met. 151, 352 
 
 Com. V. Linton, 2 Va. Cases, 205, 278 
 Com. V. M'Pike, 3 Cush. 181, 
 
 35,243,311 
 Com. V. Miller, 1 Va. Cases, 310, 387 
 Com. V. Mitchell, 1 Va. Cases, 
 
 716, ' 35 
 
 Com. v. Mosler, 4 Barr. 268, 190, 351 
 Com. V. Mulatto Bob, 4 Dall. 146, 
 
 35,385 
 Com. V. Murray, 2 Ashmead, 57, 
 
 307, 378, 385 
 Com. V. Newell, 7 Mass. 245, 284 
 Com. V. O'Harra, 7 Smith's Laws, 
 
 694, 385 
 
 Com. V. Parker, 9 Mete. 263, 340 
 Com. V. Percival, Thacher's C. C. 
 
 293, 247 
 
 Com. V. Perkins, 1 Pick. 388, 251,253 
 Com. V. Phillips, 16 Mass. 423, 164 
 Com. V. Riley, Thacher's C. C. 
 
 471, 230 
 
 Com. V. Robinson, Thach. Cr. Ca. 
 
 230, 248 
 
 Com. V. Sayers, 8 Leigh, 72?, 254 
 Com. V. Selfridge, Appendix, 417 
 Com. V. Sherry, Appendix, 481 
 
 Com. V. Siebert, Luzerne Co. Jan. 
 
 1852, 227, 249 
 
 Com. V. Sims, 2 Virginia Cases, 
 
 374, 252, 253 
 
 Com. V. Smith, 7 Smith's Law, 
 
 697, Appendix, 34,179,377,385 
 Com. V. Smith, Appendix, 389 
 
 Com. V. Springfield, 7 Mass. 9, 256 
 Com. V. Squires, 1 Meto. 258, 285 
 Com. V. Thompson, 5 Massachu- 
 setts, 134, 33, 142 
 Com. V. Webb, 6 Randolph, 221, 385 
 Com. V. Webster, see " Webster's 
 
 Case," 5 Cushing, 535, 
 
 244, 245, 265, 317 
 Com. V. White, 6 Binney, 183, 
 
 267, 270, 277, 387 
 Com. V. Wicks, 2 Virginia Cases, 
 
 387, 387 
 
 Com. V. Williams, 2 Ashmead, 
 
 69, 307, 381, 382 
 
 Com. V. Williamson, 2 Virg. Ca. 
 
 211, 163, 164 
 
 Com. V. Woodward, Thach. C. C. 
 
 63, 163 
 
 Com. V. York, 7 Boston Law Re- 
 port, 510; 9 Met. 93, 
 
 34, 35, 168, 169, 249 
 Com. V. Zephon, Oyer and Term., 
 
 Phil. July, 1844, MSS. 385 
 
 Cook's case, Cro. Car. 537, 86 
 
 Cook's case, 1 Hale, 458, 68 
 
 Cooke V. Birt, Taunt. 765, 88 
 
 Cook V. Nethercote, 6 C. & P. 
 
 741, 80 
 
 Copeland v. State, 7 Humphrey, 
 
 479, 199, 200 
 
 Cortizos V. Menoz, Stra. 924, 251 
 Coxe V. Winan, Cro. Jac. 150, 72 
 Crawford v. Ramsbottom, 7T. R. 
 
 654, 65 
 
 Curtis' case, Post. 135, 67, 84, 85 
 Curtis V. Hubbard, IHiU's N. Y. 
 
 337, 85, 89 
 
 Dakin's case, 1 Lew. 166, 214 
 
 Daly v. State, 10 Yerger, 551, 372 
 Davis V. State, 10 Ga. 101, 245 
 
 Davies v. State, 2 Humph. 437, 34 
 De Gondouin v. Lewis, 10 H. & 
 
 E. 120, 85 
 
 Dent V. Hancock, 5 Gill. 120, 126, 85 
 
TABLE OP CASES. 
 
 Xlll 
 
 Dexter v. Spear, 4 Mason, 115, 34 
 Bias V. State, 7 Blackf. 20, 276 
 
 Dickenson v. Brown, Peak, N. P. 
 
 344, 63 
 
 Dins V. State, 7 Blackf. 20, 268 
 
 Doe V. Clarke, 2 H. Bl. 399, 340 
 Douglass V. Towsey, 2 Wend. 315, 244 
 Dowling V. State, 5 8. & M. 664, 248 
 Drummond's case, 1 Leach, 337, 311 
 Duffy's case, 1 Lew. 194, 350 
 
 Duncan v. Com. 4 S. & K. 448, 255 
 Dunn V. State, 2 Pike, 229, 307 
 
 Erskine v. Murray, 2 Ld. Raym. 
 
 1542, 252 
 
 Evans v. Evans, 8 Hagg. C. R. 
 
 105, 312 
 
 Evans v. King, 1 Phil. R. 499, 251 
 
 Pairlee v. People, 1 Illinois, 117 
 
 Tannin v. State, 14 Miss. 386, 244 
 Felix V. The State, 18 Ala. 72, jl69 
 Fenton's case, 1 Lew. 179, 145 
 
 Ferguson's case, 143 
 
 Ford's case, Kel. 51, 214, 216 
 
 Fox V. Grant, 3 B. & A. D, 798, 75 
 Fray's case, 1 Hawk. P. C. c. 81, 
 
 8.42, 
 
 177 
 
 G-enner v. Sparkes, 1 Salk. 79, '> 
 Gibson v. Com. 2 Va. cases. 111, 
 
 262, 269 
 Glover v. Wittenball, 6 Hill, 597, 
 
 599, 84 
 
 Goodwin's case, 4 S. & M. 520, 266 
 Gore's case, 43 
 
 Governors of Bristol Poor v. 
 
 Wait, 1 Ad. & E. 264, 65 
 
 Granger v. State, 5 Yerg., 459, 216, 222 
 Gregg V. Wells, 10 H. & E. 90, 88 
 Greenville v. The College of Phy- 
 sicians, 12 Mod. 386, 65 
 Grey's case, 1 Kely, 64, 316 
 Gythin's case, 161 
 
 Hackett v. Com. 3 Harris, 95, 284 
 
 Hale V. State, 11 Humph. 154, 371 
 
 Hale's case, 2 Hawks. 582, 304 
 
 Halloway's case, Cro. Car. ISl, 201 
 Hanway v. Boultbee, 1 M. Moo. 
 
 & Rob. 14, 69 
 
 Harding V. Stokes, Tyr.&Gr. 605, 255 
 Hartly v. State, 3 Blackf. Ind. 
 
 R. 386, 163 
 
 Haslip V. State, 4 Hay, 273, 278 
 
 Hayden v. State, 4 Blackf. R. 
 
 547, 230 
 
 Hazel's case, 1 Leach, 368, 175 
 
 Heane v. Rodgers, 9 B. & C. 586, 88 
 Hendrick v. Com. 5 Leigh. 708, 247 
 Higgms' case, Dyer, 128, 43 
 
 Hill's case, 2 Gratt. 594, 34, 307, 
 311, 372, 386 
 Hilton V. Carton, 2 Daily's R. 98, 291 
 Hinohcliffe's case, 1 Leach, 168, 254 
 Hines v. State, 8 Humph. 597, 277, 
 
 387 
 Hodgson V. Towning, 5 Dowl. P. 
 
 R. 410, 87 
 
 Holly V. State, 10 Humph. 141, 356 
 Hooker v. Smith, 19 Verm. 659, 85 
 Housin V. Barrow, 6 T. R. 122, 68 
 Howell V. Jackson, 6 C. & P. 723, 82 
 Hoy V. Bush, 1 M. & Gr. 775, 65, 
 
 66 
 Huffman v. Com. 9 Rand. 685, 161 
 Hughs V. State, 12 Ala. 458, 15T 
 Hugget's case, Kel. 59, 89i 
 
 Hutchinson v. Birch, et aL 4 
 
 Taunt. 619, 87 
 
 Jackson's Case, 1 Hale, 464,, 74, 91 
 Jacob V. Com. 5 S & R. 315^ 255 
 Jacob V. State, 3 Hawk. 493, 289 
 Jacob V. State, 3 Humph. 51S, 168^ 
 
 169, 302 
 Jim V. State, 5 Humph. 174, 385 
 Johnson's case, 5 East, 660, 230 
 
 Johnson v. Leigh, 6 Taunt. 246, 88 
 Johnson v. State, 17 Ala. 618, 247, 
 
 284 
 Johnson v. State, 2 Humph. 283, 129 
 Jones V. Macquillon, 5 T. R. 195, 251 
 
 Keates' case. Comb. 408, 189 
 
 Keithler v. The State, 10 S. & 
 
 M. 192, 166 
 
 Kelly V. State, 3 S. & M. 288 
 
 Kennedy v. Wav, Brightly R. 
 
 186, ' 115 
 
 Kieran v. Sanders, 6 H. & E. 515, 88 
 Kingv. Com. 2 Va. Cases, 178, 35, 168. 
 King V. Hollingberry, Call. 4 B. 
 
 C. C. 329, 360 
 
 Kneass v. Fitler, 2 Serg. & R. 
 
 263, 265, 84 
 
 Knight's case, 1 Lew. 168, 116, 208 
 Knowels v. State, 3 Day, 103, 278 
 
 Lampherv.Philpot,8C.&P.475, 143 
 
XIV 
 
 TABLE OP CASES. 
 
 Lamure's case, 17 Car. 1, 186 
 
 Langstaffs case, 1 Lewin, 162, 169 
 Lannook v. Brown, 2 B. & A. 592, 84 
 Ld. Morley's case, 7 St. Tr. 421, 179 
 Lee V. Clark, 2 East, 333, 278 
 
 Lee V. Gansel, Cowp. 1, 86 
 
 Leech's case, Cro. Jac. 167, 252 
 
 Lester v. State, 9 Miss. 666, 260 
 Level's case, Cro. Car. 438, 210 
 
 Lewis V. State, 9 S. & M. 115, 307 
 Lloyd V. Sandilands, 2 Moore, 207, 87 
 Lohman v. People, 1 Comstock, 
 
 379, 284 
 
 Lynes v. State, 5 Port. 236, 254 
 
 Mackalley's case, 9 Co. 67 b. 83, 160 
 Macklin's case, 2 Lew. 225, 196 
 
 Major Oneby's case, 0. B. 12 
 
 Geo. 1, 182 
 
 Manning's case, 1 Ventr. 212, 177 
 Martin v. Com. 11 Leigh, 745, 247 
 Mason's case. Post. 132, 41, 201, 300 
 M'Allister v. State, 17 Ala. 587, 241 
 M'Coy ¥. State, 3 Eng. 451, 186, 
 
 233 
 M'Daniel v. State, 8 S. & M. 
 
 401, ■ 34, 185, 309, 311 
 
 M'Gee v. State, 8 Mis. 495, 277, 
 
 284, 387 
 M'Pherson V. State, 9 Yerg. 279, 311 
 M'Whist's, 3Grat 594, 177, 179, 198 
 Meade's case, 1 Lew. 184, 233 
 
 Mitchell V. State, 5 Yerger, 340, 34, 
 277, 372, 387 
 Monroe v. State, 5 Geo. 85, 217 
 
 Montgomery v. State, 11 Ohio, 
 
 424, 307 
 
 Moore v. State, 12 Ala. 764, 307, 
 
 310, 312 
 Munroe v. State, 5 Ga. 95, 212 
 
 Neal V. Farmer, 9 Georg. 555, 286 
 Nelson v. State, 7 Humph. 542, 297, 
 
 307 
 Moholls V. Allen, 3 C. & P. 36, 129 
 Nixon V. People, 2 Seam. 269, 118 
 Nathill V. State, 11 Humph. 247, 165 
 
 Oliver v. State, 17 Ala. 587, 
 
 588, 185,212,213,228,232,249 
 Oneby's case, 2 Ld. Ray. 1400, 
 
 198, 207 
 
 Paxson V. State, 21 Ala. 301, 241, 
 
 242 
 
 Pearson's case, 2 Lew. 216, 177 
 
 Pell V. Prevost, 2 Caines, 165, 253 
 Penn. v. Bell, Addison, 171, 278 
 Penn. v. Levin, Addison, 279, 35 
 Penn. v. Lewis, Id. 282, 34 
 
 Penn. v. M'Pall, Id. 257, 34 
 
 Penn. v. Honeyman, Addison, 148, 33, 
 
 34 
 Penn. v. Zell, Addison, 171, 
 
 175, 274 
 
 Penton v. Brown, 1 Sid. 186, 87 
 People V. Anderson, 2 Wheel. 
 
 C. C. 398, 214, 308 
 
 People V. Bodine, 1 Denio, 281, 249 
 People V. Bush, 1 Hill N. Y. R. 
 
 133, 166 
 
 People V. Clark, N. Y. Ct. of Ap- 
 peals, 11 N. Y. Leg. Ob. 22, 313 
 People V. Colt, 3 Hill, 432, 262, 266 
 People V. Doe, 1 Man. (Mich.) 
 
 451, 212 
 
 People V. Enoch, 13 Wend. 175, 279 
 People V. Enoch, 18 Wend. 159, 278 
 People V. Garretson, 2 Wheeler's 
 
 C. C. 185, 214 
 
 People V. Gray, 2 Wend. 465, 167 
 People V. Greene, 1 Denio, 614, 306, 
 
 310 
 People V. Hubbard, 24 Wend. 
 
 369, 85 
 
 People V. Jackson, 3 Hill, 284 
 
 People V. Knapp, pr. Edmonds, 
 
 J., MSS. 311 
 
 People V. M'Leod, 1 Hill, 34, 52, 
 212, 217, 230, 232, 235 
 People V. Norton, 8 Cowen, 137, 162 
 People V. Shorter, 4 Barb. 460, 217 
 People V. White, 14 Wend. Ill, 244 
 People V. White, 22 Wend. 275, 284 
 Pickard v. Sears, 6 H. & E. 469, 88 
 Pierson v. State, 12 Alabama, 
 
 149, 34, 216 
 
 Pluckwell V. Wilson, 5 C. & P. 
 
 375, 115 
 
 Plummer's case, Kel. 109, 12 
 
 Mod. 627, 1 Hale, 475, 
 
 46, 349, 380 
 Pouget V. Tompkins, 1 Phill. B. 
 
 499, 251 
 
 Powell V. The State, 19 Ala. 
 
 577, 175 
 
 Pirtle V. State, 9 Humphrey, 
 
 664, 369, 386 
 
 Pugh V. Griffith, 7 H. & E. 827, 89 
 
TABLE OP CASES. 
 
 XT 
 
 Queen v. Maugridge, Kelyng, 
 
 131, 132, 43 
 
 Queensbury v. State, 8 Stew. & 
 
 Porter, 815, 249 
 
 R. V. Allen, 7 C. & P. 183, 
 
 51, 112 
 E. V. Allison, 8 C. & P. 418, 98, 
 
 100, 158 
 R. V. Anderson, 1 Russell on 
 
 Crimes, 531, 193 
 
 R. V. Ayes, R. & Ry. 166, 189 
 
 R. V. Badeock, et al. Rus & R. 
 
 C. C. 249, 159 
 
 R. V. Baker, 2 M. & Rob. 53, 360 
 R. V. Ball, 8 C. & P. 160, 214 
 
 R. V. Barry, 1 M. & R. 463, 277 
 R. V. Berriman, 5 C. & P. 601, 258 
 R. V. Bingley, R. & R. 446, 159 
 
 R. V. Bird, 15 Jur. 193, 262 
 
 R. V. Birnie, 5 0. & P. 200, 77 
 
 R. V. Bonner, 6 C. & P. 386, 807 
 R. V. Brain, 6 C. & P. 349, 96, 
 
 315, 333 
 R. V. Briggs, 1 Mood. C. C. 
 
 318, 260, 261 
 
 R. V. Bright, 4 C. & P. 387, 77 
 
 R. V. Brothwick, Doug. 207, 158, 161 
 R. V. Brough, ] Wils. 244, 253 
 
 R. V. Brown, M. & M. 163, 255 
 
 R. V. Brownlow, 11 A. & E. 
 
 119, , 275 
 
 R. V. Bull, 9 Id. 22. 222 
 
 R. V. Campbell, 7 Bost. L. R. 
 
 181, 169 
 
 R. V. Carr, 8 C. & P. 163, 144 
 
 R. V. Checketts, 6 M. & S. 38, 252 
 R. V. Cheeseman. 7 C. & P. 455, 129 
 R. V. Clarke, 2 Stark. 241, 244 
 
 R. V. Clarke, R. & R. 358, 251, 258 
 R. V. Clarne, 1 Brod. & IJing. 
 
 473, 263 
 
 R. V. Clewes, 4 C. & P. 22, 813 
 
 R. V. Clifford, 2 Car. & Kir. 
 
 201, 155, 156 
 
 R. V. GoUison, 4 C. & P. 565, 348 
 R. V. Conner, 7 C. & P. 438, 44, 129 
 R. V. Cook, R. & R. C. C. 
 
 176, 251, 278 
 
 R. V. Cooper, 5 C. & P. 535, 162 
 R. V. Cotton, Cr. El. 738, 256 
 
 R. y. Crans, 8 C. & P. 765, 257 
 
 R. V. Craven, Lewin's C. C. 77, 308 
 R. V. Crochett, 4 C. & P. 541, 157 
 R. V. Cruise, 8 C. & P. 541, 157 
 
 R. V. Crumpton, 1 C. & Mars. 
 
 597 129 
 
 R. V. Crutchley, 7 C. C. P. 
 
 254, 95, 333 
 
 R. V. Cuddy, 1 Car. & Kir. 209, 204 
 R. V. Culkin, 5 C. & P. 121, 261, 
 266, 270, 274 
 R. V. Curran, 3 C. & P. 397, 69 
 
 R. V. Curran, 3 C. & P. 397, 91 
 
 R. V. Curran, R. & M. C. C. 
 
 R. 132, 76, 91, 203 
 
 R. V. Dale, Hil. T. 1824, 1 R. 
 
 & M. C. C. 5, 270 
 
 R. V. Davis, 7 C. & P. 785, 
 
 Parke, B., 61 
 
 R. V. Davis, Hereford Sum. Res. 
 
 1831, 129 
 
 R. V. Davis, Id. 113, 159 
 
 R. V. Deacon, R. & M. N. P. 
 
 C. 27, 278 
 
 R. V. Deeley, 1 Mood. C. C. R. 
 
 303, 258 
 
 R. V. Devitt, 8 C. & P. 639, 269, 276 
 R. V. Dingier, 2 Leach, 561, 307 
 
 R. V. Donnelly & Waugban, R. 
 
 & R. 810, 164 
 
 R. V. Dyson, Russ. & R. C. C. 
 
 523, 98, 158 
 
 R. V. Edmonds, 3 C. & P. 390, 849 
 R. V. Edwards, 6 C. & P. 401, 260, 
 
 261 
 R. V. Edwards, 8 C. & P. 611, 259 
 R. V. Ellis, 2 C. & R. 469, 264 
 
 R. V. Elsee, Id. 142, 159 
 
 R. V. Enocb, 5 C. C. P. 539, 95, 833 
 R. V. Evans, 1 Russ. on Crim. 
 
 489, 151, 267 
 
 R. V. Evans, 0. B. September 
 
 1812, 120 
 
 R. V. Fagent, 7 C. & P. 288, 807 
 R. V. Freeman, 1 Russell on 
 
 Crimes, 518, 197 
 
 R. V. Fisher, 8 C. & P. 182, 177 
 R. V. Fletcher, 1 Russell on 
 
 Crime, 507, 243 
 
 R. V. Ford, Rus. & Ry. 829, 70 
 
 R. V. Foster, R. & R. 412, 257 
 
 R. V. Fraser, R. & M. C. C. R. 
 
 419, 60, 69 
 
 R. V. Gallaghan, 1 M'Malley, 
 
 385, 311 
 
 R. V. Gardner, 1 Mood. C. C 
 
 390, 56 
 
 R. V. Gay, 7 C. & P. 230, 311 
 
 R. V. Giles, 1 Mood. C. C. 166, 155 
 
XVI 
 
 TABLE OF CASES. 
 
 R.V. Gill, R.&R. 134, 255 
 
 R. V. Grogerly et al. R. & R. 
 
 343, 158 
 
 R. V. Goodwin, MSS. 1 Russ. 
 
 563, 259 
 
 R. V. Gordon, 1 Leach, 515, 162 
 
 R. V. Geering, 18 Law Jour. 
 
 215, 324 
 
 R. V. Granger, 8 Burr, 1617, 254 
 R. V. Green, 9 C. & P. 156, 51, 111 
 R. V. Greenacre, 8 C. & P. 
 
 35, 34, 282 
 
 R. V. Groat, 6 C. & P. 627, 116, 
 R. V. Gross, 1 Ld. Raym. 711, 284 
 R. V. Grounsell, 7 C. & P. 
 
 788, 261, 266 
 
 R. V. Haines, 2 Car. & Kir. 
 
 368, 369, 147 
 
 R. V. Hannam, Cro. Jac. 482, 
 
 610, 251 
 
 R. V. Hawk, 3 C. & P. 394, 348 
 
 R. V. Haworth, 1 Mood. C. C. 
 
 207, 50, 352 
 
 R. V. Hayward, 6 C. & P. 
 
 167, 180, 183, 307 
 
 R. V. Hechman, 1 D. 151, 266 
 
 R. V. Hickman, 5 C. & P. 151, 120, 
 
 151 
 R. V. Hicks, 2 lb. 302, 257 
 
 R. V. Higgins, Lon. Med. Gaz. 
 
 vol. ix. 896, 329 
 
 R. V. Hindmarsh, 2 Leach, 
 
 569, 313, 314 
 
 R. V. Hodgson, 1 Leach, 6, 349 
 
 R. V. Hodgson, R. & R. 211, 244 
 R. V. Hogg, 2 M. & Rd. 380, 257 
 
 R. V. Holland, 2 M. & Rob. 
 
 351, 241, 242, 276 
 
 R. V. Holland, 5 T. R. 616, 254 
 
 R. V. Home, 1 Leach, 473, 160 
 
 R. V. Hopkins, 8 C. & P. 591, 315 
 R. V. Harris, Easter T. 1801, 68 
 
 R. V. Howarth, R. & M. C. C. 
 
 R. 207, 61 
 
 R. V.Howell, 2 C.& P. 437, 159 
 
 R. V. Hewlett, 7 C. & P. 274, 176 
 R. V. Hucks, 1 Stark. 532, 311 
 
 R. V. Huggins, 2 Stra. 882, 51, 316 
 R. V. Hull, Kel. 40, 145 
 
 R. V. Hunt, 2 Camp. 503, 360 
 
 R. V. Hunt, 1 Mood. C. C. 
 
 93, 73,91 
 
 R. V. Hughes, 5 C. & P. 
 
 126, 261, 266 
 
 V. Hutchinson, 2 B. & C. 
 
 608, 
 V. Hutchinson, 3 Kebl. 785, 
 V. Hennings, Russ. & Ry. 
 
 388 
 V. Johnson, 2 C. & R. 354, 
 V. Kargman,5C.&P.170, 
 V. Kelly, 2 Car. & Kir. 814, 
 V. Kelly, Id. 113, 
 V. Kelly, 1 Mood. C. C. 
 
 113, 
 V. Kelly, R.&R. 421, 
 V. Kirkham,8C.&P.115, 
 V. Lad, 1 Leach, 38, 
 V. Langden, R. 0. R. 228, 
 V. Lloyd, 1 C. & P. 301, 
 V. Lloyd, 4 C. & P. 233, 
 V. Long, 5 Co. 122, a, 
 V. Lord Byron, 11 St. Tr. 
 
 1177, 
 
 v.Lynch, 5C.&P.324, 
 V. Mabel, 9 C. & P. 474, 
 
 309 
 
 283 
 
 283 
 324 
 275 
 178 
 266 
 
 262 
 159 
 185 
 274 
 .50 
 267 
 310 
 269 
 
 205 
 181,189 
 81 
 
 V. Mackally, 9 Co. 67, a; 
 
 Gilb. Ev. 231, 261 
 
 V. Mackally, 1 East, 350, 162 
 
 V. Mackally, 9 Rep. 65, 67, 
 
 259 266 
 V. Manners, 7 C. & P. 801, ' 159 
 V. Marriott, 8 C.& P. 425, 130 
 v.Martin,3C.&P.211, 124,152 
 v.Martin,5C.&P.128, 241,266 
 v.Martin,6C.&P.396, 117 
 
 V. Matthews, 2 Leach, 664, 251 
 v.Mawgridge,Kel.l24, 35,181 
 V. Mead, 2 B. & C. 605, 309 
 
 R. 
 
 R. V. Mead et al., 2 Stark, c 
 
 59 
 
 186 
 308 
 324 
 
 264 
 307 
 
 205, 
 R. V. Mears, 1 Boston Law Rep. 
 
 205, 
 R. V. Megson,9C.&P.418, 
 R. V.Michael, 9 C.& P. 356, 
 R. V. Michael, 2 Mood. C- C. R. 
 
 120, 
 R. V. Minton, 1 M'Nally, 38, 
 R. V. Moseley, R. & M. 97, 
 
 273,307,308,309 
 R. Y. Monroe, 1 Car. & Kir. 
 
 209, 208 
 
 R. V. Murphy, 6 C. & P. 
 
 103, 148, 188 
 
 R. V. Nichols, 7 C. &P. 538, 276 
 
 R. V. Nicholson, 1 East, P. C. 
 
 346, 204, 324 
 
 R. V. Norton, R. & R. 509, 258 
 
TABLE OF CASES. 
 
 XVll 
 
 R. V. O'Brien, 2 0. & K. 
 
 115, 264, 266 
 
 K. V. O'Brien, IDen. C. C. 9, 277 
 E. V. Oneby, 2 Str. 766, 207 
 
 K. V. Owen, 1 Mood. C. C. 96, 188 
 E. V. Packard, 1 C. & Mars. 
 
 236 152 
 
 R. V. Palmer, 1 M. & R. 96, 186 
 
 R. V. Patience, 7 C. & P. 775, 63 
 
 R. V. Payne, R. & M. C. C. R. 
 
 378, 60 
 
 R. T. Perkins, 4 C. & P. 837, 188 
 
 R. V. Perkins, 9 C. & P. 395, 308 
 
 E. V. Perkins, 2 M. C. C. 135, 310 
 R. V. Pew, Cro. Car. 183, 62 
 
 E. V. Phelps, 1 C. & Mars. 
 
 80, 55, 72, 75 
 
 R. V. Phelps, 1 Russ. on Cr. 
 
 564, 276 
 
 R. V. Pike, 3 C. & P. 598, 307,310 
 R. V. Pirn, R.&R. 425, 279 
 
 R. V. Pitts, 1 Car. & Marshm. 
 
 284, 120, 244, 267 
 
 R. V. Plummer, 1 Car. & Kir. 
 
 602-7, 123 
 
 R. V. Poulton, 5 Car. & Paine, 
 
 399, 95, 260, 315 
 
 R. V. Price, 7 C. & P. 178, 186 
 
 R. V.Price, 8 C.& P. 282, 73,91 
 E. V. Price, E. & E. 489, 251 
 
 E. V. Eaw, Kely, 26, 241 
 
 E. V. Eeason, 1 Str. 500, 311 
 
 E. V. Eeeves, 9 C. C. P. 25, 95, 333 
 E. V. Eussell, 1 Mood. C. C. 
 
 356, 158, 164 
 
 E. V. Sandys, 1 Car. & Mars. 
 
 345, 275 
 
 E. V. Sandys, 1 Russ. on Cr. 561, 274 
 R. V. Saunders, 7 C. & P. 
 
 277, 244, 266 
 
 R. V. Saunders, Plowd. 475, 162 
 
 E. V. Sawwell, cited in Wills 
 
 onCircum.Ev.180,181, 324 
 E. V. Scaife, 1 Mo. & Eob. 551, 306 
 R. V. Scott, E. & E. 414, 255 
 
 E. V. Scully, 1 C. & P. 319, 235 
 
 E. V. Sellers, 0. B. 1796, Car. 
 
 C. L. 233, 210 
 
 R. Y. Sellis, 7 C. & P. 850, 
 
 95 
 
 E. V. Sellis, 1 Mood. C. C. 850, 93 
 R. V. Sample, 1 Leach, 420, 251 
 
 R. V. Senior, 1 Mood. C. C. 
 
 346, 93, 333, 340 
 
 R. Y. Shaw, 6C. &P.372, 197 
 
 R. Y. Sheen, 2 C. & P. 634, 258 
 
 R. Y. Silversides, 3 Q. B. R. 405, 
 
 255 
 R. Y. Simpson, Lew. C. C. 78, 308 
 R. Y. Simpson, Wilcox L. Med. 
 
 Prof., Appendix, 227, 131 
 
 R. Y. Smith, 4 Blac. Comm. 
 
 201, (note,) 49 
 
 R. Y. Smith, 8 C. & P. 160, 
 
 128,194,213,222 
 R. Y. Smith, 1 Mood. C. C. 
 
 295, 257 
 
 R. Y. Snow, 1 Leach, 151, 191 
 
 E. Y. Soares, E. E. 25, 189 
 
 E. Y. Somerset, 19 S. Trials, 804, 162 
 R. Y. Spiller, 5 C: & P. 
 
 333, 143, 268 
 
 E. Y. Spilling, 2 M. & Eob. 107, 143 
 E. Y. Spillsbury, 7 C. &P. 187, 307 
 E. Y. Squire and Wife, Stafford 
 
 Lond. Assizes, 1799, 123 
 
 R. Y. Stannard, 7 C. & P. 673, 245 
 
 E. Y. Stedman, Post. 292, 195, 351 
 E. Y. Stems, 7 C. & P. 312, 5S 
 
 E. Y. Stewart etal.,Euss.&E. 
 
 C. C. 363, 159. 
 
 E. V. Stewart, R. &R. 363, 15© 
 
 E. Y. St. John Long, 4 C.& P. 
 
 423 135 138 
 
 E. V. Stroud, C. &K.187, 257, 258 
 R. Y. Sullivan, 7 C. & P. 641, 150 
 R. V. Swindall, 2 Car. & Kir. 
 
 229 113. 
 
 R. Y. Taylor, 4 Burr, 279, 181, 193 
 R. V. Taylor, 7 C. & P. 266, 
 
 Vaughan, J., 61 
 
 R. Y. Taylor, 8 Car. & P. 616, 186 
 R. V. Taylor, 9 C. & P. 672, 101 
 
 R. V. Taylor, 3 B.&C. 502, 254,278 
 R. V. Taylor, 1 Leach, 160, 161 
 
 R. Y. Thomas, 7 C. & P. 817, 
 
 65, 181,198 
 R. Y. Thomas, 1 Russ. on Cr. 614, 71 
 R. Y. Thompson, 1 Mood. C. C. 
 
 139, 59, 261, 266- 
 
 R.Y.Thomson,Hil. T.18, 25; 
 
 IRy.&Mood, 80, 71 
 
 R. Y. Timmins, 7 C. & P. 499, 113 
 R. Y.Tomlinson,6C.&P.379, 273 
 R. v. Tooley, 2 Ld. Raym. R. 
 
 96, 89 
 
 R. V. Tranter, Stra. 499, 48, 190 
 
 E. Y. Treharme, 1 Mood. C. C. 
 
 298 255 
 
 R. Y. Tr'ibble, 2 Mood. C. C. 
 
 260, 333 
 
xvm 
 
 TABLE OF CASES. 
 
 R. V. Trilloe, 1 C. &Mars. 650, 
 
 93, 117 
 161 
 265 
 
 R. v.Trowle,R.& 11.314, 
 R. V. Truman, 8 C. & P. 727, 
 R. V. Tje, Russ. & Ry. 345, 
 
 261, 266, 271 
 R. V. Van Butchell, 3 C. & P. 
 
 629, 132, 307, 308, 311 
 
 R. V. Yoke, R.&R. 531, 247 
 
 R. V. Walker, 1 C. & P. 320, 113 
 
 R. V. Wallis et al., 1 Salk. 
 
 334, ' 73, 161 
 
 R. V. Walter, 6 C. & P. 657, 284 
 
 R. V. Walters, 1 Car. & Marsh. 
 
 164, 119, 316 
 
 R. V. Walters et al., 12 St. Tr. 
 
 113, 205 
 
 R. V. Warman, id. 195, 266 
 
 R. V. Warner, R. & M. C. C. R. 
 
 
 380, 91, 348 
 
 R. 
 
 v.Waters,6C.&P.283, 267 
 
 R. 
 
 V. Waters, 7 C. & P. 
 
 
 250, 261, 266, 274 
 
 R. 
 
 V. Waters, 2 Car. & Kir. 
 
 
 862, 258, 264 
 
 R. 
 
 V. Watters, 1 Car. & Mars. 164, 93 
 
 R. 
 
 V. Webb, 2 Lewin, 196, 271 
 
 R. 
 
 V. Webb, 1 M. & Rob. 
 
 
 405, 144,241,248 
 
 R. 
 
 V. Weir, 1 B. & C. 261, 91 
 
 R. 
 
 V. Welbourn, 1 East P. C. 
 
 
 358, 307 
 
 R. 
 
 V. West, 2 Car. & Kir. 
 
 
 786-7, 93, 97 
 
 R. 
 
 v.Whalley,7C.&P.245, 63 
 
 R. 
 
 V. White, Russ. &R.C.C. 
 
 157 
 R. V. Whitehorne, 3 C. & P. 
 
 394, 91, 349 
 
 R. V. Wigges, 4 Co 45, 283 
 
 R. V. Williams, 1 Mood. C. C. 387, 50 
 R. V. Williams, R. & M C. C. 
 
 R.387, 64 
 
 R. V. Williamson, 3 C. & P. 
 
 635 132 
 
 R. V. Willoughby, lEast P.C. 
 
 288, 203 
 
 R. V. Wood, 1 R. & M. C. C. 
 
 R. 281, 67 
 
 R. V. Woodcock, 2 Leach, 
 
 563, 307, 311 
 
 R. V. Woolmer, R. & M. C. C. 
 
 R. 334, 61, 69 
 
 R. V. Wright, 9 C. & P. 754, 95 
 
 R. V. Wycherley, 8 C. & P. 265, 347 
 
 R. V. Yandall, 4 T. R. 521, 251 
 
 R. V. Young, 8 C. & P. 644, 
 
 148, 158, 204, 207 
 Rasnick's case, 2 Virg. Ca. 356, 161 
 RatcliflF V. Burton, 3 Bos. & Pull. 
 
 223, 87 
 
 Repsher v. Wattson, 5 Harris, 
 
 365, 116 
 
 Resp. V. Honeyman, 2 Ball. 288, 268 
 Resp. V. Mulatto Bob, 4 Dallas, 
 
 145, 34, 35, 374, 385 
 
 Resp. V. Newell, 3 Yeates, 407, 278 
 Ringmardon's case, 1 Lew. 180, 
 
 145, 263 
 Roberts v. State, 14 Miss. 82 
 
 Roosevelt V. Gardiner, 2 Cow. 463, 251 
 Ross V. State, 9 Miss. 696, 254 
 
 Rowley's case, 12 Rob. 87, 177, 198 
 
 Sackett's case, 1 Hawks, 217, 288 
 Samuel v. Payne, Douglass, 
 
 359, 55, 72, 74 
 
 Selfridge's case, App. 417, 171, 
 
 213, 230 
 Sellman v. Norman, 4 C. P. 80, 128 
 Semayne's case, Cro. Eliz. 909, 85 
 Serpentine v. State, 1 How. Miss. 
 
 R. 260, 255 
 
 Sheete V.Brookes, 2 H.Bl. 120, 87 
 Shoemaker v. State, 12 Ohio R. 
 
 423, 316 
 
 Short V. State, 7 Yerger, 510, 170 
 Shorter v. People, 2 Corns. 
 
 197, 222 
 
 Simmons V. Com., IRawle, 142, 255 
 Simmons v. State, 4 Geo. 465, 167 
 Singleton v. Johnson, 9 M. & W. 
 
 67, 258 
 
 Sissinghnrst's case, 72, 346 
 
 Shelton V. State, 1 Stew. & Port. 
 
 208, 254 
 
 Slaughters v. Com., 11 Leigh, 
 
 682, 387 
 
 Smith's case, (see Com. v. Smith,) 
 Smith V. Cooper, 2 Zabriskie, 57, 340 
 Smith V. State, 3 Redding, 48, 
 
 44, 46, 186, 840 
 Smith V. State, 1 Yerger, 228, 204 
 Souther v. Com., 7 Grattan, 
 
 673, 286, 288, 362 
 
 Southworth v. State, 9 Conn. 
 
 560, 278 
 
 Spencer v. Com., 11 Leigh. 751, 247 
 Stanhope v. Baldwin, 1 Adams' 
 
 R. 93, 251 
 
TABLE OF CASES. 
 
 XIX 
 
 State V. Anderson, 1 Hill's S. C. 
 
 K. 327, 50, 235 
 
 State V. Andrews, 6 Tenns. 6, 372 
 State V. Antonio, 2 So. Car. E.. 
 
 776, 247 
 
 State V. Armfield, 2 Hawks, 
 
 246, 85, 86 
 
 State V. Barfield, 7Ired. 299, 201 
 State V. Beckwith, 1 Steward, 
 
 318, 254, 255 
 
 State V. Benton, 2 Dev. & Bat. 
 
 196, 42 
 
 State V. Bishop, 15 Maine, 122, 352 
 State V. Buckman, 8 N. Hamp. 
 
 203, 278 
 
 State V. Cassell, 2 H. & G. 470, 279 
 State V. Caesar, 9 Iredell's Law 
 
 E. 391, 303 
 
 State V. Chentwood, 2 Hill's R. 
 
 459, 291 
 
 State V. Cherry, 3 Murph. 7, 253, 268 
 State V. Chittem, 2 Dev. 49, 167 
 
 State V. Coleman, 5 Porter, 32, 158 
 State V. Cooper, 1 Green's N. 
 
 J. R. 42 
 
 State V. Crank, 2 Bail. 66, 167,'397 
 State V. Crans, 7 Gill & J. 290, 279 
 State V. Crusier, 8 Harris, 108, 278 
 State V. Dandy, 1 Brevard, 895, 255 
 State V. Dowd, 9 Conn. 391, 361 
 
 State V. Drinkley, 3 Iredell, 
 
 117, 277, 279 
 
 State V. Duncan, 6 Iredell, 
 
 236, 163, 164, 165 
 
 State V. Evans, ib. 66, 165 
 
 State V. Ferguson, 2 Hill's S. 
 
 O.R. 619, 78,91,191,197,201 
 State V. Field, 14 Maine, 248, 249 
 State V. Flemming, 2 Stroth, 
 
 464, 286, 288 
 
 State V. Fley, 2 Brevard, 338, 
 
 160, 164, 277 
 State V. France, 1 Overton's R. 
 
 434, 257 
 
 State V. Freeman, 1 Spear, 
 
 57, 262, 270, 309 
 
 State V. Gardener, Wright's R. 
 
 392, 258 
 
 State V. Gilbert, 13 Vermt. 647, 255 
 State V. Gorde, 1 Hawks, 463, 163 
 State V. Graff, 1 Murph. R. 270, 713 
 State V. Grant, 22 Maine, 171, 253 
 State V. Green, 4 Iredell, 409, 217 
 State V. Green, 4 Strobhart, 128, 160 
 State V. Griffis, 3 Ired. 504, 247 
 
 State V. Hale, 2Hawks' R. 582, 286 
 State V. Harden, 2 Dev. & Bat. 
 
 407, 158 
 
 S tate v. Hawley, 4 Harr'g, 562, 249 
 State V. Hendricks, Conf. N^. C. 
 
 R. 369, 254 
 
 State V. Hess, 5 Ohio, 284 
 
 State V. Hill, 4 Dev. & Bat. 
 
 491, 36, 316 
 
 State V. Hildreth, 9 Ired. 429, 34, 191 
 State V. Hodgdon, 3 Verm. 481, 255 
 State V. Hooker, 17 Verm. 659, 85 
 State V. Hoover, 4 Dev. & Bat. 
 
 365 288 
 
 State V. Hughes, 2 Har. & M'H. 
 
 479, 252, 254 
 
 State V Irwin, 1 Hay, 112, 34 
 
 State V. Jarrett, 1 Iredell, 76, 289 
 State V. Jones, Walker, 83, 286 
 
 State V. Johnson, 1 Ired. 354, 
 
 34, 198, 199, 316 
 State V. Kean, ION. Hamp. 347, 256 
 State V. Kempton, 15 N. Hamp. 
 
 169, 248 
 
 State V. King et al., 2 Rice's S, 
 
 C. Digest, 106, 156, 346 
 
 State V. Lamon, 3 Hawk. 175, 255 
 State V. Lane, 4 Iredell, 113, 
 
 196, 197, 199 
 State V. Lipsey, 3 Dev. 485, 34 
 
 State V. Lorey, 2 Brevard, 395, 254 
 State V. Mann, 8 Haywood's N. 
 
 C. R. 4, • 162 
 
 State V. Mair, 1 Coxe, 453, 161, 277 
 State V. Martin, 1 Ired. 101, 197, 199 
 State V. M'Curts, 1 Spear, 884, 
 
 180, 181, 184, 185 
 State V. M'Coy, 2 Aiken, 181, 284 
 State V. M'Daniel, 8 Sm. & M. 
 
 401, 245 
 
 State V. M'Dowell, 6 Blackf. 49, 253 
 State V. Merrill, 2 Dev. 269, 
 
 34, 169, 244, 316 
 State V. Minor, 2 Hill's R. 453, 291 
 State V. Moody, 2 Haywood, 81, 308 
 State V. Morea, 2 Ala. 275, 243, 266 
 State V.Morgan, 3 Ired. 186, 185,212 
 State V. Moses, 2 Dev. 452, 273 
 
 State V. Munger, 15 Verm. 290, 256 
 State V. Nelson, 29 Maine, 324, 265 
 State V. Newman, 2 Car. Law 
 
 Rep. 74, 254 
 
 State V. Nichols, 8 Con. R. 496, 360 
 State V. Norrig, 1 Hay, 429, 33, 35, 185 
 State V. O'Neil, 7 Ired. 244, 249 
 
XX 
 
 TABLE OP CASES. 
 
 State V. Onell, 1 Dev. 139, 275, 276 
 State V. Owen, 1 Mur. 452, 
 
 268, 269, 273 
 State V. Pendergrass, 2 Dev. & 
 
 Bat. 407, 129 
 
 State V. Peters, 2 Price's Dig. 106, 34 
 State V. Poll, 1 Hawks, 442, 307, 309 
 State V. Pool, 2 Dev. 202. 279 
 
 State V. Ripley, 2 Brevard, 382, 279 
 State V. Roach, 2 Hay, 552, 255 
 
 State V. Roane, 2 Dev. 58, 37-50, 353. 
 State V. Roberts, ib. 349, 175 
 
 State V. Rutherford, Hawkes, 
 
 457, 37, 50, 52, 352 
 
 State V. Scott, 24 Vt. (1 Deane, 
 
 129,) 284 
 
 State V. Scott, 1 Hawks, 24, 286 
 
 State V. Scott, 3 Ired. 409, 199, 345 
 State V. Shepperd, 7 Con. R. 554, 360 
 State V. Sims, 2 Bail. S. C. R. 
 
 29, 163, 165, 167 
 
 State V. Smith, Peck, 165, 255 
 
 State V. Smith, 2 Strobh. 77, 34, 43 
 State V. Spencer, 1 Zabriskie's 
 
 R. 196, 373, 383 
 
 State V. Tackett, 1 Hawks, 210, 
 
 169,175,249,288 
 State V. Thompson, 2 Rice's Dig. 
 
 386, 256 
 
 State V. Tilley, 3 Ired. 424, 
 
 196, 197, 199, 249 
 State V. Tim, 3 Murph. 3, 279 
 
 State V. Toohey, 3 Rice's Digest, 
 
 104, 34, 35, 187, 385 
 
 State V. Town, "Wr't, 75, 34, 158, 284 
 State V. Travers, 2 Wheeler's C. 
 
 C. 506, 35 
 
 State v. Tuckett, 1 Hawks, 210, 168 
 State V. Tully, 4 Ired. 424, 34, 199 
 State V. Turner, Wright, 20, 
 
 34, 372, 386 
 State V. Turtley, 2 Hawk. 248, 247 
 State V. Varney, 8 Boston Law 
 
 Reporter, 562, 311 
 
 State V. Vittume, 9 N. Hamp. 519,253 
 State V. Watkins, 9 Conn. 47, 247 
 State V. Wilkins, 17 Verm. 152, 254 
 State V. Weaver, 2 Hay, 54, 33 
 
 State V. Wells, Coxe, 424, 213, 245 
 State V. Wisdom, 8 Porter, 511, 247 
 State V. Yarborough 1 Hawks, 
 
 7, 8, 181 
 
 State V. Zeller, 2 Halstead, 220, 
 
 33, 34, 214 
 Stedman's case, Fost. 292, 190 
 
 Stevenson's case, 10 St. Tr.462, 68, 88 
 Stewart v. State, 1 M'Cook's 0. 
 
 Rep. 71, 226 
 
 Stockdale's case, 2 Lew. 220, 
 
 119, 220, 244, 266, 316 
 Stockley's case, 1 East P. C. 
 
 c. 5, s. 58, p. 310, 68 
 
 Stout V. Com., 11 Serg. & Raw. 
 
 177, 256, 268 
 
 Stone V. State, 4 Humph. 34, 
 
 41, 247, 383 
 Storrs V. State, 3 Miss. 45, 268 
 
 Swan V. State, 4 Humph. 139, 
 
 384, 385 
 Swift V. Duffield, 6 S. & R. 38, 340 
 Squires' case, 1 Rus. on Cr. 
 
 488, 490, 316 
 
 Tam V. State, 3 Miss. 43, 255 
 
 Territory v. McFarland, 1 Mart. 
 
 224 256 
 
 Tessymond's case, 144 
 
 Thelluson v. Woodford, 4 Ves. 
 
 340, 340 
 
 Thompson's case, Kel. 66, 349 
 
 Tipton V. State, 2 Yerg. 542, 256 
 Torley's case, 2 Ld. Raymond, 
 
 1296, 82 
 
 Tuckett V. State, 3 Yerger, 392, 67 
 Turner's case. Comb. 407. 176 
 
 Turner's case, 1 Lewin, 177, 273, 282 
 Turns v. Com., 6 Met. 225, 254, 271 
 Tyner v. State, 5 Hump. 383, 312 
 
 United States v. Burr, 4 Cranch, 
 
 592, 158, 163 
 
 U. S. V. CoUyer, Appendix, 483 
 
 U. S. V. Cornell, 2 Mason, 94, 
 
 34, 385 
 U. S. V. Craig, 4 Wash. C. C R. 
 
 729, 247 
 
 U. S. V. Doeble, 1 Baldw. 519, 247 
 U. S V. Freeman, 4 Mason, 
 
 505, 119, 267 
 
 U. S. V. Harman, 1 Baldw. 292, 247 
 U. S. V. Hewson, 7 Boston Law 
 
 Rep. 361, 260, 315 
 
 U. S. V. Holmes, pamph. 1848, 241 
 U. S. V. Libby, 1 W. & M. 221, 157 
 U. S. V. Roudenbush, 1 Baldw. 
 
 514, 245 
 
 U. S. V. Ross, 1 Gallis. C. C. 
 
 R. 524, 346 
 
 U. S. V. Thayer, U. S. Cir. Ct. 
 
 2 Wheeler's C. C. 503, 185 
 
 U. S. V. Travers, 2 Wheel. C C. 
 
TABLE OP CASES. 
 
 XXI 
 
 43, 54, 55, 56, 73, 168, 169, 
 213, 346 
 
 U. S. V. Vogil, C. C, 2 Dallas, 346, 212 
 U.S. Y.Warner, 4 M'Lean, 464, 111 
 U. S. \t. Wiltberger, 3 Wasbb. 
 
 515, 37, 169, 266 
 
 Vass V. Com., 3 Leigh. 786, 309 
 
 Vaux's case, 4 Co. 44, b. 155 
 Wakefield v. Mackey, 1 Pbill. 
 
 K. 133, 257 
 Wakefield v. Wakefield, 1 Hag. 
 
 Cons. R. 400, 251 
 
 Warder v. Bailey, 4 Taunt. 77, 52 
 
 Ward's case, 1 East, 270, 148 
 
 Watts V. Braens, Cro. Eli. 788, 316 
 
 Warner v. Com., 1 Barr, 154, 279 
 Webster's case, (see Com. v. Web- 
 ster,) 34,265,317,323,332,386 
 
 Wells V. Com., 1 Harris, 631, 340 
 
 Westwood's case, 2 Hale, 173, 279 
 Wheeler v. Whiti£g, 9 C. & P. 
 
 262, 80 
 
 White V. Chambers, 2 Bays. R. 
 
 70, 291 
 
 White V. Com., 6 Bin. 179, 270 
 
 Whiteley's case, 1 Lew. 173, 192 
 
 Whiteford v. Com., 6 Randolph, 
 
 721, 386 
 
 Wiggs' case, 1 Leach, 378, 176 
 
 Wilds' case, 2 Lew. 214, 234 
 
 Williams v. Bryant, 5 M. & W. 
 
 447, 258 
 
 Williams v. State, 8 Humphrey, 
 
 585, 247 
 
 Wilson V. Boerem, 15 Johns. 
 
 286, 309 
 
 Withers' case, 1 East P. C. 
 
 233, 203 
 
 Woodside v. State, 2 Howard, 
 
 656, 34, 307, 385 
 
 Wright V. State, 9 Yerg. 342, 249 
 
 Young V. State, 11 Humphreys, 
 
 200, 227 
 
HOMICIDE. 
 
 CHAPTER I. 
 
 GENERAL CLASSIFICATION AND DEFINITION. 
 
 Homicide, at common law, is technically divided into the follow- 
 ing heads: — 
 I. Murder. 
 II. Manslaughter. 
 
 III. Excusable homicide. 
 
 IV. Justifiable homicide. 
 
 I. MURDER. 
 
 Murder is where a person of sound memory and discretion unlaw- 
 fully kills any reasonable creature in being, in the peace of the com- 
 monwealth, with malice prepense or aforethought, either express ' or 
 implied.^ 
 
 The distinguishing feature in this definition, as will at once be 
 seen, is that of malice. By this term, at common law, is meant to in- 
 clude not only special malevolence to the individual slain, but a ge- 
 nerally wicked, depraved, and malignant spirit, a heart regardless 
 of social duty, and deliberately bent on mischief.^ And, in gene- 
 ral,^ says Sir Wm. Russell, any formed design of doing mischief may 
 be called malice; and, therefore, not such killing only as proceeds 
 from premeditated hatred or revenge against the person killed; but 
 also, in many other cases, such killing as is accompanied with cir- 
 cumstances that show the heart to be perversely wicked, is adjudged 
 to be of malice prepense, and consequently murder.^ 
 
 Malice is express or implied. When one person kills another 
 with a sedate deliberate mind and formed design, it is said to be 
 express. Of this the usual evidence is circumstantial, such, for in- 
 stance, as lying iu wait, antecedent menaces, former grudges, and 
 concerted schemes to do the party some bodily harm; and, in gene- 
 ral, any deliberate cruel act committed by one person against ano- 
 
 1 Wh. C. L. (2d ed.) 357. 
 
 2 Com. V. Thomson, 5 Mass. 134; 3 Wheeler's C. C. 319; State v. Zeller, 2 Halsted, 
 220; State v. Norris, 1 Hay. 429; State v. Weaver, 2 Hay. 54; Com. v. Daley, 4 
 Penn. Law Jour. 154; Penns. v. Honeyman, Add. 148; 3 Inst. 47, 51; 2 Ld. Ray- 
 mond, 1487; 1 Hale, 425; 1 Hawk. ch. 31, s. 3, 8; Kel. 127; Fost. 256; 4 Blac. 
 Com. 198; Lewis, C. L. 394. ' Fost. 256, 262. 
 
 * 1 Hawk. P. C. c. 31, s. 18; Fost. 257; 1 Hale, 451 to 454; 1 Russell on Crimes, 
 483. ' 1 Hale, 451 ; 4 Blac. Com. 199. 
 
 3 
 
34 HOMICIDE. 
 
 ther, ho-wever sudden;' as where a man kills another suddenly without 
 any, or without i)i considerable provocation,^ and where a man wilfully 
 poisons another.^ And where one is killed in consequence of such a 
 wilful act as shows the person by whom it is committed to be an 
 enemy to all mankind, the law will infer a general malice from 
 such depraved inclination to mischief."* 
 
 Where the act is committed deliberately, and is likely to be at- 
 tended with dangerous consequences, the malice requisite to mur- 
 der will be presumed ; for the law infers that the natural or proba- 
 ble effect of any act deliberately done, is intended by its actor.' 
 The killing proved, even though nothing else be shown, it has been 
 repeatedly held in Massachusetts that the offence is murder; the 
 burden of extenuation being then thrown on the defendant;^ and 
 such is undoubtedly the general rule.' In Ohio the presumption of 
 killing alone is that of murder in the second degree,' and so also 
 is held to be the law in Virginia.' In the latter state, however, it 
 is said that where the mortal wound is given with a deadly weapon 
 in the slayer's previous possession, there being no evidence of pro- 
 vocation, the case is prima facie murder in the first degree;" and 
 so also is the rule in Pennsylvania." * 
 
 Malice, once ascertained, is presumed to continue down to the 
 fatal act.'^ Thus, where it appeared that the deceased had threatened 
 the prisoner about three weeks before that he would kill him, that 
 they met in the street on a star-light night when they could see each 
 other, that the deceased pressed for a fight, but the prisoner retreated 
 a short distance, that when the deceased overtook him, the prisoner 
 stabbed him with some sharp instrument which caused his death, and 
 
 ' 1 East, p. C. u. 5, s. 2, p. 215. 
 
 » U. S. V. Cornell, 2 Mason, 91 ; State v. Smith, 2 Strobh. 77 ; Com. ». Drew, 4 
 Mass. 391; Res. v. Bob, 4 Dallas, 146; Penn. v. Honeyman, Addison, 148; Penn. 
 V. M'Fall, Id. 257; Penn. o. Lewis, Id. 282; Com. o. York, 7 Boston Law Report, 
 510; State v. Zeller, 2 Halsted, 220; State v. Merrill, 2 Dev. 269; People v. M'Leod, 
 1 Hill's N. Y. R. 377; State v. Town, Wright, 75; State v. Irwin, 1 Hay. 112; State 
 V. Peters, 2 Rice's Dig. 106; State v. Town, Wright, 75; State v. Tvirner, Ibid. 20; 
 Woodsides v. State, 2 Howard's Miss. R. 656: Dexter v. Spear, 4 Mason, 115; Peo- 
 ple V. M'Leod, 1 Hill, 577; State v. Town, Wright, 75. 
 
 " 1 Hale, 455; 4 Blac. Com. 200. 
 
 •1 Hale, 474; 1 Hawk. P. C. c. 29, s. 12; 4 Blao. Com. 200; 1 East, P. C. c. 
 5, s. 18. 
 
 'State V. Tookey, 2 Rice's Dig. 104; U. S. v. Cornell, 2 Mason, 91; Woodsides «. 
 State, 2 Howard's Miss. R. 656; Davies v. State, 2 Humphrey, 437; Coffee v. State, 3 
 Yerger, 288 ; The State v. Lipsey, 8 Dev. 485. 
 
 • Com. V. York, 9 Met. 93; Wilde, J. diss. Bemis' Webster's case, p. 451 ; Mitchell v. 
 State, 5 Yerg. 340.— Though see Coffee v. State, 3 Yerg. 283. 
 
 ' 1 Rus. on Cr. 483 ; Wood.<iides v. State, 2 Howard, 656 ; Hill's case, 2 Gratt. 594; 
 State V. Smith, 2 Strobh. 77; People v. M'Leod, 1 Hill, 177; Rex v. Greenaore, 8 C. & 
 P. 35, per Tindal, C. J., 4 Bl. Comm. 200, York's case, 9 Met. 198. Such is also 
 the rule in Scotland, Alison's Crim. Law of Scotland, 48, 49. It also seems to be 
 the rule of the Roman Civil Law. Omne malum factum prave semper prsesumitur 
 actum; nisi ratione personse contraria omnino oriatur prsesumptio. De Probat. 
 Concl. 223 in 5. Si homit^dum committatur, preesumitur in dubio doloso committi, 
 licet potuisset patiare ad defensiorem. Id. concl. 1007, n. 62. Omne malum prsesumi- 
 tur pessimi, factum nisi probetur contrarium. Id. concl., 1168, n. 23. 
 
 • State V. Turner, Wright, 20. 9 Hill's case, 2 Gratt. 594. 
 i»Ibid.; See also M'Daniel v. State, 8 S. & M. 401; State v. Hildreth, 9 Iredell 
 
 429; Pierson v. State, 12 Ala. 149. 
 11 Smith's case ; Dougherty's case, appendix. 
 " State ». Johnson, 1 Iredell, 354; State v. Tully, 4 Iredell, 424. 
 
GENERAL DEFINITIONS — MURDER — MANSLAUGHTER. 35 
 
 at the time of this meeting, the deceased had no deadly weapon; it 
 was held, that in such a case, to mitigate the offence from murder, it 
 must appear, from the previous threats and the circumstances attend- 
 ing the rencontre, that the killing was in self-defence, the presump- 
 tion being that the killing was malicious.* 
 
 Malice may be exerted against a party in his absence; as where A 
 lays poison for B in his victuals, which B afterwards takes and dies. 
 So, where A procures an idiot or lunatic to kill B, which he does. 
 In both instances A is guilty of the murder as principal.' 
 
 There may be a class of cases, to use the words of Chief Justice 
 Shaw, "when, if reasonable doubt arises as to the malice, the court 
 would properly instruct the jury to find manslaughter, as where a 
 mother exposed her infant child in a garden, and it was devoured by 
 a kite, or where the death of a pauper was produced by constant 
 shifting, on the part of the overseers of the poor, from parish to 
 parish."^ 
 
 II. MANSLAUGHTER. 
 
 Manslaughter is the unlawful and felonious killing of another, 
 without any malice, either express or implied.'* Manslaughter differs 
 from murder in this, that though the act which occasions the death 
 be unlawful, or likely to be attended with bodily mischief, yet the ma- 
 lice, either express or implied, which is the very essence of murder, 
 is presumed to be wanting; and the act being imputed to the infir- 
 mity of human nature, the punishment is proportionably lenient.* 
 
 It is no defence to an indictment for manslaughter, that the homi- 
 cide therein alleged, appears by the evidence to have been committed 
 with malice aforethought, and was, therefore, murder; but the de- 
 fendant, in such case, may, notwithstanding, be properly convicted of 
 the offence of manslaughter.* 
 
 Manslaughter at common law is of two kinds: 1st. Voluntary man- 
 slaughter, which is the unlawful killing of another, without malice, 
 on sudden quarrel or in heat of passion. Where upon sudden quarrel, 
 two persons fight, and one of them kills the other, this is voluntary 
 manslaughter; and so, if they, upon such occasion, go out and fight 
 in a field; for this is one continued act of passion. So also if a man 
 be greatly provoked by any gross indignity, and immediately kills 
 his aggressor, it is voluntary manslaughter, and not excusable homi- 
 cide, not being se defendendo; neither is it murder, for there is no 
 previous malice. In these, and such like cases, the law kindly appre- 
 ciating the infirmities of human nature, extenuates the offence com- 
 mitted, and mercifully hesitates to put on the same footing of guilt, 
 the cool deliberate act, and the result of hasty passion. 
 
 2nd. Involuntary manslaughter, where a man doing an unlawful act, 
 not amounting to felony, by accident kills another. It differs from 
 
 1 state V. Scott, 4 Iredell, 409. ^ "wh. C. L. {2d. ed.) 62. ' Com. v. York, 9 Met. 93. 
 
 * 1 Hale, 449; 1 Hawk. c. 30, o. 3; Parker, J., Selfridge's trial, 158; State v. Noma 
 1 Hay. 429. 
 
 5 Exparte Tayloe, 5 Cowen, 51; King v. Com. 2 Va. Cases, 78; Com. v. Bob, 4 DaU. 
 125; State v. Tookey, 2 Rice, S. C. Dig. 104; Penn. v. Levin, Addison, 279; State v. 
 Travers, 2 Wheeler's C. C. 506; Com. v. Mitchell, 1 Va. Cases, 716; Parker, J., Sel- 
 fridge's trial, 158; 1 Hale, 449, 450, 466; 3 Inst. 55; 1 Hawk. c. 30, s. 2; vide K. v. 
 Mawgridge, Kel. 124; Fost. 290; vide Lord Comwallis's case, Dom. Proc. 1678; 2 St 
 Tr. 730. « Commth. v. M'Pike, 3 Cush. 181. 
 
36 HOMICIDE. 
 
 homicide excusable by misadventure in this: that misadventure al- 
 ways happens in the prosecution of a lawful act, but this species of 
 manslaughter in the prosecution of an unlawful one. Where a per- 
 son does an act lawful in itself, but in an unlawful manner, this ex- 
 cepts the killing from homicide excusable per infortuniam, and makes 
 it involuntary manslaughter. In general, where an involuntary kill- 
 ing happens in consequence of an unlawful act, it will be either mur- 
 der or manslaughter according to the nature of the act which occa- 
 sioned it; if it be in prosecution of a felonious intent, or in its con- 
 sequences naturally tended to bloodshed, it will be murder; but if no 
 more was intended than a mere civil trespass, it is manslaughter.* 
 
 III. EXCUSABLE HOMICIDE. 
 
 Excusable homicide is of two kinds: — 1st. "Where a man doing a 
 lawful act, without any intention of hurt, by accident kills another; 
 as, for instance, where a man is hunting in a park, and unintentionally 
 kills a person concealed. This is called hovaicidie per infortuniam, 
 or by misadventure. 2d. Se defendendo or in self-defence, which ex- 
 ists, (to adopt the definition of Mr. G-reenleaf,^) where one is assaulted 
 upon a sudden affray, and in the defence of his person, where certain 
 and immediate sufferingwould be the consequence of waiting for the as- 
 sistance of the law, and there was no other probable means of escape, 
 he kills the assailant. To reduce homicide, in self-defence, to this 
 degree, it must be shown that the slayer was closely pressed by the 
 other party, and retreated as far as he conveniently or safely could, 
 in good faith, with the honest intent to avoid the violence of the as- 
 sault. The jury, as will presently be seen more fully, must be satis- 
 fied that, unless he had killed the assailant, he was in imminent and 
 manifest danger either of losing his own life or of suffering enormous 
 bodily harm.^ By the older text writers, this species of homicide is 
 sometimes called chance medley or chaud medley, words of nearly 
 the same import; and closely borders upon manslaughter. In this 
 case as well as in that of manslaughter, the theory is, that passion 
 has kindled on each side, and that blows have passed. The distinc- 
 tion, however, is that, in manslaughter, it must appear either that 
 the parties were actually in mutual combat when the mortal stroke 
 was given, or that the slayer was not at that time in imminent dan- 
 ger of death; but that in homicide excusable by self-defence, it must 
 appear, either that the slayer had not begun to fight, or that, having 
 begun, he endeavoured to decline any further struggle, and afterward 
 being closely pressed by his antagonist, he killed him, to avoid his 
 own destruction.'' As will in another chapter be explained more fully, 
 the same right of self-defence is extended to the relations of master 
 and servant, parent and child, and husband and wife; and to those 
 cases where homicide is unavoidably committed in the defence of the 
 possession of one's dwelling-house, against a trespasser, who, having 
 
 1 4 Bl. Com. 191. 2 3 Greenleaf Ev. gll6. 
 
 » 4 Bl. Comm. 182; 1 Euss. on Crimes, 660, 661; Whart. Am. Crim. Law, 385, 397. 
 Qui cum, aliter tueri se non pussant, damni culpam dederint, innoxii sunt. Vim enim 
 Ti defendere omnes leges omniaque jura, permittant. Dig. lib. 9, tit. 2, 1. 45, 3 4. Is, 
 qui aggressorem vel quemcunque alteram in dubio \itsB discrimine constitutus occiderit, 
 nuUam ob id factum calumniam metuere debet. Cod. lib. 9, tit. 16, 1. 2. 
 
 * 4 Bl. Comm. 184; 1 Russ. on Crimes, 661; State v. Hill, 4 Dev. & Batt. 491. 
 
GENERAL DEFINITIONS — EXCUSABLE AND JUSTIFIABLE HOMICIDE. 37 
 
 entered, cannot be put out otherwise than by force; and where no 
 more force is used and no other instrument or mode is employed than 
 is necessary and proper for that purpose. Under the same general 
 head of excusable homicide may also be enumerated that class of 
 cases, where two persons are reduced to the alternative, that one or 
 the other or both must certainly perish, as, where two shipwrecked 
 persons are on one plank which will not hold them both, and one 
 thrust the other from it, so that he is drowned, the survivor is excused. 
 The distinction, in result, between justifiable and excusable homi- 
 cide is now practically exploded. In former times, in the latter 
 case, as the law presumed that the slayer was not wholly free 
 from blame, he was punished, at least by forfeiture of goods. But 
 in this country, this rule is not known ever to have been recognised; 
 it having been the uniform practice here, as it now is in England, where 
 the grade does not reach manslaughter, for the jury under the direc- 
 tion of the court to acquit. 
 
 IV. — JUSTIFIABLE HOMICIDE. 
 
 Justifiable homicide'* is that which is committed, either, — 1st. By 
 unavoidable necessity, without any will, intention or desire, or any 
 inadvertence or negligence in the party killing, and, therefore, with- 
 out blame; such as, by an officer, executing a criminal, pursuant to 
 the death warrant, and in strict conformity to the law, in every par- 
 ticular; or, 2dly. For the advancement of public justice; as, where 
 an officer in the due execution of his office, kills a person who assaults 
 and resists him; or where a private person or officer attempts to arrest 
 a man charged with felony and is resisted, and in the endeavour to 
 take him, kills him ; or if a felon flee from justice, and in the pursuit 
 he be killed, where he cannot otherwise be taken; or, if there be a 
 riot, or a rebellious assembly, and the officers or their assistants, in 
 dispersing the mob, kill some of them, where the riot cannot be other- 
 wise suppressed; or, if prisoners, in jail or going to jail, assault or re- 
 sist the officers, while in the necessary discharge of their duty, and 
 the officers or their aids, in repelling force by force, kill the party 
 resisting; or, thirdly, for the prevention of any atrocious crime, at- 
 tempted to be committed by force; such as murder, robbery, house- 
 breaking, in the night time, rape, mayhem, or any other act of felony 
 against the person.^ But in such cases, the attempt must be not 
 merely suspected, but apparent, and the danger must be imminent, 
 and the opposing force or resistance necessary to avert the danger or 
 defeat the attempt.^ 
 
 ' The above definition is taken from Mr. Greenleaf, (3 Green, on Evid. 115,) TTho refers 
 to 4 Bl. Comm. 178—180; 1 Russ. on Crimes, 665, 670; Whart. Am. Grim. Law, 299. 
 The Roman civil law recognised the same principles. Qui latronem (insidiatorem) Occi- 
 dent, non tenetur, utique si aliter periculum effugere non protest. Inst. lib. 4, tit. 3, § 2. 
 Furem nocturnum, si quis Occident, ita demum impune feret, si parcere ei sine perioulo 
 BUG non potuit. Dig. lib. 48, tit. 8, 1. 9. Qui stuprum sibi vel suis per vim inferentem 
 oocidit, dimmittendum. Dig. lib. 48, tit. 8, 1. 1, § 4. Si quis percussorem ad se venien- 
 tem gladio repulerit, non ut homicida tenetur; quia defensor proprise salutis in nuUo 
 pecasse videtur. Cod. lib. 9, tit. 16, 1. 3. In the cases mentioned in the text, if the 
 homicide is committed with undue precipitancy, or the unjustifiable use of a deadly wea- 
 pon, the slayer will be culpable. See Alison's Grim. Law of Scotland, p. 100; Id. p. 
 132—189. 
 
 2 United States t. Wiltberger, 3 Washburn, 515. And see State v. Rutherford, 
 1 Hawks, 457; State v. Roane, 2 Dev. 58. 
 
 3 4 Bl. Comm. 182; 1 Russ. on Crimes, 657—660. 
 
38 HOMICIDE. 
 
 CHAPTER II. 
 
 HOMICIDE PROM INDIVIDUAL MALICE. 
 
 I. Towards the party killed. 
 
 II. Towards a third party, when the fatal blow falls on the de- 
 ceased by mistake. 
 
 I. — towards the PAETT KILLED. 
 
 Malice may be either express or implied by law. Express malice 
 is defined to be when one person kills another with a sedate delibe- 
 rate mind and formed design. Such formed design may be evidenced 
 by external circumstances, discovering the inward intention ; as lying 
 in wait, antecedent menaces, former grudges, and concerted schemes 
 to do the party some bodily harm. And malice is implied by law 
 from any deliberate cruel act committed by one person against 
 another, however sudden: thus where a man kills another suddenly 
 without any, or without a considerable provocation, the law implies 
 malice ; for no person, unless of an abandoned heart, would be guilty 
 of such an act upon a slight or no apparent cause. And, as will be 
 seen presently, where one is killed in consequence of such a wilful 
 act as shows the person by whom it is committed to be an enemy to 
 all mankind, the law will infer a general malice from such a depraved 
 inclination to mischief. It may indeed be treated as a general rule, that 
 all homicide is presumed to be malicious where an instrument likely 
 to cause death is used.' 
 
 It should not be forgotten in this connexion, that the legal mean- 
 ing of the term malitia or malice is different from its popular mean- 
 ing, which makes it synonymous with spite. Thus Lord Holt says, 
 " Some have been led into mistakes by not well considering what 
 the passion of malice is; they have construed it to be a rancour of 
 mind lodged in the person killing for some considerable time before 
 the commission of the fact; which is a mistake, arising from the not 
 well distinguishing between hatred and malice. Envy, hatred, and 
 malice, are three distinct passions of the mind." ^ Amongst the Ro- 
 mans, and in the civil law, malitia appears to have imported a mix- 
 ture of fraud, and of that which is opposite to simplicity and honesty. 
 Cicero speaks of it' as "versuta etfallax nocendi ratio;" and in ano- 
 ther work^ he says, "mihi quidem etiam verce hcereditates non honestce 
 videntur si sint malitiosis (i. e. according to Pearce, a malo animo 
 profectis) blanditiis officiorum; non veritate sed simulatione qum- 
 sitee." And in the Pandects' in speaking of a banker or cashier 
 giving his accounts, it is said, '^Ubi exigitur argmtarius rationes 
 
 1 Wh. C. L. 360. See ante p. 34. « Kel. 127. a De Nat. Deor. Lib. 3, s. 30. 
 
 * De OflSo. Lib. 3 s. 18. ^ Djg. Lib. 2 Tit. 13, Lex. 8. 
 
INTENT TO KILL. 39 
 
 edere, tunc punitur cum dolo malo non exhihet • • • • Bolo malo 
 autem non edit, et qui malitiose edidit, et qui in totum non edit." At 
 common law, malice is a term of law importing directly wickedness, 
 and excluding a just cause or excuse. Thus Lord Coke, in his com- 
 ment on the words per malitiam says, " If one be appealed of murder, 
 and it is found by Terdict that he killed the party se defendendo, this 
 shall not be said to be per malitiam, because he had a just cause.'"- 
 And where the statutes speak of a prisoner on his arraignment 
 standing mute of malice, the word clearly cannot be understood in 
 its common acceptation of anger or desire of revenge against ano- 
 ther. Thus where the 25 Hen. 8, c. 3, says, that persons arraigned 
 of petit treason, &c., standing "mute of malice or froward mind," or 
 challenging, &c., shall be excluded from clergy, the word malice, ex- 
 plained by the accompanying words, seems to signify a wickedness 
 or frowardness of mind in refusing to submit to the course of jus- 
 tice; in opposition to cases where some just cause may be assigned 
 for the silence, as that it proceeds from madness, or some other 
 disability or distemper. And in the statute 21 Edw. 1, De malefac- 
 toribus in parcis, trespassers are mentioned who shall not yield them- 
 selves to the foresters, &c., but " immo malitiam suam prosequendo et 
 continuando," shall fly or stand upon their defence. And where the 
 question of malice has arisen in cases of homicide, the matter for con- 
 sideration has been, (as will be seen in the course of the present and, 
 subsequent chapters) whether the act were done with or without just 
 cause or excuse ; so that it has been suggested that what is usually 
 called malice implied by the law would perhaps be expressed more 
 intelligibly and familiarly to the understanding if it were called ma- 
 lice in a legal sense. Malice, in its legal sense, denotes a wrong- 
 ful act done intentionally or without just cause or excuse. 
 
 Malice in this intent may be considered under the following heads: — 
 
 (1.) Intent to kill. 
 
 (2.) Intent to do bodily harm. 
 
 (1.) — INTENT TO KILL. 
 
 This head admits of no question in its primary sense. Of course, 
 where there is a deliberate intent to kill, unless it be in the discharge 
 of a duty imposed by the public authorities, the offence must be mur- 
 der at common law.^ And it should be observed that an intermedi- 
 ate provocation, immediately after the happening of which the offence 
 occurred, forms no defence.* The reason of this is obvious, for if all 
 that was necessary for a man to do to relieve himself from the guilt 
 of murder was such provocation, there would rarely be a case of ho- 
 micide without it. In a leading case on this point, the prisoner, with 
 the deceased and another brother, and some neighbours, was drink- 
 ing in a friendly manner at a public house ; till growing warm in liquor, 
 but not intoxicated, the prisoner and the deceased began in idle sport 
 to pull and push each other about the room. They then wrestled ; 
 one fell, and soon afterwards they played at cudgel by agreement. 
 AH this time no token of anger appeared on either side, till the pri- 
 soner, in the cudgel-play gave the deceased a smart blow on the tem- 
 
 1 2 Inst. 384. ' See Wh. C. L. 2d ed. 361. ' Ibid. 1 Ens. on Crimes, 515. 
 
40 HOMICIDE. 
 
 pie. The deceased thereupon grew angry; and throwing away his 
 cudgel, closed in with the prisoner, and they fought a short space in 
 good earnest: but the company interposing, they were soon parted. 
 The prisoner then quitted the room in anger; and when he got into 
 the street, was heard to say, "Damnation seize me if I do not fetch 
 something and stick him." And being reproved for using such ex- 
 pressions, he answered, " I'll be damned to all eternity if I do not 
 fetch something and run him through the body." The deceased and 
 the rest of the company continued in the room where the affray hap- 
 pened ; and in about half an hour the prisoner returned, having put 
 off a thin slight coat he had on when he quitted the room, and put on 
 one of a coarse thick cloth. The door of the room being open into 
 the street, the prisoner stood leaning against the door-post, his left 
 hand in his bosom, and a cudgel in his right, looking in upon the 
 company, but not speaking a word. The deceased seeing him in 
 that posture, invited him in to the company: but the prisoner an- 
 swered, " I will not come in." " Why will you not? " said the deceased. 
 The prisoner replied, " Perhaps you will fall on me and beat me." 
 The deceased assured him he would not; and added, "besides, you 
 think yourself as good a man as me at cudgels, perhaps you will play 
 at cudgels with me." The prisoner answered, "I am not afraid to do 
 so if you will keep off your fists." Upon these words the deceased 
 got up and went towards the prisoner, who dropped the cudgel as the 
 deceased was coming up to him. The deceased took up the cudgel, 
 and with it gave the prisoner two blows on the shoulder. The pri- 
 soner immediately put his right hand into his bosom, and drew out the 
 blade of a tuck sword, crying, " Damn you, stand off, or I'll stab you; " 
 and immediately, without giving the deceased time to step back, made 
 a pass at him with the sword, but missed him. The deceased there- 
 upon gave back a little ; and the prisoner shortening the sword in his 
 hand, leaped forward towards the deceased and stabbed him to the 
 heart, and he instantly died. The judges unanimously agreed, that 
 there were in this case so many circumstances of deliberate malice 
 and deep revenge on the defendant's part, that his offence could not 
 be less than wilful murder. He vowed he would fetch something to 
 stick him, to run him through the body. Whom did he mean by him- ? 
 Every circumstance in the case showed that he meant his brother. 
 He returned to the company, provided, to appearance, with an ordi- 
 nary cudgel, as if he intended to try skill and manhood a second time 
 with that weapon : but the deadly weapon was all the while carefully 
 concealed under his coat; which most probably he had changed for 
 the purpose of concealing the weapon. He stood at the door, refusing 
 to come nearer, but artfully drew on the discourse of the past quarrel ; 
 and as soon as he saw his brother disposed to engage a second time 
 at cudgels, he dropped his cudgel and betook him to the deadly 
 weapon, which till that moment he had concealed. He did indeed 
 bid his brother stand off; but he gave him no opportunity of doing so 
 before the first pass was made. His brother retreated before the se- 
 cond; but he advanced as fast, and took the revenge he had vowed. 
 The circumstance of the blows before the sword was produced, which 
 probably occasioned the death, did not alter the case; nor did the 
 preceding quarrel; because all circumstances considered he appeared 
 
INTENT TO KILL, OB DO BODILY HAEM. 41 
 
 to have returned with a deliberate resclution to take a deadly revenge 
 for what had passed.* 
 
 Malice can never, or rarely, be directly proved, and the evidence 
 of it, therefore, being circumstantial, any facts which go to afford an 
 inference of its existence are admissible. Illustrations of this are 
 found under a previous head; and in the subsequent consideration of 
 murder in the first and second degrees, the subject will be further 
 noticed. But it would seem that the malide proved must be directed 
 to the particular act for which the prisoner is tried, as otherwise the 
 issue might become much encumbered. Thus it was held in Tennessee, 
 that on the trial of an indictment for murder, evidence that the pri- 
 soner, a short time before the murder, had set fire to the house of the 
 deceased in the night time, was inadmissible for the purpose of proving 
 that the prisoner had committed the murder.^ Where, however, there 
 is established a settled purpose of revenge on the part of the prisoner, 
 such evidence would seem to be admissible if it appeared to be one 
 of the manifestations of such spirit. 
 
 Evidence that the prisoner had beaten his wife, and forced her to 
 abandon his house, and seek refuge under the protection of the de- 
 ceased, has been held proper proof of malice prepense on the part of 
 the prisoner.' 
 
 Malice of this kind, it is well stated by Mr. Greenleaf, may be 
 shown from the circumstances attending the act, such as the delibe- 
 rate selection and use of a lethal weapon, knowing it to be such; a pre- 
 concerted hostile meeting, whether in a regular duel, with seconds, 
 or in a street fight mutually agreed upon, or notified and threatened 
 by the prisoner; privily lying in wait; a previous quarrel or grudge; 
 the preparation of poison, or other means of doing great bodily harm, 
 or the like."^ s, 
 
 (2.) — INTENT TO DO BODILY HAEM. 
 
 At common law, the intent to do bodily harm, followed up by homi- 
 cide, constitutes murder; though, as will be seen hereafter, such an of- 
 fence falls in this country, in those states where this distinction exists, 
 under the head of murder in the second degree. Homicides of this 
 character are numerous; and it is easy to suppose of homicide in a 
 duel that may be so ranked, e.g., where the intention was to maim, 
 not to kill. The distinction, in a case of this kind, is undoubtedly 
 very delicate ; and when a statutory line must be drawn, it would per- 
 haps be wiser to say that when the damage intended was such as would 
 probably result in death, it is murder in the first degree, even though 
 death may have been but incidental to the offender's purpose.' Al- 
 though A intend only to heat B in anger, from preconceived malice, 
 and happen to kill him, it will be no excuse that he did not intend 
 all the mischief that followed ; for what he did was malum in se, and 
 he must be answerable for its consequences. He beat B with an in- 
 tention of doing him some bodily harm, and is therefore answerable 
 for all the harm he did.* So if a large stone be thrown at one with 
 a deliberate intent to hurt, though not to kill him, and by accident it 
 
 > Mason's case, Fost. 132. 1 East. P. C. o. 5, s. 23, p. 239. 
 
 2 Stone V. State, 4 Humph. 27. s Stone v. State, 4 Humph. 27. 
 
 * 3 Greenleaf on Ev. s. 145. 6 Com. v. Green, 1 Ashm. 289. ^ post. 259. 
 
42 HOMICIDE. 
 
 kill him, or any other, this is murder.* But the nature of the instru- 
 ment, and the manner of using it, as calculated to produce great bodily 
 harm or not, will vary the offence in all such cases. 
 
 In a more recent case, it appeared that the deceased, being in liquor, 
 had gone at night into a glass house, and laid himself down upon a 
 chest ; and that while he was there asleep the prisoners covered and 
 surrounded him with straw, and threw a shovel of hot cinders upon 
 his belly ; the consequence of which was that the straw ignited, and 
 he was burnt to death: there was no evidence of express malice, but 
 the conduct of the prisoners indicated an entire recklessness of conse- 
 quences, hardly consistent with any thing short of design. Patter- 
 son, J., adverted to the fact of there being no evidence of express 
 malice, but told the jury that if they believed the prisoners really in- 
 tended to do any serious injury to the deceased, although not to kill 
 him, it was murder; but if they believed their intention to have been 
 only to frighten him in sport, it was manslaughter. 
 
 The character of that species of homicide which arises from unlaw- 
 ful assemblages will be considered in another chapter. 
 
 n. — TOWARDS A THIRD PARTY, WHEN THE FATAL BLOW FALLS ON THE DE- 
 CEASED BT MISTAKE. 
 
 Where an injury, intended against one person, mortally affects ano- 
 ther, as where a blow aimed at one person lights upon another and 
 kills him, the inquiry will be whether, if the blow had killed the per- 
 son against whom it was aimed, the offence would have been murder 
 or manslaughter. For if a blow, intended against A, and lighting on 
 B, arose from a sudden transport of passion, which, in case A had died 
 by it, would h^ve reduced the offence to manslaughter, the fact will 
 admit of the same alleviation if it shall have caused the death of B.^ 
 And on the same principle A having malice against B, strikes at and 
 misses him, but kills C, this is murder in A; and if it had been with- 
 out malice and under such circumstances that if B had died, it would 
 have been but manslaughter ; the killing of C also would have been 
 but manslaughter.^ Again, A having malice against B, assaults him, 
 and kills C the servant of B, who had come in aid of his master : this 
 is murder in A; for C was justified in attacking A in defence of his 
 master who was thus assaulted. In another case if A gave a poisoned 
 apple to B, intending to poison her, and B, ignorant of it gave it to a 
 child, who took it and died; this is murder in A, but no offence in B; 
 and this, though A who was present at the time endeavoured to dis- 
 suade B from giving it to the child." So where Plummer, and seven 
 others, opposed the king's officers in the act of seizing wool. One of 
 those persons shot off a fusee and killed one of his own party. The 
 court held, in giving judgment upon a special verdict, that as the pri- 
 soner was upon an unlawful design, if he had in pursuance thereof 
 discharged the fusee against any of the king's officers that came to re- 
 sist him, in the prosecution of that design, and by accident had killed 
 
 1 1 Hale, 491. « Fost., 262. 
 
 8 1 Hale, 379, 439, 466; Dyer, 128; Kel. Ill, 112, 117; Pult de Pace, 124, b; Fost., 
 261; 1 Hawk., c. 31, 542; State v. Cooper, 1 Green, N. J. R. ; State v. Benton, 2 Dev. 
 and Bat. 196. * 1 Hale, 280; 2 Plowden Com. 474. 
 
WHEN AN UNINTENDED PERSON IS KILLED. 43 
 
 one of his own accomplices, it would have been murder in him. As 
 if a man out of malice to A. shoot at him, but miss him and kill B, it 
 is no less a murder than if he had killed the person intended.* And 
 again, where the prisoner fired a loaded pistol at a person on horse- 
 back, and declared that he did so only with the intention to cause the 
 horse to throw him, and the ball hit another person and killed him, 
 it was held that the crime was murder.^ 
 
 If a man have a sudden quarrel, and fight with A, by which his 
 passions are strongly excited, and while his passions are thus excited, 
 he without any real or supposed provocation kill B, who is an utter 
 stranger to the whole affair, and has not interfered in the quarrel, nor 
 been in any way connected therewith, even in the party's own suppo- 
 sition, it will be murder.^ But, where the prisoner, having had a 
 quarrel with his wife, and aimed a blow at her with an axe, which 
 fell on the head of his infant son, then in her arms, by which he was 
 instantly killed, it being shown that the prisoner was ignorant of his 
 child's position, and was at the time in the heat of blood, seeking to 
 avenge himself on his wife for a supposed injury, it was held that as 
 the case was to be considered as if the wife had been the victim, the 
 same grade of homicide would attach to the killing of the child as it 
 would have done to that of the wife, if she had been killed.'' But in 
 this as in cases of malice prepense and express, if the blow intended 
 for one would in law have amounted to manslaughter, it will still be 
 the same, though by mistake or accident it kill another. Thus, in an 
 old case, a quarrel arising between some soldiers and a number 'of 
 keelmen at Sandgate, a violent affray ensued, and one of the soldiers 
 was very much beaten. The prisoner, a soldier who had before driven 
 a part of the mob down the street with his sword in the scabbard, on 
 his return, seeing his comrade thus used, drew his sword, and bid the 
 mob stand clear, saying he would sweep the street; and on their press- 
 ing on him he struck at them with the flat-side, and as they fled pur- 
 sued them. The other soldier in the meantime had got away, and 
 when the prisoner returned he asked whether they had murdered his 
 comrade; and being several times again assaulted by the mob, he 
 brandished his sword, and bid them keep off. At this time the de- 
 ceased, who from his dress might be mistaken for a keelman, was going 
 along about five yards from the prisoner; but before he passed the 
 prisoner went up to him and struck him on the head with the sword, 
 of which he presently died. This was holden manslaughter: it was 
 not murder, because there was a previous provocation, and the blood 
 was heated in the contest: nor was it in self-defence, because there 
 was no inevitable necessity to excuse the killing in that manner.* 
 
 A widow, finding that one of her sons had not prepared her 
 dinner, as she had directed him to do, began to scold him, upon which 
 he made her some very impertinent answers, which put her in a pas- 
 
 1 12 Mod. 627; Eelyng, 111; Lord Eaym. 1581; 9 St. Tr. 112; Higgina' case, Dyer, 
 128; PI. 60; Cromp. 101 ; PI. 474; 9 Co. 81, Agnes Gore's case; D. Williams' case, cited 
 in the Queen v. Maugridge, Kelyng 131, 132 ; 9 St. Tr. 61. 
 
 2 State V. Smith, 2 Strobh., 77. 
 
 s U. S. u. Travers, N. Y. Cir. Court, 2 Wheeler's C. C, 508. 
 
 * Com. V. Dougherty, 7 Smith's Laws, 696. 
 
 5 Foster, 262; 1 Hawk. o. 81, a. 44; Crown cas. Ees., Leach, 151 S. C. 
 
44 HOMICIDE. 
 
 sion, and she took up a small piece of iron used as a poker, intending 
 to frighten him, and seeing she was very angry, he ran towards the 
 door of the room, when she threw the poker at him, and it happened 
 that the deceased was just comingin at the moment, and the iron struck 
 him on the head, and caused his death; Park, J. A. J., said to the jury: 
 "No doubt this poor woman had no more intention of injuring this 
 particular child than I have, but that makes no difference in law. If 
 a blow is aimed at an individual unlawfully — and this was undoubt- 
 edly unlawful, as an improper mode of correction — and strikes another 
 and kills him, it is manslaughter, and there is no doubt if the child 
 at whom the blow was aimed had been struck, and died, it would have 
 been manslaughter, and so it is under the present circumstances."* 
 
 Under this head may be classed those cases where medicine is ad- 
 ministered, or an operation performed with intent to produce an 
 abortion, and where the mother dies under the process. At common 
 law, this has been held to be murder.^ If there is mixed up in the of- 
 fence an intent to do bodily harm to the mother, the same result fol- 
 lows.' In a late case in Maine it has been said that as the general 
 principle of law is that homicide with intent to commit a misdemeanor 
 is but manslaughter, so in this case if the destruction of ih^fatus be 
 but a misdemeanor, the offence is only manslaughter.'' This, how- 
 ever, is not the received doctrine,* by which the offence is treated as 
 murder, the destruction of an infant, en ventre sa mere, being even at 
 common law in some respects felonious, and the act in its nature 
 malicious and deliberate, and necessarily attended with great danger 
 to the person on whom it is practised. Into what degree of murder 
 such homicide falls, where there is a statutory division of homicide, 
 will be hereafter considered in the appropriate chapter. 
 
 I R. V. Conner, 7 C. & P. 438. 
 
 ' 1 Hale, 90, Com. v. Chauncey, 2 Ashmead, 227 ; Smith v. State, 3 Redding, 48. 
 
 ' Ibid. * Smith v. State, 3 Redding, 48. 
 
 « Wh. C. L. 8 bb.; 1 Hale, 90; Com. v. Chauncey, 1 Ashmead, 227. 
 
FROM GENERAL MALICE. 45 
 
 CHAPTER III. 
 
 HOMICIDE FROM GENERAL MALICE OR FROM COLLATERAL UNLAWFUL 
 
 PURPOSE. 
 
 I. General depraved Inclination. 
 
 II. Intent to commit collateral felony. 
 
 III. Intent to commit collateral misdemeanor. 
 
 IV. Intent to resist authority or to create public disturbance. 
 
 I. — GENERAL DEPRAVED INCLINATION. 
 
 When an action unlawful in itself is done with deliberation, and 
 with intention of mischief, or great bodily harm to particulars, or of 
 mischief indiscriminately, fall where it may, and death ensue, against 
 or beside the original intention of the party, it will be murder. But if 
 such an original intention doth not appear, which is matter of fact, and 
 to be collected from circumstances given in evidence, and the act was 
 done heedlessly and incautiously, it will be manslaughter, not acci- 
 dental death ; because the act upon which death ensued, was unlaw- 
 ful.* Thus, if a person, breaking in an unruly horse, wilfully ride 
 him among a crowd of persons, the probable danger being great and 
 apparent, and death ensue from the viciousness of the animal, it is 
 murder. For how can it be supposed that a person wilfully doing an 
 act, so manifestly attended with danger, especially if he showed any 
 consciousness of such danger himself, should intend any other than 
 mischief to those who might be encountered by him?^ So if a man 
 mischievously throw from a roof into a crowded street where passen- 
 gers are constantly passing and repassing, a heavy piece of timber, cal- 
 culated to produce death on such as it might fall, and death ensue, 
 the offence is murder at common law.' And upon the same prin- 
 ciple, if a man, knowing that people are passing along the street, throw 
 a stone likely to do injury, or shoot over a house or wall with intent 
 to do hurt to people, and one is thereby slain, it is murder on account 
 of previous malice, though not directed against any particular indi- 
 vidual; it is no excuse that the party was bent upon mischief gene- 
 rally.'' 
 
 The lines of this species of homicide it is very important to preserve 
 intact, for as has been lately pointedly observed, " Particular malice 
 has the limited bounds of the person who is the object of it and who 
 may be on his guard against it : but general malice has a wider scope, 
 and falls on the unsuspecting. Is a man who fires a pistol at an indi- 
 
 ' Wh. C. L. 367; 1 Rus. on C, 539; Foster, 261. 
 2 1 Hale, 476; 4 Black. Coram. 200; 1 East, P. C. 231. 
 
 ' Com. V. Dougherty, 7 Smith's Laws, 696. Post-appendix. Boles v. State, 9 S. & 
 M. 284. * 1 Hale, 475; 3 Inst. 57; 1 East, P. 0. 231. 
 
46 HOMICIDE. 
 
 vidual against whom he has ill-will, less criminal than one who fires 
 a pistol at a crowd of an hundred people, against whom he has ill-will 
 as a body, or as a part of the community ? The absence of the per- 
 sonal animosity really aggravates the crime. In cases of particular 
 malice, the sophistry of the passions often gives the act the character 
 of a wild retribution, and the assassin persuades himself that he is 
 getting rid of a monster who is a curse to society. This reasoning is 
 perverse and dangerous; but is the state of the mind less detestable 
 in which no wrongs, real, exaggerated, or imaginary, inflame the pas- 
 sions against the individual, but in which the knife is driven home to 
 his heart, simply because he wears the form of a brother man ? Which 
 would argue the higher degree of depravity, the resolution, " I will 
 kill A and B, who have insulted or injured me," or " I will kill the 
 first man I meet be he who he may ? "^ 
 
 II. — INTENT TO COMMIT COLLATERAL FELONY. 
 
 So far as this concerns the homicide of one person where the intent 
 was to slay another, the subject has been already discussed; and so 
 far, also, as concerns homicide committed in the perpetration of arson, 
 rape, robbery, or burglary, it is treated under the head of murder in 
 the second degree. Independently of these points, it may be regarded 
 as a general rule, that if the act on which death ensue be malum 
 in se, it will be murder or manslaughter, according to the circum- 
 stances; if done in prosecution of a felonious intent, but death ensued 
 against or beside the intent of the party, it will be murder; but, on 
 the other hand, if the intent went no further than to commit a bare 
 trespass, it will be manslaughter. As, where A. shoots at the poultry 
 of B., and, by accident, kills B. himself: if his intent were to steal 
 the poultry, which must be collected from circumstances, it will be 
 murder, by reason of that felonious intent; but if it were done wan- 
 tonly and without that intent, it will be merely manslaughter. In 
 another case, where A. strikes a horse on which B. is riding: where- 
 upon the horse springs out and runs over a child and kills it; this is 
 manslaughter in A., but misadventure in B.^ 
 
 III. — INTENT TO COMMIT COLLATERAL MISDEMEANOR. 
 
 The cases falling under this head are almost without an exception, 
 those where homicides are committed in the prosecution of unlawful 
 assemblies. These will be considered hereafter, under the chapter 
 relating to riotous homicide: at present it is necessary to do no more 
 than state that when a homicide occurs in the attempt to commit a 
 misdemeanor, which is not of itself calculated to produce great 
 bodily harm, the oifence is but manslaughter." 
 
 IV. — INTENT TO RESIST AUTHORITY OR TO CREATE PUBLIC DISTURBANCE. 
 
 This subject will be treated more fully in the next chapter, and in 
 a subsequent chapter on riotous homicide. 
 
 ' Mr. Fonblanque in the Examiner, Sat. May 11, 1850. 
 
 8 Fost. 258-9; Plummer's ease, 1 Hale, 475; 3 Inst. 56; Kel. 117; gum. 56- 6 St 
 Tr. 222; 1 Hawk. c. 29, sect. 11, o. 31, s. 41; Smith v. State, 3 Reddins 49 ' 
 8 Ibid. ^' ■ 
 
BY OFFICERS, ETC. 47 
 
 CHAPTEE IV. 
 
 HOMICIDE BY OFFICERS OP JUSTICE AND PERSONS AIDING THEM. 
 
 I. In obedience to a writ of execution. 
 
 II. In effecting an arrest. 
 
 III. In prevention of an escape. 
 
 IV. In preservation of the peace. 
 
 V. When acting improperly or with unnecessary severity. 
 
 VI. When acting without authority. 
 
 VII. When acting in self-defence. 
 
 I. — IN OBEDIENCE TO A WRIT OF EXECUTION. 
 
 Homicide committed by the Sheriff in execution of a warrant to 
 that effect is of course "justifiable, entitling him to an acquittal. It is 
 important to observe, however, that the judgment and sentence must 
 be strictly followed, since if death is inflicted otherwise than directed 
 the officer will be guilty of felony at least, if not of murder.' If the 
 judgment be to be hanged, and the officer behead the party, it is said 
 to be murder;^ and even the king was held not to be able to change 
 the punishment of the law by altering the hanging or burning into 
 beheading, though, when beheading is part of the sentence, the king 
 may remit the rest.^ The better opinion seems to have been that 
 this prerogative of the crown, founded in mercy and immemorially 
 exercised, is part of the common law;'* and that though the king 
 cannot by his prerogative vary the execution so as to aggravate the 
 punishment beyond the intention of the law, yet he may mitigate the 
 pain or infamy of it; and accordingly that an officer, acting upon a 
 warrant from the crown for beheading a person under sentence of 
 death for felony, would not be guilty of any offence;'' and it was in 
 earlier days the practice, founded in humanity, when women were 
 condemned to be burned for treason, to strangle them at the stake 
 before the fire reached them, though the letter of the judgment was 
 that they should be burnt in the fire till they were dead.'"^ The 30 
 Geo. 3, c. 48, now directs that they shall be fined as other offenders. 
 The rule may still apply to an officer varying from the judgment of 
 his own head, and without warrant or the colour of authority. If an 
 officer, whose duty it is to execute a sentence of whipping upon a cri- 
 minal, should be so barbarous as to exceed all bounds of moderation, 
 and thereby cause the party's death, he will at least be guilty of man- 
 slaughter. 
 
 1 1 Hale, 501; 2 Hale, 411; 3 Inst. 52, 211; 4 Blac. 179. 
 
 2 1 Hale, 433, 454, 466, 501; 2 Hale, 411; 3 Inst. 52; 4 Blac. Com. 179.- 
 
 ' 3 Inst. 52; 2 Hale, 412. * Fost. 270; F. N. B. 244, h; 19 Bym. Feed. 284. 
 
 6 Fost. 268; 4 Blac. Com. 405; 1 East, P. C. c. 5, s. 96,- p. 336. 
 
 6 Fost. 268. 1 1 Hawk. P. C. c. 29, b. 6. 
 
43 HOMICIDE. 
 
 II. — IN EFFECTING AN ARREST. 
 
 As a general principle, officers of the law when their authority to 
 arrest or imprison is resisted, will be justified in .opposing force to 
 force if death should be the consequence; ' yet they ought not to come 
 to extremities upon every slight interruption, without a reasonable 
 necessity.^ If they should kill where no resistance is made, it will be 
 murder ; and the same rule will exist if they should kill a party after 
 the resistance is over and the necessity has ceased, provided that suffi- 
 cient time has elapsed for the blood to have cooled.^. 
 
 The cases under this head may be classed as follows: — 
 
 1.— Civil. 
 
 2. — Criminal. 
 
 I. civil. 
 
 In civil suits, if the party against whom the process has issued, fly 
 from the officer endeavouring to arrest him, or if he fly after an arrest 
 actually made, or out of custody in execution for debt, and the officer 
 not being able to overtake him, make use of any deadly weapon, and 
 by so doing, or by other means, intentionally kill him in the pursuit, 
 it has been said that it will amount to murder.* But this is an ex- 
 treme case, for the same authorities inform us that if the officer, in 
 the heat of the pursuit, and merely in order to overtake the party, 
 should trip up his heels, or give him a stroke with an ordinary cud- 
 gel, or other weapon not likely to kill, and death should unhappily 
 ensue, this will not amount to more than manslaughter, if, in some 
 cases, even to that offence,' and if there be resistance, and an affray 
 ensue, during which the party sought to be arrested is slain, the 
 offence will be but manslaughter. Thus in a leading case, which has 
 been the cause of much discussion, but which when all the facts are 
 considered is in conformity with the general line of authority, Mr. 
 Lutterel, being arrested for a small debt, prevailed on one of the 
 officers to go with him to his lodgings, while the other was sent to 
 fetch the attorney's bill, in order, as Lutterel pretended, to have the 
 debt and costs paid. Words arose at the lodgings about civility 
 money, which Lutterel refused to give ; and he went up stairs, pre- 
 tending to fetch money for the payment of the debt and costs, leaving 
 the officer below. He soon returned with a brace of loaded pistofs 
 in his bosom, which, at the importunity of his servant, he laid down 
 on the table, saying, "He did not intend to hurt the officers, but he 
 would not be ill-used." The officer, who had been sent for the attor- 
 ney's bill, soon returned to his companion at the lodgings; and, words 
 of anger arising, Lutterel struck one of the officers on the face with 
 a walking cane, and drew a little blood. Whereupon both of them 
 fell upon him : one stabbed him in nine places, he all the while on the 
 ground begging for mercy, and unable to resist them; and one of them 
 fired one of the pistols at him while on the ground, and gave him his 
 death's wound. This is reported to have been holden manslaughter, 
 by reason of the first assault with the cane: but Mr. Justice Foster 
 thinks it a very extraordinary case, as thus reported; and mentions 
 
 1 4 Blao. Com. 180. ' 1 East. P. C. 297. ' 1 Hale, 481 ; Fost. 291. 
 
 * 1 Hale, 481; Fost. 291. ' E. v. Tranter, Stra. 499. 
 
49 
 
 the following additional circumstances, which are stated in another 
 report. 1. Mr. Lutterel had a sword by his side, which, after the 
 affray was over, was found drawn and broken. 2. When Mr. Lut- 
 terel laid the pistols on the table, he declared that he brought them 
 down, because he would not be forced out of his lodgings. 3. He 
 threatened the officers several times. 4. One of the officers appeared 
 to have been wounded in the hand by a pistol shot, (for both pistols 
 were discharged in the affray,) and slightly wounded on the wrist by 
 some sharp pointed weapon, and the other was slightly wounded in 
 the hand by a like weapon. 5. The evidence touching Mr. Lutterel's 
 begging for mercy was not, that he was on the ground begging for 
 mercy, but that on the ground he held up his hands, as if he was beg- 
 ging for mercy. Upon these facts the chief justice directed the jury, 
 that if they believed Mr. Lutterel endeavoured to rescue himself, 
 which he seemed to think was the case, and which very probably was 
 the case, it would be justifiable homicide in the officers. And as Mr. 
 Lutterel gave the first blow, accompanied with menaces to the officers, 
 and' the circumstance of producing loaded pistols to prevent their 
 taking him from his lodgings, which it would have been their duty to 
 have done, if the debt had not been paid, or bail given, he declared 
 it would be no more than manslaughter.' 
 
 2. — CRIMINAL. 
 
 A distinction here exists between cases of misdemeanor and felony. 
 In the former, (with the exception, however, of some cases of flagrant 
 misdemeanors,) it is not lawful to kill the party accused if he fly from 
 the arrest, though he cannot otherwise be overtaken, and though there 
 be a warrant to apprehend him; and, generally speaking, it will be 
 murder : but, under circumstances, it may amount only to manslaughter, 
 if it appear that death was not intended.^ 
 
 On this principle it has been ruled that it is no excuse for killing 
 a man that he was out at night as a ghost, dressed in white for the 
 purpose of alarming the neighbourhood, even though he could not 
 otherwise be taken. The neighbourhood of Hammersmith had been 
 alarmed by what was supposed to be a ghost; the prisoner went out 
 with a loaded gun to take the ghost; and upon meeting with a person 
 dressed in white, immediately shot him. M'Donald, C. B., Rooke and 
 Lawrence, Js., were clear that this was murder, as the person who 
 appeared as a ghost was only guilty of a misdemeanor; and no one 
 might kill him, though he could not otherwise be taken. The jury, 
 however, brought in a verdict of manslaughter : but the court said 
 that they could not receive that verdict; and told the jury that if they 
 believed the evidence they must find the prisoner guilty of murder; 
 and if they did not believe the evidence, they should acquit the pri- 
 soner. The jury then found the prisoner guilty, and sentence was 
 pronounced : but the prisoner was afterwards reprieved.^ 
 
 Where, however, resistance is made, yet if the officer kill the party 
 after the resistance is over, and the necessity has ceased, the crime will 
 at least be manslaughter.'' 
 
 ' Fost. 293-4. 2 1 East, P. C. 302. 
 
 ' K. V. Smith, 4 Blac. Com. 201, (Note.) * 1 East, P. C. 525. 
 
 4 
 
50 HOMICIDE. 
 
 A well-grounded belief that a felony is about to be perpetrated will 
 extenuate a homicide committed in prerention of it, though the de- 
 fendant be but a private citizen, but not a homicide committed in pur- 
 suit, unless special authority be given.' 
 
 Where a felony has been committed, or a dangerous wound given, 
 and the party flies from justice, he may be killed in the pursuit, if he 
 cannot otherwise be overtaken. And the same rule holds if a felon, 
 after arrest, break away as he is carrying to jail, and his pursuers 
 cannot retake without killing him. But if he may be taken in any 
 case without such severity, it is, at least, manslaughter in him who 
 kills him; and the jury ought to inquire, whether it were done of ne- 
 cessity or not.^ The slayer, in such cases, must not only show that a 
 felony was actually committed, but that he avowed his object, and that 
 the felon refused to submit, and that the killing was necessary to make 
 the arrest.^ 
 
 So long as a party, liable to arrest, endeavours peaceably to avoid 
 it, he may not be killed; but whenever, by his conduct, he puts in 
 jeopardy the life of any attempting to arrest him, he may be killed, 
 and the act will be excusable.* 
 
 III. — IN PREVENTION OP AN ESCAPE. 
 
 When a felony has been committed, and the offender is in duress, 
 the officer is bound to make every exertion to prevent an escape; and 
 if in the pursuit, the felon be killed, where he cannot be otherwise over- 
 taken, the homicide is justifiable. This rule is not confined to those 
 who are present, so as to have ocular proof of the fact, or to those 
 who first come to the knowledge of it: for if, in these cases, fresh pur- 
 suit be made, and a fortiori if hue and cry be levied, all who join in 
 aid of those who began the pursuit are under the same protection of 
 the law. The same rule holds, if a felon, after arrest, break away as 
 he is carrying to jail, and his pursuers cannot retake without killing 
 him. But if he may be taken, in any case, without such severity, it 
 is at least manslaughter in him who kills him: and the jury ought to 
 inquire whether it were done of necessity or not." 
 
 Jailers, like other ministers of justice, are bound not to exceed the 
 necessity of the case in the execution of their oflSces; therefore, an 
 assault upon a jailer, which would warrant him (apart from personal 
 danger,) in killing a prisoner, must, it should seem, be such from 
 whence he might reasonably apprehend that an escape was intended, 
 which he could not otherwise prevent." 
 
 Jailers and their oflacers are under the same special protection as 
 other ministers of justice : but in regard to the great power which 
 they have, and, while it is exercised in moderation,' ought to have, 
 over their prisoners, the law watches their conduct with a jealous 
 eye. If a prisoner under a jailer's care die, whether by disease or 
 
 1 State ?>. Rutherford, 1 Hawkes, 457; Selfridge's Trial, 160; R. v. Haworth 1 Mood 
 C. C. 207; R. v. Williams, Ibid. 387; R. v. Longden, R. & R 228 
 
 2 1 Hale, 481; Feet. 27; 1 Rus. onCr., 533. 
 
 » State V. Roane, 2 Dev. 58. * State v. Anderson, 1 Hill's SCR Rll 
 
 l\ Hale, 481, 489; 2 Hale, 75-6, 91, 101-2; Fost. 271, 309; Stat 9 Am c 16- 
 1 Hawk. 0. 28, sect. 11 ; 2 Hawk. c. 12, sect. 1; 4 Blac. Com. 180; 3 Inst 118 220-1 ' 
 8 1 Rus. on Cr., 644. ' 
 
BY OFFICERS OP JUSTICE, ETC. 51 
 
 accident, the coroner, upon notice of such death, which notice the 
 jailer is obliged to give in due time, ought to resort to the jail; and 
 there, upon view of the body, make inquisition into the cause of the 
 death ; and if the death was owing to cruel and oppressive usage on 
 the part of the jailer or any officer of his, or, to speak in the language 
 of the law, to duress of imprisonment, it will be deemed wilful murder 
 in the person guilty of such duress.^ The person guilty of such du- 
 ress will be the party liable to prosecution, because, though in a civil 
 suit, the principal may in some cases be answerable in damages to the 
 party injured through the default of the deputy; yet, in a capital pro- 
 secution, the sole object of which is the punishment of the delinquent, 
 each man must answer for his own acts or defaults.^ And so where 
 a jailer, knowing that a prisoner infected with the small-pox lodged 
 in a certain room in the prison, confined another prisoner against bis 
 will in the same room. The second prisoner, who had not had the 
 distemper, of which fact the jailer had notice, caught the distemper, 
 and died of it: this was holden to be murder.^ 
 
 As has already been noticed, though where a felon flying from jus- 
 tice is killed by the officer in the pursuit, the homicide is justifiable 
 if the felon could not be otherwise overtaken;'' yet where a party is 
 accused of a misdemeanor only, and flies from the arrest, the officer 
 must not kill him, though there be a warrant to apprehend him, and 
 though he cannot otherwise be overtaken; and if he do kill him, it 
 will in general be murder. 
 
 IV. — IN PRESERVATION OF THE PEACE. 
 
 This subject will be more fully considered in the chapter on Eiotous 
 Homicide. At present it is sufficient to observe that, if officers of the 
 law, when engaged in the preservation of the peace, find it necessary 
 to take life, such homicide is justifiable. The rule is not confined to 
 the instant the officer is on the spot, and at the scene of action en- 
 gaged in the business which brought him thither, for he is under the 
 same protection going to, remaining at, or returning from the same: 
 and, therefore, if he cometh to do his office, and meeting great oppo- 
 sition retireth, and in the retreat is killed, this will amount to murder. 
 He went in obedience to the law, and in the execution of his office, 
 and his retreat was necessary to avoid the danger which threatened 
 him. And upon the same principle, if he meeteth with opposition by 
 the way, and is killed before he cometh to the place, such opposition 
 being intended to prevent his doing his duty, which is a fact to be 
 collected from the circumstances appearing in evidence, this will 
 amount to murder. He was strictly in the execution of his office, 
 going to discharge the duty the law required of him. It follows, 
 from these premises, that if such, an officer successfully resists those 
 who seek to obstruct and hinder him from proceeding to the lawful 
 execution of his duty, he is justified, even should the lives of the as- 
 sailants, their aiders and abettors, be taken, from the necessary ex- 
 tent of the resistance so made.* 
 
 A homicide committed within the territory of the United States, 
 
 1 FoBt. 321. 
 
 2 R. tt, Hnggins, 2 Str. 882; K. v. AUen, 7 C. & P. 153; R. v. Green, 7 C. & P. 156. 
 
 3 Fost. 322. * 1 Hale, 481 ; FoBt. 271, ante p. 49. ' King, P. J., 4 Penn. Law Jour., 29. 
 
52 HOMICIDE. 
 
 by a subject of Great Britain, in time of peace, though arowed to be 
 under the directions of the local authorities of Great Britain, may be 
 prosecuted in our courts as murder.' 
 
 V. — WHES ACTING IMPROPERLY, OR WITH UNNECESSABT SETEKITY. 
 
 An arrest, not unlawful in itself, may be performed in a manner so 
 criminal and improper, or by an authority so defective, as to make 
 the party performing it, and in the prosecution of his purpose causing 
 the death of another person, guilty of murder. And as the circum- 
 stances of the case may vary, the party so killing another may be 
 guilty only of the extenuated offence of manslaughter. In all cases, 
 the ofBcer should proceed with due caution; and, although it is not 
 necessary that the officer should retreat at all, yet he ought not to 
 come to extremities upon every slight interruption, nor unless upon 
 a reasonable necessity, in order to execute his duty. And, therefore, 
 where a collector, having distrained for a duty, laid hold of a maid- 
 servant who stood at the door to prevent the distress being carried 
 away, and beat her head and back several times against the door-post, 
 of which she died; although the court held her opposition to the offi- 
 cer to be a sufficient provocation to extenuate the homicide; yet they 
 were clearly of opinion that he was guilty of manslaughter, in so far 
 exceeding the necessity of the case. And where no resistance at all 
 is made, and yet the ofBcer kills, it will be murder. So, if the officer 
 kill the party after the resistance is over, and the necessity has ceased, 
 it is manslaughter at least; and, if the blood had time to cool, it 
 would, as is stated by Mr. Bast, be murder.^ 
 
 TI. — WHEN ACTING WITHOUT AUTHORITY. 
 
 An officer who makes an arrest out of his proper district, or with- 
 out any warrant or authority, and purposely kills the party for not 
 submitting to such illegal arrest, will, generally speaking, be guilty 
 of murder in all cases where an indifferent person, acting in the 
 like manner, without any such pretence, would be guilty to that 
 extent.' 
 
 As has already been observed in the case of private persons using 
 their endeavours to bring felons to justice, caution must be used to 
 ascertain that a felony has actually been committed, and that it has 
 been committed by the party arrested or pursued upon suspicion; as, 
 if the suspicion be not supported by the fact, the person endeavour- 
 ing to arrest or imprison, and killing the party in the prosecution of 
 such purpose, will be guilty of manslaughter.'' 
 
 Within this general principle of amenability, fall those cases where 
 there is a killing by military or naval officers without authority. Thus, 
 f a court martial order a man to be flogged where they have no juris- 
 diction, and the flogging kills the man, the members who concurred 
 in that order are guilty of murder.* 
 
 And so, where the captain of a man of war had a warrant for im- 
 pressing mariners, upon which a deputation was endorsed in the usual 
 form to the lieutenant; and the mate, with the prisoner Dixon, and 
 
 1 People V. M'Leod, 1 HiU, 397. 
 
 ' 1 East, P. C. 297; 1 Hale, 481, 489, 494; 2 Hale, 84; Gaffe's Case, 1 Veitr. 216. 
 
 3 1 East, P. C. 312. 4 Fost. 318. 6 Warder v. Bailey, 4 Taunt. 77. 
 
BY OFFICERS OP JUSTICE, ETC. 53 
 
 some others, but without either the captain or lieutenant, impressed 
 one Anthony How, who never was a mariner, but was servant to a 
 tobacconist, and upon How making some resistance, and for that pur- 
 pose drawing a knife, which he held in his hand, Dixon, with a large 
 walking-stick, about four feet long, and a great knob at the end of it, 
 gave How a violent blow on the side of his head, of which he died in 
 about fourteen days; it Avas adjudged murder. The capture and de- 
 tention of How were considered as unlawful on two accounts ; first, 
 because neither the captain nor lieutenant were present, and Dixon 
 was no lawful officer for the purpose of pressing, nor an assistant to 
 a lawful officer ; secondly, because How was not a proper object to be 
 impressed. It was lawful, therefore, under these circumstances, for 
 How to defend himself; and Dixon's killing him, in consequence of 
 an unlawful capture and detention, was murder.' 
 
 VII. — WHEN ACTING IN SELF-DEFENCE. 
 
 Although an officer must not kill for an escape, where the party is 
 in custody for a misdemeanor, yet if the party assault the officer with 
 such violence that he has reasonable ground for believing his life to 
 be in peril, he may justify killing the party. Upon a trial for mur- 
 der it appeared that the prisoner, an excise officer, being in the exe- 
 cution of his office, had seized, with the assistance of another person, 
 two smugglers, in the act of landing whisky from the Scottish shore, 
 contrary to law: the deceased had surrendered himself quietly into 
 the hands of the prisoner, but shortly afterwards, when the prisoner 
 was off Ms guard, he assaulted him violently with an ash stick, which 
 cut his head severely in several places, and he lost much blood, and 
 was greatly weakened in the struggle which succeeded ; the officer, 
 fearing the deceased would overpower him, and having no other 
 means of defending himself, discharged a pistol at the deceased's 
 legs, in the hopes of deterring him from any further attack, but the 
 discharge did not take effect, and the deceased prepared to make 
 another assault; that, seeing this, the prisoner warned him to keep 
 off, telling him he must shoot him if he did not; but the deceased 
 disregarded the warning, and rushed towards him to make a fresh 
 attack; that he thereupon fired a second pistol, and killed him. Hol- 
 royd, J., told the jury, " an officer must not kill for an escape, where 
 the party is in custody for a misdemeanor, but if the prisoner had 
 reasonable ground for believing himself to be in peril of his own 
 life, or of bodily harm, and no other weapon was at hand to make 
 use of, or if he was rendered incapable of making use of such weapon 
 by the previous violence that he had received, then he was justified. 
 If an affray arises, and blows are received, and weapons used in heat, 
 and death ensues, although the party may have been at the com- 
 mencement, in the prosecution of something unlawful, still it would 
 be manslaughter in the killer. In this case it is admitted that the 
 custody was lawful. The question is, whether, under all the circum- 
 stances, the deceased being in the prosecution of an illegal act, and 
 having made the first assault, the prisoner had such reasonable occa- 
 sion to resort to a deadly weapon to defend himself, as any reasona- 
 ble man might fairly and naturally be expected to resort to."^ 
 
 1 1 Eafit, p. C. 313. * Forgter's case, 1 Lewin, 187. 1 Bus. on Cr. 648. 
 
54 HOMICIDE. 
 
 CHAPTER V. 
 
 HOMICIDE OP OFFICERS OF JUSTICE AND OTHERS AIDING THEM. 
 
 When a party who having authority to arrest or imprison, uses 
 the proper means on a proper occasion for such a purpose, and in so 
 doing is arrested and killed, it will be murder in all concerned. Thus, 
 where an affray had taken place, and a quarterly Serjeant appeared 
 and ordered the wranglers to desist, and on their not doing so, re- 
 ported to the orderly Serjeant, who called at the room, and ordered 
 the persons engaged to the guard house, but the prisoner remained 
 behind on some pretence connected with his clothes, and when the 
 Serjeant was temporarily absent declared he would be the death of 
 any one who attempted to take him to the guard house, retired to a 
 corner of the room where a number of unloaded muskets had been 
 left, loaded one, and when the serjeant entered, with another, accosted 
 him, "Stand off; if you approach, I will take your life." He imme- 
 diately afterwards fired, and mortally wounded the serjeant and his 
 companion. The case depended on the question whether or not at 
 the time the defendant was legally liable to arrest, and the court. Story, 
 J., and Davis, J., charged the jury that if such was the case, the offence 
 was manslaughter; if otherwise, murder.^ 
 
 Sir William Russell thus states the law: — Upon these pi-inciplesit 
 may be laid down as a general rule, that where persons having autho- 
 rity to arrest or imprison, using the proper means for that p/urpose, 
 are resisted in so doing, and killed, it will be murder in all who take a 
 part in such resistance; for it is homicide committed in despite of 
 the justice of the kingdom. This rule is laid down upon the suppo- 
 sition that resistance be made; and, upon that supposition, it is con- 
 ceived that it will hold in all cases, whether civil or criminal; for 
 under circumstances of resistance, in either case, the persons having 
 authority to arrest or imprison may repel force by force, and will 
 be justified if death should ensue in the struggle; while, on the 
 other hand, the persons resisting will be guilty of murder.^ And it 
 has been decided, that if in any quarrel, sudden or premeditated, a 
 justice of peace, constable, or watchman, or even a private person be 
 slain in endeavouring to keep the peace and suppress the affray, he 
 who kills him will be guilty of murder.^ But in such case the person 
 slain must have given notice of the purpose for which he came, by 
 commanding the parties in the king's name to keep the peace, or by 
 otherwise showing that it was not his intention to take part in the 
 quarrel, but to appease it;" unless, indeed, he were an officer within 
 
 1 U. S. V. Travers, 2 Wheeler's C. C. 495. See Com. v. Drew, 4 Mass. S91. 
 " Fost. 270, 271; 1 Hale, 494; 3 lust. 56; 2 Hale, 117, 118. 
 ' 1 Hawk. P. C, c. 31, s. 48, 54. * Fost. 272. 
 
OP 0FPICEB8 OP JUSTICE, ETC. 55 
 
 his proper district, and known, or generally acknowledged, to bear 
 the office he had assumed.' As if A., B., and C, be in a tumult 
 together, and D., the constable, come to appease the affray, and A., 
 knowing him to be the constable, kill him, and B. and C. not know- 
 ing him to be the constable, come in, and finding A. and D. strug- 
 gling, assist and abet A. in killing the constable, this is murder in 
 A., but manslaughter in B. and C." Where a constable interferes in 
 an affray to keep the peace, and is killed, such of the persons con- 
 cerned in killing him as knew him to be a constable are guilty of 
 murder; and such as did not know it, of manslaughter only.' 
 
 If, however, the arrest be made unlawfully, the killing, if it turns 
 out no felony has been committed, is not murder.'' If an innocent 
 person be indicted for a felony, and an attempt be made to arrest him 
 for it, withoiit warrant, and he resist and kill the party attempting 
 to arrest him : if the party attempting the arrest were a constable, 
 the killing is murder;" if a private person, manslaughter;^ because 
 the constable has authority, by law, to arrest in such case, but a pri- 
 vate person has not. The same rule is good in all the cases where a 
 person is arrested, or attempted to be arrested, upon a reasonable 
 suspicion of felony." 
 
 The subject matter'of this chapter will be considered under the 
 following heads: — 
 
 I. Who have authority to arrest. 
 
 1st. Officers of justice. 
 
 (1.) Constables and policemen. 
 
 (2.) Bailiffs and tipstaves, in civil matters. 
 
 (3.) Officer acting out of jurisdiction, or without warrant. 
 
 (4.) Notice, what constitutes, and effect of want of it. 
 
 (5.) By whom a warrant may be executed. 
 
 (6.) How long a warrant continues in force. 
 
 (7.) When process is illegal. 
 
 (8.) When arrest is made without any warrant. 
 2d, Ship's officers. 
 3d. Private persons. 
 
 II. In what cases. 
 
 1st. Felonies. 
 
 2nd. Misdemeanors. 
 
 3d. Affrays. 
 
 4th. Street-walkers, vagrants, &c. 
 
 III. When the arrest may be made. 
 
 IV. Officers taking opposite parts. 
 
 Y. How arrest may be made, and herein of breaking open doors. 
 VL How far third parties may resist. 
 
 1 1 Hawk. P. C, c. 31, a. 49, 50. s 1 Hale, 438. 
 
 3 1 Hale, 446; 1 Rua. on Cr. 535. 
 
 * Com. V. Drew, 4 Mass. 391: U. S. v. Trayers, 5 Wheeler's C. C. 495: K. v. Phelps, 
 1 C. & M. 138. ^ 
 
 » 1 Hai^. 0. 28, sect. 12; 2 Hale, 84, 87, 91. 
 
 • See 2 Hale, 83, 92. J gee Samuel v. Payne, Doug., 359. 
 
56 HOMICIDE. 
 
 I. Who have authority to arrest. 
 1st. Officers of Justice. 
 
 (1.) Constables and Policemen. 
 
 The general rule in this respect is thus stated by Sir W. Russell:— 
 Ministers of justice, as bailiffs, constables, watchmen, &c., while in 
 the execution of their ofiSces, are under the peculiar protection of 
 the law ; a protection founded in wisdom and equity, and in every 
 principle of political equity; for, without it the public tranquillity 
 cannot possibly be maintained, or private property secured; nor in 
 the ordinary course of things will offenders of any kind be amenable 
 to justice. For these reasons the killing of officers so employed has 
 been deemed murder of malice prepense, as being an outrage wil- 
 fully committed in defiance of the justice of the kingdom. If, there- 
 fore, upon an affray, the constable, and others in his assistance, come 
 to suppress the affray and preserve the peace, and in executing 
 their office the constable or any of his assistants is killed, it is mur- 
 der in law, although the murderer knew not the party that was killed, 
 and although the affray was sudden, because the constable and his 
 assistants came by authority of law to keep the peace, and prevent 
 the danger which might ensue by the breach of it; and, therefore, 
 the law will adjudge it murder, and that the murderer had malice 
 prepense, because he set himself against the justice of the realm: so 
 if the sheriff, or any of his bailiffs, or other officers, is killed in exe- 
 cuting the process of the law, or in doing their duty, it is murder; 
 the same is the law as to a watchman who is killed in the execution 
 of his office.' This rule is not confined to the instant the officer is 
 upon the spot, and at the scene of action, engaged in the business 
 that brought him thither; for he is under the same protection of the 
 law eundo, morando, et redeundo: and therefore if he come to do his 
 office, and meeting with great opposition, retire, and be killed in the 
 retreat, this will amount to murder; as he went in obedience to the 
 law and in the execution of his office, and his retreat was necessary 
 in order to avoid the danger by which he was threatened. And, 
 upon the same principle, if he meet with opposition by the way, and 
 be killed before he come to the place, such opposition being intended 
 to prevent his doing his duty (which is a fact to be collected from 
 circumstances appearing in evidence,) this likewise will amount to 
 murder.* 
 
 A constable who had verbal orders from the magistrates to appre- 
 hend &\l thimble-riggers, attempted to apprehend the defendant 
 and his companions, who were playing at thimble-rig in a public fair, 
 and succeeded in apprehending one of his companions, whom the defen- 
 dant rescued, and afterwards, in the evening, seeing the defendant 
 in a public house, endeavoured to apprehend him, telling him that he 
 did so for what he had been doing in the fair; the defendant escaped 
 into a privy, and the constable calling others to his assistance, broke 
 open the privy and attempted to apprehend the prisoner, who stabbed 
 one of the party; it was holden that the constable had an authority 
 to apprehend the defendant.^ 
 
 1 1 Rus. on Cr. 533. 1 Hale, 456, 460. 
 r, ''n°!h ^0S~9- See also Com. v. Drew, 4 Mass., 791 ; TJ. S. v. Travers, 2 Wheeler's 
 ^- ^- 609. 3 R. „_ Gardner, 1 Mood., C. C. 890. 
 
OP OFFICEES OP JUSTICE. 57 
 
 In another case, where the defendant took his tools and left his 
 ■work, saying that he would do for any bloody constable that offered 
 to stop him, and his master applied to a constable to take the defen- 
 dant, but made no charge against the defendant, and the master and 
 the constable followed the defendant, and found him in a public 
 privy, as if he had occasion there, and the master said, " This is the 
 man, I give you charge of him ; " upon which the constable said, " Your 
 master gives you in charge of me, you must go with me ; " and the de- 
 fendant immediately stabbed the constable; it was holden, by a ma- 
 jority of the judges, that, as the actual arrest would have been ille- 
 gal, the attempt to arrest, when the defendant was in such a situa- 
 tion that he could not get away, and when the waiting to give notice 
 might have enabled the constable to make the arrest, was such a pro- 
 vocation as reduced the offence to manslaughter only.' 
 
 A policeman, or other officer appointed by the municipal authority 
 for the preservation of order and the prevention of crime, is en- 
 titled to the same protection which we have just stated to belong to a 
 constable. Thus, where a policeman saw the prisoner playing the 
 bagpipes in a street at half-past eleven o'clock at night, by which he 
 collected a large crowd round him, among whom were prostitutes 
 and thieves, and the policeman told him he could not be allowed to 
 play at that time of night, and he must go on, but he aaid he would 
 be damned if he would, and the policeman took hold of him by the 
 shoulder, and slightly pushed him, on which the prisoner wounded 
 him with a razor; it was held, that if the prisoner was collecting a 
 crowd of persons at that time of night, and the policeman desired 
 him to go on, and laid his hand upon his shoulder with that view 
 only, he did not exceed his duty, and if the prisoner then ^vounded 
 him, it would have been murder if he had died ; but if the policeman 
 gave the prisoner a blow and knocked him down, he was not justified 
 in so doing.* 
 
 And as where a policeman between eleven and twelve o'clock at 
 night was called upon to clear a beer-house, which he did, and then 
 went into the street where the prisoner and many others were stand- 
 ing near the door, when the prisoner refused to go home, and used 
 very abusive and violent language, and the policeman laid his hand 
 on his shoulder gently, and told him to go away, on which the prisoner 
 immediately stabbed him with a knife in the throat; it was held that 
 if the policeman had died, this would have been murder, for if a po- 
 liceman had heard any noise in the beer-house at such a time of 
 night, he would have acted within the line of his duty, if he had 
 gone in, and insisted that the house should be cleared; and much 
 more so, if he was required by the landlady; and after that was 
 done, if a knot of people remained in the street, and the crowd in- 
 creased in consequence of their attention being drawn to the clearing 
 of the house, and if any thing was saying or doing likely to lead to 
 a breach of the peace, the policeman was not only bound to interfere, 
 but it would have been a breach of his duty if he had not done so ; 
 and if, in so doing, he ordered the people to go away, and any one 
 was unwilling, and defied the policeman, and used threatening lan- 
 
 1 K. V. Thompson, 1 Mood. C. C. 78. 
 
 ' E. V. Hagan, 8 C. & P. 167. BoUand, B., and Coltman, J. 
 
58 HOMICIDE. 
 
 guage, the policeman was perfectly justified in insisting upon that 
 person going off; and if he had warned him several times, and he 
 would not go away, and used threatening language if any one ven- 
 tured to touch him, the policeman was entirely justified in using a 
 degree of violence to push him from the place, in order to get hip 
 to go home; and, therefore, any thing that he did would not be in 
 the nature of an assault, but would be an act in the discharge of his 
 duty, and, therefore, any blow that was given afterwards with a cut- 
 ting instrument would be precisely the same as if it had been given 
 without any thing being done by the policeman.^ 
 
 (2.) Bailiffs or tipstaves in civil cases. 
 
 As a general rule, in this class of cases, though an officer may re- 
 pel force by force, where his authority to arrest or imprison is re- 
 sisted, and may do this to the last extremity in cases of reasonable 
 necessity: yet, if the party against whom the process has issued fly 
 from the officer endeavouring to arrest him, or if he fly after an arrest 
 actually made, or out of custody, in execution for debt, the officer has 
 no authority to .kill him, though he cannot overtake or secure him by 
 any other means.^ 
 
 In the case of a private or special bailiff, either it must appear that 
 the party kn*few that he was such officer, as where the party said, 
 "Stand off, I know you well enough; come at your peril;" or, that 
 there was some such notification thereof that the party might have 
 known it, as by saying, " I arrest you." These words, or words to 
 the like effect, give sufficient notice ; and if the person using them be 
 a bailiff, and have a warrant, the killing of such officer will be mur- 
 der. A private bailiff ought also to show the warrant upon which he 
 acts, if it is demanded : and with respect to the writ or process against 
 the party, both the public and private bailiff, in case the party sub- 
 mit to the arrest and make the demand, are bound to show at whose 
 suit, and for what cause the arrest is made, out of what court the pro- 
 cess issues, and when and where returnable.^ In no case, however, 
 is he required to part with the warrant out of his own possession: for 
 that is his justification.* 
 
 It is clear, also, that the authority of an officer, in civil cases, must 
 be regulated and limited by the writ or process which he is em- 
 powered to execute, and by the extent of the district in which he is 
 privileged to act. It is only in the character of officer that he can 
 proceed to arrest or imprison, as no private person can of his own 
 authority arrest in civil «uits.' As will presently be seen more fully, 
 where he proceeds irregularly, and exceeds the limits of his authority, 
 the law gives him no protection in that excess: and if he be killed, 
 the offence will amount to no more than manslaughter in the person 
 whose liberty is so invaded.^ He should be careful, therefore, 
 to execute process only within the jurisdiction of the court from 
 whence it issues ; as, if it be executed out of such jurisdiction, the 
 killing the officer attempting to enforce the execution of it will be 
 
 1 E. V. Hems, 7 C. & P. 312. WiUiams, J. 
 
 2 1 Hale, 481 ; Fost. 279. ' 1 Hale, 458, note (g,) 6 Co. 54a, 9 Co. 69 a. 
 * 1 East, P. C, e. 5, s. 83, p. 319. s i Hawks, N. C, o. 28, s. 19. 6 Fost. 312. 
 
OP OFFICERS OP JUSTICE. 59 
 
 only manslaughter.' But, if the process be executed within the ju- 
 risdiction of the court or magistrate from whence it issued, it will be 
 sufficient, though it be executed out of the vill of the constable, pro- 
 vided it be directed to a particular constable by name, or even by his 
 nanj^ of office.* 
 
 (3.) Officer acting out of jurisdiction, or without warrant. 
 
 As is stated by Sir William Russell,^ the party taking upon him- 
 self to execute process, whether by writ or warrant, must be a legal 
 officer for that purpose, or his assistant: and if an officer make an 
 arrest out of his proper district, or have no warrant or authority at 
 all, or if he execute process out of the jurisdiction of the court from 
 whence it issues, he will not be considered as a legal officer entitled 
 to the special protection of the law: and therefore, if a struggle ensue 
 with the party injured, and such officer be killed, the crime will be 
 only manslaughter.'* And it has been ruled that homicide committed 
 upon a bailiff, attempting to execute a writ within an exclusive liberty, 
 such writ not having a non-omittas clause will not amount to murder.* 
 It has been held, that if the constable of the vill of A come into the 
 vill of B to suppress some disorder, and in the tumult the constable 
 be killed in the vill of B, this will be only manslaughter, because he 
 had no authority in B as constable.' But it was considered, that if 
 the constable of the vill of A had a particular precept from a justice 
 of peace directed to him by name, or by his name of office as constable 
 of A, to suppress a riot in the vill of B, or to apprehend a person in 
 the vill of B for some misdemeanor within the jurisdiction and co- 
 nusance of the justice of the peace, and in pursuance of that warrant 
 he went to arrest the party in B, and in executing his warrant was 
 killed in B, this amounted to murder. Under the former English 
 practice, where a warrant was directed "to 0. S., one of the collect- 
 ors of the parish of W., the constables of the said parish, and all others 
 his majesty's officers," to levy a distress, it was held that the consta- 
 ble of W. had no authority to execute it out of the parish of W. : the 
 rule of law being, that where a warrant is directed to officers, as in- 
 dividuals, or to individuals who are not officers, they may execute it 
 any where within the extent of the magistrate's jurisdiction; but 
 where it is directed to men by the name of their oflBce, it is confined 
 to the districts, in which they are officers. But the law in England 
 as to the latter point was altered by the 5 Geo. 4, c. 18, which recites, 
 that warrants addressed to constables, headboroughs, tithing-men, 
 borsholders, or other peace officers of parishes, townships, hamlets, 
 or places, in their characters of and as constables, headboroughs, 
 tithing-men, borsholders, or other peace officers of such respective pa- 
 rishes, townships, hamlets, or places, cannot be lawfully executed by 
 them out of the precincts thereof respectively, whereby means are 
 afforded to criminals and others of escaping from justice; and then 
 for remedy thereof enacts, " that it shall and may be lawful to and for 
 each and every constable, and to and for each and every headborough, 
 
 ' 1 Hale, 458; 1 East, P. C. 314. See next section. ^ i Hale, 459. 
 
 8 1 Bus. on Cr. 532—592. 1 Hale, 457—9; 1 East, P. C, c. 5, s. 80, p. 312, 314. 
 
 1 1 Kuss. on Cr. 615. » E. v. Mead et al., 2 Stark., c. 205. e 1 Hale, 459. 
 
60 HOMICIDE. 
 
 tithing-man, borsliolder, or other peace officer, for every parish, town- 
 ship, hamlet, or place, to execute any warrant or warrants of any jus- 
 tice or justices of the peace, or of any magistrate or magistrates, with- 
 in any parish, township, hamlet or place, situate, lying, or being within 
 that jurisdiction for which such justice or justices, magistrate or ma- 
 gistrates, shall have acted when granting such warrant or warrants, 
 or when backing or endorsing any such warrant or warrants, in such 
 and the like manner as if such warrant or warrants had been addressed 
 to such constable, headborough, tithing-man, borsholder, or other 
 peace officer, specially, by his name or names, and notwithstanding 
 the parish, township, hamlet, or place, in which such warrant or war- 
 rants shall be executed, shall not be the parish, township, hamlet, or 
 place, for which he shall be constable, headborough, tithing-man, or 
 borsholder, or other peace-officer; provided that the same be within 
 the jurisdiction of the justice or justices, magistrate or magistrates, 
 so granting such warrant or warrants, or within the jurisdictioii of 
 the justice or justices, magistrate or magistrates, by whom any such 
 warrant or warrants shall be backed or endorsed." This statute has 
 been ruled not to extend to the warrant of a judge of the King's 
 Bench, but only to the warrants of persons having authority as jus- 
 tices of the peace within the limited jurisdictions therein expressed.' 
 It may be observed, that if a warrant be directed to several persons, 
 any of them may execute it.^ 
 
 (4.) Notice, what constitutes, and effect of want of it. 
 
 "Where a party is apprehended in the commission of an offence, or 
 upon fresh pursuit afterwards, notice is not necessary, because he must 
 know the reason why he is apprehended. Thus, upon an indictment 
 for maliciously wounding, it appeared that the assistant to the head 
 keeper of Sir E. S. went with five or six assistants towards a covert 
 of Sir R. S., where they heard guns; they then went towards the 
 place, and rushed in at the poachers to take them ; the prosecutor 
 saw six persons in the wood, and he ran after them ; they got into a 
 field about six yards off; they then ranged themselves in a row, the 
 prosecutor being five or six yards from them, on the edge of the plan- 
 tation, and he heard one of them say, "The first man that comes out 
 
 I'll be d d if I don't shoot him," upon which the prosecutor drew 
 
 his pistol, cocked it, and ran out: they all ran away together; the 
 prosecutor followed them, and when they had run about fifty yards 
 they stood; they had all turned round; one of them shot at the pro- 
 secutor who was running to him; the prosecutor was wounded; the 
 men said nothing to the prosecutor before he was shot, nor he to 
 them; it was objected, that, inasmuch as the prosecutor's authority to 
 apprehend them was derived from the act creating the offence, it was 
 incumbent upon him to give notice to them : the objection was over- 
 ruled : and, upon a case reserved, the judges were of opinion that 
 the circumstances constituted sufficient notice.' So where a servant 
 of Sir T. W. was out with his gamekeeper at night, and they heard 
 
 1 See 1 Rus. 615. Gladwell v. Blake, 6 Tyrw. 186. ' 1 Hale 452 
 
 3 E. V. Payne, R. & M. C. C. K. 378. See E. v. Fraser, E. & M. C. c'. E. 419. 
 
OF OPFICEES OF JUSTICE. 61 
 
 two guns fired, and went towards the place, and got into a covert, 
 and saw some men there who ran away, and the servant pursued them, 
 and got close up to one of them, and made a catch at his legs, and 
 was immediately shot through the side; Parke, B., said, " Where 
 parties find poachers in a wood, they need not give any intimation 
 by words that they are gamekeepers, or that they come to apprehend; 
 the circumstances are sufiicient notice. What can a person poaching 
 in a wood suppose when he sees another at his heels?"' 
 
 So in another indictment for the same offence, it appeared that two 
 persons heard a noise in a board-house, near midnight, and saw the 
 prisoner inside the board-house, and heard a noise among the boards, 
 and heard the prisoner say, " Bring that board :" on which the persons 
 went for the owner, who came in a quarter of an hour, when no one 
 was found in the board-house; but two planks had been removed to 
 a part of the board-house nearer the door, and after searching in 
 several places they found the prisoner in the garden of another per- 
 son, crouched down under a tree, with a drawn sword in his hand, 
 and being asked twice what he did there, he made no answer, and 
 then started off, but was pursued and caught hold of by one of the 
 persons, whom he compelled to leave his hold; he then fell over 
 something, and the others came up, and he then attempted to get 
 away, but was prevented by some paling,^and he then turned round and 
 wounded the owner of the boards; it was held, on a case reserved, 
 that the circumstances of the case told him why he was apprehended, 
 and that it was not to tell him what he must have known.* 
 
 If a minister of justice be present at a riot or affray within his dis- 
 trict, and in order to keep the peace produce his staff of office, or any 
 other known ensign of authority, in the day time when it can be seen, 
 it is conceived that this will be a sufficient notification of the intent 
 with which he interposes; and that, if resistance be made after this 
 notification, and he or any of his assistants killed, it will be murder 
 in every one who joined in such resistance.' For it seems, that in the 
 case of a public bailifi^, a bains' ^wrato et cognitus, acting in his own 
 district, his authority is considered as a matter of notoriety; and 
 upon this ground, though the warrant by which he was constituted 
 bailiff be demanded, he need not show it; and it is sufficient, if he 
 notify that he is the constable, and arrest in the king's name.'' And 
 this kind of notification by implication of law will hold also in cases 
 where public officers, having warrants, directed to them as such, to 
 execute, are resisted, and killed in the attempt.'' Thus, where a war- 
 rant had been granted against the prisoner by a justice of peace for 
 an assault, and directed to the constable of Pattishal, and delivered 
 by the person who had obtained it to the deceased, to execute, as 
 constable of the parish, and it appeared that the deceased went to 
 the prisoner's house in the day time to execute the warrant, had his 
 constable's staff with him, and gave notice of his business, and further 
 that he had before acted as constable of the parish, and was gene- 
 
 1 R. V. Davis, 7 C. & P. 785, Parke, B. See E. v. Taylor, 7 C. & P. 266, Vaughan, J. 
 
 2 R. V. Howarth, K. & M. C. C. R. 207. 1 Rua. on Cr. 603. See R. v. Woobner, R. 
 & M. C. C. R. 334. 1 Eus. on Cr. 598. 
 
 ' Fost. 811. « 1 Hale, 583. 5 1 Hale, P. C, c. 5, s. 81, p. 315. 
 
62 HOMICIDE. 
 
 rally known as such: it was determined that this tvas sufficient evi- 
 dence and notification of the deceased being constable, although there 
 ■were no proof of his appointment, or of his being sworn into the office.^ 
 So in the Sissinghurst house case,^ it was resolved that there was 
 sufficient notice that it was the constable before the man was killed : 
 1. Because he was constable of the same vill. 2. Because he notified 
 his business at the door before the assault, viz., that he came with 
 the justice's warrant. 3. Because, after his retreat, and before the 
 man was slain, he commanded the peace; and, notwithstanding, the 
 rioters fell on and killed the party. 
 
 If a constable command the peace,' or show his staff of office,^ this, 
 it seems, is a sufficient intimation of his authority. In such a case it 
 is not necessary to prove the deceased's appointment as constable ; 
 proof that he was accustomed to act as constable is sufficient.' Where 
 he shows his warrant,^ or where it appears that he is known to the 
 defendant as an officer ; as, for instance, when the defendant said, 
 "Stand off, I know you well enough, come at your peril,"^ if, after 
 this, the officer be killed, it will be murder. If the constable inter- 
 fere to prevent an affray within his own vill, if he be killed by one 
 of the inhabitants, or other person, who knows him to be the con- 
 stable, it will be murder ; if by a stranger who does not know him, it 
 is manslaughter. So, if one of several know him to be a constable, 
 it will be murder in him, manslaughter in the rest.^ Where a bailiff 
 rushed into a gentleman's bed-chamber early in the morning, without 
 giving the slightest intimation of his business, and the gentleman, 
 not knowing him, in the impulse of the moment, wounded him with 
 his sword, and killed him : this was holden to be manslaughter.^ 
 
 (5.) By whom a warrant may be executed. 
 
 The English rule is that the warrant must be executed by the party 
 named in it, or by some one assisting such party, either actually or 
 constructively. Thus under an indictment for maliciously cutting, 
 it appeared that a warrant issued by commissioners of bankrupt was 
 directed to "J. Adams and, W. Smith, our messengers and their assist- 
 ants; " and that the prosecutor, who was the assistant of Smith, having 
 obtained the warrant from him, went in pursuit of the prisoner, 
 who, on the prosecutor overtaking him, and saying he had the war- 
 rant, wounded the prosecutor with a stone; neither Smith nor Adams 
 being present at the time, nor anywhere, near the place where the 
 attempt to arrest occurred: it was objected that the prosecutor was 
 not authorized by the warrant to arrest the prisoner except in the 
 presence, actual or constructive, of either Adams or Smith, and that 
 the word "assistants" only extended to persons who went with 
 Adams and Smith to assist in taking the prisoner. Williams, J., said 
 "I think it is not sufficient that the prosecutor should have been 
 deputed to act on the warrant by the messenger; and I think, also, 
 that to authorize him to act, he must derive his authority direct from 
 
 H \ '^^}' ^- ^•' •=• ^' ^- ^^' P- ^^^- ' 1 Hale, 492, 493. 
 
 » 1 Hale, 461. * Post ^y^ 
 
 5 l;Eaet, P. C. 315; Wh. C. L., 2d ed., 269. 6 1 Halo 461 
 
 ' E. V. Pew, Cro. Car. 183. « 1 Hale, 438. » 1 Hale 470 
 
OP OFFICERS OF JUSTICE. 63 
 
 the commissioners themselves. It appears to me that the term 
 " assistant " would apply to any person whom Adams or Smith directed 
 to go in aid of them. ' It therefore remained uncertain who those 
 assistants might be, till either Smith or Adams had named them ; and 
 I think that is not a legal execution of the warrant, unless it be ex- 
 ecuted in the presence, actual or constructive, of either Adams or 
 Smith, who are named in it." ' And so under another indictment for 
 the same offence it appeared that a constable having a warrant to 
 apprehend the prisoner, gave it to his son, who went in pursuit of 
 the prisoner, in company with his brother, the father stayed behind ; 
 the brothers found the prisoner lying under a hedge; and when they 
 came up he had a knife in his hand, running it into the ground; he 
 got up from the ground to run away, one of them laid hold of him, 
 and he stabbed him with the knife; the father was in sight at about 
 a quarter of a mile off. Parke, B., said, " The arrest was illegal, as the 
 father was too far off to be assisting in it."^ So where upon a simi- 
 lar indictment. 
 
 (6.) How long a warrant continues in force. 
 
 Lord Kenyon has gone so far as to say that, as no time is fixed for 
 the execution of a warrant, it continues in force till fully executed, 
 though it be for seven, years after its date, provided the magistrate 
 continues alive.^ 
 
 The prisoner was indicted for maliciously wounding the prosecutor 
 with intent to resist his apprehension for a certain offence, to wit, 
 for that he on, &c., at, &c., did violently assault and beat one W. P. 
 The prosecutor having received a warrant, whereby he was com- 
 manded "to apprehend the prisoner and to bring him before me to 
 answer unto the said complaint, (assaulting W. P.) and to be further 
 dealt with according to law," went in search of the prisoner, and 
 brought him before the magistrate, who granted the warrant, and 
 another magistrate ; he was ordered to find bail ; he said he would 
 not; upon which he was ordered to be committed; whilst the com- 
 mitment was making out he made his escape ; the prosecutor was or- 
 dered to go after him; there was no authority in writing; but in con- 
 sequence of the verbal directions of the magistrates to the clerk, who 
 was making out the commitment, the latter ordered the prosecutor 
 to go after the prisoner : the prosecutor accordingly did so, and in 
 attempting to apprehend the prisoner was cut by "him with a knife; 
 it was objected on the part of the prisoner that the count was not 
 proved, for that the party having been taken before the magistrate, 
 the warrant was functus officio ; and that the second taking was for 
 having made his escape from the office ; secondly, that the count was 
 bad, as it did not follow that the offence stated, viz., assaulting W. P., 
 was an offence for which the prisoner was liable to be apprehended; 
 but Gaselee, J., thought the warrant continued in force, and that the 
 second objection was upon the face of the record ; and the»jury having 
 
 ' E. !). Whalley, 7 C. & P. 245. 
 
 2 Bex V. Patience, 7 C. & P. 775. 
 
 ' Dickenson v. Brown, Peake, N. P. 344. 
 
64 HOMICIDE. 
 
 found the prisoner guilty, both objections were considered upon a 
 case reserved, and the conviction was held good.' 
 
 (7.) When process is illegal. 
 
 The English decisions, we are told by Mr. Roscoe,^ " would appear 
 to countenance the position that where an officer attempts to execute 
 an illegal warrant, and is in the first instance resisted with such vio- 
 lence by the party that death ensues, it will amount to manslaughter 
 only. But it should seem that in analogy to all other cases of pro- 
 vocation this position requires some qualification. If it be possible 
 for the party resisting to effect his object with a less degree of vio- 
 lence than the infliction of death, a great degree of unnecessary vio- 
 lence might, it is conceived, be evidence of such malice as to prevent 
 the crime from being reduced to manslaughter." In Thompson's 
 case,^ where the officer was about to make an arrest on an insufficient 
 charge, the judge adverted to the fact, that the prisoner was in such 
 a situation that he could not get away. In these cases it would seem 
 to be the duty of the party, whose liberty is endangered, to resist the 
 officer with as little violence as possible, and that if he uses great and 
 unnecessary violence, unsuited both to the provocation given and to 
 the accomplishment of a successful resistance, it will be evidence of 
 malice sufficient to support a charge of murder. So, also, where, as 
 in Stockley's case,' and in Curtis' case,* the party appears to have 
 acted from motives of express malice, there seems to be no reason 
 for withdrawing such cases from the operation of the general rule, 
 that provocation will not justify the party killing, or prevent his of- 
 fence from amounting to murder, where it is proved that he acted 
 at the time from express malice. And of this opinion appears to be 
 Mr. East, who says, "it may be worthy of consideration whether the 
 illegality of an arrest does not place the officer attempting it exactly 
 on the same footing as any other wrongdoer." ^ It may be remarked 
 that this question is fully decided in the Scotch law, the rule being 
 as follows: — In resisting irregular or defective warrants, or warrants 
 executed in an irregular way, or upon the wrong person, it is mur- 
 der if death ensue to the officer by the assumption of lethal weapons, 
 where no great personal violence has been sustained.'' " If," says Ba- 
 ron Hume, " instead of submitting for the time, and looking for redress 
 to the law, he shall take advantage of the mistake to stab or shoot the 
 officer, when no great struggle has yet ensued, and no previous harm 
 of body has been sustained, certainly he cannot be found guilty of 
 any lower crime than murder."^ " The distinction appears to be," 
 says Mr. Alison, " that the Scotch law reprobates the immediate as- 
 sumption of lethal weapons in resisting an illegal warrant, and will 
 hold it as murder if death ensue by such immediate use of them, the 
 more especially if the informality or error was not known to the 
 
 _ 1 Rex V. Williams, B. & M. C. C. R. 387. This case goes on the ground that as no 
 time is prescribed for the execution of a -warrant, it continues in force till fully exe- 
 cuted, though it be seven years after its date, provided the magistrate so long lives. 
 Dickenson v. Brown, Peake, N. P. 344, Lord Kenyon, C. J. 
 
 2 Crim. Ev. 707-8. s 1 R. & M. C. C. R. 80. 
 
 * 1 East, P. C, c. 5, s. 78, p. 310. s Fost. 135. e 1 East, P. C. 328 
 
 ' Alison's Princ. Cr. Law of Scotl. 25. 8 i Hume, 250. 
 
OF OFFICERS OF JUSTICE. 65 
 
 party resisting; whereas, the English practice makes such allowance 
 for the irritation consequent upon the irregular interference with 
 liberty, that it accounts death inflicted under such circumstances as 
 manslaughter only."' In such cases, as is well stated, it maybe 
 deserving of consideration, whether the first inquiry ought not 
 to be, whether or not the act done was caused by the illegal appre- 
 hension. If the act done arose from other causes, and had no re- 
 ference to the illegal arrest, as if it arose from previous ill will, it 
 should seem that the illegality of the arrest ought not to be taken 
 into consideration, because it was not the cause of the act, and there- 
 fore could not be truly said to have afforded any provocation for it. 
 Such a case would be like the cases where blows have been given by 
 the deceased, but the fatal blow has been inflicted in consequence of 
 previous ill will.^ Prom the observations of Mr. B. Parke, in Hex 
 V. Patience,^ it appears that the very learned baron was of opinion that 
 if there were previous malice, the illegal arrest would not reduce the 
 crime to manslaughter ; because the previous malice was the cause of 
 the act, and not the illegality of the arrest. In such an inquiry, the 
 fact that the prisoner was ignorant at the time that the arrest was 
 illegal would be most material, because it would almost conclusively 
 show that the act did not arise from that cause. It should also be 
 observed, that if " one has a legal and illegal warrant and arrests by 
 virtue of the illegal warrant, yet he may justify by virtue of the le- 
 gal one ; for it is not what he declares, but the authority which he 
 has is his justification;"" so it might be contended that if the party 
 apprehended had committed a felony, as he might be apprehended by 
 any individual without a warrant, the apprehension by a constable 
 under a defective warrant would not be illegal, as he might justify 
 the arrest as a private individual.^ So also as a constable has au- 
 thority to apprehend any person within his district, whom he has rea- 
 sonable ground to suspect of having committed a felony;* in such a 
 case, also, it might be contended that he might justify the arrest, al- 
 though in fact he did apprehend under an illegal warrant. 
 
 If a constable, having a warrant directing him t6 apprehend A.B., 
 arrest C. B. under the warrant, such arrest is illegal, although C. B. 
 were the person against whom the magistrate intended to issue the 
 warrant, and although the person who made the charge before the 
 magistrate, pointed out C. B. as the man against whom the warrant 
 was issued. A magistrate for the county of Herts issued his warrant, 
 directing a constable to take John H., charged with stealing a mare. 
 Armed with this warrant, the constable went to Smithfield, and there 
 arrested Eichard H., who was the party against whom information 
 had been given, and against whom the magistrate intended to issue 
 his warrant, and who was supposed to be called John H. ; his name, 
 however, was really Eichard H., John H. being the name of his fa- 
 
 1 See B. V. Thomas, 7 C. & P. 817. » 7 C. & P. 775, ante, p. 63. 
 
 ' Alison's Princ. Cr. Law of Scotland, 28. 
 
 * Per Holt, C. J. Greenville v. The College of Physicians, 12 Mod. 386; and see 
 Crawford v. Ramsbottom, 7 T. R. 654 ; The Governors of Bristol Poor v. Wait, 1 Ad. 
 & E. 264. 
 
 5 Per Tindal, C. J., in Hoye v. Bush, 1 M. & Gr. 775. 
 
 • Beckwith v. Philby, 6 B. & C. 638, post, p. 74. 
 
 5 
 
b HOMICIDE 
 
 tier. There was no proof that a felony had been committed. The 
 erson who made the charge before the magistrate pointed out 
 lichard H. as the man who had stolen the mare, and a person pre- 
 ent said that his name was John H., and there was clearly evidence 
 go to the jury that Richard H. was the man intended to be taken 
 p. Coltman, J., told the jury that the law would not justify the 
 onstable's act, the warrant being against John and not against 
 bichard, although Richard was the party intended to be taken; that 
 
 person cannot be lawfully taken under a warrant in which he is de- 
 3ribed by a name that does not belong to him, unless he has called 
 imself by the wrong name; that a constable may, in many cases, 
 ike up a person on a charge of felony, by virtue of his oifice of con- 
 table, and without any warrant from a magistrate; but that he can 
 nly do so within the district for which he is chosen constable. The 
 iry having found a verdict against the constable, the court held that 
 le direction was right, declaring that in civil process, the taking a 
 erson by the name mentioned in a warrant, his real name being dif- 
 jrent, cannot be justified, and that no distinction could be made be- 
 iveen civil and criminal process, as in either case the object of the 
 'arrant is to identify the party intended to be arrested.' 
 
 So far indeed has the doctrine of the necessity of legal complete- 
 ess and precision in the warrant been carried, that a warrant, leav- 
 ig a blank for the Christian name of the person to be apprehended, 
 tid giving no reason for the omission, but describing him only as 
 — H., the son of S. H., and stating the charge to be for assaulting 
 .. B. in the execution of his duty, without particularizing the time, 
 lace, or any other circumstances of the assault, has been held too 
 eneral and unspecific, and it was, therefore, ruled that a resistance 
 ) an arrest thereon, and killing the person attempting to execute it, 
 ill not be murder. Thus, upon an indictment for maliciously 
 ounding, it appeared that George Hood having assaulted Brown, a 
 leriff's officer, who was endeavouring to arrest his father, Samuel 
 [ood, under a capias ad respondendum, Brown applied to a magis- 
 •ate for a warrant to apprehend George Hood for an assault, but not 
 eing at that time acquainted with his Christian name, the warrant, 
 ) far as it related to the name and description of the person com- 
 litting the assault, was in the following terms, viz., " to take the 
 
 ody of Hood (leaving a blank for the Christian name) of, &c., 
 
 y whatsoever name he may be called or known, the son of Samuel 
 [ood, to answer, &c., on the oath of Francis Brown, an officer of the 
 leriff of the county of Wilts, for assaulting him in the execution of 
 is duty." This warrant was delivered to the tithing-man to exc- 
 ite, and he went to S. Hood's house, with Brown and others to exc- 
 ite it; and Brown pointed out G. Hood to the tithing-man as the 
 erson on whom the warrant was to be executed, and upon attempt- 
 ig to apprehend him, he stabbed a person whom the tithing-man 
 ad charged to aid and assist. S. Hood had four sons who resided 
 'ith him. It was objected that as the Christian name of George 
 [ood was omitted, the warrant was illegal, and would not authorize 
 is apprehension; and, upon a case reserved, the judges were unani- 
 
 ' Hoye V. Bush, 1 M. & Gr. 775. 
 
OF OFFICERS OF JUSTICE. 67 
 
 mously of opinion that the warrant was bad, because it omitted the 
 Christian name; it should have assigned some reason for the omis- 
 sion, and have given some particulars of George Hood, by which he 
 might be distinguished from his brothers.' 
 
 It should be observed, however, that in this case, in addition to the 
 omission of the Christian name, the warrant was defective in not 
 showing that the offence was committed within the jurisdiction of the 
 magistrate by whom it was granted. 
 
 As has already been noticed, the falsity of the charge contained in 
 such process will afford no matter of alleviation for killing the officer; 
 for every man is bound to submit himself to the regular course of 
 justice:^ and therefore, in the case of an escape warrant, the person 
 executing it was held to be under the special protection of the law, 
 though the warrant had been obtained by gross imposition on the 
 magistrate, and by false information as to the matters suggested in it.' 
 
 If a warrant commanding the arrest of an individual in the name 
 of the State have no seal, it is void. If an officer attempt to arrest 
 the party named upon such authority, he proceeds at his peril, and is 
 a wrong-doer; and if he be killed in the attempt by the party, the 
 slayer is guilty of manslaughter and not murder.'* 
 
 The question of the illegality of blank warrants — a species of pro- 
 cess formerly common in England, and at present to be frequently 
 met with in this country — has been settled in England by a series of 
 decisions which admit of no dispute. Thus, as early as 1753, the pri- 
 soner Stockley, about Lady-day, 1753, had been arrested by Welch, 
 the deceased, at the suit of one Bourn, but was rescued; and he after- 
 wards declared, that if Welch offered to arrest him again, he would 
 shoot him. A writ of rescue was made out at the suit of Bourn, and 
 carried to the office of a Mr. Deacle, (who acted for the under-sheriff 
 of Staffordshire,) to have warrants made out upon such writ. The 
 custom of the under-sheriff was to deliver to Deacle sometimes blank 
 warrants, sometimes blank pieces of paper, under the seal of the 
 office, to be afterwards filled up as occasion required. Deacle made 
 out a warrant against Stockley upon one of these blank pieces of 
 paper, and delivered it to Welch, who inserted therein the names of 
 Thomas Clewes and William Davil, on the 12th of July, 1753. On 
 the 19th of September following, Welch, Davil, Clewes, and one 
 Howard, the person to whom Stockley had declared he would shoot 
 Welch, went to arrest Stockley on this warrant. Clewes and Davil, 
 having the warrant, went into Stockley's house first, and called for 
 refreshment ; but, an alarm being given that Welch was coming, the 
 door was locked: upon which Clewes arrested Stockley on this ille- 
 gal warrant, who thereupon fell upon Clewes, and thrust him out of 
 doors, but kept Davil within, and beat him very dangerously, he cry- 
 ing out murder. On hearing this, Welch and Howard endeavoured 
 to get into the house: and Welch broke open the window, and had 
 got one leg in, when Stockley shot and killed him. Stockley then 
 absconded, and was not apprehended till December, 1771. At the 
 Lent Assizes following, he was tried for murder, when the jury ex- 
 pressly found that the deceased attempted to get into the house to 
 
 ' K. V. Wood, 1 R. & M. C. C. R. 281. ^ 1 East, P. C, o. 5, s. 8, p. 310. 
 
 ' Curt's Case, Fost. 135; and see Fost. 312. * Tuckett v. The State, 3 Yerger, 892. 
 
68 HOMICIDE 
 
 assist in the arrest of Stockley. Howard, Clewes, and Davil, being 
 dead, their depositions before the coroner were read, and minutes were 
 taken of the above facts for a special verdict : but, to save expense, 
 the case was referred to the judges of the King's Bench, who certified 
 that the offence amounted, in point of law, only to manslaughter.' 
 The same point has been frequently ruled since,^ and it has ever been 
 held that the arrest was illegal, where the warrant was filled up after 
 it had been sealed.' But if the name of the oflScer be inserted before 
 the warrant is sent out of the sheriff's office, it seems that the arrest 
 will not be illegal, on the ground that the warrant was sealed before 
 the name of the officer was inserted. Banks and Powell had a war- 
 rant from the Sheriff of Salop, upon a writ of possession against the 
 prisoner's house; and their names were interlined after the warrant 
 was sealed, but before it was sent out of the office. The prisoner re- 
 fused them admittance; and, on their bursting open the door, shot at 
 Banks, and wounded him severely. Upon an indictment for wilfully 
 shooting, upon the 43 Geo. 3, c. 58, objection was taken that the war- 
 rant gave Banks and Powell no authority, because their names were 
 inserted after it was sealed. But the prisoner having been convicted, 
 and the point reserved for the consideration of the judges, all who 
 were present (viz. 11) held that the conviction was right." But where 
 a magistrate who kept by him a number of blank warrants ready 
 signed, on being applied to, filled up one of them, and delivered it to 
 the officer, who, in endeavouring to arrest the party, was killed; it 
 was held that this was murder in the person killing the officer, and 
 he was accordingly executed.* 
 
 When a bailiff having a warrant to arrest a person upon a capias 
 ad satisfaciendum, came to his house, and gave him notice; upon 
 which the person menaced to shoot him if he did not depart: the 
 bailiff did not depart, but broke open the window to make the arrest, 
 and the person shot him, and killed him. It was holden that this was 
 not murder, because the officer had no right to break the house; 
 but that it was manslaughter, because the party knew the officer to 
 be a bailiff.^ 
 
 (8.) Where the arrest is made without any warrant. 
 
 As will be more fully seen hereafter, not only officers of justice, 
 but private persons are empowered to make arrests in cases where 
 felonies can in no other way be prevented. Independently of this 
 principle, which is not now under discussion, an officer, though with- 
 out a warrant, has a right to arrest on charge of felony; and if the fact 
 of his being an officer be known to the party attempted to be arrested, 
 killing by the latter of the former will be murder, though no felony 
 was in fact committed. Thus, upon an indictment for charge of ma- 
 liciously wounding under the 9 Geo. 4, c. 31, it appeared that the pri- 
 soners had attempted to push a man into a ditch, upon which a scuffle 
 
 1 Stockley'e case, 1 East, P. C, o. 5, s. 58, p. 310. 
 
 2 See Housin v. Barrow, 6 T. E. 122, and cases there cited 
 ' Stevenson's casi, 19 St. Tr., 846. 
 
 ' E. V. Harris, 1 Eus. on Cr. 621. Baylev, J. 
 
 5 1 East, P. C, c. 5, s. 78, p. 311. 
 
 6 Cook's case, 1 Hale, 458; Cro. Car. 537; W. Jones, 429. 
 
OF OFFICERS OF JUSTICE. 69 
 
 ensued. The prisoners walked on, and the man complained to Har- 
 rison, a watchman, that they had attempted to rob him, desired him 
 to arrest them, followed them till Harrison came up to them, and then 
 said, sufficiently loud for them to hear, " That's them." There was 
 no evidence of any attempt by the prisoners to rob the man, and the 
 only person who saw the transaction negatived it. When Harrison 
 came up to the prisoners, all he said to them was, "You must go back 
 and come along with mo." He did not explain the reason why, nor was 
 any charge against the prisoners stated. He was dressed in a watch- 
 man's coat, and had his lantern. W, one of the prisoners, said, " keep 
 off," and drew a sharp instrument from his side; the watchman said, 
 " it's of no use, you must go back." A third man put himself in a posi- 
 tion as if to strike the watchman, and W made a spring at him, and 
 caught one of the skirts of his coat; the watchman pulled out his staff, 
 and turned at the prisoners, and they came at him. The watchman 
 struck at W, and hit him on the thick part of the arm with his staff; 
 W immediately stabbed the watchman, and another of the prisoners 
 followed the watchman, and made another blow at him with another 
 knife. The place where the prisoners attempted to push the man 
 into the ditch was within the limits of the hamlet, for which Harrison 
 was watchman, but the place where he overtook the prisoners did not 
 appear to be within those limits. The jury found that the prisoners 
 knew Harrison to be a watchman. Mr. Baron Bayley doubted 
 whether, as no felony had been committed, and there had been no 
 breach of the peace in Harrison's presence, he could legally arrest, 
 at least without first stating to the prisoners why he purposed to ar- 
 rest, and he also doubted his power out of the limits of his hamlet; 
 and he reserved the case for the opinion of the judges, nine of whom 
 held that the watchman could legally arrest the prisoners without 
 saying that he had a charge of robbery against them, though the pri- 
 soners had in fact done nothing to warrant the arrest; and that had 
 death ensued, it would have been murder. Four of the judges' were 
 of a contrary opinion.^ 
 
 A class of statutes exist both in England and in this country which 
 give authority not only to constables but also to private persons to 
 apprehend ipersons found committing certain offences specified in such 
 statutes. In these cases it is requisite that the authority to apprehend 
 should be strictly pursued, and the party supposed to be guilty must 
 be apprehended either committing the offence, or upon immediate and 
 fresh pursuit.' 
 
 Where there is a reasonable suspicion that a felony has been com- 
 mitted, and a charge has been made against a particular defendant 
 connecting him with it, killing the ofiicer who arrests the defendant 
 will be murder, though he has no warrant, and though the charge 
 does not in terms express all the particulars necessary to constitute 
 the felony. Thus, when the prisoner had produced a forged bank 
 note ; and from his conduct at the time, which justified a suspicion 
 that he knew it to be forged, he was apprehended and taken to a 
 
 ' Bayley, B., Bark, J., Littledale, J., and Bosanquet, J. 
 ' E. V. Woolmer, R. & M. C. C. E. 334. 
 
 s K. V. Curran, 3 C. & P. 397 ; Hanway v. Boultbee, 1 Moo. & BoId. 14; B. v. Fraier, 
 E. & M. C. C. E. 419; 1 Buss, on Cr. 605. 
 
70 HOMICIDE. 
 
 constable, and delivered ■with the note to the constable; and the 
 charge to the constable was, " because he had a forged note in his 
 possession." After he had been in custody at the constable's some 
 hours, namely, from six o'clock in the evening until eleven, the con- 
 stable was handcuffing him to another man, when he pulled out a 
 pistol and shot the constable. The constable was not killed, but the 
 prisoner was indicted upon the 43 Geo. 3, c. 58; and it was urged 
 on his behalf that the charge imported no legal offence, for unless he 
 knew the note to be forged he was no felon; and if the charge was 
 insufficient, the arrest was illegal; and killing the officer (if that had 
 taken place) would have been only manslaughter. But the prisoner 
 having been convicted, and the case reserved for the consideration 
 of the judges, they were all of opinion that this defect in the charge 
 was immaterial; that it was not necessary for such a charge to con- 
 tain the same accurate description of the offence as would be re- 
 quired in an indictment; and that the charge in question must have 
 been considered as imputing to the prisoner a guilty possession.' In 
 a case, however, which has been already stated, where an arrest by 
 a Constable would have been clearly illegal; an attempt to make it 
 under the circumstances was held to be such a provocation as would 
 have reduced the case to manslaughter if death had ensued. The 
 indictment was for stabbing and cutting with intent to murder upon 
 the 43 Geo. 3, c. 58. On the trial it appeared that the prisoner, a 
 journeyman shoemaker, applied to his master for some money, w^hich 
 was refused until he should have finished his work; that he applied 
 again subsequently, was again refused, and became abusive, upon 
 which his master threatened to send for a constable. The prisoner 
 then refused to finish his work; and said that he would go up stairs 
 and pack up his tools, and that no constable should stop him. He 
 went up stairs, came down again with his tools, and drawing from the 
 sleeve of his coat a naked knife, said he would do for the first bloody 
 constable that ofiered to stop him; tliat he was ready to die, and 
 would have a life before he lost his own. He then made a flourish- 
 ing motion with the knife, put it up his sleeve again, and left the 
 shop. The master then applied to a constable to take the prisoner 
 into custody ; making no chai'ge further than saying that he suspected 
 the prisoner had tools of his, and was leaving his work undone. The 
 constable said he would take him if the master would give him charge of 
 him; and they proceeded together to the yard of an inn, where they 
 found the prisoner in a public privy, as if he had occasion there; the 
 privy had no door to it. The master said, " that is the man, and I 
 give you in charge of him ;" upon which the constable said to the 
 prisoner, " My good fellow, your master gives me charge of you, you 
 must go with me." The prisoner, without saying anything, presented 
 the knife, and stabbed the constable under the left breast; and at- 
 tempted to make several other blows which the constable parried off 
 with his staff. The constable then aimed a blow at the prisoner's 
 head, upon which he ran away with the knife. The knife had struck 
 against one of the constable's ribs and glanced off; if it had struck 
 two inches lower, death would have ensued; but the wound as it hap- 
 pened was not considered dangerous. The prisoner having been 
 
 ' R. u. Ford, Euss. & Ry. 329. ' 
 
OP 0PPICEE3 OP JUSTICE. 71 
 
 found guilty, upon a case reserved, the majority of the judges present, 
 namely, Abbott, C. J., Graham, B., Bayley, J., Park, J., Garrow, B., 
 HuUock, B., Littledale, J., and Gaselee, J., held that as an actual 
 arrest would have been illegal, the attempt to make it when the 
 prisoner was in such a situation that he could not get away, and when 
 the waiting to give notice might have enabled the constable to com- 
 plete the arrest, was such a provocation as, if death had ensued, would 
 have made the case manslaughter only ; and that therefore the con- 
 viction was wrong. Holroyd, J., and Burrough, J., thought other- 
 wise.' 
 
 2d. — Ship^s Officers. 
 
 Where an officer of a British ship of war, in the year 1769, at- 
 tempted, without a special warrant, to impress several seamen in a 
 Massachusetts merchant vessel, and was killed in the attempt, it was 
 held but manslaughter, the deceased acting without authority.^ 
 
 If a ship's sentinel shoot a man, because he persists in approaching 
 the ship when he has been ordered not to do so, it will be murder, 
 unless such an act was necessary for the ship's safety. And it will 
 be murder, though the sentinel had orders to prevent the approach 
 of any boats; had ammunition given to him when he was put upon 
 guard; and acted under the mistaken apprehension that it was his 
 duty. The prisoner was sentinel on board the Achille, when she was 
 paying off. The orders to him from the preceding sentinel were, to 
 keep off all boats, unless they had officers with uniforms in them, or 
 unless the officer on deck allowed them to approach ; and he received 
 a musket, three blank cartridges, and three balls. The boats pressed ; 
 upon which he called repeatedly on them to keep off; but one of 
 them persisted and came close under the ship: and he then fired at a 
 man who was in the boat, and killed him. It was put to the jury to 
 find, whether the sentinel did not fire under the mistaken apprehen- 
 sion that it was his duty : and they found that he did. But a case, 
 being reserved, the judges were unanimous that it was, nevertheless, 
 murder. They thought it, however, a proper case for a pardon : and, 
 further, they were of opinion, that if the act had been necessary for 
 the preservation of the ship, as if the deceased had been stirring up 
 a mutiny, the sentinel would have been justified.* 
 
 3d. — Private Persons. 
 
 As hfis already been generally observed, every one coming to the 
 aid of the officers of justice, and lending his assistance for the keeping 
 of the peace, or attending for that purpose, whether commanded or 
 not, is under the same protection as the officer himself.'' A person 
 aiding a policeman in conveying a person suspected of felony to the 
 station-house is entitled to the same protection eundo, morando, et re- 
 deundo as the policeman. The deceased having been required by a 
 
 1 R. V. Thompson, 1 Ky. & Mood. 80. Best, C. J., and Alexander, C. B., were ab- 
 sent. 
 
 2 Case of the crew of the Pitt packet, 4 Boston Law Eeporter, 369. 
 
 3 K. V. Thomas, 1 Bus. on Cr. 614. 
 
 * 1 Hale, 462, 463; Post. 309. See also, post, 77. 
 
72 HOMICIDE 
 
 policeman to aid him in taking a man, whom he had apprehended on 
 suspicion of stealing potatoes, to the station-house, did so for some 
 time, and then was going away, when he was attacked and beaten to 
 death; and it was objected that he was not at the time aiding the police- 
 man, Coltman, J., said, " He is entitled to protection eundo, morando, et 
 redeundo."'' The same sanction is, with certain restrictions to be 
 hereinafter stated, extended to the cases of private persons interposing 
 for preventing mischief from an affray, or using their endeavours to 
 apprehend felons, or those who have given a dangerous wound, and 
 to bring them to justice : such persons being likewise in the discharge 
 of a duty required of them by the law. The law is their warrant, and 
 they may not improperly be considered as persons engaged in the 
 public service, and for the advancement of justice, though without 
 any special appointment; and being so considered, they are under the 
 same protection as the ordinary ministers of justice.^ 
 
 While it is clear that a private person is not only justified but 
 obliged to do his best to bring felons to justice, as well as to prevent 
 felony,' a party interfering on this principle, should be clear, first, that 
 a felony has actually been committed, or that an actual attempt to 
 commit a felony is being made by the party arrested;* and, second, 
 that it was committed by the person intended to be pursued or ar- 
 rested; for, supposing a felony to have been actually committed, but 
 not by the person arrested or pursued upon suspicion, this suspicion, 
 though probably well founded, will not bring the person endeavour- 
 ing to arrest or imprison within the protection of the law, so far as 
 to excuse him from the guilt of manslaughter, if he should kill; or, 
 on the other hand, to make the killing of him amount to murder. It 
 seems that, in either case, it would only be manslaughter; the one 
 not having used due diligence to be apprized of the truth of the fact, 
 the other not having submitted and rendered himself to justice.* 
 
 Where there is a clear case of an attempt to commit a felony, such 
 arrest may be also made. Thus, where H., being called up in the 
 night by one of his servants, found that his stable had been attempted, 
 and the door cut in such a manner that the bolt was exposed, and 
 found the prisoner and another person concealed in the yard ; and a 
 steel instrument was also found, by which the door of the stable ap- 
 peared to have been cut, and some house-breaking instruments were 
 also found near the spot where the prisoner and his companion were 
 concealed, and under these circumstances they had been apprehended 
 and detained by H. and his servant, and during such detention, and 
 in the course of the same night, the prisoner had cut S.'s servant 
 with a knife, a point was made that such cutting was not within the 
 43 Geo. 3, c. 58, on the ground that the prisoner was not lawfully in 
 custody, there being no warrant, and an attempt to commit a felony 
 being only a misdemeanor. But the judges held that the prisoner 
 
 1 R. V. Phelps, 1 C. & Mars. 180. See the Sissinghurst-house case, ante, p. 62, Bost. d. 77. 
 2Fost. 309. ^ 
 
 ' Sz parte Kraus, 1 B. & C. 261 ; 1 Euss. on Cr. 535. See more fully, Com. v. Daily, 
 Com. V. Hare, Appendix. 
 
 * 2 Inst. 52, 172; Fost. 818; Samuel v. Payne, Dougl. 359; and in Coxe v. Winan, 
 Cro. Jac. 150, it was holden, that, -without a fact, suspicion is no cause of arrest- and 
 8 Ed. 4, 3; 5 Hen. 7, 5; 7 Hen. 4, 35, are cited. 
 
 * 1 Hale, 490; Fost. 318. See State v. Rutherford. 1 Hawks' N. C. Rep. 467, 
 
OP PRIVATE PERSONS AIDING OFFICERS OP JUSTICE. 73 
 
 being detected in the night attempting to commit a felony, might be 
 lawfully detained without a warrant, until he could be carried before 
 a magistrate.' 
 
 Upon an indictment for wounding, it appeared that the prisoner 
 had asked leave to take a basket of ashes from /he prosecutor's ash- 
 pit, which he was permitted to do ; as he was carrying away the ashes 
 the prosecutor's apprentice saw the spout of a new tea-kettle, which 
 had stood on a shelf near the ash-pit, among the ashes, and having 
 given the alarm, the prosecutor seized the prisoner to detain him 
 while a constable was sent for; the prisoner resisted, and in the strug- 
 gle both fell, and the prisoner cut the prosecutor with a knife : a rattle 
 of copper had been heard while the prisoner was at the ash-pit: it 
 Was objected that the prosecutor had no right to detain the prisoner. 
 Alderson, B., "That will depend on whether the jury are satisfied 
 that the prisoner had in fact stolen the tea-kettle. If he had stolen 
 the tea-kettle, the prosecutor had a right to detain him, and this 
 wounding will be felony."^ 
 
 An indictment found is a good cause of arrest by private persons, 
 if it may be made without the death of the felon : but it is said, that 
 if he be killed, their justification must depend upon the fact of the 
 party's guilt, which it will be incumbent on them to make out: other- 
 wise, they will be guilty of manslaughter.^ 
 
 Private persons interfering for the furtherance of public justice 
 should expressly avow their intention, or their killing will be but 
 manslaughter.'' If the intention, however, be shown, the law is 
 otherwise. Thus, in a case already cited, the prisoner and one W. 
 engaged in a fight, and were separated by the deceased; some time 
 after the fight was renewed, and the deceased again interfered, but 
 being unable to take the prisoner off, called a negro to his assistance 
 who, in the act of separating the combatants, threw the prisoner 
 against the wall. The prisoner then made at the deceased (who en- 
 deavoured to avoid him) with a knife, and inflicted a mortal wound; 
 it was held that this was a case of murder.* 
 
 A. beat B., a constable who was in the execution of his ofBce, and 
 they were parted; and then C, a friend of A., rushed suddenly in, 
 took up the quarrel, fell upon the constable, and killed him in the 
 struggle; but A. was not engaged in this after he was parted from 
 B. And it was holden by two judges, that this was murder only in C; 
 and A. was acquitted, because it was a sudden quarrel, and it did not 
 appear that A. and C. came upon any design to abuse the constable.^ 
 But if a man begin a riot, and the same riot continue, and an ofiicer 
 be killed, he that began the riot would, if he remained present at it, 
 be a principal murderer, though he did not commit the fact.^ 
 
 The right of private persons to arrest in cases of misdemeanor 
 
 1 E. 0. Hunt, By. & Mood. Cr. C. 93. 
 
 2 R. V. Price, 8 C. & P. 282, Alderson, B. 
 
 8 Dalt. C. 170, s. 5; 1 East, C. P., c. 5, s. 68, p. 301. 
 
 < Fost. 310, 311; F. S. v. Travera, 2 Wheeler's C. C. 510; 1 East, P. C, c. 5, s. 58, 
 
 5 State V. Ferguson, 2 Hill S. C. R. 619. 6 i East P C 296 
 
 ' R. V. Wallis et al., 1 Salk. 834. " 
 
74 HOMICIDE 
 
 has been already partially noticed,' and will be considered more fully 
 in a succeeding section.^ 
 
 II. IN WHAT CASES. 
 
 Is^. Felonies. 
 
 The rule of law bearing on this point has already been stated in the 
 pages immediately preceding.^ It is sufiEcient now to recapitulate what 
 has been there said, that a more liberal construction of the right to ar- 
 rest exists in felonies than in misdemeanors. If a felony be committed 
 and the felon fly from justice, or a dangerous wound be given, it is 
 the duty of every man to use his best endeavours to prevent an es- 
 cape; and in such cases, if fresh suit be made, and a fortiori, if hue 
 and cry be levied, all who join in aid of those who began the pursuit 
 will be under the same protection of the law; and the same rule holds, 
 if a felon, after arrest, break away as he is being carried to jail, and 
 his pursuers cannot retake him without killing him.^ Thus, where, 
 upon a robbery committed by several, the party robbed raised hue and 
 cry, and the country pursued the robbers, and one of the pursuers 
 was killed by one of the robbers, it was held that this was murder, 
 because the country, upon hue and cry levied, are authorized by law 
 to pursue and apprehend the malefactors; and that, although there 
 were no warrant of a justice of the peace, to raise hue and cry, nor 
 any constable in the pursuit, yet the hue and cry was a good warrant 
 in law for the pursuers to apprehend the felons ; and that, therefore, 
 the killing of any of the pursuers was murder.' 
 
 A peace oiJScer may justify an arrest on a charge of felony, on 
 reasonable cause of suspicion, without a warrant; although it should 
 afterwards appear that no felony had been committed.* And where 
 a private person suspecting another of felony, has laid his grounds of 
 suspicion before a constable, and required his assistance to take him, 
 the constable may justify killing the party, if he fly, and cannot other- 
 wise be taken, though in truth he were innocent. But in such case, 
 where no hue and cry is levied, the party suspecting ought to be 
 present, as the justification must be that the constable did aid him in 
 taking the party suspected : and the constable ought to be informed 
 of the grounds of suspicion, that he may judge of the reasonableness 
 of it.^ A police officer found N. with potatoes under his shirt, which 
 had been yery recently dug from the ground, and apprehended him. 
 The policeman called 0. to assist him; 0. did so, and a rescue being 
 attempted, 0. was going away, and was struck by A., who went away, 
 
 1 Ante, p. 71. 
 
 2 :post, p. 75. "There is this distinction between a private indiyidual and a constable: 
 in order to justify the former in causing the imprisonment of a person, he must not only 
 make out a reasonable ground of suspicion, but he must prove that a felony has actually 
 been committed ; whereas a constable, having reasonable ground to suspect that a felony 
 has been committed, is authorized to detain the party suspected until inquiry can be 
 made by the proper authorities." Beckworth v. Philby, 6 B. & C. 638. 
 
 ' Ante, p. 56, 7. 
 
 * 1 Hale, 489,490; 1 Hawk. P. C, c. 28, s. 11; Fost. 809; 1 East, P. C, c. 5, s. 67, 
 p. 298. 
 
 ' Jackson's case, 1 Hale, 464. e Samuel v. Payne, Dougl. 359. 
 
 2 Hale, 79, 80, 91—3; 3 Inst. 221; 1 East, P. C, o. 5, s. 69, p. 301. 
 
OF OFFICERS OF JUSTICE AND OTHERS ATTEMPTING ARRESTS. 75 
 
 and 0. was afterwards killed by other persons who attempted the 
 rescue; it was held that the police officer had no right to apprehend 
 N., and-that the killing of 0., therefore, did not amount to murder.' 
 
 2nd. — Misdemeanors. 
 
 No matter what may be the case of misdemeanor, there is no power 
 in a private person to apprehend after the offence has been committed. 
 Thus to trespass for false imprisonment, the defendant pleaded that 
 an evil-disposed person, to him unknown, had obtained goods from 
 him by false pretences; that the plaintiff afterwards passed by the 
 defendant's shop, and was pointed out to him by his servant as the 
 person who had so obtained the goods, whereupon the defendant, 
 vehemently suspecting that the plaintiff was the person who had com- 
 mitted the offence, gave ch,arge of him to a police officer to be taken 
 before a magistrate; and upon this plea the defendant had a ver- 
 dict. It was contended, in showing cause against a rule for judg- 
 ment non obstante veredicto, that offences partaking of the nature of 
 a felony, as a fraud, which borders'upou a theft, might come under a 
 different rule from misdemeanors, which merely constituted a breach of 
 the peace. But Lord Tenterden, 0. J., said, " The distinction between 
 felony and misdemeanor is well known and recognised, but is there 
 any authority for distinguishing between one kind of misdemeanor 
 and another?" It was admitted that there was no direct authority, 
 but 2 Hawk., P. C. c. 12, s. 20, and 2 Hale, 88, 89, were relied upon. 
 Lord Tenterden, C. J. " The instances in Hawkins are where the 
 party is caught in the fact, and the observation there added assumes 
 that the party was guilty. Here the case is only of suspicion. The 
 instances in Hale, of arrest on suspicion after the fact is over, relate 
 to felony. In cases of misdemeanor, it is much better that the parties 
 should apply to a justice of peace for a warrant, than take the law into 
 their own hands, which they are too apt to do. The rule must be 
 made absolute."^ 
 
 Where private persons interpose in the case of sudden affrays, to 
 part the combatants, and prevent mischief, and give express notice of 
 their friendly intent, it will be murder in either of the persons 
 making the affray, who shall kill the party so interposing: but it will 
 not be murder in the other affrayer, unless he also strike the party.' 
 
 The same doctrine applies to officers arresting parties without war- 
 rant, on a charge of misdemeanor reported to have been committed. 
 Thus, if a constable take a man without warrant, upon a charge of 
 ill using a person, which ill usage was not in the presence of the con- 
 stable, and, therefore, gives him no authority to do so, and the priso- 
 ner runs away, and is pursued by J. S., who was with the constable 
 all the time, and charged by him to assist, and the man kill J. S. to 
 prevent his retaking him, it will not be murder, but manslaughter 
 onl}'; because the arrest is illegal, and J. S. ought to have known it 
 was, and then his attempt to retake was illegal also; and that though 
 the prisoner, while in custody of the constable, struck the man hj 
 whom the charge was given; because a blow whilst he was under the 
 
 1 R. V. Phelps, 1 Car. & Mars. 180. 
 
 •■ Fox V. Gaunt, 3 B. & Ad. 798. ■' Fost. 272; 1 East, 804. 
 
76 HOMICIDE 
 
 influence of tlie provocation from the illegal arrest caused by such 
 man, would not justify the constable in detaining him: at least it 
 will make no diiFerence if the blow was not likely to be followed 
 with dangerous consequences, nor made a new and distinct ground 
 of detainer. Upon an indictment for maliciously cutting Walby, it 
 appeared that a man travelling upon the highway told the constable 
 that a man coming along the road had been ill using him, and charged 
 the constable, in the prisoner's hearing, to take the prisoner before a 
 magistrate for so misusing him; on which the constable, meeting the 
 prisoner passing along the highway, ordered him to stop for insult- 
 ing a man on the road, laid hold of him, tapped him on the shoulder, 
 said he was his prisoner, and that he should take him to a magistrate, 
 and ordered Walby to assist him, which W. did, and to which the 
 prisoner submitted. No particulars of what the supposed ill usage 
 or insult consisted of, appeared in evidence, nor did they pass in the 
 constable's view or hearing, and, therefore, the apprehension and de- 
 tainer appeared clearly thus far to have been unlawful. Afterwards, 
 and whilst the prisoner was thus in custody, and before they found a 
 magistrate, the prisoner struck the man, in the constable's presence, 
 who had made the charge against him, and the constable then also 
 told the prisoner he should take him before a magistrate; and some 
 time afterwards, as they were proceeding along to a magistrate's, the 
 prisoner ran away, and attempted to escape, but was pursued by W. 
 by the constable's order; and being overtaken by him, refused to 
 stop, asking W. where his authority was, who said it was in his hand, 
 alluding to a stick, which W. then had in his hand, and which the 
 prisoner had given up to him at the commencement of the detainer; 
 and without further information, when W. was going to take hold of 
 him, the prisoner told him if he would not let go he would stab him, 
 and then gave him the cut in the face, for which he was thus indicted. 
 Holroyd, J., doubted whether the effect of the first illegal custody 
 might not operate upon the circumstances that subsequently took 
 place, as a defence against the present indictment, either in render- 
 ing even the subsequent imprisonment tortious, or depriving the 
 prisoner's conduct of the necessary legal ingredient of malice; and 
 he reserved the case for the opinion of the judges, who held that the 
 original arrest was illegal, and that the recaption would have been 
 illegal, and, therefore, the case would not have been murder if death 
 had ensued.' 
 
 Even a justice of the peace has no authority to detain a person 
 known to him, till some other person makes a charge against him : be- 
 fore he detains a person known, he ought to have a charge actually 
 made. Upon an indictment for false imprisonment and assaulting 
 one Smyth, it appeared that Smyth went to a police ofiBce, where two 
 magistrates were sitting, to make a complaint, which was dismissed, 
 and he was retiring, when one of the magistrates said, " Stop him, 
 shut the door, don't let that man escape. Where is the person that 
 has got the information to lay against him for tampering with the 
 due course of justice?" On which he was detained. For the defen- 
 dants it was opened, that the magistrates were informed that an oflacer 
 
 1 R. V. Curvan, E. & M. C. C. K. 182. 
 
OP OFFICERS AND OTHEES IN AFFRAYS. 77 
 
 had a complaint to make against Smyth for having tampered with 
 the due course of justice; and that the officer not being then at the 
 office, Smyth was detained till he was sent for; and it was contended 
 that, if a magistrate has a person before him charged with either 
 felony or misdemeanor, he may either go into the case immediately, 
 or detain the party to await his pleasure. Lord Tenterden, C. J. said, 
 " I am of opinion that the justices could not detain a person known 
 to them, till some other person should make a charge;- 1 think before 
 they detain a known person, they should have a charge actually 
 made."^ 
 
 Where, however, life is threatened, and complaint be made thereof 
 to the constable forthwith, such constable may, in order to avoid the 
 present danger, arrest the party, and detain him till he can conveniently 
 bring him to a justice of the peace.'' 
 
 Upon an indictment for maliciously stabbing with intent to murder, 
 it appeared that the prisoner, about half-past ten at night, went to a 
 house and demanded to see the servant girl. He was desired to quit 
 the house, which he refused to do, and the prosecutor who was a con- 
 stable, was sent for. Before the prosecutor came, the prisoner left 
 the house and went into the garden. In about twenty minutes the 
 prosecutor came. The prisoner did nothing .in his presence; but upon 
 the prisoner saying, " If a light appear at the windows, I will break 
 every one of them," the prosecutor took him into custody, and he after- 
 wards cut the prosecutor with a knife; it was submitted that the ar- 
 resting the prisoner was illegal, as nothing had been done by him in 
 breach of the peace in the presence of the constable. Parke, J. I 
 think that the detention of the prisoner by the prosecutor was illegal. 
 There was no breach of the peace when the prisoner was taken into 
 custody."^ 
 
 3d. — Affrays. 
 
 The principal questions arising under this head will be more fully 
 discussed in a subsequent chapter, where homicide arising in riots is 
 considered.^ At present it is intended to do no more than notice 
 the English cases bearing on this particular head, reserving the Ame- 
 rican authorities for a more full discussion hereafter. 
 
 The leading English case on this point is thus stated : — A great 
 number of persons, assembled in a house called Sissinghurst, in Kent, 
 issued out and committed a great riot and battery upon the possessors 
 of a wood adjacent. One of their names, viz., A, was known, the rest 
 were not known ; and a warrant was obtained from a justice of peace 
 to apprehend the said A, and divers other persons unknown, who 
 were all together in Sissinghurst-house. The constable, with about 
 sixteen or twenty called to his assistance, came with the warrant to 
 the house, and demanded entrance, and acquainted some of the per- 
 sons within that he was the constable, and came with the justice's war- 
 
 1 R. V. Bimie, 5 C. & P. 200. 
 
 2 2 Hale, 88. This power seems to be grounded on the duty of the officer to prevent 
 a probable felony, and must be governed by the same rules which apply to that case ; 
 though Dalton, (oh. 116, s. 3,) extends it even to the prevention of a battery. Tide 
 1 East, P. C, 0. 5, s. 72, p. 306. s E. v. Bright, 4 C. & P. 387. 
 
 * See as to interference of private persons, ante, p. 71. ^ 
 
78 HOMICIDE 
 
 rant, and demanded A, with the rest of the offenders that were then 
 in the house ; and one of the persons within came, and read the war- 
 rant, but denied admission to the constable, or to deliver A or any of 
 the malefactors; but, going in, commanded the rest of the company 
 to stand to their staves. The constable and his assistants, fearing 
 mischief, went away; and being about five rods from the door, B, C, 
 D, E, F, &c., about fourteen in number, issued out and pursued the 
 constable and his assistants. The constable commanded the peace, 
 yet they fell on, and killed one of the assistants of the constable, and 
 wounded others, and then retired into the house to the rest of their 
 company which were in the house, whereof the said A and one G that 
 read the warrant were two. For this, A, B, C, D, E, F, G, and divers 
 others, were indicted of murder, and tried at the King's Bench bar, 
 when these points were unanimously determined: 
 
 1. That although the indictment were, that B gave the stroke, and 
 the rest were present aiding and assisting, though in truth C gave the 
 stroke, or that it did not appear upon the evidence which of them 
 gave the stroke, but only that it was given by one of the rioters, yet 
 that such evidence was sufficient to maintain the indictment; for in 
 law it was the stroke of all that party, according to the resolution in 
 Mackally's case.^ 
 
 2. That in this case all that were present and assisting to the rioters 
 were guilty of the death of the party slain, though they did not all 
 actually strike him, or any of the constable's company. 
 
 3. That those within the house, if they abetted or counselled the 
 riot, were in law present aiding and assisting, and principals, as well 
 as those that issued out and actually committed the assault; for it was 
 but within five rods of the house, and in view thereof, and all done 
 as it were in the same instant. 
 
 4. That here was sufficient notice that it was the constable, before 
 the man was killed. 1. Because he was the constable of the same 
 vill. 2. Because he notified his business at the door before the as- 
 sault, viz., that he came with the justice's warrant. 3. Because, after 
 his retreat, and before the man was slain, the constable commanded 
 the peace ; and, notwithstanding, the rioters fell on and killed the 
 party. 
 
 5. It was resolved, that the killing of the assistant of the constable 
 was murder, as well as the killing of the constable himself. 
 
 6. That those who come in to the assistance of the constable, though 
 not specially called thereunto, are under the same protection as they 
 that are called to his assistance by name. 
 
 7. That although the constable retired with his company upon the 
 not delivering up of A., yet the killing of the assistant of the con- 
 stable in that retreat was murder. 1. Because the retreat was one 
 continued act in pursuance of his oflSce; being necessary, when he 
 could not attain the object of his warrant, and being in effect a con- 
 tinuation of the execution of his office, and under the same protection 
 of the law as his coming was. 2. Principally because the constable, 
 in the beginning of the assault, and before the man was stricken, com- 
 manded the peace. 
 
 >9Co. 67 b. 
 
OP OFFICERS AND OTHERS IN AFFRAYS. 79 
 
 8. It seems that even if the constable had not commanded the peace, 
 yet as he and his company came about what the law allowed them, 
 and, when they could not effect it fairly, were going their way, the 
 rioters pursuing them and killing one made the offence murder in 
 them all; for the act was done without provocation, and the constable 
 and his company were peaceably retiring; but this point was not re- 
 lied upon, because there was enough upon the former point to convict 
 the offenders. In the conclusion, the jury found nine of them guilty, 
 and acquitted those within ; not because they were abused, but because 
 there was no clear evidence that they consented to the assault as the 
 jury thought; and therefore judgment was given against the nine to 
 be hanged. 
 
 While it is well settled, as has been stated, that a constable or other 
 peace-officer has no right to arrest after an affray without a warrant, 
 yet it is clear that he, or other known conservator of the peace, may 
 lawfully interpose upon his own view to prevent a breach of the peace, 
 and to quiet an affray; and if he or any of his assistants, whether com- 
 manded or not, be killed, it will be murder in all who take part in 
 the resistance ; there being either implied or express notification of 
 the character in which he interposed.^ 
 
 What degree of notice is required to acquaint parties with the fact 
 of office has been already partially considered.^ In such cases, a small 
 matter will amount to a due notification. It is sufficient if the peace 
 be commanded, or the officer, in any other manner, declare with what 
 intent he interposes. Or if the officer be within his proper district, 
 and known, or but generally acknowledged, to bear the office he as- 
 sumes, the law will presume that the party killing had due notice of 
 his intent; especially if it be in the day time.^ In the night some fur- 
 ther notification is necessary; and commanding the peace, or using 
 words of the like import, notifying his business, will be sufficient. 
 
 It becomes, under the law as just stated, an important inquiry whe- 
 ther an affray be actually over, for on this depends the question how 
 far an arrest made without warrant is legal. Thus, upon the trial of 
 an action for an assault, it appeared that about midnight there was a 
 disturbance, and ringing and knocking at many doors; that the dis- 
 turbance continued about three hours, and about three o'clock in the 
 morning the high constable asked the plaintiff to assist him in taking 
 the parties into custody, and that the plaintiff went into the street, 
 and that one White desired the defendant to go home, and the defen- 
 dant replied, " If you do not leave me alone, I will knock your brains 
 out, or give you a good ducking," whereupon the plaintiff and White 
 laid hold of the defendant to convey him to the cage; and when near 
 the cage door, all three fell down; and it was imputed that at this 
 time the defendant kicked the plaintiff on the leg, which was the in- 
 jury for which the action was brought. AlcTerson, B., said to the jury, 
 "The questions for your consideration in this case are, whether the 
 defendant was engaged in the affray; whether the constable had view 
 of the affray while he was so engaged in it; and whether the affray 
 was continuing at the time that he ordered the plaintiff to apprehend 
 
 1 1 Hale, 463; 1 Hawk. P. C, c. 31, s. 54; Fost. 310. 
 
 2 Ante p. 60, 73. ' i Hale, 361; Fost. 311. 
 
80 HOMICIDE 
 
 the defendant. If you are satisfied that all these points are made 
 out, then, if the defendant assaulted the plaintiff while the plaintiff 
 was endeavouring to apprehend him, such assault is unjustifiable, and 
 the verdict ought to be for the plaintiff. If, however, there had been 
 an affray, and that affray were over, then the constable had not, and 
 ought not, to have the power of apprehending the persons engaged 
 in it: for the power is given by law to prevent a breach of the peace; 
 and where a breach of the peace had been committed, and was over, 
 the constable must proceed in the same way as any other person, 
 namely, by obtaining a warrant from a magistrate. You must, there- 
 fore, before you find for the plaintiff, be satisfied that the defendant 
 was a party to the affray, and that the affray was continuing at the 
 time of his apprehension. The right of the plaintiff to apprehend 
 the defendant is a serious question, involving the power of consta- 
 bles, and a wrong decision upon it would materially affect the liberty 
 of the subject. The words used by the defendant would be no justi- 
 fication for his apprehension, unless he was a party to the affray; and 
 you think that those words showed that the affray was still continuing. 
 If the apprehension of the defendant were unlawful, he had, unques- 
 tionably, a right to struggle to get away; but, if the apprehension 
 was lawful, he had no right to do so, and is answerable for all the 
 consequences." ' 
 
 Questions not unfrequently arise, says Sir Wm. Russell,^ as to the 
 authority of constables and other officers to interfere with persons in 
 inns or beer houses. It is no part of a policeman's duty to turn a 
 person out of an inn, although he may be conducting himself im- 
 properly there, unless his conduct tends to a breach of the peace. 
 The plaintiff was using abusive language in an inn to one of the per- 
 sons there, on which the owner of the inn sent for a policeman, who, 
 by his direction, took the plaintiff to the station house. Patteson, J. 
 " The landlord of an inn or public house, or the occupier of a private 
 house, whenever a person conducts himself as the plaintiff did, is jus- 
 tified in telling him to leave the house, and if he will not do so, he 
 is justified in putting him out by force, and may call in his servants 
 to assist in so doing. He might also authorize a policeman to do it, 
 but it would be no part of a policeman's duty as such, unless the party 
 had committed some offence punishable by law; but although it would 
 be no part of the policeman's duty to do this, it might be better in 
 many cases that a policeman should assist the owner of the house in 
 a matter of this kind, as he would probably get the person out of the 
 house with less disturbance than the owner himself could do."' Nei- 
 ther is it the duty of a policeman to prevent a person from going into 
 a room in a public house, unless a breach of the peace was likely to 
 be committed by such person in that room. Upon an indictment for 
 assaulting a policeman in the execution of his duty, it appeared that 
 the policeman was called into a public liouse to put an end to a dis- 
 turbance which the defendant was making; he and the landlady were 
 at high words: W. L. interfered, and the defendant was in the act of 
 squaring at him, when the policeman desired the defendant not to 
 make a disturbance; the defendant, who was at the side of the bar, 
 
 ' Cook V. Netheroote, 6 C. & P. 417. a 1 Kus on Cr 602 
 
 3 Wheeler v. Whiting, 9 C. & P. 262. 
 
ARRESTS DURING AFFRAYS. 81 
 
 then attempted to go into the parlour, in which a person was sittinf^ 
 as the defendant attempted to get into the parlour, the policeman col- 
 lared him, and prevented his going in; he then struck the policeman; 
 neither the landlord nor landlady had desired the policeman to turn 
 the defendant out of the house. Parke, B., said : " The policeman had a 
 right to be in the house, without being called upon either by the land- 
 lord or landlady to interfere, but under the circumstances he had no 
 authority to lay hold of the defendant, unless you are satisfied that 
 a breach of the peace was likely to be committed by the defendant 
 on the person in the parlour; and if you think it was not, it was no 
 part of the policeman's duty to prevent the defendant from going iftto 
 the parlour.'" 
 
 But if a person make such a noise and disturbance in a public bouse 
 as would create alarm and disquiet the neighbourhood, this would be 
 such a breach of the peace as would justify a policeman in taking 
 the party into custody, provided it took place in the presence of the 
 policemen. To trespass for false imprisonment the defendant pleaded 
 that he was possessed of a public house, and that plaintiff was in the 
 house, and conducted himself in a riotous, quarrelsome, disorderly, 
 and uncivil manner, and committed a breach of the peace therein; 
 that the plaintiff was requested to depart, and refused, whereupon 
 the defendant gently laid his hands on the plaintiff to remove him, 
 and because the plaintiff violently and forcibly resisted the said re- 
 moval, the defendant gave him in charge to a watchman, who saw 
 the said breach of peace ; it appeared that a watchman, who was on 
 duty, in consequence of hearing a noise, went into the defendant's 
 public house, where he found the plaintiff and five or six other young 
 men making a disturbance; he led the plaintiff out of the house, and 
 about fifteen yards along the street, and then let him go; he said he 
 would go back and have his revenge, and went towards the public 
 house: the watchman went round his beat, and on his return he heard 
 a person at the door of defendant's house cry "watch," and he in con- 
 sequence went in and found the plaintiff sitting down ; lie then sprung 
 his rattle, and the defendant tried to put the plaintiff out of the house, 
 the plaintiff having hold of the defendant's collar, to resist being put 
 out, on which the watchman took the plaintiff into custody, and took 
 him to the watch-house. Parke, B. said : " There is no doubt that a land- 
 lord may turn out a person who is making a disturbance in a public 
 house, though such disturbance does not amount to a breach of the 
 peace. To do this the landlord may lay hands on him, and in so doing 
 the landlord is not guilty of any breach of the peace. But if the per- 
 son resists, and lays hands on the landlord, that is an unjustifiable as- 
 sault upon the landlord; and if the watchman in this case saw such 
 assault committed, that would make out the plea. There might, it is 
 true, be a sufficient breach of the peace to justify the defendant, as 
 the landlord of the house, in giving the plaintiff into custody without 
 this assault; and even if there was no assault at all. For if the plain- 
 tiff made such a noise and disturbance as would create alarm and 
 would disquiet the neighbourhood, and the persons passing along the 
 adjacent street, that would be such a breach of the peace as would 
 
 » R. V. Mabel, 9 C. & P. 474, Parke, B. 
 
82 HOMICIDE. 
 
 not only authorize the landlord to turn the plaintiff out of the house, 
 but it would also give the landlord a right to have the plaintiff taken 
 into custody, if this occurred in the view of the watchman: the watch- 
 man has said he saw the piece of work the first time he went into the 
 house. Now, if the plaintiff and others were then conducting them- 
 selves in a manner calculated to disturb the neighbourhood, this 
 would justify the watchman in turning the plaintiff out, and in taking 
 him into custody, if on his going to the house the second time he 
 found the plaintiff still there.'" 
 
 4fA. — Street-Walkers and Vagrants. 
 
 The present and more humane opinion in this respect is, that the 
 taking up of a person in the night, as a night-walker and disorderly 
 person, though by a lawful officer, would be illegal, if the person so 
 arrested were innocent, and there were no reasonable grounds of sus- 
 picion to mislead the officer.^ 
 
 The city ofiBcers of the city of St. Louis arrested the defendant as 
 a vagrant, under the city ordinances, and discharged him again upon 
 his promise that he would leave the city within a specified time. After 
 the time had elapsed, the deceased again, without a warrant, arrested 
 defendant under an order from the head of the police, and was killed 
 by defendant in resisting the arrest. It was held that if the arrest 
 by deceased was made solely because defendant had broken his 
 promise to leave the city, it was illegal; but if made because the 
 defendant was at the time a vagrant within the meaning of the city 
 ordinances, then it was legal.' 
 
 rri. — WHEN THE ARREST MAT BE MADE. 
 
 The officer must also be careful not to make an arrest on a Sunday, 
 except in cases of treason, felony, or breach of the peace ; as, in all 
 other cases, an arrest on that day will be the same as if done without 
 any authority. But process may be executed in the night time as 
 well as by day."* 
 
 A Serjeant at mace in the city of London having authority accord- 
 ing to the custom of the city, by entry in the porter's book at one of 
 the counters, to arrest one Murray for debt, arrested him between 
 five and six in the evening of the 8th of November, saying at the same 
 time, " I arrest you in the king's name, at the suit of Master Radford ;" 
 but he did not produce his mace: Murray resisted, and one of his 
 companions killed the officer. Upon a special verdict it was uro-ed 
 that the arrest in the night was illegal, that the Serjeant should have 
 
 ' Howell V. Jackson, C C. & P. 723, Parke, B. 
 
 2 Tooley's case, 2 Lord Rayra. 1296. It is said that -watchmen and beadles have autlio- 
 rity, at common law, to arrest, and detain in prison, for examination, persons walking 
 m the streets at night, whom there is reasonable ground to suspect of felony although 
 there is no proof of felony having been committed. (Lawrence v. Hedger 3 Taunt 14 ) 
 And it has been said by Hawkins and others, that every private person may by the 
 common law, arrest any suspicious night-walker, and detain him till he give a good ac- 
 count of himself, (2 Hawk. P. C, c. 13, s. 6, c. 12, s. 20;) and it has been hild that 
 a person may be indicted for being a common night-walker, as for a misdemeanor 
 (2 Hawk. P. C, c. 12, s. 20; Latch. 173; Poph. 208.) 
 
 ' Roberts v. State of Mis; O'lri, 14 Misso. 
 
 « 9 Co. 66 a; 1 Hale, 457; 1 Hawk. P. C, o. 31, s. 62. 
 
APrKATS — arrests: — HOW TO BE MADE, AND WHEN. 83 
 
 shown his mace, and that a custom stated in the verdict to arrest 
 without process first against the goods was illegal ; but the objections 
 were overruled; and judgment was given for the king, and one of the 
 prisoners was executed/ 
 
 Killing a watchmati in the execution of his office is not the less 
 murder for being done in the night; and the killing of an officer who 
 arrests on civil process may be murder, though the arrest be made in 
 the night; and in the case of an affray in the night where the con- 
 stable, or any other person who comes to aid him to keep the peace, 
 is killed, after the constable has commanded in the king's name to the 
 keeping of the peace, such killing will be murder; for though the 
 parties could not discern or know him to be a constable, yet if it were 
 said at the time that he was such officer, resistance was at their peril.* 
 
 IV. — OFFICERS TAKING OPPOSITE PARTS. 
 
 Where officers, accidentally and without malice, take opposite parts 
 in an affray, and one of them is killed, this, says Lord Hale, seems 
 but manslaughter, and not murder, inasmuch as the officers and their 
 assistants were engaged one against the other, and each had as much 
 authority as the other :^ but upon this it has been remarked, that per- 
 haps it had been better expressed, to have said, that inasmuch as they 
 acted not so much with a view to keep the peace, as in the nature 
 of partisans to the different parties; they acted altogether out of the 
 scope of their characters as peace officers, and without any authority 
 whatever.* If the sheriff, says the same authority, have a writ of 
 possession against the house and lands of A., and A. pretending it to 
 be a riot upon him, gain the constable of the vill to assist him, and to 
 suppress the sheriff or his bailiffs, and in the conflict the constable be 
 killed, this is not so much as manslaughter; but if any of the sheriff's 
 officers were killed, it would be murder, because the constable had no 
 authority to encounter the sheriff's proceeding when acting by virtue 
 of the king's writ.* And in a subsequent case, some sheriff's officers 
 having apprehended a man by virtue of a writ against him, a mob 
 collected and endeavoured by violence to rescue the prisoner. In 
 the course of the scuffle, which was at ten o'clock at night, one of the 
 bailiffs having been violently assaulted, struck one of the assailants, 
 a woman, and as it was thought for some time had killed her: where- 
 upon, and before her recovei-y was ascertained, the constable was sent 
 for, and charged with the custody of the bailiff who had struck the 
 woman. The bailiffs on the other hand, gave the constable notice 
 of their authority, and represented the violence which had been pre- 
 viously offered to them; notwithstanding which, he proceeded to take 
 them into custody upon the charge of murder; and at first, offered to 
 take care also of their prisoner, but the latter was soon rescued from 
 them by the surrounding mob. The woman having recovered, the 
 bailiffs were released by the constable the next morning. Upon an in- 
 dictment for an assault and rescue. Heath, J., was clearly of opinion 
 that the constable and his assistants were guilty of the assault and 
 rescue, and directed the jury accordingly.® 
 
 ' Mackalley's case, 9 Co. 65 b. 29 Cq. g6 a. 
 
 3 1 Hale, 460. * 1 East, P. & C, c. 5, s. 71, p. 304. S j Hale, 460. 
 
 « Anon. Exeter Sum. Ass. 1793; 1 East, P. & C, c. 5, s. 71, p. 305. 
 
84 HOMICIDE. 
 
 V. — HOW ARRESTS MAT BE MADE, AND HEREIN OP BREAKING OPEN DOORS. 
 
 The law on this point is thus excellently recapitulated by Sir 
 William Russell,' as follows : In all cases, whether criminal or civil, 
 where doors may be broken open in order to make an arrest, there must 
 be a previous notification of the business, and a demand to enter on 
 the one hand, and a refusal on the other, before the parties proceed 
 to that extremity.* In a case where an outer door has been broken 
 open by two constables and a gamekeeper, to execute a warrant 
 granted under the 22 and 23 Car. 2, c. 25, s. 2, to search for, and 
 seize any guns, &c. for destroying game; and it appeared, that the 
 door was broken open without the party having been previously re- 
 quested to open it; the court held, that, in a case of misdemeanor, a 
 previous demand of admittance was clearly necessary, before an outer 
 door was broken open. Abbott, C. J., said, "It is not at present ne- 
 cessary to decide how far in a case of a person charged with felony 
 it would be necessary to make a previous demand of admittance, be- 
 fore you could justify breaking open the outer door of the house : be- 
 cause I am clearly of opinion, that, in the case of a misdemeanor, 
 such previous demand is requisite." Bayley, J., said, generally, " even 
 in the execution of criminal process, you must demand admittance, 
 before you can justify breaking open the outer door. That point was 
 mentioned in the judgment of the court in Burdett v. Mhott."^ The 
 question as to what should be considered as due notice was much con- 
 sidered in a case where two ofBcers went to the workshop of a per- 
 son, against whom they had an escape warrant; and finding the shop 
 door shut, icalled out to the person, and informed him that they had 
 an escape warrant against him, and required him to surrender, other- 
 wise they said they would break open the door; and, upon the per- 
 son's refusing to surrender, they broke open the door, and one of 
 their assistants was immediately killed. Nine of the judges were of 
 opinion, that no precise form of words was required in a case of this 
 kind; and that is sufficient if the party has notice that the officer 
 comes not as a mere trespasser; but claiming to act under a proper 
 authority. The judges who differed, thought that the officers ought 
 to have declared, in an explicit manner, what sort of warrant they 
 had ; and that an escape does not ex vi termini, nor in the notion of 
 law, imply any degree of force, or breach of the peace ; and conse- 
 quently, that the prisoner had not due notice that they came under 
 the authority of a warrant grounded on the breach of the peace ; and 
 that, for want of this due notice, the officers were not to be considered 
 as acting in discharge of their duty, but as mere trespassers.'" 
 
 The general rule both here and in England undoubtedly is, that in 
 every case, whether criminal or civil, in which doors may be broken 
 open in order to make an arrest, there must be a previous notification 
 of the business, and a demand to enter on the one hand, and a refusal 
 on the other, before the assailants proceed to that extremity.* Where, 
 
 • 1 Bus. on Cr. 627. 
 
 2 Post. 320; 1 Bus. P. C. 627, and see also the excellent notes of Messrs. Hare and 
 Wallace to Semayne's case, 1 Smith's Leading Cases, 164. 
 
 3 Lannock v. Brown, 2 B. & A. 592. • Curtis' case, Fost. 135. 
 
 6 Fost. 320; 2 Hawk. P. C, c. 14, s. 1; 2 Hale P. C, 117; Kneass v. Pitler, 2 Serg. 
 it R. 263, 265; Lannock v. Brown, 2 B. & A., 692; Gloyer v. Whittenhall, 6 Hill, 597, 
 
HOW ABRESTS MAT BE MADE, AND HEREIN OP BREAKING DOORS. 85 
 
 however, a party having been arrested escapes into his own house, 
 the ofificer may, without notice, break the outer door, if the pursuit 
 be immediate, and the defendant's conduct such as to imply a waiver 
 of notice.' 
 
 Where a felony has been committed, or a dangerous wound given, 
 the party's house is no sanctuary for him ; and the doors may be forced, 
 after the notification, demand, and refusal, which have been men- 
 tioned.' So, where a minister of justice comes armed with process, 
 founded on a breach of the peace, doors may be broken." And it is 
 also settled, upon unquestionable authorities, that where an injury to 
 the public has been committed, in the shape of an insult to any of 
 the courts of justice, on which process of contempt is issued, the offi- 
 cer charged with the execution of such process may break open 
 doors, if necessary, in order to execute it.'' And the officer may act 
 in the same manner upon a capias utlagatum, or capias pro fine, ^ or 
 upon an habere facias possessionem.^ The same force may be used 
 where a forcible entry or detainer is found by inquisition before jus- 
 tices of peace, or appears upon their view;'' and also where the pro- 
 ceeding is upon a warrant of a justice of peace, for levying a penalty 
 on a conviction grounded on any statute, which gives the whole or 
 any part of such penalty to the king.* But in this latter case the 
 officer executing the warrant must, if required, show the same to the 
 person whose goods and chattels are distrained, and suffer a copy of 
 it to be taken.' 
 
 But though a felony has been actually committed, yet a bare sus- 
 picion of guilt against the party will not authorize a proceeding to 
 this extremity, unless the officer comes armed with a warrant from a 
 magistrate, grounded on such suspicion." For where a person lies 
 under a probable suspicion only, and is not indicted, it is said to be 
 the better opinion, that the breaking open doors without a warrant, 
 in order to apprehend him, cannot be justified;" or must at least be 
 considered as done at the peril of proving that the party, so appre- 
 hended on suspicion, is guilty.'^ But a different doctrine appears to 
 have formerly prevailed upon this point; by which it was held, that 
 if there were a charge of felony laid before the constable, and rea- 
 sonable ground of suspicion, such constable might break open doors, 
 though he had no warrant." 
 
 It is said, that if there be an affray in a house, the doors of which 
 
 CST; state v. Armfield, 2 Hawks, 246; Curtis v. Hubbard, 1 Hill N. Y., 337; Dent v. 
 Haneock, 5 Gill, 120, 126; People v. Hubbard, 24 Wend. 369; State v. Hooker, 17 Ver- 
 mont, 659; Hooker v. Smith, 19 Vermont, 659. 
 » Allen V. Martin, 10 Wend., 300. 
 
 2 Fost. 320; 1 Hale, 459. And see 2 Hawk. P. C, c. 14, g. 7, where it is said that 
 doors may be broken open, where one known to have committed a treason or felony, or 
 to have given another a dangerous wound, is pursued, either with or without a warrant, 
 by a constable or private person. And see De Gondouin v. Lewis, 10 A. & E. 120. 
 
 3 Fost. 320; 1 Hale, 459; 2 Hawk. P. C, c. 14, s. 3; Curtis' case, Fost. 135. 
 
 ' Burdett v. Abbott, 14 East, 157, where the process of contempt proceeded upon the 
 order of the House of Commons; and see Semayne's case, Cro. Eliz. 909; and Brigg's 
 case, 1 Eol. Eep. 336. 
 
 5 1 Hale, 459; 2 Hawk. P. C, c. 14, s. 4. 
 
 « 1 Hale, 458 ; 5 Co. 95 b. '2 Hawk. P. C, c. 14, s. 6. 
 
 8 2 Hawk. P. C, c. 14, s. 5. » 27 Geo. 2, c. 20. 
 
 i» Post. 321. " 2 Hawk. P. C, c. 5, s. 87, p. 322. 
 
 " 1 EaBt, P. C, e. 5, s. 87, p. 322. i^ 1 Hale, 583j 2 Hale, 92; 13 Ed. 4, 9a. 
 
86 HOMICIDE. 
 
 are shut, ■whereby there is likely to be manslaughter or bloodshed, 
 and the constable demand entrance, and be refused by those within, 
 who continue the affray, the constable may break open the doors to 
 keep the peace, and prevent the danger;' and it is also said, that if 
 there be disorderly drinking or noise in a house at an unseasonable 
 time of night, especially in inns, taverns, or alehouses, the constable 
 or his watch demanding entrance, and being refused, may break open 
 the doors to see and suppress the disorder." And further, that where 
 an affray is made in a house in the view or hearing of a constable, or 
 where those who have made an affray in his presence fly to a house, 
 and are immediately pursued by him, and he is not suffered to enter 
 in order to. suppress the affray in the first case, or to apprehend the 
 affrayers, in either case, he may justify breaking open the doors.' 
 
 But this mode of proceeding, by breaking the doors of the party, 
 is founded upon the necessity of the measure for the public weal, and 
 is not permitted to the particular interest of an individual. In civil 
 suits, therefore, the principle that a man's house is his castle, for 
 safety and repose to himself and his family, is admitted ; and accord- 
 ingly, in such cases, an officer cannot justify the breaking open an 
 outward door or window to execute the process.'* If he do so, he 
 will be a trespasser; and if the occupier of the house resist him, and 
 in the struggle kill him, the offence will be only manslaughter; for 
 if the occupier of the house do not know him to be an officer, and 
 have reasonable ground of suspicion that the house is broken with a 
 felonious intent, the killing such officer will be no felony.* 
 
 Sir W. Russell, in the chapter from which the present section is 
 principally drawn, thinks that this rule of every man's house being 
 his castle has been carried as far as the true principles of political 
 justice will warrant, and that it will not admit of any extension.* 
 In this country, however, there is a tendency to extend the line even 
 still farther, it having been held that where one of the family, 
 upon the approach of an officer, ran into the house, attempting un- 
 successfully to close the door, and the officer then forced the door en- 
 tirely open, he was liable to indictment.' 
 
 Outward doors or windows are such as are intended for the secu- 
 rity of the house, against persons from without endeavouring to break 
 in;' but if the officer find the outward door open, or it be opened to 
 him from within, he may then break open any inward door, if he find 
 that necessary in order to execute his process.' Thus, it has been 
 holden that an officer, having entered peaceably at the outer door 
 of a house, was justified in breaking open the door of a lodger, who 
 occupied the first and second floors, in order to arrest such lodger.'" 
 And it has been decided, that a sheriff's officer in execution of mesne 
 process, who had first gained peaceable entrance at the outer door 
 of the house of A., might break open the windows of the room of 
 
 1 2 Hale, 95. 
 
 ^ 2 Hale, 95; and it is added, "This is constantly used in London and Middlesex." 
 But see ara<e, p. 294-5, &o. 
 » 2 Hawk. P. C, 0. 14, s. 8. ■• Cook's case, Cro. Car. 537; Fost. 319. 
 
 '• 1 Hale, 458; 1 East, P. C, o. 5, s. 87, p. 321-2. 
 
 « Fost. 319, 320. ' State v. Armfield, 2 Hawks, 246. s Fost. 320. 
 
 ' 1 Hale, 458; 1 East, P. C, c. 5, s. 87, p. 323. w Lee v. Gansel, Cowp. 1. 
 
ARRESTS, HOW TO BE MADE — BREAKING DOORS. 87 
 
 B., a person residing in such Louse; B. having refused to open the 
 door of the room, after being informed by the officer that he had a 
 warrant against him.* It was once thought that if the party, against 
 whom the process is issued, be not within the house at the time, the 
 officer can only justify breaking open doors in order to search for him; 
 after having first demanded admittance,^ but it has been since ruled 
 that in case the person, or the goods of the defendant, are contained in 
 the house which the officer has entered, he may break open any door 
 within the house without any further demand.^ If, however, the house 
 is the house of a stranger, and not of the defendant, the officer must 
 be careful to ascertain that the person or the goods (according to the 
 nature of the process) of the defendant are within, before he breaks 
 open any inner door; as if they are not, he will not be justified.'' 
 
 In a case where an outward door was in part open (being divided 
 into two parts, the lower hatch of which was closed, and the upper 
 part open) and the officer put his arm over the hatch, to open the part 
 which was closed, upon which a struggle ensued between him and a 
 friend of the prisoner, and, the officer prevailing, the prisoner shot 
 at and killed him; it was held to be murder/ 
 
 The privilege only extends to the dwelling-house, but it should 
 seem that within that term are comprehended all such buildings as 
 are within the curtilage, and as are considered as parcel of the dwell- 
 ing-house at common law. In trespass the defendant justified an 
 entry into a close and breaking into a barn under a fieri facias ; the 
 plaintiff replied that the door of the barn was shut, and it was 
 adjudged upon demurrer that in such a case the sheriff can break open 
 the door of the barn without a request, in order to take the goods; 
 for it shall be intended to be a barn in a field, and not a barn which 
 is parcel of a house. For the court agreed that if the barn had been 
 adjoining to and parcel of the house, it could not be broken open.^ 
 
 This personal privilege of an individual, in respect to his outer 
 door or window, is confined also to cases where the breach of the 
 house is made in order to arrest the occupier or any of his family, 
 who have their domicile, their ordinary residence, there: for if a 
 stranger, whose ordinary residence is elsewhere, upon a pursuit, take 
 refuge in the house of another, this is not the castle of such stranger, 
 nor can he claim in it the benefit of sanctuary.^ But it should be ob- 
 
 1 Lloyd V. Sandilands, 2 Moore, 207 ; 8 Taunt. 250. See Hodgson v. Towning, 5 Dowl . 
 P. R. 410. 
 
 2 Ratcliffe v. Burton, 3 Bos. & Pull. 223. 
 
 3 Per Gibbs, J., in Hutchinson v. Birch et al., 4 Taunt. 619. 
 
 * Cook V. Birt, 5 Taunt. 765; Johnson v. Leigh, 6 Taunt. 246. 
 
 5 Baker's case, 1 Leach, 112; 1 East, P. C, c. 5, s. 87, p. 323. It should be observed, 
 that in this case there was proof of a previous resolution in the prisoner to resist the 
 officer, whom he afterwards killed in attempting to attach his goods in his dwelling- 
 house, in order to compel an appearance in the county court. The point reserved re- 
 lated to the legality of the attachment. See 1 Bus. on Cr. 617. 
 
 6 Penton v. Browne, 1 Sid. 186. See the authorities as to what is comprehended under 
 the term dwelling-house at common law. Wh. Cr. Law, 2d ed., 516, 535. 
 
 ' Post. 320 ; 5 Co. 93. Mr. Smith, in his learned note to Semayne's case, 1 Sm. Lead. 
 C. 45, after citing the observations of Lord Loughborough in Sheere v. Brookes, 2 H. 
 Bl. 120, says, "It seems to follow from this, that, as a house in which the defendant 
 habitually resides is on the same footing with respect to executions as his own house, 
 the sheriff would not be justiBed in breaking the outer door of such a house, even after 
 demand of admittance and refusal." 
 
88 HOMICIDE. 
 
 served, that in all cases where the doors of strangers are broken open, 
 upon the supposition of the person sought being there, it must be at 
 the peril of finding him there; unless, as it seems, where the parties 
 act under the sanction of a magistrate's warrant.' And an ofEcer 
 cannot even enter the house of a stranger, though the door be open, 
 for the purpose of taking the goods of a defendant, but at his peril 
 as to the goods being found there or not; and if they be not found 
 there, he is a trespasser.^ And it has been decided that a sheriff can- 
 not justify breaking the inner doors of the house of a stranger, upon 
 suspicion that a defendant is there, in order to search for such defen- 
 dant, and arrest him on mesne process.^ 
 
 And the privilege is also confined to arrests in the first instance. 
 For if a man, being legally arrested," escape from the ofBcer, and 
 take shelter, though in his own house, the officer may, upon fresh 
 suit, break open doors in order to retake him, having first given due 
 notice of his business, and demanded admission, and been refused.* 
 If it be not, however, upon fresh pursuit, it seems that the officer 
 should have a warrant from a magistrate ; and it should be observed, 
 that the officer will not be authorized to break open doors in order 
 to retake a prisoner in any case where the first arrest has been ille- 
 gal.° Therefore, where an officer had made an illegal" arrest on civil 
 process, and was obliged to retire by the party's snapping a pistol at 
 him several times, and afterwards returned again with assistants, 
 who attempted to force the door, when the party within shot one of 
 the assistants; it was ruled to be only manslaughter.' 
 
 In all cases where the officer or his assistants, having entered a 
 house in the execution of their duty, are locked in, they may justify 
 breaking open the doors to regain their liberty.' So where a sheriff 
 being lawfully in a house makes a lawful seizure of the goods of the 
 owner of the house, and cannot take the goods out of the house with- 
 out opening the outer door, and neither the owner nor any one else 
 
 1 2 Hale, 103; Post. 321; 1 East, P. C, u. 5, o. 87, p. 324. Mr. Smith, in the same 
 note, says, " There may, perhaps, be another case in which the sheriff might justify en- 
 tering the house of a stranger, upon bare suspicion, viz., if the stranger were to use 
 fraud, and to inveigle the sheriiF into a belief that the defendant was concealed in his 
 house for the purpose of favouring his escape, while the officers should be detained in 
 searching, or for any other reason, it might be held that he could not take advantage of 
 his own deceit so as to treat the sheriff who entered under the false supposition thus in- 
 duced, as a trespasser; or, perhaps, such conduct might beheld to amount to a license 
 to the sheriff to enter." It certainly is reasonable in such a case, that the party should 
 not be permitted to show that in fact tlie defendant was not concealed in this house, and 
 this would be in accordance with the principle established by Pickard v. Sears, 6 A. & 
 E, 469; Heane v. Rogers, 9 B. & C. 586; Kieran w. Sanders, 6 A. & E. 515; and Gregg 
 V. Wells, 10 A. & E. 90 — ^in which last case it was held that a party who negligently or 
 culpably stands by and allows another to contract on the faith and understanding of a 
 fact which he can contradict, cannot afterwards dispute that fact in an action against the 
 person whom he has himself assisted in deceiving. See 1 Rus. on Cr. 632. 
 
 '' Cooke V. Birt, 6 Taunt. 765. See 1 Russ. on Cr. 632, from whence this section is 
 taken. 
 
 ' Johnson v. Leigh, 6 Taunt. 240. 
 
 ' Laying hold of the prisoner, and pronouncing tlie words of arrest, is an actual arrest, 
 Fost. 320. But bare words will not make an arrest: the officer must actually touch the 
 prisoner. Genner v. Sparkes, 1 Salk. 79; Berry v. Adamson, 6 B. & C. 528. 
 
 ' Fost. 320; Genner v. Sparkes, 1 Salk. 79; 1 Hale, 459; 2 Hawk. P. C. o 14 s. 9 
 See Allen v. Martin, 10 Wend. 300. 
 
 « 1 East, P. C., c. 5, s. 87, p. 324. ' Stevenson's case, 10 St. Tr. 402 
 
 » 2 Hawk. P. C, c. 14, s. 11 ; 1 East, P. C, c. 5, s. 87, p. 324. 
 
HOW FAR THIRD PARTIES MAY RESIST ARRESTS, ETC 89 
 
 is there so that he can request them to open the door, he may break 
 the door open to take out the goods.' It is enough to make the she- 
 riff, in a civil case, a trespasser, that the outer door be shut, for the 
 mere opening, as has been ruled in New York, is a breaking in law, 
 whether it be the bursting of a bolt, the lifting of a latch, or the sliding 
 down of a window fastened by pulleys.^ Whatever is breaking ^in 
 burglary, is breaking in the present connexion.^ 
 
 TI. HOW FAR THIRD PARTIES MAT RESIST. 
 
 The leading case decided under this head is as follows: — One Bray, 
 who was a constable of St. Margaret's parish in Westminster, came 
 into the parish of St. Paul, Covent Garden, where he was no con- 
 stable, and consequently had no authority, and there took up one 
 Anne Dekins, under suspicion of being a disorderly person, but who 
 had not misbehaved herself, and against whom Bray had no warrant. 
 The prisoners came up; and, though they were all strangers to the 
 woman, drew their swords, and assaulted Bray, for the purpose of 
 .rescuing the woman from his custody; upon which he showed them 
 his constable's staff, declared that he was about the Queen's business, 
 and intended them no harm. The prisoners then put up their swords; 
 and Bray carried the woman to the round-house in Covent Garden. 
 A short time afterwards, the woman being still in the round-house, 
 the prisoners drew their swords again, and assaulted Bray, on account 
 of her imprisonment, and to get her discharged. Bray called some 
 persons to his assistance, to keep the woman in custody, and to defend 
 himself from the violence of the prisoners; upon which a person 
 named Dent came to his assistance; and before any stroke received, 
 one of the prisoners gave Dent, while assisting the constable, a mor- 
 tal wound. ■This case was elaborately argued ; and the judges were 
 divided in opinion; seven of them holding that the offence was man- 
 slaughter only, and five that it was murder. The seven judges who 
 held that it was manslaughter thought that it was a sudden action, 
 without any precedent malice or apparent design of doing hurt, but 
 only to prevent the imprisonment of the woman, and to rescue her 
 who was unlawfully restrained of her liberty; and that it could not 
 be murder, if the woman was unlawfully imprisoned; and they also 
 thought that the prisoners, in this case, had sufficient provocation: 
 on the ground that if one be imprisoned upon an unlawful authority, 
 it is a sufficient provocation to all people, out of compassion, and 
 much more where it is done under a colour of justice;^ and that, 
 where the liberty of the subject is invaded, it is a provocation to all 
 the subjects of England. But the five judges who differed thought 
 that, the woman being a stranger to the prisoners, it could not be a 
 provocation to them; otherwise if she had been a friend or servant; 
 and that it would be dangerous to allow such a power of interference 
 to the mob.* 
 
 In Hugget's case,^ which was relied on in the foregoing, it appeared 
 
 1 Push V. Griffith, 7 A. & E. 827. 
 
 2 Curtis V. Hubbard, 1 Hill N. Y. R. 337; 4 Ibid. 437. 
 
 8 See Wh. C. L. (2d ed.) 512. ■• R. v. Tooley, 2 Ld. Raym. R. 96. 
 
 ' See 1 Russ. on Cr. 633. « Hugget's case, Kel. 59. 
 
90 HOMICIDE. 
 
 that Berry and two others pressed a man without any warrant for so 
 doing; to which the man quietly submitted, and went along with 
 them. The prisoner with three others, seeing them, instantly pursued 
 them, and required to see their warrant; on which Berry showed 
 them a paper, which the prisoner and his associates said was no war- 
 rant, and immediately drew their swords to rescue the impressed man, 
 and thrust at Berry; whereupon Berry and his two companions drew 
 their swords, and a figit ensued, in which Hugget killed Berry. But 
 this case is stated very differently by Lord Hale, as having been 
 under the following circumstances: — A press-master seized B. for a 
 soldier; and, with the assistance of C, laid hold of him. D. finding 
 fault with the rudeness of C, there grew a quarrel between them, 
 and D. killed C; and by the advice of all the judges, except very 
 few, it was held to be but manslaughter.' In the opinion of Foster, 
 J., whose views on this point are even peculiarly authoritative, the 
 cases just cited, with that of Sir Henry Ferrers,'^ did not warrant the 
 doctrine laid down by the seven judges in the case of Tooley; and 
 he has animadverted upon that doctrine with much force, viewing it 
 as having carried the law in favour of private persons officially inter- 
 posing in case of illegal arrest further than sound reason, founded 
 on the principles of true policy, will warrant.^ After observing that, 
 in Hugget's case, swords were drawn, a mutual combat ensued, the 
 blood was heated before the mortal wound was given, and a rescue 
 seemed to be practicable at the time the affray began ; whereas, though 
 in Tooley's case the prisoners had, at the first meeting, drawn their 
 swords against the constable unarmed, they had put them up again, 
 appearing to be pacified, and cool reflection seeming to have taken 
 place; and it was at the second meeting that the deceased received 
 his death wound, before a blow was given or offered by him or any 
 of his party; and also in that case there was no possibility of rescue, 
 the woman having been secured in the round-house; he says that the 
 second assault on the constable seems rather to have been grounded 
 upon resentment, or a principle of revenge for what had before passed, 
 than upon hope or endeavour to assist the woman. He then pro- 
 ceeds, "Now, what was the case of Tooley and his accomplices, stript 
 of a pomp of words, and the colourings of artificial reasoning? They 
 saw a woman, for aught appears, a perfect stranger to them, led to 
 the round-house under a charge of a criminal nature. This, upon evi- 
 dence at the Old Bailey, a month or two afterwards, comes out to be 
 an illegal arrest and imprisonment, a violation of Magna Charta; and 
 these ruffians are presumed to have been seized, all on a sudden, 
 with a strong fit of zeal for Magna Charta and the laws; and in this 
 frenzy to have drawn upon the constable, and killed his assistant. 
 It is extremely difficult to conceive that the violation of Magna Char- 
 ta, a fact of which they were totally ignorant at that time, could be 
 the provocation which led them into this outrage. But, admitting 
 for argument sake that it was, we all know that words of reproach, 
 how grating and offensive soever, are in the eye of the law no pro- 
 vocation in the case of voluntary homicide; and yet every man who 
 hath considered the human frame, or but attended to the workings of 
 
 » 1 Hale, 456. ' Cro. Car. 378. » Fost. 312, et seq. 
 
HOW FAR THIRD PARTIES MAT RESIST ARRESTS, &C. 91 
 
 his own heart, knows that affronts of that kind pierce deeper, and 
 stimulate the veins more effectually, than a slight injury done to a 
 third person, though under the colour of justice, possibly can. The 
 indignation that kindles in the breast in one case is instinct, it is hu- 
 man infirmity; in the other it may possibly be called a concern for 
 the common rights of the subject; but this concern, when well found- 
 ed, is rather founded in reason and cool reflection, than in human 
 infirmity; and it is to human infirmity alone that the law indulges in 
 the case of a sudden provocation. By this great authority Tooles' 
 case was greatly shaken, and it may now be considered as entirely 
 overruled.' Or if a person present at an affray interfere for the pur- 
 pose of restraining the offenders and keeping the peace, and be 
 killed;^ or, if a person present when another attempts to commit a 
 treason or felony, lay hold of him in order to prevent him, and be 
 killed;' the killing in these cases would, be murder, whether the per- 
 son arresting or interfering, &c., be a constable or not; for either 
 has power to arrest or interfere, &c., in such a case."' 
 
 If the party who is arrested yield himself and make no resistance, 
 but others endeavour to rescue him, and he do no act to declare his 
 joining with them, if those who come to rescue him kill any of the 
 bailiffs, this is murder in them, but not in the party arrested; but 
 not so if he do any act to countenance the violence of the rescuers.' 
 Thus, when J. having committed a robbery, was pursued by the 
 country upon hue and cry, and J. turned upon his pursuers, (others of 
 the robbers being in the same field, and having often resisted the 
 pursuers,) and refusing to yield, killed one of the pursuers; it was 
 held, that inasmuch as all the robbers were of a company and made 
 a common resistance, and so one animated the other, all those of the 
 company of the robbers that were in the same field, though at a dis- 
 tance from J., were principals, viz., present, aiding and abetting; and 
 it was also held, that one of the malefactors who was apprehended a 
 little before the party was hurt, being in custody when the stroke 
 was given, was not guilty, unless it could be proved that after he 
 was apprehended he had animated J. to kill the party.* 
 
 If a constable take a man without a warrant, upon a charge which 
 gives him no authority to do so, and the prisoner run away, and is 
 pursued by J. S., who was with the constable all the time, and 
 charged by him to assist, and the man kill J. S., it is manslaughter 
 only, because the arrest was illegal, and J. S., ought to have known 
 it; and, therefore, the attempt to retake the prisoner was illegal also.' 
 
 It is agreed, says Sir Wm. Russell, that if a bailiff or other officer 
 be resisted in the regular discharge of his duty in executing process 
 against a party, and a third person, even the servant or friend of the 
 party resisting come in and take part against the officer, and kill 
 him, it will be murder, though he knew him not.^ But it is sug- 
 
 ' R. V. Warner, E. & M. C. C. R. 385. 
 
 = 3 Inst. 52; 1 Hawk. c. 31, s. 21; Post. 310, 311 ; State v. Ferguson, 2 Hill, S. C. 
 R 619 ^2 Hawk. c. 14, s. 19. 
 
 '* R. V. Hunt, 1 Mood. C. C. 93; R. u. Curvan, 3 C. & P. 397; R. v. Price, 8 C. & P. 
 282; and R. v. Weir, 1 B. & C. 261. 
 
 5 Kel. 87; R. v. Whithorne, 3 C. & P. 394. 
 
 « Jackson's case, 1 Hale, 464, 465. ' R. v. Curwon, 1 Mood. C. C. 132. 
 
 8 1 Hawk. c. 31; 4 Co. 40 b. 
 
92 HOMICIDE. 
 
 gested, that in this case, in order to make it murder in the servant or 
 friend, the party whom they came in to assist must have had due no- 
 tice of the officer's authority; and that if the offence would not have 
 been murder in the party himself resisting for Avant of such notice, 
 neither would it in the servant or friend under the like ignorance.' 
 The law upon this point may, perhaps, hardly seem to be reconcila- 
 ble with that above-mentioned, of a person not knowing the consta- 
 ble, and killing him in an affray; but it is defended on the principle, 
 that every person wilfully engaging in cool blood, in a breach of the 
 peace, by assaulting another, instead of endeavouring to assuage the 
 dispute, is bound iirst to satisfy himself of the justice of the cause 
 he espouses at his peril.* And, upon this principle, if a stranger see- 
 ing two persons engaged, one of them a bailiff, attacking the other 
 with a sword, and the other resisting an arrest by such bailiff, inter- 
 fere between them without knowing the bailiff, for the express pur- 
 pose of defending the pariy attacked against the bailiff, he must abide 
 the consequences at his peril ; but if he interfere, not for the purpose 
 of aiding one party against the other, but with intent only to preserve 
 the peace, and prevent mischief, and in so doing happen to kill the 
 bailiff, the case would possibly fall under a different consideration.' 
 
 1 1 East, p. C, c. 5, s. 82, p. 316. 
 
 2 1 Hawk. c. 31, s. 57; 1 East, P. C, c. 5, s. 82, p, 316. 
 
 3 1 Kus. P. C. 627. 
 
INFANTICIDE. 93 
 
 CHAPTER VI. 
 
 INFANTICIDE AND SELF-MURDER. 
 
 I. Infanticide. 
 
 To kill a child in its mother's womb, is no murder ; but if the child 
 be born alive, and die after birth through the potion or bruises it re- 
 ceived in the womb, it is murder in the person who administered or 
 gave them.' Where, also, a blow is maliciously given to a child 
 whilst in the act of being born, as, for instance, upon the head as soon 
 as the head appears, and before the child has breathed, it will be 
 murder if the child is afterwards born alive, and dies thereof.^ If 
 the child has been wholly produced from the body of its mother alive, 
 and she wilfully and of malice aforethought strangle it while it is 
 alive, and has an independent circulation of its own, this is murder, 
 although the child be still attached to its mother by the umbilical 
 cord.^ _ But it must be proved that the entire child has actually been 
 born into the world in a living state ; and the fact of its having 
 breathed, as will be in a moment seen, is not a conclusive proof 
 thereof.* 
 
 If a person intending to procure abortion, does an act which causes 
 a child to be born so much earlier than the natural time, that it is 
 born in a state much less capable of living, and afterwards dies, in 
 consequence of its exposure to the external world, the person who by 
 this misconduct, so brings the child into the world, and puts it there- 
 by in a situation in which it cannot live, is guilty of murder ; and the 
 mere existence of a possibility that something might have been done 
 to prevent the death, would not render it less .murder.* 
 
 A principle of much importance bearing on this question, and one 
 that has been more fully discussed in a previous chapter in its gene- 
 ral relations, is, that if a person do any act towards another, who is 
 helpless, which must, necessarily, lead to the death of that other, the 
 crime amounts to murder ; but, if the circumstances are such that the 
 person would not have been aware that the result would, be death, 
 that would reduce the crime to manslaughter, provided the death 
 was occasioned by an unlawful act, but not such an act as showed a 
 malicious mind.* Thus, where a woman left her child, a young in- 
 fant, at a gentleman's door, or other place, where it was likely to be 
 found and taken care of, and the child died, it would be manslaughter 
 
 1 3 Inst. 50; see Wh. C. L. (3d edit.,) 407, 408, 426. 
 
 » R. V. Senior, 1 Mood. C. C. 346; 3 Inst. 50; 1 Hawk. P.C., c. 31, s. 16; 4 Bl. Com. 
 198; 1 East, P. C, c. 5, s. 14, p. 228; contra, 1 Hale, 432; and Staundf. 21. But the 
 reasons on which the opinions of the two last writers seem to he founded, namely, the 
 difficulty of ascertaining the fact, cannot be considered as satisfactory, unless it be sup- 
 posed that such fact never can be clearly established. 
 
 ' R. V. Trilloe, 1 Car. & Mars. 650; Post, 192-194. 
 
 * R. V. Sellis, 1 Mood. C. C. 850 ; Post, 192-194. 5 r. j,. -vVest, 2 Car. & K. 783. 
 
 6 R. V. Watters, 1 Car. & Mars. 164; 2 Lew. 220. 
 *. 
 
94 HOMICIDE. 
 
 only ; but if the child were left in a remote place, where it was not 
 likely to be found, that is, on a barren heath, and the death of the 
 child ensued, it would be murder.' So, if a seaman be in a state of 
 great debility and exhaustion, so that he cannot go aloft without 
 danger of death or enormous bodily injury, and the facts are known 
 to the master,, who, notwithstanding, compels the seaman, by moral 
 or physical force, to go aloft, persisting with brutal malignity in such 
 course, and the seaman falls from the mast, and is drowned thereby, 
 and his death is occasioned by such misconduct in his master; under 
 such circumstances it is murder in the master. If there be no malice 
 in the master, the crime is reduced to manslaughter.^ 
 
 Much difi&cultyis likely to arise on the question whether the death 
 took place after the child was actually born, or whilst it was in the 
 progress of being born; and although the law be clear that a child 
 must be actually born to be the subject of murder, it is hardly to be 
 considered as settled what constitutes actual birth for this purpose. 
 
 Thus, where the first count of an indictment charged that the 
 prisoner, being big with a female child, did bring forth the said child 
 alive, and did afterwards strangle it, and other counts varied the 
 statement of the mode of death, but all of them stated the birth of 
 the child as above-mentioned; and it appeared that the dead body of 
 the child was found concealed under the prisoner's bed, with a ribbon 
 tied tightly round the neck, and the evidence of the medical wit- 
 nesses left it in doubt whether the ribbon was tied round the neck, 
 and the child strangled by it, during the progress of birth, or after 
 the child was fully born, but before the umbilical cord was severed; 
 and it was submitted that a child could not be the subject of murder 
 till it had a completely independent circulation, and had been wholly 
 detached from the mother; that the term "born alive" meant the 
 being completely separated from the mother, and having a completely 
 independent circulation; and a child would not have an independent 
 circulation for some time after it was completely brought forth, un- 
 less the umbilical cord was divided. Parke, B., said, "It has been 
 frequently so said in cases where the death has been caused by suffo- 
 cation, or other injuries, which might have occurred in the course of 
 unassisted delivery, but I should like to know whether there is any 
 case where it has been so held where a wilful wound has been in- 
 flicted during the birth of a child. At all events, this indictment will 
 not be supported, unless it be shown that the child was completely 
 born, as it is distinctly averred that the child was brought forth be- 
 fore it was strangled." And in summing up, the very learned baron 
 said, "Whether there might be any question on a count differently 
 framed, it is not necessary to say; perhaps there might not; but in 
 order to convict on the first count you must be satisfied that the 
 whole body of the child had come forth from the body of the mother 
 when the ligature was applied. If you think that the child was not 
 killed after it came forth, you will acquit. I think it is essential 
 that it should have been wholly produced. But supposing you should 
 be of opinion that the child was strangled intentionally, while it was 
 connected by the umbilical cord to the mother, and after it was wholly 
 
 ^ Ibid. 2 U. S. V. Freeman, 4 Mason's C. C. R. 505. 
 
INFANTICIDE. 95 
 
 produced, in that case I should put the matter into a course of fur- 
 ther inquiry, directing you to convict the prisoner, and reserving the 
 point for a higher tribunal; my present impression being, that it 
 would be murder, if those were the facts of the case.'" Shortly 
 afterwards, upon this case being cited, the prisoner's counsel ad- 
 mitted, that it did not go to the length of deciding that the child 
 must have a separate independent existence from that of the mother, 
 in order to make the killing of it murder; Vaughan, J., said, "I 
 should have been very much surprised if it had, because, if that were 
 the law, the child and the after-birth, might be completely delivered, 
 and yet, because the umbilical cord was not separated, the child might 
 be knocked on the head and killed, without the party who did it being 
 guilty of murder."^ 
 
 Where, upon an indictment containing a count for murder by stab- 
 bing, and a count charging that before the child was completely born 
 the prisoner stabbed it with a fork, and that it was born, and then 
 died of the stab, it was proved that a puncture was found on the 
 child's skull, but when that injury was inflicted did not appear, and 
 some questions were asked as to whether the child had breathed. 
 Parke, J., said, " the child might breathe before it was born; but its 
 having breathed is not sufficiently life to make the killing of the 
 child murder; there must have been an independent circulation in 
 the child, or the child cannot be considered as alive for this pur- 
 pose."^ 
 
 Where, on an indictment alleging that the prisoner was delivered 
 of a child, and that she afterwards strangled it, it appeared that the 
 child which was found concealed, had breathed, but the medical men 
 could not say when it had breathed, whether during the birth or after- 
 wards; Littledale, J., told the jury "the being born must mean that 
 the whole body is brought into the world, and it is not sufficient that 
 the child respires in the progress of the birth."* 
 
 In a case which has already been noticed, the prisoner was indicted 
 for the murder of her child by cutting off its head, and a surgeon 
 stated that he was enabled to say decidedly thatthe child had breathed, 
 but he could not swear that the whole body of the child was born 
 when the act of breathing took place. Coltman, J., said, "in order 
 to justify a conviction for murder, you must be satisfied that the entire 
 child was actually born into the world in a living state. The fact of 
 its having breathed is not a decisive proof that it was born alive; it 
 may have breathed, and yet died before birth.'" It is clear, how- 
 ever, if a child be actually wholly produced alive, it is not necessary 
 that it should have breathed to make it the subject of murder. Upon 
 an indictment for the murder of a child, where it appeared that the 
 dead body of the child was found in a river, and it was proved by two 
 surgeons that it had never breathed; Park, J. A. J., said, "A child 
 must be actually wholly in the world in a living state to be the sub- 
 ject of a charge of murder ; but if it has been wholly born, and is alive, 
 it is not essential that it should have breathed at the time it was killed, 
 
 ' R. c. Crutohley, 7 C. & P. 814. = R. v. Reeves, 9 C. & P. 25. 
 
 » R. V. Enock, 5 C. & P. 539; R. v. Wright, 9 C. & P. 754. ^ „ „^„ 
 
 « R. V. Poulton, 5 C. & P. 329. » r. r. Sellis, 7 C. & P. 850. 
 
96 HOMICIDE 
 
 as many children are born alive, and yet do not breathe for some time 
 after their birth.'" 
 
 In 1848, a case arose in which it was evident that the intent was 
 to produce an abortion, and the result of the attempt was, that the 
 child was produced into the world at such a stage of gestation that 
 it could not live, and died six hours after birth. This was held to 
 be murder. It was proved by Sarah Henson, the mother, on whom 
 thq operation had been performed, that she, a single woman, being 
 with child, went to the house of the prisoner, and having informed 
 her of her pregnancy, underwent an operation of the nature described 
 in the indictment. This operation was repeated on several days, and 
 she was shortly afterwards delivered of a male child; she being then 
 six months advanced in her pregnancy. The child was born alive, 
 but died about five hours afterwards. A medical witness stated that 
 there were no unusual appearances on the body of the child, — that 
 it was a healthy child; but that, being born at that period of gesta- 
 tion, it was impossible that it could live any considerable length of 
 time separated from the womb of the mother. It was incapable of 
 maintaining a separate and independent existence. This witness fur- 
 ther said — "Judging from the healthy appearance of the child, I can- 
 not suppose that the premature delivery was spontaneous. The ope- 
 rations described by Henson would naturally and probably produce 
 that premature delivery. It might be produced by a fall or any sud- 
 den shock received by the mother; but in this case, I have no doubt 
 that it was, in fact, produced by the act of the prisoner." Miller, 
 for the prisoner, said : The oifence of murder is not proved. The 
 killing of an infant in its mother's womb is confessedly not murder; 
 but on the authority of Rex v. Senior, 1 M. C. C. 346, it appears to 
 be laid down by the text-writers as the better opinion, that if an 
 injury be received by the child in the womb, and the child afterwards 
 born alive, dies of that injury, it is murder or manslaughter, accord- 
 ing to the circumstances of the case. Maule, J. — That opinion is 
 founded on the authority of Blackstone.^ Miller. — There must be an 
 assault upon the child; that circumstance appeared in the case of 
 Rex«. Senior, but is wanting here. The death of the child was caused, 
 if at all by the prisoner, by her bringing it to life. If the act of 
 the prisoner had killed the child in the womb, it would not have 
 been murder; can it be more so because the child was by the same 
 act brought to life? There is a statute which expressly provides a 
 punishment for the prisoner's offence.^ Mellor, for the prosecution. 
 — This is murder. If an injury is inflicted upon a child, which causes 
 its death en ventre sa mire, it is not murder; but if the child is born 
 alive, and dies afterwards in consequence of an injury received in 
 the womb by the unlawful act of the prisoner, that is murder. It 
 does not appear that the body of the child received any direct injury 
 from the operations performed by the prisoner; but it is born at a 
 time when it cannot maintain for any considerable length of time an 
 existence separate from the mother; and that premature delivery is 
 caused by the felonious act of the prisoner. The act of the prisoner, 
 
 ' R. D. Brain, 6 C. & P. 349. ' 4 Com. o. 14, and Coke, 3 Ints. 50. 
 
 s The Stat. 7 Will. 4, and 1 Vic. c. 85. 
 
INFANTICIDE. 97 
 
 being done ■with intent to procure abortion, is made felonious by 7 
 Will. 4, and 1 Vict. c. 85, s. 6 ; and being engaged in that felonious 
 transaction, the prisoner thereby caused the premature delivery of 
 Sarah Henson, and the consequent death of the child. The case of 
 Rex V. Senior, although a case of manslaughter only, recognises the 
 distinction upon which this case depends. Maule, J. — There is a 
 case for the jury. I think, that if, by the felonious act of the pri- 
 soner, the child was put into a situation in which he could not live, it 
 is murder. Miller then addressed the jury on the facts. Maulb, J., 
 (in summing up,) said — The prisoner is charged with murder ; and the 
 means stated are, that the prisoner caused the premature delivery 
 of the witness Henson, by using some instrument for the purpose of 
 procuring abortion; and that the child so prematurely born was, in 
 consequence of its premature birth, so weak that it died. This, no 
 doubt, is an unusual mode of committing murder; and some doubt 
 has been suggested by the prisoner's counsel, whether the prisoner's 
 conduct amounts to that offence ; but I am of opinion (and I direct 
 you in point of law,) that if a person intending to procure abortion, 
 does an act which causes a child to be born so much earlier than the 
 natural time, that it is born in a state much less capable of living, and 
 afterwards dies in consequence of its exposure to the external world, 
 the person who by her misconduct so brings the child into the world,, 
 and puts it in a situation in which it cannot live, is guilty of murder. 
 The evidence seems to show clearly that the death of the child was 
 thereby occasioned by its premature birth ; and if that premature de- 
 livery was brought on by the felonious act of the prisoner, then the of- 
 fence is complete. His Lordship then read the evidence, and, in con- 
 clusion, said : — If the child, by the felonious act of the prisoner, was 
 brought into the world, in a state in which it was more likely to die 
 than it would have been if born in due time, and did die in consequence, 
 the offence is murder ; and the mere existence of a possibility that 
 something might have been done to prevent the death, would not ren- 
 der it less murder. If, therefore, you are satisfied, to the conclusion 
 of any reasonable doubt, that the prisoner, by a felonious attempt to 
 procure abortion, caused the child to be brought into the world, for 
 which it was not then fitted, and that the child did die in consequence 
 of its exposure to the external world, you will find her guilty ; if you 
 entertain a reasonable doubt as to the facts, you will, of course, find 
 her not guilty.^ 
 
 The concealment of the death of bastard children, and the produc- 
 tion of abortion, as independent offences, fall not within the province 
 of the present work. 
 
 I R. V. West, 2 Car. & Kir. 786—787. 
 
98 HOMICIDE. 
 
 II. Self-Murder. 
 
 Self-murder is subject to human punishment only in respect to its 
 accessaries. So far as the latter are concerned, they are guilty of 
 murder, whether their agency consisted in advice or in assistance. Thus, 
 a person killing another, upon his desire or command, is guilty of mur- 
 der ; though in such case the person killed is not looked upon as a felo 
 de se, inasmuch as his assent, being against the laws of God and man, 
 was void. And where two persons agree to die together, and one of 
 them, at the persuasion of the other, buys poison and mixes it in a po- 
 tion, and both drink of it, and he who bought and made the potion sur- 
 vives by using proper remedies, and the other dies ; it is said to be the 
 better opinion, that he who dies shall be adjudged a felo de se, because 
 all that happened was originally owing to his own wicked purpose, and 
 the other only put it in his power to execute it in that particular man- 
 ner. ' If a man, attempting to kill another, miss his blow and kill him- 
 self,^ or intending to shoot at another, mortally wound himself by the 
 bursting of the gun,' he is felo de se; his own death being the conse- 
 quence of an unlawful malicious act towards another. It has also been 
 said, that if A. strike B. to the ground, and B. draw a knife and hold 
 it up for his own defence, and A. in haste falling upon B. to kill him, 
 fall upon the knife and he thereby killed, A. is felo de se; ^ though if 
 a man encourages another to murder himself, and he is present abetting 
 him while he does so, such man is guilty of murder as principal. If two 
 encourage each other to murder themselves together, and one does so, 
 and the other fails in the attempt upon himself, he is a principal in 
 the murder of the other.^ Thus, in a case which came before the s* 
 preme court of Massachusetts, the court said, "The government is not 
 bound to prove that Jewett" (the deceased) "would have hung him- 
 self had Bowen's" (the defendant's) "counsel never reached his ears. 
 The very act of advising to the commission of a crime is of itself 
 unlawful. The presumption of law is, that advice has the influence 
 and effect intended by the adviser, unless it is shown to have been 
 otherwise ; as that the counsel was received with scoff, or was mani- 
 festly rejected and ridiculed at the time it was given. It was said in 
 the argument, that Jewett's abandoned and depraved character fur- 
 nishes ground to believe that he would have committed the crime with- 
 out such advice from Bowen. Without doubt he was a hardened and de- 
 
 1 1 Hawk, P. C, c. 27, s. 6; Keilw. 136 ; Moor, 754. 
 2 1 Hale, 412. 3 j jjawk. P. C, c. 27, s. 4 
 
 * 3 Inst. 54; Dalt. c. 144; though see 1 Hale, 412. 
 
 5 E V. Dyson, Euss. & Ey. C. C. R. 528 ; E. v. Allison, 8 Car. & Payne, 418 ; see Wh 
 C. L., (3ded.)114, 432. o' > > 
 
SELP-MUEDEE. 99 
 
 praved wretch. But it is a man's nature to revolt at the idea of self- 
 destruction. Where a person is predetermined upon the commission 
 of this crime, the seasonable admonitions of a discreet and respectful 
 friend would probably tend to overthrow his determination. On the 
 other hand, the counsel of an unprincipled wretch, stating the heroism 
 and courage the self-murderer displays, might induce, encourage, and 
 fix the attention, and ultimately procure the perpetration of the 
 dreadful deed. And if other men would be influenced by such ad- 
 vice, the presumption is that Jewett was so influenced. He might 
 have been influenced by many powerful motives to destroy himself. 
 Still the inducements might have been insufficient to procure the ac- 
 tual commission of the act, and one word of additional advice might 
 have turned the scale. If you are satisfied that Jewett, previously 
 to any acquaintance or conversation with the prisoner, had deter- 
 mined within himself, that his own hand should terminate his exist- 
 ence, and that he esteemed the conversation with the prisoner, so far 
 as it afi"ected himself, mere idle talk, let your verdict say so. But if 
 you find the prisoner encouraged, and kept alive motives previously 
 existing in Jewett's mind, and suggested others to augment their in- 
 fluence, you will decide accordingly. It may be thought singular 
 and unjust, that the life of a man should be forfeited merely because 
 he has been instrumental in procuring the murder of a culprit within 
 a few hours of death by the sentence of the law. But the community 
 has an interest in the public execution of criminals; and to take such 
 a one out of the reach of the law is no trivial ofi'ence. Farther, 
 there is no period of human life which is not precious as a season of 
 repentance. The culprit, though under sentence of death, is cheered 
 by hope to the last moment of his existence. And you are not to con- 
 sider this atrocity of the ofi'ence in the least degree diminished by the 
 consideration that justice was thirsting for its sacrifice, and that but 
 a small portion of Jewett's earthly existence could in any event re- 
 main to him.'" 
 
 Two English cases to the same effect are reported. In one of these 
 the prisoner was indicted for the murder of a woman by drowning 
 her. It appeared that the prisoner had cohabited with the deceased 
 for several months previous to her death, and she was with child by 
 him; they were in a state of extreme distress: and being unable to 
 pay for their lodgings, they quitted them in the evening of the night 
 on which the deceased was drowned, and had no place of shelter. 
 They passed the evening together at the theatre, and afterwards 
 went to Westminster Bridge to drown themselves in the Thames; 
 they got into a boat, and from that into another boat, the water where 
 the first boat was moored not being of sufficient depth to drown them. 
 They talked together for some time in the boat into which they had 
 got, the prisoner standing with his foot on the edge of the boat, and 
 the woman leaning upon him. The prisoner then found himself in 
 the water; but whether by actual throwing of himself m, or by acci- 
 dent, did not appear. He struggled to get back into the boat again, 
 and then found that the woman was gone; he then endeavoured to 
 save her, but could not get to her and she was drowned. In his 
 
 1 Com. .■. Bowen, 2 Wheel. C. C. 321 ; 3 Mass. 359. 
 
100 HOMICIDE. 
 
 statement before the magistrate he said that he intended to drown 
 himself, but dissuaded the woman from following his example. The 
 learned judge told the jury that if they believed that the prisoner 
 only intended to drown himself, and not that the woman should die 
 with him, they should acquit the prisoner; but that if both went to 
 the water for the purpose of drowning themselves together, each en- 
 pouraged the other in the commission of a felonious act, and the sur- 
 vivor was guilty of murder. He also told the jury, that although 
 the indictment charged the prisoner with throwing the deceased into 
 the water, yet if he were present at the time she threw herself in, 
 and consented to her doing it, the act of throwing was to be consi- 
 dered as the act of both, and so the case was reached by the indict- 
 ment. The jury stated that they were of opinion that both the pri- 
 soner and the deceased went to the water for the purpose of drowning 
 themselves, and the prisoner was convicted. But the learned judge 
 thought it right to submit his direction to the consideration of the 
 judges. After considering the case, the judges were clear that if the 
 deceased threw herself into the water by the encouragement of the 
 prisoner, and because she thought he had set her the example in pur- 
 suance of their previous agreement, he was a principal in the second 
 degree, and was guilty of murder; but as it was doubtful whether the 
 deceased did not fall in by accident, it was not murder in either of 
 them, and the prisoner was recommended for a pardon.' So where 
 upon an indictment for the murder of a woman, it appeared that the 
 prisoner and the deceased, who passed as husband and wife, being in 
 very great distress, both agreed to take poison, and each took a quan- 
 tity of laudanum, in the presence of the other, and both lay down on 
 the same bed toge'ther, wishing to die in each other's arms, and the 
 woman died, but the prisoner, recovered; Patteson, J., told the jury 
 that, " supposing the parties in this case mutually agreed to commit 
 suicide, and one only accomplished that object, the survivor will be 
 guilty of murder in point of law, and so also when a husband and 
 wife, being in extreme poverty, and great distress of mind, the hus- 
 band said, " I am weary of life, and will destroy myself," upon which 
 the wife replied, " If you do, I will too." The man bought some poison, 
 mixed it with some drink, and they both partook of it. The husband 
 died, but the wife, by drinking salad oil, which caused sickness, re- 
 covered, and was tried for the murder of her husband, and acquitted, 
 but solely on the ground that, being the wife of the deceased, she was 
 under his 'control; and, inasmuch as the proposal to commit suicide 
 had been first suggested by him, it was considered that she was not 
 a free agent, and therefore the jury, under the direction of the judge 
 who tried the case, pronounced a verdict of not guilty.' 
 
 It seems that a person cannot be tried as an accessory before the 
 fact, for inciting another to commit suicide, if that person do commit 
 suicide, for the 7 Geo. 3, c. 64, s. 9, only extends to such persons as 
 were previously liable to be tried either with or after the principal, 
 and an accessory before the fact to suicide was not triable at common 
 law. 
 
 1 See R. V. Alison, 8 C. & P. 418. 
 
NEGLIGENCE OF MASTERS OF STEAM AND OTHER VESSELS. 101 
 
 CHAPTER VII. 
 
 HOMICIDE BY NEGLIGENCE. 
 
 The cases falling under tMs head will be considered under the fol- 
 lowing relations : — 
 
 I. Officers of steam and other vessels. 
 
 II. Persons driving or riding. 
 
 III. Persons having charge of children or dependants. 
 
 IV. Medical men, apothecaries, &c. 
 
 V. Ma,nufacturers and working men. 
 
 VI. Prize fighters, and persons engaged in athletic sports. 
 
 VII. Persons from mischief or from other collateral unlawful pur- 
 poses doing bodily harm. 
 
 1. OFFICERS OF STEAM AND OTHER VESSELS. 
 
 The general doctrine which applies to all cases of accidents by negli- 
 gence in common carriers or travellers whether by land or by sea, is 
 that if speed be used of such a nature as to prevent escape, or to de- 
 stroy the capacity of the party employing it in case of a collision, or 
 if there be a positive neglect of that care by which a collision could 
 be avoided, the offending party, if death ensue, is guilty of man- 
 slaughter. Thus, in an English case, where the counsel for the prose- 
 cution, in opening the case, said, that he apprehended that the rule as 
 to traversing the river Thames was the same as that applicable to the 
 mode of passing along any of the queen's common highways: there- 
 fore, if the speed at which, or the manner in which, the prisoners were 
 navigating the vessel, and were proceeding before they saw the skiff, 
 was such as to prevent them, after they did see it, from stopping in 
 time to prevent mischief to the person in it, they would be respon- 
 sible for the offence of manslaughter, if his death happened in con- 
 sequence ; if, on a misty night, the prisoners were proceeding at such 
 a rate, that they could not stop in time, their so proceeding was ille- 
 gal, and, as death ensued, they were responsible. Parke, B., said : 
 "You have stated the law most correctly. There is no doubt that 
 those who navigate the Thames improperly, eiAer by too much speed, 
 or by negligent conduct, are as much liable, if death ensues, as those 
 who cause it on a public highway, either by furious driving, or negli- 
 gent conduct."' And under this act of Congress, any misconduct or 
 negligence leading to death, involves the same responsibility.^ 
 
 In a recent case in the Circuit Court of the United States, the ge- 
 neral question of the liability of the affairs of steam vessels under the 
 act of Congress, was discussed by Judge Leavitt, (Judge M'Lean being 
 absent,) under the following state of facts : 
 
 1 R. V. Taylor, 9 C. & P. 672. 
 
 2 Wh. Cr. Law, 3d edit., 417; U. S. v. Collyer, post, Appendix, 483. 
 * 
 
' 102 HOMICIDE. 
 
 The defendants, viz., Warner as captain, Wishue as first mate, 
 Demond as second mate, and Kirby as wheelsman of the Steamboat 
 Chesapeake, then navigating Lake Erie, he said, were jointly in- 
 dicted for manslaughter, under the 12th section of the act of Con- 
 gress of the 7th of July, 1837."^ This section is in these words: 
 "That every captain, engineer, pilot or other persons, employed 
 on board of any steamboat, or vessel propelled in whole or in part 
 by steam, by whose misconduct, negligence or inattention to his or 
 their respective duties, the life or lives of any person or persons 
 on board said vessel may be destroyed, shall be deemed guilty of 
 manslaughter, and upon conviction thereof, before any circuit court 
 of the tJnited States, shall be sentenced to confinement, at hard 
 labour, for a period of not more than ten years. The indictment 
 contained five counts, of which the following is a condensed state- 
 ment: 1. Charges the defendants, in their respective capacities, with 
 general misconduct, negligence and inattention, whereby the col- 
 lision took place, the boat was sunk, and the lives of several per- 
 sons destroyed. 2. ' Charges that it was the duty of the defendants to 
 keep a look out, and so to steer and navigate the boat as to avoid col- 
 lision, and that in their respective capacities they neglected these 
 duties, whereby the collision took place, the boat was sunk, and the 
 lives of Eli Cone, William N. Yerke, and David Folsom were de- 
 stroyed by drowning. 3. Charges that it was the duty of the captain 
 and mate to keep a look out, and to give orders to the wheelsman so 
 to steer as to avoid collision, etc. : and that the captain and the mate 
 neglected these duties, and the wheelsman neglected to steer, etc., 
 whereby collision took place and lives were lost. 4. Contains sub- 
 stantially the same averments as the preceding, with the addition, 
 that it was the duty of the defendants after the collision to make 
 an examination of the injury ; and that they neglected this duty, etc., 
 whereby the boat sunk, and lives of certain persons were lost. 5. 
 Charges that after the collision, the defendants neglected their duties 
 in the following particulars: 1. In not causing an immediate examina- 
 tion, to ascertain the extent of the injury to the boat. 2. In neglect- 
 ing to close the ash hole. 3. In neglecting to run the boat ashore, at 
 the nearest and most convenient point without delay: whereby the 
 boat sunk, and lives were lost. A motion for leave to the defend- 
 ants to sever in their trial, and a motion to quash some of the counts 
 of the indictment were overruled. The jurymen were then sworn to 
 try the defendants, Warner, Wishue and Demond. The defendant 
 Kirby, was not put on his trial, and as to him, the District Attorney 
 subsequently entered a nolle prosequi. The evidence taken on the 
 trial, as condensed by the reporter, is as follows: — In the after- 
 noon of the 9th of June, 1847, the steamboat Chesapeake, with the 
 defendants on board, in the several capacities before stated, left Buf- 
 falo, destined for Cleveland. Between 11 and 12 o'clock in the night 
 of that day, being about six miles from shore, and nearly opposite the 
 Harbour of Conneaut, the captain and first mate having retired to 
 
 1 5 Peters' Laws U. S. 304. 
 
NEGLIGENCE OP OFFICERS OF STEAMBOATS. 103 
 
 their "berths, and the defendant Demond, as the second mate, being 
 the ofiBcer on watch, and the defendant Kirby, at the wheel, the boat 
 came in contact with the schooner John Norter, Captain Thomas mas- 
 ter, bound for Buffalo, striking her neai'ly at right angles, about mid- 
 ship, on her starboard side, and causing her to sink in from five to 
 ten minutes after the collision; her crew being saved from immediate 
 death, by their transfer to the steamboat. It was very soon ascer- 
 tained that a hole had been made on the larboard side of the bow of 
 the boat, and that water was rapidly coming in. The pumps were 
 immediately set to work, all hands ordered to bail, and attempts made 
 to stop the leak; and the boat was put towards the shore, heading for 
 the light at Conneaut Harbour, but the water gained so fast, that when 
 within one and a half or two miles from shore, the fires were extin- 
 guished, and the engines ceased to work; and in an hour and a half 
 from the stopping of the engine the boat sunk in 36 feet water. There 
 were about sixty cabin passengers on board, who with the steerage 
 passengers, officers and crew, made the whole number between eighty 
 and ninety. As the boat went down, the hurricane or upper deck broke, 
 and became detached from the boat. This deck had been made fast 
 by ropes to the mast of the boat, and remained stationary over the 
 place where the boat sunk. The captain had given notice to those 
 on board, that this deck was the place of safety, and advised all to 
 get on it. Some fifty or sixty persons took refuge on it, and were all 
 saved ; and there was room enough for twenty-five or thirty more. 
 The persons on this deck were taken from it about day-light, by the 
 steamboat General Harrison. The night was not dark, the sky being 
 clear and the stars visible. There was some mist, or fog near the 
 surface of the lake ; the wind was off shore, and nearly from the point 
 S. S. W. There was but one yawl attached to the boat, which was 
 sent ashore with thirteen or fourteen persons in her, who were all 
 saved. Some of the passengers and a part of the crew of the boat, 
 prepared floats or rafts, made of doors, tables, etc., on which as the 
 boat sunk they launched into the lake ; and of those who betook them- 
 selves to these means of safety, a Mrs. Hawk, and four others, viz., 
 Messrs. Vandoren, Yerke, and Polsom lost their lives. The counsel 
 for defence, after the District Attorney had closed his opening argu- 
 ment, declined addressing the jury, and moved the court to instruct 
 them to the following effect. 1. As all crime consists in intention, the 
 defendants are not guilty, unless they knowingly and wilfully neg- 
 lected their duty. 2. As the law does not require infallibility, the 
 defendants are not responsible for errors in judgment in the perform- 
 ance of their duties. 3. That greater strictness in proof is required 
 in criminal than in civil caees, and the defendants, in order to be 
 holden liable, must be brought within the statute in every particular. 
 4. That if the loss of life was not the necessary consequence of the 
 sinking of a boat, but resulted from imprudence in leaving the wreck 
 contrary to the captain's advice, he cannot be convicted. 5. That if 
 the collision was occasioned by want of proper lights on the schooner, 
 the defendants ought not to be convicted. Judge Leavitt charged 
 the jury substantially as follows. Before I call the attention of the 
 jury to the testimony as it applies to the allegations of the indictment, 
 it becomes my duty to notice the propositions submitted by the counsel 
 
104 HOMICIDE 
 
 for defence, on which the instruction of the court is requested. The 
 section of the act of Congress, on which this indictment is framed, de- 
 clares that officers and others, employed on any steamboat, by whose 
 " misconduct, negligence, or inattention, the life or lives of any person 
 or persons on board" shall be destroyed, shall be deemed guilty of 
 manslaughter. It is believed, this is the first prosecution which has 
 been instituted under this law, and that no construction has been given 
 to it, in reference to the point now presented, by any courts in the 
 Union. It is a rule of universal application in the construction of sta- 
 tutes, that the courts must be governed by the words used to express 
 the intention of the legislature, when they are free from all uncer- 
 tainty or ambiguity. And this rule leads the mind to the conclusion, 
 that it was the design of the law-making power, in the adoption of 
 the section under consideration, to create an ofiPence, and annex a pu- 
 nishment to it, on principles variant from those which apply to crimes 
 at common law, or to those generally created by statutory enactments. 
 At common law, and usually in statutory crimes, the intention with 
 which the act is done, charged as a criminal, constitutes the element 
 of the crime. But in the section now brought to the notice of the 
 court, the legislature seem studiously to have avoided the use of any 
 terms, or words, making the intention of the party an ingredient of 
 the offence. It is declared, in words so plain as to admit of no doubt, 
 that any act of " misconduct, negligence or inattention," on the part 
 of any one concerned in steamboat navigation, producing as a result, 
 the loss of life, shall incur the guilt and penalty of the crime of man- 
 slaughter. If it had been intended that these consequences should 
 follow in cases only where there was evidence of a positive, malicious 
 intent, the words used would have been doubtless such as to have made 
 that intention clear. And in that case, the offence fined and punished 
 by the statute would have been the same as manslaughter, as recog- 
 nised at common law, and the statutes of all the States in the Union. 
 But, it is most obvious, from the language of this section, that Con- 
 gress intended to go beyond this, and to provide punishment for acts 
 to which the common law did not affix guilt or inflict a penalty. I 
 am therefore led to the conclusion, that it will be the duty of the jury, 
 if satisfied the material allegations of the indictment are sustained by 
 the evidence, to return a verdict of guilty. There can be no doubt, 
 that it was the intention of Congress to create an offence by this sta- 
 tute, the essence of which consists in " misconduct, negligence or inat- 
 tention," in such degree, and of such character, as to have resulted 
 in the loss of human life. This is a subject matter, clearly within 
 the jurisdiction of Congress; and having provided, that certain acts 
 of delinquency, attended with a certain result, shall subject the party 
 to a penalty, irrespective of motive or intention, there is no reason 
 why the law in a proper case should not be enforced. If it were true, 
 as insisted by the counsel for the defence, that this view of the law 
 gives to it a character of harshness and severity, which must render 
 it obvious to the community, and a reproach to a humane government- 
 it would afford no reason why courts and juries should refuse to carry 
 it into effect. Until repealed by the power which enacted it, it must 
 have the force of law. But the statute under consideration is not 
 liable to this objection. It is true that it declares certain facts being 
 
BY STEAMBOAT OFFICERS. 105 
 
 established, the parties implicated shall be deemed guilty of man- 
 slaughter ; but it invests in the court an ample discretion in regard to 
 the punishment to be inflicted, which, properly exercised, will effectu- 
 ally guard against undue severity. The penalty consequent on a con- 
 viction may be imprisonment for ten years; but if the circumstances 
 are such as to call on the court for lenity, the punishment may be 
 merely nominal — not extending beyond a few hours or few days' im- 
 prisonment. And it may be here remarked, that this great latitude 
 of discretion, vested in the courts by the statute, by which it becomes 
 their duty to graduate the punishment according to the facts of the 
 case, even to the extent of making it merely nominal, is conclusive to 
 prove, that Congress in this enactment did not contemplate the com- 
 mission of the crime of manslaughter in its heinousness and guilt, as 
 defined by the common law. If such had been the view of that body, 
 it would not have been left in the discretion of the court, in the case 
 of conviction to assess a merely nominal punishment. For according 
 to the common law sense of the crime of manslaughter, it is impossi- 
 ble to conceive of any case in which the exercise of such discretion 
 would be either justifiable or necessary to the extent contemplated by 
 the statute. It may not be improper here to remark, that the title 
 of the act of Congress, and the circumstance leading to its passage, 
 are significant of the purposes of its enactment, and throw light upon 
 its construction. It is entitled, " an act to provide for the better se- 
 curity of the lives of passengers on board of vessels propelled in 
 whole or in part by steam." It is a matter of public notoriety, and 
 constitutes a part of the history of the times, that within a short pe- 
 riod anterior to the date of this statute, numerous steamboat disasters 
 had occurred in our country, attended with a melancholy loss of hu- 
 man life, under circumstances justifying the conclusion that there was 
 gross negligence, yet without the possibility of proving, either posi- 
 tively or inferentially, a malicious intent. Such was the fearful mag- 
 nitude of the evil, that public feeling demanded such national legisla- 
 tion on the subject as would be effective in preventing the recurrence 
 of those calamities. The stern legislative provision under considera- 
 tion was the result of this state of things. Its design was to enforce 
 the greatest possible vigilance and caution, on the part of those con- 
 cerned in steamboat navigation. The utility of the law has been 
 satisfactorily tested by its salutary results. It has greatly ele- 
 vated the business of steamboat navigation, by introducing in ail its 
 departments men of higher moral characters, and superior practical 
 qualifications for their duties. As a consequence the instances of 
 reckless disregard of human life, and accidents resulting from im- 
 proper hazards, are much less frequent, while the public confidence 
 in the safety of steamboat travelling is greatly increased. It will 
 be for the jury to say whether the result charged in the indict- 
 ment, namely, the deaths of the individuals named, is justly impu- 
 table to the "misconduct, negligence, or inattention," of the defend- 
 ants or any of them. If the collision happened from the improper 
 and unskilful navigation of the schooner, or any other cause, render- 
 ing it an unavoidable occurrence, the defendants are entitled to a 
 verdict of acquittal, in so far as they are charged with misconduct or 
 omission of duty in connexion with the collision. There are some 
 
106 HOMICIDE 
 
 other points presented in the instructions asked for, which will be 
 noticed by the court in the consideration of the evidence, as applica- 
 ble to the indictment. To this evidence I propose very briefly to di- 
 rect the attention of the jury. It will be proper to remark here, that 
 the case presents itself in two aspects; first, in reference to the alle- 
 gations of misconduct and negligence, producing the collision, and 
 second, in reference to the allegations of misconduct and negligence, 
 in not taking prompt measures for the safety of the passengers after 
 the collision. The second and fifth counts are those principally re- 
 lied on by the prosecution ; and the views which I propose to present 
 will be confined to these. The second count charges substantially, 
 that the defendants, in their several capacities, were guilty of miscon- 
 duct and neglect, in not keeping a proper look out, and in not using 
 the proper efforts to steer and navigate the boat, whereby she came 
 in collision with the schooner John Norter, and the lives of the per- 
 sons named were destroyed by drowning. As the testimony clearly 
 shows, the captain and first mate were not on duty for some time be- 
 fore, and when the collision took place, they cannot be held answer- 
 able for it; and under the second count, the inquiries of the jury will 
 be confined to the conduct of the second mate, who was then the officer 
 on deck ? Did the second mate, Demond, fail in his duty, in not keep- 
 ing a proper look out as the officer on deck? Captains Kelsey, Shook, 
 Perkins and Stannard, experienced and skilful navigators on the 
 lakes, have been sworn as experts in this case. They concur in stating 
 that the officer on deck is for the time being the sailing master, and 
 charged with the general supervision of the boat; that it is his duty 
 to be on the look out for lights, obstructions, etc.; to give orders 
 when necessary to the wheelsman and to the engineer; and that in 
 general his proper place is on the deck, though it is his duty to be in 
 other parts of the boat where his presence may be required: and 
 these witnesses also state, that it is proper and usual for the mate, 
 when leaving the deck, except it be for a very short period, to give 
 notice to the wheelsman of his intention, and request him to keep a 
 look out during his absence. It is also stated by all the experts ex- 
 cept one, that it is the duty of the wheelsman, not only to steer, but 
 to keep a look out for lights, etc., and that his position for this pur- 
 pose is the most favourable one on the boat. The witness Kirby, who 
 was at the wheel when the collision took place, says the defendant, 
 Demond, was on deck very shortly before it happened, and had just 
 left the wheel-house as the boat struck the schooner. He saw Demond 
 run to the bell and ring, to stop the engine, and immediately after 
 the collision took place. There is no evidence that Demond gave any 
 orders to the wheelsman; nor does it appear he saw the schooner till 
 at the very moment of collision. The witness Seymour states, that 
 he was at the wheel-house for some time before the collision hap- 
 pened ; that Demond was on the deck walking back and forth, and, 
 part of the time, sitting with witness in conversation with him. Wit- 
 ness retired to his berth, and had hardly got to his room till he heard 
 two bells in quick succession, one to stop the engine and one to back 
 off. He also says that while on deck he saw no lights but those of 
 the light house at Conneaut, and of the Steamboat Constellation. 
 This is all the material testimony as to this point; and from this the 
 
BY STEAMBOAT OFFICEKS. 107 
 
 jury will decide whether Demond was guilty of negligence or omis- 
 sion in not having discovered the schooner in time to avoid collision. 
 The jury will also inquire, under the second count, whether Demond, 
 as sailing master of the boat, failed in duty, in not giving proper 
 orders to the wheelsman, as to the course and direction of the boat. 
 And in this inquiry it will be proper for the jury to bear in mind that 
 if the wheelsman was steering the boat correctly, no order was re- 
 quired from the sailing .master, and he cannot therefore be in fault 
 for not giving an order. It seems from the testimony of all the ex- 
 perts that the steamboat at the time she struck the schooner was in 
 the track usually followed by boats going up the lake, which at that 
 place is about six miles off shore. Kirby, the wheelsman, says he 
 saw the schooner's light flash up for a moment: saw the light over 
 the left bow of the boat, about one mile distant, witness steering at 
 the time W. S. W. He then put the boat one point further out into 
 the lake; in a few minutes saw the schooner very near; put the 
 helm hard, hard a port, and immediately the boat struck the schooner. 
 Witness says after he saw the light of the schooner, it disappeared, 
 and he saw it no more — supposed it was hid by the sails. Captain 
 Thomas, the master of the schooner, states that he first saw the 
 steamer's light — 6 or 7 miles ahead, he steering at that time N. E. 
 by E. S. He then put his vessel one point further out into the lake, 
 and kept her steadily on that course. This witness says it is the 
 usage for sailing vessels descending the lake at that point, to keep 
 in shore from the steamboat track ; but he thought he was rather 
 too near the land, and therefore gave the order to put the steamboat 
 further out. He also testifies that there was a light at the end of 
 the jib of the schooner, and also that just before the collision, he 
 took the light out of the binnacle, held it up and hailed the steamboat. 
 Although several witnesses state there was no light on the schooner 
 at the time the collision happened, the weigiit of the evidence 
 proves there was a light. In coming to a conclusion as to. who was 
 in fault in this collision, it will be important for the jury to attend 
 specially to the testimony concerning the relative position and 
 course of the schooner and steamboat just before and at the time 
 they came together. For, if, as before stated, the accident occurred 
 through the improper navigation, and wrong course of the schooner, 
 the sailing master of the steamer cannot be held accountable. The 
 captains already named, testifying as experts, agree in the opinion, 
 that the schooner steering N. E. by E. and the steamer W. S. W. 
 being 6 miles apart, the schooner must have been considerably in 
 shore from the line of the steamer's course, and that it was the duty 
 of the schooner to have kept inside of that line hugging the shore. 
 And these witnesses say, if she had pursued that course a collision 
 would have been impossible, without a change of the steamer's 
 direction. Kirby says he first saw the schooner's light over the left 
 bow of the steamer; and if so, the schooner was then in shore from 
 the line of the steamer's direction. It is proved by the experts, to 
 be the general usage in the navigation of the lakes, that when a sail- 
 ing vessel and a steamboat are approaching in opposite directions, it 
 is the duty of the former to pursue her course steadily; and, if neces- 
 sary, the steamboat is expected to diverge from her previous direction. 
 
108 HOjilCIDB 
 
 Captain Shook, and perhaps some of the other professional navigators, 
 say, Kirby the wheelsman of the Chesapeake was right, under the cir- 
 cumstances, in first putting the boat one point out into the lake, and 
 when very near the schooner putting the helm hard-a-port, the effect 
 of which was to give her a still more northerly direction. If the jury, 
 upon full consideration of the evidence, shall come to the conclusion 
 that the schooner, through mistake, or unskilfulness of her sailing 
 master, was proceeding across the line of the steamer's proper course, 
 and that, therefore, the collision was unavoidable, the defendant, 
 Demond, cannot be held responsible for the consequences. Upon this 
 supposition, there is no ground for the conclusion, that the accident 
 was the result of neglect or inattention on his part. If, however, the 
 jury are satisfied the collision is attributable to his delinquency in 
 duty, in not keeping a vigilant lookout, and in not properly navigating 
 the boat, as charged in the second count, it will then be their duty 
 to inquire further, whether, as the result of the collision, the lives 
 of the individuals named in the indictment were lost by drowning. 
 There is no room to doubt, from the evidence, that the lives of those 
 persons were destroyed by drowning. But, it is insisted, and the 
 court is requested so to instruct the jury, that if the loss of their lives 
 was not the necessary result of the collision, the allegation in the in- 
 dictment, as to the means by which they came to their deaths, is not 
 sustained; and, consequently, that there cannot be a verdict of guilty 
 on this count, or, indeed any of the counts in the indictment. The 
 evidence is not satisfactory to prove, that any lives were lost except 
 tliose of persons who left the boat, on floats and rafts. And it is 
 proved, beyond all doubt, that the captain and probably some other 
 officers of the Chesapeake, notified the passengers that they would be 
 safe by getting on the hurricane deck; and it is also clearly proved, 
 that all who sought this place of safety were preserved. Whether 
 the persons who unfortunately resorted to other means to save them- 
 selves, were apprized of the security afforded by the hurricane deck, 
 is not known. If, being made acquainted with the fact, or if, by rea- 
 sonable vigilance, they could have acquired this information, the per- 
 sons whose lives were destroyed, under the influence of excessive 
 alarm, unnecessarily and indiscreetly left the boat, preferring to run 
 the hazard of launching into the lake, on floats or rafts, and as a con-, 
 sequence were drowned; the destruction of their lives is not so con- 
 nected with, and a necessary result of the steamboat disaster, as to 
 make the defendants answerable for their loss. On the other hand, 
 if these persons under the pressure of the circumstances in which 
 they were placed, conducted with ordinary prudence and discretion, 
 then the allegation in the indictment, as to the means by which they 
 came to their death, is sustained. The Court will now call the atten- 
 tion of the jury to the fifth and last count of the indictment. This 
 count charges the defendant -Rjith a failure in duty, after the collision, 
 in the following particulars: — 1. In not causing an immediate exami- 
 nation to ascertain the nature and extent of the injury to the boat. 
 2. In neglecting to close the ash-holes. 3. In neglecting to run the 
 boat ashore at the nearest and most convenient point without delay. 
 I will not detain the jury by a re-statement of the evidence of each 
 witness on these points; but will present a summary of the material 
 
BY STEAMBOAT OFFICERS. 109 
 
 facts proved, in relation to each of them. First, as to the allegation 
 of improper delay in the examination of the injury to the boat. The 
 degree of promptitude required of the oiScers of the boat, in making 
 this examination, must depend in some degree on the character of the 
 shock produced by the collision. If it was severe and of a nature 
 which should have produced the apprehension in the mind of an ex- 
 perienced and skilful navigator that the boat was seriously injured, 
 the officers should be held to greater promptitude and vigilance in the 
 examination of the injury, than under the opposite state of facts. It 
 appears that to some of the witnesses, the shock from the collision 
 seemed light, and produced no apprehension of serious injury to the 
 boat; while others thought it severe, and such as necessarily to jeopard 
 the safety of the persons on board. The defendant. Captain War- 
 ner, had retired to his room for the night, but was roused by the 
 shock of the collision; and some of the- witnesses say, they saw him 
 very soon after the collision, leaving his room without coat, hat or 
 boots, and going to the forward part of the boat. These witnesses 
 state that no more time elapsed between the shock of the collision 
 and the appearance of Captain Warner on deck, than such as was 
 necessary to enable him partially to dress himself. The witness, 
 Lytle, states, that he had not gone to his berth when the collision 
 took place, but was near the saloon below the promenade deck. He 
 was alarmed by hearing the engineer's bell ring in a very quick and 
 hurried manner : and immediately the collision occurred ; the schooner 
 and the boat stuck together for a very short time, when the boat 
 backed off, and they separated. This witness immediately lowered a 
 light over the bow of the boat, and discovered a hole, in the left side 
 of the bow, through which the water was coming in. He went at 
 once on deck, where he met the captain, and reported to him the re- 
 sult of his examination. The captain then ordered the second mate 
 to make a thorough examination, and very soon the order was given 
 to put the boat ashore. The witnesses Hubbard, Kimball and D wight, 
 agree in stating there was an examination; but cannot state the pre- 
 cise time which elapsed from the collision till the examination was 
 made. The last named witness says, he did know the captain could 
 have done more than he did do. The witness Hawk, thinks about 12 
 minutes passed from the time of the collision till it was discovered 
 the boat was leaking. As to the averment of neglect, in not stopping 
 the ash hole, the jury will have no difficulty in the conclusion that it 
 is not sustained. This hole, it would seem, opens on the outside of 
 the boat about Six inches below the timbers of the main deck. Cap- 
 tain Shook and others testify, that when the boat had so far sunk as 
 to take in water at this hole, it would be impossible to prevent her 
 from going down, and that the only effect of closing it, would be to 
 retard the sinking for a short time. I now call the attention of the 
 jury to the third specification of the fifth count, namely, neglect in not 
 running the boat ashore at the nearest and most convenient point 
 without delay. It was clearly the duty of the captain, as the best 
 mode of securing the lives of the passengers, as soon as it was ascer- 
 tained there was danger the boat would go down, to run her ashore, 
 with as little delay as circumstances would allow. In the adoption 
 of thi3 course, the law will hold himself to reasonable promptitude. 
 
110 HOMICIDE 
 
 And if, from indecision or gross negligence of duty, he omitted to 
 give the proper order in time, and as a consequence, the lives of 
 the passengers were lost, he is responsible for that result. It 
 is therefore an important inquiry, whether there was unreasonable 
 delay in giving the order to run ashore. There is some variation in 
 the statement of the witnesses, as to the time that elapsed between the 
 collision and the giving of this order. Hawk says this time was be- 
 tween twenty-five and thirty minutes ; Kimball thinks that abouttwenty 
 minutes after the boat struck, he heard the captain say, he was about 
 to run the boat ashore; Dwight says that in about fifteen minutes 
 after the collision, the boat was under headway for land; Hubbard 
 thinks from twenty to thirty minutes elapsed; Stern states the time at 
 from ten to fifteen minutes; Mrs. Bradbury thinks it was twenty mi- 
 nutes; Church says he was on deck within fifteen minutes after the 
 boat struck, and she was headed for shore ; Mr. M'llvane says it was 
 twenty minutes after the collision before he heard there was a leak; 
 Seymour gives it as his opinion, that the time did not exceed eight or 
 nine minutes; and Lytle says the schooner sunk in ten minutes after 
 the collision, and that the boat started for shore immediately after. 
 Captain Thomas says the schooner went down in ten minutes, and he 
 supposes the boat started for shore as soon as it could be done. It is 
 in evidence, that after the discovery of the leak, an attempt was made 
 to stop it, by forcing mattresses and bed clothing into the hole, from 
 the inside of the boat, and also to check the in-flow of water by pass- 
 ing a sail over the bow: but both attempts were unsuccessful. It also 
 appears, that strenuous efforts were made to keep the boat afloat, by 
 putting the pumps to work, and by bailing, but without avail. And 
 it is also proved, that after the order was given to head the boat for 
 shore, every possible effort was made to increase her speed, by making 
 all the steam that could be made, and that the fireman and engineers 
 remained at their posts, doing their duty, till the fires were put out 
 by the water and the engines stopped. There seems no doubt, from 
 the opinion of the experts, that the captain was right in directing the 
 boat for the pier at Conneaut, although it was not the nearest point 
 of land in a direct line from the boat. The experts also concur in 
 the opinion, that the defendant, Warner, was in the strict line of his 
 duty, as a humane seaman, in providing for the safety of the crew of 
 the sinking schooner, by transferring them to his boat. And so far 
 as any delay occurred from his attention to this duty, he is not liable 
 to censure. Upon the whole, the jury will judge, taking all the cir- 
 cumstances into view, wliether Captain Warner conducted with rea- 
 sonable promptitude in giving the order to run the boat ashore. With- 
 out any further comments on the evidence, the case is now committed 
 to the jury. If satisfied from the proof, the defendants are guilty of 
 " negligence, misconduct or inattention," and that human life has been 
 lost thereby, it will be the duty of the jury to return a verdict of 
 guilty. And here it may be proper to remark, it is not claimed nor 
 does the evidence afford the slightest ground for such assumption, that 
 the defendants, or any of tliem, were actuated by any malicious pur- 
 pose, as connected with this unfortunate disaster. And in some re- 
 spects it is clearly proved, they were active and prompt in attending 
 to their duties after the collision took place, and that their conduct 
 
BY STEAMBOAT OFFICERS. Ill 
 
 was highly meritorious. It is also proper that I should remark, that 
 the defendants are entitled to the full benefit of the evidence which 
 they have adduced, proving their general good professional characters. 
 And in reference to allegations of negligence or misconduct, concern- 
 ing which, the jury may be in doubt as to weight of testimony, the 
 fair professional reputation of the defendants, may properly have such 
 weight as to turn the scale in their favour. — The defendants were 
 acquitted.' 
 
 The same principles, so far as their common law bearing is con- 
 cerned, have been determined in England. Thus upon an indictment 
 against the captain of a steamer for manslaughter in causing a death 
 by running down a boat, the counsel for the prosecution, in opening 
 the case, said, if a party engaged in a lawful occupation is guilty of 
 wilful misconduct, or of gross negligence, it is manslaughter. Park, 
 J. A. J., said ; " You must show some act done; you rather state it as if a 
 mere omission on the part of the prisoner in not doing the whole of 
 his duty would be enough ; and we are of opinion that is not sufficient. 
 I have no hesitation in saying, that if there was sufficient light, and 
 the captain himself was at the helm, or in a situation to be giving 
 the command, and did that which caused the accident, he would be 
 guilty of manslaughter." Alderson, B., " There must be some per- 
 sonal act. In the case of a coach, the coachman is driving animals, 
 and in the case of the captain, he is governing reasonable beings." 
 It appeared in evidence that the deceased and two other persons 
 were in a small boat going down the river, when a small steamer used 
 for towing, of which the prisoner was master, met them, and, notwith- 
 standing their shouting, sti'uck the boat, and nearly cut it in two, in 
 consequence of which the deceased was drowned ; the waterman proved 
 that he and the captain were on the starboard side of the windlass, 
 and two other men were on the larboard side ; that the captain did not 
 leave his place once, and the mate was at the helm, and remained 
 there till after the accident; that the engine was all open, and worked 
 on deck, and made a great noise; that he did not hear the shouting 
 in time to do anything to avert the accident. Park, J. A. J., "This 
 case has come to its end ; at the outside it can only be considered as one 
 of those accidents which will happen in a river navigation; it appears 
 that they kept a proper look out; and there were several persons on 
 deck at the time.^ 
 
 So also when the captain and pilot of a steamer were indicted for 
 manslaughter in causing a death by running down a smack, and it 
 appeared that at the time the steamer started there was a man for- 
 ward in the forecastle to keep a look-out, but at the time when the 
 accident happened, which was about an hour afterwards, the captain 
 and pilot were both on the bridge which communicates between the 
 paddle-boxes ; the night was dark, and it was raining hard; the steamer 
 had a light at each end of the topsail yard ; an oyster smack, on board 
 which the deceased was, was coming up the Thames without any light 
 on board; the deceased was below: a boy who was on board the smack 
 stated that when the steamer struck the smack he got on board the 
 steamer, and found nobody forward: other witnesses were present 
 
 1 U. S. V. Warner, 4 M'Lean, 464, &o. ^ K. v. Green, 9 C. & P. 156. 
 
112 HOMICIDE 
 
 to sho-w that no person was forward on the look-out at the time. 
 Park, J. A. J., "Then the captain is not responsible in felony; it is 
 the fault of the person who ought to be there, and who may have dis- 
 obeyed orders; if the captain leaves the pilot on the paddle-box, as 
 he did here, he is not criminally responsible. In a criminal case every 
 man is answerable for his own acts; there must be some personal act; 
 these persons may be civilly responsible." Alderson, B., "If you 
 could show that there was a man at the bow, and that the captain had 
 said ' Come away, it's no matter about looking out,' that would be an 
 act of misconduct on his part. If you can show that the death of the 
 deceased was the result of any act of personal misconduct on the part 
 of the captain, you may convict him." Park, J. A. J., "Supposing 
 he had put a man there, and had gone to lie down, and the man walked 
 away, do you mean to say he would be criminally responsible? And 
 you must carry it to that length if you mean to make any thing of it." 
 Alderson, B., "I think this case has arrived at its termination: there 
 is no act of personal misconduct or personal negligence on the part 
 of these persons at the bar.'" 
 
 II. PERSONS DRIVING OR RIDING. 
 
 Independently of the principles just announced, which bear with 
 equal force upon land as upon water collisions, it must be remem- 
 bered that there are cases in which the driving of an unsafe horse, 
 like the navigating of an unsafe ship, makes the offending party 
 guilty of manslaughter if death ensue. Thus if a person, breaking 
 an unruly horse, ride him amongst a crowd of people, and death ensue 
 from the viciousness of the animal, and it appears clearly to have 
 been done heedlessly and incautiously only, and not with an intent 
 to do mischief, the crime will be manslaughter,^ though it is said, 
 that in such a case it would be murder, if the rider intended to di- 
 vert himself with the fright of the crowd.^ 
 
 Certain particular requisites, however, must be adhered to in 
 driving, which it is well to keep in mind. 
 
 First, as to speed. Any degree of rapidity inconsistent with the 
 degree of check with which the horses may be held, will make the 
 owner responsible, and it even seems that mere negligence on part 
 of the deceased, who if careful might have avoided the accident, will 
 be no defence. Thus on an indictment for manslaughter, it appeared 
 that the deceased was walking along a road, in a state of intoxication : 
 the prisoner was driving a cart drawn by two horses, without reins; 
 the horses were cantering, and the prisoner was sitting in front of 
 the cart; on seeing the deceased, he called to him twice to get out of 
 the way, but from the state he was in, and the rapid pace of the horses, 
 he could not do so, and one of the cart-wheels passed over him, and 
 he was killed: it was held, that if a man drive a cart at an unusually 
 rapid pace, whereby a person is killed, though he calls repeatedly to 
 such person to get out of the way, if, from the rapidity of the driving, 
 or from any other cause, the person cannot get out of the way time 
 enough, but is killed, the driver is in law guilty of manslaughter; 
 
 1 R. V. Allen, 7 C. & P. 153. 2 1 East, P. C. 231. 
 
 » 1 Hawk. P. C. c. 31, s. 68. 
 
NEGLIGENCE IN DRIVING OR RIDING. 113 
 
 and that it is the duty of every man, who drives any carriage, to drive 
 it with such care and caution as to prevent, as far as in his power, 
 any accident or injury that may occur.' 
 
 Racing, if it results in such speed as makes the driver unable to 
 keep his horses in good check, produces a like liability. Thus upon 
 an indictment for manslaughter, it appeared that there were two om- 
 nibuses, which were running in opposition to each other, galloping 
 along a road, and that the prisoner was driving that on which the de- 
 ceased sat, and the witnesses for the prosecution stated that the pri- 
 soner was whipping his horses just before his omnibus upset. The 
 defence was, that the horses in the omnibus driven by the prisoner took 
 fright and ran away. Patteson, J., said, "The question is, whether 
 you are satisfied that the prisoner was driving in such a negligent 
 manner that, by reason of his gross negligence, he had lost the com- 
 mand of his horses; and that depends on whether the horses were 
 unruly, or whether you believe that he had been racing with the 
 other omnibus, and had so urged his horses that he could not stop 
 them ; because, however he might be endeavouring to stop.them after- 
 wards, if he had lost the command of them by his own act, he would 
 be answerable: for a man is not to say, I will race along a road, and 
 when I am got beyond another cartiage I will pull up. If the prisoner 
 did really race, and only when he had got past the other omnibus 
 endeavoured to pull up, he must be found guilty; but if you believe 
 that he was run away with, without any act of his own, then he is not 
 guilty. The main questions are, were the two omnibuses racing? 
 and was the prisoner driving as fast as he could, in order to get past 
 the other omnibus ? and had he urged his horses to so rapid a pace, 
 that he could not control them ? if you are of that opinion you ought 
 to convict him."* 
 
 And so if two persons be driving a cart at a dangerous and 
 furious rate, and they be inciting each other to drive at such rate 
 along a turnpike road, and one of the carts run over a man and kill 
 him, each of the two persons is guilty of manslaughter; and it is no 
 ground of defence, that the death was partly caused by the negligence 
 of the deceased himself, or that he was either deaf or drunk at the time.* 
 Thus, where the prisoners were indicted for the manslaughter of one 
 James Duroseo, the second count of the indictment charged them 
 with inciting each other to drive their carts and horses at a furious 
 and dangerous rate along a public road, and with driving their carts 
 and horses over the deceased at such furious and dangerous rate, and 
 thereby killing him. The third count charged Swindall with driving 
 his cart over the deceased, and Osborne with being present, aiding 
 and assisting. The fourth count charged Osborne with driving 
 his cart over the deceased, and Swindall with being present, aiding 
 and assisting. Upon the evidence, it appeared that the prisoners 
 were each driving a horse and cart, on the evening of the 12th of 
 August, 1845. The first time they were seen that evening was at 
 Draycott toll-gate, two miles and a half from the place where the 
 deceased was run over. Swindall there paid the toll, not only for 
 
 1 K. V. Walker, 1 C. & P. 320. ' K. v. Timmms, 7 C. & P. 499. 
 
 3 -&. V. Swindall, 2 Car. & Kir. 229. 
 
 8 
 
114 HOMICIDE. 
 
 that night, but also for having passed with Osborne through the same 
 gate a day or two before. They then appeared to be intoxicated. 
 The next place at which they were seen was Tean Bridge, over which 
 they passed at a gallop, the one cart close behind the other. A per- 
 son there told them to mind their driving; this was 990 yards from 
 the place where the deceased was killed. The next place where they 
 were seen was forty-seven yards beyond the place where the deceased 
 was killed. The carts were then going at a quick trot, one closely 
 following the other. At a turnpike gate a quarter of a mile from the 
 place where the deceased was killed, Swindall, who appeared all along 
 to have been driving the first cart, told the toll-gate keeper, " We 
 have driven over an old man;" and desired him to bring a light and 
 look at the name on the cart ; on which Osborne pushed on his cart, 
 and told Swindall to hold his bother, and they then started off at a 
 quick pace. They were subsequently seen at two other places, at 
 one of which Swindall said he had sold his concern to Osborne. It 
 appeared that the carts were loaded with pots from the potteries. 
 The surgeon proved that the deceased had a mark upon his body 
 which would correspond with the wheel of a cart, and also several 
 other bruises, and, although he could not say that both carts had 
 passed over his body, it was possible that both might have done so. 
 Greaves, in opening the case to the jury, had submitted that it was 
 perfectly immaterial in point of law, whether one or both carts had 
 passed over the deceased. The prisoners were in company, and had 
 concurred in jointly driving furiously along the road; that that was 
 an unlawful act, and, as both had joined in it, each was responsible 
 for the consequences, though they might arise from the act of the 
 other. It was clear that they were either partners, master and 
 servant, or at all events companions. If they had been in the same 
 cart, one holding the reins, the other the whip, it could not be 
 doubted that they would be both liable for the consequences ; and in 
 effect the case was the same, for each was driving his own horse at a 
 furious pace, and encouraging the other to do the like. At the close 
 of the evidence for the prosecution, Allen, Serjt., for the prisoner, 
 submitted, that the evidence only proved that one of the prisoners 
 had run over the deceased, and that the other was entitled to be 
 acquitted. Pollock, C. B. — I think that is not so. I think that Mr. 
 Greaves is right in his law. If two persons are in this way inciting 
 each other to do an unlawful act, and one of them runs over a man, 
 whether he be the first or the last he is equally liable; the person 
 who runs over the man would be a principal in the first degree, and 
 the other a principal in the second degree. Allen, Serjt. — The prose- 
 cutor, at all events, is bound to elect upon which count he will pro- 
 ceed. Pollock, C. B. — That is not so. I very well recollect that 
 in Regina v. Goode, there were many modes of death specified, and 
 that it was also alleged that the deceased was killed by certain means 
 to the jurors unknown. When there is no evidence applicable to a 
 particular count, that count must be abandoned; but if there is evi- 
 dence to support a count, it must be submitted to the jury. In this 
 case the evidence goes to support all the counts. Allen, Serjt., 
 addressed the jury for the prisoners. Pollock, C. B., (in summing 
 ap.) — The prisoners are charged with contributing to the death of 
 
NEGLIGENCE IN DRIVING OR RIDING. 115 
 
 the deceased by their negligence and improper conduct, and if they 
 did so, it matters not whether he was deaf, drunk, or negligent, or 
 in part contributed to his own death; for in this consists a great dis- 
 tinction between civil and criminal proceedings. If two coaches run 
 against each other, and the drivers of both are to blame, neither of 
 them has any remedy against the other for damages. So, in order 
 that one ship-owner may recover against another for any damage 
 done, he must be free from blame; he cannot recover from the other 
 if he has contributed to his own injury, however slight the contribu- 
 tion may be. But, in the case of loss of life, the law takes a totally 
 different view — the converse of that proposition is true; for there 
 each party is responsible for any blame that may ensue, however 
 large the share may be; and so highly does the law value human life, 
 that it admits of no justification wherever life has been lost, and the 
 carelessness or negligence of any one person has contributed to the 
 death of another person. Generally, it may be laid down, that, 
 where one by his negligence has contributed to the death of another, 
 he is responsible; therefore you are to say, by your verdict, whether 
 you are of opinion that the deceased came to his death in consequence 
 of the negligence of one or both of the prisoners. A distinction has 
 been taken between the prisoners; it is said that the one who went 
 first is responsible, but that the second is not. If it is necessary that 
 both should have run over the deceased, the case is not without evi- 
 dence that both did so. But it appears to me that the law, as stated 
 by Mr.. Greaves, is perfectly correct. Where two coaches, totally in- 
 dependent of each other, are proceeding in the ordinary way along a 
 road, one after the other, and the driver of the first is guilty of neg- 
 ligence, the driver of the second, who had not the same means of 
 pulling up, may not be responsible. But when two persons are 
 driving together, encouraging each other to drive at a dangerous 
 pace, then, whether the injury is done by the one driving the first 
 or the second carriage, I am of opinion that in point of law the other 
 shares the guilt.' 
 
 Driving at the rate of fifteen miles an hour, or a mile in four 
 minutes, on a public highway is unlawful; and if death ensues from 
 a collision thus produced without fault of the injured party, the 
 offence, it seems, would be murder in the second degree, unless ac- 
 companied with such circumstances of passion as to reduce the offence 
 to manslaughter.^ 
 
 Caution. — There must always be certain caution exercised by the 
 driver commensurate to the liability to danger. Thus, a person 
 driving a carriage is not bound to keep on the ordinary side of the 
 road; but if he do not do so, he is bound to use more care and dili- 
 gence, and keep a better look out, that he may avoid any concussion, 
 than would be requisite if he were to confine himself to his proper 
 side of the road.^ 
 
 So it appears that if the driver might have seen the danger, but 
 did not look before him, it will be manslaughter, for want of due 
 circumspection.'* A. was driving a cart with four horses in the high- 
 way at Whitechapel, and he being in the cart, and the horses upon a trot, 
 
 1 2 Car. & Kir. 229—232. 2 Kennedy v. Way, Brightly R. 186. 
 
 3 PluckweU V. Wilson, 6 C. & P. 375. * Fost. 263. 
 
116 HOMICIDE. 
 
 they threw down a "woman, who was going the same way, with a bur- 
 den upon her head, and killed her. Holt, C. J., Tracy, J., Baron 
 Bury, and the Recorder, Lovel, held this to be only misadventure. 
 But by Holt, 0. J., if it had been in a street where people usually 
 pass, it had been manslaughter.' But upon this case Mr. East re- 
 marked, " It must be taken for granted from this note of the case, that 
 the accident happened in a highway, where people did not usually pass; 
 for otherwise the circumstance of the driver's being in the cart, and 
 going so much faster than is usual for carriages of that construction, 
 savoured much of negligence and 'impropriety; for it was extremely 
 difficult, if not impossible, to stop the course of the horses suddenly, 
 in order to avoid any person who could not get out of the way in time. 
 And, indeed, such conduct, in a driver of such heavy carriages, might, 
 under most circumstances, be thought to betoken a want of due care, 
 if any, though but few, persons might probably pass by the same road. 
 The greatest possible care is not to be expected, nor is it required: 
 but whoever seeks to excuse himself for having unfortunately occa- 
 sioned, by any act of his own, the death of another, ought at least to 
 show that he took that care to avoid it, which persons in similar situ- 
 ations are accustomed to do."^ 
 
 A carter, who is supposed not to have the means of controlling his 
 horse when standing in the cart, is bound to keep at his horse's head 
 or side, and if in consequence of his neglect in this respect, death 
 follows, he is guilty of manslaughter. Upon an indictment for man- 
 slaughter, the evidence was, that the prisoner, being employed to drive 
 a cart, sat in the inside instead of attending at the horse's head, and 
 while he was sitting there, the cart went over a child, who was ga- 
 thering up flowers on the road. Bayley, B., held, that the prisoner, 
 by being in the cart, instead of at the horse's head, or by its side, was 
 guilty of negligence ; and death having been caused by such negli- 
 gence, he was guilty of manslaughter.^ 
 
 A foot-passenger in England is not excluded from the use of the 
 carriage way, though there be a foot-path, and hence the killing of 
 him by a carriage is manslaughter in the owner, if reasonable care 
 was not used. Thus a tradesman was walking on a road, about two 
 feet from the foot-path, after dark; but there were lamps at certain 
 distances along the line of road, when the prisoner drove in a cart 
 drawn by one horse, at the rate of from eight to ten miles an hour, 
 according to some witnesses, and from six to seven miles an hour, 
 according to other witnesses; the prisoner sat on some sacks, laid on 
 the bottom of the cart, and he was near-sighted. Other persons, who 
 were walking aloug the same road, had with considerable difficulty 
 got out of the way of the prisoner's cart. Bolland, B., told the jury 
 that the question was, whether the prisoner, having the care of the 
 cart, and being a near-sighted man, conducted himself in such a way 
 as not to put in jeopardy the limbs and lives of his majesty's subjects. 
 If they thought he had conducted himself properly, they would say 
 he was not guilty; but if they thought that he acted carelessly and 
 negligently, they would pronounce him guilty of manslaughter.'' 
 
 1 1 East, p. C. 263. 2 1 East, P. C. 268. 
 
 ' Knight's case, 1 Lew. 168. See also Kepsher v. Wattson, 5 Harris, 365. 
 ♦ E. V. Groat, 6 C. & P. 627. 
 
NEGLIGENCE IN PERSONS HAVING CHARGE OF CHILDREN, ETC. 117 
 
 The same general views apply to accidents caused by persons ri- 
 ding on horseback in a furious and improper manner. If, however, 
 two are so riding in a furious and improper manner, and the second 
 strikes a third party, which results in the latter's death, it is the second 
 rider alone that is responsible. A. and B. were riding on horseback, 
 at a very rapid pace along a highway; the deceased, who was also on 
 horseback, drew off his horse as far from the middle of the road as 
 the place would allow: A. passed by him without any accident; but 
 B.'s horse and the horse of the deceased came in collision, and both 
 the deceased and B. were thrown, and the deceased killed. Patteson, 
 J., said, " I think that if two are riding fast, and one of them goes by 
 without doing any injury to any one, he is not answerable, because 
 the other, riding equally fast, rides against some one, and kills him. 
 A., therefore, must be acquitted. If you think that B. was riding 
 in an improper and furious way, and rode against the deceased, he is 
 guilty of manslaughter, but if you think that the deceased's horse 
 was unruly, and got into the way, you ought to acquit.'" 
 
 And as has just been noticed, if a man breaking an unruly or vi- 
 cious horse, ride him amongst a crowd, and the horse kick a man and 
 kill him; this is murder if the rider brought the horse into the crowd 
 with an intent to do mischief, or even to divert himself by frightening 
 the crowd ;^ manslaughter, if done heedlessly and incautiously only.' 
 
 IIL PERSONS HAVING CHARGE OF CHILDREN OR OP DEPENDANTS. 
 
 When a child dies after its birth, from wilful neglect during partu- 
 rition, or before that period, it is murder, or manslaughter, according 
 to the exact intention. No case has yet been reported on this precise 
 point, but that such would be the case may readily be inferred from a 
 case on another point where Erskine, J., directed the jury, that if they 
 were satisfied the child had been wholly produced from the body of 
 the prisoner alive, and that the prisoner wilfully strangled the child 
 after it had been so produced and while it was alive, and while it had, 
 according to the evidence of the surgeon, an independent circula- 
 tion of its own, he was of opinion that the charge in the counts was 
 made out, although the child at the time it was so strangled, still re- 
 mained attached to the mother by the navel string. The jury found 
 the prisoner guilty; and, upon a case reserved, the judges held the con- 
 viction right.'* 
 
 To justify a conviction for homicide by neglect, the cause of death 
 must have been corporal, not nervous or sentimental; and there- 
 fore where a, person, either by working upon the fancy of another, or 
 by harsh or unkind usage, puts him into such a 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.* But when an act is 
 done or committed, the probable consequence of which may be, and 
 eventually is death, such killing may be murder; although no stroke 
 be struck by the defendant and no killing may have been primarily 
 
 1 K V. Martin, 6 C. & P. 396. ^ 1 Hawk. c. 31, s. 68. 
 
 s 1 East, P. C. 231 ; see Hale, 231, 475; 1 Hawk. o. 29, s. 12. 
 
 * R. V. Trilloe, 1 C. & Mars. 650. 
 
 • 1 Hale, 427, 429; 1 East, P. C. c. 5, s. 13, p. 225; Fairlee v. Peaple, 1 Illinois, 1. 
 
218 HOMICIDE. 
 
 intended :' as where a person carried his sick father, against his will, 
 in a severe season, from one town to another, by reason whereof he 
 died;^ where a person otherwise helpless was exposed so as to freeze 
 to death ;^ where a woman being delivered of a child, left it in an or- 
 chard covered only with leaves, in which condition it was killed by a 
 kite;'' where a child was placed in a hogstye, where it was devoured,* 
 and where an infant child was shifted by parish officers from parish to 
 parish, till it died for want of care and sustenance, ° it was considered 
 that the act so done, followed by death, amounted to felonious homicide. 
 And such in this country was held to be the law where a master, know- 
 ing a seaman's debility and incapacity to hold on, forced him to go 
 aloft, whereupon the seaman fell to the deck, and was killed. Story, 
 J., saying in his charge to the jury, " In respect to the general principles 
 of law, applicable to cases of homicide, there has been no controversy 
 at the bar; and I am spared the necessity of expounding them beyond 
 what has been read from approved authorities. But the circumstances 
 of this case call for an explicit instruction to you upon the points 
 made in the defence. These are, 1, that the death of Whitehead, 
 (the seaman, whose death is feloniously charged in the indictment,) 
 was solely owing to accident and misadventure in the course of his 
 duty, the fall from the yard not being occasioned by his debility, but 
 by circumstances which might have occasioned it to a healthy seaman : 
 2. If his death was not owing to accident or misadventure, but simply 
 to his debility, yet the circumstances of the case do not show, that 
 such debility was so known to the master, that the order, that he should 
 go aloft, was unjustifiable or wantonly wrong: 3. That if the order 
 was not strictly justifiable, still the act was not the result of personal 
 malice to the deceased in particular, nor of brutal and malignant 
 passions or feelings, which establish general malice, and, therefore, 
 in no event can the facts justify a conviction of murder : 4. That it 
 is not a case even of manslaughter ; for there was not such a want of 
 caution, or such gross negligence in the master, as would, in the ab- 
 sence of malice, justify a verdict of manslaughter. The first inquiry 
 proper for the jury then is, whether Whitehead came to his death by 
 mere accident or misadventure; or whether it was occasioned by his 
 debility and exhaustion, arising from physical infirmity at the time 
 of his fall from the yard. If occasioned by such debility and exhaus- 
 tion, the next inquiry ought to be whether that state of debility and ex- 
 haustion was fully known to Capt. Freeman, when he gave the orders 
 for his. Whitehead's going aloft. If so, were the circumstances such as, 
 that Capt. Freeman must, and ought to have foreseen, that the enforce- 
 ment of his order to go aloft would probably be attended either by 
 death or enormous bodily injury by falling, to Whitehead, so that 
 the jury can justly infer, that it must have been persisted in from 
 personal malice to the deceased, or from such a brutal malignity of 
 conduct, as carries with it the plain indications of a heart regardless 
 of social duty, and fatally bent on mischief. If so, it was murder. 
 And it would not vary the case, that the moral force of the authority of 
 the master to compel performance, instead of physical force, produced 
 compliance with the order on the part of Whitehead, although the 
 
 1 4 Blac. Com. 197. ' 1 Hawk. P. C. c. 31, s. 4; 1 Hale, 431, 432. 
 
 s Nixoa V. People, 2 Scam. 269. * 1 Hale, 431 ; 1 Hawk. P. C. c. 31, s. 6. 
 
 5 1 East, P. C. 0. 5, a. 13, p. 226. ' Palm. 545. 
 
NEGLIGENCE IN PERSONS HAVING CHAEGE OP OTHERS. 119 
 
 latter was sensible of his own extreme debility. If the jury are not 
 satisfied, that there was either actual malice to the deceased, or con- 
 structiye malice, arising from brutal malignity, as before mentioned; 
 still, if the circumstances of the case show, that there was gross heed- 
 lessness, want of due caution, and unreasonable exercise of authority 
 on the part of Capt. Freeman, and that he ought to have known, and 
 could not but have known, that Whitehead was unfit to go aloft, and that 
 there was probable and immediate danger to his life in his so doing, 
 then notwithstanding the absence of such malice, the offence is at 
 least manslaughter. For every act done wilfully, and with gross neg- 
 ligence, by any person, the known efi'ect of which, under the circum- 
 stances, must be to endanger life, is, if death ensues, at least man- 
 slaughter." 
 
 And so also when the prisoner, her child having been born alive, 
 dropped it on the side of the road without any clothing or covering 
 to protect it from the inclemency of the weather, where it died from 
 the cold, she having wholly concealed the birth of the child till 
 she was apprehended ; Coltman, J., in summing up, said, "if a party 
 so conduct himself with regard to a human being, which is helpless 
 and unable to provide for itself, as must necessarily lead to its death, 
 the crime amounts to murder. But if the circumstances are not such 
 that he must have been aware that the result would be death the 
 crime would be manslaughter, provided the death were caused by an 
 unlawful act, but not such as to imply a malicious mind. There have 
 been cases where it has been held that persons leaving a child ex- 
 posed, and without any assistance, and under circumstances where no 
 assistance was likely to be rendered, were guilty of murder. It will 
 be for you to consider whether the prisoner left the child in such a 
 situation that to all reasonable apprehension she must have been 
 aware that the child must die, or whether there were circumstances 
 that would raise a reasonable expectation that the child would be 
 fourjd by some one else, and preserved, because then it would only 
 be the crime of manslaughter. If a person were to leave a child at 
 the door of a gentleman, the probability would be so great that it 
 would be found, that it would be too much to say that it was murder, 
 if it died : if, on the other hand, a child were left in an unfrequented 
 place, what inference could be drawn but that the party left it there 
 in order that it might die? This is a sort of intermediate case, and 
 therefore it is for you to say whether the prisoner had reasonable 
 ground for believing that the child would be found and preserved."^ 
 
 As has already been observed, the use of authority to compel a 
 party to do a fatal act, involves the guilt of felonious homicide. 
 Threats, alone, where the defendant occupies a position of authority, 
 have this effect. Thus, in a manuscript English case, it appeared 
 that the defendant, a husband, beat his wife and threatened to throw 
 her out of the window and to murder her; and that by such threats 
 she was so terrified that, through fear of his putting his threats into 
 execution, she threw herself out of the window, and of the beating 
 and the bruises received by the fall, died. There was strong evi- 
 
 ' U S ». Freeman, 4 Mason's E. 512, 513, 514. 
 
 2 e! i). Walters, 1 C. & Mars. 164. See Stookdale's case, 2 Lewin, 220. And see ante, 
 p. 93, 94. 
 
120 HOMICIDE. 
 
 dence that the death of the wife was occasioned by the blows she re- 
 ceived before her fall; but Heath, J., Gibbs, J., and Bayley, J., were 
 of opinion that if her death was occasioned partly by the blows and 
 partly by the fall, yet if she was constrained by her husband's threats 
 of further violence, and from a well-grounded apprehension of his 
 doing such further violence as would endanger her life, he was an- 
 swerable for the consequences of the fall, as much as if he had thrown 
 her out of the window himself.' And where the deceased, from a 
 well-grounded apprehension of a further attack, which would have 
 endangered his life, endeavoured to escape, and so doing, was fatally 
 injured from another cause, it was held murder.^ 
 
 A husband is bound to afford nurture and comfort to his wife, and 
 if she dies from the want of it, he is guilty of manslaughter. When, 
 however, there is a separation by mutual consent, and a separate 
 maintenance is allowed to and accepted by her, as he is not then 
 bound to supply her with shelter, he is not responsible for her death 
 from exposure. In a case, tried in England, in 1844, before Gurney, 
 B., this principle was carefully investigated. It appeared from the 
 evidence, that the prisoner and the deceased were married, and that, 
 for about four years previous to the death of the wife, which event 
 took place on the 24th November, 1843, they had separated by mu- 
 tual consent, the prisoner allowing her 2*. Qd. a week. This sum 
 had been, in general, regularly paid, and the last payment was on the 
 Sunday preceding her death, namely, the 19th November; from that 
 day the deceased had been ailing. On Tuesday, the 21st November, 
 she was turned out of her lodgings, being at that time suffering from 
 diarrhoea, sickness, and extreme pain. She proceeded to a surgeon, 
 who gave her some medicine. This she took, which somewhat relieved 
 her; and the following day she again visited the surgeon, who gave 
 her some more medicine, together with a note to the relieving officer 
 of the Union. This was never delivered. About the middle of that 
 day she was at the house of a person of the name of Weller, in a 
 state of great illness and suffering, when the prisoner, her husband, 
 passed by. Mrs. Weller called him in, telling him he must take his 
 wife away, as she could not shelter there. The prisoner replied, 
 "Turn her out; I won't be pestered with her," and then walked 
 away. On the night of Wednesday, which was wet and dark, she 
 was seen by a police constable, wandering about, seeking shelter at 
 Foot's Cray. The constable took her to a house, where the prisoner, 
 her husband, lodged. On calling him, the prisoner came to the win- 
 dow, when the constable told him of the state of his wife, who was 
 ill and without lodging, and explained to him that it was incumbent 
 on him to provide her with lodging and relief. The prisoner an- 
 swered, that he had no lodging for her, that she was a nasty beast, 
 and that he could not live with her; and immediately after, he shut 
 the window and went away. The constable would not positively 
 swear, that the prisoner actually saw that his wife was there with him. 
 The deceased refusing to accompany the constable to the station- 
 house, he left her. At 9 a.m., he subsequently found her sitting 
 
 1 R. V. Evans, 0. B. Sept 1812 ; MS. Bayley, J. ; 1 Kuss. on Cr. 488. 
 
 2 R. V. Hickman, 5 C. & P. 151 ; R. v. Pitts, 1 C. & Mars. 284. 
 
NEGLECT BY HUSBAND OP WIPE. 121 
 
 down in a privy, the door of which was unbolted, which was at the 
 back of some houses. It was raining hard and blowing a gale of 
 wind, and she had closed the door. She appeared then ill and wet. 
 At 7 p. M., on the following day, Thursday, the deceased came to the 
 Black Horse public house at Sidarp, being, to all appearance, very ill. 
 The prisoner was, at the moment, in the public-house with some 
 friends, and when told of the state of his wife, said, "She had never 
 been a wife to him for three years; but yet, if the landlady would 
 afford her the accommodation of a bed, he would pay for it." She 
 had already received a bed from the landlady, for which the deceased 
 offered to pay her, and she wont to bed. On the next morning (Fri- 
 day) the deceased was found to be in a dying state. She expired be- 
 fore medical aid could be procured. It appeared, from the post-mor- 
 tem examination which had been made, that the deceased was labour- 
 ing under a complication of mortal diseases, which must have speedily 
 resulted in death. The surgeon who opened the body gave it as his 
 opinion, that the immediate cause of death was diarrhoea brought on 
 by exposure to the inclemency of the weather ; and that he considered 
 the period of her existence had been abridged in consequence of her 
 not having had shelter on Wednesday night. In his defence, the 
 prisoner stated to the jury the causes which led him to separate from 
 the deceased, and said, that, in a conversation which he had with Mr. 
 Wells on the Wednesday, he offered to pay for whatever relief the 
 parish might afford to his wife. He further added, that, when the 
 constable called him up on the Wednesday night, his landlord would 
 not allow him to admit the deceased, but that he then promised to 
 procure her a lodging on the next day. Gubnby, B., (to the jurj'.) — 
 The prisoner stands indicted for manslaughter. But this manslaughter 
 wears a very different aspect from those which ordinarily come under 
 our notice. In the great majority of cases, the manslaughter, indeed, 
 I may say in almost all such cases, the death, is the result of some 
 violent act done or committed. Here however, the charge is, that 
 the prisoner, being the husband of the deceased, did wilfully neglect 
 to provide her with proper shelter, by reason of which her death was 
 accelerated. There are other counts charging him with neglecting 
 to provide her with food, but no evidence has been adduced in support 
 of them. But whether the death of the deceased was actually caused 
 by the act of the prisoner, or was only accelerated by it, the effect is 
 the same in point of law. If, notwithstanding the nature and extent 
 of her complaints, she could have lived on till the next month or the 
 next week, and her death prematurely occurred on the morning of 
 Friday, the 24th November, owing to, or by the misconduct of, the 
 prisoner, as laid in the indictment, then he is amenable to the law for 
 such misconduct. It appears that the prisoner and his deceased wife 
 had been separated for a considerable time, and that he had agreed 
 to allow her 2*. 6d. a week. Though it does not distinctly appear, 
 that this sum was paid punctually every week, still it does appear, 
 that, on the Sunday preceding her death, the deceased had received 
 the stipulated sum. There is, therefore, presumably, no ground for 
 any charge against the prisoner, as having caused her death, from 
 want of food, as the half crown would have supplied her from the 
 Sunday till the Friday. The charge against the prisoner appears to 
 
122 HOMICIDE. 
 
 be, that he refused intentionally to provide her with shelter against 
 the inclemency of the weather, she being at the same period of time 
 in a state of disease progressively advancing, then very advanced in- 
 deed, and which, no doubt, would soon have ended her sufferings. 
 For the four days preceding her death there is evidence of her state. 
 [The learned Baron here read over his notes of the evidence.] 
 On the night of Wednesday, when the deceased was in the privy, the 
 door was closed. The deceased was, therefore, in so far sheltered 
 from the weather, and she requested the constable not to take her to 
 the station-house, which is a remarkable fact, for there she would 
 have found both shelter and warmth. The facts that particularly 
 affect the prisoner in this case are, first, the request made to him by 
 Mrs. Weller on Wednesday, when she asked him to take care of his 
 wife, which he refused to do. This refusal was about mid-day on 
 Wednesday, and you have heard stated in evidence the state in which 
 the deceased woman then was. On the Wednesday evening in No- 
 vember, on a cold and rainy night, the constable knocks at the window 
 of the prisoner's house, and states that his wife applies to him for 
 shelter, but he shuts the window and refuses it. Such are the facts 
 of the case. You will consider that he had regularly paid her allow- 
 ance to her, and that he might have been compelled to pay her a 
 larger sum if that had not been sufficient. Under ordinary circum- 
 stances he might have refused to have anything to do with her, but when 
 she was ill, and without shelter, on a cold and wet night in Novem- 
 ber, the question assumes a different aspect; and it is this, whether 
 you can certainly conclude that his refusal to give her shelter at that 
 time had the effect of causing her death to occur sooner than the 
 event would have happened in the ordinary progress of the disease, 
 — sooner, in a word, than if such refusal had not been given. That 
 is really the question for your consideration. Many cases have been 
 decided on the precise extent to which a father, husband, or master 
 is bound to provide for his child, wife, or servant. But in those cases 
 the parties were living under the roof of the parent, husband, or master, 
 which implied a particular obligation. But here the circumstances 
 are different, for the parties were actually separated. Whether this 
 circumstance should take the case out of the ordinary rule, is a point 
 which, if necessary, I will reserve for further consideration. But I 
 will now take the opinion of you, gentlemen of the jury, as to whether 
 the prisoner did, on the night of Wednesday, refuse to give his wife 
 shelter, and whether his so refusing to do so, and leaving her in the 
 state of bodily disease, in which she then was, exposed to the incle- 
 mency of the weather, accelerated her death. It does not appear in 
 evidence that he knew what her disease was, or that she was alHicted 
 with that mortal illness under which she laboured, or that she was 
 suffering from the diarrhoea which caused her death ; but he was, never- 
 theless, informed that she was very ill, and had not shelter. If you 
 should be of opinion that her death was caused or accelerated by his 
 conduct in refusing to give her shelter, you will say that he is guilty. 
 If on the contrary you entertain any doubt on this point, you will 
 acquit him. Various cases have occurred, and will, no doubt, occur 
 again, in which, though juries may highly disapprove of, and repro- 
 bate the conduct of parties, yet in which, nevertheless, they cannot, 
 
NEGLECT BT MASTER OF APPRENTICE. ] 23 
 
 with safe consciences, convict them on a criminal charge. Verdict — 
 Not guilty.' 
 
 Eecent cases, both in this country and in England, have led to 
 a salutary application of the same general principle to the relations 
 of parent and child, and master and apprentice. Fortunately, with 
 the exception of those for exposure of young infants,^ the trials of 
 this nature arising from the first of these relations, have been but rare, 
 but the law established by them, is, that if the death of a child be 
 caused by premeditated negligence or harsh usage, it will be murder 
 at common law; or where such distinction exists, murder in the second 
 degree, unless it appear that the intention was actually to take life, 
 when it will be murder in the first degree. In connexion with the 
 relations of master and apprentice, there are several reported cases 
 on this head. Thus, where the prisoner, upon his apprentice return- 
 ing to him from Bridewell, whijther he had been sent for misbeha- 
 viour, in a lousy and distempered condition, did not take that care 
 of him which his situation required, and which he might have done; 
 not having suffered him to lie in a bed on account of the vermin, but 
 having made him lie on the boards for some time without covering, 
 and without common medical care; and the death of the apprentice, 
 in the opinion of the medical persons who were examined, was most 
 probably occasioned by his ill treatment in Bridewell, and the want 
 of care when he went home; and the medical persons inclined to 
 think that, if he had been properly treated when he came home, he 
 might have recovered; the court, under these cii'cumstances, and 
 others in favour of the prisoner, left it to the jury to consider, whe- 
 ther the death of the apprentice was occasioned by the ill treatment 
 he received from his master after returning from Bridewell, and 
 whether that ill treatment amounted to evidence of malice; in which 
 case they were to find him guilty of murder.' And it is now held 
 that the same principle applies to the withholding of proper food, so 
 that death ensues. Thus, in a modern case, it appears that the priso- 
 nei's, who were a husband and wife, had used the deceased, who was 
 then apprentice, in a most cruel and barbarous manner, and had not 
 provided him with sufficient food and nourishment; but the surgeon 
 who opened the body deposed that in his judgment the boy died 
 from debility, and for want of proper food and nourishment, and not 
 from the wounds, &c., which he had received. The court was of 
 opinion that the case was defective as to the wife, as it was not her 
 duty to provide the apprentice with sufficient food and nourishment, 
 she being the servant of her husband, and so directed the jury, who 
 acquitted her: the husband, however, was found guilty and executed.'' 
 
 A party who causes the death of a child by giving it spirituous 
 liquors in a quantity quite unfit for its tender age, is guilty of man- 
 slauo-hter. Upon an indictment for manslaughter, which charged the 
 prisoner with giving a quartern of gin to a child of the age of four 
 years, which caused its death, and which quantity of gin was averred 
 to be excessive for a child of that age, it appeared that the prisoner 
 
 1 R. V. Plummer, 1 Car. & Kir. 602-7. ' See ante, p. 93—97. 
 
 » Self's case, 1 East, P. C. c. 5, s. 13, p. 226-7 ; 1 Leach, 137. 
 
 ' E V Squire and his wife, Stafford Lent Assijesj 1799. 1 Bus, on Cr. 491. 
 
124 HOMICIDE. 
 
 having ordered a quartern of gin, asked the child if it would have a 
 drop, and that on his putting the glass to the child's mouth, the child 
 twisted the glass out of his hand, and swallowed nearly the whole of 
 the gin, which caused its death. Yaughan, B., " As it appears clearly 
 that the drinking of the gin in this quantity was the act of the child, 
 the prisoner must be acquitted ; but if it had appeared that the pri- 
 soner had willingly given a child of this tender age a quartern of gin, 
 out of a sort of brutal fun, and had thereby caused its death, I should 
 most decidedly have held that to be manslaughter, because I have no 
 doubt that the causing the death of a child by giving it spirituous 
 liquors in a quantity quite unlit for its tender age, amounts, in point 
 of law, to that offence."^ 
 
 And so where an opiate is unduly administered to a child with in- 
 tent to produce artificial quiet, and death ensue, it is manslaughter. 
 Thus on an indictment for the murder of an infant by the adminis- 
 tration of laudanum, when the judge below charged the jury, that 
 "if Ann, a slave, without authority, administered laudanum to the 
 infant, with the intent to produce unnecessary sleep, and contrary to 
 her expectations it caused death, she would be guilty of murder." 
 The Supreme Court held this charge to be erroneous, ruling that the 
 administration of laudanum was not per se unlawful, and that as the 
 charge excluded from the jury the consideration of the fact, whether 
 the defendant intended serious mischief to the infaat or not, and 
 whether the offence amounted to murder or manslaughter, a new trial 
 should be awarded.^ " The plaintiff in error," said M'Kinney, J., in 
 delivering the opinion of the court, "was indicted jointly with ano- 
 ther slave named Tom, in the Circuit Court of Williamson, for the 
 murder of Mary E. B. Marr, the infant child of their master and mis- 
 tress. The jury acquitted Tom, and found the plaintiff in error guilty 
 as charged in the indictment. The court refused to grant a new trial, 
 and pronounced judgment of death upon the prisoner, from which an 
 appeal in error has been prosecuted to this court. It is not necessary 
 in the view we have taken of the case, to state the evidence in detail ; 
 a mere outline will be sufficient to raise the questions of law pre- 
 sented for our determination, except the question in relation to the 
 admissibility of the prisoner's confession. The infant, of whose mur- 
 der the prisoner stands convicted, was of extremely tender age, only 
 five weeks old; and the death was caused by an over dose of lauda- 
 num administered by her, without the knowledge of any one, and 
 contrary to a general command, not to give the child anything what- 
 ever. The prisoner is of immature age, being, at the time of the 
 alleged murder, not over fifteen years. A day or two preceding the 
 death of the infant, the prisoner was taken from the negro quarter 
 on the plantation, and put in the house to serve in the capacity of 
 nurse. On the day of the infant's death, Mrs. Marr went into another 
 room to attend to some domestic affairs, leaving the child asleep in 
 the cradle, in the charge of the prisoner; she remained absent about 
 fifteen minutes, as she supposes, during which time the laudanum was 
 administered. The child survived about four hours. A physician was 
 immediately sent for, but did not arrive until about two hours after 
 
 1 E. V. Martin, 3 C. & P. 211. => Ann v. State, 11 Murp. 159. 
 
IMPROPER AND NEGLIGENT TREATMENT OP YOUNG CHILDREN. 125 
 
 the laudanum was given, and his efforts to counteract its effect were 
 unavailing. He states that the death was caused by an over dose of 
 laudanum, and that half a drop was as large a dose as the infant could 
 have borne. The prisoner for some time denied having given lauda- 
 num to the infant. Her master was much excited : inflicted blows 
 with his hand upon the prisoner: threatened to shoot her; but was 
 induced to desist by the persuasions of his wife, and sent her off to 
 the quarter, where she was put in chains around her body and neck. 
 On Saturday evening, after the death of the child, which happened 
 on the preceding day, Nichols, the overseer of Marr, and Giles, over- 
 seer of Perkins, who lived on an adjoining farm, went together after 
 night to the house where the prisoner was confined. Giles states 
 that she was asked by him, "how she came there;" seemed slow in 
 speaking. Nichols told her to speak. She then said she had given 
 laudanum to the baby, and it had killed it. He then asked her how 
 she came to do it? She said Tom had been. at her to meet him out 
 at night, and told her if she would give it laudanum it would sleep 
 until she could get back; that she asked him if it would hurt; he said 
 no, he had given it many times to his wife Eliza, and it never hurt 
 her. She was told she had better come out and tell the truth, it 
 would be better for her. She was asked if she would make the same 
 statement before Tom that she had made to witness and Nichols. 
 She said she would. Witness and Nichols then went to Tom's house 
 and took him into the house where the prisoner was, and told her to 
 tell her tale again. She said Tom had recommended her to give it, 
 and that it would make the baby sleep till she could get back; and 
 she asked him if it would hurt. Tom denied all this. She said she 
 thought she would try and see if it would make it sleep, and had 
 poured some in her hand and given it. That since she had been 
 chained, that Tom had been there and told her that she had given it 
 wrong — that she ought to have put some brandy in it, and sweetened 
 it, and then the child would not have died in several days; that he 
 told her she must admit that she had given it, but not to call his 
 name or he would shorten her days. Tom denied all this. Witness 
 further stated, that in the first talk with' her he told her it would be 
 better for her to come out and tell the truth. Nichols' statement of 
 the prisoner's confession is somewhat different from that of Giles'; 
 but we have thought proper to take the latter as probably the more 
 correct and reliable statement. There is proof in the record of an 
 improper intimacy having existed between Tom (who was of mature 
 age) and the prisoner, for some weeks previous to the removal of the 
 latter from the quarter to the house. The witness Nichols speaks of 
 one occasion when he detected them, but, he says, he " passed on and 
 said nothing, as it was no business of his, and he did not care what 
 they did." Judging from this avowal of the overseer, the morals of 
 the slaves under his dominion were in bad keeping; and it is not 
 much to be wondered at that the prisoner, who was brought up at 
 the quarter, had a more imperfect sense of the obligations of morality 
 and common decency than is even usual among those of her own caste 
 and social condition. The circuit judge, in his instructions to the 
 jury, after stating the general definition of murder and malice, and 
 laying down some general principles, the correctness of which is not 
 
126 HOMICIDE. 
 
 questioned, said: "If Ann, the prisoner, by force poured laudanum 
 into the mouth of Mary B. B. Marr, such act, unless excused or justi- 
 fied by the evidence, would amount to a battery, and she would be 
 responsible in law for the natural effects of the laudanum, although 
 they may have been more serious than she designed or expected. If 
 Ann was the slave of Nicholas Marr, the witness, and was employed 
 by him to attend Mary E. B. Marr, and If she was ordered by her 
 master not to administer any thing to the said Mary E. B. Marr; if 
 she without authority wilfully administered laudanum to said Mary, 
 intending thereby to produce unnecessary sleep, and contrary to her 
 expectations it caused death, she would be guilty of murder." The 
 first question for our consideration is, — Was the confession of the pri- 
 soner, which was objected to, properly admitted as evidence to the 
 jury? This is a question which admits of no discussion. All autho- 
 rities concur, that a confession, to be admissible as evidence, must 
 have been freely and voluntarily made, and not under the influence 
 of promises or threats. As to what is such a promise or threat as will 
 exclude a confession, it is laid down, that saying to a person it will 
 be worse for him if he do not confess ; or, that it will be better for 
 himself if he do, is suflicient to exclude the confession." So, where a 
 surgeon called to see a prisoner charged with murder said to her, 
 " you are under suspicion of this, and you had better tell all you 
 know," the confession was held inadmissible.^ So where it was said 
 to the prisoner, " it would have been better if you had told at first," 
 the confession was rejected." It would be a useless labour to multi- 
 ply authorities upon a point in respect to which ther,e is no substan- 
 tial disagreement to be found in the books. Nor would it be more 
 profitable to indulge in speculation as to the probable influence of 
 such a promise or threat in a particular case: certainly not in the 
 case of a timid girl, of tender age, ignorant and illiterate, a slave and 
 in chains, whose life had been threatened by her master, and against 
 whom the hand of every one, even those of her own colour and condi- 
 tion, seems to have been raised. In such case, and in all cases, the 
 law conclusively presumes that an influence was exerted upon the 
 mind of the prisoner, and, therefore, all inquiry upon the subject is 
 precluded. 2d. The next question is, was the law correctly stated to 
 the jury? We think not. The error of the charge will be obvious 
 from the mere statement of a few plain elementai-y principles. To 
 constitute the crime of murder by the common law, and by that law 
 this case is to be governed, the killing must be with malice afore- 
 thought, no matter by which of the thousand means adequate to the 
 destruction of life, the death may have been effected. Malice, in its 
 legal sense, is the sole criterion by which murder is distinguished 
 from every other species of homicide. The malice essential to con- 
 stitute the crime of murder, however, is not confined to an intention 
 to take away the life of the deceased, but includes an attempt to do 
 any unlawful act, which may probably result in depriving the party 
 of life. " It is not," in the language of Blackstone, " so properly spite 
 or malevolence to the individual in particular, as an evil design in 
 general, the dictate of a wicked, depraved, and malignant heart: and 
 
 2 East, p. C. 659. M C. & P. 381. » 6 C. & P. 175. 
 
IMPROPER AND NEGLIGENT TREATMENT OP YOUNG CHILDREN. 127 
 
 it may be either express or implied in law.'" If an action unlawful 
 in itself, be done deliberately and with intention of mischief, or great 
 bodily harm, to particulars, or of mischief indiscriminately, fall where 
 it may, and death ensue; against or beside the original intention of 
 the party, it will be murder. But, if such mischievous intention do 
 not appear, (which is a matter of fact to be collected from the cir- 
 cumstances) and the act was done heedlessly and incautiously, it will 
 be manslaughter only.* But, if the death ensue in the performance 
 of a lawful act, it may amount either to murder, manslaughter, or 
 misadventure, according to the circumstances by which it is accom- 
 panied.' These general principles apply as much to a case where 
 death ensues by means of a medicine of pernicious qualities, as to any 
 other species of homicide. It is true, that where one wilfully poisons 
 another, from such deliberate act the law presumes malice, though 
 no particular enmity can be proved.'' But this presumption may be 
 displaced in case of death from poison, as in other cases, by direct 
 proof, or by the circumstances of the particular case. If, as Black- 
 stone says, the poison were wilfully administered, that is, with the 
 intent that it should have the effect of destroying the life of the party; 
 or, if in the language of Poster, the act were "done deliberately and 
 with intent of mischief, or great bodily harm," and death ensue, it 
 will be murder. But, if it were not wilful, and such deliberate mis- 
 chievous intention do not appear; and the act was done heedlessly, 
 and incautiously, it will be only manslaughter at the most. Testing 
 the charge by these familiar principles, it is manifestly incorrect in 
 several respects. It assumes that if the prisoner administered the 
 laudanum in violation of her master's order, for the purpose of " pro- 
 ducing unnecessary sleep," and death ensued, contrary to her inten- 
 tion, she is guilty of murder. This is not law. In the first place, 
 the charge puts the disobedience to the master's order, on the same 
 footing with a violation of a command, or prohibition of the law. 
 This is a great mistake. Such violation of her master's order is not 
 an " unlawful act" in the sense of the rule above stated. It is no 
 offence against the law of the land; nor is it cognisable by any tri- 
 bunal created by law. It is an offence simply against the private 
 authority of the master, and is cognisable and punishable alone in the 
 domestic forum. Again, the criminality of the act is made to depend 
 upon an intent with reference to the deceased infant, which may be 
 in law, if not positively innocent, at least comparatively so. The lau- 
 danum may have been given by the prisoner in utter ignorance of the 
 fact that it possessed any poisonous quality, and there may have been 
 a total absence of any intention to do serious injury, or indeed injury 
 of any sort, much less to destroy the life of the child. If the prisoner's 
 purpose really was, to superinduce a state of temporary quietude or 
 sleep, without more, in order to afford better opportunity, or greater 
 facility, for carrying on her own illicit intercourse with Tom, this, 
 however culpable in morals, would not involve her in the guilt of mur- 
 der. The tenderest of mothers might administer laudanum to her 
 infant incautiously, in order to be enabled to attend some pressing 
 call of her household affairs, which admitted of no delay; or a gay 
 
 1 4 Bl. Com. 199, 200. 2 Fost. 261. 
 
 s Fost. 262; 1 Hale, 472; 4 Bl. Com. 192. * 4 Bl. Com. 199. 
 
128 HOMICIDE 
 
 and thoughtless matron, devoted to the pursuit of pleasure, though 
 not devoid of natural affection for her infant, might give a similar 
 dose, in order to have an opportunity to attend the theatre or ball- 
 room for a time. And although in both the latter cases the motive, 
 as far as respects the actors, is different, and less offensive to morals 
 or propriety, yet the purpose or intention, with reference to the effect 
 to be produced upon the child, is the same, in kind at least, that is, 
 in the language of the charge, to " produce unnecessary sleep." And, 
 yet, perhaps, no one would contend that had death ensued, in either 
 case, the mother would have been guilty of either murder or man- 
 slaughter. In the case of the prisoner, her relation as a slave, taken 
 in connexion with her disregard of her master's positive directions, 
 and the gross heedlessness and incautiousness of the act, might con- 
 stitute her offence manslaughter, but certainly nothing more. The 
 charge of the court then is not only erroneous in excluding from the 
 consideration of the jury, the questions of fact, whether or not the 
 prisoner had knowledge of the poisonous qualities of laudanum, and 
 whether or not there existed in the mind of the prisoner an intent to 
 kill, or to do serious injury to the deceased, but likewise in not sub- 
 mitting it to the jury to determine the grade of the offence, whether 
 murder or manslaughter. If the offence amounted to no more than 
 manslaughter, as we hold to be clear, then the Circuit Court had no 
 jurisdiction of the case. In the case of Nelson, a slave, v. the state, 
 at the last term at Jackson, it was held that, by our law, manslaughter 
 might be committed by a slave; but that the circuit court had no ju- 
 risdiction of such case. In delivering the judgment of the court in 
 ■that case. Judge Green says, it is true, an indictment against a slave 
 for murder, does not include a charge of manslaughter, because by 
 the act of 1819, ch. 35, sec. 1, murder, committed by a slave, is de- 
 clared to be capital, and by the act of 1835, ch. 19, sec. 9, exclusive 
 original jurisdiction is given to the Circuit Courts, of all offences 
 committed by slaves, which are punishable with death; and as man- 
 slaughter is not so punishable, the Circuit Court has no jurisdiction 
 thereof. By the act of 1815, ch. 18, s. 38,' a special tribunal, con- 
 sisting of three justices, and nine freeholders and slaveholders, is 
 created for the trial of all offences committed by slaves, that are not 
 capital, with authority to "pass such judgment according to their dis- 
 cretion, as the nature of the crime or offence shall require," not 
 affecting life or limb. By the act of 1819, ch. 35, sec. 1, murder, ar- 
 son, burglary, rape and robbery, when committed by slaves, are de- 
 clared capital, and to be punished with death; and all other offences 
 are to be punished as heretofore, provided, however, that such pu- 
 nishment shall not extend to life or limb. The judgment of the Cir- 
 cuit Court will be reversed.^ 
 
 At common law, the master is not obliged to provide medical at- 
 tendance for a sick servant, though in this country under the insti- 
 tution of slavery he undoubtedly is; and where apprenticeship exists, 
 he is commonly responsible if the apprentice suffers from want of pro- 
 per medicines or attendance.' An indictment for manslaughter in one 
 count alleged that the deceased was the apprentice of the prisoner, 
 
 1 2 Scott's Rev. 246-7. ' Ann v. State, 11 Humph. R. 159, &o. 
 
 » Sellen v. Norman, 4 C. & P. 80; R. v. Smith, 8 C. & P. 153. 
 
NEGLIGENCE TOWARDS CHILDREN, ETC. 129 
 
 and that it was his duty to provide sufficient food for her as such ap- 
 prentice, and that he neglected to do so, &c., by means of which she 
 died ; and in another count it was alleged that the deceased was the ser- 
 vant of the prisoner, and that it was his duty to provide her with food, 
 &c. An invalid indenture of apprenticeship was put in, and it ap- 
 peared that the deceased had always been treated as an apprentice 
 by the prisoner, and had performed such duties as an apprentice 
 would have performed, but the prisoner being a farmer, these duties 
 were the same as those performed by ordinary farmers' servants. It 
 was objected that the first count was not proved, as the indenture was 
 invalid ; and that the relation of master and servant never existed, 
 for an invalid contract of apprenticeship could not be converted into 
 a hiring and service: that the foundation of this indictment was that 
 the prisoner was legally bound to provide maintenance for the de- 
 ceased, and here it was clear he could neither have been compelled 
 to support her as an apprentice or as a servant. But it was held that 
 the prisoner having treated the deceased as his servant, could not turn 
 round and say she was not his servant at all.' And so also where one 
 count stated that the deceased was the apprentice of the prisoner, and 
 that it was his duty to provide the deceased with proper and necessary 
 nourishment, medicine, medical care and attention, and charged the 
 death to be from neglect, &c. A second count averred that the de- 
 ceased " so being such apprentice as aforesaid," was killed by the pri- 
 soner by over- work and beating; and the only evidence given to show 
 that the deceased was an apprentice, was, that the prisoner had stated 
 that he was an apprentice. Patteson, J., held that there was sufiScient 
 evidence to support the second count, but not the first.^ 
 
 Much doubt exists as to the legal obligation of a father to support 
 an illegitimate child, though as to the fact of the moral duty, there 
 can be no question.^ Puffendorf tells us" that "maintenance is due 
 not only to legitimate children, but even to incestuous issue." But 
 be this as it may, it is clear that when a party assumes the guardian- 
 ship of a child, whether as putative or step parent, he becomes re- 
 sponsible for mismanagement or neglect. If he inflicts corporal pu- 
 nishment on a child, and compels it to work for an unreasonable num- 
 ber of hours, and beyond its strength, and the child dies of a disease 
 hastened by such ill treatment, it will be murder if the ti-eatment 
 was of such a nature as to indicate malice ; but if such person be- 
 lieved that the child was shamming illness, and was really able to do 
 the work required, it will only be manslaughter, although the pu- 
 nishment were violent and excessive.' 
 
 And the same law undoubtedly obtains in the case of a school-master, 
 who stands in loco parentis. And where correction is applied, it mast 
 be moderate, for where it exceeds the bound of moderation, and 
 reaches that of cruelty, or when it is inflicted merely for caprice or 
 malice, the perpetrator is answerable for the consequences.^ Under 
 
 1 R. V. Davies,- Hereford Sum. Ass. 1831, Patteson, J., MS. ; 1 Russ. on Cr. 491. 
 
 2 R. V. Crumpton, 1 C. & Mars. 597. ' 
 
 3 Nichols V. Allen, 3 C. & P. 36. ■* Book 4, c. 11, s. 6. 
 5 R. V. Conner, 6 C. & P. 438 ; R. v. Cheeseman, Ibid. 455. 
 
 8 Post. 262; 1 Hale, 454; Johnson v. State, 2 Humph. 283; State v. Pendergrass, 
 2 Dev. & Bat. 407 ; Reeve's Dom. Rel. 288. 
 - 9 
 
130 HOMICIDE, 
 
 the system prevailing in some of the American States of letting out 
 insane or infirm paupers to private persons at minimum bids, many 
 cases of hardship have arisen and must arise. In these the law has 
 uniformly been held to be, that where a party undertakes to provide 
 necessaries for a person who is so aged and infirm that he is incapa- 
 ble of doing so for himself, and through his neglect to perform his 
 undertaking death ensues, he is criminally responsible. In an English 
 case, upon an indictment for murder, which stated that the deceased 
 was of great age, and was residing in the house and under the care 
 and control of the prisoner, and that it was his duty to take care of 
 and find her sufficient meat, &c., and then alleged her death to have 
 been caused by confining her against her will, and not providing her 
 with meat and other necessaries; it appeared that she was seventy- 
 four years of age, and that upon the death of her sister, with whom 
 she had lived, the prisoner, who attended the funeral, took the de- 
 ceased home with him, saying she was going home to live along with him 
 till afi'airs were settled, and he would make her happy and comforta- 
 ble; and on another occasion the prisoner had said that in considera- 
 tion of a transaction, which he mentioned, he had undertaken to keep 
 the deceased comfortable as long as she lived. When the deceased 
 first went to the prisoner's a servant was kept, and the deceased 
 lodged in the back parlour, afterwards she was removed into the 
 kitchen. After some time no servant was kept, and the deceased was 
 waited on by the prisoner and his wife, and she remained locked in 
 the kitchen alone, sometimes by the prisoner and sometimes by his 
 wife, for hours together; and on several occasions had complained of 
 being confined: in the cold weather no fire was discernible in the 
 kitchen, and for some time before her death, the deceased was con- 
 tinually locked in the kitchen, and not out of it at all. An under- 
 taker's man stated that, from the appearance of the body, he thought 
 she had died from want and starvation. A surgeon proved that the 
 immediate cause of death was water on the brain : that the appearance 
 of all parts of the body betokened the want of proper food and nou- 
 rishment, and that there was great emaciation of the body, and that 
 the water on the brain might have been produced by exhaustion. 
 Patteson, J. " If the prisoner was guilty of wilful neglect, so gross and 
 wilful that you are satisfied he must have contemplated the death 
 of the deceased, then he will be guilty of murder; if, however, you 
 think only that he was so careless, that her death was occasioned by 
 his negligence, though he did not contemplate it, he will be guilty 
 of manslaughter. The cases which have happened of this description 
 have been generally cases of children and servants, where the duty 
 has been apparent. This is not such a case; but it will be for you to 
 say whether from the way in which the prisoner treated her, he had 
 not by way of contract, in some way or other, taken upon him the per- 
 formance of that duty, which she from age and infirmity, was incapa- 
 ble of doing." * * * "This is the evidence on which you are called 
 to infer that the prisoner undertook to provide the deceased with ne- 
 cessaries: and though, if he broke that contract, he might not be lia- 
 ble to be indicted during her life, yet if by his negligence her death 
 was occasioned, then he becomes criminally responsible."! 
 
 ' R. V. Marriott, 8 C. & P. 426, Patteson, J. 
 
NEGLIGENCE BY MEDICAL MEN, ETC. 131 
 
 IV. MEDICAL MEN, APOTHECARIES, ETC. 
 
 Judicial sentiment on the subject of mal-practice by medical at- 
 tendants has been characterized by much vacillation. The original 
 ground taken was, that if a physician or surgeon give his patient a 
 potion or plaster, intending to do him good, and, contrary to the ex'- 
 pectation of such physician, or surgeon, it kills him, this is neither 
 murder nor manslaughter, but misadventure.^ It was then held, 
 that if the medicine were administered, or the operation performed, 
 by a person not being a regular physician or surgeon, the killing 
 would be manslaughter at the least.^ Thus in a case decided in 1829, 
 where the prisoner was indicted for manslaughter, it appeared that 
 the deceased had been discharged from the Liverpool Infirmary as 
 cured, after undergoing salivation, and was recommended to go for 
 an emetic to get the mercury out of his bones, to the prisoner, an old 
 woman, who occasionally dealt in medicines, and she gave him a solu- 
 tion of white vitriol, or corrosive sublimate, one dose of which caused 
 his death. She said she had received the mixture from a person who 
 came from Ireland. Bayley, J., said, " I take it to be quite clear that 
 if a person, not of medical education, in a case where professional aid 
 might be obtained, undertakes to administer medicine which may 
 have a dangerous effect, and thereby occasions death, such person is 
 guilty of manslaughter. He may have no evil intention, and may 
 have a good one ; but he has no right to hazard the consequence in 
 a case where medical assistance may be obtained; if he does so, it 
 is at his peril. It is immaterial whether the person administering 
 the medicine prepares it or gets it from another."^ 
 
 But the English, and as will presently be seen, the American law 
 now is that the want of a degree, (unless there be a special statute on 
 the subject,) adds nothing to the grade of the offence, if there be a 
 bona fide and honest attempt by the defendant to do his best. Thus, 
 where in a prosecution for mal-practice it was proposed to show that 
 the prisoner had had a regular medical education, and that a great 
 number of cases had been successfully treated by him, HuUock, B., 
 (stopping the case,) said, " This is an indictment for manslaughter, and 
 I am really afraid to let the case go on, lest an idea should be enter- 
 tained that a man's practice may be questioned whenever an opera- 
 tion fails. In this case there is no evidence of the mode in which this 
 operation was performed; and even assuming for the moment that it 
 caused the death of the deceased, I am not aware of any law which 
 says that this party can be found guilty of manslaughter. It is my 
 opinion that it makes no difference whether the party be a regular or 
 irregular surgeon; indeed, in remote parts of the country many per- 
 sons would be left to die, if irregular surgeons were not allowed to 
 practise. There is no doubt that there may be cases where both re- 
 gular and irregular surgeons might be liable to an indictment, as there 
 might be cases where, from the manner of the operation, even malice 
 might be inferred. AH that the law books^ have said has been read 
 to you, but they do not state any decisions, and their silence in this 
 
 1 4 Blac. Com. 197; 1 Hale, 429. = Brit. c. 5; 4 Inst. 251. 
 
 " K. V. Simpson, Willcock's L. Med. Prof. Append. 227. 
 * 4 Bl. Com. 197, 1 Hale, P. C. 429; 4 Inst. 251. 
 
132 HOMICIDE. 
 
 respect goes to show what the uniform opinion of lawyers has been 
 upon this subject. As to what is said by Lord Coke, he merely de- 
 tails an authority, a very old one, without expressing either approba- 
 tion or disapprobation; however, we find that Lord Hale has laid down 
 what is the law on this subject. That is copied by Mr. J. Blackstone, 
 and no book in the law goes any further. It may be that a person 
 not legally qualified to practise as a surgeon may be liable to penal- 
 ties, /but surely he cannot be liable to an indictment for felony. It is 
 quite clear you may recover damages against a medical man for want 
 of skill ; but as my Lord Hale' says, ' God forbid that any mischance 
 of this kind should make a person guilty of murder or manslaughter.' 
 Such is the opinion of one of the greatest judges that ever adorned 
 the bench of this country; and his proposition amounts to this, that if 
 a person, bond fide and honestly exercising his best skill to cure a pa- 
 tient, performs an operation, which causes a patient's death, he is not 
 guilty of manslaughter. In the present case no evidence has been 
 given respecting the operation itself. It might have been performed 
 with the most proper instrument and in the most proper manner, and 
 yet might have failed. Mr. L. has himself told us that he performed 
 an operation, the propriety of which seems to have been a sort of vex- 
 ata qucBstio among the medical profession; but still it would be most 
 dangerous for it to get abroad, that, if an operation performed either 
 by a licensed or unlicensed surgeon should fail, that surgeon would 
 be liable to be prosecuted for manslaughter."^ 
 
 Varying but slightly from this case is one of about the same date, 
 in which Lord Ellenborough told the jury, — " To substantiate that 
 charge, the prisoner must have been guilty of criminal misconduct, 
 arising either from the grossest ignorance, or the most criminal inat- 
 tention. One or other of these is necessary to make him guilty of 
 that criminal negligence and misconduct, which is essential to make 
 out a case of manslaughter. It does not appear that in this case 
 there was any want of attention on his part; and from the evidence 
 of the witnesses on his behalf, it appears that he had delivered many 
 women at different times, and from this he must have had some de- 
 gree of skill. "^ 
 
 It is obvious, that the position just taken, depends upon the ho- 
 nesty and bona fides of the practitioner. Where, however, he is pur- 
 suing a plan of bold imposture, the case is otherwise, and this whe- 
 ther he be with or without a degree. The cases that come nearest 
 to the application of this doctrine, (though the circumstances did not 
 directly evolve it) are those of St. John Long, in England, and Thomp- 
 son in this country. Two prosecutions against the former are reported. 
 The first was on an indictment for manslaughter by feloniously rub- 
 bing, sponging and washing Miss C. with a certain inflammatory and 
 dangerous liquid. It appeared that two of her family had died of con- 
 sumption, but that she had enjoyed good health, till her mother, Mrs. 
 
 1 1 Hale, P. C. 429. 
 
 = R. V. Van Butohell, 3 C. & P. 629, coram Hullook, B., and Littledale, J. Verdict, 
 not guilty. 
 
 ' R. V. Williamson, 3 C. & P. 635. In addition to the facts above stated, it was proved 
 hat the prisoner had attended the deceased in seven previous confinements -with perfect 
 uccess, and that the deceased wished him to attend her in her last confinement. See 
 
 C. & P. 407, note (a.) 
 
NEGLIGENCE BY MB^ICAL MEN. 133 
 
 C, hearing of an assertion of the-prisoner that unless Miss C. put her- 
 self under his care she would die of consumption in two or three 
 months, placed her under his charge. The prisoner was accustomed 
 to rub a mixture on different parts of the bodies of his patients, 
 and this had been applied to Miss C. on the 3rd of August, by the 
 prisoner's servant, and by his direction. On Friday, the 13th of 
 August, a witness went with Miss C. to the prisoner's, respecting a 
 wound on her back, and Miss C. then "inhaled;" on the next day the 
 prisoner examined her back, and said it was in a beautiful state, and 
 that he would give one hundred guineas if he could produce a simi- 
 lar wound on the persons of some of his patients. His attention 
 being directed to a part of the wound which was of a darker appear- 
 ance, he stated that this proceeded from the inhaling, and that unless 
 those appearances were produced he could expect no beneficial result. 
 The wound at this time was about five or six inches square. Miss C. 
 was suffering much from sickness, and the prisoner said that it was 
 of no consequence, but, on the contrary, a benefit; and that those 
 symptoms, combined with the wound, were a proof that his system 
 was taking due effect. On Sunday, the 15th, Miss C. having got 
 worse, the prisoner said that in two or three days she would be bet- 
 ter in health than she had ever been in her life, and spoke very con- 
 fidently that the result of his system would prolong her life, and that 
 no person could be doing better than she was. At this interview the 
 wound, which had extended, was shown to the prisoner. At the same 
 time he was desired to do something to stop the sickness, but he said 
 he had a remedy in his pocket, which he would not apply, as he knew 
 the sickness had been beneficial : and he also stated on that day, and 
 on Monday, the 16th, that Miss C. was doing uncommonly well. On 
 Tuesday, the 17th, she died. An eminent surgeon proved that on the 
 Monday her back was extensively inflamed as large as a plate, and 
 in the centre was a spot, as large as the palm of the hand, black, and 
 dead, and in a mortified state, and he thought that some very power- 
 fully stimulating liniment had been applied to her back; that applying 
 a lotion of a strength capable of causing the appearances he saw, to 
 a person of the age and constitution of the deceased, if in perfect 
 health, was likely to damage the constitution and produce disease and 
 danger. The appearances on the back were quite sufficient to 
 account for her death. On the most careful examination of the body, 
 after death, no latent disease or seeds of disease were discovered. It 
 was submitted, for the defence, that, in point of law, this was nothing 
 like a case of manslaughter, and 1 Hale, P. C, 429, 4 El. C. b. 4, c. 
 14, and Rex v. Van Butchell, were cited and relied on. The learned 
 judges who sat in the case at first differed in opinion. Park, J. A. J., 
 said, "I am in this difficulty; I have an opinion, and my learned 
 brother differs from me ; I must, therefore, let the case go to the jury." 
 Garrow, B., "In Rex v. Van Butchell, the learned judge had very 
 good ground to stop the case, as there was no evidence as to what 
 had been done. I make no distinction between the case of a person, 
 who consults the most eminent physician, and the cases of those whose 
 necessities or whose folly may carry them into any other quarter. It 
 matters not whether the individual consulted be the president of the 
 College of Physicians, the president of the College of Surgeons, or 
 
134 HOMICIDE. 
 
 the humblest bone-setter of the village; but be it the one or the 
 other, he ought to bring into the case ordinary care, skill, and dili- 
 gence. Why is it that we convict in cases of death by driving car- 
 riages? Because the parties are bound to have skill, care, and cau- 
 tion. I am of opinion that, if a person, who has ever so much or so 
 little skill, sets my leg, and does it as well as he can, and does it 
 badly, he is excused; but suppose the person comes drunk, and gives 
 me a tumbler full of laudanum, and sends me into the other world, 
 is it not manslaughter? And why is that? Because I have a right 
 to have reasonable care and caution." Park, J., in summing up, 
 charged the jury to the following effect: "The learned counsel truly 
 stated in the outset, that whether the party be licensed or unlicensed 
 is of no consequence, except in this respect that he may be subject to 
 pecuniary penalties for acting contrary to charters or acts of Parlia- 
 ment; but it cannot affect him here. (After citing 1 Hale, 429, as an 
 authority in point, the learned judge proceeded,) "I agree with my 
 learned brother, that what is called mala praxis in a medical person 
 is a misdemeanor; but that depends upon whether the practice he 
 has used is so bad that every body will see that it is mala praxis. 
 The case at Lancaster differs from this case. I have communicated 
 with C. J. Tindal, who tried that case, and he informed me that the 
 man was a blacksmith, and was drunk, and so completely ignorant of 
 the proper steps, that he totally neglected what was absolutely neces- 
 sary after the birth of the child. That certainly was one of the most 
 outrageous cases that ever came into a court of justice. I would 
 rather use the words of Lord EUenborough in Eex v. Williamson." 
 (His Lordship read them.) "And this is important here, for though 
 he be not licensed, yet experience may teach a man sufficient; and the 
 question for you will be, whether the experience this individual 
 acquired does not negative the supposition of any gross ignorance or 
 criminal inattention? " (After setting the authority of Hale, P. C. 429, 
 against the dictum of Lord Coke, 4 Inst. 251, and citing the observations 
 of Hullock, B., in Rex v. Van Butchell with approbation, his Lord- 
 ship proceeded,) " The refusal by the prisoner to apply the medicine 
 to stop the sickness, although he had it with him, would, in my opinion, 
 if wickedly done, amount to murder; but he mentioned a casein which 
 sickness had been beneficial. Undoubtedly the result proves a very 
 erroneous opinion on his part, and it seems singular that the restless- 
 ness and other circumstances did not awaken apprehension, and call 
 for further measures, but the question again recurs, whether this was 
 an erroneous judgment of a person, who was of general competency, 
 though he unfortunately failed in the particular instance." "With 
 respect to the application of the mixture, if he commanded the 
 servant to use it, it is the same as if he used it himself. Perhaps from 
 the evidence you will think that the act caused the death ; but still 
 the question recurs, as to whether it was done from gross ignorance 
 or criminal inattention. No one doubts Mr. B.'s skill, but that is 
 not quite the question; it is not whether the act done is the thing 
 that a person of Mr. B.'s great skill would do, but whether it shows 
 such total and gross ignorance in the person who did it, as must 
 necessarily produce such a result. On the one hand we must be 
 careful and most anxious to prevent people from tampering in physic 
 
NEGLIGENCE BY MEDICAL MEN. 135 
 
 SO as to trifle with the life of man; and, on the other, ve must take 
 care not to charge criminally a person who is of general skill, because 
 he has been unfortunate in a particular case." " If you think there 
 was gross ignorance or scandalous inattention in the conduct of the 
 prisoner, then you will find him guilty ; if you do not think so, then 
 your verdict will be otherwise." ' 
 
 Six months afterwards the same defendant was further tried under 
 a similar charge, though this time before Mr. B^ron Bayley, Mr. 
 Baron Holland, and Mr. Justice Bosanquet. From the testimony of 
 Captain Lloyd, the husband of the deceased, it appeared that she put 
 herself under the defendant's care on the 6th of October, at which time 
 she was in very good health, to be cured of a complaint she had in her 
 throat. On the 3rd she had applied a small blister to her throat, but 
 the wound occasioned by it was nearly well on the 6th. On the 7th, 
 8th, 9th, and 10th she went to the prisoner's, and on the evening of 
 the 10th complained to her husband of a violent burning across her 
 chest, in consequence of which he looked at it, and found a great red- 
 ness across her bosom, darker in the centre than at the other parts; 
 she also complained of great chilliness, and shivered with cold, and 
 passed a very restless and uncomfortable night. On the 11th she 
 was very unwell all the day, the redness was more vivid, and the spot 
 in the centre darker, round the edges white and puffed up, and there 
 was a dirty white discharge from the centre. Cabbage leaves had been 
 applied. On the 12th, the redness on the breast and chest was, if any- 
 thing, greater. In consequence of the symptoms, the husband went 
 to the prisoner, who asked why Mrs. L. had not come to inhale, and go 
 on with the rubbing ; the husband replied it was impossible, she was 
 so ill; she had been constantly unwell since the night of the 10th, 
 and was suffering a great deal of pain and sickness : the prisoner said 
 it would soon go off, it was generally the case. He was told of the 
 shivering and chilliness, and that some hot wine and water had been 
 given to relieve her; he said hot brandy and water would have been 
 better, and to put her head under the bed clothes. He was told that 
 her chest and breast looked very red and very bad ; he said that was 
 generally the case in the first instance, but it would go off as she got 
 better, and that the husband need not be uneasy about it, as there 
 was no fear or danger. In the course of the day the cabbage leaves 
 had been removed, and a dressing of spermaceti ointment put on the 
 chest instead. In the evening the prisoner came and saw Mrs. L. and 
 looked at her breast, and observing the dressing, said those greasy 
 plasters had no business there, and she ought to have continued the 
 cabbage leaves. She said she could not bear the pain of keeping 
 them on. He then took off his great coat and said that he would rub 
 it out, and turned up the cuff of his coat as if for the purpose of doing 
 so. She exclaimed very much with fright, and expressed her wonder 
 that he should think of rubbing in the state her breast was in. She 
 asked if there was no way of keeping the leaf on without touching 
 the breast; and he asked her what she wished; she replied to be 
 healed. He said it would never heal with those greasy plasters; 
 that was not the way in which he healed sores. He then asked for a 
 
 1 E. V. St. John Long, 4 C. & P. 398. 
 
136 HOMICIDE. 
 
 towel, and began dabbing it on the breast, particularly in the centre, 
 where the discharge came from. He said that old linen was the best 
 thing to heal a wound of that kind. She said her skin and flesh were 
 very healthy, and always healed immediately with the simple dress- 
 ing she had used. He said old linen was better, but she might use 
 the dressing if she liked it, he saw no objection, and, when it skinned 
 over, he would rub it again. He never saw her afterwards; she died 
 on the 8th of N(?vember. Mr. Campbell, a surgeon who was called 
 afterwards to visit the deceased, proved that on the 12th of October 
 he found a very extensive wound covering the whole anterior part 
 of the chest, which, in his opinion, might be produced by any strong 
 acid; the skin was destroyed, the centre of the wound was darker, 
 and in a higher state of inflammation than the other parts; he con- 
 sidered the wound very dangerous to life when he first saw it; the 
 centre spot, and the upper part became gangrenous in about a week ; 
 and in his opinion Mrs. L. died of the wound, and according to his 
 judgment it was not necessary or proper to produce such a wound to 
 prevent any difficulty in swallowing, and he did not know of any 
 disease, in which the production of such a wound would be necessary 
 or proper. The body was internally and externally in perfect health, 
 except a little narrowness at the entrance of the cssophagus. Mr. 
 Vance, another surgeon, corroborated the testimony of Mr. Campbell, 
 saying that he thought that a man of common prudence or skill 
 would not have applied a liquid, which in two days would produce 
 such extensive inflammation; though all irritating external applica- 
 tions sometimes exceeded the expectations of the medical attendant; 
 but he should say that such conduct was a proof of rashness and of 
 ignorance. Mr. Atley, for the defendant, after examining the suffi- 
 ciency of the evidence, took the ground that this was not man- 
 slaughter, but homicide per infortuniarn; that the safety of society 
 required a liberal rule, for if a man acting with a good intent is 
 held liable, the knife will tremble in the surgeon's hand; that where 
 the mind is pure, and the intention benevolent, and there are no per- 
 sonal motives, such as a desire of gain, if an operation be performed, 
 which fails, the party is not responsible; and that the indictment, 
 which in substance charged that the death was occasioned by the 
 external application, was not supported. He proceeded to urge that 
 there was no difference in this respect between licensed and unlicensed 
 practitioners. Bayley, B., said, "I agree with Lord Hale, and do not 
 think that there is any difference between a licensed ^nd unlicensed 
 surgeon. It does not follow in the case of either, an act done may 
 not amount to manslaughter. There may be cases in which a regu- 
 lar medical man may be guilty; and that is all that Lord Hale lays 
 down. And that may be laid out of the question in this case. But 
 the manner in which the act is done, and the use of due caution, seem 
 to me to bo material. Mr. J. Foster, in his Criminal Law, p. 263, 
 speaking of a person who happens to kill another by driving a cart 
 or other carriage, says, " If he might have seen the danger, and did 
 not look before him, it will be manslaughter /or want of due circum- 
 spection." And there is also a passage in Bracton to the like effect. 
 But all that I mean to say now is, that there being conflicting autho- 
 rities, and the impression on our minds, not being in your favour, I 
 
NEGLIGENCE BY MEDICAL MEN. 137 
 
 propose to reserve the point. As to the indictment not being sup- 
 ported by the evidence, one of the allegations is that the prisoner 
 feloniously applied a noxious and injurious matter. And there is no 
 doubt, if the jury should be of opinion against the prisoner, that the 
 facts proved will be sufficient to warrant their finding that the priso- 
 ner ye/omows/y did the act; for if a man, either with gross ignorance, 
 or gross rashness administers medicine and death ensues, it will be 
 clearly felony. Mr. Atley, for the prisoner, then insisted that in this 
 case, as in larceny, there must be a trespass proved. Trespass was 
 the foundation stone of felony. It was not proved that any fraud 
 had been practised by the prisoner to get the patient under his care; 
 nor had there been any avaricious seeking after fees: if there had 
 been, it might have been evidence to show the existence of trespass. 
 The prisoner's conduct showed his intentions to have been good and 
 honest. In Rex v. Van Butchell, the case was stopped, because there 
 was no evidence of how the operation was performed, and here there 
 was not any evidence to show the mode in which the application was 
 made. Bayley, B., said, "In this case we may judge of the thing by 
 the effect produced, and that may be evidence from which the jury 
 may say, whether the thing which produced such an effect was not 
 improperly applied." BoUand, B., said, "When you pass the line 
 which the law allows, then you become a trespasser." Mr. Adolphus 
 then took the ground that a party could not be convicted of man- 
 slaughter whose intentions were only helpful. It was agreed, how- 
 ever, that if the court thought the point had better be reserved, no 
 further observations would be offered. Bayley, B., said, " If I had 
 a clear opinion in your favour, or if my brothers had, or if we had 
 any reason to think that other judges were of a different opinion, it 
 would become our duty to give our opinion here, and prevent the 
 case from going to the jury : but feeling as I do, notwithstanding all 
 I have heard to-day, and myself and my brothers having had our 
 attention directed to the law before we came here, I think it right 
 that the case should go to the jury; I think that if the jury shall 
 find a given fact in the way in which I shall submit it to them, it will 
 constitute the crime of /"e/om'oMs/y administering, so as to make it 
 manslaughter. I do not charge it on ignorance merely, but there 
 may have been rashness; and I consider that rashness will be suffi- 
 cient to make it manslaughter. As for instance, if I have the tooth- 
 ache, and a person undertakes to cure.it by administering laudanum, 
 and says, 'I have no notion how much will be sufiBcient,' but gives 
 me a cup full, which immediately kills me; or if a person prescribing 
 James's powder says, ' I have no notion how much should be taken,' 
 and yet gives me a table spoonful, which has the same effect; such 
 persons acting with rashness will, in my opinion, be guilty of man- 
 slaughter. With respect to what has been said about a willing mind 
 in the patient, it must be remembered that a prosecution is for the 
 public benefit, and the willingness of the patient cannot take away 
 the offence against the public." The prisoner on his defence offered 
 considerable evidence of skill, and charged negligence on the at- 
 tending surgeon. Bayley, B., in his charge to the jury, said, "The 
 points for your consideration are, first, whether Mrs. L. came to her 
 death by the application of the liquid; secondly, whether the priso- 
 
138 HOMICIDE. 
 
 ner, in applying it, has acted feloniously or not. To my mind it mat- 
 ters not whether a man has received a medical education or not; the 
 thing to look at is, whether, in reference to the remedy he has used, 
 and the conduct he has displayed, he has acted with a due degree of 
 caution, or, on the contrary, has acted with gross and improper rash- 
 ness and want of caution. I have no hesitation in saying for your 
 guidance, that if a man be guilty of gross negligence in attending to 
 his patient after he has applied a remedy, or of gross rashness in the 
 application of it, and death ensues in consequence, he will be liable 
 to a conviction for manslaughter." " If you shall be of opinion that 
 the prisoner made the application with a gross and culpable degree 
 of rashness, and that it was the cause of Mrs. L.'s death, then, heavy 
 as the charge against him is, he will be answerable on this indict- 
 ment for the offence of manslaughter. There was a considerable in- 
 terval between the application of the liquid, and the death of the 
 patient, yet if you think that the infliction of the wound on the 10th 
 of October was the cause of the death, then it is no answer to say 
 that a different course of treatment by Mr. C. might have prevented 
 it. You will consider these two points: first, of what did Mrs. L. 
 die? You must be satisfied that she died of the wound, which was 
 the result of the application made on the 10th of October; and then, 
 secondly, if you are satisfied of this, whether the application was a 
 felonious application; this will depend upon whether you think it 
 was gross and culpable rashness in the prisoner to apply a remedy 
 which might produce such effects in such a manner that it did ac- 
 tually produce them. If you think so then he will be answerable to 
 the full extent."^ The defendant was acquitted. 
 
 The same points were discussed on a trial in Massachusetts, in 1809, 
 before Sewall, J., and Parker, J., of the Supreme Court. The defen- 
 dant, Thompson, was indicted for the murder of Ezra Lovett, by giving 
 him a poison called lobelia, of which he died the next day after the dose. 
 On the trial it appeared in evidence, that the prisoner, some time 
 in the preceding December came into Beverly, where the deceased 
 then lived, announced himself as a physician, and professed an ability 
 to cure all fevers, whether black, gray, green or yellow: declaring 
 that the country was much imposed upon by physicians, who were all 
 wrong if he was right. He possessed several drugs, which he used as 
 medicines, and to which he gave singular names. One he called 
 coffee ; another well-my gristle ; and a third ram-cats. He had several 
 patients in Beverly and in Salem, previous to Monday, the second of 
 January, when the deceased, having been for several days confined to 
 his house by the cold, requested that the prisoner might be sent for 
 as a physician. He accordingly came, and ordered a large fire to be 
 kindled to heat the room. He then placed the feet of the deceased, 
 with his shoes off, on a stove of hot coals, and wrapped him in a thick 
 blanket, covering his head. In this situation he gave him a powder 
 in water, which immediately "puked" him. Three minutes after, he 
 repeated the dose, which in about two minutes operated violently. 
 He again repeated the dose, which in a short time operated with more 
 violence. These doses were all given within the space of half an 
 
 1 E. V. St. John Long, 4 C. & P. 423; Bayley and BoUand, Bs., and Bosanquet, J. 
 
NEGLIGENCE BY MEDICAL MEN. 139 
 
 hour, the patient in the mean time drinking copiously of a warm de- 
 coction, called hy the prisoner his coffee. The deceased, after puking, 
 in which he brought up phlegm, but no food, was ordered to a warm 
 bed, where he lay in a profuse sweat all night. Tuesday morning the 
 deceased left his bed, appeared to be comfortable, complaining only 
 of debility:"' and in the afternoon he was visited by the prisoner, who 
 administered two more of his emetic powders in succession, which 
 puked the deceased, who during the operation, drank of the prisoner's 
 coffee, and complained of much distress. On Wednesday morning 
 the prisoner came, and after causing the face and hands of the de- 
 ceased to be washed with rum, ordered him to walk in the air, which 
 he did for about fifteen minutes. In the afternoon the prisoner gave 
 him two more of his emetic, powders, with draughts of his coffee. 
 On Thursday the deceased appeared to be comfortable, but complained 
 of great debility. In the afternoon the prisoner caused him to be 
 again sweated, by placing him with another patient, over an iron pan 
 with vinegar heated by hot stones put into the vinegar, covering them 
 at the same time with blankets. On Friday and Saturday the pri- 
 soner did not visit the deceased, who appeared to be comfortable, al- 
 though complaining of increased debility. On Sunday morning, the 
 debility increasing, the prisoner was sent for, and came in the after- 
 noon, when he administered another of his emetic powders with his 
 coffee, which puked the diseased, causing him much distress. On 
 Monday he appeared comfortable, but with increasing weakness, until 
 the evening; when the prisoner visited him, and administered another 
 of his emetic powders, and in about twenty minutes repeated the dose. 
 This last dose did not operate. The prisoner then administered 
 pearl-ash mixed with water, and afterwards repeated his emetic po- 
 tions. The deceased appeared to be in great distress, and said he 
 was dying. The prisoner then asked him how far the medicine had 
 got down; The deceased, laying his hand on his breast, answered 
 here : on which the prisoner observed that the medicine would soon 
 get down, and unscrew his navel: meaning, as was supposed by the 
 hearers, that it would operate as a cathartic. Between nine and ten 
 o'clock in the evening, the deceased lost his reason, and was seized 
 with convulsion fits ; two men being required to hold him in bed. 
 After he was thus seized with convulsions, the prisoner got down his 
 throat one or two doses more of his emetic powders; and remarked 
 to the father of the deceased, that his son had got the hyps like the 
 devil, but that his medicines would fetch him down; meaning as the 
 witness understood, would compose him. The next morning the re- 
 gular physicians of the town were sent for, but the patient was so 
 completely exhausted, that no relief could be given. The convulsions 
 and the loss of reason continued, with some intervals, until Tuesday 
 evening, when the deceased expired. From the evidence it appeared 
 that the coffee administered was a decoction of marsh-rosemary, mixed 
 with the bark of hayherry hush, which was not supposed to have in- 
 jured the deceased. But the powder which the prisoner said he 
 chiefly relied upon in his practice, and which was the emetic so often 
 administered by him to the deceased, was the pulverized plant, fami- 
 liarly called Indian tobacco. A Dr. French of Salisbury testified that 
 this plant, with this name, was well known in his part of the country, 
 
140 HOMICIDE. 
 
 where it was indigenous, for its emetic qualities; and that it was 
 gathered and preserved by some families, to be used as an emetic, 
 for which the roots, as well as the stalks and leaves, were adminis- 
 tered; and that four grains of the powder was a powerful puke. — But 
 a more minute description of this plant was given by the Rev. Dr. 
 Cutler. He testified that it was the lobelia inflata of LinnsBus : that 
 many years ago, on a botanical ramble, he discovered it growing in a 
 field not far from his house in Hamilton : that, not having Linnmus 
 then in his possession, he supposed it to be a nondescript species of 
 the lobelia: that by chewing a leaf of it, he was puked two or three 
 times: that he afterwards repeated the experiment with the same 
 effect: that he inquired of his neighbour, on whose ground the plant 
 was found for its trivial name. He did not know of any; but was 
 apprized of its emetic quality, and informed the doctor that the chew- 
 ing of one of the capsules operated as an emetic, and that the chew- 
 ing more would prove cathartic. In a paper soon after communica- 
 ted by the doctor to the American Academy, he mentioned the plant, 
 with the name of the lobelia medica. Pie did not know of its being 
 applied to any medical use until the last September, when being se- 
 verely afflicted with the asthma, Dr. Di-ury of Marblehead informed 
 him that a tincture of it had been found beneficial in asthmatic com- 
 plaints. Dr. G. then made for himself a tincture, by filling a common 
 porter bottle with the plant, pouring upon it as much spirit as the 
 bottle would hold, and keeping the bottle in a sand heat for three or 
 four days. Of this tincture he took a table spoonful, which produced 
 no nausea, and had a slight pungent taste. In ten minutes after he 
 repeated the potion which produced some nausea, and appeared to 
 stimulate the whole internal surface of the stomach. In ten minutes 
 he again repeated the potion, which puked him two or three times, 
 and excited in his extremities a strong sensation like irritation : but 
 he was relieved from a paroxysm of the asthma, which had not since 
 returned. He had since mentioned this tincture to some physicians, 
 and has understood from them, that some patients have been violently 
 puked by a tea spoonful of it: but whether this difference of effect 
 arose from the state of the patients, or from the manner of preparing 
 the tincture, he did not know. The solicitor general also stated that 
 before the deceased had applied to the prisoner, the latter had ad- 
 ministered the like medicines with those given to the deceased, to 
 several of his patients, who had died under his hands; and to prove 
 this statement he called several witnesses, of whom but one appeared. 
 He, on the contrary, testified that he had been the prisoner's patient 
 for an oppression at his stomach — that he had taken his emetic powders 
 several times in three or four days, and was relieved from his com- 
 plaint, which had not since returned. And there was no evidence 
 in the cause, that the prisoner, in the course of his very novel practice, 
 had experienced any fatal accident among his patients. The defence 
 stated by the prisoner's counsel was, that he had for several years, 
 and in different places, pursued his practice with much success; and 
 that the death of the deceased was unexpected, and could not be im- 
 puted to him as a crime. But as the court were satisfied, that the 
 
NEGLIGENCE BY MEDICAL MEN. 141 
 
 tice charged the jury : and the substance of his direction, and of several 
 observations, which fell from the court during the trial, are for greater 
 convenience here thrown together. As the testimony of the wit- 
 nesses was not contradicted, nor their credit impeached, that testimony 
 might be considered as containing the necessary facts on which the 
 issue must be found. That the deceased lost his life by the unskilful 
 treatment of the prisoner, did not seem to admit of any reasonable 
 doubt: but of this point the jury were to judge. Before the Monday 
 evening preceding the death of Lovett, he had by profuse sweats, and 
 by often repeated doses of the emetic powder, been reduced very 
 low. In this state, on that evening, other doses of this Indian tobacco 
 were administered. When the second potion did not operate, pro- 
 bably because the tone of his stomach was destroyed, the repetition 
 of them, that they might operate as a cathartic, was followed by con- 
 vulsion fits, loss of reason, and death. But whether this treatment, 
 by which the deceased lost his life, is or is not a felonious homicide, 
 was the great question before the jury. To constitute the crime of 
 murder, with which the prisoner is charged, the killing must have 
 been with malice, either express or implied. There was no evidence 
 to induce a belief that the prisoner, by this treatment, intended to 
 kill or to injure the deceased; and the ground of express malice must 
 fail. It has been said, that implied malice may be inferred from the 
 rash and presumptuous conduct of the prisoner, in administering such 
 violent medicines. Before implied malice can be inferred, the jury 
 must be satisfied that the prisoner, by his treatment of his patient, 
 was wilfully regardless of his social duty, being determined on mis- 
 chief. But there is no part of the evidence, which proves that the 
 prisoner intended by his practice any harm to the deceased. On the 
 contrary, it appears that his intention was to cure him. The jury 
 would consider whether the charge of murder was, on these principles, 
 satisfactorily supported. But though innocent of the crime of murder, 
 the prisoner may on this indictment be convicted of manslaughter, if 
 the evidence be sufficient. And the solicitor general strongly urged, 
 that the prisoner was guilty of manslaughter, because he rashly and 
 presumptuously administered to the deceased a deleterious medicine, 
 which in his hands, by reason of his gross ignorance, became a deadly 
 poison. The prisoner's ignorance is in this case very apparent. On 
 any other ground consistent with his innocence, it is not easy to conceive, 
 that on the Monday evening before the death, when the second dose 
 of his very powerful emetic had failed to operate, through the extreme 
 weakness of the deceased, he could expect a repetition of these fatal 
 poisons would prove a cathartic, and relieve the patient : or that he 
 could mistake convulsion fits, symptomatic of approaching death, for 
 a hypochondriac affection. But on considering this point, the court 
 were all of opinion, notwithstanding this ignorance, that if the pri- 
 soner acted with an honest intention and expectation of curing the 
 deceased by this treatment, although death, unexpected by him, was 
 the consequence, he was not guilty of manslaughter. To constitute 
 manslaughter, the killing must have been a consequence of some un- 
 lawful act. Now there is no law, which prohibits any man from pre- 
 scribing for a sick person with his consent, if he honestly intends to 
 cure him by his prescription. And it is not felony, if through his ig- 
 
142 HOMICIDE. 
 
 norance of the quality of the medicine prescribed, or of the nature of 
 the disease, or of both, the patient contrary to his expectation should 
 die. The death of a man, killed by voluntarily following a medical 
 prescription, cannot be adjudged felony in the party prescribing, un- 
 less he, however ignorant of medical science in general, had so much 
 knowledge, or probable information of the fatal tendency of the pre- 
 scription, that it may be reasonably presumed by the jury, to be the 
 effect of obstinate wilful rashness at the least, and not of an honest in- 
 tention and expectation to cure. In the present case there is no evi- 
 dence that the pi-isoner, either from his own experience, or from the 
 information of others, had any knowledge of the fatal effects of the 
 Indian tobacco, when injudiciously administered : but the only testimony 
 produced to this point, proved that the patient found a cure from the 
 medicine. The law thus stated, was conformable, not only to the 
 general principles which governed in charges of felonious homicide, 
 but also to the opinion of the learned and excellent lord chief justice 
 Hale. He expressly states," that if a physician, whether licensed or 
 not, gives a person a potion, without any intent of doing him any 
 bodily hurt, but with intent to cure, or prevent a disease, and con- 
 trary to the expectation of the physician, it kills him, he is not guilty 
 of murder or manslaughter. If in this case it had appeared in evi- 
 dence, as was stated by the solicitor general, that the prisoner had 
 previously, by administering this Indian tobacco, experienced its inju- 
 rious effects, in the death or bodily hurt of his patients, and that he 
 afterwards administered it in the same form to the deceased, and he 
 was killed by it, the court would have left it to the serious considera- 
 tion of the jury, whether they would presume that the prisoner ad- 
 ministered it from an honest intention to cure, or from obstinate rash- 
 ness, and fool-hardy presumption, although he might not have intended 
 any bodily harm to his patient. If the jury should have been of this 
 latter opinion, it would have been reasonable to convict the prisoner 
 of manslaughter at least. For it would not have been lawful for him 
 again to administer a medicine, of which he had such fatal experience. 
 It is to be exceedingly lamented, that people are so easily persuaded 
 to put confidence in these itinerant quacks, and to trust their lives to 
 strangers without knowledge or experience. If this astonishing in- 
 fatuation should continue, and men are found to yield to the impudent 
 pretensions of ignorant empiricism, there seems to be no adequate 
 remedy by a criminal prosecution, without the interference of the 
 legislature; if the quack, however weak and presumptuous, should 
 prescribe, with honest intentions and expectations of relieving his 
 patients.^ 
 
 More recently, however, there has been a tendency to draw the 
 line closer, and to hold a practitioner responsible, who acts without 
 competent skill. Thus upon an indictment for manslaughter, by 
 causing the death of a child by putting a plaster made of corrosive 
 and dangerous ingredients upon its head, it appeared that the child 
 for eighteen months had been afflicted with scald head, and was taken 
 to the prisoner, who applied two plasters successively all over its 
 head. Two surgeons proved there was a general sloughing of the 
 
NEGLIGENCE BY MEDICAL MEN. 143 
 
 scalp, which caused the death, and ia their opinion this might have 
 been produced by the plasters; there was no evidence to show of what 
 the plasters were composed. Bolland, B., said, "The law as I am 
 bound to lay it down (and I believe I lay it down as it has been 
 agreed upon by the judges ; for cases of this kind have occurred of 
 late more frequently than in former times) is this: if any person, 
 whether he be a regular or licensed medical man or not, professes to 
 deal with the life or health of his majesty's subjects, he is bound to 
 have- competent skill to perform the task that he holds himself out 
 to perform, and he is bound to treat his patients with care, attention, 
 and assiduity."' 
 
 And so where the prisoner, a surgeon and man mid-wife, was charged 
 with manslaughter upon an indictment, which alleged that he under- 
 took the care and charge of B. K. as a man-midwife, and to do every 
 thing needful for her during and after the time of her delivery, and that 
 after B. K. was delivered he neglected to take proper care of and to 
 render her proper assistance, by means whereof she died. Tindal, 
 C. J., said to the jury, "You are to say whether, in the execution of 
 that duty which the prisoner had undertaken to perform, he is proved 
 to have shown such a gross want of care, or such a gross and culpable 
 want of skill, as any person undertaking such a charge ought not to be 
 guilty of; and that the death of the person named in the indictment 
 was caused thereby."^ 
 
 And so in a case before Coleridge, J., where the learned judge told 
 the jury, that the questions for them to decide were, whether the in- 
 strument had in this instance caused the death of the deceased, and 
 whether it had been used by the prisoner with due and proper skill 
 and caution, or with gross want of skill, or gross want of attention. 
 No man was justified in making use of an instrument, in itself a dan- 
 gerous one, unless he did so with a proper degree of skill and caution. 
 If the jury thought that in this instance the prisoner had used the in- 
 strument with gross want of skill, or gross want of caution, and that 
 the deceased had thereby lost her life, it would be their duty to find 
 the prisoner guilty.^ 
 
 And the same just view was taken by Lord Lyndhurst, C. B., shortly 
 afterwards, a qualification being very properly thrown in by which 
 incompetency was not made responsible where the defendant's atten- 
 dance was actually necessary. In this case the prisoner was indicted 
 for manslaughter in causing the death of R. R., by administering to 
 him a large quantity of Morrison's pill; the deceased, being ill of 
 small-pox, had sent for the prisoner, who was a publican and agent for 
 the sale of the pills, and under his advice had taken large quantities 
 
 ^ B. V. Spiller, 5 C. & P. 333, coram Bolland, B., and Bosanquet, J. See also Lamphier 
 V. Phllpot, 8 C. & P. 475, -where Tindal, C J., said: "Every person who enters into a 
 learned profession, undertakes to bring to the exercise of it a reasonable degree of care 
 and skill. He does not undertake, if he is an attorney, that at all events you shall gain 
 your cause ; nor does a surgeon undertake that he will perform a cure, nor does he un- 
 dertake to use the highest possible degree of skill. There may be persons who have 
 higher education and greater advantages than he has ; but he undertakes to bring a fair, 
 reasonable, and competent degree of skill." 
 
 ^ Ferguson's case, 1 Lew. 181. If this be the case stated in Long's Cases, the prisoner 
 was a blacksmith, drunk, and wholly ignorant of the proper steps to be taken: no evi- 
 dence is stated in Lewin. See 1 Russ. on Cr. 503-4. 
 ■ 3 R. t). Spilling, 2 M. & Rob. 107. 
 
144 HOMICIDE. 
 
 of them; his strength gradually wasted under their influence, and on 
 the morning of his death, while in a state of collapse, the prisoner had, 
 of his own accord, administered to him twenty pills. The prisoner 
 had treated the deceased with great kindness during his illness, and 
 on a former occasion the deceased had recovered from a dangerous ill- 
 ness while under the prisoner's treatment. Several medical men gave 
 it as their opinion that medicine of the violent character, of which the 
 pills were composed, could not be administered to a person in the 
 state in which the deceased was, without accelerating his death. jLord 
 Lyndhurst, C. B., said, "I agree that in these cases there is no diffe- 
 rence between a licensed physician or surgeon, and a person acting as 
 a physician or surgeon without a license. In either case, if a party, 
 having a competent degree of skill and knowledge, makes an acci- 
 dental mistake in his treatment of a patient, through which mistake 
 death ensues, he is not thereby guilty of manslaughter; but if, where 
 proper medical assistance can be had, a person totally ignorant of the 
 science of medicine takes on himself to administer a violent and dan- 
 gerous remedy to one labouring under disease, and death ensues in 
 consequence of that dangerous remedy having been so administered, 
 then he is guilty of manslaughter.' 
 
 An apothecary's apprentice who is guilty of negligence in deliver- 
 ing medicine, and death ensues in consequence, he is guilty of man- 
 slaughter. Upon an indictment for the manslaughter of a child, it 
 appeared that the child being ill, the mother sent to a chemist for a 
 pennyworth of paregoric; the chemist's apprentice delivered a phial, 
 with a paregoric label on it, but with laudanum in it; and the mother, 
 supposing it to be paregoric, gave the child six or seven drops, which 
 killed it. The laudanum bottle and the paregoric bottle stood side 
 by side. Bayley, J., to the jury: — "If you think there was negligence 
 on the part of the prisoner, you will find him guilty ; if not, you must 
 acquit him."^ 
 
 V. — MANDFACTURERS AND WORKMEN. 
 
 Carelessness on the part of persons employed in their ordinary 
 business avocations, when resulting in death, is manslaughter.' This 
 principle applies both to manufacturers by whom defective material 
 is used, or defective workmanship applied, and to workmen who are 
 guilty of negligence in their application of such powers to practical 
 use. Thus, where the prisoner, who was an iron-founder, was em- 
 ployed to make twelve cannons, to celebrate the passing of the Reform 
 Bill, and four of them were sent home and tried, and one of them 
 burst under the touch-hole, and was sent back to the prisoner, with 
 orders to have it melted up; but the prisoner returned it nailed down 
 to a carriage, and there was some lead in it, wliich must have been 
 put tliere to stop up the part that had burst, as it matched the former 
 aperture: and the cannon, being loaded not heavier than usual, burst, 
 and thereby killed the deceased, it was held that the prisoner was 
 guilty of manslaughter.'' 
 
 The jury will be directed, however, to acquit if reasonable care 
 
NEGLIGENCE BY MANUFACTURERS AND "WORKMEN. 145 
 
 was shown. Thus, where the prisoner was indicted for manslaughter, 
 in having, by negligence in the manner of slinging a cask, caused the 
 same to fall and kill two females, who were passing along the cause- 
 way, it appeared that there were three modes of slinging casks 
 customary in Liverpool: one by slings passed round each end of the 
 cask ; a second by can hooks ; and a third in the manner in which the 
 prisoner had slung the cask which caused the accident — namely, by a 
 single rope round the centre of the cask. The cask was hoisted up 
 to the fourth story of a warehouse, and, on being pulled endwise 
 towards the door, it slipped from the rope as soon as it touched the 
 floor of the room. Parke, J., in the course of his charge, told the 
 jury: — "The double slings are undoubtedly the safest mode; but if 
 you think that the mode which the prisoner adopted was reasonably 
 sufficient, you cannot convict him." ' 
 
 Mere wantonness or sport, however, which results in death, makes 
 the offender in like manner guilty. An indictment charged that there 
 was a scaffolding in a certain coal mine, and that the prisoners, by 
 throwing large stones down the mine, broke the scaffolding: and that 
 in consequence of the scaffolding being so broken, a corf, in which the 
 deceased was descending the mine, struck against a beam, on which 
 the scaffolding had been supported, and by such striking the corf was 
 overturned, and the deceased precipitated into the mine and killed. 
 It was proved that scaffolding was usually found in the mines in the 
 neighbourhood, for the purpose of supporting the corves, and enabling 
 the workmen to get out and work the mines; that the stones were 
 of a size and weight sufficient to knock away the scaffolding, and that 
 if the beam only was left the probable consequence would be that 
 the corf striking agafnst it would upset, and occasion death or injury. 
 Tindal, C. J., said, " If death ensues as the consequence of a wrongful 
 act, an act which the party who commits it can neither justify nor ex- 
 cuse, it is not accidental death, but manslaughter. If the wrongful act 
 was done under circumstances which show an intent to kill, or do 
 any serious injury in the particular case, or any general malice, the 
 offence becomes that of murder. In the present instance, the act was 
 one of mere wantonness and sport, but still the act was wrongful, it 
 was a trespass. The only question therefore is, whether the death 
 of the party is to be fairly and reasonably considered as a conse- 
 quence of such wrongful act: if it followed from such wrongful act, 
 as an effect from a cause, the offence is manslaughter; if it is altoge- 
 ther unconnected with it, it is accidental death." * 
 
 The distinction noticed in the above cases is pointedly illustrated 
 by the familiar instance of workmen throwing rubbish from the roof. 
 If this is done in the ordinary course of their business, and a person un- 
 derneath happens to be killed, if they did not look out and give timely 
 warning to such as might be below, and if there was even a small 
 probability of persons passing by, it will be manslaughter.^ It has, 
 indeed, been said, that if this be done in the streets of London, or 
 other populous towns, it will be manslaughter, notwithstanding such 
 caution used.'* But this must be understood with some limitation. 
 
 1 Rigmardon's case, 1 Lew. 180. ' Fenton's case, 1 Lew. 179. 
 
 » 1 East, 262; Fost. 262. • E. v. HuU, Kel. 40. 
 
 10 
 
146 HOMICIDE. 
 
 If it be done early in the morning, when few or no people are stirring, 
 and the ordinary caution be used, the party may be excusable: but 
 when the streets are full, such ordinary caution will not suffice; for, 
 in the hurry and noi?e of a crowded street, few people hear the warn- 
 ing, or sufficiently attend to it.' 
 
 So also, where a man is at work with a hatchet, and the head of it 
 flies off and kills a bystander, this is homicide by misadventure.^ 
 
 A person charged with the proper ventilation of a mine, will be 
 guilty of manslaughter if through his negligence an accident occurs 
 which results in death. In an English case, tried in 1847, the first 
 count of the indictment stated, that the prisoner, in and upon one James 
 Shakespeare did make an assault; and that it was the duty of the pri- 
 soner to ventilate and cause to be ventilated a certain coal mine, and 
 to cause it to be kept free from noxious gases, and that the prisoner 
 feloniously omitted to cause the mine to be kept ventilated, and that 
 the noxious gases accumulated and exploded, whereby the said J. S., 
 who was lawfully in the said mine, was killed. It appeared that a 
 mine, called Round Green Colliery, situate at Hales Owen, was the 
 property of George Parker, Esq., and that the prisoner was a sort of 
 manager of it, and called the ground bailiff; that another person was 
 under him, called the butty, he being a sort of foreman, and that the 
 deceased, who was called the doggy, was a kind of second foreman 
 under the butty. It further appeared, that, at about half-past six 
 o'clock on the morning of the 17th of November, 1846, a number of 
 men were working in a large chamber in the colliery, when there was 
 an explosion of fire-damp, by which nineteen persons, including the 
 deceased James Shakespeare, were killed; and it was imputed, on the 
 part of the prosecution, that this explosion would have been prevented 
 if the prisoner had caused an air-heading to have been put up, as it 
 was his duty to have done. But it was sought to be shown by the 
 cross-examination of the witnesses for the prosecution, that it was the 
 duty of the butty (who was one of the persons killed by the explosion) 
 to have reported to the prisoner as ground bailiff that an air-heading 
 was required; and that as far as appeared, he had not done so. For the 
 prisoner it was submitted, first, that the prisoner was not guilty of any 
 negligence at all, as it was only his duty to cause air-headings to be 
 put up on the requisition of the butty; and, secondly, that a person 
 who was guilty only of breach of duty by omission, could not be found 
 guilty of manslaughter; for that, in order to constitute that offence, 
 there must be some wrongful or improper act done by the prisoner, 
 except in those cases where there was a liability known to the law, 
 such as providing an infant with food, or the like. Maule, J. (in sum- 
 ming up.) — The prisoner is charged with manslaughter, and it is im- 
 puted, that in consequence of his omission to do his duty, a person 
 named Shakespeare lost his life. It appears that the prisoner acted 
 as ground bailiff of a mine, and that, as such, his duty was to regulate 
 the ventilation, and direct where air-headings should be placed; and 
 the questions for you to consider are, whether it was the duty of the 
 prisoner to have directed an air-heading to be made in this mine ; and 
 whether, by his omitting to do so, he was guilty of a want of reasona- 
 
PRIZE FIGHTERS AND PERSONS ENGAGED IN SPORTS. 147 
 
 ble and ordinary precaution. If you are satisfied that it was the or- 
 dinary and plain duty of the prisoner to have caused an air-heading 
 to be made in this mine, and that a man using reasonable diligence 
 would hkve had it done, and that, by the omission, the death of the 
 deceased occurred, you ought to find the prisoner guilty of man- 
 slaughter. It has been contended that some other persons were, on 
 this occasion, also guilty of neglect. Still, assuming that to be so, 
 their neglect will not excuse the prisoner; for, if a person's death be 
 occasioned by the neglect of several, they are all guilty of manslaugh- 
 ter ; and it is no defence for one who is negligent to say that another 
 was negligent also, and thus, as it were, try to divide the negligence 
 among them.' 
 
 VI. — PRIZE FIGHTERS, AND PERSONS ENGAGED IN ATHLETIC SPORTS. 
 
 On the same principle that parties engaged in a duel are guilty of 
 murder if death ensue, so persons engaged in prize fighting with the 
 same result, are guilty of manslaughter. The difference between the 
 cases is simply that of intent. In the first instance, there is an intent 
 to take life ; in the second, an intent merely to do an unlawful act 
 not amounting to felony. But if, in prize fighting, a party goes out 
 with an original intent to do grievous bodily harm to his antagonist, 
 and slays him, the offence is murder at common law, or murder in the 
 second degree under the American statutes. And so if he goes with 
 the intention to kill, no matter what may have been the motive, the 
 offence is murder. If, however, the guilty intent arises in hot blood, 
 in the excitement of the struggle, and without the intervention of 
 cooling time, the offence is but manslaughter. Under ordinary cir- 
 cumstances, all persons encouraging a prize fight in which death en- 
 sues, are accessaries to manslaughter. Thus, where it appeared that 
 there was a fight between the deceased and another person, at which 
 a great number of persons were assembled, and that in the course of 
 the fight the ring was broken in several times by the persons assem^ 
 bled, who had sticks, which, they used with great violence, and the 
 deceased died in consequence of blows received on this occasion, 
 and for the prisoner it was attempted to be proved, that though 
 he was present during the fight, yet he neither did nor said any 
 thing. Littledale, J., said, "If the prisoner was at this fight en- 
 couraging it by his presence, he is guilty of manslaughter, although 
 he took no active part in it. My attention has been called to the 
 evidence of those witnesses who have said that the prisoner did no- 
 thing; but I am of opinion that persons who are at a fight, in conse- 
 quence of which death ensues, are all guilty of manslaughter, if they 
 encouraged it by their presence; I mean if they remained present 
 during the fight. I say that if they were not casually passing by, but 
 staying at the place, they encouraged it by their presence, although 
 they did not say or do any thing. This is my opinion of the law of 
 this case. However, you ought to consider whether the deceased 
 came by his death in consequence of blows he received in the fight 
 itself; for if he came by his death by any means not connected with 
 the fight itself, that is, if his death was caused by the mob coming in 
 with bludgeons, and taking the matter as it were out of the hands of 
 
 1 E. V. Haines. 2 Car, & Kir, 368, 369. 
 
148 HOMICIDE. 
 
 the combatants, then persons merely present encouraging the fight 
 would not be answerable, unless they are connected in some way with 
 that particular violence. If the death occurred from the fight itself, 
 all persons encouraging it by their presence are guilty of manslaughter ; 
 but if the death ensued from violence unconnected with the fight it- 
 self, that is by blows given not by the other combatant in the course 
 of the fight, but by persons breaking in the ring and striking with 
 their sticks, those who were merely present are not, by being present, 
 guilty of manslaughter."' 
 
 The general principle is, that prize-fighting, public boxing matches, 
 or any other sports of a similar kind, which are exhibited for lucre, 
 and tend to encourage idleness by drawing together a number of dis- 
 orderly people, involve a criminal responsibility.* In such cases the 
 intention of the parties is not innocent in itself, each being careless of 
 what hurt may be given, provided the promised reward or applause be 
 obtained: and meetings of this kind have also a strong tendency in their 
 nature to a breach of the peace.' Thus, in a case of old date, where 
 the prisoner had killed his opponent in a boxing, match, it was holden 
 that he was guilty of manslaughter; though he had been challenged 
 to fight by his adversary for a public trial of skill in boxing, and was 
 also urged to engage by taunts; and the occasion was sudden.^ 
 
 Death occurring in any unlawful sport involves those concerned 
 in manslaughter. Thus, the English custom of cock-throwing, at 
 Shrovetide, has been considered unlawful and dangerous; and accord- 
 ingly, where a person throwing at a cock missed his aim, and killed 
 a child who was looking on, Mr. J. Poster ruled it to be manslaughter; 
 and, speaking of the custom, he says, " It is a barbarous unmanly cus- 
 tom, frequently productive of great disorders, dangerous to the by- 
 standers, and ought to be discouraged."' So, throwing stones at 
 another wantonly in play, being a dangerous sport, without the least 
 appearance of any good intent, or doing any other such idle action 
 as cannot but endanger the bodily hurt of some one or other, and by 
 such means killing a person, will be manslaughter.® 
 
 Though the sport be not in itself unlawful, yet if the weapons used 
 are of a dangerous and unsuitable character, and are employed with 
 recklessness which leads to death, the offender, in case of death, is 
 guilty of manslaughter. Thus, in an early English case, the evidence 
 was, that Sir John Chichester made a pass at the servant with a sword 
 in the scabbard, and the servant parried it with a bed-staff, but in so 
 doing struck off the chape of the scabbard, whereby the end of the 
 sword came out of the scabbard; and the thrust not being effectually 
 broken, the servant was killed by the point of the sword.'' This was 
 adjudged manslaughter: and Mr. J. Foster thinks, in conformity with 
 Lord Hale, that it was rightly so adjudged, on the ground that there 
 was evidently a want of common caution in making use of a deadly 
 weapon in so violent an exercise, where it was highly probable that 
 the chape might be beaten off, which would necessarily expose the 
 servant to great bodily harm.' But, notwithstanding these high au- 
 
 1 K. «. Murphy, 6 C. & P. 103 ; R. v. Young, 8 C. & P. 844. 
 
SELF-MURDER, 149 
 
 thorities, it may now be questioned whether, in this case, the appli- 
 cation of the principle is as correct as the principle itself. If the 
 practising of this kind in fencing — which was the sport in which Sir 
 John Chichester was engaged — is lawful, it would seem that the 
 bursting of the sword through the chape of the scabbard was mere 
 misadventure. The design of the scabbard is to render the sword 
 harmless, and a man who carries his sword about his person, assuredly 
 gives the best evidence in his power of his confidence in the suffi- 
 ciency of the guard. If it is lawful to carry such a weapon, it as- 
 suredly is lawful to use it when properly guarded from mischief. 
 The whole question, therefore, turns on the point, whether the parti- 
 cular exercise in which Sir John Chichester was engaged, was one 
 likely to disengage the sword from the scabbard. 
 
 All sports calculated to produce public mischief, riot or disorder, 
 are unlawful; and if death ensue, in the pursuit of them, the party 
 killing is guilty of manslaughter:^ while all such exercises as tend to 
 give strength, activity, and skill in the use of arms, and are entered 
 into as private recreations amongst friends, are considered lawful.' 
 
 VII. — PERSONS FROM MISCHIEF OR OTHER COLLATERAL UNLAWFUL PURPOSE 
 
 DOING BODILY HARM. 
 
 As has been considered on another occasion,^ there are many cases 
 in which death is the result of an occurrence in itself unexpected, 
 but which arose from negligence or inattention. How far, in such 
 cases, the agent of such misfortune is to be held responsible, depends 
 upon the inquiry whether he was guilty of gross negligence at the 
 time. Inferences of guilt are not to be drawn from remote causes ; 
 and the degree of caution requisite to bring the case within the limits 
 of misadventure must be proportioned to the probability of danger 
 attending the act immediately conducive to the death. Where deer 
 had entered a corn-field, and were beating down the corn, the owner 
 went with his servant to watch at night with a gun, and charged 
 him to fire when he heard anything rush into. the standing corn; and 
 upon the owner rushing into the corn in another part of the field, 
 the servant fired and killed him. In the first passage wherein Lord 
 Hale mentions this case, he seems to think that it amounted to man- 
 slaughter, for want of due diligence and care in the servant in shoot- 
 ing upon such a token as might befall a man as well as a deer : how- 
 ever, he says, it was a question of great difficulty. But in a subse- 
 quent part of his work, as is noticed by Mr. East, the learned author 
 relating the same case, which had been determined by himself at 
 Peterborough, says, that he had ruled it only to be misadventure; 
 for the servant was misguided by his master's own direction, and was 
 ignorant that it was anything else but the deer. But it seemed to 
 him, that if the master had not given such direction, which was the 
 occasion of the mistake, it would have been manslaughter; because 
 of the want of due caution in the servant to shoot before he disco- 
 yered his mark. 
 
 As has been just seen,* if a man, knowing that people are passing 
 
 1 Fost. 259, 260; 1 East, P. C. c. 5, s. 41, p. 368. ^ ^„je, p. 36, 37. 
 
 » Wh. Cr. Law, (2d ed.) 382. - Ante, 145, 146. 
 
150 HOMICIDE. 
 
 along the streets, throw a stone or shoot an arrow over a house or 
 wall, and a person be thereby killed, this will be manslaughter, 
 though there were no intent to do hurt to any one, because the act 
 itself was unlawful. So where a gentleman came to town in a chaise, 
 and, before he got out of it, fired his pistols in the street, which, 
 by accident, killed a woman, it was ruled manslaughter; for the act 
 was likely to breed danger, and manifestly improper.' 
 
 Shooting at deer in another's pai'k, without leave, is an unlawful 
 act, though done in sport, and without any felonious intent; and there- 
 fore if a by-stander be killed by the shot, such killing will be man- 
 slaughter.^ 
 
 It has been already observed, and it will be noticed more fully 
 when the distinction between murder in the first and murder in the 
 second degree is considered, that where death ensues from an act 
 done in the prosecution of a felonious intention, it will be murder: 
 but where the intent was to commit bare trespass, if death ensues from 
 such act, the offence will be only manslaughter.^ Thus, though if A 
 shoot at the poultry of B, intending to steal them, and by accident 
 kill a man, it will be murder; yet, if he shoot at them wantonly, and 
 without any such felonious intention, and accidentally kill a man, the 
 offence will be only manslaughter.'' And so where death ensues from 
 injury inflicted by one upon another, it is murder or manslaughter, 
 according as the circumstances or the nature of the instrument used, 
 and the manner of using it, are calculated to produce great bodily harm 
 or not.* Thus where a carman was in the front part of a cart, load- 
 ing it with sacks of potatoes, and a boy pulled the trapstick out of 
 the front of the cart, but not with intent to do the man any harm, as 
 he had seen it done several times before by others; and in consequence 
 of the trapstick having been taken out, the cart tilted up, and the 
 deceased was thrown out on his back on the stones, and the potatoes 
 were shot out of the sacks, and fell on and covered him over, and he 
 died in consequence of the injuries then received, it was held that as 
 the intent was to commit a mere trespass, the boy was guilty of man- 
 slaughter.® On the other hand, forcing a person to do an act which 
 is likely to produce his death, and which does produce it, is murder; 
 and threats may constitute such force. The indictment charged first, 
 that the prisoner killed his wife by beating ; secondly, by throwing 
 her out of the window; and, thirdly and fourthly, that he beat her 
 and threatened to throw her out of the window and to murder her; 
 and that by such threats she was so terrified that, through fear of his 
 putting his threats into execution, she threw herself out of the win- 
 dow, and of the beating and the bruises received by the fall, died. 
 There was strong evidence that the death of the wife was occasioned 
 by the blows she received before her fall: but Heath, J., Gibbs, J., 
 and Bayley, J., were of opinion that if her death was occasioned partly 
 by the blows and partly by the fall, yet if she was constrained by her 
 husband's threats of further violence, and from a well grounded ap- 
 prehension of his doing such further violence as would endanger her 
 life, he was answerable for the consequences of the fall, as much as if 
 
MISCHIEF OR COLLATERAL UNLAWFUL PURPOSES. 151 
 
 he had thrown her out of the window himself. The prisoner however 
 was acquitted; the jury being of opinion that the deceased threw her- 
 self out of the window from her own intemperance, and not under the 
 influence of the thlreats.^ And so it was held that where the prisoner 
 assaulted and struck hira with a stick, and that the deceased, from a 
 well grounded apprehension of a further attack, which would have 
 endangered his life, spurred his horse, whereby it became frightened, 
 and threw the deceased, &c., and it was proved that the prisoner 
 struck the deceased with a small stick, and that he rode away, the 
 prisoner riding after him, and on the deceased spurring his horse, it 
 winced and threw him ; it was held on the authority of the preceding 
 case, that the case was proved.^ 
 
 Where there is a party combination to resist all opposers in the 
 commission of any breach of the peace, and to execute it in such a 
 manner as naturally tends to raise tumults and affrays, the persons 
 so engaged, if they happen to kill any one in the prosecution of this 
 unlawful purpose, will be guilty of murder. Yet, in one case, where 
 divers rioters, having forcibly gained possession of a house, after- 
 wards killed a partisan of the person whom they had ejected, as he, 
 in company with a number of others, was endeavouring in the night 
 forcibly to regain the possession, and to fire the house, they were 
 adjudged guilty only of manslaughter. It is said, that perhaps it 
 was so adjudged for this reason, that the person slain was so much in 
 fault himself.^ 
 
 When a man lays poison to kill rats, and another man takes it, and 
 it kills him, if the poison was laid in such a manner and place as to 
 be mistaken for food, it is, perhaps, manslaughter, if otherwise, mis- 
 adventure only.* 
 
 Where liquor is knowingly administered in large quantities for 
 unlawful purposes, and death ensues, it is manslaughter, provided 
 the purpose is not to do grievous bodily harm, or to commit a felony, 
 in which latter case the offence is murder. Thus, where an indict- 
 ment for manslaughter stated that the prisoners gave, administered, 
 and delivered to M. A. divers large and excessive quantities of wine 
 and porter, and induced, procured, and persuaded M. A. to take, 
 drink, and swallow the said quantities of spirituous liquors; the same 
 being likely to cause and procure his death, and which the prisoners 
 then and there well knew; and that M. A., by means of the said 
 inducement, procurement, and persuasion took, drank, and swallowed 
 the said large quantities of spirituous liquors; by means whereof 
 he became greatly drunk, &c., and whilst he was so drunk as afore- 
 said, the prisoners made an assault on him and forced and compelled 
 him to go, and put, placed, and confined him in a cabriolet and drove 
 and carried him about therein for a long time, and thereby shook, 
 threw, pulled, and knocked about M. A., by means whereof M. A. 
 became mortally sick; of which said large quantities of spirituous 
 liquors, and of the drunkenness occasioned thereby, and of the said 
 shaking, &c., and the sickness occasioned thereby, M. A. died. It 
 appeared that the deceased was in possession of the goods of one of 
 
 1 B. V. Evans, MSS., 1 Russ. on Cr. 489. ' R. n. Hickman, 5 C. & P. 151. 
 
 > 1 Hawk. P. C. c. 31, s. S3. * 1 Hale, 431. 
 
152 HOMICIDE. 
 
 the prisoners lender a warrant from the sheriff, and the three prisoners 
 plied him with drink, themselves drinking freely also, and when he 
 was very drunk, put him into a cabriolet, and caused him to be driven 
 about the streets, and about two hours after he was put in the 
 cabriolet he was found dead. Parke, B., after directing the jury to 
 dismiss from their consideration that part of the indictment which 
 alleged that the prisoners knew that the quantity of liquor taken was 
 likely to cause death, of which there did not appear to be any 
 evidence, and which, if proved, would make the offence approach to 
 murder, told the jury that if they were of opinion that the prisoners 
 put the deceased in the cabriolet, then the questions would be: first, 
 whether they or any of them were guilty of administering or pro- 
 curing the deceased to take large quantities of liquor for an unlawful 
 purpose; or, whether, when he had taken it, they put him in the 
 cabriolet for an unlawful purpose. If they thought that the three 
 prisoners, or one of them, made him excessively drunk, to enable the 
 prisoner, whose goods were seized, to prevent the completion of the 
 execution; or if they were satisfied that the object of the prisoners, 
 or any of them, was otherwise unlawful, and that the death of the 
 deceased was caused in carrying their unlawful object into effect, they 
 must be found guilty. The simple fact of persons getting together 
 to drink, or one pressing another to do so, was not an unlawful act; 
 or, if death ensued, an offence that could be construed into man- 
 slaughter. Upon the first question stated, it would be essential to 
 make out that the prisoners administered the liquor with the inten- 
 tion of making the deceased drunk, and then getting him out of the 
 house; and if that were doubtful, still if, when he was drunk, they 
 removed him into the cabriolet with the intention of preventing his 
 returning, and death was the result of such removal, the act was un- 
 lawful, and the case would be a case of manslaughter. If, however, 
 they all got drunk together, and afterwards he was put into the 
 cabriolet with the intention that he should take a drive only, that was 
 not an unlawful object, such as had been described, and the prisoners 
 would be entitled to an acquittal. And to a question put by the jury, 
 the learned baron answered, that if the prisoners, when the deceased 
 was drunk, drove him about in the cab, in order to keep him out of 
 possession, and by so doing accelerated his death, it would be man- 
 slaughter.' Upon the same reasoning rest the cases which have 
 already been noticed under another head, where spirituous liquors, 
 or opiates are given to a child, either from wantonness or with the 
 intent to produce artificial quiet, in which the offence, if death ensue, 
 is manslaughter.^ 
 
 ' K. ^...Packard, 1 C. & Mars. 236. 
 
 2 E, 0. Martin, 3 C. & P. 211 ; Ann v. State, 11 Hump. 159. See Ante, 124. 
 
PRINCIPAL AND ACCESSARIES. 153 
 
 CHAPTER VIII. 
 
 PRINCIPALS AND ACCESSARIES IN HOMICIDE. 
 
 STATUTES. 
 United States. 
 
 "That every person who shall, either upon the land or the seas, knowingly and 
 wittingly aid and assist, procure, command, counsel or ad vise,, any person or per- 
 sons, to do or commit any murder or robbery, or other piracy aforesaid, upon the 
 seas, which shall affect the life of such person, and such person or persons shajl 
 thereupon do or commit such piracy or robbery, then all and every such person 
 so as aforesaid aiding, assisting, procuring, commanding, counselling, or advising, 
 tlie same, either upon the land or the sea, shall be, and they are hereby declared, 
 deemed and adjudged to be accessary to such piracies before the fact; and every 
 such person, being thereof convicted, shall suffer death." — (Act of April 30, 1790, 
 s. 10.) 
 
 "That after any murder, felony, robbery, or other piracy whatsoever aforesaid, 
 is or shall be committed by any pirate or robber, every person who, knowing that 
 such pirate or robber has done or committed any such piracy or robbery, shall, on 
 the land or at sea, receive, entertain or conceal, any such pirate or robber, or re- 
 ceive or take into his custody any ship, vessel, goods or chattels, which have been, 
 by any such pirate or robber, piratically and feloniously taken, shall be, and are 
 hereby declared, deemed and adjudged, to be accessary to such piracy or robbery, 
 after the fact; and on conviction thereof, shall be imprisoned not exceeding three 
 years, and fined not exceeding five hundred dollars." — (Ibid. sect. 11.) 
 
 Massachusetts. 
 
 Every person, who shall be aiding in the comnaission of any offence, which shall 
 be a felony, either at common law, or by any statute now made, or which shall 
 hereafter be made, or who shall be accessary thereto before the fact, by counsel- 
 ling, hiring, or otherwise procuring such felony to be committed, shall be punished 
 in the same manner, which is or which shall be prescribed for the punishment of 
 the principal felon. — (Rev. Stat. chap. 133, sect. 1 ) 
 
 Every person, who shall counsel, hire, or otherwise procure any offence to be 
 committed, which shall be a felony, either at common law, or by any statute now 
 made, or which shall hereafter be made, maybe indicted and convicted as an ac- 
 cessary before the fact, either with the principal felon, or after the conviction of 
 the principal felon, or he may be indicted and convicted of a substantive felony, 
 whether the principal felon shall or shall not have been convicted, or shall or 
 shall not be amenable to justice, and in the last mentioned case, may be punished 
 in the same manner as if convicted of being an accessary before the fact. — (Ibid, 
 sect. 2.)' 
 
 Any person, charged with the offence mentioned in the preceding section, may 
 be indicted, tried and punished in the same court and the same county, where the 
 principal felon might be indicted and tried, although the offence of counselling, 
 hiring, or procuring the commission of such felony may have been committed on 
 the high seas, or on land, either within or without the limits of this kate. — (Rev. 
 Stat. chap. 133, sect. 3.) 
 
 Every person, not standing in the relation of husband or wife, parent or grand- 
 larent, child or grand-child, brother or sister, by consanguinity or affinity, to the 
 offender, who, alter the commission of any felony, shall harbour, conceal, main- 
 
 ' It was said by the Supreme Court, that Stat. 1784, c. 65, from which the above 
 section was drawn, providing that if any person shall aid, assist, &c., any person to 
 commit murder, he shall be considered as an accessary before the fact, refers to a per- 
 son not present, aiding, &o. If the party be in such a situation as to be able to afford 
 assistance to the principal, although not literally present, he wiU be a principal. Com. v. 
 Knapp, 9 Pick. 496. 
 
154 HOMICIDE. 
 
 tain or assist any principal felon, or accessary before the fact, or shall give such 
 offender any other aid, knowing that he had committed a felony, or had been ac- 
 cessary thereto before the fact, with intent that he shall avoid or escape from de- 
 tection, arrest, trial or punishment, shall be deemed accessary after the fact, and 
 shall be punished by imprisonment in the state prison, not more than seven years, 
 or in the county jail, not more than three years, or by fine not exceeding one thou- 
 sand dollars. — (Ibid. sect. 4.) 
 
 Every person, who shall become an accessary after the fact, to any felony either 
 at common law, or by any statute now made, or which shall hereafter be made, 
 may be indicted, convicted, and punished, whether the principal felon shall or 
 shall not have been previously convicted or shall or shall not be amenable to jus- 
 tice, by any court having jurisdiction to try the principal felon, and either in the 
 county, where such person shall have become an accessary, or in the county where 
 such principal felony shall have been committed. — (Ibid. sect. 5.) 
 
 New York. 
 
 Every person, who shall be a principal in the second degree, in the commission 
 of any felony, or who shall be an accessary to a murder, before the fact, and 
 every person who shall be an accessary to any felony, before the fact, shall, upon 
 conviction, be punished in the same manner herein prescribed, with respect to prin- 
 cipals in the first degree. — (2 R. Stat. 698, sect. 6, 1st edition.) 
 
 Every person, who shall be convicted of having concealed any offender after 
 the commission of any felony, or of having given such offender any other aid, 
 knowing that he has committed a felony, with intent and in order that he may 
 avoid, or escape from, arrest or trial, or conviction, or punishment, and no others, 
 shall be deemed an accessary after the fact, and upon conviction shall be punished 
 by imprisonment in a state prison, not exceeding five years, or in a county jail not 
 exceeding one year, or by fine not exceeding five hundred dtfllars, or by both such 
 fine and imprisonment. — (Ibid. sect. 7.) 
 
 An indictment against an accessary to any felony, may be found in the county 
 where the offence of such accessary shall have been committed, notwithstanding 
 the principal offence was committed in another county; and the like proceedings 
 shall be had thereon in all respects, as if the principal offence had been com- 
 mitted in the same county. — (Ibid. 727, sect. 48.) 
 
 An accessary, before or after the fact, may be indicted, tried, convicted and pu- 
 nished, notwithstanding the principal felon may have been pardoned, or otherwise 
 discharged, after his conviction. — (Ibid. sect. 49.) 
 
 Every person who shall be convicted of having been an accessary after the fact 
 to any kidnapping or confinement, herein before prohibited, shall be punished by 
 imprisonment in a state prison, not exceeding six years, or in a county jail not ex- 
 ceeding one year, or by a fine not exceeding five hundred dollars, or by both such 
 fine and imprisonment. — (Ibid. p. 665, sect. 31.) 
 
 Pennsylvania. 
 
 "Where any murder or felony hath been, or hereafter shall be committed in 
 one county of this province, and one or more persons shall be accessary or acces- 
 saries to any such murder or felony in another county, then an indictment found 
 or taken against such accessary or accessaries, upon the circumstanceb of such 
 matter, before justices of the peace, or other justices or commissioners, to inquire 
 of felonies in the county where such offences of accessary or accessaries, in any 
 manner, have been or shall be committed or done, shall be as good and effectual 
 in law as if the said principal offence had been committed or done within the 
 same county where the indictment against such accessary hath been or shall be 
 found.— (Act of 31st May, 1718, sect. 22: 1 Smith, 405; 6th ed. Purdon, 156.) 
 
 The justices of the said Supreme Court, or two of them, upon suit to them 
 made, shall write to the keepers of the records, where such principal is or shall 
 hereafter be attainted or convicted, to certify them whether such principal be at- 
 tainted, convicted or otherwise discharged of such principal felony; who, upon 
 such writmg to them or any of them directed, shall make suflScient certificate in 
 writing, under their seal or seals, to the said justices, whether such principal be 
 attainted, convicted, or otherwise discharged or not. And after they who so have 
 the custody of records, do certify that such principal is attainted, convicted or other- 
 wise discharged of such offence by the law, then the justices of jail delivery or of 
 oyer and terminer shall proceed upon every such accessary in the county where 
 
PRINCIPALS IN THE FIRST DEGREE. 155 
 
 he or they became accessary, in such manner and form as if both the said princi- 
 pal offence and accessary had been committed and done in the same county, where 
 the offence or accessary was or shall be committed or done. And every such ac- 
 cessary and other offenders as above expressed, shall answer upon their arraign- 
 ments, and receive such trial, judgment, order and execution, and suffer such for- 
 feiture, pains and penalties, as is used in other cases of felony, anil as the statute 
 made in the second and third years of the reign of king Edward the Sixth, (chap. 
 24,) entitled "An Act for the trial of murders and felonies committed in several 
 counties," doth direct in such cases; which, statute shall be observed in this pro- 
 vince, any law or usage to the contrary notwithstanding." — (Ibid. sect. 23.) 
 
 Every person convicted of bigamy, or being an accessary after the fact, in any 
 felony, or of receiving stolen goods, knowing them to have been stolen, or of any 
 other offence not capital, for which, by the laws in force, before the act, entitled, 
 "An Act to amend the penal laws of this state," burning in the hand, cutting off 
 the ears, nailing the ear or ears to the pillory, placing in and upon the pillory, 
 whipping or imprisonment for life, is or may be inflicted, shall, instead of such 
 parts of the punishment, be fined and sentenced to undergo in the like manner, 
 and be confined, kept to hard labour, fed and clothed as is hereinafter directed, for 
 any terra not exceeding two years, which the court before whom such conviction 
 shall be, may and shall, in their discretion, think adapted to the nature and hei- 
 nousness of the offence.— (Act 5th April, 1790; 2 Dallas, 801; 2 Smith, p. 531; 6th 
 ed. Pur. 859, sect. 4.) 
 
 Virginia. 
 
 An accessary to a murder or a felony committed, shall be examined by the court 
 of that county or corporation, and tried by the court in that district w^here he be- 
 came accessary, and shall answer upon his arraignment, and receive such judg- 
 ments, order, execution, pains and penalties as are used in other cases of murder 
 and felony. — (R. L. vol. i. 104.) 
 
 If any be accused of an act done as principal, they that be accused as accessary 
 shall be attached also, and safely kept in custody until the principal be attainted or 
 delivered.— (R. L. vol. i. 126.) 
 
 Persons knowingly harbouring horse-stealers, or receiving from them stolen 
 horses, are to be deemed and punished as accessaries. And if the principal felon 
 cannot be taken so as to be prosecuted and convicted of such offence, nevertheless 
 the accessary may be punished as for a misdemeanor, although the principal felon 
 be not before convicted of the felony, which shall exempt the offender from being 
 punished as accessary, if the principal offender shall afterwards be taken and con- 
 victed.— (R. L. vol. i. 179.) 
 
 If any principal offenders shall be convicted of any felony, or shall stand mute, 
 or shall peremptorily challenge above twenty persons returned to be of the jury, 
 it shall be lawful to proceed against any accessary either before or after the fact, in 
 the same manner as if the principal felon had been attainted thereof, notwithstand- 
 ing such principal shall be admitted to the benefit of his clergy, pardoned or other- 
 wise delivered before his attainder; such accessary to suffer the same punishment 
 as the principal if he had been attainted. — (R. L. vol. i. p. 206.) 
 
 Principals in the first degree. 
 A principal in the first degree is, one who is the actor or actual 
 perpetrator of the fact.' But it is not necessary that he should be 
 actually present when the offence is consummated ; for, if one lay poi- 
 son purposely for another who takes it and is killed, he who laid the 
 poison, though absent when it was taken, is a principal in the first 
 degree.^ It is not therefore necessary, to make a man principal, that 
 the felony in question should have been consummated with his own 
 hands. If he acts through the medium of an innocent^ or insane 
 medium, he is guilty as principal in the first degree.'* Thus, in Sir 
 
 1 1 Hale, 233, 615. 
 
 » Vaux's case, 4 Co. 44b.; Fost. 849; R. ». Harley, 4 C. & P. 369; 4 Cranch, 492. 
 
 s K. V. Clifford, 2 Car. & Kir. 201. 
 
 * 1 Hale, 19; 4 Bla. Com. 23; K. v. Giles, 1 Moody, C. C. 166. 
 
156 HOMICIDE. 
 
 William Courtenay's case, Lord Denman, C. J., charged the jury, 
 "You will say whether you find that Courtenay was a dangerous and 
 mischievous person; that these two prisoners knew he was so, and 
 yet kept with him, aiding and abetting him by their presence, and 
 concurring in his acts; and if you do, you will find them guilty, for 
 they are then liable as principals for what was done by his hand." ' 
 If the principal were insane when the act was committed, no one 
 could be convicted as an aider or abettor.* If a child under the age 
 of discretion, or any other instrument excused from the responsibility 
 of his actions by defect of understanding, ignorance of the fact, or 
 other cause, be incited to the commission of murder or any other 
 crime, the inciter, though absent when the fact was committed, is ex 
 necessitate, liable for the act of his agent, and a principal in the first 
 degree.' So if A, by letter, desire B, an innocent agent, to write 
 the name of " W. S." to a receipt on a post-ofBce order, and the in- 
 nocent agent do it, believing that he is authorized so to do, A is a 
 principal in this forgery, and it makes no difi'erence that by the let- 
 ter, A says to B, that he' is "at liberty'' to sign the name of W. S., 
 and does not in express words direct him to do so. But if A, before 
 the date of the letter sent to B, received by post a letter of an ear- 
 lier date, purporting to have come from W. S., and bearing post- 
 marks of earlier date, from which it may be inferred that he was au- 
 thorized to make use of the name of W. S., the counsel of A, on hia 
 trial for the forgery, is entitled to state the contents of that letter, 
 and to give it in evidence, with a view of showing that A bona fide 
 believed that he had the authority of W. S. for directing B to sign 
 the name of W. S. to the receipt.'' But, if the instrument be aware 
 of the consequences of his act, he is a principal in the first degree, 
 and the employer, if he be absent when the fact is committed, is an 
 accessary before the fact.' All who are present, aiding and abetting 
 him who inflicts the mortal blow, in cases of murder, are principals 
 and criminals in the highest degree; but it is not every intermeddling 
 in a quarrel or affray from which death ensues, that constitutes an 
 aiding and abetting to the murder. If, for instance, two men fight 
 on. a former grudge and of settled malice, and with intent to kill, of 
 which the spectators are innocent, and they of a sudden take sides 
 with the combatants and encourage them by words, and death ensue, 
 it will not be murder in such persons.^ 
 
 If several persons are present at the death of a man, they may be 
 guilty of different degrees of homicide, as one of murder, another of 
 manslaughter; for if there be no malice in the party striking, but malice 
 in the abettor, it will be murder in the latter, though only manslaugh- 
 ter in the former. So if A assault B of malice, and they fight, and 
 A's servant come in aid of his master, and B be killed, A is guilty of 
 murder; but the servant, if he knew not of A's malice, is guilty of 
 
 1 R. V. Mears, 1 Boston Law Rep. 205; Hawk. o. 1, s. 7. 
 
 2 R. V. Taylor, 8 Car. & P. 616. 
 
 ' Fost. 340 ; 1 East, P. C. 118 ; 1 Hawk. c. 31, s. 7; R. v. Palmer, 1 N. R. 96 ; 2 Leach, 
 978; Com. v. Hill, 11 Maes. 136. 
 
 * R. V. Cliflford, 2 Car. & Kir. 201._ 
 
 '• R. V. Stewart, R. & R. 363 ; or, if he he present, a principal in the second degree, 
 Foat. 349. 
 
 6 State V. King et al., 2 Rice's S. C. Digest, 106. 
 
PRINCIPALS IN THE SECOND DEGKEE. 15T 
 
 manslaughter only.' Several persons conspired to kill Dr. Ellis, and 
 they set upon him accordingly, when Salisbury, who was a servant to 
 one of them, seeing the afifray and fighting on both sides, joined his 
 master, but knew nothing of his master's design. A servant of Dr. 
 Ellis, who supported his master, was killed. The court told the jury 
 that malice against Dr. Ellis would make it murder in all those whom 
 that malice affected, as the malice against Dr. Ellis would imply ma- 
 lice against all who opposed the design against Dr. Ellis : but, as to 
 Salisbury, if he had no malice, but took part suddenly with those who 
 had, without knowing of the design against Dr. Ellis, it was only man- 
 slaughter in him. The jury found Salisbury guilty of manslaughter, 
 and three others of murder, and the three were executed.^ 
 
 One indicted as principal cannot be convicted on proof showing 
 him to be only an accessary before the fact.^ 
 
 Principals in the second degree. 
 
 Principals in the second degree are those who are present aiding 
 and abetting at the commission of the fact. To constitute principals 
 in the second degree there must be, in the first place, a participation 
 in the act committed; and in the second place, presence either actual 
 or constructive at the time of its commission. Although a man be 
 present whilst a felony is committed, if he take no part in it, and do 
 not act in concert with those who commit it, he will not be a principal 
 in the second degree, merely because he did not endeavour to prevent 
 the felony, or apprehend the felon.'' It is not necessary, however^ to 
 prove that the party actually aided in the commission of the offence ; 
 if he watched for his companions, in order to prevent surprise, or re- 
 mained at a convenient distance in order to favour their escape, if 
 necessary, or was in such a situation as to be able readily to come to 
 their assistance, the knowledge of which was calculated to give addi- 
 tional confidence to his companions, in contemplation of law he was 
 aiding and abetting.* 
 
 If a principal in a transaction be not liable under our laws, another 
 cannot be charged merely for aiding and abetting him, unless the 
 other do acts himself, which render him liable as principal.* 
 
 Any participation in a general felonious plan, provided such parti- 
 cipation be concerted, and there be constructive presence, is enough 
 to make a man principal in the second degree. But the act must also 
 be the result of the confederacy; and if several are out for the purpose 
 of committing a felony, and upon an alarm run different ways, and one 
 of them maim a pursuer to avoid being taken, the others are not to 
 be considered principals in such act.^ 
 
 If A is charged with the offence, and B is charged with aiding 
 and abetting him, it is essential to make out the charge as to B, that 
 B should have been aware of A's intention to commit murder.' 
 
 In the case of murder by duelling, in strictness, both the seconds 
 are principals in the second degree ; yet Lord Hale considers that, 
 
 1 1 Hale, 446. 2 r. „. Salisbury, Plowd. 97. 
 
 s Hughes V. State, 12 Ala. 458. * 1 Hale, 439; Fost. 350. 
 
 ' Jerv. Arch. 4. « The U. S. v. Libby, 1 W. & M. 221. 
 
 ' E. V. White, Russ. & R. 0. C. 99. « 5,. ^. Cruise, 8 C. & P. 541. 
 
'158 HOMICIDE. 
 
 as far as relates to the second of the party killed, the I'ule of law in 
 this respect, has been too far strained ; and he seems to doubt whether 
 such second should be deemed a principal in the second degree.' 
 But all persons present at a prize-fight, having gone thither for the 
 purpose of seeing the prize-fighters strike each other, were principals 
 in the breach of the peace.^ 
 
 If one encourage another to commit suicide, and is present aiding 
 him while he does so, such person is guilty of murder as a principal; 
 and if two encourage each other to murder themselves, and one does 
 so, tha other being present, but the latter fail in an attempt upon him- 
 self, he is principal in the murder of the first; but if it be uncertain 
 whether the deceased really killed himself, or whether he came to 
 his death by accident before the moment when he meant to destroy 
 himself, it will not be murder in either.'' Whether the advice of the 
 defendant was the operative cause of the suicide, is, it seems, imma- 
 terial. Thus, in an early case in Massachusetts.'' It was said by 
 Parker, C. J., in charging the jury, "The important fact to be in- 
 quired into is, whether the prisoner was instrumental in the death of 
 Jewett, (the deceased,) by advice or otherwise. The government is 
 not bound to prove that Jewett would not have hung himself had 
 Bowen's counsel never reached his ear. The very act of advising to 
 the commission of a crime is, in itself, unlawful. The presumption 
 of law is, that advice has the influence and effect intended by the 
 adviser, unless it is shown to have been otherwise: as that the counsel 
 was received with scoff, or was manifestly rejected and ridiculed at 
 the time it was given." 
 
 There must be presence, either actual or constructive, at the time 
 of the commission of the offence. It is not necessary that the party 
 should be actually present, an ear or eye-witness of the transaction; 
 he is, in construction of law, present aiding and abetting, if, with the 
 intention of giving assistance, he be near enough to afford it, should 
 the occasion arise. Thus, if he be outside the house, watching to 
 prevent surprise, or the like, whilst his companions are in the house 
 committing the felony, such constructive presence is sufiicient to make 
 him a principal in the second degree.' One who keeps guard while 
 others act, assisting them, is, in the eyes of the law, present and re- 
 sponsible, as if actually present." 
 
 A person, however, is not constructively present at an overt act of 
 treason, unless he be aiding and abetting at the fact, or ready to do 
 so if necessary." 
 
 Persons not sufficiently near to give assistance, are not principals. 
 Thus, where Brighton uttered a forged note at Portsmouth, the plan 
 was concerted between him and two others, to whom he was to return, 
 
 1 1 Hale, 422, 452. 
 
 2 R. .». Perkins, 4 C. & P. 537;. R. «. Murphy, 6 C. &P.103; R. v. Young, 8 C. & P. 645. 
 
 ' R. V. Dyson, Russ. & R. C. C. 523 ; R. v. Russell, Moody, C. C. 366: R. v. Alison, 8 C. 
 & P. 418. See ante, p. 98, 99. 
 
 * Com. V. Bowen, 13 Mass. 359; see ante, p. 98, 99; and see Wharton's Preced. 37 — 46. 
 
 6 Post. 347, 350; see R. v. Borthwiek et al., 1 Doug. 207; 1 Leach, 66 ; 2 Hawk. c. 29, 
 s. 7, 8 ; 1 Russ. 31 ; 1 Hale, 555 ; R. v. Gogerly et al., R. & R. 343 ; R. v. Owen, 1 Mood. 
 C. C. 96 ; Com. v. Knapp, 9 Pick. 496 ; State v. Harden, 2 Dev. & Bat. 407; State v. Cole- 
 man, 5 Porter, 32. 6 gtate v. Town, Wrisrht's Ohio R. 75. 
 
 ' United States v. Burr, 4 Cranch, 492. 
 
PRINCIPALS AND ACCESSARIES. 159 
 
 "when lie passed the note, and divide the produce. The three had 
 before been concerned in uttering another forged note; but at the 
 time this note was uttering in Portsmouth, the other two stayed 
 at Gosport. The jury found all three guilty, but, on a case reserved, 
 the judges were clear, that as the other two w.ere not present, nor 
 sufficiently near to assist, they could not be deemed principals, and, 
 therefore, they were recommended for a pardon.* Going towards 
 the place where a felony is to be committed, in order to assist in 
 carrying off the property, and assisting accordingly, will not make a 
 man a principal, if he were at such a distance at the time of the 
 felonious taking as not to be able to assist in it.^ And although an 
 act be committed in pursuance of a previous concerted plan between 
 the parties, those who are not present, or so near as to be able to 
 afford- aid and assistance at the time when the offence is committed, 
 are not principals, but accessaries before the fact.^ Presence, how- 
 ever, during the whole of the transaction is not necessary; for 
 instance, if several combine to forge an instrument, and each executes 
 by himself a distinct part of the forgery, and they are not together 
 when the instrument is completed, they are, nevertheless, all guilty 
 as principals.*' 
 
 All those who assemble themselves together, with an intent even 
 to commit a trespass, the execution whereof causes a felony to be 
 committed; and continue together, abetting one another, till they 
 have actually put their design into execution; and also all those who 
 are present when felony is committed, and abet the doing of it, are 
 principals in felony.' So if several persons come to a house with in- 
 tent to commit an affray, and one be killed, while the rest are en- 
 gaged in riotous or illegal proceedings, though they are dispersed in 
 different rooms, all will be principals in the murder.' And where 
 persons combine to stand by one another in a breach of the peace, 
 with a general resolution to resist all opposers ; and, in the execution 
 of their design, a murder is committed, all of the company are equally 
 principals in the murder, though, at the time of the fact, some of 
 them were at such a distance as to be out of view.'' Thus where a 
 number of persons combine to seize with force and violence a vessel, 
 and run away with her, and, if necessary, to kill any person who 
 should oppose them in the design, and murder ensues, all concerned 
 are principals in such murder.^ So, to use the language of an able 
 judge, where divers persons resolve generally to resist all officers in 
 the commission of a breach of the peace, and to execute it in such a 
 manner as naturally tends to raise tumults and affrays, and, in doing 
 so, happen to kill a man, they are all guilty of murder, for they who 
 unlawfully engage in such bold disturbances of the public peace, in 
 
 1 R. V. Scares, Atkinson & Brighton, 2 East, P. C. 974; Russ. & Ry. C. C. 25, S. C; 
 and see R. v. Stewart et al., Russ. & R. C. C. 363 ; R. v. Badcock et al., Russ. & R. C. C. 
 249; R. V. Manners, 7 C. & P. 801. 
 
 2 R. V. KeUey, R. & R. 421. 
 
 ' R. V. Soares, R. & R. 25 ; B. v. Dayis, Id. 113; R. v. Elsee, Id. 142 ; R. v. Badcock, 
 Id. 249 ; R. v. Manners, 7 C. & P. 801. 
 * R. V. Bingley, R. & R. 446 ; see 2 East, P. C. 768. 
 5 Post. 351, 352; 2 Hawk. c. 29, a. 9; R. v. HoweU, 2 C. & P. 437. 
 « Dalton, J., c. 161; 1 Hale, 439; Hawk. b. 2, c. 29, s. 8. 
 ' R. V. Howell, 9 C. & P. 437. « 1 GalUson, 624. 
 
1 60 HOMICIDE. 
 
 opposition to, and in defiance of, the justice of the nation, must, at 
 their peril, abide the event of their actions. Malice, in such a i^ill- 
 ing, is implied by the law, in all who were engaged in the unlawful 
 enterprise; whether the deceased fell by the hand of the accused in 
 particular, or otherwise, is immaterial. All are responsible for the 
 acts of each, if done in pursuance and furtherance of the common de- 
 sign. This doctrine may seem hard and severe, but has been found 
 necessary to prevent riotous combinations committing murder with 
 impunity. For where such illegal associates are numerous, it would 
 scarcely be practicable to establish the identity of the individual ac- 
 tually guilty of the homicide. Where, however, a homicide is com- 
 mitted by one or more of a body unlawfully associated, from causes 
 having no connexion with the common object, the responsibility for 
 such homicides attaches exclusively to its actual perpetrators.* 
 
 If, as it was laid down in a case which will be the subject of a 
 fuller discussion hereafter, during a scene of unlawful violence, an 
 innocent third person is slain, who had no connexion with the com- 
 batants on either side, nor any participation in their unlawful doings, 
 such a homicide would be murder, at common law, in all the parties 
 engaged in the affray. It would be a homicide, the consequence of 
 an unlawful act, and all participants in such an act are alike respon- 
 sible for its consequences. If the law should be called upon to detect 
 the particular agents by whom such a slaying has been perpetrated, 
 in a general combat of this kind, it would perpetually defeat justice 
 and give immunity to guilt. Suppose, for instance, a fight with fire- 
 arms between two bodies of enraged men should take place in a pub- 
 lic street, and, from a simultaneous fire, innocent persons, their wives 
 or children in their houses, should be killed by some of the missiles 
 discharged — shall the violators of the public peace, whose unlawful 
 acts have produced the death of the unofi"ending, escape, because from 
 the manner and time of the fire it is impossible to tell from what 
 quarter the implement of death was propelled? Certainly not. The 
 law declares to such outlaws, you are equally involved in all the con- 
 sequences of your assault on the public peace and safety. Is there 
 any hardship in this principle? Does not a just regard to the gene- 
 ral safety demand its strict application? If men are so reckless of 
 the lives of the innocent as to engage in a conflict with fire-arms in 
 the public highway of a thickly populated city, are they to have the 
 benefits of impracticable niceties, in order to their indemnity from 
 the consequences of their own conduct?^ 
 
 The distinction between principals in the first and second degree 
 it has been said, is a distinction without a difference; and, therefore 
 it need not be made in indictments.' Such is only the case, however, 
 where the punishment is the same for the two divisions.'' But where, 
 by particular statute, the punishment is different, then principals in 
 the second degree must be indicted specially, as aiders and abettors.* 
 In an indictment for murder, if several be charged as principals, one 
 
 ' Com. V. Daley, 4 Penn. Law Journ. 156, by King, President. 
 2 Com. V. Hare, 4 Penn. Law Journ. 259. 
 
 ' State V. Fley, 2 Brevard, 888; State v. Green, 4 Strobhart, 128. 
 * 2 Hawk. 0. 25, s. 64 ; Mackally's case, 9 Co. 67 b.: Fost. 345. 
 » 1 East, P. C. 848, 350; R. v. Home, 1 Leach, 473. 
 
PEINCIPALS AND ACCESSARIES. 161 
 
 as principal perpetrator, and tlie others as aiding and abetting, it is 
 not material which of them be charged as principals in the first de- 
 gree, as having given the mortal blow ; for the mortal injury given by 
 any one of those present, is, in contemplation of law, the injury of 
 each and every of them.' There are cases, however, where the pro- 
 visions of a statute require the distinction to be observed; thus an in- 
 dictment which charges that the prisoner caused and procured a cer- 
 tain instrument to be forged, and willingly assisted in the forgery, &c., 
 is to be understood as charging that he caused it to be done in his pre- 
 sence, and that^he aided, being present; in other words, as charging 
 him as principal in the second degree, and not as accessary.^ 
 
 If the actual* perpetrator of a murder should escape by flight, or 
 die, those present abetting the commission of the crime, may be in- 
 dicted as principals; and though the indictment should state the mor- 
 tal injury was committed by him who is absent, or dead, yet if it be 
 substantially alleged that those who were indicted were present at 
 the perpetration of the crime, and did kill and murder the deceased 
 by the mortal injury so done by the actual perpetrator, it shall be 
 sufficient.^ By the ancient law, principals in the second degree could 
 not be tried until the principal had been convicted and outlawed." 
 Such, however, is no longer the case, and the party charged as princi- 
 pal in the second degree may be convicted, though the party charged 
 as principal in the iirst degree is acquitted.^ 
 
 Thus Chief Justice Holt says, " though the indictment be against 
 the prisoner for aiding, assisting, and abetting A., who was acquitted, 
 yet the indictment and trial of this prisoner is well enough, for all 
 are' principals, and it is not material who actually did the murder."® 
 And- though anciently the person who gave the fatal stroke was con- 
 sidered as the principal, and those who were present aiding and as- 
 sisting, only as accessaries; yet it has long been settled that all who 
 are present aiding and assisting are equally pi'incipals with him who 
 gave the stroke whereof the party died, though they are called prin- 
 cipals in the second degree.'' So that if A be indicted for murder, 
 or manslaughter, and C and D for being present aiding and assisting 
 A, and A appears not, but C and D appear, they shall be arraigned ; 
 and if convicted shall receive judgment, though A neither appear 
 nor be outlawed.' And if A be indicted as having given the mortal 
 stroke, and B and C as present, aiding and assisting, and upon the 
 evidence it appears that B gave the stroke, and A and C were only 
 aiding and assisting, it maintains the indictment, and judgment shall 
 be given against them all; for it is only a variation of circumstance; 
 
 1 State V. Mair, 1 Coxe's R. 453 ; Foster, 551 ; State v. Fley & Eochelle, 2 Brevard, 
 338 ; R. V. Borthwick, Doug. 207; 1 East, P. C. 350. 
 
 2 See Rasnick's case, 2 Virg. Ca. 356 ; Huffman v. Com. 9 Randolpll, 685. 
 
 3 State V. Fley & Rochelle, 2 Rice's S. C. Digest, 104 ; 2 Bre-vard, 338. 
 * Foster, 347. 
 
 ^ R. V. Taylor, 1 Leach, 360; Benson v. Offley, 2 Shaw, 570; 3 Mod. 121 ; R. ti.Wallis, 
 Salk. 334; K. v. Towle, R. & R. 314; 3 Price, 145; 2 Marsh, 465; Archbold's C. P. 6. 
 
 ^ R. V. Wallis et al., Salk. 334. This point was doubted by some of the Judges, in 
 Taylor and Shaw's case, 1 Leach, 360; 1 East, P. C. c. 5, o. 121, p. 351; but a majority 
 of them thought the conviction proper. No express determination, however, was mad© 
 in the last case, as it was thought by the judge who tried the prisoner a prcyier case for 
 a pardon, on the special circumstances. 
 
 ' 1 Hale, 437; Plow. Com. 100, u. s i Hale, 437; Plow. Com. 97, 100; Gjthin'scnse., 
 11 
 
162 HOMICIDE. 
 
 the law being that the stroke of the one is the stroke of all who were 
 presents It is competent for the prosecution, on a trial of a principal 
 in the second degree, to oflFer in evidence an admission of guilty by 
 the principal in the first degree, in addition to the record of the 
 letter's conviction. 
 
 Accessaries hefore the Fact.^ 
 
 An accessary before the fact is one who, though absent at the time 
 of the commission of the felony, doth yet procure, counsel, command, 
 or abet another to commit such felony.^ The meaning of the word 
 "command" is, where a person having control over another, as a 
 master over a servant, orders a thing to be done.* To constitute a 
 man accessary, it is necessary that he should have been absent at the 
 time when the felony was committed; if he was either actually or 
 constructively present, he is, as has been seen, principal.' The ac- 
 cessary is liable for all that ensues upon the execution of the unlaw- 
 ful act commanded; as, for instance, if A command B to beat C, and 
 he beat C, and he beat him so that he dies, A is accessary to the 
 murder.' So, if A command B to burn the house of C, and in doing 
 so the house of D is also burnt, A is accessary to the burning of D's 
 house.' And so if the qffence commanded be effected, although by dif- 
 ferent means from those commanded ; as, for instance, if J. W. hire 
 J. S. to poison A, and instead of poisoning him he shoot him, J. W. 
 is, nevertheless, liable as accessary." If procurement is through an 
 intermediate agent, it is not necessary that the accessary should name 
 the person to be procured to do the act.' The procurement need not 
 be direct; it is sufficient if one or more persons become the medium 
 through whom the work is done;'" it may be either by direct means, 
 as by hire, counsel, or command ; or indirect, by evincing an express 
 liking, approbation, or assent to another's felonious design.'' 
 
 The concealment of the knowledge that a felony is to be committed, 
 will not make the party concealing accessary before the fact ;'* nor 
 
 1 E. ti. Maokally, 1 East, 350; 9 Co. 98, (a.;) 1 Hale, 438. 
 
 2 For indictments under this head, see Wharton's Precedents, as follows : Against ac- 
 cessary before the fact, together with the principal, 32. Against an accessary before 
 tjie fact, the principal being convicted, 84. Against accessary after the fact, with the 
 principal, 35. Against accessary after the fact, the principal having been convicted, 35. 
 Against accessary before the fact generally, in Massachusetts, 35. Against accessary 
 befora the fact, in murder, at common law, 36. Against accessary before the fact, in 
 murder, in Massachusetts, 86. Against an accessary for harbouring a principal felon in 
 murder, 36. Against an accessary to burglary after the fact, 37. Against principal and 
 accessaries before the fact in same, 37. Against accessary before the fact to suicide: 
 First count, against suicide as principal in the first degree, and against party aiding him 
 as principal in the second degree, 37; Second count, against defendant for murdering 
 suicide, 38 — 66. Against a defendant in murder, who is an accessary before the fact in 
 one county to a murder committed in another, 39. See, for other forms of accessaries 
 to murder, &c., "Homicide." Against principal and accessary before the fact, in lar- 
 ceny, 40. Against accessary for receiving stolen goods, 40. Against accessary for 
 receiving principal felon, 41. Against accessary to piracy before the fact, 618. Against 
 accessary to piracy after the fact, 619. 
 
 s 1 Hale, 615. * State v. Mann, 1 Haywood's N. C. R. 4. 
 
 » 1 Hale, 615; R. o. Gordon, 1 Leach, 515; 1 East, P. C. 352. 
 
 6 4 Bl. Com. 37; 1 Hale, 617. ' R. v. Saunders, Plowd. 475. 
 
 a Fost. 869, 370. " R. v. Cooper, 5 C. & P. 585. 
 
 " Fost. 125; R. «. Somerset, 19 St. Trials, 804; R. v. Cooper, 5 C. & P. 535. 
 
 " 2 Hawk. c. 29, s. 11 ; People v. Norton, 8 Cowen, 137. " 2 Hawk. 0. 29, s. 23. 
 
ACCESSARIES BEFORE THE FACT. 1 63 
 
 ■will a tacit acquiescence, or words which amount to a bare permission, 
 be sufficient to constitute this offence.' The procurement must con- 
 tinue till the consummation of the offence; for if the procurer of a 
 felony repent, and, before the felony is committed, actually counter- 
 mand his order, and the principal, notwithstanding, commit the felony, 
 the original contriver will not be an accessary.^ So, if the accessary 
 order or advise one crime, and the principal intentionally commit 
 another: as, for instance, to burn a house, and instead of that he com- 
 mit a larceny; or, to commit a crime against A, instead of so doing 
 he commit the same crime against B — the accessary will not be an- 
 swerable;' but, if the principal commit the same offence against B 
 by mistake, instead of A, it seems it would be otherwise.'* 
 
 If the crime committed be not the direct and immediate effect of 
 the act done in pursuance of the command, or if the act done varies 
 in substance from that which was commanded, the party giving the 
 command cannot be deemed an accessary to the crime. Thus, if A 
 persuade B to poison C, and B accordingly give poison to C, who eats 
 part of it, and gives the rest to D, who is killed by it, A is guilty of 
 a great misdemeanor only in respect of D, but is not an accessary to 
 his murder: because it was not the direct and immediate effect of the 
 act done in pursuance of the command.'' And if A counsel or com- 
 mand B to beat C with a small wand or rod, which would not in all 
 human reason cause death, and B beat C with a great club, or wound 
 him with a sword, whereof he dies, it seems that A is not accessary; 
 because there was no command of death, nor of any thing that could 
 probably cause death ; and B departed from the command in substance, 
 and not in circumstance.' But if the crime committed be the same 
 in substance with that which was commanded, and vary only in some 
 circumstantial matters; as where a man advises another to kill a per- 
 son in the night, and he kills him in the day; or to kill him in the 
 fields, and he kills him in the town; or to poison him, and he stabs 
 or shoots him; the person giving such command is still accessary to 
 the murder; for the substance of the thing commanded was the death 
 of the party killed, and the manner of its execution is a mere colla- 
 teral circumstance.^ 
 
 At common law, the conviction of some one who has committed the 
 crime must precede that of one guilty only as accessary. A prisoner 
 does not waive his right to call for the record of such conviction, by 
 pleading.' The same rule has been laid down in Massachusetts.^ In 
 North Carolina, the principle has been somewhat expanded, it having 
 been there held that the accessary is not liable to be tried while the 
 principal is amenable to the laws of the state, and is still unconvicted,' 
 though in that state the conviction of the principal is not admissible 
 evidence, until judgment has been rendered on the verdict.'" In 
 
 1 1 Hale, 616. ^ j H^le, 618. ^ 1 Hale, 617. 
 
 * Fost. 370, et seq.; but see 1 Hale, 687; 3 Inst. 51. " 1 Hale, 436. 
 
 « 2 Hawk. c. 29, s. 20. ' Fost. 360; 1 Hale. 623; U. S. v. Burr, i Cranch, 502. 
 
 8 Com. 0. Andrews, 3 Mass. 126; Com. v. Briggs, 5 Pick. 429; Com. v. Woodward, 
 Thacher's C. C. 63. 
 
 ' State V. Graff, 1 Murphey's K. 270 ; see State v. Goode, 1 Hawks, 463 ; Harty v. 
 State, 3 Blackford's Ind. R. 386. 
 
 •0 State V. Duncan, 6 Iredell, 98 ; though see in Virginia, Com. v. Williamson, 2 Virg. 
 C. 211 ; and S. 'CaroUna, State v. Sims, 2 Bail. S. C. 29. 
 
164 
 
 HOmCIDE. 
 
 Massaclinsetts, an accessary, in a capital case, cannot be tried at com- 
 mon law without his own consent, even where the principal has died 
 before conviction.' But where there' have been two principals, one 
 of whom has been convicted, the other of whom is dead, he must an- 
 swer notwithstanding the non-conviction of the second.^ 
 
 Conviction of the principal i& prima facie evidence of his guilt, on 
 the trial of the accessary.' In Virginia, in an early case, where the 
 principal and accessary were charged in the same indictment for mur- 
 der, and the principal was first tried, and convicted of murder in the 
 second degree, and before judgment was pronounced against him, the 
 accessary was tried, and the jury found a verdict against him, subject 
 to the opinion of the court, whether the accessary could be tried be- 
 fore the principal had judgment, he being in custody, convicted, as 
 principal, it was decided that, under the statute, conviction alone, 
 without attainder, is sufficient.^ In Massachusetts, however, as has 
 been seen, by the revised statutes, the accessary may be tried for a 
 substantive felony, whether the principal be convicted or not; and 
 the same provision exists in several of the states. So far as receiving 
 stolen goods, knowing them to be stolen, is concerned, the modifica- 
 tion is almost universal. In general, however, in other respects, the 
 common law remains unchanged. The Massachusetts statute, like 
 that of 7 Geo. 4, c. 64, s. 9, of which it is a transcript, only applies 
 where the accessary might at common law have been indicted with 
 or without the conviction of the principal, and therefore where a de- 
 fendant was indicted as accessary before the fact to the murder of 
 S. N., she having, by his procurement, killed herself, it was holden 
 that the statute did not apply.' 
 
 Where the principal and accessary are tried together, (which is in 
 general the best and most usual way,) if the'principal plead other- 
 wise than the general issue, the accessary shall not be bound to an- 
 swer, until the principal's plea be first determined.^ Where the ge- 
 neral issue is pleaded, however, the jury must be charged to inquire 
 first of the principal, and, if they find him not guilty, then to acquit 
 the accessary ; but if they find the principal guilty, they are then to 
 inquire of the accessary.'' Even in a case where the principal was 
 indicted for burglary and larceny in a dwelling-house, and the ac- 
 cessary charged in the same indictment as accessary before the fact 
 to the said "felony and hurglaryp and the jury acquitted the princi- 
 pal of the burglary, but found him guilty of the larceny, the judges, 
 it is said, were of opinion that the accessary should have been ac- 
 quitted; for the indictment charged him as accessary to the burglary 
 only, and the principal being acquitted of that, the accessary should 
 be acquitted also.^ 
 
 In New York, "an indictment against an accessary to any felony 
 may be found in the county where the offence of such accessary shall 
 
 1 Com. v. Phillips, 16 Mass. 423. 
 
 -■ Com. V. Knapp, 10 Pick. 477. For statutes, see ante, p. 15,3. 
 
 s Com. V. Knapp, 10 Pick. 477; State i\ Duncan, 6 Iredell, 236. 
 
 * Com V Williamsou, 2 Virg. C. 211. See as to common law, ante, p. 163. 
 
 » H. v. Russell, 1 Mood. C. C. 356. « 9 H. 7, 19; 1 Hale, 624; 2 lust. 184. 
 
 ' IHale, 624; 2 Inst. 184. 
 
 8 R. V. Donnelley and Vaughan, R. & R. 310; 2 Marsh. -571. 
 
ACCESSARIES BEFOBB THE FACT. 165 
 
 have been committed, notwithstanding the principal offence was com- 
 mitted in another county, and the like proceedings shall be had 
 thereon in all respects, as if the principal offence had been committed 
 in the same county."' 
 
 An accessary cannot take advantage of an error in the record 
 against the principal; and the attainder of the principal, while unre- 
 versed, is prima facie evidence against the accessary of the princi- 
 pal's guilt." 
 
 In South Carolina, it has been held, that at common law it is not 
 necessary in an indictment against an accessary before the fact, in a 
 felony, to set out the conviction or execution of the principal.^ 
 
 In Tennessee, where a principal to a murder was sentenced to im- 
 prisonment for life, an accessary before the fact, subsequently tried 
 and convicted, was held to be properly sentenced to the same period.'' 
 
 The indictment must show the offence to have been committed with 
 as much particularity as is necessary in an indictment against the 
 principal. Thus, in Virginia, when the indictment was as follows: 
 "Amherst county, Superior Court of Law and Chancery, to wit: The 
 grand jurors empanelled and sworn at September term, 1834, upon 
 their oath present, that J. W. Dudley, late of the county of Amherst, 
 labourer, with force and arms, in the county aforesaid, and within the 
 jurisdiction of the said superior court, on the 1st day of September, 
 1834, did wilfully and knowingly aid, abet, and counsel a certain 
 W. M. Davis, in unlawfully, maliciously, and wilfully fighting a duel 
 with pistols, with a certain W. M. Lambert, then and there being, the 
 probable consequence of such weapons might be the death of the said 
 Davis or the said Lambert, and the jurors upon their oaths say, that 
 the said Dudley did, as aforesaid, aid, abet, and counsel the said Davis 
 in fighting the said duel, which took place at the time, place, and 
 manner aforesaid, against the form of the statute in such cases made 
 and provided, and against the peace and dignity of this common- 
 wealth;" Upshur, J., on demurrer said, "in an indictment for aiding 
 and assisting in fighting a duel, it is indispensable to charge that a 
 duel was fought. Perhaps it was the intention of the attorney to do 
 so in this instance, and the language of the indictment may possibly 
 be susceptible of a different construction; and, therefore, is wanting 
 in that directness and precision of averment, which are necessary in 
 an indictmetit. This defect being, in our opinion, fatal, we have not 
 thought it necessary to turn our attention to other objections."* 
 
 Under the criminal code of Illinois, which declares, that an acces- 
 sary before the fact " shall be deemed and considered as principal 
 and punished accordingly," an accessary may be indicted and con- 
 victed as a principal.* 
 
 If the felony is not committed, he who counsels or commands its 
 commission is not liable as accessary before the fact, but it seems he 
 may be convicted for the attempt as a substantive misdemeanor.' In 
 
 > Rev. Stat. Part iv. Chap. II.; Tit. 4, art. II. sec. 48. 
 
 2 State,?). Duncan, 6 Iredell, 236; Com. v. Knapp, 10 Pick. 477. 
 
 3 State «. Sinae, 2 Bail. S. C. Eep. 29 ; State v. Evans, lb. 66 ; but see ante, p. 163, n. 10. 
 
 * Nuthill V. State, 11 Hump. 247. 
 
 * Com. V. Dudley, 6 Leigh's Va. E. 614. « Baxter v. The People, 3 ailman, 368. 
 ' 2 East, E. 5; Ch. C. L. 264. See Wh. C. Law, "Attempts." 
 
166 
 
 HOMICIDE. 
 
 New York, on the trial of an indictment under the statute for an 
 attempt to commit arson, it was shown that the prisoner solicited one 
 K. to set fire to a barn, and gave him materials for the purpose: it 
 was held sufficient to warrant a conviction, though the prisoner did 
 not moan to be present at the commission of the offence, and K. never 
 intended to commit it.' The law undoubtedly is, that a solicitation 
 to commit murder, though unaccompanied with any overt act what- 
 ever, is indictable as a misdemeanor. 
 
 It is not material that an accessary should have originated the de- 
 sign of committing the offence. If the principal had previously 
 formed the design, and the alleged accessary encouraged him to carry 
 it out by stating falsehoods, or otherwise, he is guilty as accessary 
 of the offence.^ 
 
 Accessaries after the Fact. 
 
 An accessary after the fact is one who, when knowing a felony to 
 have been committed by another, receives, relieves, comforts, or assists 
 the felon,^ whether he be a principal or an accessary before the fact 
 merely.'* Any assistance given to one known to be a felon, in order 
 to hinder his apprehension, trial, or punishment, is sufficient to make 
 a man an accessary after the fact: as, for instance, that he concealed 
 him in his house,* or shut the door against his pursuers, until he should 
 have an opportunity of escaping,* or took money from him to allow 
 him to escape,^ or supplied him with money, a horse, or other neces- 
 saries, in order to enable him to escape,^ or that the principal was in 
 prison, and the defendant, before conviction, bribed the jailer to let 
 him escape, or supplied him with materials to effect the same purpose.' 
 Merely suffering a felon to escape, however, will not charge the party 
 so doing, such amounting to a mere omission." So, if a person sup- 
 ply a felon in prison with victuals or other necessaries for his suste- 
 nance;" or succour and sustain him if he be bailed out of prison;'^ or 
 professionally attend a felon sick or wounded, although he know him 
 to be a, felon;" or speak or write in order to obtain a felon's pardon 
 or deliverance," or advise his friends to write to the witnesses not to 
 appear against him at his trial, and they write accordingly; " or even 
 if he himself agree, for money, not to give evidence against the felon ; '* 
 or know of the felony and do not discover it; " it seems that these acts 
 will not be sufficient to make the party an accessary after the fact. 
 
 Two things are laid down in the books as necessary to constitute 
 a man accessary after the fact to the felony of another. 
 
 1. The felony must be completed." 
 
 2. The defendant must know that the felon is guilty,^^ and this, 
 therefore, is always averred in the indictment.^" And though it seems 
 
 1 People ». Bush, 1 Hill, N. Y. R. 133. « KeitWer v. The State, 10 S. & M. 1P2. 
 
 8 1 Hale 618; 4 Bl. Com. 37. * 2 Hawk. c. 29, «. 1 ; 3 P. Wms. 47f . 
 5 Dalt. 530, 531. « 1 Hale, 619. 
 
 ' 9 H. 4, 1. * Hall's Sum. 218; 2 Hawk. c. 29, =. 26. 
 
 9 1 Hale', 621; Hawk. b. 2, o. 29, s. 26; Archbold by Jervis, 9. 
 
 i» 1 Hale 619. " 1 Hale, 620. " Id. " 1 Hale, 332. 
 
 "26 Ass. 47. i5 3inst. 139; 1 Hale, 620. ><! Moore, 8. " 1 Hale, 371, 618. 
 
 18 1 Ch. C. L. 264; 1 Hale, 622; 2 Hawk. c. 29, s. 35. 
 
 " 1 Hale, 622; Hawk. b. 2, c. 29, 8. 32 ; Com. Dig. Justices, T. 2. 
 
 20 Hawk. b. 2, c. 29, s. 33. 
 
ACCESSARIES AFTER THE FACT. 167 
 
 to have been doubted whether an implied notice of the felony will 
 not, in some cases, suffice, as where a man receives a felon in the same 
 county in which he has been attainted, which is supposed to have been 
 a matter of notoriety,' it is now the better opinion, that some more 
 particular evidence is requisite to raise the presumption of know- 
 ledge.^ The only relation which excuses the harbouring a felon, is 
 that of a wife to her husband, because she is considered as subject to 
 his control, as well as bound to him by affection.' But at common 
 law, no other ties, however near, will excuse; for if the husband pro- 
 tect the wife, the father his son, or a brother his brother, they contract 
 the guilt, and are liable to the punishment of accessaries to the original 
 felony.'' 
 
 Where the principal and accessary are joined in an indictment, 
 and tried separately, the record of the principal's conviction is, prima 
 facie, evidence of his guilt, upon the trial of the accessary; and as 
 the burden of proof is on the accessary, he must show clearly that 
 the principal ought not to have been convicted.* But the accessary, 
 in such case, is not restricted to proof of facts that were not shown 
 on the former trial, and which are incompatible with the guilt of the 
 principal.® The record of the conviction of a slave before a court of 
 magistrates and freeholders as principal in a felony, (i. e. murder,) 
 may be given in evidence on the trial of an indictment against a free 
 white man as accessary before the fact.' In New York, a copy of 
 the original minutes of the court, in which the principal was con- 
 'victed, if entered according to the direction of the statute, is proper 
 evidence against an accessary before the fact; it appearing that no 
 record of judgment of such conviction has been signed and filed ; 
 and it is reasonable to suppose, that the original minutes are equally 
 sufficient.' But the rough minutes or original entries, not inspected 
 or approved by the court, according to the statutes, are not evidence.' 
 
 In an indictment against a free white person, under the Georgia 
 statute of 1840, for being accessary after the fact in the receipt of 
 stolen goods, charging that a negro man slave. Bob, was the princi- 
 pal felon, and stole the goods, it was held, that in order to convict 
 the defendant, the state must prove that Bob stole the goods; and 
 that in all cases where a person is charged with being accessary 
 after the fact, the guilt of the principal must be proved." 
 
 ' Dyer, 355 ; Staunf. 41 b. ^ 1 Hale, 323, 622 ; 3 Peere Wms. 
 
 ' 1 Hale, 621; Hawk, b. 2, c. 29, s. 34; 4 Bla. Com. 39; Com. Dig. Justices, T. 2. 
 * Ibid. 5 Com. v. Knapp, 10 Pick. 484; State v. Chittcm, 2 Dev. 49. 
 
 « Com. V. Knapp, 10 Pick. 484. 
 
 ' State V. Sims, 2 Bail. S. C. Kep. 29; State v. Crank, lb. 66. 
 « People V. Gray, 25 Wendell, 465. » Ibid. 
 
 1" Simmons v. State, 4 Geo. 465. 
 
168 HOMICIDE. 
 
 CHAPTER IX. 
 
 DEFENCE IN HOMICIDE CASES. 
 
 I. PROTOflATION. 
 
 1st. Words, gestures, and other light provocations. 
 
 (1.) When the intent is to kill. 
 
 (2.) When it is only to chastise. 
 2d. Dishonour. 
 3d. Cooling time. 
 4th. Trespass. 
 5th. Blows. 
 
 (1.) Where the parties are equal. 
 
 (2.) Where there is a disparity in strength or weapons. 
 
 (3.) Where the intent is to kill. 
 
 (4.) Where the intent is to chastise. 
 
 (5.) Where the mortal blow is deliberately given when 
 the deceased is disarmed or helpless. 
 
 (6.) Where the attack was sought by the party killing. 
 
 (7.) Where the revenge is cruel and unusual. 
 
 (8.) Where there was an old grudge. 
 
 (9.) Where a third party interferes in the combat of others. 
 6th. Restraint or coercion. 
 7th. Duelling. 
 
 II. Misadventure. 
 
 III. Excuse and justification. 
 
 1st. Repulsion of a felonious assault. 
 (1.) On person. 
 
 (a.) What the nature of the assault must be. • 
 
 (6.) How far retreat is necessary. 
 
 (c.) What certainty must exist as to felonious intent. 
 
 [d.) By whom the right may be exercised. 
 
 (e.) How far want of premeditation is necessary. 
 (2.) On property. 
 2d. Execution of the law. 
 3d. Killing of fugitives from arrest. 
 4th. Self-preservation in shipwreck. 
 
 IV. Death produced by other causes. 
 
 V. Character of defendant. 
 
 VI. Character of deceased. 
 
 I. PEOVOCATION. 
 1st. Words, gestures, and other light provocations. 
 (1.) When the intent is to kill. 
 
 No provocation whatever can render homicide justifiable, or even 
 excusable; the least it can amount to is manslaughter.' Words of re- 
 
 1 Kel. 136 ; 1 Hale, 466; Fost. 290; V. 8. v. Trayers, U. S. Cir. Court, 2 Wheeler's C. 
 C. 504; Com. V. York, 9 Mete. 93; State v. Tackett, 1 Hawks, 210; Allen v. State, 5 
 Yerger, 453; Jacob v. State, 3 Hump. 493 ; King v. Com., 2 Va. Cases, 98. 
 
PROTOCATIONS^WOBDS, GESTURES, ETC. 169 
 
 proacb, how grievous soever, are not provocation sufficient to free the 
 party killing from the guilt of murder; nor are indecent provoking 
 actions or gestures expressive of contempt or reproach without an as- 
 sault upon the person.' 
 
 The intent, inmost instances, is to be drawn from the weapon used. 
 "Where it is intended merely to chastise, and death ensues, the offence 
 is manslaughter: where it is intended to kill, it is murder.^ Thus, 
 where a woman called a man, who was sitting drinking in an ale-house, 
 "a son of a whore," upon which the man took up a broom-staff, and at 
 a distance threw it at her and killed her; and it was propounded to 
 the judges whether this was murder or manslaughter. Two questions 
 were made, 1. Whether bare words, or words of this nature, would 
 amount to such a provocation as would extenuate the fact into man- 
 slaughter; 2. Admitting that they woiild not, in case there had been 
 a sh-ikiri^ with such an instrument as necessarily would have caused 
 death, as stabbing with a sword or shooting with a pistol ; yet whether 
 this striking, so improbable to cause death, would not alter the case. 
 The judges were not unanimous upon this case ; and, as the consequence 
 of a resolution on either side was great, it was advised that the king 
 should be moved to pardon the offender; which was accordingly done.^ 
 
 Where, a boy twelve years old, who had been in the. habit of go- 
 ing to a cooper's shop, and taking away chips, was told one morning 
 by the cooper's apprentice not to come again, he however went again 
 in the afternoon, and the apprentice spread his arms out to prevent 
 his reaching tlie spot where he usually gathered the chips, on which 
 the boy started off, and in passing a work bench took up a whittle (a 
 sharp-pointed'steel knife with a long handle) and threw it at the ap- 
 prentice, and the blade of the whittle entered his body, to the depth 
 of four inches, and caused his death; the jury having found him guilty 
 upon an indictment for manslaughter; Hullock, B., observed, that had 
 he been indicted for murder, the evidence would have sustained the 
 charge.'' 
 
 A charge " that although in general mere words might not be suf- 
 iicient to reduce the crime of murder to manslaughter, yet the jury 
 w^e the judges, whether the provocation if more than by mere words 
 was sufficient," should be refused as calculated to mislead the jury; 
 because it leaves them to infer that mere words may in some cases 
 thus reduce the offence; because it assumes that it is not the province 
 of the court, but of the jury, to pass upon the legal sufficiency of the 
 provocation; because there being uncontradicted evidence of egress 
 malice, no degree of provocation could extenuate the offence, aiia^ the 
 charge in that view of the case was inapplicable to the fact.' 'And 
 as a general rule under such circumstances, it is proper to instruct {he 
 jury that they must take into consideration the weapon used, as w'ell 
 as the degree of deliberation, as important ingredients in the question 
 how far the provocation sufficed. 
 
 If there be a chiding between husband and wife, and the husband 
 
 1 1 Hale, p. C. 456; Fost. 290; T7. S. v. Wiltberger, 2 Washington's C. C. R. 515; V. 
 S. V. Travers, per Story, J., 2 Wheeler's C. C. 507; Com. v. York, 9 Met. 93; R. v. Camp- 
 bell, 7 Bost. L. R. 131; State v. Taokett, 1 Ha-wka, 210; State v. Merrill, 2 Dev. 269. 
 
 2 See Jacob v. State, 3 Humph. 493. s 1 Hale, 455. 
 
 < Langstaff's case, 1 Lewin, 162. s j-elix v. The State, 18 Ala. 72. 
 
170 HOMICIDE. 
 
 strike his wife thereupon with a pestle, so that she dies presently, it is 
 murder; and the chiding will not be a provocation to extenuate it to 
 manslaughter.' 
 
 Where A passing by the shop of B distorted his mouth, and smiled 
 at him, and B killed him ; this was held murder; for it was no such pro- 
 vocation as would abate the presumption of malice in the party killing.^ 
 
 In cases of provocation of a slighter kind, not amounting to an as- 
 sault, as the ground of extenuation would be that the act of resentment 
 which has unhappily proved fatal, did not proceed from malice, or a 
 spirit of revenge, but was intended merely for correction; so the 
 material inquiry will be, whether malice must be inferred from the 
 sort of punishment inflicted, from the nature of the instrument used, 
 and from the manner of the chastisement. For if on any sudden pro- 
 vocation of a slight nature, one person beat another in a cruel and un- 
 usual manner, so that he dies, it is murder by express malice, though 
 the person so beating the other did not intend to kill him.^ 
 
 If A be passing along the street, and B meeting him (there being 
 a convenient distance between A and the wall) take the wall of him, 
 and thereupon A kill B, this is murder: but if B had justled A, this 
 justling had beea a provocation, and would have made it manslaughter.'* 
 
 As will presently be seen more fully, where an assault is made with 
 violence or circumstances of indignity upon a man's person, as by 
 pulling him by the nose, and the party so assaulted kills the aggressor, 
 the crime will be reduced to manslaughter, in case it appears that the 
 assault was resented immediately, and the aggressor killed in the heat 
 of blood, the furor brevis, occasioned by the provocation. Thus 
 where A is passing along the street and B meeting him, (there being 
 convenient distance between A and the wall) takes the wall of him 
 and justles him, and thereupon A kill B, it is said that such justling 
 would amount to a provocation which would make the killing only 
 manslaughter. And so it was considered that where A riding on the 
 road, B whipped the horse of A out of the track, and then A alighted 
 and killed B, it was only manslaughter.* 
 
 Though words of menace of bodily harm are not a sufiScient pro- 
 vocation to reduce the offence of killing to manslaughter; yet it has 
 been considered that such words ought, at least, to be accompanied 
 by some act denoting an immediate intention of following them up 
 by an actual assault.* 
 
 But, though words of slighting, disdain, or contumely, will not of 
 themselves make such a provocation as to lessen the crime into man- 
 slaughter; yet, it seems that if A give indecent language to B, and 
 B thereupon strike A, but not mortally, and then A strike B again, 
 and then B kill A, that this is but manslaughter. The stroke by A 
 was deemed a new provocation, and the conflict a sudden falling out; 
 and on those grounds the killing was considered as only man- 
 slaughter.^ 
 
 Selfridge's case, which will be given in the appendix, is that which 
 in America is usually relied on to sustain a more liberal view of the 
 law in this respect. It is due, however, to the respectable judge by 
 
 ' 1 Russ. on Cr. 514. ' 1 Hale, 455. 
 
 » 1 East, P. C. 235; 4 Blac. Com. 199. * 1 Hale, 455. » Kel. 135; 1 Hale, 455. 
 
 • 1 East, P. C. c. 5, 8. 29, p. 233 ; see Short v. State, 7 Yerger, 510. ' 1 Hale, 455. 
 
PROVOCATIONS, — MENACES, KTC. 171 
 
 whom was given the charge which led to the defendant's acquittal, 
 to state that the terms of the charge, with but a few slight excep- 
 tions, are conformable to the established principles of the common 
 law. The principal points which were laid down are these: — 
 
 "Firstly. That a man who in the lawful pursuit of his business is 
 attacked by another, under circumstances which denote an intention 
 to take away his life, or do him some enormous bodily harm, may law- 
 fully kill the assailant, provided he use all the means in his power, 
 otherwise to save his own life or prevent the intended harm; such aa 
 retreating as far as he can, or disabling his adversary without killing 
 him, if it be in his power. 
 
 "Secondly. When the attack upon him is so sudden, fierce and 
 violent, as that a retreat would not diminish, but increase his danger, 
 he may instantly kill his adversary without retreating at all. 
 
 " Thirdly. When from the nature of the attack, there is reason- 
 able ground to believe that there is a design to destroy his life, or 
 commit any felony upon his person, the killing the assailant will be 
 excusable homicide, although it should afterwards appear that no 
 felony was intended. 
 
 "Of these three propositions, the last is the only one that will be 
 doubted any where; and this will not be doubted by any who are con- 
 versant in the principles of the criminal law. Indeed if this last propo- 
 sition be not true, the preceding ones, however true and universally 
 admitted, would in most cases be entirely inefficacious. And when it 
 is considered that the jury who try the cause, are to decide upon the 
 grounds of apprehension, no danger can flow from the example. To 
 illustrate this principle, take the following case: — A in the peaceable 
 pursuit of his affairs, sees B rushing rapidly towards him, with an 
 outstretched arm, and a pistol in his hand, and using violent menaces 
 against his life as he advances. Having approached near enough in 
 the same attitude. A, who has a club in his hand, strikes B over the 
 head, before, or at the instant the pistol is discharged, and of the 
 wound B dies. It turns out that the pistol was loaded with powder 
 only, and that the real design of B was only to terrify A. Will any 
 reasonable man say that A is more criminal than he would have been 
 if there had been a bullet in the pistol? Those who hold such doc- 
 trine must require, that a man so attacked, must, before he strike the 
 assailant, stop and ascertain how the pistol was loaded. A doctrine 
 which would entirely take away the right of self-defence. And when 
 it is considered that the jury who try the cause, and not the party 
 killing, are to judge of the reasonable grounds of his apprehension, 
 no danger can be supposed to flow from this principle. 
 
 In another part of the charge, it is said, "I doubt whether self- 
 defence could in any case be set up where the killing happened in 
 consequence of an assault only, unless the assault be made with a 
 weapon, which, if used at all, would probably produce death. 
 
 " When a weapon of another sort is used, it seems to me that the 
 effect produced is the best evidence of the power and intention of the 
 assailant to do that degree of bodily harm, which would alone autho- 
 rize the taking his life on the principles of self-defence. 
 
 " There is another point of more importancfe for you to settle, con- 
 cerning which you must make up your minds from all circumstances 
 
IT 2 . HOMICIDE. 
 
 proved in the case, namely, whether the defendant could probably 
 have saved himselffrom death, or enormous bodily harm, by retreat- 
 ing to the wall, or by throwing himself into the arms of his friends, 
 who would protect him. If you believe under all the circumstances, 
 the defendant could have escaped his adversary's vengeance, at the 
 time of the attack, without killing him, the defence set up has failed, 
 and the defendant must be convicted. If you believe, his only resort 
 for safety was to take the life of his antagonist, he must be acquitted, 
 unless his conduct has been such prior to the attack upon him, as will 
 deprive him of the privilege of setting up a defence of this nature. 
 
 " It has, however, been suggested by the defendant's counsel, that 
 even if his life had not been in danger, or no great bodily harm, but 
 only disgrace were intended by the deceased, there are certain prin- 
 ciples of honour and natural right, by which the killing may be jus- 
 tified. These are principles which you as jurors, and I as a judge, 
 cannot recognise. Th6 laws which we are sworn to administer are 
 not founded upon them. Let those who choose such principles for 
 their guidance, erect a court for the trial of points and principles of 
 honour; but let the courts of law adhere to those principles which 
 are laid down in the books, and whose wisdom ages of experience 
 have sanctioned. I therefore declare it to you as the law of the land, 
 that unless the defendant has satisfactorily proved to you, that no 
 means of saving his life, or his person from the great bodily harm 
 which was apparently intended by the deceased against him, except 
 killing his adversary, were in his power, he has been guilty of man- 
 slaughter, notwithstanding yoa may believe that the case does not 
 present the least evidence, of malice or premeditated design to kill 
 the deceased. 
 
 " If a man for the purpose of bringing another into a quarrel, pro- 
 vokes him, so that an affray is commenced, and the person causing the 
 quarrel is overmatched, and to save himself from apparent danger, 
 kill his adversary, he will be guilty of manslaughter, if not murder, 
 because the necessity being of his own creating, shall not operate in 
 
 lllS GXCUSG» 
 
 "You are therefore to inquire whether this assault upon the defen- 
 dant by the deceased, was or was not by the procurement of the de- 
 fendant; if it were, he cannot avail himself of the defence now set up 
 
 by him. 
 
 Abstractedly the only point in which the propositions justgiven vary 
 from the common law occurs in the third paragraph. By the law thus 
 stated, a person suspecting that a larceny on the person is about to 
 be committed by an assailant, would be justified in killing the assailant 
 to prevent it. And what is more, the position goes the broad length 
 of saying that when there is "reasonable ground," for one man to 
 suspect another of an intent "to destroy his life," or to "commit any 
 felony upon his person," the former may take the latter's life, no 
 matter how unfounded is the suspicion, or how abundant are the op- 
 portunities of arresting the apprehended felon by a less bloody process. 
 It was in fact to this proposition, which was stated independently, 
 that the attention of the jury was particularly called from the very 
 fact of the stnisrsrle of the judge to reconcile it with the current 
 of authority. That it was the clause on which the jury hung their 
 
PEOVOCATION BY WORDS, GESTURES, ETC. 173 
 
 verdict, cannot now be asserted ; but that it has been quoted before 
 and since to justify those cases in which personal violence has been 
 used, ei^ier to arrest or to punish suspected crime, is a fact with which 
 those acquainted with criminal trials cannot but be familiar. 
 
 One other feature in the charge, which it would be improper 
 here to introduce without dissent, is that which is' italicized in the 
 text, and which assumes the fact that "great bodily harm was appa- 
 rently intended by the deceased against the defendant." The as- 
 sumption of such a matter of fact should never be made in such a way 
 as to lead to the belief that it is a matter of law. How far the as- 
 sumption was justified in the present case will be seen by the following 
 summary of the evidence: — The deceased, Charles Austin, was a stu- 
 dent in Harvard University, about eighteen years of age, " tall, but not 
 stout, and not called strong," and the son of a gentleman who had 
 been for som^ time, as appeared in evidence, an active politician in 
 the democratic ranks. The defendant was a member of the Suffolk 
 bar, a man somewhat advanced in his profession, conspicuous himself 
 as a federalist, and distinguished, it was said, no less for the urbanity 
 of his manners than the excellence of his attainments. A quarrel had 
 arisen between the defendant and the father of the deceased, on the 
 subject of a political celebration of the fourth of July; and so great 
 was the party heat of the times, that it seemed advisable to the de- 
 fendant and his friends, and appeared quite natural to the jury, that 
 the dispute should be settled by stress of arms. Mr. Selfridge was 
 informed, it was said, by a friend, on the morning of the homicide, 
 that he was to be attacked; and he stated to another, a few minutes 
 before the meeting, that he understood Mr. Austin, the father of the 
 deceased, had procured some one to .bully him, though it is difficult 
 to see why such a declaration, not part of the res gestae, but evidently 
 set up for the purpose of contingent justification, should have been 
 admitted. Much variance of testimony existed on the subject of the 
 conflict. John M. Lane testified that he was standing at the door of 
 nig shop, on the north side of State street, between Wilson's lane and 
 Exchange lane, and saw the defendant standing on the pavement when 
 young Mr. Austin was approaching, and that the defendant, when the 
 deceased was at arm's length, took deliberate aim at him and fired ; 
 after which the deceased aimed several strokes at him, and fell. Ed- 
 ward Horn testified that, as he was passing by, he heard a loud talk- 
 ing, and looking round he saw Selfridge with a pistol in his hand, 
 heard the pistol immediately fired, and then saw the deceased aim 
 one or two convulsive blows at the defendant and fall. Ichabod 
 Frost testified substantially to the same facts. On the part of the 
 defendant it was shown that the deceased, Charles Austin, usually 
 carried a rattan, but that morning had procured a larger stick — and 
 a series of witnesses were produced to show a state of facts different 
 from that proved by the commonwealth's evidence. John Bailey tes- 
 tified that Charles Austin had been standing in front of his shop that 
 morning, in conversation with a fellow-student — that shortly after 
 Selfridge approached — that Austin then, lifting his cane, with the 
 heavy^end in his hand, moved towards Selfridge, and that he raised 
 the cane as if to strike, and while it was in the act of descending the 
 pistol was fired. Zadoc French swore to the same effect. Richard 
 
174 ^ HOMTCIDE. 
 
 I 
 
 Edwards saw Selfridge with the pistol extended — saw Austin aim a 
 blow at him, and heard the pistol discharged, though not until the 
 blow had fallen. Horatio Bars could not say who struck the first 
 blow. Lewis Glover swore distinctly that Austin had struck at Sel- 
 fridge before the pistol was fired. It was shown, in addition, that 
 the day before, Selfridge had posted the father of the deceased as " a 
 coward, liar, and a scoundrel;' and that the latter said that "he con- 
 sidered it derogatory to enter into a newspaper controversy with one 
 T. 0. Selfridge," &c. It was showu also that the deceased had men- 
 tioned to a college friend, that so long as he remained connected with 
 the college, he could not, consistently with that connexion, take any 
 notice of the publication of that morning; but that after he left col- 
 lege, neither T. 0. Selfridge nor any one else should asperse his fa- 
 ther, or any of his connexions, with impunity. On the other hand, 
 it was shown that the deceased was accustomed to cary a stick of the 
 same size whenever he walked in from Cambridge; and that, while 
 he had passed the morning in such a way as to make the idea of a 
 preconcerted attack absurd, his father, when called to the stand, 
 expressly swore that so far from having schemed, either for himself 
 or his son, a collision with the defendant, the thing was farthest from 
 his mind, and, to use his strong language, " I appeal to God, he would 
 have passed me as safely as he stands at this bar." 
 
 Such were the facts upon which the above charge was given, and 
 on which the jury thought proper to acquit the defendant of man- 
 slaughter to which the bill of indictment was limited, he having pre- 
 viously been admitted to two thousand dollars bail by the Supreme Ju- 
 dicial Court. That the whole case — bill, bail, and verdict — exhibit 
 a singularly loose estimate of the value of human life, must be ad- 
 mitted. If the commonwealth's witnesses, by whom it was shown 
 that the defendant had previously prepared a pistol for the encounter, 
 were to be believed — and the commonwealth's witnesses alone could 
 have been heard on an application to hold to bail, and before the 
 grand jury, — the case would have been one, taking the previous post- 
 ing into consideration, of murder. But it is strange to see, from the 
 defendant's own case, how anything lower than manslaughter could 
 be extracted. He had not retreated to the wall, for he had fired in- 
 stantaneously, at the first encounter — and it cannot be said that a 
 man of thirty, armed with a pistol, can be reduced to desperate dan- 
 ger by the onset of another of eighteen, with a cane in his hand, of 
 which he was holding the heavy butt-end, in a street in which there 
 were a dozen spectators. The whole case showed an intention, on 
 the part of Selfridge, to shoot down any one who should meet him; 
 but it is difficult to collect, from the conduct of Charles Austin, that 
 there was any settled purpose of revenge on his mind, or any other 
 feeling than that which would naturally occupy the breast of a young 
 man of eighteen, who had just seen his father posted as a scoundrel.' 
 
 1 The defence, shadowed out rather than expressly delineated, by Mr. Dexter, in a 
 speech of consummate ability, was the same as that presented by Mr. Selfridge, in a 
 statement subsequently published: "The honour of a gentleman should be as sacred as 
 the virtue of a woman : but the female is authorized to take his life, who would violate 
 her honour. Why is not a man bound to maintain his honour at the same hazard?" 
 
 That Selfridge's trial was made a political issue, appears from a contemporaneous 
 letter from Mr. Cunningham to Mr. Adams, (Cunning. Cor. 70,) in which he says: "I 
 
PROVOCATION — WHERE THE DEFENDANT'S INTENT WAS TO CHASTISE. 175 
 
 The defendant cannot, prove threats made by the deceased against 
 him, without also proving that such threats came to his knowledge 
 before the killing.' 
 
 In what cases a reasonable ground to believe that life is in imme- 
 diate danger, (though in truth it is not,) will be considered a good 
 defence, will be examined at large hereafter. 
 
 (2.) Where the intent is only to chastise. 
 
 A large class of cases occurs in practice where slight provocations 
 have been considered as extenuating the guilt of homicide, upon the 
 ground, that the conduct of the party killing upon such provocations 
 might fairly be attributed to an intention to chastise, rather than to 
 a cruel and implacable malice. But, in cases of this kind, it must ap- 
 pear that the punishment was not urged with brutal violence, nor 
 greatly disproportionate to the offence; and the instrument must not 
 be such as, from its nature, was likely to endanger life.^ Thus where 
 it appeared that the prisoner, having employed her step-daughter 
 a child of ten years old, to i-eel some yarn, and finding some of the 
 skeins knotted threw at the child a four-legged stool, which struck 
 her on the right side of the head on the temple, and caused her death 
 soon after the blow so given; and it was also shown that the stool 
 was of sufficient size and weight to give a mortal blow, but that the 
 prisoner did not intend, at the time she threw the stool, to kill the 
 child; the matter was considered of great difBculty, and no opinion 
 was ever delivered by the judges. The doubt appears to have been 
 principally upon the question, whether the instrument was such as 
 would probably, at the given distance, have occasioned death or great 
 bodily harm.^ 
 
 On an indictment for wounding with a tin can, with which the pri- 
 soner had struck the prosecutor four times on the head, Alderson, B., 
 directed the jury to consider, " whether the instrument employed was, 
 in its ordinary use, likely to cause death; or, though an instrument 
 unlikely under ordinary circumstances to cause death, whether it 
 was used in such an extraordinary manner as to make it likely to 
 cause death, either by continued blows or otherwise? A tin can, in 
 its ordinary use, was not likely to cause death or grievous bodily 
 harm; but if the prisoner struck the prosecutor repeated blows on the 
 head with it, you will say, whether he did this merely to hurt the 
 prosecutor, and give him pain, as by giving him a black eye or bloody 
 nose, or whether he did it to do him some substantial grievous bodily 
 harm. When a deadly weapon, such as a knife, a sword, or gun, is 
 
 happened to be at the first court at Worcester which was holden after the acquittal of 
 Mr. Selfridge. There I was told by Mr. Speaker Begden and others, that I was accused 
 of having apostatized from federalism. I informed them, that if the expression of my lirm 
 conviction that Selfridge had been guilty of murder, and ought to have been hanged, 
 was the sole ground of the accusation, and that if that was enougff to constitute a seces- 
 sion from federalism, I wish to be considered as seceding. But I was not ejected. The 
 great political parties in the State, arranged under their respective standards on the 
 simple question of the guilt or innocence of an individual under a criminal accusation, 
 was a curious spectacle." 
 
 1 Powell V. The State, 19 Ala. 577. 
 
 2 Fost. 291 ; 4 Blac. Com. 200; State v. Tackett, 1 Hawks, 210; State v. Roberts, lb. 
 349 ; Com. v. Green, 1 Ashmead, 289. 
 
 3 Hazel's case. 1 Leach. .'ifiR ■ i Wo=+ t> r< ooe 
 
176 HOMICIDE. 
 
 used, the intent of the party is manifest, but where an instrument like 
 the present is used, you must consider, whether the mode, in which 
 it "was used, satisfactorily shows that the prisoner intended to inflict 
 some serious or grievous bodily harm with it."^ ' 
 
 Where the prisoner, who was a butcher, had employed a boy to 
 tend some sheep, which were penned, who negligently, su^«red some 
 of the sheep to escape through the hurdles, upon which the prisoner, 
 seeing the sheep get through, ran towards the boy, and taking up a 
 stake that was lying on the ground, threw it at him, and with it hit 
 the boy on the head, and fractured his skull, of which fracture he 
 soon afterwards died; Nares, J., told the jury to consider whether 
 the stake, which, lying on the ground, was the first thing the prisoner 
 saw in the heat of his passion, was, or was not, under the circum- 
 stances, and in the particular situation, an improper instrumdfht-for 
 the purpose of correcting the negligence of the boy; and that," if 
 they thought the stake was an improper instrument, they should fur- 
 ther consider, whether it was probable that it was used with an in- 
 tent to kill; if they thought it was, that they must find the prisoner 
 guilty of murder; but, on the contrary, if they were persuaded that 
 it was not done with an intent to kill, that the crime would theii 
 amount at most, to manslaughter. The jury found it manslaughter.^ 
 
 A man, who was sitting drinking in an alehouse, being called by a 
 woman " a son of a whore," took up a broomstaff, and threw it at her 
 from a distance, and killed her; the judges were not unanimous, and 
 a pardon was advised ; and the doubt appears to have arisen upon 
 the ground, that the instrument was not such as could probably, at 
 the given distance, have occasioned death, or great bodily harm.^ 
 
 A master having struck his servant, who was a lad, with one of his 
 clogs, because he had not cleaned them, it was held to be only man- 
 slaughter, because the master could not, from the size of the instru- 
 ment he had made use of, have had any intention to take away the 
 boy's life.'' 
 
 In a case, the keeper of a park, finding a boy stealing wood in his 
 master's ground, tied him to a horse's tail, and beat him, upon which 
 the horse running away, the boy was killed. It is' said, that if the 
 chastisement had been more moderate, it had been but manslaughter;' 
 for, between persons nearly connected together by civil and natural 
 ties, the law admits the force of a provocation done to one, to be felt 
 by the other.' 
 
 Where A, finding a trespasser on his land, in the first transport of 
 his passion beat' him, and unluckily happened to kill him, it was 
 holden to be manslaughter; but it must be understood that he beat 
 him not with a mischievous intention, but merely to chastise for the 
 trespass, and to deter him from committing it again.^ 
 
 The prisoner's son having fought with another boy and been beaten, 
 ran home to his father all bloody, and the father presently took a 
 cudgel, ran three quarters of a mile, and struck the other boy upon 
 the head, upon which he died. The case was held to be manslaughter, 
 
 ' R. i>. Howlett, 7 C. & P. 274. ,r=.,:r, 
 
 2 Wigg's case, 1 Leaoli, 378. ' 1 Hale, 455, 456. 
 
 * Turner's case. Comb. 407; 1 Ld. Enym. 143; 2 Sid. 1498. 
 5 1 East, P. C. c. 5, :,. •2-2, p. 230. « Fost. 291 ; I'liale, 473. 
 
PROVOCATION — DISHONOUE. 177 
 
 on tlie ostensible ground of hot blood, but the authority is properly 
 supportable on the ground that the accident happened by a single 
 stroke given in heat of blood, with a cudgel, not likely to destroy, 
 and that death did not immediately ensue.' At the same time the 
 case is an extreme one, in which the revenge was so deliberate, that 
 any evidence of an intent to produce a severe chastisement, would 
 have made the offence murder. And so in Virginia, where a man 
 who had whipped a boy very severely, was the next day killed by 
 the boy's father, who fell on him and beat him violently with his fists, 
 it was held murder.^ 
 
 Where a person, whose pocket had been picked, encouraged by a 
 concourse of people, threw the pickpocket into an adjoining pond, in 
 order to avenge the theft, by ducking him, but without any apparent 
 intention to take away his life, and the pickpocket was drowned, it 
 was ruled to be only manslaughter; for though this mode of punish- 
 ment is highly unjustifiable and illegal, yet the law respects the infir- 
 mities and imbecilities of human nature, where certain provocations 
 are given.' 
 
 2d. Dishonour. 
 
 In this class of cases the question of cooling time, which is fully 
 discussed under the next head, is of peculiar moment. Whether a 
 homicide committed by a man smarting under a sense of dishonour is 
 murder or manslaughter, depends upon the question whether the kill- 
 ing was in the first transport of passion or not. In the latter case 
 the offence is murder, in the former, manslaughter. Thus, if a father 
 were to see a person in the act of committing an unnatural offence 
 with his son, and were instantly to kill him, it would only be man- 
 slaughter; but if he only hear of it from others, and go in search of 
 the person afterwards, and kill him, when there had been time for 
 the blood to cool, it would be murder." 
 
 And so where a man finds another in the act of adultery with his 
 wife, and kills him or her'' in the first transport of passion, he is only 
 guilty of manslaughter, and that of a nature entitled to the lowest 
 degree of punishment,^ for the provocation is grievous, suchjas the law 
 reasonably concludes cannot be borne in the first transport of passion. 
 But it has been already shown that the killing of an adulterer de- 
 liberately, and upon revenge, would be murder.^ 
 
 In a case tried before Mr. Baron Rolfe, in 1848, it appeared that 
 the prisoner, who was a soldier in the 14th Regiment of Foot, was 
 cohabiting with the deceased, and that, on the 26th of May, the 
 prisoner being confined to the barracks at Newport for drunkenness, 
 the deceased came to him and asked him for money, when he gave 
 her half-a-crown. Immediately after this the prisoner watched the 
 deceased, and saw her go to the canteen of the barracks, and there 
 drink with another soldier named Dogherty, upon which the prisoner 
 went to his room in the barracks, and having got a cartridge from a 
 
 1 Rowley's case, 12 Rob. 87; 1 Hale, 453; Fost. 294, 295; Cro. Jac. 296. 
 
 2 M'Whist's case, 3 Grat. 594. 
 
 3 Fray's case, 1 Hawk. P. C. c. 31, s. 42; Fost. 292 ; 1 Euss. on Cr. 520. 
 < R. V. Fisher, 8 C. & P. 182. » Pearson's case, 2 Lew. 216. 
 ^ Manning's case, 1 Ventr. 212. ' 1 Euss. on Cr. 525. 
 
 12 
 
178 HOMICIDE. 
 
 pouch and loaded his musket, he went to the barrack-yard, and there 
 meeting the deceased, he shot her, and she instantly died. It was 
 not quite clear on the evidence, whether the prisoner loaded the 
 musket immediately after he took the cartridge from his pouch, or 
 whether he left the room and returned to it after taking the car- 
 tridge, and before loading the musket. Keating, for the prisoner, in 
 addressing the jury submitted, that these facts did not necessarily lead 
 to the conclusion that the prisoner had committed the act with malice 
 aforethought, but that the jury might be justified in convicting the 
 prisoner of the crime of manslaughter only. The prisoner was, no 
 doubt, strongly attached to the unfortunate woman whose life had 
 been sacrificed, and the whole case might be summed up in a few 
 words. It was the result of a strong feeling of affection, not the less 
 strong because illicit, excited to jealousy, goaded to frenzy, and ter- 
 minating in crime. But in the prisoner's conduct there was no trace 
 of that premeditation, that malice aforethought, as the law aptly 
 expressed it, which was the characteristic of murder ; and therefore 
 he trusted that the jury would acquit the prisoner of the crime of 
 wilful murder, and find him guilty of manslaughter only. Rolfe, B., 
 (in summing up.) — It is perfectly true that the unlawful taking away 
 of life may amount to the crime of murder or the crime of man- 
 slaughter; but with respect to the circumstances which reduce the 
 crime of murder to that of manslaughter I shall make a few observa- 
 tions, differing, as I do entirely, from the observations of the prisoner's 
 counsel. Prim^ facie, when any man takes away the life of another, 
 the law presumes that he did it of malice aforethought, unless there 
 be evidence to show the contrary. Such are the cases where there 
 has been a quarrel, a fight, or dispute, and in the violence of such 
 quarrel, fight, or dispute, death has ensued. Undoubtedly we find 
 other cases stated, and among them the case of adultery. It is said, 
 that, if a man were to find his wife in the act of committing adultery, 
 and kill her, that would be only manslaughter, because he would be 
 supposed to be acting under an impulse so violent that he could not 
 resist it. But I state it to you without the least fear or doubt, that 
 to take away the life of a woman, even your own wife, because you 
 suspect that she has been engaged in some illicit intrigue, would be 
 murder: however strongly you may suspect it, it would most unques- 
 tionably be murder, and if I were to direct you, or you were to find 
 otherwise, I am bound to tell you, either I or you would be grievously 
 swerving from our duty. I state that without the least shadow of 
 doubt. We must not shut our eyes to the truth. [The Judge here 
 stated the facts as proved, observing that he thought it very imma- 
 terial as to the length of time that elapsed between the time when 
 the prisoner saw the deceased and Dogherty together, and the time 
 when he fired the shot, and equally little material whether the 
 prisoner took the cartridge out of the pouch at the same time when 
 he loaded the musket, or left the room between the one and the other, 
 and concluded] — In point of law there is nothing here to reduce the 
 crime of murder to the crime of manslaughter. The only suggestion 
 is, that the prisoner did it because he had conceived a jealousy of the 
 woman; even if that was so, it would not reduce the crime to man- 
 slaughter. ' 
 
 1 R. V. Kelly, 2 Cor. & Kir. 814. 
 
PEOVOCATION — COOLING TIME. 179 
 
 Where the deceased, after being married for some years, left the 
 country; and his wife, not hearing from him for two years, married 
 the defendant, though not under circumstances which would make 
 the second marriage legal under the Pennsylvania statute, and the 
 deceased returned, after a lapse of a year from the second marriage, 
 and found his wife living with the defendant, upon which a quarrel 
 arose, which was partially composed, but which ended in the defendant 
 deliberately shooting the deceased at his own house; it was held mur- 
 der in the first degree.' 
 
 3d. Cooling time, and herein of degree, fyc. 
 
 However great the provocation may have been, if there be suffi- 
 cient time for the passion to subside and for reason to interpose, the 
 homicide will be murder. Thus, in the case already given of an adul- 
 terer, if the husband kill him deliberately and upon revenge, there 
 having been sufficient cooling time, the provocation will not avail in 
 alleviation of the guilt.^ But where a father was informed that a 
 man had wantonly whipped his son, a small boy, and on the evening 
 of the next day he met the man, and then beat and stamped him 
 with his fist and feet, whilst he was unresisting, with so much vio- 
 lence that the man died from the effects of the beating on the next 
 night. It was held that this was murder, there being evidence of 
 deliberation.^ 
 
 If the jury are of opinion that the wound was given by the pri- 
 soner while smarting under a provocation so recent and so strong, that 
 the prisoner might be considered as not being at the moment the mas- 
 ter of his own understanding, the offence will be manslaughter; but 
 if there had been, as is remarked by a learned annotator,'* after the 
 provocation, sufficient time for the blood to cool, and for reason to re- 
 sume its seat before the mortal wound was given, the offence will 
 amount to murder; and if the prisoner displayed thought, contri- 
 vance, and design, in the mode of possessing himself of the weapon, 
 and again replacing it immediately after the blow was struck, such 
 exercise of contrivance and design denotes rather the presence of 
 judgment and reason than of violent and ungovernable passion. 
 
 If, upon a sudden quarrel, the parties agree to fight upon the spot, 
 or if, not having their weapons there, they presently, without any 
 other matter intervening, fetch them and go into the field and fight, 
 and one fall, it will be but manslaughter; yet if they appoint to fight 
 the next day, or even upon the same day at such an interval of time 
 as that passion might have subsided, or if, before any blows passed, 
 or words of anger, they agree to fight at a more convenient place, or 
 the fight otherwise appear to be upon deliberation, and death ensue, 
 it will be mui'der.* 
 
 In order to mitigate a homicide, committed in a second combat, by 
 what occurred at a previous one, which had fairly began on the sud- 
 
 1 Com. V. Smith, 7 Smith's Laws, App., and see app. to this vol. ; 2 Wheelr's C. C. 80. 
 
 2 Fost. 296, ante, 178, 9; » M'Whist's case, 3 Gratt. 594. * 2 Car. & Kir. 814. 
 
 s Fost. 297; 1 Hale, 453 ; Kel. 27; 1 Hawk. c. 31, s. 22, 29 ; MS. Tracy, 56 ; 4 Blac. 
 Com. 191 ; 3 Inst. 51 ; 1 Bulst. 86; Ld. Morley's case, 7 St. Tr. 421 ; Kel. 56; Cromp. 23 ; 
 1 Sid. 287. For a very interesting collection of cases on this point, see Mr. Townsend's 
 Modern State Trials, i. 151, et seq. i 
 
180 HOMICIDE. 
 
 den, both contests must be considered as making one combat, or the 
 first as a separate combat, must be considered as a sufficient sudden 
 provocation for either a second combat, or for a subsequent attack 
 producing a contest not entitled to be called a mutual combat.^ 
 
 Where the defendant was at the house of the deceased's mother, 
 who desired the deceased to turn the prisoner out, and he did so, 
 giving him a kick at the time, upon which the prisoner said he would 
 make him remember it, and went home, about three hundred yards, 
 passed through his bed-room to a kitchen adjoining, and into the 
 pantry, where he kept a knife, and having got it, returned hastily and 
 met the deceased coming towards him with his hat, when a conver- 
 sation ensued, and they walked together, when the deceased, giving 
 the prisoner his hat, the prisoner swore he would have his rights, 
 and stabbed the deceased in two places, saying, he had served him 
 right; after this, the prisoner ran home, repassed through the rooms 
 to the pantry, and went to bed, where he was shortly afterwards ap- 
 prehended, and the knife found on the shelf in the pantry. Tindal, 
 C. J., told the jury, that the principal question was, whether the 
 wounds were given by the prisoner whilst smarting under a provoca- 
 tion so recent, and showing that he might be considered at the mo- 
 ment not master of his understanding, in which case it would be 
 manslaughter only; or whether, after the provocation, there had been 
 time for the blood to cool, and reason to resume its sway before the 
 wound was inflicted, in which case the offence would be murder. The 
 jury found the prisoner guilty of murder.^ 
 
 Where a man assailed has retreated from the assailant, and is 
 secure in his separation from further personal aggression, he has no 
 right to return armed to the scene of conflict, and voluntarily engage 
 in a new conflict with the aggressor. If he do so, and slay him, he 
 is guilty of murder or manslaughter, according to the circumstances 
 under which the homicide is committed. If, on receiving such a 
 deadly assault, he suddenly leave the scene of outrage, procure arms, 
 and in the heat of blood consequent upon the wrong, return and re- 
 new the combat, and slay his adversary, both being armed, such a 
 homicide would be but manslaughter. For the law, from its sense of 
 and tenderness towards human infirmity, would consider that sufficient 
 time had not elapsed for the blood to cool and reason to resume its 
 empire over the mind, smarting under the original wrong.^ 
 
 Upon an indictment for murder, it appeared that the prisoner and 
 the deceased, who had been upon terms of intimacy for three or four 
 years, had been drinking together at a public house till about twelve 
 o'clock at night; about one they were together in the street, and had 
 some words, and a scuffle ensued, during which the deceased struck 
 the prisoner in the face with his fist, and gave him a black eye. The 
 prisoner called for the police, and, on a policeman coming, went away; 
 he, however, returned again, between five and ten minutes after- 
 wards, and stabbed the deceased with a knife on the left side of the 
 abdomen; the knife, a common bread and cheese knife, was one that 
 the prisoner was in the habit of carrying about with him, and he was 
 
 1 state V. M'Cauts, 1 Spear, 384. ^ E. v. Hayward, 6 C. & P. 157. 
 
 3 Com. V. Hare, i Pa. L. J. 257. 
 
PBOVOCATION — COOLING TIME. 181 
 
 rather weak in his intellect, but not so much so as not to know right 
 from wrong. Lord Tenterden, C. J., " It is not every slight provoca- 
 tion, even by a blow, which will, when the party receiving it strikes 
 with a deadly weapon, reduce the crime from murder to manslaughter; 
 but it depends upon the time elapsing between the blow and the injury ; 
 and also whether the injury was inflicted with an instrument at the mo- 
 ment in the possession of the party, or whether he went to fetch it from 
 another place." It is uncertain, in this case, how long the prisoner 
 was absent; the witness says from five to ten minutes, according to 
 the best of his knowledge. Unless attention is particularly called to 
 it, it seems to me that evidence of time is very uncertain; the prisoner 
 may have been absent less than five minutes; there is no evidence 
 that he went anywhere for the knife. The father says it was a knife 
 he carried about with him; it was a common knife, such as a man in 
 the prisoner's situation in life might have: for aught that appears he 
 might have gone a little way from the deceased and then returned, 
 still smarting under the blow he had received. You will also take 
 into consideration the previous habits and connexion of the deceased 
 and the prisoner with respect to each other; if there had been any 
 old grudge between them, then the crime which the prisoner com- 
 mitted might be murder. But it seems they had been long in habits 
 of intimacy, and on the very night in question, about an hour before 
 the blow, they had been drinking in a friendly way together. If you 
 think that there was not time and interval sufiicient for the passion 
 of a man, proved to be of no very strong intellect, to cool, and for 
 reason to regain her dominion over his mind, then you will say that 
 the prisoner is guilty only of manslaughter. But if you think that 
 the act was the act of a wicked, malicious, and diabolical mind (which 
 under the circumstances, I should think you hardly would) then you 
 will find him guilty of murder.' 
 
 If, in fine, there be a sufiBcient cooling time for passion to subside 
 and reason to interpose, and the person so provoked afterwards kill 
 the other, this is deliberate revenge, and not heat of blood, and ac- 
 cordingly amounts to murder.^ 
 
 The law assigns no limits within which cooling time may be said 
 to take place. Every case must depend on its own circumstances,'' 
 but the time in which an ordinary man, in like circumstances, would 
 have cooled, may be said to be the reasonable time.* 
 
 In a leading case. Major Oneby was indicted for the murder of Mr. 
 Gower, and a special verdict was found, stating that the prisoner, 
 being in company with the deceased and three other persons at a 
 tavern in a friendly manner, after some time began playing at hazard, 
 when Rich, one of the company, asked if any one would set him 
 three half crowns, whereupon the deceased, in a jocular manner, laid 
 down three half pence, telling Rich he had set him three pieces, and 
 the prisoner at the same time set Rich three half crowns, and lost 
 them to him, immediately after which the prisoner, in an angry man- 
 
 1 K. V. Lynch, 5 C. & P. 324. 
 
 ' State V. Yarborough, 1 Hawks, 7, 8; R. ». Thomas, 7 C. & P. 817. 
 ' Com. V. Dougherty, 7 Smith's Law, 695, post, appendix. 
 
 * State V. M'Cauts, 1 Spears, 384; E. v. Mawgridge, Kelso, 128; K. v. Taylor, 4 Burr., 
 279. 
 
182 HOMICIDE. 
 
 ner turned about to the deceased, and said, "It was an impertinent 
 thing to set half pence, and that he was an impertinent puppy for so 
 doing," to which the deceased answered, "Whoever called him so 
 was a rascal." Thereupon the prisoner took up a bottle, and with 
 great force threw it at the deceased's head, but did not hit .him, the 
 bottle only brushing some of the powder out of his hair. The de- 
 ceased, in return, immediately tossed a candlestick or bottle at the 
 prisoner, which missed him, upon which they both rose up to fetch 
 their swords, which then hung up in the room, and the deceased drew 
 his sword, but the prisoner was prevented from drawing his by the 
 company; the deceased thereupon threw away his sword, and the 
 company interposing, they sat down again for the space of an hour. 
 At the expiration of that time the deceased said to the prisoner, "We 
 have had hot words, but you were the aggressor; but I think we may 
 pass it over," and at the same time ofTei-ed his hand to the prisoner, 
 who made answer, "No, damn you, I will have your blood;" after 
 which, the reckoning b^ing paid, all the company except the prisoner 
 left the room, but he, calling back the deceased, closed the door, and 
 the rest of the company, shortly after, hearing a clashing of swords, 
 found the deceased had received from the prisoner a mortal wound. 
 It was further found, that from the throwing of the bottles there had 
 been no reconciliation. Upon these facts all the judges were of opi- 
 nion that the defendant had been guilty of murder, and that from 
 the period which had elapsed there had been reasonable time for 
 cooling.^ 
 
 If, between the provocation received and the mortal stroke given, 
 the prisoner fall into other discourse or diversion, and continue so a 
 reasonable time for cooling; or if he take up and pursue any other 
 business or design not connected with the immediate object of his 
 passion, nor subservient thereto, so that it may be reasonably sup- 
 posed that his attention was once called off from the subject of the 
 provocation, any subsequent killing of his adversary, especially 
 where a deadly weapon is used, is murder.* 
 
 If thought, contrivance, and design be shown by a prisoner in the 
 mode of procuring a deadly weapon after provocation has been given, 
 and in again replacing the weapon immediately after the blow with 
 it has been struck, this tends to show that the prisoner was acting 
 under the influence of judgment and reason, rather than of violent 
 and ungovernable passion. The deceased was requested by his mo- 
 ther to turn the prisoner out of her house, which after a short strug- 
 gle with the prisoner he effected, and in so doing he gave him one 
 kick. The prisoner said he would make him remember it, and in- 
 stantly went to his own lodgings from two to three hundred yards 
 distant, passed through his bed-room and kitchen into a pantry, and 
 returned thence hastily back again. Within five minutes after the 
 prisoner had left the deceased, the latter followed him to give him 
 back his hat, which had been left behind, and they met about ten 
 yards from the prisoner's lodgings. They stopped for a short time, 
 when they were heard talking together, but without any words of 
 
 ' Major Oneby's case, 0. B. 1? Geo. 1 ; 2 Stra. 766, and 2 Ld. Ray. 1485. 
 ' Com. V. Green, 1 Ashmead, 289. 
 
PEOTOCATION — COOLING TIME. 183 
 
 anger ; after they had walked on together for about fifteen yards, the 
 deceased gave the prisoner his hat, when the latter exclaimed with 
 an oath, that he would have his rights, and instantly stabbed the de- 
 ceased with a knife or some sharp instrument, in two places, giving 
 him a mortal wound in the belly. As soon as he had stabbed him the 
 second time, he said he had served him right, and instantly ran back 
 to his lodgings, passed hastily through his bed-room, and the kitchen 
 to the pantry, and thence back to his bed-room, where he undressed 
 himself and went to bed. Shortly afterwards he was apprehended, 
 and no knife or other instrument found upon him. In the pantry 
 the prisoner had a sharp butcher's knife, with which he usually ate, 
 and which was kept on a shelf with his meat; and in another part of 
 the pantry three other knives of a similar description, which he used 
 in his business of a butcher. The several knives were found the 
 next morning in their usual places in the pantry. Tindal, 0. J., told 
 the jury that the question for them was, whether the wound was 
 given by the prisoner while smarting under a provocation so recent 
 and so strong that the prisoner might not be considered at the mo- 
 ment the master of his own understanding; or whether there had 
 been time for the blood to cool, and for reason to resume its seat, be- 
 fore the wound was given. That in determining this question, the 
 most favourable circumstance for the prisoner was the shortness of 
 time between the original quarrel and the stabbing ; but, on the other 
 hand, the weapon was not at hand when the quarrel took place, but 
 was sought for from a distant place. It would be for them to say 
 whether the prisoner had shown thought, contrivance, and design in 
 the. mode of possessing himself of the weapon, and again replacing 
 it immediately after the blow was struck; for the exercise of contri- 
 vance and design denoted rather the presence of judgment and rea- 
 son than of violent and ungovernable passion.^ 
 
 Where it appeared that the prisoner and the deceased, after having 
 been engaged in mutual combat, on sudden occasion, fairly begun, 
 were separated at the request of the prisoner, who was overcome and 
 beaten in the contest; that the prisoner was held by one of the per- 
 sons present, but drew his knife and swore he would kill the de- 
 ceased; that after releasing himself from the person holding him, he 
 pursued the deceased, who had left the place of combat, and who, 
 upon being apprized of the pursuit by a call from the person holding 
 the prisoner, left the road on which he was walking, and provided 
 Tiimself with a rail from a neighbouring fence; that on his return to- 
 wards the road he met the prisoner, gave back and struck him seve- 
 ral blows upon the head as he rushed on, with the rail, which, break- 
 ing some ten paces from the point where the deceased began to give 
 back, the prisoner closed and inflicted the mortal blow; and that suffi- 
 cient time had transpired, not only for the deceased to adjust him- 
 self after the fight and walk deliberately two hundred and twenty-five 
 yards, but for the prisoner afterwards to pass over the same ground, 
 as also for a person at a neighbouring house,, within hearing of the 
 noise of the second quarrel, to reach the place of strife. The court, 
 under this state of facts, were of opinion that both contests could not 
 
 1 R. V. Hayward, 6 C. & P. 167. 
 
184 HomciDB. 
 
 have constituted one combat, nor could the second, in which the pri- 
 soner rushed with his drawn knife upon his adversary, who had 
 snatched the readiest means for defence at hand, but was neither 
 equally armed, nor willing to meet such a weapon, have been that 
 fair struggle which the law denominates a mutual combat. The jury 
 having found a verdict of guilty, the court refused to disturb it.' 
 
 The prisoner and his son were wrestling on a floor together, the 
 son being uppermost, the son got up, and went to the door, and the 
 prisoner took up a coal pick, and threw it at the deceased and hit 
 him on the back. The deceased said it hurt him, and the prisoner 
 said he would have his revenge. The deceased stood at the door 
 with his hands against it, when the prisoner took a knife off the table 
 and stabbed the deceased with it on the left side. The deceased 
 said, "Father, you have killed me!" and retreated a few paces into 
 the street, reeling as he went. A person told the prisoner he had 
 stabbed his son. He said, "Joe, I will have my revenge 1" The de- 
 ceased came into the house again, and the prisoner stabbed him again 
 in the left side. There was also evidence of expressions of ill will 
 by the prisoner towards the deceased, and of threats uttered a short 
 time before. Mr. J. Coleridge told the jury " in some instances you 
 must feel certain, from the acts of the party, that he had a grudge. 
 Suppose a man destroyed another by poison; if it were proved that 
 he had previously bought the poison and prepared the cup, although 
 he should have had a quarrel with the party at the very time of ad- 
 ministering it, you could not doqbt that there was express malice. 
 If a person has received a blow, aud in the consequent irritation im- 
 mediately inflicts a wound that occasions death, that will be man- 
 slaughter. But he shall not be allowed to make this blow a cloak 
 for what he does; and, therefore, as in the case of poisoning, though 
 there have been an actual quarrel, and the deceased shall have given 
 a great number of blows, yet if the party inflict the wound, not in 
 consequence of those blows, but in consequence of previous malice, 
 all the blows would go for nothing. So, in the present case, if there 
 was a stab given in consequence of a grudge entertained a day or 
 two before, all that passed between these parties at the very time 
 must go for nothing, for the simple reason, that the blows were not 
 the cause of the crime." After observing on the danger of relying 
 on the previous threats, the very learned judge proceeded, "Then I 
 will suppose that all was unpremeditated till C. came, and then the 
 case will stand thus, the father and son have a quarrel, the son gets 
 the father down, the son has the best of it, and the father has re- 
 ceived considerable provocation; and if when he got np and threw 
 the pick at the deceased, he had at once killed him, I should have 
 said at once that it was manslaughter. Now comes the more impor- 
 tant question, (the son having given no further provocation) whether 
 in truth that, which was in the first instance sufficient provocation, 
 was so recent to the actual deadly blow, that it excused the act that 
 was done, and whether the father was acting under the recent sting, 
 or had time to cool, and then took up the deadly weapon. I told 
 you just now he must be excused if the provocation was recent, and 
 
 1 State V. M'Cauts, 1 Spears, 384. 
 
PROVOCATION — COOLING TIME — TRESPASS. 185 
 
 he acting on its sting, and th£ blood remained hot; but you must 
 consider all the cii'cumstances, the time which elapses, the prisoner's 
 previous conduct, the deadly nature of the weapon, the repetition of 
 the blows; because, though the law condescends to human frailty, it 
 will not indulge human ferocity. It considers man to be a rational 
 being, and requires that he should exercise a reasonable control over 
 his passions." ' 
 
 Where the defendant, having been violently beaten and abused, 
 made his escape, ran to his house, eighty yards off, got a knife, ran 
 back, and on meeting with the deceased, stabbed him, it was held but 
 manslaughter ; but it was said that if, on the second meeting, the de- 
 fendant had disguised the fact of having a weapon for the purpose of 
 inducing the deceased to come within his reach, it would have been 
 murder, such concealment affording ground for the presumption of 
 deliberation.^ 
 
 Where it becomes material to inquire whether a homicide commit- 
 ted in a second, after a previous combat, in which it might have been 
 manslaughter, was in course of the first or a continuance of it, or after 
 such an interval of time as would imply premeditation, the proper in- 
 quiry in such case is, not whether the suspension of reason continued 
 down to the moment of the mortal stroke given, but did the prisoner 
 cool, or was there time for a reasonable man to have cooled 1^ 
 
 Where, in New York, the prisoners, three women, each of them 
 armed with clubs, had fallen into a quarrel with the deceased, who 
 was also armed with a club, and had been chased by him for some 
 distance till he stopped, upon which one of them turned round and 
 gave him a mortal blow, it was held manslaughter." The indulgence 
 which the law extends to cases of this description is founded on the 
 supposition that a state of sudden and violent exasperation is genera- 
 ted in the affray, so as to produce a temporary suspension of reason, 
 and that the transport of passion excludes the presumption of malice.* 
 
 4:th. Trespass. 
 A bare trespass against the property of another, not his dwelling- 
 house, is not a sufScient provocation to warrant the owner in using a 
 deadly weapon in its defence, and if he do, and with it kill the tres- 
 passer, it will be murder, and this, though killing were actually neces- 
 sary to prevent the trespass.^ In an old case. A, finding a trespasser 
 on his land, in the first transport of his passion beat him, and unluckily 
 happened to kill him; this was holden to be manslaughter. To ex- 
 tenuate the offence, in such case, however, it must be shown that the 
 intention was not to take life, but merely to chastise for the trespass, 
 and deter the offender from repeating the like, and it must so appear. 
 For if A had knocked out the brains of the deceased with a bill or 
 hedge-stake, or had given him an outrageous beating with an ordinary 
 cudgel, beyond the bounds of a sudden resentment, whereof he had 
 died, it would have been murder.'' 
 
 ' E. V. Kirkham, 8 C. & P. 115. » State v. Norris, 1 Hay. 429. 
 
 s State V. M'Cauts, 1 Spears, 384. 
 
 ^ People 11. Garretson et al., 2 Wheeler's C. C. 347: U. S. v. Thayer, U. S. Cir. Court, 
 2 Wheeler's C. C. 503. 5 ibid. 
 
 6 Com. V. Drew, 4 Mass. 391; State v. Morgan, 3 Iredell, 186; M'Daoielw. State, 8 S. 
 & M. 401 ; OliTer v. State, 17 Ala. 688. 
 
 ' "-;•' "":■ , \ ",:?, i" F««= 5. 8i, s. Biit Jtel. 132. 
 
186 HOMICIDE. 
 
 Where A, finding a trespasser upon his land, in the first transport 
 of his passion, beat him and unluckily killed him, and it was hold en 
 to be manslaughter, it must be understood that he beat the trespasser, 
 not with a mischievous intention, but merely to chastise him, and to 
 deter him from a future commission of such a trespass. For if A 
 had knocked his brains out with a bill or hedge stake, or had killed 
 him by an outrageous beating with an ordinary cudgel, beyond the 
 bounds of a sudden resentment, it would have been murder; these cir- 
 cumstances being some of the genuine symptoms of the mala mens, the 
 heart bent upon mischief, which enter into the true notion of malice 
 in the legal sense of the word.' Moir having been greatly annoyed 
 by persons trespassing upon his farm, repeatedly gave notice that he 
 would shoot any one who did so, and at length discharged a pistol at 
 a person, who was trespassing, and wounded him in the thigh, which 
 led to erysipelas, and the man died: being indicted for murder, he 
 was found guilty and executed.* 
 
 As has already been observed where death ensues by the act of one 
 in the pursuit of an unlawful design, without intent to kill, it is mur- 
 der or manslaughter, as the intended offence was felony or misde- 
 meanor.^ 
 
 A man has a right to order another to leave his house, but has no 
 right to put him out by force, until gentle means fail; and if he at- 
 tempt to use violence in the onsefr and is slain, it will not be murder 
 in the slayer, if there is no previous malice.* 
 
 bth. Blows. 
 
 (1.) Where the parties are equal. 
 
 Any assault in genei'al, made with violence or cii'cumstances of in- 
 dignity upon a man's person, if it be resented immediately by the 
 death of the aggressor, and it appear that the party acted in the heat 
 of blood upon that provocation, will reduce the crime to manslaugh- 
 ter; and the same rule would apply, says Lord Hale, if when A and 
 B were riding on the road, B had whipped A's horse out of the 
 track, and then A had alighted and killed B.= 
 
 So where A seeks B and threatens his life; and they meet; a 
 quarrel ensues; B strikes A with his fist; they separate; A attempts 
 to arm himself with a stick, which he is unable to do; again stoops to 
 raise another stick or billet of wood of a dangerous kind; and whilst 
 stooping, B stabs him. It has been held that this was not murder, 
 but manslaughter." 
 
 An unintentional and trivial assault is no palliation. Thus, in a 
 case in South Carolina, where it was argued by the defendant's coun- 
 sel that the passions of the defendant were excited by an unintended 
 jostle of the prisoner or his wife by the deceased, the position was 
 said to be equally unsupported by proof, and unavailing if true. "In 
 a city like Charleston, where many persons are constantly passing 
 until a late hour of the night, the accidental impinging of one upon 
 
 1 1 Hale, 473 ; FoBt. 291. ' R. «• Price, 7 C. & P. 178. 
 
 3 Smith V. State, 3 Redding, 48, see ante, p. 46. * M'Coy ti. State, 3 Eng. (Ark.) 451. 
 
 6 Kel. 135; 4 Blac. Com. 191; Lamure's case, 17 Car. 1; 1 Hale, 456. 
 
 6 AUen V. State, 5 Yerger, 453. 
 
' PROVOCATION — BLOWS. 187 
 
 another in the dark, would not authorize such a murderous attack 
 upon him." Such an act of itself would be a sure indication of a 
 " depraved and wicked heart, void of all social dutj-, and fatally bent 
 on mischief."' * 
 
 1 State V. Tooliy, 2 Rice's Digest, 104. 
 
 * The following opinion, by a very learned judge, now of the Supreme Court of Penn- 
 sylvania, bears upon the main points involved in this head: 
 
 Murder, by the common law, is "the unlawful killing of another of malice afore- 
 thought." By our act of Assembly of the 22d of April, 1794, the crime is divided into 
 two degrees. Murder of the first degree is where the oifeuce ia perpetrated by means of 
 poison, or by lying in wait, or in perpetrating, or in attempting to perpetrate, any arson, 
 rape, robbery, or burglary, or by any other wilful, deliberate, and premeditated killing. 
 This offence is punishable with death. By the same act of Assembly, murder of the 
 second degree embraces " all other kinds of murder," to wit: all murder where there is 
 no intention to kill, but which happens in perpetrating any other felony than those enu- 
 merated in the act of 1794. or in the deliberate perpetration of acts of cruelty or mischief 
 which manifestly endangers life, or in their consequences materially lead to bloodshed. 
 This offence is punishable by solitary confinement at labour in the penitentiary. " Man- 
 slaughter is the unlawful killing of another without malice aforethought, either expressed 
 or implied ; which may be either voluntary, upon a sudden heat, or involuntary, but in 
 the commission of some unlawful act," under the degree of felony. It is only with 
 voluntary manslaughter that the jury have any thing to do in the present indictment, 
 With involuntary manslaughter they have nothing to do at present, further than to 
 acquit, if the prisoner is guilty of no higher offence. Before we proceed to inquire 
 whether the prisoner is guilty of either of the offences charged in the indictment, it is 
 proper to ascertain if he has any available ground of defence. After hearing the evi- 
 dence in regard to the blow inflicted by the prisoner upon the head of the deceased with 
 an axe, and the evidence of the three gentlemen who conducted the post mortem exami- 
 nation, the prisoner's counsel very candidly and very properly admitted that the blow 
 was given by the prisoner, and that it caused the death of the deceased. Are there any 
 substantial grounds of defence resting upon the principles of self-protection? Justifia- 
 ble self-defence is when a man attempts by violence or surprise to commit a known felony 
 upon the person, habitation, or property of another. In that case the individual whose 
 rights are thus assailed may, if he finds it necessary, kill his assailant in his own de- 
 fence, and the act is perfectly justifiable in him. But on a survey of the evidence in 
 this case, we find no indication of any felony having been attempted by the deceased 
 upon the person, habitation, or property of the prisoner. The court are unable to per- 
 ceive any sufiicient defence arising out of this branch of the case. But if the prisoner 
 is not perfectly justifiable, is he excusable upon the grounds of self-defence? The law 
 has made a slight distinction between acts which are perfectly justifiable and those only 
 excusable. At the present day, if the prisoner is executed, it amounts to the same thing 
 as being justified upon the grounds of self-defence. When there is an attack, under cir- 
 cumstances denoting an intention to take away life or to do some enormous bodily hai-m, 
 it is lawful for the party thus in danger to kill the assailant if all other means are used, 
 otherwise to prevent the injury or save the life of the party attacked. The means to be 
 used in this case, in order to avoid the alternative of taking the life of another in defence 
 of your own, are such as retreating as far as possible, consistent with your own safety, 
 or disabling the adversary without killing him, if it be in your power. When the attack 
 upon an individual is so sudden, fierce, or violent, as that a retreat w_puld not diminish, 
 but increase the danger, he may instantly kill his adversary, without retreating at all. 
 When, from the nature of the attack, there is reasonable ground to believe there is a 
 design to destroy life, or commit any felony upon his person, killing the assailant will 
 be excusable homicide, although it should afterwards appear that no felony was intended. 
 It is for the jury to decide whether the attack upon the prisoner denoted an intention to 
 take away life, or to do him some enormous bodily harm. If so, and he had no other 
 means of preventing the injury, or preserving himself, he is excusable, and oughtin that 
 case to be acquitted- In like manner, if the jury believe that the attack was made under 
 circumstances which reasonably induced the prisoner to believe that there was a design 
 to destroy his life, or to commit any felony upon his person, the prisoner would be ex- 
 cusable, although in reality no such injury or felony was intended. It is for the jury to 
 decide whether any circumstances existed which present a case of excusable homicide, 
 according to the legal principles already laid down. Still the court will give the jury 
 the benefit of their opinion on this question. The attack was made without any weapon, 
 and without any attending circumstances denoting an intention to take life, or do enor- 
 mous bodily harm ; and, in the opinion of the court, did not excuse the prisoner in the 
 
188 HOMICIDE. • 
 
 In a sudden and equal quarrel, when both parties strike in the 
 heat of blood, it is immaterial by whom the first blow is struck. 
 
 use of a weapon so deadly as an axe. If the prisoner is neither justified nor excused in 
 destroying the life of the deceased, of what offence Is he guilty ? It cannot be said to be 
 involuntary manslaughter, where the use of a deadly weapon, as well as the manner of 
 using it, strongly indicate an intention to kill. For the same reason, in the opinion of 
 the court, the prisoner cannot be convicted of murder in the second degree, which, we 
 have already seen, is where there is no intention to kill. Still, if the jury believe that 
 there was a deliberate design to inflict a grievous and dangerous wound, without justifi- 
 cation or excuse, and without any design to kill, they may find the prisoner guilty of 
 murder in the second degree. On this point the court have already intimated their 
 opinion that the use of the axe, and the manner of usina; it, sufficiently indicates an in- 
 tention to kill, and if so, under the evidence in the cause, it is not a case of murder in 
 the second degree. If this view of the case be correct, the prisoner is guilty of either 
 "murder in the first degree," or "voluntary manslaughter," — the trime depending, for 
 its name and character, upon the finding of the jury, on the question whether the act 
 was perpetrated with malice aforethought, or without it, or in other words, with delibe- 
 ration, or without it. If with deliberation, or with malice aforethought, it is murder in 
 the first degree. If without deliberation, or without malice aforethought, it is voluntary 
 manslaughter. It is alleged that this act was committed in pursuance of an old grudge 
 of several years' standing, and that the prisoner, at the time he killed the deceased, was 
 moved by that ancient hatred, and not by the sudden provocation which was given. If 
 this be so, the crime is murder in the first degree. Were there any circumstances which 
 extenuate this sudden act of destruction into voluntary manslaughter ? To extenuate a 
 homicide from murder to manslaughter, both provocation and passion must exist. Pro- 
 vocation without passion -will not extenuate the offence, nor will passion without provo- 
 catiom This provocation must be such as is deemed in law sufficient to deprive the 
 party of deliberation. No words, however insulting, no trespass to lands or goods, are 
 held sufficient ; but assault upon the person, or blows, are deemed sufficient to excite 
 the passions to such an extent as to deprive the mind, for the moment, of the power to 
 deliberate. What was the provocation liere? The prisoner, on his return from his day's 
 employment, called at the tavern of William Sproul, in company with his daughter, in 
 the evening. Hearing the deceased making a loud noise in the bar-room, the father and 
 daughter retired to the kitchen for the purpose of avoiding any contact with him, and 
 the children fastened the kitchen-door, to prevent the intrusion of the deceased, who 
 nevertheless came to the window and door, demanding admittance, and, according to one 
 witness, making threats, and saying he would "be in, dead or alive." He thereupon 
 forced open the door, bursting out the staple which held it fast. The prisoner, who was 
 seated by the fire, warming himself, extended his hand to the deceased in a friendly 
 manner, and asked him how he did. Without taking any notice of this courtesy, the de- 
 ceased, without the slightest provocation, seized the prisoner by the hair, and, according 
 to one witness, virith one hand by the hair, and with the other by the throat, drew him 
 violently back over the chair. The daughter struck the deceased in defence of her father, 
 and the prisoner immediately grabbed for something, and seizing the axe, which lay in 
 the chimney corner, where it had been used in preparing kindling, suddenly gave the 
 deceased the fatal blow which caused his death. Whether the circumstances which 
 occurred before the fatal blow were sufficient to deprive the mind of deliberation, is a 
 question of law, and the court are of opinion that the provocation was sufficient to pro- 
 duce, in ordinary minds, such a degree of passion as to prevent deliberation. Whether 
 this degree of passion was in fact produced, is a question for the jury. If they should 
 believe that it was, and that the act was done upon a sudden heat occasioned by the pro- 
 vocation received, and without deliberation, then the offence is extenuated from murder 
 in the first degree to voluntary manslaughter. If the Intention to kill existed, which we 
 think may fairly be inferred from the deadly weapon used, as well as the manner of 
 using it, and the jury should bo of opinion that the act was deliberately perpetrated, 
 then the prisoner is, under the evidence in the cause, guilty of murder of the first degree. 
 In conclusion : Upon the whole evidence, the court are of opinion that it is not a case of 
 "involuntary manslaughter," because of a manifest intention to kill, as indicated by the 
 use of a deadly weapon. That it is not a case of "murder in the second degree," for 
 the same reason, the presence of an intention to kill. That it is not "murder of the 
 first degree," because, although the act was "wilful," and "premeditated," yet it was 
 not " deliberately " perpetrated, by reason of the passion produced by sufficient provoca- 
 tion from the deceased, depriving the prisoner, for the moment, of the power to deli- 
 berate. And that the prisoner is guilty of "voluntary manslaughter," by reason of the 
 existence of an intention to kill, suddenly executed, without justification or excuse, in a 
 passion, occasioned by provocation from the deceased. Com. v. Poke, Lewis' C. L. 394-7. 
 
PROVOCATION — BLOWS, WHEN THERK IS A DISPARITY. 189 
 
 Thus, if A uses provoking language or behaviour towards B, and 
 B strikes him, upon which a combat ensues, in which A is killed, 
 this is holden to be manslaughter; for it was a sudden affray, and 
 they fought upon equal terms ; and in such combats, upon sudden 
 quarrels, it matters not who gave the first blow.^ 
 
 The deceased, who was a French prisoner, had stolen a tobacco-box 
 from one of a party of French prisoners who were gaming, and was 
 chastised by some of the party for his conduct, and a clamour was 
 raised against him. As he passed the prisoner, who was sitting at a 
 table and much intoxicated, the prisoner got up, and with great force 
 pushed the deceased backwards upon the ground. The deceased got 
 up again and struck the prisoner two or three blows with his doubled 
 fist in the face, and one blow in the eye; upon which the prisoner 
 pushed the deceased backwards again in the same manner, and gave 
 him, as he lay on his back upon the ground, two or three stamps with 
 great force with his right foot on the stomach and belly ; and after- 
 wards, when the deceased arose on his seat and was sitting, gave him 
 a strong kick in the face; the blood came out of the mouth and nose 
 of the deceased, and he fell backwards, and died on the next day. 
 The stamps upon the stomach and belly were the cause of his death. 
 The prisoner was convicted of murder, on the ground that the vio- 
 lence which caused the death was not excused by the heat of blood : 
 but the learned judge by whom the prisoner was tried, thinking that 
 the case required further consideration, reserved it for that pur- 
 pose, and the judges were of opinion that it was only a case of man- 
 slaughter.^ 
 
 (2.) Where there is a, disparity in strength or weapons. 
 
 Though an assault made with violence or circumstances of indig- 
 nity upon a man's person, and resented immediately by the party 
 acting in the heat of blood upon that provocation, and killing the 
 aggressor, will reduce the crime to manslaughter, yet it must by no 
 means be understood that the crime will be so extenuated by any 
 trivial provocation which in point of law may amount to an assault; 
 nor in all cases even by a blow.^ Violent acts of resentment, bear- 
 ing no proportion to the provocation or insult, particularly where 
 there is a decided preponderance of strength on the part of the party 
 killing, are barbarous, proceeding rather from brutal malignity than 
 human frailty : and barbarity will often imply malice.'' 
 
 Thus in the case of the keeper of a park, who, finding a boy steal- 
 ing wood in his master's ground, tied him to a horse's tail, and beat 
 him, upon which the horse running away, the boy was killed, it is 
 said, that if the chastisement had been more moderate, it had been but 
 manslaughter; for, between persons nearly connected together by 
 civil and natural ties, the law admits the force of a provocation of 
 blood upon a reasonable provocation, and without malice, it is con- 
 sidered as solely imputable to human infirmity; and the offence will 
 be manslaughter.* 
 
 There being an affray in the street, one Stedman, a foot soldier, 
 
 ' Fost. 295 ; 1 Hale, 456. 2 j^. j,. j^ygg^ r. & Ry. 166. 
 
 3 B. V. Lynch, 5 C. & P. 324. ^ Keatea' case, Comb. 408. 
 
 5 1 Hale, 466 ; 1 Hawk. P. C. u. 30; 4 Blac. Com. 191 ; 1 East, P. C. c. 5, B. 19, p. 232. 
 
190 HOMICIDE. 
 
 ran hastily towards the combatants. A woman, seeing him run in 
 that manner, cried out, "You will not murder the man, will you?" 
 Stedman replied, " What is that to you, you bitch?" The woman 
 thereupon gave him a box on the ear, and Stedman struck her on the 
 breast with the pommel of his sword. The woman then fled; and 
 Stedman, pursuing her, stabbed her in the back. It seemed to Holt, 
 C. J., that this was murder, a single box on the ear from a woman not 
 being a sufficient provocation to kill in such a manner, after Stedman 
 had given her a blow in return for the box on the ear; and it was 
 proposed to have the matter found specially; but it afterwards appear- 
 ing, in the progress of the trial, that the woman struck the soldier in 
 the face with an iron patten, and drew a great deal of blood, it was 
 holden clearly to be no more than manslaughter. The smart of 
 the man's wound, and the effusion of blood, might possibly have kept 
 his indignation boiling to the moment of the fact.' 
 
 But even on this evidence, as it thus stands, the case has been very 
 much doubted. Thus in Pennsylvania, Gibson, 0. J., said, " If a man 
 should kill a woman or a child for a slight blow, the provocation 
 would be no justification ; and I very much question whether any blow 
 inflicted by a wife on a husband would bring the killing of her be- 
 low murder. Under this view of the law I have always doubted 
 St-edman's case."^ 
 
 Still more difficult to reconcile with settled principles in this re- 
 spect is the following case: — Mr. Lutterel, being arrested for a small 
 debt, prevailed on one of the officers to go with him to his lodgings, 
 while the other was sent to fetch the attorney's bill, in order, as Lut- 
 terel pretended, to have the debt and costs paid. Words arose at the 
 lodgings about civility money, which Lutterel refused to give ; and he 
 went up stairs, pretending to fetch money for the payment of the debt 
 and costs, leaving the officer below. He soon returned with a brace 
 of loaded pistols in his bosom; which, at the importunity of his ser- 
 vant, he laid down upon the table, saying, "He did not intend to hurt 
 the officers; but he would not be ill used." The officer, who had been 
 sent for the attorney's bill, soon returned to his companion at the lodg- 
 ings; and words of anger arising, Lutterel struck one of the officers 
 on the face with a walking cane, and drew a little blood. Whereupon 
 both of them fell upon him: one stabbed him in nine places, he all the 
 while on the ground, begging for mercy, and unable to resist them; 
 and one of them fired one of the pistols at him while on the ground, 
 and gave him his death wound. And this is reported to have been 
 holden manslaughter &yrea50Mo/^/iey<r*^ assault with a cane.^ "This 
 (says Mr. Justice Foster) is the case as reported by Sir John Strange; 
 and an extraordinary case it is; that all these circumstances of aggra- 
 vation, two to one, he helpless and on the ground, begging for mercy, 
 stabbed in nine places, and then dispatched with a pistol; that all these 
 circumstances, plain indications of a deadly revenge or diabolical fury, 
 should not outweigh a slight stroke with a cane."'' 
 
 Where a disparity exists as to means of attack and defence the party 
 who takes life by means of such disparity cannot defend himself on 
 
 1 Stedman's case, Fost. 292. ^ Com. v. Hosier, 4 Barr, 268. 
 
 ' R. V. Tranter, 1 Stra. 49, ante p. 48. ' Fost. 203, see ante, p. 48. 
 
PROVOCATION — BLOWS, WHERE THERE IS A DISPARITY. 191 
 
 the ground of provocation if unfair advantage was taken, or if tlio 
 weapon was used otiierwise than in sudden passion/ Thus if B, in 
 the case cited in the next preceding head,^ had drawn his sword, and 
 made a pass at A, the sword of A being then undrawn, and there- 
 upon A had drawn, and a combat had ensued, in which A had been 
 killed: for this would have been murder, inasmuch as B, by making 
 the pass, his adversary's sword being undrawn, showed that ho sought 
 his blood. And A's endeavour to defend himself, which he had a 
 right to do, will not excuse B: but if B had first drawn, and forborne 
 till his adversary had drawn too, it had been no more than man- 
 slaughter,' yet if, on any sudden quarrel, blows pass without any in- 
 tention to kill or injure another materially, and in the course of the 
 scuffle, after the parties are heated by the contest, one kill the other 
 with a deadly weapon, it will only amount to manslaughter.'' The fol- 
 lowing cases were upon this point. 
 
 The prisoner, whose name was William Snow, and who was a shoe- 
 maker, lived in the same neighbourhood as the deceased, and at no 
 great distance from him. On the afternoon of the day mentioned in 
 the indictment, the prisoner, very much intoxicated by liquor, passed 
 accidentally by the house of the deceased's mother, while the deceased 
 was thatching an adjacent barn. They entered into conversation; 
 but on the prisoner's abusing the mother and sister of the deceased, 
 very high words arose on both sides, and they placed themselves in a 
 posture to fight. The mother of the deceased, hearing them quarrel, 
 came out of her house, threw water over the prisoner, hit him in the 
 face with her hand, and prevented them from boxing. The prisoner 
 went into his own house; and in a few minutes came out again, and 
 sat himself down upon a bench before his garden gate, at a small dis- 
 tance from the door of his house, with a shoemaker's knife in his hand, 
 with which he was cutting the heel of a shoe. The deceased having 
 finished his thatching, was returning, in his way home, by the priso- 
 ner's house: and on passing the prisoner, as he sat on the bench, the 
 deceased called out to him, "Are not you an aggravating rascal?" 
 The prisoner replied, " What will you be, when you are got from your 
 master's feet?" On which the deceased seized the prisoner by the 
 collar, and dragging him off the bench, they both rolled down into 
 the ca;rtway. While they were struggling and fighting, the prisoner 
 underneath, and the deceased upon him, the deceased cried out, "You 
 rogue, what do you do with that knife in your hand?" and made an 
 attempt to secure it; but the prisoner kept striking about with one 
 hand, and held the deceased so hard with the other hand, that the de- 
 ceased could not disengage himself. He made, however, a vigorous ef- 
 fort, and by that means drew the prisoner from the ground ; and during 
 this struggle the prisoner gave a blow, on which the deceased imme- 
 diately exclaimed, "The rogue has stabbed me to the heart; I am a 
 dead man;" and expired. Upon inspection, it appeared that he had 
 received three wounds, one very small on the right breast; another on 
 the left thigh, two inches deep, and half an inch wide, and the mortal 
 wound on the left breast. After much consideration, the judges de- 
 termined that the ofi'ence was only manslaughter.' 
 
 1 state V. Hildreth, 9 Iredell, 429. 2 See ante, p. 187. 
 
 3 1 Hawk. P. G. c. 31, s. 28; Fost. 295. * 1 East, P. C. c. 5, s. 26, p. 243. 
 
 = E. V. Snow, 1 Leach, 151. 
 
192 HOMICIDE, 
 
 Upon an indictment, for maliciously cutting, it appeared that the 
 prisoner had cut the prosecutor in a fight that took place between 
 them, but no instrument was seen either before or at the time in the 
 prisoner's hands. Bayley, J., "When persons light on fair terms, and 
 merely with fists, where life is not likely to be at hazard, and the 
 blows passing between them are not likely to cause death, if death en- 
 sues, it is manslaughter; and if persons meet originally on fair terms, 
 and after an interval, blows having been given, a party draws in the 
 heat of blood a deadly instrument, and inflicts a deadly injury, it is 
 manslaughter only. But if a party enters into a contest dangerously 
 armed, and fights under an unfair advantage, though mutual blows 
 pass, it is not manslaughter, but murder. If you are of opinion that 
 the prisoner entered into the contest, being unduly armed with an in- 
 strument calculated to produce the effects charged in the indictment, 
 and with the instrument ready in his hand, in order that he might re- 
 sort to it with any of the alleged intepts, then he is guilty. For if 
 death had ensued it would have been murder."^ 
 
 Mr. East tells us that the judges thought in this case, that there 
 was not sufficient evidence that the prisoner lay in wait for the de- 
 ceased, with a malicious design to provoke him, and under that co- 
 lour, to revenge his former quarrel, by stabbing him, which would 
 have made it murder. On the contrary, he had composed himself to 
 work at his own door, in a summer's evening: and when the deceased 
 passed by, neither provoked him by word nor gesture. The deceased 
 began first by ill language, and afterwards by collaring and dragging 
 him from his seat, and rolling him in the road. The knife was used 
 openly before the deceased came by, and not concealed from the by- 
 standers: though the deceased in his passion did not perceive it till 
 they were both down. And though the prisoner was not justifiable 
 in using such a weapon on such an occasion, yet it being already in 
 his hand, and the attack upon him very violent and sudden, the judges 
 thought that the offence only amounted to manslaughter; and the 
 prisoner was recommended for a pardon.^ 
 
 If, after an interchange of blows on equal terms, one of the parties, 
 on a sudden, and without any such intention at the commencement of 
 the affray, snatches up a deadly weapon and kills the other party with 
 it, such killing will be only manslaughter. But if a party, under 
 colour of fighting upon equal terms, uses from the beginning of the 
 contest a deadly weapon without the knowledge of the other party, 
 and kills the other party with such weapon; or if, at the beginning of 
 the contest he prepares a deadly weapon, so as to have the power of 
 using it in some part of the contest, and uses it accordingly in the course 
 of the combat, and kills the other party with the weapon; the killing 
 in both these cases will be murder. The prisoner and Levy quarrelled 
 and went out to fight. After two rounds, which occupied little more 
 than two minutes. Levy was found to be stabbed in a great many 
 places; and of one of those stabs he almost instantly died. It appeared 
 that nobody could have stabbed him but the prisoner; who had a clasped 
 knife before the affray. Bayley, J., told the jury, that if the prisoner 
 used the knife privately from the beginning; or if before they began 
 
 1 Whiteley's case, 1 Lew. 173. ^ i E^at, P. C. c. 5, s. 26, p. 245. 
 
PROVOCATION — BLOWS. 193 
 
 to fight he placed the knife so that he might use it during the affray, 
 and used it accordingly, it was murder: but that if he took to the 
 knife after the fight began, and without having placed it to be ready 
 during the affray, it was only manslaughter. The jury found the 
 prisoner guilty of murder .^ 
 
 John Taylor, a Scotch soldier, and two other Scotchmen were drink- 
 ing together in an ale house, when some servants to the owner of the 
 house, who were also drinking in another box, abused the Scotch 
 nation, and used several provoking expressions towards Taylor and 
 his company, on which Taylor struck one of the servants with a small 
 rattan cane, not bigger than a man's little finger, and another of the 
 Scotchmen struck the same servant with his fist: the servant who was 
 struck went out of the room into the yard, to fetch his fellow-servants 
 to turn Taylor and hiscompany outof the room; and in the mean time, 
 an altercation ensued between Taylor and the deceased, who was the 
 owner of the house, but not the occupier, and who had come into the 
 room after the servant went into the yard. He insisted that Taylor 
 should pay for his liquor, and go out of the house; and Taylor, after 
 some further altercation, was going away, when the deceased laid 
 hold of him by the collar, and said, "he should not go away till he 
 had paid for the liquor; " and then threw him down against a settle. 
 Taylor then paid for the liquor; whereupon the deceased laid hold 
 of him again by the collar, and shoved him out of the room into the 
 passage : and Taylor then said " he did not mind killing an Englishman 
 more than eating a mess of crowdy." The servant, who had been 
 originally struck with the cane, then came and assisted the deceased, 
 who had hold of Taylor's collar; and together they violently pushed 
 him out of the door of the alehouse : whereupon Taylor instantly turned 
 round, drew his sword, and gave the deceased the mortal wound. 
 This was adjudged manslaughter.^ 
 
 The prisoner, who had shortly before been discharged from the 
 Coldstream guards, went to a public-house in company with his bro- 
 ther and another person; there were two more soldiers in the house, 
 and the deceased was sitting with them: a dispute arose about paying 
 the reckoning, and a fight took place between the prisoner and one 
 Burrows: in the scuffle B. fell down by the fire-place on his knees, and 
 the deceased jumped over the table and struck the prisoner: the de- 
 ceased was turned out by the landlord, but admitted again in about 
 ten minutes, and the parties all remained drinking together after 
 that for a quarter of an hour, when the prisoner and his brother went 
 out: the deceased remained about a quarter of an hour after the pri- 
 soner and then left: the prisoner and the deceased were both in li- 
 quor; the deceased tried to get out directly after the prisoner left, 
 but was detained by the persons in the room; as soon as they let him 
 go, he jumped over the table, and went out of the house, saying as he 
 went, that if he caught them he would serve them out : the deceased 
 was a person who boasted of his powers as a fighter; the deceased 
 followed the prisoner and his brother into a mews not far from the 
 public-house where they had been drinking; and a witness who lived 
 
 ' R. V. Anderson, 1 Rus3. on Cr. 531. 
 
 2 E. V. Taylor, 5 Bm-r. 279; 1 Hawk. c. 81, s. 29. 
 
 13 
 
194 HOMICIDE. 
 
 near, stated that he heard a noise, and went to the door of his house, 
 and then heard a bayonet fall on the ground, and on going out heard 
 one Croft crying out "Police, police; a man is stabbed! " and on going 
 up found the deceased lying on the ground wounded. Croft stated 
 that he was near and heard voices, which induced him to run towards 
 a bar, and when within a yard of the bar he heard a blow like the 
 blow of a fist; this was followed by other blows; after the blows he 
 heard a voice say "take thatl" and in half a minute the same voice 
 said, " he has stabbed me 1 " the deceased then ran towards him, and 
 said, "I am stabbed I" and soon fell on the ground: the prisoner was 
 soon afterwards taken into custody, and was then bleeding at the nose; 
 the prisoner had not any side-arms; but his brother had a bayonet: 
 for the defence the brother stated that when they got about twenty 
 yards through the bar mentioned by Croft, he heard somebody say 
 something, and deceased came up and struck him on the back of the 
 head, which caused him to fall down, and his bayonet fell out of the 
 sheath upon the stones, and the deceased picked it up, and followed 
 the prisoner who had gone on; there was a great struggle between 
 them, and very shortly after the deceased cried out " I am stabbed ! " 
 A surgeon proved that there were wounds on the prisoner's hands, 
 such as would be made by stabs of a bayonet, and that his back was 
 one uniform bruise. Bosanquet, J., to the jury, "the question for 
 you, on a careful consideration of the whole evidence, will be, whether 
 the prisoner was guilty of either murder or manslaughter, or whether 
 the circumstances of the case were such as to entitle him to an ac- 
 quittal; whether he is guilty of mui'der or manslaughter, or whether 
 his act was justifiable or excusable: upon the question of whether it 
 amounts to murder you have to consider this; did the prisoner enter 
 into a contest with an unarmed man, intending to avail himself of a 
 deadly weapon? For if he did, it will amount to murder. But if 
 he did not enter into the contest with an intention of using it, then 
 the question will be, did he use it in the heat of passion in conse- 
 quence of an attack made upon him? If he did, then it will be man- 
 slaughter. But there is another question ; did he use the weapon in 
 defence of his life? Before a person can avail himself of that defence, 
 he must satisfy the jury that that defence was necessary; that he did 
 all he could to avoid it; and that it was necessary to protect his own 
 life, or to protect himself from such serious bodily harm as would 
 give a reasonable apprehension that his life was in immediate danger. 
 If he used the weapon, having no other means of resistance, and no 
 means of escape. In such case, if he retreated as far as he could, he 
 would be justified." The defendant was found guilty of manslaughter.' 
 
 (3.) Where the intent is to kill. 
 
 To determine whether the killing upon provocation amounts to 
 murder or manslaughter, the instrument wherewith the homicide was 
 effected, must also be taken into consideration, for if it were effected 
 with a deadly weapon, it will be therefore inferred that the intent 
 was to take life, and the provocation must be great indeed to lower the 
 grade of the crime from murder; if with a weapon or other means 
 
 ^B,.v. Smith, 8 C. & p. 160. 
 
PROVOCATION — BLOWS. 195 
 
 not liliely or intended to produce death, a less degree of provocation 
 will be sufficient; in fact, the instrument employed must bear a rea- 
 sonable proportion to the provocation to reduce the offence to man- 
 slaughter. It is on this principle that we may reconcile with the 
 general tenor of authority the case already noticed, where some pro- 
 voking words being used by a soldier to a woman, she gave him a 
 box on the ear, and the soldier immediately gave her a blow with 
 the pommel of his sword on the breast, and then ran after her, and 
 ptabbed her in the back: this was at first deemed murder; but it ap- 
 pearing afterwards that the blow given to the soldier was with an 
 iron patten, and that it drew a great deal of blood, the offence was 
 holden to be manslaughter only.' 
 
 Upon an indictment for murder, it appeared that a body of per- 
 sons were committing a riot, and the constables interfering for the 
 purpose of dispersing the crowd, and apprehending the offenders, re- 
 sistance was made to them by the mob, and one of the constables was 
 beaten severely by the mob; the different persons all took part in 
 the violence used; some by beating him with sticks, some by throw- 
 ing stones, and others by striking him with their fists: of this ag- 
 gregate violence, the constable afterwards died. Alderson, B. said, " The 
 principles on which this case will turn, are these: — if a person at- 
 tacks another without justifiable cause, and from the violence used, 
 death ensues, the question which arises is, whether it be murder or 
 manslaughter? If the weapon used were a deadly weapon, it is rea- 
 sonable to infer that the party intended death ; and if he intended 
 death, and death was the consequence of his act, it is murder. If 
 no weapon was used, then the question usually is, was there exces- 
 sive violence? If the evidence as to this be such as that the jury 
 think there was an intention to kill, it is murder; if not, man- 
 slaughter. Thus, if there were merely a blow with a fist, and death 
 ensued, it would not be reasonable to infer that there was an inten- 
 tion to kill; in that case, therefore, it is manslaughter. But if a 
 strong man attacks a weak one, though no weapon be used, or if 
 after much injury by beating, the violence is still continued, then the 
 question is, whether this excess does not show a general brutality, 
 and a purpose to kill, and if so, it is murder. Again, if the weapon 
 used be not deadly, e. g., a stick, then the same question as above 
 will arise as to the purpose to kill; and in any case if the nature of 
 the violence, and the continuance of it be such, as that a rational 
 man would conclude that death must follow from the acts done, then 
 it is reasonable for a jury to infer that the party who did them in- 
 tended to kill, and to find him guilty of murder. Again, it is a prin- 
 ciple of law, that if several persons act together in pursuance of a 
 common intent, every act done in furtherance of such intent by each 
 of them is, in law, done by all. The act, however, must be in pur- 
 suance of the common intent. Thus, if several were to intend and 
 agree together to frighten a constable, and one were to shoot him 
 through the head, such an act would affect the individual only by 
 whom° it was done. Here, therefore, in considering this case, you 
 
 1 B. V. Stedman, Fost. 292; Kel. 13; 1 Hale, 457; 4 Blac. Com. 200; 1 Hawk. c. 31, 
 sect. 34. See ante, p. 190, 191. 
 
196 HOMICIDE. 
 
 must determine, whether all these prisoners had the common intent 
 of attacking the constables; if so, each of them is responsible for all 
 the acts of all the others done for that purpose; and if all the acts 
 done by each if done by one man, would together show such vio- 
 lence, and so long continued, that from them you would infer an in- 
 tention to kill the constable, it will be murder in them all. If yon 
 would not infer such purpose, you ought to iind them guilty only of 
 manslaughter."^ 
 
 The blow must be struck on an immediate provocation, and not 
 upon an old grudge ; for then it would amount to murder. Thus, it 
 is not error in a judge to tell the jury, on the trial of an indictment 
 for murder, that " if they believed from the evidence that the priso- 
 ner had malice against the deceased on the morning of the day when 
 the killing occurred, and there was no evidence that such malice was 
 abandoned, even if the prisoner accidentally fell in with the de- 
 ceased, the question of manslaughter could not arise, as the malice 
 would exclude provocation;" it being clear from the context of the 
 charge that the malice spoken of was the purpose to kill or do great 
 bodily harm to the deceased.^ 
 
 If one seek another and enter into a fight with him, with the pur- 
 pose, under the pretence of fighting, to stab him, if a homicide en- 
 sues, it will be clearly murder in the assailant, no matter what pro- 
 vocation was apparently then given, or how high the assailant's pas- 
 sion rose during the combat; for the malice is express.^ 
 
 And such an indulgence is shown to the frailty of human nature, 
 that where two persons, who have formerly fought on hualice, are af- 
 terwards, to all appearance, reconciled, and fight again on a fresh 
 quarrel, it shall not be presumed that they were moved by the old 
 grudge, unless it appear by the whole circumstances of the case.* 
 
 (4.) Where the intent is to chastise. 
 
 To determine the intent, the nature of the wound forms a proper 
 subject for consideration. 
 
 One Freeman, a soldier, was in a public house drinking, and asked 
 a girl who was sitting there to drink with him: upon which one Ann 
 Simpson, with whom he had cohabited, seized his pot, abused him 
 very much, and threw down his beer. Freeman then caught the pot 
 from her, and struck her twice on the head with it: the blood gushed 
 out, and she was taken to an hospital, where the wound was examined, 
 and did not appear dangerous, being about a quarter of an inch deep; 
 but it produced an erysipelas, which caused an inflammation of the 
 brain, and the woman died. The witness, who saw the blows, did 
 not think the prisoner intended to do the woman any grievous bodily 
 harm. Gibbs, C B., told the jury, that if the disease which caused 
 tlie death originated from the wound, it was the same as if the wound 
 had caused the death; that the primary cause was to be considered; 
 that the aggravation, though not constituting a provocation which 
 would extenuate the giving a deadly blow, would palliate the giving 
 a moderate blow; and he left it to the jury whether those blows 
 
 1 Macklin's case, 2 Lew. 225. = State v. Tilley, 3 Iredell, 424. 
 
 » State V. Laae, 4 Iredell, 113. * 1 Hawk. P. C. s. 27. 
 
PROVOCATION — BLOWS. 197 
 
 yifere such as were likely to be followed by death, or by a disease 
 likely to terminate in death. The jury thought that the IdIows were 
 not of this kind, and the prisoner was found guilty of manslaughter 
 only.' 
 
 Where one, in another case, having had his pocket picked, seized 
 the offender, and being encouraged by a concourse of people, threw 
 him into an adjoining pond by way of avenging the theft by ducking 
 him, but without any apparent intention of taking away his life, and 
 the pickpocket was drowned, this was ruled to be manslaughter only.^ 
 
 (5.) Where the mortal blow is deliberately given after the deceased 
 is disarmed or helpless. 
 
 Where a party, after he has got the better of the other, and held 
 him prostrate and defenceless, the reception of a prior blow will not 
 reduce the grade to manslaughter. This proposition, in fact, is a co- 
 rollary of that which makes a blow no mitigating provocation when 
 there is a manifest disparity of strength between the parties. For 
 even where no such disparity at first exists, the principle holds good 
 when by the result, of the conflict one party is disarmed, or becomes 
 otherwise helpless. Upon an indictment for murder by strangling, 
 it appeared that the prisoner had said, "We quarrelled about some 
 money I had won from him ; he wanted it back, and I would not give 
 it to him; he struck me, and I knocked him down, he got up and I 
 knocked him down again, and kicked him, and then I put a rope round 
 his neck, and dragged him into the ditch." Patteson, J., said to the 
 jury, " If you even believe the prisoner's statement, that will not pre- 
 vent the crime from being murder, and reduce it to manslaughter. 
 If two persons fight, and one of them overpowers the other, and knocks 
 him down, and then puts a rope round his neck, and strangles him, 
 that is murder. The act is so wilful and deliberate that nothing can 
 justify it."^ 
 
 (6.) Where the attack is sought by the party tilling. 
 
 The plea of provocation will not avail in any case, where it appears^ 
 that the provocation was sought for and induced by the act of the 
 party in order to afford him a pretence for wreaking his malice;'' and 
 it will presently be seen that even where there may have been pre- 
 vious struggling or blows, such plea cannot be admitted, where there 
 is evidence of express malice; and it must appear, therefore, that 
 when he did the fact, he acted upon such provocation, and not upon/ 
 any old grudge. 
 
 (7.) Where the revenge is cruel and unusual. 
 
 In this respect the nature of the instrument is to be particularly 
 considered. The prisoner's son fought with another boy, and was 
 beaten; he ran home to his father all bloody, who presently took a 
 
 > B.. ». Freeman, 1 Russ. on Cr. 518. « 1 East, P. C. 236 ; 1 Hale, 456. 
 
 « R. V. Shaw, 6 C. & P. 372. 
 
 * 1 Russ. on Cr. 521, 585; State .-. Ferguson, 2 Hill's S. C. R. 619; State v. Lane, 
 4 Iredell, 113; State v. Martern, 2 Iredell, 101; State ». Tilley, 3 Iredell, 424; 1 Hale, 
 451. 
 
198 HOSIICIDE. 
 
 cudgel, ran three quarters of a mile, and struck the other boy upon 
 the head, upon -which he died.' This was ruled manslaughter, be- 
 cause done in a sudden heat of passion : but upon this case Mr. Justice 
 Foster makes the following remarks? "Surely the provocation was 
 not very grievous. The boy had fought with one who happened to 
 be an over-match for him, and was worsted; a disaster slight enough, 
 and very frequent among boys. If upon this provocation the father, 
 after running three quarters of a mile,had set his strength against the 
 child, had dispatched him with a hedge-stake, or any other deadly 
 weapon, or by repeated blows with his cudgel, it must, in my opinion, 
 have been murder; since any of these circumstances would have been 
 a plain indication of malice: but with regard to these circumstances, 
 with what weapon, or to what degree, the child was beaten, Coke is 
 totally silent. But Croke^ setteth the case in a much clearer light, 
 and at the same time leadeth his readers into the true grounds of the 
 judgment. His words are, ' Rowley struck the child with a small cud- 
 gel, of which stroke he afterwards died. I think it may be fairly 
 collected from Croke's manner of speaking, and Godbolt's report,'' that 
 the accident happened hy a single stroke with a cudgel not likely, to 
 destroy, and that death did not immediately ensue. The stroke was 
 given in heat of blood, and not with any of the circumstances which 
 import malice, and therefore manslaughter. I observe, that Lord 
 Raymond layeth great stress on this circumstance : that the stroke was 
 with a cudgel not likely to kill."^ 
 
 (8.) When there was an old grudge. ' 
 
 When a deliberate purpose to kill or do great bodily harm is as- 
 certained, and there is a consequent unlawful act of killing, the provo- 
 cation, whatever it may be, which immediately precedes the act, is to 
 be thrown out of the case, and goes for nothing, unless it can be shown 
 that this' purpose was abandoned before the act was done.* If, upon 
 a provocation received, one party deliberately and advisedly denounce 
 vengeance against the other, as by declaring that he will have his 
 blood, or by preparing for the conflict, or the like, and afterwards 
 carry his design into execution, he will be guilty of murder, although 
 the death happened so recently after the provocation as that the law 
 might, apart from such evidence of express malice, have imputed the 
 act to unadvised passion.^ Thus, where two persons quarrel, and 
 one throws a brickbat at the other, who has privately armed himself 
 with a deadly weapon, and keeps it concealed, in expectation of the 
 affray, and on such assault being made upon him, immediately draws 
 forth the weapon, and, with it, kills the assailant, though then re- 
 treating; it was held, that a verdict of murder would not be dis- 
 turbed, though there was no proof of previous malice, malice being im- 
 
 1 Rowley's ease, 12 Rep. 87; S. C. 1 Hale, 453, in which report the words arc, " and 
 strikes C, tliat he dies." Mr. Justice Foster, in citing the case, says, that the father, 
 after running three-quarters of a mile, beats the other boy, "whodieth of this beating." 
 Fost. 294. And see also McWhist's case, 3 Grat. 594. 
 
 2 Fost. 294. » Cro. Jao. 296. 
 
 * Godb. 182. It was there said to have been a "rod," meaning probably a small wand. 
 ^ 2 Lord Raym. 1498. And see also, on this point, R. u. Thomas, 7 C. & P. 817. 
 6 State V. Johnston, 3 Iredell, 354. 
 ' 1 Vent. 159 ; 1 Hale, 452 ; Oneby's case, 2 Ld. Ray. 1490. 
 
PROVOCATION — OLD GRUDGE. 199 
 
 plied from the res gestee, and from the preparation of the defendant. 
 And, where two parties had previously had words, and a general 
 challenge to fight passed, and three hours afterwards, the defendant, 
 belonging to one of them renewed the challenge, which was accepted, 
 and a fight ensued, which resulted in the death of one of the other party, 
 it was held murder.' Where it appeared that the deceased had threat- 
 ened the prisoner, about three weeks before, that he would kill him, 
 that they met in the street, on a star-light night, when they could see 
 each other, that the deceased pressed for a fight, but the prisoner re- 
 treated a short distance, that when the deceased overtook him the 
 prisoner stabbed him with some sharp instrument which caused his 
 death, and that, at the time of this meeting, the deceased had no 
 deadly weapon, it was held, that the ofi"ence was murder.^ 
 
 When the existence of deliberate malice in the slayer is once as- 
 certained, its continuance, down to the perpetration of the meditated 
 act, must be presumed, unless there is evidence to repel it. There 
 must be some evidence to show that the wicked purpose had been 
 abandoned.^ 
 
 Although a person may not go in search of, or lie in wait for ano- 
 ther, whom he kills, yet, if he has formed the purpose to kill him, and 
 within a short time after forming and avowing such purpose, he duly 
 armed, meets the other by chance, whether in public or in secret, and 
 slays him immediately, there is a serious presumption that he did it 
 on the previous purpose and grudge, if there be no evidence of a 
 change of purpose.** 
 
 If a person upon meeting his adversary unexpectedly, who had in- 
 tercepted him upon his lawful road, and in his lawful pursuit, accepts 
 the fight where he might have avoided it by passing on, the provoca- 
 tion being, sudden and unexpected, the law will not presume the kill- 
 ing to have been upon the ancient grudge, but upon the insult given 
 by stopping him on the way; and it will be manslaughter.* 
 
 If one seek another, and enter into a fight with him, with the pur- 
 pose, under the pretence of fighting, to stab him, if a homicide ensue, 
 it will be clearly murder in the assailant, no matter what provocation 
 was apparently then given, or how high the assailant's passion rose 
 during the combat; for the malice is express.* So, if A from previ- 
 ous angry feelings, on meeting with B, strike him with a whip, with 
 the view of inducing B to draw a pistol, or, believing he will do so, 
 in resentment of the insult, and determines, if he do so, to shoot B as 
 soon as he draws, and B does draw, and A immediately shoots and 
 kills B, this is murder.'' 
 
 If the deceased is approaching the prisoner's path, with the inten- 
 tion of assailing the prisoner, and becomes irresolute and stops or 
 abandons his intention, leaving the prisoner with full liberty to pass, 
 and the prisoner with a design of slaying the deceased, brings on the 
 attack, the killing will be murder in the first or second degree accord- 
 ing to circumstances; if the killing were from the old grudge, and a 
 
 1 Com. B. Crane, Gen. Ct. of Virginia, Nov. 1791, 2 Wheeler's C. C. 587. 
 
 2 State V. Scott, 3 Ired. 409. 
 
 3 State 1). Johnson, 1 Ired. 354; State v. TuUy, 4 Ired. 424. 
 
 * State V. TiUey, 1 Ired. 424. ^ Copeland v. State, 7 Hump. 479. 
 
 6 State V. Lane, 4 Ired. 113; 1 Hale, 451; State v. Ferguson, 2 HiU's S. C. E. 619. 
 
 ' State V. Marten, 2 Ired. 101. 
 
200 HDMICIDB. 
 
 previously premeditated intention, it would be murder in the first de- 
 gree; but if it were from malice suddenly produced by the sight of 
 his enemy, and without premeditation, it would be murder in the se- 
 cond degree.^ 
 
 Though there had been a quarrel between A and B and a reconci- 
 liation between them, and afterwards, upon a new and sudden falling 
 out, A kills B, this is not murder; yet if upon the circumstances it 
 appears that the reconciliation was but pretended or counterfeit and 
 that the hurt done was upon the score of the old malice, it is murder.^ 
 
 The prisoner with the deceased and another brother, and some 
 neighbours, was drinking in a friendly manner at a public house ; till 
 growing warm in liquor, but not intoxicated, the prisoner and the 
 deceased began in idle sport to pull and push each other about the 
 room. They then wrestled ; one fell, and soon afterwards they played 
 at cudgel by agreement. AH this time no token of anger appeared 
 on either side, till the prisoner, in the cudgel-play, gave the deceased 
 a smart blow on the temple. The deceased thereupon grew angry; 
 and throwing away his cudgel, closed in with the prisoner, and they 
 fought a short space in good earnest: but the company interposing, 
 they were soon parted. The prisoner then quitted the room in anger ; 
 and when he got into the street, was heard to say, "Damnation seize 
 me if I do not fetch something and stick him." And being reproved 
 for using such expressions, he answered, " I'll be damned to all eter- 
 nity if I do not fetch something and run him through the body." 
 The deceased and the rest of the company continued in the room 
 where the affray happened; and in about half an hour the prisoner 
 returned, having put off a thin slight coat he had on when he quitted 
 the room, and put on one of a coarse thick cloth. The door of the 
 room being open into the street, the prisoner stood leaning against 
 the door-post, his left hand in his bosom, and a cudgel in his right, 
 looking in upon the company, but not speaking a word. The de- 
 ceased seeing him in that posture, invited him into the company: but 
 the prisoner answered, "I will not come in." "Why will you not?" 
 said the deceased. The prisoner replied, "Perhaps you will fall on 
 me and beat me." The deceased assured him he would not; and 
 added, " besides, you think yourself as good a man as me at cudgels, 
 perhaps you will play at cudgels with me." The prisoner answered, 
 " I am not afraid to do so if you will keep off your fists." Upon these 
 words the deceased got up and went towards the prisoner, who 
 dropped the cudgel as the deceased was coming up to him. The de- 
 ceased took up the cudgel, and with it gave the prisoner two blows on 
 the shoulder. The prisoner immediately put his right hand into his 
 bosom, and drew out the blade of a tuck sword, crying, " Damn you, 
 t and off, or I'll stab you ;" and immediately, without giving the de- 
 ceased time to step back, made a pass at him with the sword, but 
 missed him. The deceased thereupon gave back a little; and the 
 prisoner shortening the sword in his hand, leaped forward towards 
 the deceased and stabbed him to the heart, and he instantly died. 
 The judges unanimously agreed, that there were in this case so many 
 circumstances of deliberate malice and deep revenge on the defen- 
 
 1 Copeland v. State, 7 Humph. 479. > 1 Hale, 451. 
 
BLOWS — INTERPEREiNCB OF THIRD PARTIES. 201 
 
 dant's part, that his offence could not be less than wilful murder. 
 He vowed he would fetch something to stick him, to run him through 
 the body. Whom did he mean by him? Every circumstance in the 
 case showed that he meant his brother. He returned to the com- 
 pany, provided, to appearance, with an ordinary cudgel, as if he in- 
 tended to try still and manhood a second time with that weapon: but 
 the deadly weapon was all the while carefully concealed under his 
 coat ; which*most probably he had changed for the purpose of con- 
 cealing the weapon. He stood at the door, refusing to come nearer, 
 but artfully drew on the discourse of the past quarrel ; and as soon as 
 he saw his brother disposed to engage a second time at cudgels, he 
 dropped his cudgel and betook him to tbe deadly weapon, which till 
 that moment he had concealed. He did indeed bid his brother 
 stand off; but he gave him no opportunity of doing so before the first 
 pass was made. His brother retreated before the second : but he ad- 
 vanced as fast, and took the revenge he had vowed. The case was 
 held to be murder.^ 
 
 The principle already referred to as of general application, bears 
 particularly upon this particular class of cases, viz., that in all cases of 
 slight provocation, if it may he reasonably collected from the weapon 
 made use of, or from any other circumstance' that the party intended 
 to kill or do some great bodily harm, such homicide will be murder. 
 Accordingly, where a parker, finding a boy stealing wood in his 
 master's ground, bound him to his horse's tail and beat him, and the 
 horse taking fright, and running away, the boy was dragged on the 
 ground till his shoulder was broken, whereof he died ; it was ruled 
 murder : for it was not only an illegal, but a deliberate and dangerous 
 act ; the correction was excessive, and savoured of cruelty.^ 
 
 Where a sufficient legal provocation at the time to extenuate the 
 homicide is proved, it is not competent for the prosecution, in order 
 to show that the act of killing was not by reason of the immediate 
 provocation, but of a pre-existing malice, to prove that a year before 
 the prisoner declared his intention to kill two or three men, it being 
 admitted that the deceased was not one of the men referred to.^ 
 
 (9.) When a third party interferes in the combat of others. 
 
 When such interference is fftm malice, and not from mere wan- 
 tonness, the party so assailed is guilty of murder. Thus, if a mas- 
 ter, maliciously intending to kill another, take his servants with him 
 without acquainting them with his purpose, and meet his adversary, 
 and fight with him, and the servants, seeing their master engaged, 
 kill the other, they would be guilty of manslaughter only, but the 
 master of murder.* If otherwise, it would be murder in all. 
 
 Where the third party interferes from hot blood alone, and kills 
 one of the combatants, this is mere manslaughter: though if A and B 
 fight upon malice, and C, the friend or servant of A, not being ac- 
 quainted therewith, come in and take part against B, and kill him, 
 
 1 Mason's case, Fost. 132. 
 
 2 Halloway's case, Cro. Car. 131; Palm. 545; 1 Hawk. P. C. c. 39, s. 42; W. Jones, 
 198; 1 Hale, 453; Kel. 127; 1 East, P. C. c. 5, s. 22, p. 237; State v. Ferguson, 2 HiU's 
 S. C. R. 619. 
 
 3 State V. Barfield, 7 Ired. 299. * 1 Hawk. P. C. o. 31, s. 55. 
 
202 HOMICIDE. 
 
 this (though murder in A) is only manslaughter in C : yet it would 
 be otherwise, if C had known that the lighting was upon malice, for 
 then it would be murder in both. If A, having been assaulted, re- 
 treats as far as he can, and then his servant kills the assailant, it will 
 be only homicide se defendendo: but if the servant had killed him 
 before the master had retreated as far as he could, it would have 
 been manslaughter in the servant. And the law is the same in the 
 case of the master killing the other in defence of the sirvant.' 
 
 A party of men were playing at bowls, when two of them fell out 
 and quarrelled ; and a third man who had not any quarrel, in re- 
 venge of his friend, struck the other with a bowl, of which blow he 
 died; and this was held manslaughter, because it happened upon a 
 sudden motion in revenge of his friend.* But it must be intended 
 that the two men who fell out were actually fighting together at the 
 time; for if words only had passed between them, it would have 
 been murder; nothing but an open affray or striving being such a 
 provocation to one person to meddle with an injury done to another 
 as will lessen the offence to manslaughter, if a man be killed by the 
 person so meddling.' 
 
 A distinction has been taken between the interference of servants 
 and friends, and that of a mere stranger, yet the basis of this dis- 
 tinction does not appear to be any where actually defined. Aud it 
 has been observed, that the nearer or more remote connexion of the 
 parties with each other seems to be more a matter of observation to 
 the jury as to the probable force of the provocation, and the motive 
 which induced the interference, than as furnishing any precise rule 
 of law grounded on such a distinction.'' 
 
 If a third person should take up the cause of one who has been 
 worsted in mutual combat, and should attack the conqueror, and be 
 killed by him, the killing would, it seems, be manslaughter. A and 
 B were walking together in Fleet street, and B gave some provoking 
 language to A, who, thereupon, gave B a box on the ear, upon which 
 they closed, and B was thrown down, and his arm broken. Presently 
 B ran to his brother's house, which was hard by; and C, his brother, 
 taking the alarm, came out with his sword drawn, and made towards 
 A, who retreated ten or twelve yards; and pursuing him, A drew 
 his sword, made a pass at C, and ki?led him. A being indicted for 
 murder, the court directed the jury to find it manslaughter, not mur- 
 der, because it was upon a sudden falling out, not se defendendo, partly 
 because A made the first breach of the peace by striking B; and 
 partly because, unless he had fled as far as might be, it could not be 
 said to be in his own defence; and it appeared plainly upon the evi- 
 dence, that he might have retreated out of danger, and that his step- 
 ping back was rather to have an opportunity to draw his sword, and 
 with more advantage to come upon C than to avoid him; and accord- 
 ingly, at last, it was found manslaughter.' 
 
 1 1 Rus3. on Cr. 590. ' 12 Eep. 89. s i Rugg, on Cr_ 592. 
 
 * 1 Buss, on Cr. 592. ' 1 Hale, 482. 
 
PROVOCATION — RESTRAINT OR COERCION. 203 
 
 Qth. Restraint or coercion. 
 
 It has been already shown that an illegal attempt to restrain a man's 
 liberty, even under colour of legal process, is such provocation as to 
 reduce the offence to manslaughter. This holds where a man is in- 
 juriously restrained of his liberty, as where a creditor stood at the 
 door of his debtor with a drawn sword, to prevent him from escaping 
 while he sent for a bailiff to arrest him. Or, as where a sergeant put 
 a common soldier under arrest, who thereupon killed the sergeant 
 with a sword, and upon the trial the articles of war were not produced, 
 nor any evidence given of the usage of the army, and so no authority 
 in the sergeant appeared.' 
 
 Two soldiers came at eleven o'clock at night, to a publican's, and 
 demanded beer, which he refused, alleging the unseasonableness of 
 the hour, and advised them to go to their quarters; whereupon they 
 went away, uttering imprecations. In an hour and a half afterwards, 
 when the door was opened to let out some company, who had been de- 
 tained there on business, one of them rushed in, the other remaining 
 without, and renewed his demand for beer; to which the landlord re- 
 turned the same answer; and on his refusing to depart, and persisting 
 to have some beer, and offering to lay hold of the landlord, the latter 
 at the same instant collared him; the one pushing and the other pull- 
 ing each other towards the outer door; where when the landlord came 
 he received a violent blow on the head with some sharp instrument 
 from the other soldier, who had remained without, which occasioned 
 his death a few days afterwards. Bnller, J., held this to be murder in 
 both, notwithstanding the previous struggle between the landlord and 
 one of them. For the landlord did no more in attempting to put the 
 soldier out of his house at that time of the night, and after the warn- 
 ing he had given him, than he lawfully might; which was no provoca- 
 tion for the cruel revenge taken; more especially as there was reason- 
 able evidence of the prisoners having come the second time with a 
 deliberate intention to use personal violence, in case their demand for 
 beer was not complied with.^ 
 
 The same doctrine was held in a case where a sergeant in the army 
 laid hold of a fifer, and insisted upon carrying him to prison: the fifer 
 resisting; and whilst the sergeant had hold of him to force him, he 
 drew the sergeant's sword, plunged it into his body, and killed him. 
 The sergeant h'ad no right to make the arrest, except under the articles 
 of war; and the articles of war were not given in evidence. Bullor, 
 J., considered it in two lights: first, if the sergeant had authority; 
 and, secondly, if he had not, on account of the coolness, deliberation, 
 and reflection, with which the stab was given. The jury found the 
 prisoner guilty: but the judges were unanimous, that the articles of 
 war should have been produced; and, for want thereof, held the con- 
 viction wrong.^ 
 
 1 Buckner's case, Styl. 467; Wither's case; K. v. Curwau, 1 Moody, C. C. 132. See 
 ante, 48. 
 
 2 K. V. Willoughty, 1 East, P. C. 288. ' Wither's case, 1 East, P. C. 233. 
 
204 HOMICIDE. 
 
 lih. Duelling. 
 
 Homicide in a duel is murder in the guilty party, and this though 
 the latter had received the provocation of a blow,' or had been threat- 
 ened with dishonour.^ Nor does it make any difference at common 
 law that his intention was not to kill, but to disarm, his adversary.' 
 It is the deliberation which constitutes the grade of guilt. Thus if A 
 and B meet deliberately to fight, and A strike B, and pursue B so 
 closely that B, in safeguard of his own life, kills A, this is murder in 
 B; because their meeting was a compact, and an act of deliberation, 
 in pursuance of which all that follows is presumed to be done* 
 
 If the meeting to fight be intentional, no subsequent hot blood will 
 be a defence. Thus where B challenges A, and A refused to meet him, 
 but in order to evade the law, A told B that he should go the next day 
 to a certain town about his business, and accordingly B met him in 
 the road to the same town, and assaulted him, whereupon they fought, 
 and A killed B, it is said that A seems guilty of murder ; but the same 
 conclusion would not follow, if it should appear by the whole circum- 
 stances that he gave B such information accidentally, and not with a 
 design to give him an opportunity of fighting.' For in truth the du- 
 ellist has engaged in an act, highly unlawful, in defiance of the laws, 
 and he must at his peril abide the consequences; and upon this prin- 
 ciple, wherever two persons quarrel over night and appoint to fight 
 the next day, or quarrel in the morning and agree to fight in the af- 
 ternoon, or at any time afterwards so considerable that in common in- 
 tendment it must be presumed that the blood was cooled, the person 
 killing will be guilty of murder. And in a case where, upon a quar- 
 rel happening at a tavern, Lord Morley objected to fighting at that 
 time, on account of the disadvantage he should have by reason of the 
 height of his shoes, and presently afterwards went into a field and 
 fought; the circumstance was relied on as showing that he did not fight 
 in the first passion.^ On the other hand, where upon a sudden quari'el, 
 the parties fight upon the spot, or if they presently fetch their weapons, 
 and go into a field and fight, and one of them be killed, it will be but 
 
 » R. V. Young, 8 C. & p. 144; Smith v. State, 1 Yerger, 228; R. v. Cuddy. 1 Car. & 
 Kir. 209. 
 
 2 1 Hale, 452. s i Hawk. P. C. c. 31, s. 21. See ante, p. 41. 
 
 * 1 Hale, 4.52, 480, who says, "Thus is Mr. Dalton, cap. 93, p. 241, (new edit. o. 145, 
 p. 471,) to be understood." But a gu. is added in 1 Hale, 452, whether, if B had really 
 and truly declined the fight, ran away as far as he could, and oflFered to yield, and yet 
 A refusing to decline it, had attempted his death, and B after this had killed A in his 
 own defence, it would excuse him from the guilt of murder; admitting clearly that if 
 the running away were only a pretence to save his own life, but was really designed to 
 draw out A to kill him, it would be murder. This gucere of Lord Hale's is discussed in 
 1 East, P. C. c. 5, 8. 54, p. 284, et teg., and it is observed that Mr. J. Blackstone, (4 Blac. 
 Com. 185,) expressly puts the same case of a duel as Lord Hale, but without subjoining 
 the same doubt ; and that it was considered as settled law by the Chief Justice, in One- 
 by's case. (Lord Raym. 1489.) Mr. East, after reasoning in favour of the extenuation 
 of the duellist so declining to fight, proceeds thus: "Yet still it may be doubtful 
 whether, admitting the full force of this reasoning, the offence can be less than man- 
 slaughter, or whether in such case the party can altogether excuse himself upon the 
 foot of necessity in self-defence, because the necessity which was induced from his own 
 faulty and illegal act, namely, the agreement to fight, was in the first instance delibe- 
 rately foreseen and resolved upon, in defiance of the law." 1 East, P. C. c. 5, s. 54, p. 285. 
 
 6 1 Hawk. P. C. c. 31. s. 22; 1 Hale, 453. 
 
 « Brora wich's case, 1 Lev. 180; 1 Sid. 277; 7 St. Tr. 42. Bromwioh was indicted for 
 aiding and abetting Lord Morley in the murder of Hastings. 
 
DUELLING. 205 
 
 manslaughter, because it may be presumed that the blood never cooled.^ 
 It is to be supposed, with regard to sudden rencounters, that 
 when they are begun, the blood, previously too much heated, kindles 
 afresh at every pass or blow; and in the tumult of the passions, in 
 which mere instinct, self-preservation, has no inconsiderable share, 
 the voice of reason is not heard : therefore the law, in condescension 
 to the infirmities of flesh and blood, has extenuated the offence.^ 
 
 This doctrine has been furthest pushed in the following: " Lord Byron 
 and Mr. Chaworth diifered at a club as to the best means of procuring 
 game. Mr. C. mentioned Sir C. Sedley's manors; Lord B. asked 
 which they were; Mr. C. named Nuttall and another; Lord B. re- 
 peated his question: Mr. C. said, "Surely you will allow Nuttall to be 
 Sir C. Sedley's: but if you have any thing more to say, you will find 
 Sir C. Sedley in Dean-street, and me in Berkeley -row." The conversa- 
 tion then dropped, and they stayed together at least half an hour : and 
 Lord B., during that time conversed with a gentleman who sat next 
 him: Mr. C. settled the bill, but made a mistake in marking the club 
 room, which might arise from agitation; he marked Lord B. as absent, 
 though he was there. Mr. C. then went out, and a Mr. Donston fol- 
 lowed him, of whom Mr. C. asked if he had been short with Lord B. 
 in what he said last to him; to which Mr. Donston answered "No," 
 and was returning into the room when he met Lord B. coming out. 
 Lord B., said to Mr. C, "I want to speak to you;" upon which they 
 both called the waiter, and were shown into a small room, and the 
 waiter left a candle in the room. Lord B. asked Mr. C. if he meant 
 the conversation upotf game to Sir C. Sedley or to him; upon which 
 Mr. C. said, " If you have any thing to say, we had better shut the door, 
 or we shall be heard;" and he shut the door. On turning from the 
 door he saw Lord B.'s sword half drawn, and Lord B. said, "Draw, 
 draw." Mr. C. drew, and thrust at Lord B. ; and after one or two 
 thrusts, Mr. C. received a mortal wound, of which he died. An in- 
 dictment was preferred for murder; but upon the trial the peers were 
 unanimous that it was manslaughter only.^ 
 
 Sir Charles Pym with one party, and Mr. Walters with another 
 party, dined at a tavern ; and on coming out Sir Charles P. and Mr. 
 W. quarrelled and drew their swords, and Mr. W. ran Sir Charles 
 P. through the body, and he died. There was no evidence of any un- 
 fair advantage taken by Mr. W.; nor could the witnesses say more than 
 that they heard them quarrelling, saw their swords drawn, and the 
 sword through Sir Charles P.'s body; and it appeared that the parties 
 did not know each other before. When Sir Charles P. fell, Mr. W. took 
 liim by the nape of the neck, dashed his head upon the ground, and 
 said, "Damn you, you are dead." Jenner, B., told the jury that this 
 was only manslaughter; the jury, however, were disposed to find it 
 murder, because of the dashing the head against the ground, &c. : but 
 Allibone, J., repeated to them it was manslaughter only, and they 
 found accordingly." 
 
 But where malice is proved, the fact of combat is no defence, and 
 malice may be inferred from the violence of the prisoner, and from 
 
 1 1 Hale, 453; 1 Hawk. P. C. c. 31, s. 29; 3 Inst. 51. 
 
 2 Fost. .138, 296. s r. ^. Lord Byron, II St. Tr. 1177. 
 * K. V. Walters et al., 12 St. Tr. 113. 
 
206 HOMICIDE. 
 
 deliberation ? Thus in major Oneby 's case — which is the leading one un- 
 der this head, and has been already cited, — the evidence was that the 
 prisoner being in company with the deceased and three other persons 
 at a tavern, in a friendly manner, after some time, began playing at 
 hazard; when Rich, one of the company, asked if any one would set 
 him three half crowns: whereupon the deceased, in a jocular manner, 
 laid down three halfpence, telling Rich he had set him three pieces; 
 and the prisoner at the same time set Rich three half crowns, and lost 
 them to him. Immediately after which, in an angry manner, he turned 
 about to the deceased, and said, it was an impertinent thing to set 
 halfpence, and that he was an impertinent puppy for so doing, to which 
 the deceased answered, whoever called him so was a rascal. There- 
 upon the prisoner took up a bottle, and with great force threw it at 
 the deceased's head ; but did not hit him, the bottle only brushing some 
 of the powder out of his hair. The deceased in return immediately 
 tossed a candlestick or bottle at the prisoner, which missed him; upon 
 which they both rose up to fetch their swords, which then hung up in 
 the room, and the deceased drew his svrord : but the prisoner was pre- 
 vented from drawing his by the company. The deceased thereupon 
 threw away his sword ; and the company interposing, they sat down 
 again for the space of an hour. At the expiration of that time the 
 deceased said to the prisoner, " We have had hot words, but you were 
 the aggressor; but I think we may pass it over:" and at the same time 
 offered his hand to the prisoner, who made answer, "No, damn you ; 
 I will have your blood." After which, the reckoning being paid, all 
 the company, except the prisoner, went out of the room to go home; 
 and he called to the deceased, sayiog, "Young man! come back; I 
 have something to say to you;" whereupon the deceased returned into 
 the room, and the door was closed, and the rest of the company ex- 
 cluded; but they heard a clashing of swords, and the prisoner gave 
 the deceased the mortal wound. It was also found, that at the break- 
 ing up of the company the prisoner had his great coat thrown over 
 his shoulders, and that he received three slight wounds in the fight; 
 and that the deceased, being asked upon his death-bed, whether he 
 received his wound in a manner among sword men called fair, an- 
 swered, " I think I did." It was further found that, from the throw- 
 ing of the bottle, there was no reconciliation between the prisoner and 
 the deceased. Upon these facts all the judges were of opinion that 
 the prisoner was guilty of murder; he having acted upon malice and 
 deliberation, and not from sudden passion. It should probably be 
 taken, upon the facts found in the verdict and the argument of the 
 Chief Justice, that, after the door had been shut, the parties were upon 
 an equal footing in point of preparation before the fight began in 
 which the mortal wound was given. The main point then on which 
 the judgment turned, and so declared to be, was the evidence of ex- 
 press malice, after the interposition of the company, and the parties 
 had all sat down again for an hour. Under these circumstances 
 the court were of opinion that the prisoner had had reasonable time 
 for cooling: after which, upon an offer of reconciliation from the de- 
 ceased, he had made use of that bitter and deliberate expression, that 
 he would have his blood. And again, the prisoner remaining in the 
 room after the rest of the company retired, and calling back the de- 
 
DUELLING. 207 
 
 ceased bj the contemptuous appellation of young man, on pretence of 
 having something to say to him, altogether showed, such strong proof 
 of deliberation and coolness, as precluded the presumption of passion 
 having continued down to the time of the mortal stroke. Though 
 even that would not have availed the prisoner under these circum- 
 stances: for it must have been implied, according to Mawgridge's case, 
 that he acted upon malice; having, in the first instance, before any 
 provocation received, and without warning or giving time for prepa- 
 ration on the part of Mr. Gower, made a deadly assault upon him.^ 
 
 'Not only the principals, but the seconds, in a deliberate duel, are 
 guilty of homicide.^ And with regard to other persons who are so 
 present, the question is, did they give their aid and assistance by their 
 countenance and encouragement of the principals in the contest ? 
 Mere presence is not sufficient; but if they sustain the principals by 
 their advice or presence, or if they go for the purpose of encouraging 
 and forwarding the unlawful conflict, although they do not say or do 
 any thing, yet if they are present and assisting and encouraging at 
 the moment when the pistol is fired, they are guilty of murder.^ 
 
 In a case before Williams, J., in 1843, the indictment charged a 
 person, named Munro, with the wilful murder of David Lynar Faw- 
 cett; and the prisoner, and two others, named Gulliver and Grant, 
 were charged with being present, aiding and abetting Munro in the 
 act. The death of the deceased, Colonel Pawcett, was shown to have 
 occurred on the 1st of July, in a duel, at Camden Town, in which 
 Lieutenant Munro was one of the principals, and the prisoner was said 
 to have acted as the second of the deceased. The evidence as to the 
 prisoner's identity was not very direct and positive. Williams, J., 
 (RoLFE, B., being present,) in summing up, said — The question is, 
 whether the prisoner was at the spot at the time, and whether he took 
 such a part as amounts, in the language of this indictment, to an aid- 
 ing and abetting of the principal offender. I am bound to tell you, 
 as a matter about which my learned brother and myself have no doubt, 
 (nor I believe, has any other judge any doubt about it,) that where 
 two persons go out to fight a deliberate duel, and death ensues, all 
 persons who are present on the occasion, encouraging or promoting 
 that death, will be guilty of abetting the principal offender. I give 
 them no particular name, but say, that all persons who are present, 
 aiding, assisting, and abetting that deliberate duel are within the 
 terms of such an indictment as this. With respect to the facts, there 
 is very little doubt, if any, that Colonel Fawcett was killed in a duel 
 on the day mentioned in the indictment; and if the parties went out 
 coolly and deliberately to fight the duel, then the killing by Lieute- 
 nant Munro will amount to murder; and then the question will arise, 
 whether the prisoner at the bar was present at that time aiding, as- 
 sisting, and abetting the combatants on that occasion. Lord Hale, 
 though an exceedingly sound lawyer, considered that, as far as re- 
 lated to the second of the party killed, the rule of law had been too far 
 strained; and seems to have doubted whether such second should be 
 deemed a principal in the second degree. But, if this doubt were cor- 
 rect it might be suggested, on the same principle, that Colonel Fawcet 
 
 1 K. r. Oneby, 2 Str. 766 ; 2 Ld. Raym. 1485. 
 
 3 K. V. Young, 8 C. & P. 644. ' Ibid. 
 
208 HOMICIDE. 
 
 was guilty of suicide. Such a course is straining the principles of 
 law till they become revolting to common sense. After stating the 
 evidence, his lordship left the case to the jury, who found the pri- 
 soner Not Guilty.' 
 
 II. MISADVENTURE. 
 
 Under the general head of excusable homicide, the older text 
 writers included homicide per infortuniam, or misadventure, which 
 is the subject of this section, and. homicide se et sua defendendo, 
 which is the subject of the next. The term excusable homicide 
 imports some fault in the party by whom it has been committed; 
 but of a nature so trivial that the law excuses such homicide from 
 the guilt of felony, though in strictness it deems it to be deserving 
 of some degree of punishment. It appears to be the better opi- 
 nion, says Sir William Russell,^ "that the punishment inflicted for 
 this offence was never greater than a forfeiture of the goods and 
 chattels of the delinquent, or a portion of them:^ and, from as early 
 a time as our records will reach, a pardon and writ of restitution of 
 the goods and chattels have been granted as a matter of right, upon 
 payment of the expenses of suing them out. At the present time, in 
 order to prevent this expense, it is usual for the judges to permit or 
 direct a general verdict of acquittal in cases where the death has no- 
 toriously happened by misadventure, or by self-defence." ^ 
 
 In the United States, no penalty of any kind has ever been inflicted 
 on excusable homicide ; it having been the invariable practice for the 
 court to direct the jury to acquit when this defence is made out. 
 
 Homicide by misadventure is where one without intention of bodily 
 harm, and with all proper precaution against danger, while doing a 
 lawful act, unfortunately kills another. To constitute this defence, 
 three requisites exist: 
 
 (1.) There must have been no intention to do harm. 
 
 (2.) Proper precaution must have been taken to avoid mischief. 
 
 (3.) The act must have been lawful. 
 
 (1.) There must have been no intention to do harm. 
 
 If there was any malice in the matter the oflFence becomes murder.' 
 TJius a party, the head of whose hatchet accidentally flies off, (it 
 having been properly secured,) and kills another, is guilty only of 
 misadventure, unless there was intention to do harm; in which latter 
 case it is murder .° 
 
 (2.) Proper precaution must have been taken to avoid mischief. 
 Where a person was riding a horse, and the horse, being whipt by 
 some other person, sprang out of the road, and ran over a child and 
 killed it, this was held to be misadventure only in the rider, though 
 manslaughter in the person who whipped the horse.' Where, how- 
 ever, a similar accident occurred in consequence of a carter leaving 
 his horse's head and sitting inside, it would be manslaughter,^ and 
 such indeed is the law in all cases where there is any negligence.' 
 
 1 R. V. Munro, 1 Car. & Kir. 209. ^ i Rugg. (,„ q^ gsg, s 4 Blao. Com. 188. 
 
 * Ibid.; Fost. 288. « 1 Russ, on Cr. 657. « 1 Hawk. P. C. c. 29, s. 2. 
 
 ' 1 Hawk. P. C. 29, s. 3. " Knight's case, 1 Lew. 168. » 1 Russ. on Cr. 650. 
 
MISADVENTtTEE. 209 
 
 The question in such cases is, whether the street driven in is one so 
 frequented as to make particular care necessary. If the latter be the 
 case the offence would seem to be but manslaughter. Thus, A was 
 driving a cart with four horses in the highway at Whitechapel, he 
 being in the cart, and the horses being upon a trot, threw down a 
 woman who was going the same way with a burden upon her head, 
 and killed her. Holt, C. J., Tracy, J., Baron Bury, arid the Recorder 
 Lovell, held this to be only misadventure: but it was said by Lord 
 Holt, that if it had been in a street where people usually pass, it 
 would have been manslaughter.^ 
 
 Generally speaking, where a person, driving a cart or other car- 
 riage, happens to drive over another and kill him, if the accident 
 happened in such a manner that no want of due care could be imputed 
 to the driver, it will be accidental death, and the driver will be 
 excused.^ 
 
 If workmen throw stones, rubbish, or other things from a house, in 
 the ordinary course of their business, by which a person underneath 
 happens to be killed, this will be misadventure only, if it were doB© 
 in a retired place, where there was no probability of persons passing 
 by, and none had been seen about the spot before, or if timely and 
 proper warning were given to such as might be below.^ 
 
 Though where one lays poison to kill rats, and another takes it 
 and dies, this is misadventure : yet it must be understood to have been 
 laid in such manner and place as not easily to be mistaken for proper 
 food; for that would betoken great inadvertence, and might in some 
 cases amount to manslaughter." 
 
 The owner of a corn field, having deer frequenting his corn fieM, 
 out of the precinct of any forest or chase, set himself in the night 
 time to watch in a hedge, and set A, his servant, to watch in another 
 corner of the field, with a gun charged with bullets, giving him 
 orders to shoot, when he heard any bustle in the corn by the deer. 
 The master afterwards improvidently rushed into the corn himself: 
 and the servant, supposing it to be the deer, shot and killed the 
 master. This was ruled, by Lord Hale, to be misadventure, on the 
 ground that the servant was misguided by his master's own direction, 
 and was ignorant that it was anything else but the deer. It seemed, 
 however, to Lord Hale himself, that if the master had not given such 
 direction, which was the occasion of the mistake, it would have been 
 manslaughter, because of the want of due caution in the servant to 
 shoot before he discovered his mark.* Mr. East, however, tells us 
 upon this, that if, from all the other circumstances of the case, there 
 appeared a want of due caution in the servant, it does not seem that 
 the command of the master could supply it, much less could excuse 
 him in doing an unlawful act; and that the excuse of having used 
 ordinary caution can only be admitted where death happens acci- 
 dentally in the prosecution of some lawful act.* Where a commander 
 coming upon a sentinel in the night, in the posture of an enemy, to 
 try his vigilance, is killed by him as such; the sentinel not being: 
 
 1 1 East, P. C. c. 5, ri. 38, p. 263. See ante, 112, 113. ' Fost. 263 ; 1 Hale, 476.. 
 
 3 1 Hale, 473; Fost. 262, ante, 145. ■< 1 Hale, 431 ; 1 East, P. C. s. 40, p. 26S. 
 
 6 1 Hale, 476. 
 
 14. 
 
HOMICIDE. 
 
 to distinguish his commander, under such circumstances, from an 
 ly, it is but misadventure.^ 
 
 eh caution is necessary as is usual and ordinary in similar cases — 
 ime and the utmost caution cannot be insisted upon. Thus, 
 e a man discharges a loaded pistol when he has reason to believe 
 ,s unloaded, and kill another, the weight of authority is that it 
 isadventure. Thus, Mr. Justice Foster says, that accidents of 
 amentable kind may be the lot of the wisest and best of mankind, 
 nost commonly fall amongst the nearest friends and relations; 
 ;hen proceeds to state a case of a similar accident, in which the 
 was had before himself. Upon a Sunday morning, a man and 
 ife went a mile or two from home with some neighbours, to take 
 mer at the house of their common friend. He carrifed his gun 
 him, hoping to meet with some diversion by the way; but before 
 ent to dinner he discharged it, and set it up in a private place in 
 'iend's house. After dinner he went to church: and in the eve- 
 returned home with his wife and neighbours, bringing his gun 
 him, which was carried into the room where his wife was, she 
 ig brought it part of the way. He, taking it up, touched the 
 er; and the gun went off and killed his wife, whom he dearly 
 I. It came out in evidence, that, while the man was at church, 
 son belonging to the family privately took the gun, charged it, 
 went after some game; but, before the service at church was 
 i, returned it, loaded, to the place whence he took it, and 
 e the defendant, who was ignorant of all that had passed, found 
 all appearance, as he had left it. " I did not inquire," says 
 J. Foster, " whether the poor man had examined the gun before 
 irried it home; but being of opinion, upon the whole evidence, 
 he had reasonable grounds to believe that it was not loaded, I 
 ted the jury, that if they were of the same opinion, they should 
 it him: and he was acquitted."^ 
 
 here it appeared that the defendant being in bed and asleep in 
 ouse, his maid-servant, who had hired the deceased to help her 
 3 her work, as she was going to let her out about midnight, 
 iht she heard thieves breaking open the door; upon which she 
 ip stairs to her master, and informed him thereof; who rising 
 3nly-and running down stairs with his sword drawn, the deceased 
 lerself in the buttery, lest she should be discovered. The de- 
 mt's wife, observing some person there, and not knowing her, 
 ;onceiving she had been a thief, cried out, " Here they be that 
 d undo us." Thereupon the defendant ran into the buttery in 
 ark, not knowing the deceased, but taking her to be a thief, and 
 iting with-his sword before him, killed her. This was ruled to 
 misadventure.^ 
 
 ) The act must have been lawful. 
 
 here deadly weapons are used in lawful games, the act itself 
 nes unlawful.'' Lord Hale went so far as to hold that death, 
 1 occurred in such sports and exercises as give strength, acti- 
 
 lale, 42. ^ Fost. 265. » Level's case, Cro. Car. 438; 1 Hale, 42, 474. 
 
 lale, 475; Fost. 289. 
 
JUSTIFIABLE HOMICIDE. 211 
 
 vity, and skill in the use of arms, and are entered into as private re- 
 creations amongst friends, snch as playing at cudgels, or foils, or 
 wrestling by consent, was manslaughter;' but such is not the law.^ 
 And certainly, as remarks a more recent writer, though it cannot be 
 said that they are altogether free from danger, yet they are very 
 rarely attended with fatal consequences, and each party has friendly 
 warning to be on his guard. Proper caution and fair play Bliould, 
 however, be observed; and, though the weapons used be not of a 
 deadly nature, yet if they may breed danger, there should be due 
 warning given, that each party may start upon equal terms. For, if 
 two be engaged to play at cudgels, and the one make a blow at the 
 other, likely to hurt, before he is upon his guard, and without warn- 
 ing, from whence death ensues, the want of due and friendly caution 
 will make such act amount to manslaughter, but not to murder, 
 the intent not being malicious.' 
 
 Where persons shoot at game, or butts, or any other lawful object, 
 and a bystander is killed:* and with respect to the lawfulness of 
 shooting at game, it may be observed, that though the party be not 
 qualified, the act will not be so unlawful as to enhance the accidental 
 killing of a bystander to manslaughter.^ 
 
 III. EXCUSE AND JUSTIFICATION. 
 
 Excusable homicide has already been considered, so far as concerns 
 death, by misadventure. Among the older text writers, however, it 
 was more generally treated as forming a distinct branch of the law of 
 self-defence. It was held that where a man kills another in the course 
 of a sudden brawl or quarrel, he may protect himself by making it ap- 
 pear, first, that before a mortal blow was given he had declined further 
 combat; and secondly, that he killed his adversary through necessity. 
 This species of homicide was termed chance medley, or chaud medley. 
 As, however, the distinction between it and justifiable homicide in 
 this country no longer exists, — in each case the practice being for an 
 unqualified acquittal to be entered, — the two branches will be consi- 
 dered together under the following heads : — 
 1st. Repulsion of a felonious assault. 
 (1.) On person, 
 (a.) What the nature of the assault must be. 
 (6.) How far retreat is necessary, 
 (c.) What certainty must exist as to felonious intent. 
 (d.) By whom the right may be exercised, 
 (e.) How far want of premeditation is necessary. 
 (2.) On property. 
 2d. Execution of the law. 
 3d. Killing of fugitives from arrest. 
 4th. Self-preservation in shipwreck. 
 
 » 1 Hale, 472. 2 Fost. 260; 1 East, P. C. c. 5, s. 41, p. 268. 
 
 n East, P. C. c. 25. * 1 Hale, 38; 1 Kuss. ou Cr. 660. 
 
 1 Hale, 475; Fost. 259; 1 Euss. on Cr. 660. 
 
HOMICIDE. 
 
 t. Repulsion of a felonious assault. 
 (1.) On person. 
 
 (a.) What the nature of the assault must be. 
 lance medley is thus defined by Sir Wm. Russell : ' " Homicide upon 
 ice medley borders very nearly upon manslaughter ; and, in fact 
 experience, the boundaries are in some instances scarcely per- 
 ible, though in consideration of law they have been fixed. In 
 cases it is supposed that passion has kindled on each side, and 
 'S have passed between the parties; but, in the case of manslaugh- 
 t is either presumed that the combat on both sides had continued 
 le time the mortal stroke was given, or that the party giving such 
 ce was not at that time in imminent danger of death.^ And the 
 criterion between them is stated to be this; when both parties 
 ictually combatting at the time the mortal stroke is given, the 
 !r is guilty of manslaughter; but if the slayer has not begun to 
 , or (having begun) endeavours to decline any further struggle, 
 afterwards, being closely pressed by his antagonist, kills him to 
 i his own destruction, this is homicide excusable by self-defence."'' 
 hen a man is assaulted in the course of a sudden brawl or quar- 
 be may, in some cases, protect himself by killing the person who 
 ilts him, and excuse himself on the ground of self-defence. But, 
 •der to entitle himself to this plea, he must make it appear, first, 
 before a mortal stroke given he had declined any further combat; 
 idly, that he then killed his adversai'y through mere necessity, 
 ■der to avoid immediate death. Under such circumstances, the 
 ig will be excusable self-defence, sometimes expressed in the law 
 le word chance medley, or (as it has been written by some,) chaud 
 ey, the former of which, in its etymology, signifies a casual aflfray ; 
 atter an aff'ray in the heat of blood, or passion. Both of them are 
 .y much of the same import ; but the former has, in common 
 jh, been often erroneously applied to any manner of homicide by 
 iventure; whereas it appears it is properly applied to such kill- 
 is happens in self-defence upon a sudden rencounter." 
 ) justify an acquittal on the ground of self-defence, the danger 
 have been actual and urgent," as will be presently seen more 
 under a subsequent head. No contingent necessity will avail; 
 svhen the pretended necessity consists of the as yet unexecuted 
 linations of another, the defendant is not allowed to justify himself 
 jason of their existence.^ 
 
 hen an attack not in itself felonious is threatened, the rule 
 ges. If one man deliberately kill another to prevent a mere 
 lass on his property, whether that trespass could or could not be 
 •wise prevented, it is murder; and consequently, an assault with 
 ;t to kill cannot be justified on the ground that it was necessary 
 event a trespass on property.'' If such killing take place in the 
 
 iuss. on Cr. 661. 2 Fost. 275, 276. 
 
 Blae. Com. 184. < Ibid. 
 
 S. V. Vigol, C. C. 2 Dallas, 346; Com. v. Crause, 3 Am. L. J. 399: People v. Doe, 
 n. (Mich.) 451; Oliver v. State, 17 Ala. 537. 
 
 lople V. M'Leod, 1 Hill, N. Y. R. 377; State v. Morgan, 3 Iredell, 18S. 
 ite V. Morgan, 8 Ired. 186 ; Com. v. Drew, 1 Mass. 304; Munroe v. State, 5 Ga. 95 ; 
 V. State, 17 Ala. 588. See ante, 170. 
 
REPULSION OP FELONIOUS ASSAULT. 213 
 
 passion and heat of blood, the killing is manslaughter, but under no 
 circumstances can it be less. ,For the rule of law is, that where such 
 trespass is barely against the property of another, not his dwelling- 
 house, it is not a provocation sufficient to warrant the owner in using 
 a deadly weapon; and if he do so, and with it kill the trespasser, this 
 will be murder, because it is an act of violence beyond the provoca- 
 tion: but if the injury be inflicted with an instrument, and in a man- 
 ner not likely to kill, and the trespasser should, notwithstanding, 
 happen to be killed, it will be no more than manslaughter, the law so 
 far recognising the adequacy of the provocation arising from the tres- 
 pass.' The rule, however, does not apply to any crime unaccompanied 
 with force, as picking of pockets.^ 
 
 (6.) How far retreat is necessary. 
 
 In cases of personal conflict in order to prove this defence, it must 
 appear that the party killing had retreated, either as far as he could, 
 by reason of some wall, ditch, or other impediment, or as far as the 
 fierceness of the assault would permit him.^ 
 
 There may be cases sometimes occurring, though very rare, and of 
 dangerous application, where a man, in case of personal conflict, may 
 kill his assailant without retreating to the wall. The assault may 
 have been so fierce as not to allow him to yield a step, without mani- 
 fest danger of his life, or enormous bodily harm; and then, in his de- 
 fence, if there be no other way of saving his own life, he may kill 
 his assailant instantly. The distinction between this kind of homicide 
 and manslaughter is, that here the slayer could not otherwise escape, 
 although he would; in manslaughter, he would not escape if he could. 
 Thus, if A assault B, so fiercely that giving back would endanger his 
 life, (in such case it is agreed that the party thus attacked need not 
 retreat in order to bring his case within the rule of necessity in self- 
 defence,) or if, in the assault, B fall to the ground, whereby he could 
 not fly, in such case if B kill A it is in self-defence upon chance- 
 medley.'' In Selfridge's case,' this proposition was relied upon 
 by the court as the main principle of law in connexion with the 
 issue, though perhaps an error was committed in stating it with- 
 out the usual common law qualifications. Thus, as is said by Mr. 
 East, if B, in the case already put, had returned A's assault so fiercely 
 that he could not retreat without danger; or if A had fallen to the 
 ground, and then had killed B who was aiming at his life, still this 
 should not be interpreted to be done in self-defence upon chance-medley, 
 because, it has been said, a fall not being voluntary as a flight is, 
 it does not thereby appear that A declined fighting; and, therefore, 
 B cannot safely quit the advantage he has gotten. So that in the case 
 of the assailant there must be an actual unequivocal retreat and quit- 
 ting of the combat as far as he can, in order to reduce the killing by 
 
 • Com. V. Daley, 4 Pa. L. J. 154; Claxton v. State, 2 Humph. 181. 
 
 2 1 Hale, 488. 
 
 3 1 Hale, 481, 483; State v. Wells, Coxe, 424; U. States v. Travers, U. S. Cir. Court, 
 2 Wheeler's C. C. 498, 507, per Story, J.; R. v. Smith, 8 C. & P. 160; Oliver v. State, 
 17 Ala. 587. 
 
 * 1 Hawk. c. 29, s. 14; 4 Blac. Com. 185; 3 Inst. 56. 
 ' See Selfridge's case, ante, 171. Post, Appendix. 
 
214 HOMICIDE. 
 
 him to self-defence upon chance-medley, and this his intention must 
 not be shown by any ambiguous or casual act, such as his falling; 
 otherwise, as Lord Hale observes, all cases of murders or manslaughters 
 would by interpretation be turned into self-defences. Nor in any 
 case will a retreat avail, if it be feigned in order to get an opportu- 
 nity or interval by parting to enable him to take advantage of this 
 excuse. If there be any pause in the conflict, or any slowness in the 
 defendant in neglecting any opportunity to withdraw from it, the of- 
 fence becomes manslaughter; for it is not to be tolerated that the plea 
 of necessity should be received when that necessity was the result of 
 the defendant's own election.' 
 
 Where, in the course of the quarrel, the prisoner was menaced by 
 the deceased, whose strength was greater than his own, with a brick- 
 bat, and could have escaped by flight, but not choosing to do so, turned 
 round and mortally wounded his assailant with a dagger which he 
 had concealed on his person, it was held manslaughter.^ 
 
 If the attack of the deceased be for a moment desisted in, and the 
 defendant, on his own part, renew the conflict, the killing is no 
 longer excusable. Where, in a case in New York, the deceased had 
 pursued the defendants, who were women, for some distance, till he 
 stopped to tie his shoe, when one of them turned and gave him a 
 mortal blow, it was held manslaughter; first, because the defendants 
 were not pursued to the wall, and secondly, because the deceased 
 had desisted temporarily from the pursuit.^ 
 
 Where the prisoner was a lodger at a house to which there was a 
 backway, of which the prisoner was ignorant, it being the first night 
 he had lodged at the house, and some persons split open the door of 
 the house in order to get the prisoner out and ill treat him; Bayley, 
 J., is reported to have said, "If the prisoner had known of the back- 
 way, it would have been his duty to have gone out backwards, in 
 order to avoid the conflict.^ But it has been thought that the pro- 
 tection of the house extends to each and every individual dwelling 
 in it, and it has been held that a lodger might justify killing a person 
 endeavouring to break into the house where he lodged, with intent 
 to commit a felony in it.' 
 
 (c.) What certainty must exist as to felonious intent. 
 
 There must be an intention on the part of the person killed to rob, 
 or murder, or to do some extreme bodily injury to the person kill- 
 ing; or the conduct of the party must be such as to render it necessary 
 on the part of the party killing to do the act in self-defence.* And 
 the rule clearly extends only to cases of felony; for if one come to 
 beat another, or to take his goods merely as a trespasser, though the 
 owner may justify tlie beating of him, so far as to make him desist, 
 yet if he kill him, it is manslaugliter.^ 
 
 ' Fost. 277i 1 Hawk. c. 29, s. 17. ^ People v. Anderson, 2 Wheeler's C. C. 408. 
 
 5 People V. Garrettson, 2 Wheeler's C. C. 348. 
 * Dakin's case, 1 Lew. 166. 
 
 5 R. V. Cooper, Cro. C. 544- see 1 East, P. C. c. 5, s. 57, p. 289; Fost. 274, and Ford's 
 o.ise, Kel. 51 . 
 
 « R. i>. Ball, 8 C. & P. 160; 9 C. & P. 22. 
 
 ' 1 Hale, 485 ; 1 Hawk. P. C. c. 28, s. 23 ; see State v. Zellers, 2 Halsted, 8 C. & P. 160. 
 
JUSTIFIABLE IN SELF-DEFENCE. 215 
 
 No assault, however violent, vfiW justify killing the assailant under 
 the plea of necessity, unless there be a plain manifestation of a felo- 
 nious intent. As a general rule, there cannot be an acquittal, unless 
 there is reasonable evidence of such intent. This evidence, how- 
 ever, must be gauged by the defendant's opportunities at the time, 
 and if he have reasonable grounds to believe a felony to be intended, 
 it makes no matter that such was really not the case. Thus, if a man 
 assaults another with a pistol in such a manner as to produce the be- 
 lief that he is about to take life, it makes no matter whether the pis- 
 tol was loaded or not.^ 
 
 It is manifest that very embarrassing questions will here arise, as 
 to whether the test to be applied is the defendant's capacity, or the 
 capacity of the jury trying the case. If the latter be the case, the 
 question will be of comparatively easy solution. It will be only 
 necessary for the jury to examine the res gesfce, and to determine 
 whether, from them, a reasonable belief of an intended felony can be 
 deduced. But if the defendant's capacity is to be taken as the stand- 
 point, the inquiry is widely extended. In the first place, it involves 
 the temperament, nervous and intellectual, of the defendant, as well 
 as his means for physical resistance. In the second place, it in- 
 volves the same qualities in the deceased, so far as they could have 
 been supposed to have been known to the defendant at the collision.^ 
 For, adopting this point of view, it would be absurd to say that a 
 child or an imbecile person would not have much greater reason to 
 apprehend a felonious assault from an incensed lunatic who was dart- 
 ing towards him with the appearance of an assailant, than would the 
 lunatic from the attack of the imbecile or child. And if we admit a 
 distinction in this case, it would be difficult to refuse to receive evi- 
 dence of the nervous and physical texture of the defendant and the 
 deceased in all others.' It is clear, however, that to do so would be 
 to yield to a very dangerous latitude in the trial of a case which 
 would not only require a departure from the established common 
 law principle, that the deceased's character cannot be brought into 
 controversy, (as will be presently more fully seen;) but would open 
 a number of complicated side issues. Without intending, however, 
 to hazard a solution how far the difficulties thus opened may be recon- 
 ciled, it is sufficient for the present purpose to collect the cases which 
 have arisen on this particular point. 
 
 The prisoner, who was indicted for the murder of his brother, ap- 
 peared to have come home drunk on the night the fact was committed : 
 his father ordered him to go to bed, which he refused to do: where- 
 upon a scuffle happened between the father and son. The deceased, 
 who was then in bed, hearing the disturbance, got up, threw the pri- 
 soner on the ground, and fell upon him and beat him ; the prisoner 
 lying upon the ground with his brother upon him, not being able to 
 avoid his blows or make any escape from his hands, and as they were 
 striving together, the prisoner gave his brother the mortal wound 
 with a penknife. At a conference of all the judges after Michaelmas 
 term, 1704, it was unanimously holden to be manslaughter; for there 
 did not appear to be any inevitable necessity, so as to excuse the kill- 
 
 1 1 Rub. on Cr. 669; Wh. C. L. 2d edit. 390, ante, 171. 
 
 2 See post, sects, t. vi., in this chapter, Tvhere the characters of the defendant and de- 
 ceased are fully treated. ^ Ibid. 
 
216 HOMICIDE. 
 
 ing in that manner. The deceased did not appear to have aimed at 
 the prisoner's life, but only to have intended to chastise him for his 
 misbehaviour to his father; and to excuse homicide upon the ground 
 of self-defence, there must always appear to have been such a degree 
 of necessity as may reasonably be deemed inevitable.^ At the con- 
 ference in the above case Powell, J., put the case; if A strike B with- 
 out any weapon, and B retreat to a wall, and there stab A, that will 
 be manslaughter; which Holt, Chief Justice, said was the same as the 
 principal case : and that was not denied by any of the judges. For it 
 cannot be inferred from the bare act of striking, that the intent was 
 death ; and without there be a plain manifestation of a felonious in- 
 tent, no assault will justify killing the assailant. The question 
 whether there was such "a plain manifestation" is to be tested by the 
 defendant's disposition and temper, not that of the jury.^ 
 
 Mawgridge, on words of anger, threw a bottle witli great force at the 
 head of Mr. Cope, and immediately drew his sword, upon which Mr. 
 Cope returned a bottle with equal violence;^ and it was held that this 
 was lawful and justifiable on the part of Mr. Cope, on the ground that 
 he that has manifested malice against another, is not fit to be trusted 
 with a dangerous weapon in his hand.' There seems to have been 
 good reason for Mr. Cope to have supposed that his life was in dan- 
 ger; and it was probably on the same ground that the judgment on 
 Ford's case proceeded. Mr. Ford being in possession of a room at a 
 tavern, several persons insisted on having it, and turning him out, 
 which he refused to submit to; thereupon they drew their swords 
 upon Mr. Ford and his company, and Mr. Ford drew his sword, and 
 killed one of them : and this was adjudged justifiable homicide.'' For 
 if several attack a person at once with deadly weapons, as may be 
 supposed to have happened in this case, though they wait till he be 
 upon his guard, yet it seems, (there being no compact to fight) that 
 he would be justified in killing any one of the assailants in his own de- 
 fence; because so unequal an attack resembles more a degree of assas- 
 sination than of combat.' 
 
 It was said, in Selfridge's case, that when, from the nature of the 
 attack, there is reasonable ground for a man to believe that there is 
 a design to destroy his life, or commit any felony upon his person, 
 the killing the assailant will be excusable homicide, although it should 
 afterwards appear that no felony was intended. The principle has 
 been pushed still further in Tennessee, where it has been ruled, that 
 if a man, though in no danger of serious bodily harm, through fear, 
 alarm, or cowardice, kill another, under the impression that great 
 bodily injury is about being inflicted upon him, it is neither man- 
 slaughter nor murder, but self-defence.' Perhaps, as illustrated by 
 the learned judge who pronounced it, the doctrine given in Selfridge's 
 trial is law, and when received with such qualification, together with 
 the case in Tennessee, may be accepted as in accordance with the 
 principles of the common law. The illustration given by Parker, J., 
 shows that he limited the application of the principle to cases where 
 
 1 1 East, p. C. 277 ; Pierson v. State, 12 Ala. 149. a Ibid. 
 
 » Kel. 128, 129. * Ford's case, Kel. 51. 
 
 5 1 East, P. C. c. 5, s. 47, p. 276. « Granger v. State, 6 Yerger, 469. 
 
SKLP-DEPENCE. 217 
 
 not only there is reasonable ground to believe that there is a design 
 to destroy life, but where that reasonable belief is based, not on sur- 
 mises or inferences, however intelligent, but on an actual, immediate 
 and physical attack from the assailant. "A, in the peaceable pursuit 
 of his affairs," he said, "sees B rushing rapidly towards him with an 
 outstretched arm and a pistol in his hand, and using violent menaces 
 against his life as he advances. Having approached near enough in 
 the same attitude, A who has a club in his hand, strikes B over the head 
 before, or at the instant the pistol is discharged, and of the wound 
 B dies. It turns out that the pistol was loaded with powder only, 
 and that the real design of B was only to terrify A. Will any reason- 
 able man say that A is more criminal than he would have been if 
 there had been a bullet in the pistol?" It will be noticed, first, that 
 B employed a weapon likely to kill, and accompanied it with menaces 
 of killing; secondly, that the parties were in actual conflict at the 
 time; and thirdly, that A used a weapon not in itself mortal. With 
 such restrictions, the rule in Selfridge's case is the same with that 
 which obtainsin_England, and is now the settled law of this coun- 
 try. TEus, in''T'case^'gre£rrffi^eht,'Trwas said by the' Supreme 
 Court of New York: '-A force which the defendant has a right to 
 resist, must itself be within striking distance. It must be menacing, 
 and apparently able to' inflictrihy«i«al injury, Jial-ess- pre vented-by- 
 the resistance he opposes." '^^^yihe right of resorting to force upon the 
 principle of self-defence, it was laid down, does not arise while the 
 apprehended mischief exists in machination only; nor does it con- 
 tinue so as to authorize violence by way of retaliation or revenge for 
 a past injury.^ And scJ it has been held in North Carolina, that a 
 belief that a person designs to kill me will not prevent my killing 
 him from being murder, unless he is making some attempt to execute 
 his design, or, at least, is in an apparent situation to do so, and 
 thereby induces me reasonably to think that he intends to do it 
 immediately.^ 
 
 It is admissible for the defendant to show threats or other circum- 
 stances of a recent character, which would tend to make a man of his 
 character believe that his life was in danger.'' 
 
 The extent to which the character of the deceased can be considered 
 in such an issue, falls under a following section.' 
 
 The following opinions bear with peculiar force upon the question 
 under examination: — "The statute," (of New York) says Marvin, J., 
 "specifies the cases of justifiable homicide." By the second subdi- 
 vision of that section, the homicide is justifiable when committed 'in 
 the lawful defence of such person, or his or her husband, wife, parent, 
 child, master, mistress, or servant, when there shall be reasonable 
 ground to apprehend a design to commit a felony, or to do some great 
 personal injury, and there shall be imminent danger of such design 
 being accomplished.' The charge is very nearly in the language of 
 this section. It is argued, however, that if the prisoner did appre- 
 hend a design on the part of Brush, to do him some great personal 
 
 1 People V. M'Leod, 1 Hill, 420. « People «. M'Leod, 1 HiU, 377. 
 
 3 State V Green, 4 Iredell, 409. 
 
 * Monroe v. State, 5 Geo. 85 ; People v. Shorter, 4 Barb. 460. ^ 4 Post, sects, y. ti. 
 
 « 2 R. S. 660, s. 3. 
 
218 HOMICIDE. 
 
 injury, and believed he was in great danger, he had then a right to 
 act upon that belief, and take the life of Brush; although there was 
 no actual imminent danger. In other words, if he believed in the dan- 
 ger, he had a right to act as though the danger was actually present, 
 and the injury about to be inflicted upon him, and that the conse- 
 quences of tliis mistaken belief must fall upon the deceased, and the 
 prisoner must, in the eye of the law, stand entirely justified. Several 
 particulars are to be noticed in this section, as applicable to the pre- 
 sent case. The homicide, if justifiable, must have been committed 
 in the lawful defence of the person of the prisoner, at a time when 
 there was reasonable ground to apprehend a design to do him some 
 great personal injury. Who is to judge of the reasonable ground to 
 apprehend a design to do injury? The grounds must be made to ap- 
 pear on the trial, and the jury must be satisfied that they were rea- 
 sonable grounds upon which to found an apprehension of a design to 
 commit the felony, or to do some great personal injury. It is true 
 the party assailed must, at the time, judge of the ground for his ap- 
 prehension; but he judges and decides at his peril, so far as the 
 question of entire justification is concerned. It will not do to hold 
 that he who has taken the life of another is entirely justifiable wlien 
 he acts upon unreasonable grounds of apprehension, though he may 
 have acted upon an honest apprehension of a design, on the part of 
 the person killed to commit a felony, or to do him some great bodily 
 injury. In such a case, the crime mightr be only manslaughter, and 
 that too of the lowest degree. But to justify the act of killing in 
 such a case, would be to establish a rule for the security of human 
 life, resting upon the uncertain apprehension of men who may act 
 upon unreasonable and improbable grounds. The statute also adds 
 this farther condition : — " And there shall be imminent danger of such 
 design being accomplished." The language is here changed. The 
 question no longer depends upon reasonable grounds to apprehend im- 
 minent danger, from which a belief may be formed. 
 
 " It is, to my mind, clear and explicit, and requires that there 
 should be imminent danger of the commission of a felony or of some 
 great personal injui-y. The man assaulted may have reasonable ground 
 to apprehend a design on the part of his assailant to do him some 
 great personal injury, and yet there may in fact be little or no dan- 
 ger of the accomplishment of the design. Suppose the party com- 
 mitting the assault was unarmed, and weak, and infirm as compared 
 with the party assaulted, and this disparity of strength is such that 
 the party assaulted is able to protect his person from injury. The 
 imminent danger of accomplishing the design would not exist, and 
 yet the design may have been fully formed and manifested in a way 
 so as to leave no doubt of it. In such a case the killing of the assail- 
 ant could not be justified. 
 
 "What is meant in the statute by "such design?" Does this lan- 
 guage imply that a design to commit a felony, or to do some great 
 personal injury, had been actually formed? If so, then a reasonable 
 ground to apprehend a design, &c., as declared in the previous part 
 of the section, is not sufficient; but there must be added to it not only 
 the imminent danger, but the actual design. This is not the true 
 construction of the language. If there is a reasonable ground to ap- 
 
SELF-DEFENCE— WHEN SUFFICIENT. 219 
 
 prehend the design, and there is imminent danger that such apprehend- 
 ed design will be accomplished, it is sufficient. The party assailed 
 may have reasonable ground to apprehend a design on the part of 
 the assailant to kill him, and he may be in imminent danger from the 
 acts of the assailant, of being killed, and yet his assailant may not 
 have formed the design to kill him or to do him great personal injury. 
 His acts may, however, bo such as actually to put the life of the per- 
 son assailed in imminent danger. In such a case, the killing would 
 be justifiable. I am satisfied that the legislature considered the com- 
 mon law carefully, and that they adopted it, in the section relating to 
 justifiable homicide, and that they have thereby provided that a homi- 
 cide shall not be justifiable unless there was, first, reasonable ground 
 to apprehend a design to commit a felony, or to do some great bodily 
 injury; and, secondly, there was imminent danger of such appre- 
 hended design being accomplished; that is, that there was imminent 
 danger that a felony would in fact be committed, or that some great 
 personal injury would be inflicted, unless the party was arrested by 
 death. If I am right in this construction of the statute, the charge 
 of the learned justice was in strict accordance with the law." 
 
 "When one who is without fault himself," said Bronson, J., when 
 the same case was in the Court of Errors, "is attacked by another in 
 such a manner or under such circumstances as to furnish reasonable 
 ground for apprehending a design to take away his life, or do him 
 some great bodily harm, and there is reasonable ground for believing 
 the danger imminent that such design will be accomplished, I think 
 he may safely act upon appearances, and kill the assailant, if that be 
 necessary to avoid the apprehended danger; and the killing will be 
 justifiable, although it may afterwards turn out that the appearances 
 were false, and there was in fact neither design to do him serious in- 
 jury, nor danger that it would be done. He must decide at his peril 
 upon the force of the circumstances in which he is placed, for that is 
 a matter which will be subject to judicial review. But he will not 
 act at the peril of making that guilt, if appearances prove false, 
 which would be innocence had they proved true. I cannot better 
 illustrate my meaning than by taking the case put by Judge, afterwards 
 Chief Justice Parker, of Massachusetts, on the trial of Thomas 0. Sel- 
 fridge. 'A, in the peaceable pursuit of his affairs, seesB walking 
 rapidly towards him, with an outstretched arm and a pistol in his 
 hand, and using violent menaces against his life as he advances. 
 Having approached near enough in tlie same attitude. A, who has 
 a club in his hand, strikes B over the head, before, or at tiro instant 
 the pistol is discharged; and of the wound B dies. It turns out 
 that the pistol was loaded with powder only, and that the real_ de- 
 sign of B was only to terrify A.' Upon this case the judge inquires, 
 ' Will any reasonable man say that A is more criminal than he would 
 have been if there had been a ball in the pistol ? Those who hold 
 such doctrine must require, that a man so attacked, must, before he 
 strikes the assailant, stop and asWtain how the pistol was loaded; a 
 doctrine which would entirely take away the right of self-defence. 
 And when it is considered that the jury who try the cause, and not 
 the party killing, are to judge of the reasonable grounds of his ap- 
 prehensions, no danger can be supposed to flow from this principle.' 
 
220 
 
 HOMICIDE. 
 
 The judge had before instructed the jury, ' that when from the nature 
 of the attack, there is reasonable ground to believe that there is a de- 
 sign to destroy his life, or commit any felony upon his person, the kill- 
 ing of the assailant will be excusable homicide, although it should after- 
 wards appear that ho felony was intended.' To this doctrine I fully 
 subscribe. A diiferent rule would lay too heavy a burden on poor hu- 
 manity. I have stated the case of Selfridge the more fully, because 
 it is not only an authority in point, but it is one which the revisers 
 professed to follow in framing our statute touching this question. I 
 shall not stop to consider the common law distinctions between justifi- 
 able and excusable homicide; because our statute has placed killing 
 in self-defence under the head of justifiable homicide.* The Massa- 
 chusetts case lays down no new doctrine. The same principle was 
 acted on in Levett's case, recited by Jones, J., in Cook's case,^ to the 
 fbl|x)wing effect. Levett was in bed with his wife, and asleep, in the 
 rnlght, when the servant ran to them, in fear, and told them that 
 thieves were breaking open the house. He arose suddenly, and taking 
 a drawn rapier in his hand, went down, and was searching the entry 
 for thieves, when his wife espying some one whom she knew not in 
 the buttery, cried out to her husband in fear, ' Here they be that would 
 undo us.' Levett thereupon hastily entered the butteryin the dark, not 
 knowing who was there, and thrusting his rapier before him killed 
 Frances Freeman, who was lawfully in the house, and wholly with- 
 out fault. On these facts, found by special verdict, the court held, 
 that it was not even a case of manslaughter, and the defendant was 
 wholly acquitted. Now here, the defendant acted upon information and 
 appearances, which were wholly false, and yet as he had reasonable 
 y grounds for believing them true, he was held guiltless. Foster'' says of 
 this case, 'Possibly it might have been better ruled manslaughter at 
 common law, due circumspection not having been used.' I do not under- 
 stand him as questioning the principle of the decision, butas only express- 
 ing a doubt whether the principle was properly applied. He calls it no- 
 thing more than a case of manslaughter, when, if a man may not act upon 
 appearances, it was a plain case of murder. So far as I have observed, 
 no other writer upon criminal law has questioned, in any degree, the 
 decision in Levett's case; and most of them have fully approved it. 
 East in his Pleas of the Crown,'' has done so. Hale* mentions it 
 among cases where ignorance of the fact will excuse from all blame. 
 Hawkins,^ says the killing has not the appearance of a fault. Russell^ 
 approves the decision, which he introduces with the remark, that 
 'important considerations will arise in cases of this kind, (he was 
 speaking of homicide in defence of one's pei-son, habitation or pro- 
 perty) as to the grounds which the party killing had for supposing 
 that the person slain had a felonious design against him; more espe- 
 cially where it afterwards appears that no design existed. Roscoe ' 
 says, 'it is not essential that an actual felony should be about to be 
 committed in order to justify the killing. If the circumstances are 
 
 ' Selfridge's trial, p. 160; 1 Rusa. on Cr. 699, ed. of '24; p. 485, note, ed. of '36. 
 
 2 2 R. S. 660, s. .3. 3 Cro. Car. 538. 
 
 * Crown Law, p. 299. « Vol. i. p. 274, 375. 
 
 « 1 P. C. 42, 474. , , ' 1 P. C. 84, Carwood's cd. 
 
 6 1 Euss. on Cr. 550, ed. of '36. ' 9 Crim. Ev. 639. 
 
SELF-DEFENCE — WHEN AN EXCUSE. 221 
 
 such as that,- after all reasonable caution, the party suspects that the 
 felony is about to be immediately committed, he will be justified.' 
 And he then gives Levett's as an example. 
 
 " The case of Sir William Hawksworth, who through his own fault, 
 was shot by the keeper of his park, who took him for a stranger who 
 had come to destroy the deer, went upon the same principle.' Other 
 Cases are put in the books, where the killing will be justified by the ap- 
 pearances, though they afterwards proved false. A general, to try 
 the courage or vigilance of his sentinel, comes upon the sentinel, in 
 the night, in the posture of an enemy, and is killed. There the igno- 
 rance of the sentinel, that it was his general, and not an enemy, will 
 justify the killing.^ The case mentioned by Lord Hale, which was be- 
 fore him at Peterborough, where a servant killed his master, sup- 
 posing he was shooting at deer in the corn, in obedience to his mas- 
 ter's orders, belongs to the same class." In Hampton's case," the de- 
 fendant killed his wife with a pistol which he had found in the street, 
 after ascertaining, as he supposed, by a trial with the ramrod, that it 
 was not loaded, though in fact it was charged with two bullets. This 
 was adjudged to be manslaughter, and not merely misadventure. Fos- 
 ter ' calls this a hard case, and thinks the man should have been wholly 
 acquitted, on the ground that he exercised due caution, the utmost 
 caution not being necessary in such cases. But if the decision was 
 right, as I am inclined to think it was, for the want of proper cau- 
 tion, still the case goes on the ground that the degree of guilt may 
 be affected by appearances which afterwards prove false; for if he 
 had not tried the pistol, it would have been murder. Foster* mentions 
 a case which was tried before him, where the prisoner had shot his 
 wife with a gun, which he supposed was not loaded. The judge being 
 of opinion that the prisoner had reasonable ground to believe the 
 gun was not loaded, directed the jury, that if they were of the same 
 opinion, they should acquit the prisoner; and he was acquitted. In 
 Meade's case,'' the prisoner had killed with a pistol one of a great num- 
 ber of persons, who came about his house in the night time, singing 
 songs of menace, and using violent language. Holroyd, J., told the 
 jury, that if there was nothing but the song, and no appearance of 
 violence, if they believed there was no reasonable ground of ap- 
 prehending danger, the killing was murder. And in the People v. 
 Eector,^ Cowen, J., said, alarm on the part of the prisoner, on appa- 
 rent though unreal grounds, was pertinent to the issue. In the U. S. 
 V. Wiltberger,' the judge told the jury, that for the purpose of justi- 
 fying the killing, the intent of the deceased to commit a felony must 
 be apparent, which would be sufficient, although it should afterwards 
 turn out that the real intention was less criminal, or even innocent. 
 He afterwards added, that the danger must be imminent; meaning 
 undoubtedly, that it must wear that appearance. The State v. Willis,'" 
 is entirely consistent with this doctrine. The Supreme Court of Ten- 
 
 1 1 Hale, p. C. 40 ; 1 East, P. C. 275 ; 1 Euss. on Cr. 549. 
 
 2 1 Hale P. C. 42; 1 East, 275; 1 Russ. 540. 
 
 » 1 Hale, P. C. 40, 476; 1 Russ. 540. « Kel. Rep. 41. 
 
 5 Crown Law, 263, 264. « Post. 265. 
 
 ' 1 Lewln's Cr. C. 184. ' 19 Wend. 569. 
 
 9 3 Wash. C. C. 515, 521. " 1 Cox, N. J. Kep. 424. 
 
222 HOMICIDE. 
 
 nessec, has gone still further, and held that one who kills another, be- 
 lieving himself in danger of great bodily harm, will be justified, al- 
 though he acted from cowardice, and without any sufficient ground, 
 in the appearances for the killing.^ This was, I think, going too far. 
 It is not enough that the party believed himself in danger, unless the 
 facts and circumstances were such that the jury can say he had rea- 
 sonable grounds for his belief. 
 
 " We have been referred to two cases where it was said, in substance, 
 that the killing must be necessary ;" and other authorities to the same 
 effect might have been cited. The life of a human being must not be 
 taken upon slight grounds; there must be a necessity, either actual or 
 apparent, for the killing, or it cannot be justified. That, I think, is 
 all that was meant Ijy such remarks as have been mentioned. 
 
 "The unqualified language that the killing must be necessary has, I 
 think, never been used when attention was directed to the question 
 whether the, accused might not safely act upon the facts and circum- 
 stances as they were presented at the time. I have met with no au- 
 thority for saying, that a homicide which would be justifiable had ap- 
 pearances proved true will be criminal when they prove false. 
 
 "But it is said that our statute has changed the rule of the common 
 law on this subject; and that there must in fact be danger of great 
 bodily harm, or the killing cannot be justified. We know that such 
 a change was not intended by the revisers, for they said in their notes, 
 that the provision was ' according to the views of most of the writers 
 upon the subject, and the express decisions in Massachusetts and New 
 Jersey.' Those writers and decisions have already been noticed. As 
 I read the statute, it affirms the rule in common law. The words are, 
 homicide in self-defence is justifiable ' when there shall be a reason- 
 able ground to apprshend a design to commit a felony, or to do some 
 great personal injury, and there shall be imminent danger of such design 
 being accomplished.'^ The words 'imminent danger' in the last branch 
 of the clause, do not mean, as the argument for the prisoner assumes, 
 that there must in fact be an impending evil which is ready to fall; 
 but only that there is a threatened evil, or one which appears as if it 
 were ready to fall. There must be reasonable ground to apprehend 
 a wicked design, and apparent danger that such design will be accom- 
 plished. It is enough, by the express words of the statute, that there 
 is reasonable ground to apprehend a wicked design; and it is absurd 
 to suppose that such a provision was immediately followed by another, 
 that the danger of the apprehended design being accomplished, must 
 be actual, and not merely apparent. Such a construction would make 
 the last part of the clause nullify the first, for if there must be actual 
 danger that the design will be accomplished, there must of necessity 
 be an actual design to be accomplished." ■• 
 
 In a late case in Ohio the following opinion was delivered. "The 
 fifth error assigned is, that the court erred and misdirected the jury 
 in the charge delivered to them as to the law of homicide in self- 
 defence, and in refusing certain charges asked by the accused. The 
 
 ' Grainger v. The State, 5 Yerger, 459. 
 
 2 R. V. Smith, 8 Car. & Pa; 160; and R. ti. Bull, 9 id. 22. 
 
 » 2 R. S. G60, s. 3, sub. 2. 
 
 * Shorter v. The People, 2 Coins. 197—202, Bronson, J. 
 
SELF-DEFENCE — WHEN AN EXCUSE. 223 
 
 charge complained of \Fas in these words, 'The homicide in self- 
 defence, which is considered as excusable rather than justifiable, is 
 that, whereby man may protect himself from an assault in the course 
 of a sudden casual affray by killing him who assaults him. In such a 
 case, however, the law requires of the party, to have quitted the com- 
 bat before a mortal wound shall have been given, if in his power to 
 retreat, as far as he can with safety, and at last to kill him from 
 mere urgent necessity, for the preservation of his life, or to avoid 
 enormous bodily harm. If the person killing was not in any supposed 
 or real imminent danger of his own life, or of enormous bodily harm, 
 and if the jury found that the prisoner could not reasonably appre- 
 hend from the deceased, and did not so apprehend any danger of 
 his own life or of enormous bodily harm, then the killing is not ex- 
 cusable homicide.' It is not denied that this charge has a great 
 weight of authority in its support. Indeed it was more lenient to 
 the accused than the doctrine of many adjudicated cases, in this, that 
 it makes the homicide excusable, if the slayer had reasonable cause 
 to apprehend, and did apprehend danger to his life or great bodily 
 harm, although such danger may not in such case have existed. And 
 the court, at the prisoner's request, also charged, that the law does not 
 measure merely the degree of force which may be employed by a 
 person attacked, and that if he employ more force than necessary he 
 is not responsible for it, unless it is so disproportioned to his appa- 
 rent danger as to show mere wantonness, revenge, or a malicious pur- 
 pose to injure the assailant. But the part of the charge which seems 
 to be objected to, is, that which relates to the necessity of quitting 
 the combat, if it could be done with safety, before taking the life of 
 the assailant; and it is urged that the law in Ohio is, that a person 
 assailed may, in all cases without retreating take his assailant's life, 
 if he reasonably believe it necessary to do so, in order to save his 
 own life, or to avoid great bodily hai-m; and this, although he could, 
 without increasing his danger retire, and thereby escape all necessity 
 of slaying his adversary. As to what is the precise state of the law on 
 this subject there is some diversity of opinion among the members of 
 this court, and, therefore, without attempting at this time, to lay it 
 down, we prefer to dispose of the case upon a view which is satisfac- 
 tory to us all. And we do this more willingly because there is not a 
 full bench sitting upon the case. Whether the person assaulted is or 
 is not bound to quit the combat, if he can safely do so before taking 
 life, it will not be denied in order to justify the homicide he must, at 
 least, reasonably apprehend the loss of his own life or great bodily 
 harm; to prevent which, and under a real, or at least supposed neces- 
 sity, the fatal blow must be given. And again, the combat must not 
 have been of his own seeking, and he must not have put himself in 
 the way of being assaulted, in order that when assaulted and hard 
 pressed, he might take the life of his assailant. It will also be 
 admitted, that "in a criminal, as well as a civil cause, before the 
 judgment can be reversed for error in the charge to the jury, it must 
 appear that some evidence was given tending to prove a state of case 
 in which the charge would be material. If the charge was upon a 
 mere abstract question of law, that could not arise upon the testimony, 
 and could not influence the decision of the jury, its character, however 
 
224 HOMICIDE. 
 
 erroneous, furnishes no ground to reverse the sentence. And such 
 we are clearly of opinion was the case under consideration. We find 
 no evidence tending to prove that Stewart, when he slew Dotey, was 
 in danger of loss of life, or limb, or great bodily harm, or that he ap- 
 prehended such danger. Were there any evidence, however slight, 
 tending to show that he really believed such danger to exist, we would 
 feel bound to decide upon the correctness of the charge complained 
 of; but we see no such testimony. And we are equally satisfied that 
 the combat did not occur without blame on his part. On Sunday, the 
 day previous to the murder, he showed George Huff the knife with 
 which he afterwards killed Dotey. It was a very deadly weapon, the 
 blade of which opened with a spring. He opened it, and prepared it 
 for use by greasing it, and said that if he had had it the night before, 
 when he was attacked, he did not think that Dotey would have got 
 out of the bar room safe; and that if Dotey even attacked him again, 
 
 he or any of the crowd that was with him, he would cut his d d 
 
 guts out. On the same day he made similar declarations to the wit- 
 ness Beall, and showed him the knife, and told him he intended to 
 carry it; and ask Dotey for the money whenever he saw him again, 
 
 and if he attempted to whip him he would cut his d d guts out; 
 
 and that he would dun him every time he met him. He made simi- 
 lar statements to Pierson Spinning, Monday morning. The affray took 
 place just after supper Monday evening. John Huff testified that ' be- 
 fore supper that evening, I was sitting on the bench by the bar room 
 door, and Stewart said to me, John, there will be war here to-night. 
 I thought he referred to the military that were coming in town, and 
 replied, that I reckoned not. Stewart replied yes, he guessed there 
 would be war, and that McCartney and Dotey were coming down there 
 to whip him if he asked them for the money they owed him, and he said 
 he intended to ask them for it. Shortly after supper Stewart came 
 out of the hotel, his boarding house, and saw Dotey and McCartney 
 standing on the pavement. Dotey was leaning against a post. Stew- 
 art came forward to near where he was standing, and said, John 
 and Jim, I want to know if you are going to pay me the money you 
 owe me. Dotey told him to go away about his business, he did not 
 want any thing to do with him, or to say to him. Stewart replied, that 
 he had paid for Dotey "s dinner, and he ought to be man enough to 
 pay for that. Dotey said he had meant to pay, but Stewart had acted 
 so meanly in dunning him in the street at every opportunity that he 
 did not intend to pay. Stewart said he had asked him for it in private. 
 Dotey denied it. Stewart reaffirmed his statement, and Dotey replied 
 it's a lie. Stewart rejoined, "It'sadamned lie," or "You are a daraned-^ 
 liar." Dotey said, " I won't take that," and advanced towards Stewart 
 with his hand raised to strike him, and struck at him. Stewart did not 
 move, and as soon as Dotey came within his reach, he stabbed him, 
 and repeating his blows gave him five stabs, one in the abdomen which 
 severed the intestines, one in the back, two through the left arm, and 
 one between the shoulder blade and ribs. Dotey cried out, "Take 
 him away, he has a knife." They were then separated by some of 
 the bystanders, and Dotey afterwards died of the wounds. Stewart 
 received no injury, except a cut in his hand, made by his own knife 
 no doubt. When Dotey started towards Stewart, they were but a 
 
SELF-DEFENCE — WHEN AN EXCUSE. 225 
 
 few feet apart, and the conflict lasted but a few seconds. It does not 
 appear that Dotey had aay weapon ; he certainly attempted to use 
 none. Stewart neither showed his knife, nor said that he had one 
 before using it. He appears to have concealed it from Dotey until 
 he gave the fatal stabs. Now it does seem clear to us that Stewart 
 sought to bring on the affray, that he desired to be assaulted, and in- 
 tended, if assaulted, to make good his previous threats of using his 
 knife. True, he had a right to dun Dotey for his money, but he had 
 no right to do so for the purpose of bringing on an affray in order to 
 afford him a pretext to stab his enemy. There is some testimony 
 tending to prove that Dotey went to the hotel that night to whip Stew- 
 art. It is not impossible that such was the fact; but if so, and the 
 combat was mutual, the case is no better for the accused. Again, it 
 does not appear that Stewart was at any time in danger of a serious 
 injury, or that he apprehended it. There is no testimony tending to 
 prove either the danger or the belief of it. We have next to con- 
 sider the refusal to charge as requested by the accused. He asked 
 the court to direct the jury, " that if a man is attacked by a person of 
 strength superior to his own, he is not bound to flee, but may use such 
 force and such weapons as may be necessary to resist the force em- 
 ployed against him, and if the assailant is killed, it is neither murder 
 in the first or second degree, or manslaughter." Which instruction 
 the court refused to give. As to so much of this instruction as relates 
 to the necessity of retreating, it was immaterial for the reasons we 
 have given. As to the residue of the instruction, if it had any appli- 
 cation to the case, it amounted in substance to this, that Stewart, when 
 assailed by an unarmed man, might repel the assault by the use of 
 a deadly and concealed weapon, even though it might have been 
 as well resisted by other means. The court were not asked to tell 
 the jury that a man in his defence may employ sufficient force to repel 
 the assailant. That they had already charged. But they were asked 
 in effect to say, that he may employ any weapon sufficient for that 
 purpose. If this is so, a man upon whom any ordinary assault and 
 battery is committed, may pierce his assailant with a sword, or knock 
 him down with an axe, for each of these is a weapon sufficient to re- 
 sist the force employed. We do not think such is the law. The 
 court were also asked to instruct the jury: "that if the killing arose 
 from previous malice on the part of the defendant, and not from what 
 occurred on the evening of the 9th of September, 1850, he cannot be 
 convicted as indicted ; " which charge was given with the following mo- 
 dification: strike out "previous" and insert " deliberate and preme- 
 ditated," in the place thereof The charge as asked, if we understand 
 it, was, in effect, that if the jury found the crime was murder in the 
 first degree the prisoner could not be convicted under the indictment, 
 which only charged murder in the second degree; and the amendment 
 of the court only made the proposition clearer. If there were error 
 on this point, it was in giving the charge at all. But the accused can- 
 not complain of this, as it was in his favour. The accused also asked 
 the court to charge the jury that, " In this state any man has a consti- 
 tutional right to carry weapons for self-defence, and hence there is 
 no presumption of malice from the carrying of a weapon, such as the 
 knife with which James R. Dotey was killed," — which charge was 
 15 
 
226 HOMICIDE. 
 
 given with the following modification: "That the jury may and ought 
 to take into consideration the manner by which, and purposes for which 
 the prisoner had the possession of the knife in question." This modifi- 
 cation was excepted to, but we see no error in it. The following 
 charge was also asked by the accused: — "That if the defendant 
 had reasonable ground to apprehend danger to his life, or great 
 bodily harm, he would have the same right to defend himself, whether 
 there was actual danger or not;" which charge was declined on the 
 ground that the court had already charged on the same point. It 
 was true that the court had so charged, and substantially as prayed 
 for in the above instruction. We suppose it was not erroneous to I'e- 
 fuse to repeat the charge. The next assignment of error is, that 
 "The verdict of the jury is without evidence, and contrary to the 
 evidence in the case." If we consider this assignment at all, it is 
 sufficient to say that the verdict was not without evidence nor contrary 
 to the evidence ; certainly not grossly so. It is next assigned for error 
 that, "the verdict of the jury is against law." We do not think so. 
 The last assignment is, that " the court erred in overruling the motion 
 for a new trial." The grounds upon which a new trial was asked were 
 the same we have above considered. In our opinion the motion was 
 properly overruled.' 
 
 " The prisoner in this case," said Green, J., in a case in Tennessee, 
 " is a free man of colour. He was indicted in the Circuit Court of 
 Wilson county, for the murder of Stephen, a slave of M. A. Price, 
 and was convicted of murder in the second degree, and sentenced to 
 ten years' imprisonment in the penitentiary, from which judgment he 
 appealed to this court. In the part of his honour's charge to the 
 jury, in which he treats of the question of self-defence, he says, ' This 
 brings us to the inquiry, whether at the time the prisoner shot and 
 killed the deceased, he had reasonable evidence to believe the de- 
 ceased would kill him or do him such great bodily harm, which might 
 probably endanger his life.' Treating of manslaughter, his Honour 
 says, ' If the jury should believe that the deceased was advancing 
 upon the prisoner with a stick, threatening to beat him, and such 
 assault excited in the prisoner a sudden burst of passion, and for the 
 time being dethroned his reason; and he shot, and killed in this 
 whirlwind of passion, it would be manslaughter.' We are of opinion, 
 his Honour stated both these propositions too strong against the pri- 
 eoner. In the first place, the court ruled, that, in order to excuse 
 the killing, ' the prisoner must have had reasonable ground to believe 
 that the deceased would kill him, or do him such gi-eat bodily harm, 
 which might probably endanger his life.' And to place beyond 
 doubt, that the court meant to impress the concluding sentence in 
 this quotation upon the jury, as an indispensable ingredient in the 
 definition of excusable homicide in self-defence, his Honour repeats 
 the language, or the idea, several times, in the charge to the jury. 
 The principle as laid down in all books, is thus stated by Roscoe : — 
 ' Whether a person who is assaulted by another will be justified in 
 using, in the first instance, such violence in his resistance as will 
 produce death, must depend upon the nature of the assault, and the 
 
 ' Stewart v. State, 1 M'Cook's Ohio Rep. 71. 
 
BELF-DEFENCE — WHEN AN EXCUSE. 227 
 
 circumstances under which it was committed. It may be of such a 
 character that the party assailed may reasonably apprehend death, or 
 great violence of person." We think the court, in this case, has 
 stated the principle more strongly than the authorities warrant. 2. 
 la the second extract, in reference to manslaughter, his Honour seems 
 to us, to speak of the ' dethronement of reason ' and the ' whirlwind 
 of passion,' in a way calculated to mislead. The books say. When- 
 ever death ensues from sudden transport of passion, or heat of blood, 
 if upon reasonable provocation, and without malice, or upon sudden 
 combat, it will be manslaughter.'* There must be sudden passion, 
 upon reasonable provocation, to negative the idea of malice; but we 
 think, the manner in which his Honour repeats, several times in his 
 charge, that reason must be 'dethroned,' and there must be a 'whirl- 
 wind' of passion, in order to mitigate a killing to manslaughter, was 
 calculated to exclude from the jury the possibility that a sane man, 
 having sense and reason, could excite by anger, and heat of blood, be 
 guilty of manslaughter. We think, therefore, that the impression 
 his language was calculated to make on the minds of the jury, was 
 erroneous. As to the facts of the case, it is unnecessary for us to 
 speak ; and as the prisoner must go before another jury, we deem it 
 most proper to leave the case to their unbiassed determination. Re- 
 verse the judgment and remand the prisoner for another trial."* 
 
 In a late capital trial in Pennsylvania," where the killing being ad- 
 mitted, the defendant contended that the act had been done to save 
 his own life, from a furious attack of the deceased. The court, for 
 the purpose of aiding in the discovery of the character of the homi- 
 cide, permitted the defendant to prove the general character and dis- 
 position of the deceased, as a quarrelsome, fighting, vindictive, and 
 brutal man of great physical strength, rejecting, however, evidence 
 o^ particular instances of his brutality in fighting, &c. It was at this 
 time in evidence that the parties had a violent contest on the day pre- 
 vious to the alleged killing, and that the defendant was then saved 
 from very considerable injury and perhaps death, only by the inter- 
 ference of a third person. Judge Conyngham charged the jury at 
 great length, explaining the several degrees of homicide, of which 
 under the indictment, the defendant could be convicted, and the legal 
 distinction between the several offences. He told them that the kill- 
 ing being admitted, the act could not be justified, but that the de- 
 fendant could be acquitted, if the jury believed the taking of the life 
 was excusable, under the principles of law to be laid down to them. 
 Upon this point of the case, he said: — " When an assault is made upon 
 another with a manifest intent to take life or to do great bodily 
 harm, and the party assailed, has no means of escape, either from the 
 situation in which he is placed, or the sudden violence of the at- 
 tack, he may take the life of the assailant to save his own. In the 
 words of the judge in People v. M'Leod,* 'a force, which the de- 
 fendant has a right to resist, must itself be within striking, (or I 
 should say also, attacking) distance: it must be menacing and appa- 
 
 1 Crim. Ev. 639; 1 East, P. C. 243; Fost. 296. 
 
 « 1 East, P. C. 232; Fost. 313; Roscoe's Crim. Ev. 557. 
 
 3 Young V. State, 11 Hump. 200, &c. 
 
 * Com. V. Seibert, Luzerne co., Jan., 1852. 5 Cited Whar. C. L. 260. 
 
228 HOMICIDE. 
 
 rently able to inflict physical injury, unless prevented by the resistance 
 he opposes." As a general rule before a man can resort to the life- 
 taking remedy, he must as the old books say, flee to the wall, or till he 
 meet with some unreasonable hindrance or impediment, which prevents 
 his further retreat ; in his own house, however, a man is not bound to 
 abandon his premises to the mercy of an assailant. In the present case 
 if there was an attack of the deceased, violent, menacing, and ac- 
 companied by acts or declarations showing a deadly intent. As con- 
 tended by the defendant's counsel, the law would not require that the 
 assailed party, in his own room, with no modeof backward egress or es- 
 cape, should retire a step or two merely to the wall of this small room, 
 if by this there could not only be no prospect of escaping an attack 
 likely to take life or do serious bodily harm, but the step would pro- 
 bably expose the party the more to the danger of the assailant. The 
 jury will remember that it is necessity which can alone excuse the 
 homicide, and this can only be ascertained by the consideration of all 
 the circumstances of the case as shown in the evidence; a light and 
 trivial assault, not attended by menaces of personal violence calculated 
 to induce a reasonable belief of the danger of death, or common bodily 
 injury, will not excuse the taking of life, though it may reduce the 
 offence to manslaughter. Provocation, by mere words, not accompa- 
 nied by acts making, or menacing an immediate assault, as has been 
 already said, will not, when death is produced by the use of a deadly 
 weapon, as in the present case, lessen the offence to manslaughter, 
 nor will it do so in any case, where the provocation is only used to 
 cover pre-existing malice and grudges." The judge then referred to 
 the evidence in detail, and then proceeded as follows: — " When you as- 
 certain from the evidence the manner of the admitted killing, if you 
 find it to have been done in defence of an attack by the deceased, in 
 deciding upon the character of the offence, you are called upon to ex- 
 amine and revise every thing which goes to explain the true situa- 
 tion of the parties at the time ; their respective feelings and intentions, 
 shown by their acts, their threats and menaces, as may be proven; and 
 you may consider, too, their relative characters as individuals, in- 
 cluding their strength and physical ability. / You may inquire, too, 
 whether the deceased, making as is contended the first assault, was 
 bold, strong, and of a violent and vindictive character, and the de- 
 fendant much weaker and of a timid disposition, and how far their 
 power was equalized by the weapons in the hands of the latter. Le- 
 gal rules are general, but in their application, they must at times de- 
 pend upon the special circumstances of particular cases. In the as- 
 sault of a strong man upon a boy or a female, of a powerful individual 
 upon a weaker, the necessity of taking life in self-defence under an 
 ordinary attack will be more easily discoverable, than in an attack 
 by one man upon another under more equal circumstances; the pro- 
 bable ability to defend without the fatal recourses, must depend upon 
 the means and power of defence in the assaultedy Moral power too, 
 is important in sustaining physical power. Timidity of disposition 
 will never excuse rashness, and will not justify the creation or sustain- 
 ing of imaginary fears, so as to excuse the taking of the life of another, 
 
 1 See, also, to the same point, Oliver v. State, 17 Ala. 587. 
 
SELF-DEFENCE — WHEN AN EXCUSE. 229 
 
 but we say now, as we had occasion to say in this court some years 
 since, upon the trial of Joseph Davis, that the jury may, in deciding 
 upon the degree or kind of homicide, the nature of the attack and 
 the necessity of the defence, consider this ingredient in the character 
 of the slayer, as an adjunct to his proper physical power, or rather 
 weakness. You are to look at the parties in this unhappy transac- 
 tion in their relative knowledge of each other's character and strength, 
 and to consider the circumstances attendant upon the contest of Satur- 
 day, their respective feelings and all the other circumstances, as al- 
 ready called to your notice; to inquire whether the defendant, as the 
 evidence shows him to be, the man that he is and was, not as one of 
 greater courage and strength may be, but as he was, when he did the 
 act, had clear reason to believe, that in case of an attack upon him 
 by the deceased, (the man that the evidence shows him to have been) 
 he would be in danger of loss of life or common bodily harm ; and if 
 you do so find, and fiirther that an attack, apparently of such intent 
 and character, was made upon him, in a room described as this has 
 been, with no other means of escaping the contest, as contended by 
 the defendant's counsel, under the evidence, but by taking the life of 
 the assailant; he would be excused in so doing, even though this, to 
 him reasonable belief of the horrible result of such a contest should 
 be produced partially by the constitutional timidity of his own cha- 
 racter, doubly excited by the comparative weakness of his own bodily 
 ability, proved in the contest with the assailant of the day previous. 
 Look you into the heart of the defendant at the time of the transac- 
 tion, search out his motives, as his acts and declarations show them, 
 and say whether he, constituted as nature made him, and with all his 
 means of defence, had reason to believe, and did believe, that he was 
 in the serious danger above spoken of. We further say to you, that 
 if under all the circumstances attending the transaction, there was no 
 reason to believe that his person was in danger of death or common 
 bodily harm, but that an ordinary battery was all that he had any reason 
 to fear from the acts and declarations of the deceased, or that he had 
 shot rashly and prematurely, when the mere presentation of his pistol, 
 as argued here upon the part of the commonwealth, would have been 
 fully sufficient to defend him from the attack, the provocation, con- 
 nected even with the facts of the Saturday difficulty, would not free 
 the defendant from crime in the eye of the law, but would reduce the 
 offence to manslaughter. If, however, he shot the deceased under 
 the influence of revengeful feelings and the grudge of the day before's 
 quarrel, or without any new attack, or the danger heretofore referred 
 to, standing either within or without the room, it would be murder, 
 as we have already explained to you." 
 
 A quarrel arose between some soldiers and a number of keelmen 
 at Sandgate; and, a violent affray ensuing, one of the soldiers was 
 stripped, and a party of five or six came up and beat him cruelly. A 
 woman called out from a window, " You rogues, you will murder the 
 man!" The prisoner, who was a soldier, had before driven part 
 of the mob down the street with his sword in the scabbard ; and on 
 his return, seeing his comrade thus used, drew his sword, and bid the 
 mob stand clear, saying, he would sweep the street; and, on their 
 pressing on him, he struck at them with the flat side of his sword seve- 
 
230 HOMICIDE. 
 
 ral times; upon which they fled, and he pnrsned them. _ The soldier 
 ■who was stripped got up, and ran into a passage to save himself. The 
 prisoner returned, and asked if they had murdered his comrade; and 
 the people came back, and assaulted him several times, and then 
 ran from him. He sometimes brandished his sword; and then struck 
 fire with the blade of it upon the stones of the street, calling out to 
 the people to keep off. At this time the deceased, who had a blue 
 jacket on, and might be mistaken for a keelman, was going along about 
 five yards from the soldier; but, before he passed, the soldier went to 
 him, and struck him on the head with his sword, of which blow he 
 almost immediately expired. It was the opinion of two witnesses, 
 that if the soldier had not drawn his sword, they would both of them 
 have been murdered. The judges were clearly of opinion that this 
 was only manslaughter.' 
 
 (d.) By whom the right may be exercised. 
 
 The right of self-defence in cases of this kind is founded on the law 
 of nature, and is not, nor can be, superseded by any law of society. 
 Where a known felony is attempted upon the person, be it to rob or 
 murder, the party assaulted may repel force by force, and even his 
 servant attendant on him, or any other person present, may interpose 
 for preventing mischief, and if death ensue, the party so interposing 
 will be justified.^ And this principle applies with peculiar force to 
 the relations of parent and child, and husband and wife.^ 
 
 Where, in an affray, A knocked down B, and C, a bystander, be- 
 lieving the life of B to be in danger, B having retreated as far as he 
 could with safety, gave B a knife to defend himself, to prevent fur- 
 ther mischief, it was held that C was justified in giving B the knife.'' 
 
 Under such circumstances, however, a person interposing, particu- 
 larly if he be a stranger, should act with much caution. If, indeed, 
 he interfere with a view to preserve the peace, and not to take part 
 with either combatant, giving due notice of his intention, and is under 
 the necessity of killing one of them in order to preserve his own life or 
 that of the other combatant, it being impossible to presei've them by 
 other means, such killing will be justifiable:* but, in general, if there 
 be an affray and an actual fighting and striving between persons, and 
 another run in, and take part with one party, and kill the other, it 
 will not be justifiable homicide, but manslaughter.* 
 
 (e.) How far want of premeditation is necessary. 
 
 If it appear that the conflict was in any way premeditated by the 
 defendant, the defence can no longer be set up.' The law requires 
 that the person who kills another in his own defence should have re- 
 treated as far as he conveniently or safely could, to avoid the violence 
 of the assault, before he turned upon his assailant; and that not ficti- 
 
 1 Brown's Case, 1 Leach, 148. 
 
 2 Com. V. Daley, -1 Penn. L. Jour. 153; Selfridge's case, per Parker, J., 160; 1 East, 
 P. C. 271 ; Com. v. Riley, Tliacher's C. C. 471. 
 
 3 1 Halo, 484; Bl. Com. 182 b; 1 Ruas. 542. 
 
 * Com. V. Riley, Thatcher's C. C. 471. 5 j jjale, 484. 
 
 « 1 East, P. C. c. 5, s. 58, p. 290; Johnson's case, 5 East, 660. 
 
 ' People V. M'Leod, 1 Hill, N. Y. R. 577; Hayden v. State, 4 Blaclcf. R. 547. 
 
SELF-DEFENCE — WANT OF PREMEDITATION. 231 
 
 tiously, or in order to watch his opportunity, but from a real tender- 
 ness of shedding his brother's blood. For in no case will a retreat 
 avail, if it be feigned, in order to get an opportunity or interval to 
 enable the party to renew the fight with advantage.' The party as- , 
 saulted must therefore flee, as far as he conveniently can, either by A 
 reason of some wall, ditch, or other impediment; or as far as the i 
 fierceness of the assault will permit him ; for it may be so fierce as ; 
 not to allow him to yield a step without manifest danger of his life.y 
 or great bodily harm, and then, in his defence, he may kill his as- 
 sailant instantly.^ 
 
 The defence ceases to exist when it appears that the defendant, 
 though originally in imminent danger, escapes, arms himself with a 
 dangerous weapon, returns, and slays his antagonist. Thus, on the 
 trial of Hare, one of the Kensington rioters, it was argued that there 
 was no cessation of the mutual firing between the combatants, from 
 the first onslaught; that Rice (the deceased) was acting with the origi- 
 nal assailants, armed and engaged in the firing; and that he met his 
 death in the resistance made to the murderous assault committed by 
 himself and his associates, on the defendant and those united with 
 him. " If it is true," said the learned judge, in charging the jury, 
 "that the attack with deadly weapons on the meeting of the 7th of 
 May, was instantly returned by those unlawfully assailed ; that they 
 continued it, in order to the preservation of their own lives, which, 
 by no other practicable and reasonable means, could have been pre- 
 served, by reason of the sudden, fierce and deadly nature of the as- 
 sault upon them; if Rice was engaged in this assault, and fell from 
 the resistance of the assailed, rendered absolutely and indispensably 
 necessary, from the suddenness, violence, and extent of the assault, a 
 case of homicide in self-defence, and as such, justifiable in law, has 
 been made out, and the defendant is entitled to an acquittal. But 
 still, if the return of the fire was not an immediate act; if the proof 
 shows that the assaulted party retired, armed themselves, returned 
 to the scene of original violence, and there voluntarily, and without 
 any necessity, in order to the preservation of their lives, renewed the 
 combat, for the object of inflicting even, what they supposed, just 
 chastisement on their opponents, the doctrine of self-defence has no 
 rplevancy to the case. The plea of self-defence rests on the natural 
 right every man has to protect his own life against an unlawful as- 
 sault upon it bj'' another. If, however, when secure from danger, by 
 his actual removal from the threatened assault, he voluntarily returns 
 to meet his adversary, and renews the combat, it cannot be pretended 
 he acts in defence of his own life against impending and inevitable 
 destruction. He assumes, under such circumstances, a new character. 
 He becomes a party voluntarily entering into an unlawful conflict, 
 and is responsible for all the consequences following his new position. 
 You are, however, the exclusive judges of the facts of this case, and 
 if you are of the opinion that Hare was actually present and partici- 
 pated in the affray that led to the death of Rice, but are satisfied from 
 the proof that a case of excusable self-defence has been made out 
 within the principles of law, as expounded by the court, you ought 
 to acquit him." 
 
 1 1 Hale, 486 ; Post. 277. ' 1 Hale, 483; 4 Black. Com. 185. 
 
232 HOMICIDE. 
 
 Nor under the cover of self-defence, will the law permit a man to 
 screen himself from the guilt of deliberate murder; for, if A and B 
 agree to fight a duel, and A give the first onset, and B retreat as far 
 as he safely can, and then kill A, this is murder, because of the pre- 
 vious malice and concerted design.^ 
 
 As in the case of manslaughter upon sudden provocation, where 
 the parties fight upon equal terms, all malice apart, it matters not 
 who gave the first blow; so in the case of excusable self-defence, it 
 seems that the first assault in a sudden affray all malice apart, will 
 make no difference, if either party quit the combat and retreat before a 
 mortal wound he given.^ According to this doctrine, if A, upon a sud- 
 den quarrel, assaults B first, and upon B's returning the assault, A really 
 and hand fide flies, and being driven to the wall, turns again upon B 
 and kills him, this will be se defendendo: but some writers have 
 thought this opinion too favourable, inasmuch as the necessity to 
 which A is at last reduced, originally arose from his own fault.^ 
 
 If A challenges B to fight, and B declines the challenge, but lets 
 A know that he will not be beaten, but will defend himself; and then 
 B, going about his business and wearing his sword, is assaulted by A, 
 and killed; this is murder in A. But if B had killed A upon that 
 assault, it had been se defendendo, if he could not otherwise have es- 
 caped; or bare manslaughter, if he could have escaped and did not/ 
 
 (2.) Repulsion of a felonious assault upon property. 
 
 When an attempt is made to commit arson, or burglary, in the ha- 
 bitation, any part of the owner's family, or even a lodger, may law- 
 fully kill the assailants, in order to prevent the mischief intended.' 
 " Here, likewise," says an eminent judge, "nature and social duty co- 
 operate. A riotous and tumultuous body attempt to commit an arson 
 on a church, or to maliciously burn and rob a bank; they may be re- 
 sisted to the extreme extent required to repel them, and life itself 
 may be taken, if the necessity of the defence demand it. In these 
 cases the party killed is engaged in the commission of a crime of the 
 highest grade, next to murder or treason, and he may be lawfully re- 
 sisted even unto death." ° 
 
 But a party so assailed, is not authorized to fire a pistol on every in- 
 trusion or invasion of his dwelling-house, which may be made forci- 
 bly at night; he ought, if he has a reasonable opportunity, to endea- 
 vour to remove the trespasser, without having recourse to the last 
 extremity.'' M, who was indicted for murder, had made himself ob- 
 noxious to some boatmen, by giving information of certain smuggling 
 transactions, in which some of them had been engaged ; and they, in 
 revenge, ducked him, and were in the act of throwing him into the sea, 
 when he was rescued by the police ; the boatmen, however, as he was 
 going away, called to him that they would come at night, and pull his 
 house down: in the middle of the night a great number of persons came 
 about his house, singing songs of menace, and using violent language, 
 indicating that they had come with no friendly or peaceable intention. 
 M, under an apprehension, as he alleged, that his life and property were 
 
 1 1 Hale, 479; People v. M'Leod, 1 Hill, 377. 2 Fost 277. 
 
 » 1 Hawk. P. C. c. 29, s. 17. « 1 Hale, 453. ' Fost. 274. 
 
 « Com. V. Daley, 4 Pa. L. J. 154. ' Oliver v. State, 17 Ala, 587. 
 
SELF-DEFENCE — ASSAULT ON PEOPERTT. 233 
 
 in danger, fired a pistol, by which one of the party was killed. Hol- 
 royd, J., "A civil trespass will not excuse the firing a pistol at a tres- 
 passer, in sudden resentment or anger. If a person takes forcible posses- 
 sion of another man's close, so as to be guilty of a breach of the peace, 
 it is more than a trespass. So if a man witli force invades and enters 
 into the dwelling of another; but a man is not authorized to fire a 
 pistol on every intrusion or invasion of his house: he ought, if he has 
 a reasonable oportunity, to endeavour to remove him without having 
 recourse to the last extremity: but the making an attack upon a 
 dwelling, and especially at night, the law regards as equivalent to an 
 assault upon a man's person, for a man's house is his castle: and, there- 
 fore, in the eye of the law, it is equivalent to an assault; but no words 
 or singing are equivalent to an assault in return. If you are satis- 
 fied that there was nothing but the song, and no appearance of fur- 
 ther violence: if you believe that there was no reasonable ground for 
 apprehending further danger, but that the pistol was fired for the pur- 
 pose of killing, then it is murder. There are cases where a person, 
 in the heat of blood, kills another, that the law does not deem it mur- 
 der, but lowers the offence to manslaughter; as, where a party coming 
 up, by way of making an attack, and, without there being any previ- 
 ous apprehension of danger, the party attacked, instead of having re- 
 course to a more reasonable and less violent mode of averting it, 
 having an opportunity so to do, fires on the impulse of the moment. 
 If you are of opinion that the prisoner was really attacked, and that 
 the deceased and his party were on the point of breaking in, or likely 
 to do so, and execute the threats of the day before, he was, perhaps, 
 justified in firing as he did.'" 
 
 A man has a right to order another to leave his house, but has no 
 right to put him out by force till gentle means fail; and if he attempt 
 to use violence in the outset and is slain, it will not be murder in the 
 slayer if there be no previous malice.^ 
 
 And so on the other hand if A, in defence of his house, kills B, a 
 trespasser, who endeavours to make an entry upon it, it is at least 
 common manslaughter;' unless, indeed, there were danger of his life. 
 But if B enter into the house, and A having first requested him to 
 depart, gently lay his hand upon him to turn him out, and then B 
 turn upon him and assault him, and A then kill him, it will be se de- 
 fendendo, supposing that he was not able by any other means to avoid 
 the assault, or retain his lawful possession. And so it will be, if B 
 enter upon A, and assault him first, though not intended to kill him, 
 but only as a trespasser to gain the possession: for, in such case, if A 
 thereupon kill B, it will only be se defendendo. and not manslaughter.* 
 And in such a case A, whether he be a householder or a lodger, being 
 in his own house, need not fly as far as he can, as in other cases of 
 se defendendo; for he has the protection of his house to excuse him 
 from flying, as that would be to give up the protection of his house 
 to his adversary by his flight." 
 
 When, however, there is a mere trespass against the property of 
 another, the law does not admit the force of the provocation as suffi- 
 
 1 Meade's case, 1 Lew. 184. 2 M'Coy v. State, 3 Eng. 451. 
 
 s OUver v. State, 17 Ala. 587. * 1 Hale, 486. ' 1 Hale, 485. 
 
234 HOMICIDE. 
 
 cient to warrant the owner in making use of any deadly or dangerous 
 weapon; more particularly if such violence is used after the party has 
 desisted from the trespass. Should, on the other hand, the beating 
 be with an instrument, or in a manner not likely to kill, it will only 
 amount to manslaughter: and it is even lawful to exert such force 
 against a trespasser, who comes without any colour, to take the goods 
 of another, as is necessary to make him desist.' 
 
 And indeed where in case of an attempt to defend a property not 
 a dwelling house, no more force is asked than is necessary, and death 
 ensues, the defendant should be acquitted. This will be abundantly 
 considered hereafter, so far as concerns the attacks of mobs, no matter 
 for what motive, on banks, churches, or other public buildings. And 
 the same rule exists in reference to private buildings, though not used 
 for dwelling purposes. Thus, on an indictment for manslaughter, where 
 it appeared that a man and his servant had insisted upon placing corn 
 in the prisoner's barn, which she refused to allow; they exerted force : 
 a scuffle took place, in which the prisoner received a blow on the 
 brfeast, whereupon she threw a stone at the deceased, the master, 
 which killed him. Holroyd, J., said, "The case fails, as it appears 
 the deceased received the blow in an attempt to invade the prisoner's 
 barn, against her will. She had a right to defend her barn, and to 
 employ such force as was reasonably necessary for that purpose ; and 
 she is not answerable for any unforeseen accident that may have hap- 
 pened in so doing."^ 
 
 Even where the trespass is on a dwelling, only so much force as is 
 reasonably necessary, can be used to turn out the trespasser. Upon 
 an indictment for manslaughter, it appearing that the prisoner, upon 
 returning home, found the deceased in his house, and desired him to 
 withdraw, but he refused to go : upon this, words arose between them, 
 and the prisoner becoming excited, proceeded to use force, and, by a 
 kick which he gave to the deceased, caused his death. Alderson, B., 
 said, A kick is not a justifiable mode of turning a man out of your 
 house, though he be a trespasser. If a person becomes excited, and 
 gives another a kick, it is an unjustifiable act. If the deceased would 
 not have died but for the injury he received, the prisoner having un- 
 lawfully caused that injury, is guilty of manslaughter.^ 
 
 Where there is a statutory power given to exclude trespassers if 
 necessary by use of fire arms, and a supposed trespasser is in this 
 manner killed, there being no rashness or want of caution, the defen- 
 dant will be acquitted. Thus, in a case already noticed. Sir William 
 Hawksworth, being desirous to put an end to himself, having first 
 blamed his keeper for suffering his deer to be destroyed, and com- 
 manded him to execute the law, came himself into his park at night 
 as if with intent to steal the deer; and being questioned by the keeper, 
 who knew him not, and refusing to stand or answer, he was shot by 
 the keeper. This was decided to be excusable homicide by the sta- 
 tute Be malef actor ibus in parcis.* 
 
 Though a person who is set to watch a yard or garden by his mas- 
 ter, is not justified in shooting any one who comes into it in the night, 
 
 1 1 Hale, 473, 486; 1 East, P. C. o. 5, s. 58, p. 289. 
 
 ' Hinohcliff's case, 1 Lew. 168. ^ yfn^'g case, 2 Lew. 214. ' 1 Hale, 40. 
 
EXECUTION OP THE LAW — KILLING OP FUGITIVES. 235 
 
 even if he sees him go into his master's hen-roost, and some dead 
 fowls and a crow-bar be found near him ; but if from his conduct he 
 has fair ground to believe his own life in danger, he is justified in 
 shooting him/ 
 
 2d. Execution of the laws. 
 
 The execution of malefactoi'S, by the person whose office obliges 
 him, in the performance of public justice, to put those to death who 
 have forfeited their lives by the laws and verdict of their country, is 
 an act of necessity, and where the law requires it.^ But the act 
 must be under the immediate precept of the law, or else it is not jus- 
 tifiable; and, therefore, wantonly to kill the greatest of malefactors, 
 without specific warrant, would be murder.^ 
 
 A subject of Great Britain, who, under direction from the local 
 authorities of Canada, couimits homicide in this state in time of peace, 
 may be prosecuted in our courts as a murderer; even though his so- 
 vereign subsequently approve his conduct, by avowing the directions 
 under which he did it as a lawful act of government." 
 
 3d. Killing of fugitives from arrest. 
 
 A. person indicted for a felony, and who will not suffer himself to be 
 arrested by an officer, hav'ing a warrant for that purpose, may law- 
 fully be killed by such officer, if he cannot otherwise be taken; 
 though such person be innocent, and though in truth no felony have 
 been committed.' This however must be understood only of arrests 
 by officers, and does not extend to arrests by private persons of their 
 own authority.'' 
 
 And as a general principle, where a party who is liable to arrest, en- 
 deavours peaceably to avoid it, he may not be killed; but whenever 
 by his conduct he puts in jeopardy the life of any attempting to ar- 
 rest him he may be killed, and the act will be excusable.' 
 
 As has already been laid down, and as will be seen more fully here- 
 after, peace officers and their assistants, endeavouring to disperse the 
 mob, are justified, both at common law and by the riot act, in pro- 
 ceeding to the last extremity, in case the riot cannot otherwise be 
 suppressed. And though it is always better that private individuals, 
 under such an emergency, should array themselves under the known 
 officers of the law, yet the killing of dangerous rioters may be justi- 
 fied by any private persons who cannot otherwise suppress them, or 
 defend themselves from them, inasmuch as every private person seems 
 to be authorized by the law to arm himself for the preservation of 
 the peace.^ 
 
 We have already seen that in civil cases, and also in the case of a 
 breach of the peace, or any other misdemeanor, short of felony, if the 
 officer should pursue a defendant flying in order to avoid an arrest, 
 and should kill him in the pursuit, it will be murder or manslaughter, 
 
 1 E. V. Scully, 1 C. & P. 819; 1 East, P. C. c. 5, s. 44, p. 273. 
 
 2 Fost. 267. 2 1 Hale, 501 ; 2 Hale, 411. 
 * The People v. M'Leod, 1 Hill, 377. " 1 Hawk. P. C. c. 28, s. 12. 
 
 « 2 Hale, 8-4. ' State v. Anderson, 1 Hill, 327. 
 
 8 1 Hawk. P. C. 0. 28, s. 14. 
 
236 HOMICIDE. 
 
 according to the peculiar circumstances by which such homicide may 
 have been attended.^ But if a felony be committed, and the felon 
 fly from justice, or a dangerous wound be given, it is the duty of every 
 man to use his best endeavours for preventing an escape; and if iu 
 the pursuit the party flying be killed, where he cannot be otherwise 
 overtaken, this will be deemed justifiable homicide.^ Under the 
 system of hue and cry as existing at common law in England, this duty 
 to join in the recapture, is not confined to those who were present at 
 the time of the commission of the felony so as to have ocular proof 
 of the fact, or to those who first come to the knowledge of it: and 
 though in our more thickly settled communities, it'is expedient that 
 a warrant should be taken out from a justice of the peace, yet where 
 the population is sparse, and no justice can conveniently be found, 
 there is no doubt that the neighbourhood may join in there pursuing 
 and killing a felon. But it should be observed that if he surrender 
 himself to his pursuers, it is murder if they then proceed to slay him, 
 for it is their duty to hand him over for punishment to the officers of 
 the law. And the same rule holds, if a felon, after an arrest, break 
 away as he is carried to jail, and his pursuers cannot retake without 
 killing him.^ 
 
 Jailers and their officers are under the same special protection as 
 other ministers of justice; and therefore, if in the necessary discharge 
 of their duty, they meet with resistance, whether from prisoners in 
 civil or criminal suits, or from others, in behalf of such prisoners, they 
 are not obliged to retreat as far as they can with safety, but may 
 freely, and without retreating, repel force by force; and if the party 
 so resisting happen to be killed, this, on the part of the jailer, or 
 his officer, or any person coming in aid of him will be justifiable 
 homicide.'' 
 
 The relations of officers of justice in this respect, have already been 
 so fully considered, that it is not necessary now to do more than state 
 in general that in all cases, whether civil or criminal, where persons 
 having authority to arrest or imprison, and using the proper means for 
 that purpose, are resisted in so doing, they may repel force with force, 
 and need not give back ; and if the party making resistance is una- 
 voidably killed in the struggle, this homicide is justifiable.'' A rule, 
 remarks Sir W. Russell, founded in reason and public utility ; for few 
 men would quietly submit to an arrest, if, in every case of resistance, 
 the party empowered to arrest were obliged to desist, and leave the 
 business undone; and a case in which the officer was holden guilty of 
 manslaughter, because he had not first given back, as far as he could, 
 before he killed the party who had escaped out of custody, in execu- 
 tion for a debt, and resisted being taken,^ seems to stand alone, and 
 has been mentioned with disapprobation.' 
 
 4th. Self-preservation in shipwreck. 
 
 Upon the great authority of Lord Bacon it has been held that where 
 upon two persons being shipwrecked, and getting on the same plank, 
 one of them, finding it not able to save them both, thrust the other 
 
 1 See ante, p. 48. ' \ n^le, 489; Fost. 271. 
 
 ' Fost. 271 ; 4 Blac. Com. 179. * Fost. 321 ; 1 Hale, 481. 
 
 5 Hale, 494 ; 1 Hawk. P. C. o. 88, s. 17. 6 i Rugg. on Cr. 166. ' Fost. 276. 
 
SELP-PRESERTATION. 237 
 
 from it, whereby lie was drowned, it is excusable homicide.^ Lord 
 Hale, however, doubts this, saying, that a man cannot ever excuse the 
 killing of another who is innocent, under a threat, however urgent, 
 of losing his own life, if he do not comply: so that if one man should 
 assault another so fiercely as to endanger his life, in order to compel 
 him to kill a third person, this would give no legal excuse for his com- 
 pliance.^ To this Mr. East remarks, that if the commission of treason 
 may be extenuated by the fear of present death, and while the party 
 is under actual compulsion,^ there seems to be no reason why homi- 
 cide may not also be mitigated upon the like consideration, of human 
 infirmity; though, in case the party might have recourse to the law 
 for his protection from the threats used against him, his fears will 
 certainly furnish no excuse for committing the murder.'* 
 
 In this country, however, the subject has undergone the test of a 
 judicial investigation in a court, and under circumstances peculiarly 
 favourable to its careful consideration. In March, 1842, Alexander 
 William Holmes was indicted, in the United States Circuit Court for 
 the Eastern district of Pennsylvania, before Baldwin, J., for man- 
 slaughter. From the evidence it appeared that the ship William 
 Brown left Liverpool on the 13th day of March, 1841, having on 
 board sixty-five passengers and a crew composed of seventeen seamen, 
 the whole number amounting to eighty-two, most of the passengers 
 being Irish and Scotch emigrants. The voyage was very favourable 
 until the evening of the 19th of April, at which time, while all were 
 in their beds, except the watch, consisting of seven persons, among 
 whom was Alexander William Holmes, the prisoner, a Swede by birth, 
 the vessel struck an icei)erg, and immediately commenced leaking. 
 The sails were shortened, and resort was had to the pumps. Upon 
 examination, it was found that the injury the vessel had received ren- 
 dered her loss inevitable, and that the crew could only be saved, if 
 saved at all, by taking refuge to the boats at once. The boats were 
 immediately launched ; in the long boat were crowded thirty-two pas- 
 sengers, besides a portion of the crew, in all forty-two persons; in the 
 jolly boat were placed nine persons. The two boats pushed away 
 from the ship, and the ropes by which they were attached to her were 
 cut just before the ship went down. They remained together until 
 the next morning, when they separated. During the first day the 
 weather was moderate and the sea calm. From the moment the long 
 boat reached the water it was necessary to bail; she was leaky, and the 
 plug was insecure and insufficient for the purpose. She was so loaded 
 that the gunwale was but a few inches from the water. Towards 
 evening the sea became rough, and at times washed over the sides of 
 the boat. On the second night, not much more than twenty-four 
 hours after the abandonment of the ship, the sea becoming more and 
 more tempestuous, and the danger of destruction imminent, the .de- 
 fendant, together with the remaining sailors, proceeded to throw over- 
 board those passengers whose removal seemed necessary for the com- 
 mon safety. Relief shortly afterwards came, but great conflict of evi- 
 
 1 4 Blac. Com. 186 ; Ruth. Inst. c. 16, p. 187—190 ; Puffendorf s Law of Nature, 204 ; 
 Herbert's Legal Maxims, 7. 
 
 2 1 Hale, c. 28, s. 26. » 1 East, P. C. o. 2, s. 15. * Ibid. c. 5, s. 61. 
 
238 HOMICIDE. 
 
 dence existed as to whether the boat could have held out in its ori- 
 ginal crowded state even during that short period. The question, 
 therefore, whether, with no prospect of aid, acting under the circum- 
 stances which surrounded the defendant at the time the act was com- 
 mitted, such necessity existed as would justify the homicide, was one 
 of great doubt. But a new principle was introduced into the case by 
 the learned and able judge who presided. Holding that in such an 
 emergency, there was no maritime skill required which would make 
 the presence of a sailor of more value than that of a passenger, he 
 maintained, with great power of argument, that in such case, it being 
 the stipulated duty of the sailor to preserve the passenger's life at all 
 hazards, if a necessity arose in which the life of one or the other must 
 go, the life of the passenger must be preferred. If, on the other hand, 
 the crew was necessary, in its full force, for the management of the 
 vessel, the first reduction to be made ought to take place from the 
 ranks of the passengers. But under any circumstances, it was held, 
 the proper method of determining who was to be the first victim out 
 of the particular class, was by ballot. The defendant, under the 
 charge of the court, was convicted, but was sentenced to an imprison- 
 ment of comparatively light duration. "It is," said the learned judge, 
 in the course of his charge, " not a case of necessity, if any other 
 means of preservation remain; all must be exhausted; the peril must 
 be imminent, present, and apparently avoidable only by the destruc- 
 tion of another, as in the ordinary cases of self-defence against law- 
 less violence, designed to take away one's life, or to inflict a grievous 
 injury to the person. On a kindred principle to self-defence, the law 
 overlooks the taking of life under circumstances of imperious neces- 
 sity — of a character similar to those which are now in evidence be- 
 fore you ; as where two or more persons have, by an accident not at- 
 tributable to either, and who owe no duty to the other which is not 
 mutual, are by accident placed in a situation where all cannot survive ; 
 no one is bound to save the life of another by the sacrifice of his own, 
 or commits a crime by saving his own in a struggle for the only means 
 of safety. Of this description are the cases which have been put to 
 you by the learned counsel in this cause, from writers of authority, 
 upon the principles of national and municipal law, where each per- 
 son is alike innocent of crime or fault, incurring the danger to the 
 lives of all, and the sacrifice of one or more is necessary to save the 
 remainder, cases which we rather leave to your imagination, than at- 
 tempt to describe. Yet in such cases we must look not merely to the 
 jeopardy in which the persons are placed; we must look to the relation 
 in which they stood to each other; inquire whether the law has im- 
 posed any duty or obligation on one or more, from which the other 
 was exempt; if in this respect, each and all stand in the same relative 
 position, the law of self preservation applies. And when this great 
 and paramount law does apply, and the exemption it aftbrds from 
 punishment is not lost by its improper exercise on the devoted victim, 
 the shedding the blood or taking the life of an innocent person, is di- 
 vested of all immorality by reason of the overpowering necessity 
 under which it was committed. It is a common saying, that necessity 
 has no law; it is also a maxim of jurisprudence, for laws are made to 
 meet the ordinary occurrences of life, where man is a free agent, with 
 
SELF-PRESERVATION. 239 
 
 a volition to do and act as he chooses; but the la^v makes no provision 
 for cases where man acts from an impulse which he can neither resist 
 nor suppress by the exercise of his reasoning faculties; he then be- 
 comes his own legislator, and may surrender his own life, or save it 
 as he can, when no law or duty imposes on him the obligation to de- 
 vote himself to destruction to save another. But before the protec- 
 tion of the law of necessity can be invoked, a case of necessity must 
 exist; the slayer must be faultless; he must owe no duty to the victim; 
 be under no obligation of law to make his own safety a secondary ob- 
 ject; and if, in any of these particulars, his case is defective, he is an- 
 swerable to the law of the land, without any immunity under the shield 
 of necessity. It cannot be a passenger's duty to take on himself the 
 protection of a sailor, when he has the right to call on the sailor for 
 protection; the former need not take, and the latter cannot throw oif 
 the dread responsibility; there must indeed be a sufficient number of 
 seamen to navigate and preserve the boat; but if there are more than 
 sufficient for these purposes, the residue have no right to call for the 
 sacrifice of a passenger for their protection. There can be no con- 
 tribution in such a case; the sailor and the passengers are not in an 
 equal position; in the language of the writer, quoted by the defend- 
 ant's counsel, the sailor 'owes more benevolence towards another than 
 to himself; is bound to set a greater value on their life than his own; 
 and the law makes it his duty to say, in the words cited by Lord Ba- 
 con, it is necessary that I should go, not that I should live.' This 
 may be deemed a harsh rule, partaking of cruelty to the sailor, who 
 has thus far done his duty; but when no hope remains save the dread- 
 ful alternative of sacrificing a sailor or a passenger, it would be still 
 more harsh and cruel to make the passenger the victim, to save the 
 sailor who was not wanted for the preservation of the boat. If its 
 safety requires the services of all the sailors, and some of the passen- 
 gers must go, they stand on an equal footing towards each other; so 
 if there are no passengers, and some of the sailors must go; in either 
 case they may contend with each other for their own preservation. 
 Two sailors may struggle with each other for the plank which can 
 sustain but one, but if the passenger is on it, even the law of necessity 
 justifies not the sailor who takes it from him. The emergency which 
 creates the necessity for one or more victims, gives no authority to 
 any one to make a selection among these, between whom and himself 
 there are equal and mutual relations. Some mode should be adopted 
 which exposes all to an equal peril, and gives each an equal chance 
 of life. What that mode is or ought to be, is neither defined by 
 writers on the law of nature, by statute, or settled rules of the com- 
 mon law, for obvious reasons arising from cases of necessity which 
 can neither be foreseen nor provided for. There is, howerer, one 
 case on which all writers agi'ee, and one rule which seems to meet 
 with universal consent, when the ship or boat is in no danger of sink- 
 ing, and all sustenance is exhausted, whereby it becomes necessary 
 to make one a sacrifice to appease hunger; the selection is by lot, that 
 being resorted to as the fairest mode, and deemed to be in some mea- 
 sure an appeal to Providence to choose the victim. We have neither 
 heard, read, nor known any other mode, and can conceive none so 
 consonant to iustice and humanity. A sudden, unforeseen peril, may 
 
240 HOMICIDE. 
 
 preclude any deliberation or consultation, when destruction may fol- 
 low upon all while casting lots, or the darkness of the night prevent 
 it. But -when the source of the danger has been seen, and no new 
 cause has arisen, so that there was time to consult, to cast lots, or se- 
 lect the victim, it is a duty to do it, in order to guard against partiality, 
 oppression, violence, or contention, and thereby put the weak and the 
 strong on the same footing. Imagination cannot conceive a scene more 
 horrible than a struggle between sailor and sailor, passenger and pas- 
 senger, or in a mixed affray, in which each eodeavoured to destroy the 
 other, under circumstances which most loudly call for some fair and 
 just means of deciding whose life must be given up for the common 
 safety. When it is done by lots, the victim submits to his fate; if at- 
 tempted by force, their common destruction might be inevitable, in 
 the struggle which each would make to preserve himself, and has a 
 right to make, when the law of necessity is enforced contrary to those 
 rules by which alone it can be justified. If the lot is cast, the person 
 on whom it falls must submit; if he resists, force may be employed to 
 put him over, or if the necessity of a sacrifice arises from famine, the 
 allotted victim may be seized and slain. When thus administered, the 
 law of necessity supersedes all other laws. It operates as a dispensa- 
 tion from punishment, with all the lasting effects of a pardon for the 
 act. When the survivors can make out such a case, they need not fear 
 human laws, which do not doom them to death, to prison, or fines for 
 taking the victim's life, or that innocent blood will be laid to their 
 souls hereafter; but a fearful peril awaits those who take on them- 
 selves the destruction of life, by assuming that it is necessary when no 
 necessity exists, or its rules are not observed. In this respect those 
 who execute the laws of necessity by the infliction of death, stand in 
 the same position of responsibility to the penal laws of the country as 
 the public oflScer who executes a death warrant on a convicted crimi- 
 nal; he stands justified in both cases, when he acts pursuant to the 
 warrant of the law, but without justification when he disobeys or 
 departs from its requirements, in any particular whereon his autho- 
 rity depends. The captain and such of the seamen as are necessary 
 to the preservation of the ship or boat, are not bound to draw lots, 
 for unless these abide in the ship, all will perish. This is the 
 sailor's privilege, his high prerogative, conferred on him for the 
 common safety, clothed with which he is exempted from other risk 
 of life than what attends the seaman after the immolation of those 
 who have been doomed to death for the sake of others. But this 
 privilege or exemption is founded upon reasons which must not be 
 disregarded. The law does not favour him merely because he is a 
 sailor, it is as the instrument of common preservation — not to prefer 
 his life to others, or absolve him from any duty incumbent on him in 
 virtue of his occupation, or relieve him from any of its incidental 
 perils. Where the reason of the exemption ceases, the supernumerary 
 or the useless sailor stands without any privilege, the common safety 
 not requiring it. He must submit his fate to the casting of lots, and 
 if it fall on him, the law does not justify him in resisting, or putting 
 another in his place. Nor is the seaman less an offender against the 
 law if the ship or boat is in a situation where there can be a consul- 
 tation as to the degree of danger, and the necessity of drawing lots; 
 
DEATH BY EXTRINSIC CAUSES. 241 
 
 if the exigency has not happened, though probable or certain at 
 some future time, and neither takes place to justify or excuse the 
 omission of either consultation or lot, there must be a case of neces- 
 sity made out, strong, clear and decisive, on the minds of those whose 
 duty it is to closely scrutinize on his trial the conduct of the man 
 ■who takes the life of his fellow man. Without consultation, who is 
 to decide who shall the victim be, and how many ? Who that looks 
 to the consequences here or hereafter, will not shudder at such an 
 appalling responsibility? Where is his warrant for being the judge, 
 and making his mere opinion fatal to the devoted objects of his 
 assumed powers? Holy writ tells us what was done on an occasion 
 where there was a sacrifice of one man made for many, and points to 
 the compass by which mariners must steer when their voyage is beset 
 with peril to the lives of all.^ 
 
 rV. DEATH PRODUCED BY OTHER CAUSES. 
 
 If death," says Mr. Greenleaf, ensues from a wound given in malice, 
 but not in its nature mortal; but which being neglected or misma- 
 naged, the party died ; this will not excuse the prisoner who gave it, 
 but he will be held guilty of the murder, unless he can make it clearly 
 and certainly appear, that the maltreatment of the wound, or the me- 
 dicine administered to the patient, or his own misconduct, and not the 
 wound itself, was the sole cause of his death ; for if the wound had 
 not been given, the party had not died.^ So, if the deceased were ill 
 of a disease apparently mortal, and his death were hastened by inju- 
 ries maliciously inflicted by the prisoner; this proof will support an 
 indictment against him for murder ; for an offender shall not appor- 
 tion his own wrong.'' 
 
 When it appeared that the death was caused by a blow on the 
 back of the neck, and that the deceased was not at the time in a good 
 state of health, and that she was desired to remain in a hospital, where 
 she could best be attended to, but would not, Parke, B., said, " It is 
 said, that the deceased was in a bad state of health, but that this is 
 perfectly immaterial; as if the prisoner was so unfortunate as to 
 accelerate her death, he must answer for it."' 
 
 The deceased had been waylaid and assaulted by the prisoner, and 
 that amongst other wounds, he was severely cut across one of his fin- 
 gers by an iron instrument. The surgeon urged him to submit to 
 amputation of the finger, telling him that unless it were amputated, he 
 considered that his life would be in great hazard. The deceased re- 
 fused to have the finger amputated. The surgeon dressed it, and the 
 deceased attended from day to day to have the wound dressed; at 
 the end of a fortnight, however, lock-jaw came on, induced by the 
 wound on the finger; the finger was then amputated, but too late, 
 
 1 U. S. t-. Holmes, pamph. 1848, S. C, 1 Wall, Jun. 
 
 ' 3 Green, on Et. s. 139. 
 
 » R. V. Raw, J. Kely. 26; 1 Hale, P. C. 428; Kuss. on Cr. 505 ; R. v. Holland, 2 M. 
 & Rob. 351 ; Alison's Crim. Law of Scotland, 147; Parson v. State, 21 Ala. 300; M'Allis- 
 ter ti. State, 17 Ala. 587. 
 
 < 1 Hale, P. C. 428 ; 1 Russ. on Cr. 505, 506, and notes by Greaves ; E. p. Martin, 6 C. 
 & P. 128; R. V. Webb, 1 M. ^ R. 405. , 
 
 s R. V. Martin, 5 C. & P. 128. 
 
 16 
 
242 HOMICIDE. 
 
 and the lock-jaw ultimately caused death. The surgeon deposed, that 
 if the finger had been amputated at first, he thought it most probable 
 that the life of the deceased would have been preserved. It was con- 
 tended for the prisoner, that the cause of the death was not the 
 wound inflicted by the prisoner, but the obstinate refusal of the de- 
 ceased to submit to proper surgical treatment. Maule, J., however, 
 was clearly of opinion that this was no defence, and told the jury that 
 if the prisoner wilfully, and without any justifiable cause, inflicted 
 the wound on the party, which wound was ultimately the cause of 
 death, the prisoner was guilty of murder; that for this purpose it 
 made no difference whether the wound was in its own nature instantly 
 mortal, or whether it became the cause of death by reason of the de- 
 ceased not having adopted the best mode of treatment; the real 
 question was, whether in the end the wound inflicted by the prisoner 
 was the cause of the death.' 
 
 In a late case in the Supreme Court of Alabama, Goldthwaite, J., 
 said, " The prisoner was indicted for the murder of one Mayo. On 
 the trial of the case below, the evidence was conflicting as to whether 
 the deceased came to his death from a wound inflicted by the defen- 
 dant, or from the improper treatment which was resorted to by the 
 attending physician, the wound not being considered a mortal one. It 
 was what is termed a 'punctured wound,' and the improper treatment 
 which was relied on, was the bringing of its edges together, and sew- 
 ing it with stitches. The court, upon this evidence, was requested to 
 charge, ' that if the wound was not mortal, but by ill treatment or 
 unwholesome applications, the said Mayo died, if it clearly appears 
 that this treatment, and not the wound, was the cause of his death, the 
 defendant should be acquitted.' This charge the court gave, but with 
 the addition, ' that if the ill treatment relied upon was the sewing up 
 of the wound with stitches or other compresses, that the defendant 
 would not be excused if otherwise guilty,' and this addition or quali- 
 fication of the charge is relied upon as the ground of reversal. We 
 all agree that, ordinarily, if a wound is inflicted not dangerous in itself, 
 and death was evidently occasioned by grossly erroneous treatment, 
 the original author will not be accountable.^ And we agree, also, that 
 if the wound was mortal or dangerous, the person who inflicted it 
 cannot shelter himself under the plea of erroneous treatment."^ 
 
 On a trial for manslaughter through the administration of Morri- 
 son's pills, it appeared that at the time of the administration the de- 
 ceased was ill of the small pox. Medical witnesses all gave it as their 
 opinion that the exhibition of the pills in such doses must have ag- 
 gravated the disease under which the deceased laboured, and have 
 accelerated his death ; and one of them said, that the deceased died 
 of small-pox heightened by the treatment he had received. It was 
 objected, that the indictment was not supported by the evidence, which 
 only proved that the deceased died of a natural disorder, accelerated 
 by improper treatment. It might be conceded, for the sake of argu- 
 ment, that if the indictment had so stated the case, it might have been 
 sufficient; but the indictment made quite a different charge, viz., that 
 
 1 R. V. Holland, 2 M. & R. 351. ^ j u^le, P. C. 428; 1 East, C. L. 844, s. 113. 
 
 3 Parson v. State, 21 Ala. 301. 
 
DEATH BY EXTRINSIC CAUSES. 243 
 
 tbe party died wholly and solely of a mortal sickness caused by the 
 medicine and improper treatment. Lord Lyndhurst, C. B., said : " It is 
 true the witnesses do not say whether the deceased would, in their 
 opinion, have died of the small-pox if the pills had not been adminis- 
 tered; but they all agree in this, that his death was accelerated by the 
 pills. Now, their evidence being translated, comes to this, that the 
 party died on the day when he did die, viz., on the 27th of June, by 
 reason of taking the pills. At present, therefore, it appears to me 
 that the indictment was good." And in summing up, the very learned 
 chief baron adhered to the opinion he had already expressed on the 
 argument, and left it to the jury to say, "whether the death of the 
 deceased had been occasioned or accelerated by the medicines admi- 
 nistered by the prisoner.'" 
 
 If a man, to adopt Lord Hale's statement, be sick of some disease, 
 which, by the course of nature, might possibly end his life in half a 
 year, and another gives him a wound or hurt which hastens his death, 
 by irritating and provoking the disease to operate more violently 
 or speedily, this is murder or other homicide, according to circum- 
 stances in the party by whom such wound or hurt was given. For the 
 person wounded does not die simply ex visitatione Dei, but his death 
 is hastened by the hurt which he received; and it shall not be per- 
 mitted to the offender to apportion his own wrong.^ 
 
 And so where a surgical operation is performed in a proper manner, 
 and under circumstances which render it necessary in the opinion of 
 competent surgeons, upon one who has received a wound apparently 
 mortal, and such operation is ineffectual to afford relief and save the 
 life of the patient, or is itself the immediate cause of death, the party 
 inflicting the wound, will nevertheless be responsible for the conse- 
 quences.' 
 
 If it appear that the death of the deceased was accelerated by the 
 violence of the prisoner, his guilt is not extenuated because death 
 might and probably would have been the result of the disease with 
 which the deceased was afflicted at the time of the violence." 
 
 Where a husband was indicted for the manslaughter of his wife by 
 accelerating her death by blows, and it appeared that she was at the 
 time in so bad a state of health that she could not possibly have lived 
 more than a month or six weeks under any circumstances; Coleridge, 
 J., told the jury that if a person inflicted an injury upon a person la- 
 bouring under a mortal disease, which caused that person to die sooner 
 than he otherwise would have done, he was liable to be found guilty of 
 manslaughter, and the question for them was, whether the death of 
 the wife was caused by the disease under which she was labouring, or 
 whether it was hastened by the ill usage of the prisoner.^ 
 
 ' R. „. Webb, 1 M. & Rob. 405. ^ 1 Hale, 428. 
 
 » Com. V. M'Pike, 3 Gush. 181. * State v. Morea, 2 Ala. 275. 
 
 5 R. V. Fletcher, 1 Russ. on Cr. 507. Mr. Greaves states that the jury acquitted; the 
 evidence of the surgeon leaving it doubtful whether the death did not arise purely from 
 natural causes. The first and second counts of this indictment were in the ordinary 
 form where the death has been caused by blows; the third alleged that S. F. was ill of 
 a certain mortal disease, whereof, accordiug to the course of nature, she, after a long 
 space of time, (to wit,) after the space of four months, would have died; that the pri- 
 soner assaulted and beat, &;oi#.(in the usual form,) S. F. so being sick and ill as afore- 
 said, giving her divers mortal strokes and braises, and which said mortal strokes and 
 
244 HOMICIDE. 
 
 When an indictment charging the death to hare been occasioned 
 by two co-operating causes, and the evidence failing to support one 
 of the causes, is sufficient. A count stated the death to have been 
 caused by omitting to give the deceased proper food, and also by 
 beating; it was held that the prisoner, being a married woman, 
 was not legally responsible for omitting to provide food, and conse- 
 quently that this count, which charged the death jointly by starving 
 and beating, was not supported.' 
 
 If the indictment charge the death to have arisen from one cause, 
 and it appears that the death was accelerated by that cause, but really 
 arose from another, not being a natural cause, the evidence does not 
 support the count. A count charged the death of a child to have 
 been occasioned by exposure to cold ; the evidence was, that the child 
 was found in a field, alive, with a contusion on the head, and that it 
 died a few hours afterwards: the medical men stated that the con- 
 tusion was in itself sufficient to occasion death, .and that the expo- 
 sure might have accelerated it: it was submitted on behalf of the 
 prisoner, that supposing the death to have been accelerated only by 
 the exposure, the count which charged it as the cause could not 
 be supported, and of this opinion was the judge, who tried the 
 case.^ 
 
 It is not necessary that the homicide should have been the eflFect of 
 the direct violence of the defendant. If a person being attacked, 
 should, from an apprehension of immediate violence, an apprehension 
 which must be well grounded and justified by the circumstances, 
 throw himself for escape into the river, and be drowned, the person 
 attacking him is guilty of murder.' 
 
 V. CHARACTER OP THE DEFENDANT. 
 
 The defendant's character can only be drawn into issue by himself,'' 
 and he is restricted in so doing to the particular trait or quality in- 
 volved in the prosecution.* Peaceableness or regularity of conduct, 
 and good feeling to the deceased, would therefore be the proper points 
 of defence in a trial for homicide ; and it would be absurd to divert 
 the issue to other qualities, the bona fide possession of which would 
 be perfectly reconcilable with guilt.^ It was for some time con- 
 sidered doubtful, whether the introduction of evidence of good cha- 
 racter was a right, appertaining in every case to a defendant on a 
 
 bruises did then and there greatly hasten and accelerate the death of S. F., of the same 
 disease whereof she was then and there sick and ill as aforesaid, by then and there irri- 
 tating, causing, and proToking the said disease to operate more violently and speedily 
 than the same would otherwise have done ; of which said mortal disease, so irritated and 
 provoked as aforesaid, S. F. did languish, &c., (in the usual form,) on which said day 
 S. F., of the said mortal disease, so irritated and provoked as aforesaid, did die &c. No 
 objection was made to this count, which was framed on 1 Hale 428 ' 
 
 1 R. V. Sanders, 7 C. & P. 277. ■' Stookdale's case! 2 Lew. 220. 
 
 3 R. V. Pitts, 1 Car. & Mars. 284. 
 
 « Fannin v. State, 14 Miss. 386; Ball. N. P. 296; Com. v. Webster, 5 Gushing 325 • 
 People V. White, 14 Wend. Ill; Carter v. Com. 2 Virg. Cases; State v. Men-ill, 2 Dev' 
 269; State v. O'Neil, 7 Ired. 251 ; Com. v. Hopkins, 2 Dana. 418. 
 
 siGreenleaf onEv. s. 55; 3 Ibid. 25; 1 Phil. Ev. 469, 9th ed.; 2 Russ. on Cr. 784 ■ 
 Best on Presump. s. 153. ' 
 
 6 Ibid.; R. V. Clarke, 2 Stark. 241 ; R. v. Hodgson, R. & R. 211 ; Douglass v. Towsey 
 2Wend. 315; Carroll r. State, 3 Humph. 315. - B »v. lowsey, 
 
CHARACTER OF THE DEFENDANT. 245 
 
 criminal trial, or was an accident to be regulated by the discretion of 
 the judge as the evidence might appear to him to be relevant or not. 
 It is not intended here to consider the class of cases in which it was 
 supposed to be inadmissible, e. g. cases of clear guilt, because in 
 capital cases, which this treatise principally concerns, it was always 
 held admissible in favorem vita, and because even in cases of misde- 
 meanors the distinction is now entirely abandoned, so far as this 
 country is concerned.' It may now indeed be considered as settled 
 that the defendant is entitled, in all cases whatever, to introduce 
 evidence of his good character, so far as relates to the subject matter 
 of the prosecution. 
 
 The defendant, however, is restricted to general evidence,^ it 
 being reserved to the prosecution to put in evidence particular acts, 
 should the defendant open the way by putting general character 
 in issue.' 
 
 > R. V. Stannard, 7 C. & P. 673 ; Cora. «. Hardy, 2 Mass. 317; State v. Wells, Coxe's 
 K 424; Wills on Cr. Ev. 131; Com. «. Webster, 5 Gush. 324, 325 ; U. S. d. Roudenbush, 
 1 Baldw. 514; State v. M'Daniel, 8 Sm. & M. 401 ; Da^is «. State, 10 Ga. 101. 
 
 2 Archbold, C. P. 104; 2 Euss. on Cr. 784. 
 
 ' Ibid.; Com. c. Robinson, Thach. Cr. Cases, 230. 
 
 The remarks of Sir William Russell as to the weight to be attached to this species of 
 testimony are worthy of grave consideration: "It has been usual to treat the good cha- 
 racter of the party accused, as evidence to be taken into consideration only in doubtful 
 cases. Juries have generally been told, that where the facts proved are such as to 
 satisfy their minds of the guilt of the party, character, however excellent, is no subject 
 for their consideration; but when they entertain any doubt as to the guilt of the party,- 
 they may properly turn their attention to the good character which he has received. 
 It is, however, submitted with deference, that the good character of the party accused, 
 when satisfactorily established by competent witnesses, is an ingredient which ought 
 always to be submitted to the consideration of the jury, together with the other facts 
 and circumstances of the case. The nature of the charge, and the evidence by which 
 it is supported, will often render such ingredient of little or no avail; but the more cor- 
 rect course seems to be, not, in any case, to withdraw it from consideration, but to leave 
 the jury to form their conclusion upon the evidence, whether an individual, whose cha- 
 racter was previously unblemished, has or has not committed the particular crime for 
 which he is called upon to answer." 2 Russ. on Cr. 785. 
 
 " To these remarks," says Mr. Sergeant Talfourd, " we may be permitted to add, that, 
 according to the language frequently adopted by judges in their charges, it may be 
 proved that character is in no ease of any value. They say that, in a clear case, charac- 
 ter has no weight; but if the case be doubtful — if the scale hangs even — then the jury 
 ought to throw the weight of character into the scale, and allow it to turn the balance 
 in the prisoner's favour; but the same judges will tell juries, 'that in every doubtful 
 case they ought to acquit,' stopping far short of the even balance, and that the prisoner 
 ' is entitled to the benefit of every reasonable doubt.' In clear cases, therefore, the cha- 
 racter is of no avail, and in doubtful cases it is not wanted: it is never to be considered 
 by the jury but when the jury would acquit without it. The sophism lies in the absolute 
 division of cases into clear and doubtful, without considering character as an ingredient 
 which may render that doubtful which would otherwise be clear. There may certainly 
 be cases so made out, that no character can make them doubtful; but there may be 
 others in which evidence given against a person without character, would amount to 
 conviction, in which a high character would produce a reasonable doubt, nay, in which 
 character will actually outweigh evidence which might otherwise appear conclusive. It 
 is, in truth, a fact varying greatly in its own intrinsic value, according to its nature ; 
 varying still more in its relative value, according to the proofs to which it is opposed, 
 but always a fact, fit, like all other facts proved in the cause, to be weighed and esti- 
 mated by the jury." Dickens. 20, s. 563. 
 
 "There are oases of circumstantiahevidcnce," says Chief Justice Shaw, "where the 
 testiii|iony adduced for and against a prisoner is nearly balanced, in which a good cha- 
 racter would be very important to a man's defence. A stranger, for instance, may be 
 placed under circumstances tending to render him suspected of larceny or other lesser 
 crime. He may show, that notwithstanding these suspicious circumstances, he is es- 
 
246 HOMICIDE. 
 
 While, however, the general rule is universally acquiesced iu, that 
 it is incompetent for the prosecution to put in issue the defendant's 
 character qua character, there have been not a few cases in which 
 this result has been approximated under cover of proof of the quo 
 
 teemed to be of perfectly good character for honesty in the community where he is 
 known, and that may be sufficient to exonerate him. But where it is a question of great 
 and atrocious criminality, the commission of the act ia so unusual, so out of the ordinary 
 course of things, and beyond common experience — it is so manifest that the offence, if 
 perpetrated, must have been influenced by moti-ves not frequently operating upon the 
 human mind — that evidence of character, and of a man's habitual conduct under common 
 circumstances, must be considered far inferior to what it is in the instance of accusations 
 of a lower grade. Against facts strongly proved, good character cannot avail. It is 
 therefore in smaller otfenoes, in such as relate to the actions of daily and common life, 
 as when one is charged with pilfering and stealing, that evidence of a high character 
 for honesty would satisfy a jury that he would not be likely to yield to such a tempta- 
 tion. In such case, where the evidence is doubtful, proof of character may be given 
 with good effect. But still, even with regard to the higher crimes, testimony of good 
 character, though of less avail, is competent evidence to the jury, and a species of evi- 
 dence which the accused has a right to offer. Bnt it behooves one charged with an atro- 
 cious crime, like this of murder, to prove a high character, and by strong evidence, to 
 make it counterbalance a strong amount of proof on the part of the prosecution. It is 
 the privilege of the accused to put his character in issue or not. If he docs, and offers 
 evidence of good character, then the prosecution may give evidence to rebut and coun- 
 teract it. But it is not competent for the government to give in proof the bad character 
 of the defendant, unless he first opens that line of inquiry by evidence of good charac- 
 ter " Com. V. Webster, 5 Cush. 535 ; Bemis' Webster case, 495, 496. 
 
 Mittermaier (Deutsch Straf. p. 131,) says, "Throughout the middle ages, the Ger- 
 man as well as the Latin codes made ill repute a cause of inquest, and attached to it 
 certain consequences averse to the defendant in the original and mesne process, on a 
 substantive trial. Similar expressions occur in the modem codes, and in the proceed- 
 ings preparatory to the trial by jury, it is an important point of the defence to establish 
 the good character of the accused by witnesses. In the German practice, the inquiry 
 into reputation has grown into a principal portion of the inquest, in the shape of a state- 
 ment on the record, of the walk and conduct of the accused, and his moral character. 
 The influence of the character of the accused upon the weight to be ascribed to the sus- 
 picion, and the requisition of the modem codes that he be put face to face with the 
 judge, make this inquiry particularly valuable." 
 
 " The better course, is to examine witnesses in regard to the character of the accused ; 
 the result, however, will depend upon the selection as witnesses, of those who are best 
 able to speak from personal experience of the facts necessary to be known, for the pur- 
 pose for which the inquiry is conducted. This inquiry is general, when its purpose is 
 merely to leam the walk and the personal character of the accused. This will be at- 
 tained by the general questions put to the accused ; the inquiries made of the municipal 
 authorities under whose jurisdiction he lived, and the trial of the persons who had an op- 
 portunity of becoming acquainted with him. But it is also special, for the purpose of 
 obtaining cognizance of particular circumstances of his life, (e. g. a disposition to com- 
 mit certain offences,) or peculiarities of his moral nature, (e. g. in questions of self-de- 
 fence, a peaceable disposition,) the knowledge of which is necessary to a proper appre- 
 ciation of certain points which exert an influence on the decision whether the facts' re- 
 ferred to are incriminatorial or exculpatory. Where the evidence is involved and circum- 
 stantial, or where a partial confession has been obtained, this investigation must not be 
 omitted. Its importance in particular cases will vary as the circumstances evolved at 
 the primary examination, which demand further remark, are more or less weighty, or 
 as the trial takes a turn which makes the discovery of the moral peculiarities of the ac- 
 cused more or less desirable. Its direction will be determined by the nature of the crime, 
 (as for instance, in infanticide,) which is in question, and in one and the same species 
 of crime by the particular turn and course of the proceedings. The judge must bear in 
 mind that impertinent matters, the investigation of which would swell the costs and cause 
 delay, must not, perhaps to gratify an idle curiosity, be made the subject of an inquiry 
 into character ; but a declaration of opinion of the witness on the character of the ac- 
 cused will never suffice, and the witness must state the arguments and facts upon which 
 he founds his opinion, and the necessary proofs thereof, so that the inquiry may, if ne- 
 cessary, be extended to the application of the proofs thus adduced." See Wh. C L 
 (2ded.)237., 
 
CHARACTER OF DEFENDANT. 247 
 
 animo. Thus, in Connecticut it has been held that on the trial of a 
 man charged with the murder of his wife, the state could show, for 
 the purpose, it was said, of rebutting the presumption of innocence 
 arising from the marital relations between the defendant and the de- 
 ceased, that he had lived in adultery with another woman.^ 
 
 And in Alabama, on a trial for a similar offence, proof that the pri- 
 soner during the year preceding the homicide, applied to the mother 
 of a single woman for permission to visit her daughter, and was de- 
 nied it because he was a married man, is admissible to show a motive 
 for the commission of the crime.^ 
 
 And obnoxious as such evidence is in one respect to the great com- 
 mon law principle which secures the inviolability of character until 
 the attack is invited, the exception has been too long recognised to 
 be now excluded. 
 
 Thus, on an indictment for murder, former attempts of the defen- 
 dant to assassinate the deceased are admissible in evidence; so are 
 former menaces of the defendant, or expressions of vindictive feel- 
 ing towards the deceased, or, in fact, the existence of any motive 
 likely to instigate him to the commission of the oifence in question.' 
 On the trial of an indictment for assault and battery, in order to 
 show some motive of resentment on the part of the defendant, it was 
 held competent for the state to prove that the prosecutor had said, in 
 the defendant's hearing, a short time before, "that no honest man 
 would avail himself of the bankrupt law," and that to prove further, 
 that the defendant's father had previously been talking about taking 
 the benefit of that act.'' 
 
 So, on an indictment for maliciously shooting, if it be questionable 
 whether the shooting was by accident or design, proof may be given 
 that at some other time the prisoner intentional^ shot at the same 
 person.* Evidence of a single instance of unlawful gaming, may go 
 to the jury, upon the trial of one indicted as a common gambler, and, 
 with other circumstances, e. g., that he displayed gaming implements, 
 &c., might warrant a conviction; while proof of many instances of 
 playing, accompanied with evidence that the accused pursued a law- 
 ful calling and only played for pastime, might not.° Upon a trial of 
 an indictment for passing counterfeit bank notes, proof that prisoner 
 had, about the same time, passed another note of the same kind 
 which was thought to be a counterfeit, and which he took back, 
 though this note is not produced on trial, is admissible evidence to 
 prove the scienter.'' It may also be proved by the fact of similar 
 forged orders being found in the possession of the defendant, or of an 
 accomplice in passing them.' And so, too, evidence of prior indecent 
 assaults upon the prosecutrix is admissible in a prosecution for rape.' 
 
 1 State V. Watkins, 9 Conn. 47. 
 
 * Johnson v. State, 17 Ala. 618 ; see, also, Stone v. State, 4 Humph. 27. 
 
 3 See Arch. C. P. 73 ; State v. Wisdom, 8 Porter, 511 ; Cole v. Com. 5 Grat. 696. 
 
 * State V. Griffis, 3 Ived. 504. 5 R. v. Yoke, E. & K. 531. 
 ' Com. V. Hopkins, 2 Dana, 419. 
 
 ' Martin v. Com. 11 Leigh, 745 ; Spencer v. Com. 11 Leigh, 751 ; Hendrick v. Com. 
 5 Leigh, 708; U. S. v. Craig, 4 Wash. C. C. R. 729 ; State v. Antonio, 2 Tr. Car. R. 776 ; 
 IT. S. V. Doeble, 1 Baldwin, 519. 
 
 « Com. V. Percival, Thacher's C. C. 293; State v. Turtly, 2 Hawks, 248; U. S. v. Har- 
 man, 1 Baldwin, 292. 
 
 9 Williams v. State, 8 Humph. 585. 
 
24:8 HOMICIDE. 
 
 It should be observed, however, that while evidence of distinct 
 acts of crime is admissible when tending to show special malice to 
 an individual, or the scienter, they cannot be received to prove a ten- 
 dency to commit the particular class of crimes of which the defen- 
 dant is accused, and a fortiori, as general evidence of such a ten- 
 dency inadmissible. Thus, in England, it has been held, that on the 
 trial of a person charged with an unnatural crime, it was not evi- 
 dence to prove that the defendant had admitted that he had a ten- 
 dency to such practices ;» and so on an indictment against an overseer 
 on a plantation for the murder of a slave, evidence as to the priso- 
 ner's general habits in punishing other slaves is not admissible for 
 the prosecution.* It is at this point, indeed, that the common and the 
 civil law diverge. In the first, the issue is, whether the defendant 
 was guilty of the particular offence, and he advances to meet this 
 issue with a presumption of general good character, which nothing 
 but his own election can defeat. No matter what independent crimes 
 he may have been guilty of, or what infamy he may have incurred, 
 unless he invite the investigation himself, neither crime nor infamy can 
 be advanced against him. But under the civil law, the issue is not whe- 
 ther the accused committed the particular offence, but whether his ge- 
 neral guilt is such as to make his removal from society a general bene- 
 fit. To this inquiry, the particular accusation is used merely as an 
 avenue. Thus, by the common law, as has just been seen, the court 
 will check any attempt whatever, to show that the defendant's cha- 
 racter and antecedents, were such as to exhibit a tendency to the 
 particular crime charged; while on these points, by the civil law, 
 the public prosecutor is encouraged to collect as great a mass of de- 
 tails as possible, and to spread it before the court at the outset. Of 
 this distinction, a curious illustration is found in a case which has 
 excited both popular and physiological speculation in Germany.' A 
 young woman, in the streets of Leipsic, one night was assaulted by a 
 man in a cloak, who darting from behind a dark corner, struck into 
 her arm, above the elbow, the blade of a small lancet, and having in- 
 flicted a slight wound, retreated. He was arrested, and in this 
 country would have been tried for an assault and battery, unless he 
 provoked a widening of the issue. But it had been rumoured about 
 a short time previously, that a very remarkable species of monoma- 
 niacs had lately made their appearance in Leipsic, called Maedchen- 
 schneiders, who were influenced by an uncontrollable propensity to 
 plunge, skin-deep, into the arms of any young maidens whom they 
 could meet, a small lancet. This was brought into the issue; and 
 three questions were presented for investigation, on which a vast 
 amount of physiological refinement, forensic skill, and judicial ex- 
 position were spent: 1st. Did such a propensity exist; 2d. Had it 
 been generally executed ; and 3d. Was the defendant's moral tone 
 and past history, such as to make it probable that it would exert over 
 him a control inconsistent with the convenience and the comities of 
 society? These points, after protracted investigations, were deter- 
 mined against him, and he was convicted and sentenced accordingly. 
 
 1 1 Phillips on Ev. 499; 1 Rusa. on Cr. 700. 
 
 2 Bowling V. State, 6 S. & M. 604; aee^^ also, State v. Kenton, 15 New Hamp. 169. 
 
 ' See Anuales der Deutcher, und Auslandischer, Criminal-Rechts-Pflege, von Dr J 
 
 C. Hitzig. s . . • 
 
CHARACTER OF THE DECEASED. 249 
 
 A precise counterpart to this, so far as the principle is concerned, 
 occurs in the trial, in London, in 1789, of a man named Williams, 
 who was possessed with a passion the same as that which beset 
 the " Maedchen Schneider. " When he was at last arrested, he was 
 met with a series of indictments which charged him with assaulting, 
 in the year 1789, a variety of spinsters;" it being averred by way of 
 description, in each case, that he did "cut, tear and deface her silk 
 gown," and " did cut, strike and wound her." His manner of in- 
 flicting the wound was the same as t^at described in the text; but so 
 artful and cautious were his movements that it was not until the public 
 were enlisted in unferreting him by permanent advertisements, that he 
 was at last detected. On the first trial he escaped on account of mis- 
 description in the details; but he was remanded to wait his trial for 
 the common assault, upon a number of which he was severally con- 
 victed. The narrow issue and brief evidence each case presented, 
 forms a vivid contrast to the elaborate and metaphysical investiga- 
 tion of the civil law. The prosecutrix was called, proved the as- 
 sault, was followed by medical evidence of the wound, and such tes- 
 timony as belonged to the res gestce, and then in the second and sub- 
 sequent trials, the chairman said to the jury, "you will endeavour, if 
 possible, to forget every thing that passed even yesterday, and to 
 treat this as a new offence; and to treat the prisoner, in your judg- 
 ment upon him, as if you had never heard of him, but that he was 
 now brought before you, changed with an assault, proved only by one 
 witness, but with certain corroborating circumstances."' On the first 
 trial, BuUer, J., who never forgot the great guarantees of the com- 
 mon law, was equally emphatic. "You will totally lay aside every 
 thing you may have heard before you came into this court, and con- 
 sider the case coolly and dispassionately on the evidence given." ^ 
 
 It is not a conclusion of law that an omission to produce evidence 
 of good character, affords the presumption of 6ad.^ 
 
 VI. CHARACTER OP THE DECEASED. 
 
 It has already been briefly considered how far the character of the 
 deceased, for peace and order, may be drawn into question, when the 
 defence taken is that the defendant, from all the circumstances in the 
 case, of which the deceased's character was one, had reason to be in 
 fear of his life. As was there shown, there have been cases in which 
 courts have been obliged to allow great evidence to be introduced, 
 and it is easy to imagine cases in the future in which it would be im- 
 possible to exclude it.'' But as a general pi'inciple, the rule continues 
 unbroken, that evidence that the deceased was riotous, quarrel- 
 some, and savage, is inadmissible, even though such knowledge be 
 brought home to the defendant himself.' Any other rule would al- 
 low a private citizen to take upon himself the province of govern- 
 ment in the punishment of crime. 
 
 1 See Lawyer's Mag., London, 1792, voL ii. p. 351. ' Ibid. vol. i. p. 422. 
 
 ' People V. Bodlne, 1 Denio, 281 ; State v. O'Neil, 7 Iredell, 251. 
 
 * See ante, 216, 217 ; Queensbury, v. State, 3 Stew. & Porter, 315 ; State v. Tackett, 
 1 Hawks, 210; Oliver v. State, 17 Ala. 587; Wright v. State, 9 Yerg. 342; Com. v. Sei- 
 bert, ante. 
 
 6 State V. Field, 14 Maine, 248; State v. Tilley, 3 Ired. 424; Com. v. York, 9 Met. 
 110; State v. Hawley, 4Harrlng. 562. 
 
250 HOMICIDE. 
 
 CHAPTER X. 
 
 INDICTMENT, PLEAS, AND TEEDICT. 
 
 The main points in the chapter will be considered as follows: — 
 
 I. Name. 
 
 II. Addition. 
 
 III. Time and place. 
 
 IV. "Force and arms." 
 
 V. "Moved and seduced by the instigation of the devil." 
 YI. "In and upon one E. P." 
 
 VII. " In the peace of God and of the said state, then and there 
 beinf^." 
 
 VIII. " Feloniously, wilfully, and of his malice aforethought, did 
 make.an assault." 
 
 IX. "With a certain knife" (means of death.) 
 
 X. " Of the value of, &c." 
 
 XI. "Which he the said A. B. in his right hand then and there had 
 and held." 
 
 XII. "Him, the said E. F., in and upon the left breast of him the 
 said E. F." 
 
 XIII. "Then and there feloniously, wilfully, and of his malice 
 aforethought." 
 
 XIV. " Did strike and thrust, giving to the said E. P. then and there 
 with the knife aforesaid." 
 
 XV. " In and upon the said left side of the breast of him the said 
 E. P." 
 
 XVI. " One mortal wound of the breadth of three inches, and of the 
 depth of one inch." 
 
 XVII. "Of which said mortal wound the said E. F. from, &c., to, 
 &c., at, &c., did languish, and languishingly did live." 
 
 XVIII. "Of which said, &c., at, &c., of the wound aforesaid, died." 
 
 XIX. " And so the jurors aforesaid, &c., do say, that the said A. B., 
 him the said E. P., in manner and form aforesaid, feloniously, wilfully, 
 and of his malice aforethought, did kill and murder." 
 
 XX. "Contrary to the form," &c. 
 
 XXI. Distinctive feature of manslaughter. 
 
 XXII. Pleas. 
 
 XXIII. Verdict. 
 
 T. J^ame. 
 
 The Christian and surname of the defendant, if known, should be 
 stated with correctness; except in an indictment against the inhabi- 
 tants of a county or parish, who may be so described without naming 
 
INDICTMENT — ADDITION. 251 
 
 any of them.* But if the name of a prisoner is unknown, and he re- 
 fuses to disclose it, an indictment may be sustained against him as "a 
 person whose name is to the jurors unknown, but who is personally 
 
 brought before the said jurors by , the keeper of the prison of 
 
 .^ A man cannot be indicted with an alias dictus of the Christian 
 
 name, as "John, otherwise Robert," though to an alias of the surname 
 there is no objection;^ surnames being originally acquired by assump- 
 tion." An indictment was quashed before plea, because an addition 
 was placed, not after the first name, but after the alias dictus ;^ but 
 this defect is cured by plea.° The cases tend to show that if a de- 
 fendant has more than one Christian name given him in baptism, as 
 John Thomas, they are considered in law as forming one Christian 
 name, and must be set out correctly in their order ;^ though in New 
 York it is declared that a middle name is surplusage, and its omission 
 to be disregarded.' The proper name of a bastard is that he has 
 gained by reputation, and not his mother's name, unless so gained.' 
 
 {Place of residence of defendant.) With respect to residence, it is 
 a good addition of this kind to name the party late of a township 
 named;'" in which respect this addition differs from that of the estate, 
 degree, or mystery; and it is said, that if the defendant be named com- 
 morant in A., late of B., it is sufficient." As will be seen in the forms 
 hereafter given, the residence in most of the states is held to be sa- 
 tisfied by the allegation "late of the county aforesaid," or "late of 
 
 county. " '^ In England greater exactness is required ; and where 
 
 in an indictment for an assault, the defendant was described as late 
 of A. in the county of B., without stating that A. was a parish, it was 
 holden bad; although the offence was laid to have been committed 
 at the parish aforesaid; for some certain venue must appear on the 
 face of the record, and here the offence is laid at the parish aforesaid, 
 and no parish is mentioned.'^ In the city of New York the practice 
 is to charge " late of ward in the city of New York." 
 
 With respect to addition of place, the best and most convenient 
 course is to, state that in which the prisoner committed the offence; 
 for he is considered as conversant of that place, and by this means the 
 confusion of stating two places in the indictment is void.'" 
 
 14 
 
 II. Addition. 
 
 (Proper' addition of the accused party.) The statute 1 Hen. V. c. 5, 
 enacts, that in all indictments on which process of outlawry lies, ad- 
 ditions shall be made to the defendants' names, of their estates or 
 
 1 2 Hawk. u. 25, s. 68; Arohbold's C. P. 25; Wh. C. P. 5. 
 
 2 R. V. , R. & R. 489. s 1 Ld. Raym. 560. 
 
 * See cases collected, 5 M. & W. 447; see, also, per Lord Stowell, Wakefield v. Wake- 
 field, 1 Hagg. Cons. R. 4oO; Barlow v. Bateman, 3 P. Wms. 54. 
 
 5 R. V. Semple, 1 Leach, 420. 
 
 8 R. V. Hannam, ib. n.; see Cro. Jao. 482, 610. 
 
 'Com. V. Perkins, 1 Pick. 388; Jones v. Macquillon, 5 T. R. 195; 3 East, 111; 
 Willes, 554; Evans v. King, Pouget v. Tomkins, 1 Phill. R. 499; Stanhope v. Baldwin, 
 1 Addams' R. 93 ; see 1 M. & Gr. 783, n. 
 
 8 Roosevelt v. Gardiner, 2 Cow. 463. » R. v. Clark, R. & R. 358. 
 
 i» See Dickinson's Q. S. 203; R. v. Yandell, 4 T. R. 521. 
 
 " Cortizos V. Munoz, Stra. 924. 12 geg -^11. c. P. 7. 
 
 13 R. V. Mathews, 2 Leach, 664; 5 T. R. 162. 
 
 " 2 Hawk. c. 27, s. 125, 126. 
 
252 HOMICIDE. 
 
 degree, or mystery, and of the towns or hamlets, or places, and the 
 counties of ■which they were or are conversant. This statute has 
 been either recognised as in force in those states where the question 
 has been brought up independent of local legislation, or has been 
 substantially re-enacted.^ 
 
 In England, if an accused have several titles, he must be described 
 by the most honourable; and if he have none by birth, office, creation, 
 or reputation, and is described by any such, or if a gentlewoman be 
 named merely spinster, or a yeoman is named gentleman, the indict- 
 ment will be defective.^ But a trader may be sued either by his 
 degree or rank in society, independent of his trade, or by the name 
 of his vocation.^ A misdescription, however, calculated to throw 
 contempt on the defendant is bad, and on this ground an indictment 
 was held vicious in abatement, which described the defendant as a 
 lottery vender, when he was in fact a lottery broker.* 
 
 By stat. 8 Hen. VI. c. 10, s. 1,2, the indictment ought to contain 
 the addition of the place and county where the party indicted is "con- 
 versant and dwelling." The county in the margin refers to the place 
 where the offence was committed, and not to the habitation of the 
 party. Accordingly an outlawry for perjury was reversed on error, 
 for the party was indicted by the name "N. L., late of the parish of 
 A.," without showing in what county A. is, though "Middlesex" was 
 in the margin.' 
 
 Neither yeoman nor labourer is a good addition for that of a wo- 
 man; and widow, single woman, wife of A. B. and spinster, are good 
 additions of the estate and degree of a woman; but burgess and citi- 
 zen, and servant, are all of them too general, and therefore not good 
 additions of the estate or degree either of a man or woman. ^ Thus, 
 in an indictment for assault, the addition was stated as gentleman. 
 The plea that he was an esquire and no gentleman, was overruled, and 
 Fortescue, J., said, " This is in addition only, not in the name, and they 
 are the same, and every esquire is a gentleman, and gentlemen are 
 called esquires.' The prisoners were jointly indicted for stealing 
 clothes, M. W. being described in indictment as "Margaret Wood- 
 ward, single woman," and she pleaded to that indictment. The only 
 evidence was that the prisoners addressed each other as husband and 
 wife, and passed and appeared as such, and were spoken of as such 
 by witnesses for crown. Patteson, J., said. This is evidence on which 
 the jury must say whether they are satisfied that the prisoners are 
 in fact husband and wife, even though the woman has pleaded to in- 
 dictment charging her as "single woman." She ought to have been 
 described as wife, not as single woman. The woman was acquitted; 
 the man convicted. 
 
 There are few cases in the American books, where the niceties of 
 the English law of additions have been recognised. A want of an 
 
 1 Wh. C. P. 7; state v. Hughes, 2 Har. & M'H. 479; Com. i;. Sims, 2Va. Cases, 374; 
 Com. V. Lewis, 1 Met. 151; State v. Bishop, 15 Maine, 122. 
 
 2 2 Inst. 699. » Erskine v. Murray, 2 Ld. Raym. 1542. 
 * State V. Bishop, 15 Maine, 122. ^ Leech's case, Cro. Jac. 167. 
 
 6 2 Hawk. c. 23, s. HI; 2 Inst. 668; 1 Bla. C. 405; Ld. Raym. 1179; 6 M. & S. 38. 
 R. V. Gheeketts, 6 M. & S. 38. As to yeomen, see 1 Bla. C. 406; 2 Inst. 595, 668. 
 ' R. V. Chapman, cited by Fortescue, J., in Williams v. Francis, Fort. R. 354. 
 
INDICTMENT— ADDITION. 253 
 
 addition in toto is ground for a motion to quash; but the additions 
 "yeoman," "spinster," "gentleman," "labourer," may be relied upon 
 universally in their proper places as suiBcient. In Virginia, it is 
 true, in an old case, the diflference between "labourer" and " yeoman" 
 ■was held material;^ but the present tendency is to regard the exist- 
 ence of any additions, however general, as enough. Perhaps "yeo- 
 man " is the most general and unexceptionable. Where a slave is 
 charged with an offence, the proper addition seems to be, " that a 
 negro slave, the property of B." &c.' 
 
 (Several defendants with same additions.) If several defendants 
 have the same addition, it is safest to repeat the addition after each 
 name, applying it particularly to every one of them; and where a 
 father has the same name and the same addition with a defendant, 
 being his son, an indictment is defective unless it add the addition of 
 the younger to the other additions; but where the father is a defendant 
 without his son, it is clear that there is no need of the addition of the 
 elder. Where L. W. Sr. and L. W. Jr. lived in the same town, on 
 an indictment against L. W., evidence is not admissible of acts done 
 by L. W. Jr., as it is to be presumed that the indictment means L. 
 W. Sr.3 
 
 In Indiana it seems no addition is necessary.'' Thus Dewey, J., in one 
 case said :' " The objection urged against the indictment is, that the de- 
 fendant is not described by the addition of his degree, or mystery, and 
 place of residence. By the common law no addition was required in 
 indictments against persons under the degree of a knight. ° The 
 statute of additions enacts that the defendants shall be described by 
 adding to their names their estate, degree or mystery, and place of 
 residence, in all cases in which the exigent shall be awarded." It 
 has been held, in the construction of this statute, that in prosecutions, 
 which cannot be attended by the process of outlawry, the indictment 
 need not give the addition of the defendant.^ The exigent, being a 
 step in the proceedings of outlawry, is unknown to our law. It is 
 therefore evident that the statute of additions, from its own terms, is 
 not applicable to prosecutions in this state; and it is equally clear, 
 that the common law does not require the defendant to be described 
 by his addition. 
 
 [Mystery at time of finding.) The additions of estate, degree, 
 and mystery of the defendant, are not sufficient, unless they be the 
 same which he had at the time of the finding of the indictment; and 
 in this respect such additions differ from that of place, which is suffi- 
 ciently shown by naming the defendant /a#e of such a place; and such 
 additions must be expressed in such manner that it may plainly 
 appear to refer to the party; and therefore it is not well expressed 
 by the addition of his mystery, naming him son of A., of B., butcher, 
 because butcher refers to it rather than to the son. ' 
 
 > Com. V. Sims, 2 Va. Cases, 374. » State v. Cherry, 3 Murph. 7. 
 
 3 State V. Vittum, 9 N. Hamp. 519; Jackson, ex dem; Pell v. Provost, 2 Caines, 165; 
 but see Com. v. Perkins, 1 Pick. 388; State v. Grant, 22 Maine, 171 ; Coit v. Starkwea- 
 ther, 8 Conn. 280. 
 
 * State V. M'Dowell, 6 Blackf. 49. 5 i chit. C. L. 204. « 1 Hen. V., c. 5. 
 
 ' 1 Chit. C. L. 206; Bacon Abr. Indictment, ii.; ibid. Misnomer 2 ; R. v. Brough, 
 1 Wils. 244; Cro. Eliz. 148. 
 
 « 2 Inst. 670 ; 2 Hale, 177. 
 
254 HOMICIDE. 
 
 (How error in name of addition operates.) The only mode by 
 which at any time advantage can be taken by a prisoner of any error 
 in his name or addition, is by plea in abatement;' though where no 
 addition is given, or where there is no Christian name, the proper 
 course is to move to quash. If he once pleads the general issue 
 not guilty, he cannot afterwards take advantage of any such error, 
 for he is precluded and estopped by his plea; and he is not obliged 
 to take advantage of an error in these respects, by pleading in 
 abatement, in order to make his acquittal a valid bar to any subse- 
 quent prosecution for the same offence; for if he be afterwards 
 indicted for the same oflFence by another name or addition, he may 
 show himself to be the same person by averment and evidence, and 
 rely with success on his previous acquittal, notwithstanding the 
 variance.^ A plea in abatement must be verified by affidavit exposing 
 the defendant's real name, additions, or mystery, as the case may be.^ 
 An error as to one party of several, can only be taken advantage of, 
 in any stage, by him, and does not affect the indictment as to the 
 others.* A plea in abatement was always of small benefit to the 
 party accused, because he was bound to set out his true name and 
 addition in it; and, if successful, might be indicted for the same 
 felony; while if unsuccessful, in the English practice, sentence fol- 
 lowed in misdemeanor;* though here the inclination of authority, 
 judging from the doctrines arising in demurrer, is that the judgment 
 would be respondeat ouster.^ 
 
 III. Time and Place. 
 
 Though some precise day, month, and year must be charged;^ 
 yet it is not necessary to sustain the precise allegation in proof, if the 
 time stated be /previous to the finding the indictment;' but it is 
 material to show that the prosecution was commenced in due time, 
 where it is enacted that it shall be commenced within a particular 
 time;^ and where the offence is statutory, the time laid must be sub- 
 sequent to the passage of the statute by which the offence was 
 created. It is not, however, necessary to allege time to any charge 
 of mere negation or omission.'" If the offence is laid on an uncertain 
 or impossible day, or on a future day, or on different days, or on such 
 a day as renders the indictment repugnant to itself, the objection is 
 fatal in arrest of jucfgment even after verdict. Thus judgments were 
 arrested when the date charged was November, 1801, and the 25th 
 year of American Independence, the dates being inconsistent;" where 
 
 1 State V. Lorey, 2 Brevard, 395; Lynes v. State, 5 Port. 23G ; State v. Hughes, 2 Har. 
 &M'H.479; seeStatet). Newman, 2 Car. Law Rep. 74; Com. d. Dedham, lU Mass. 140 ; 
 Turns v. Com. 6 Met. 22.5; Com. v. Sayers, 8 Leigh, 722; R. v. Granger, .3 Burr. 1G17. 
 
 ■' 2 Hawk. c. 23, s. 103, 104. 
 
 ' Com.t). Sayers, 8 Leigh, 722; R. v. Granger, 3 Burr. 1607; Rev. Stat. Mass. c. 136, 
 s. 31. 
 
 * 2 Hale, 177. ' 1 Chit. C. L. 461. 
 
 6 Wh. C. P. 68; State v. Wilkins, 17 Verm. 162; Ross v. State, 9 Miss. 696. 
 
 ' State V. Beckwith, 1 Stew. 318; Wh. C. P. 8; R. v. Taylor, 3 B. & C. 502. 
 
 8 Starkie, C. P. 58; Shelton v. State, 1 Stew. & Port. 208. 
 
 9 See Salk. 369, 378; Carth. 501; 5 Mod. 446; 1 Ld. Raym. 582; 10 Mod. 248. 
 i»R. v. Holland, 5 T. R. 616; Starkie's C. P. 61. 
 
 " State V. Hendricks, Conf. N. C. R. 369. 
 
INDICTMENT — TIME AND PLACE. 255 
 
 on a charge of compounding felony, the date of the commission of the 
 offence was laid anterior to the date fixed for the commission of the 
 larceny ;i and where the crime was alleged to have been committed 
 on September 30, 1033.^ So if the date be left blank.^ Where, 
 however, an indictment tried in the first year of George IV., stated 
 the offence as having been committed " on the 20th July, in the 
 fourth year of the reign of king George the Fourth," it was holden 
 that the words "'fourth year of the " might be rejected as super- 
 fluous, and the indictment sustained.^ Thus, where it was made a 
 statutory misdemeanor to exhibit lights to persons at sea " between 
 September and April," an allegation that the defendant exhibited 
 lights on the Qth March was held sufficient, without specifically aver- 
 ring that he did so "'between September and April."* It seems that 
 where an offence is laid contrary to the form of a statute, it is not 
 necessary to state it to have been committed " after the passing of 
 the act," though it took place very recently before, if the time when 
 it took place is laid and proved to be after the act passed.^ If, 
 in point of fact, an offence is committed after a day fixed by a sta- 
 tute, as that on and after which an offence may be laid and tried as if 
 committed in the county in which the offender is apprehended, and 
 the statute does not vary the nature and character of the offence, the 
 having laid the day in the indictment before the day fixed by the 
 statute, will not vitiate. ' Clerical errors, however, in setting forth 
 the date, are liberally treated. Thus, "first March" was held suffi- 
 cient for "first of March; "^ and where the caption was "December 
 Sessions, 1818," the date was held sufficiently well expressed by the 
 averment "in the year aforesaid."* The setting forth, the date in 
 Arabic figures is enough. '° The word " being" (existens) will, unless 
 necessarily connected with some other matter (e. g.) by the word then, 
 relate to the time of the indictment, rather than of the offence. " 
 
 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. '^ 
 
 In this country the usual practice in averring place is by 
 charging the offence to have taken place in the county where it was 
 committed." In Massachusetts, however, it has been held, that if 
 from the terms of the location of a town or district by the act of 
 incorporation, the court cannot conclude that the whole town, dis- 
 
 1 State 11. Dandy, 1 Brevard, 395. 
 
 2 Serpentine v. State, 1 How. Miss. R. 260. , 
 
 3 State V. Beckwith,'l Stewart, 318; State v. Roach, 2 Hay. 5-j2; Tam v. State, 
 3 Miss. 43. 
 
 * a. v. Gill, R. & R. 431 ; see R. t>. Scott, R. & R. 414; 1 Russ. C. M. 562, S. C. 
 5 6-Geo. IV., c. 164, s. 52; R. v. Brown, M. & M. 163, per Littledale and Gaselee, Js.; 
 see note to Harding v. Stokes, Tyi-. & Gr. 599. 
 
 !■ See judgment of Parke, B., in Harding^t). Stokes, Tyr. & Gr. 005. 
 
 f R. V. Treharme, 1 Mood. C. C. 298. » Simmons v. Com. 1 Rawle, 142. 
 
 9 Jacob V. Com. 5 S. & R. 315. 
 
 11 State V. Gilbert, 13 Vermont, 647; State v. Smith, Peck, 165; State v. Hodgdon, 
 3 Verm. 481. 
 
 " See 1 Chit. C. L. 2d ed. 220, and R. v. Silyersides, 3 Q. B. R. 405 ; Wh. C. P. 8. 
 
 12 State V. Lamon, 3 Hawkes, 175. 
 
 " Wh. C. L. 77; Duncan v. Com. 4 S. & R. 448. 
 
256 HOMICIDE. 
 
 trict or unincorporated place lies in the same county, both town and 
 county must be averred;' and in the same case it was declared, that 
 the proper course in that state, in all capital cases, is to lay both 
 county and town. In the city of New York the practice is to name 
 the ward, in the city of New Orleans the parish. 
 
 (Repeating time and place to every material fact.') When time and 
 place have been once named with precision, the words " then and 
 there" referring to the last antecedent, will afterwards sufficiently 
 express both.^ Where the circumstances stated in indictments for 
 misdemeanors are merely continuous, as in assaults with aggravation, 
 one mention of time and place as applicable to all circumstances, 
 will suffice; but this is otherwise in felonies where distinct and 
 independent circumstances are necessary to the charge.^ But the 
 mere qualification " and," without the word " then," is sufficient 
 to extend the original allegation of time to the averment thus intro- 
 duced.'' Where the time and place are immaterial, they may be 
 introduced by the words to wit; though without a scilicet m such 
 case, a variance would not prejudice; and as in cases where they are 
 of the essence of the charge, a scilicet will not aid a variance in 
 proof;' it is rarely if ever useful.^ 
 
 Murder, like all other offences, must regularly, according to the 
 common law, be inquired of in the county in which it was committed. 
 It appears, however, to have been a matter of doubt at the common 
 law, whether, when a man died in one county of a stroke received 
 in another, the offence could be considered as having been com- 
 pletely committed in either county:' but by the 2 & 3 Edw. 6, c. 24,. 
 s. 2, it was enacted, that the trial should be in the county where the 
 death happened. 
 
 If a person be stricken and die in the county of A., and the body 
 be found in B., it is to be removed into A. for the coroner of that 
 county to take the inquest.' 
 
 IV. Force and Arms. 
 
 (Vi et armis.) Whatever may once have been thought of the 
 magic of these words, it is now settled that they are wholly unessen- 
 tial. The statute' clearly dispenses with them, even if before that 
 they possessed any signification of importance; and the current of 
 authority, even in those states where that statute is not in force, is to 
 reject them altogether."" In Com. u. Martin" the exception taken to the 
 indictment, which was for assault and battery, was the want of these 
 words, and though it does not distinctly appear so on the face of the re- 
 port, the intimation of the court isclear that they are wholly unnecessary. 
 
 1 Com. V. Springfield, 7 Mass. 9. 
 
 ■•' Wh. C. L. 74; Stout v. Com. 11 S. & R. 177. 
 
 3 2 Hale, 178; K. v. Cotton, Cr. El. 738. « Wh. C. L. 74. 
 
 5 Busby V. Watson, Bla. Rep. 1050. « Dickinson's Q. S. 6th ed. 212. 
 
 ' 2 Hawk. P. C. c. 25, s. 36. 
 
 8 2 Hale, 66; 1 Ms. Sum. 53; 1 East, P. C. c. 6, s. 127, p. 361. 
 
 9 87 Hen. 8, c. 8. 
 
 10 2 Hawk. c. 25, s. 90; 3 P. Wms. 497; State v. Kean, 10 N. Hamp. 347; State v. 
 Munger, 15 Verm. 290 ; 2 Tyler, 266 ; Tipton v. State, 2 Yerg. 542 ; Territory v. M'Far- 
 lanc, 1 Mart. 224; State v. Thomson, 2 Rice's Dig. 386. 
 
 " 2 Barr, 244. 
 
INDICTMENT — DESCRIPTION OP PAETT. 257 
 
 V. "Moved and seduced by the instigation of the devil." 
 These words, though usual, are superfluous, and may be omitted 
 with safety. 
 
 VI. " In and upon one E. F." 
 
 The description of the party against whose person or property the 
 offence was committed. The indictment must be so certain as to the 
 party against whom the offence was committed, as to enable the pri- 
 soner to know and understand who that party is, and what charge he 
 is called on to answer.^ And an error in setting forth the names of 
 such party, is much more serious than in setting forth the name of the 
 defendant himself, as the latter can only be taken advantage of by 
 abatement, but the former is proper ground for acquittal, in cases of 
 variance in evidence, or arrest of judgment in case of variance on 
 record.^ The mis-spelling of a surname, when its usual pronunciation 
 is satisfied by the manner in which it is written in the record, as 
 "Whyneard" for " Winyard," is sufficient;' and in one case the court 
 went so far as to say that "Harrison" was not a fatal variance from 
 "Harris;"' though in Pennsylvania,' the extreme position was taken 
 that " Burrall " was sufficient to arrest judgment where the proof was 
 that the name was Burrill. The word, however, it must be observed, 
 occurred in the copy of a lottery ticket, pretended to be set out in 
 the indictment. A mere statement, it seems, of the Christian name, 
 without any surname, will not suffice.® Where the name and addi- 
 tion of the injured party cannot be ascertained, as where a body of a 
 murdered person is found who cannot be identified, or goods are found 
 on a highwayman, &c., the indictment may allege the party to be " to 
 the jurors unknown."'' To support the description of " unknown," 
 remarks Mr. Sergeant Talfourd, it must appear that the name could not 
 well have been supposed to have been known to the grand jury.' " Un- 
 known " was held sufficient where there was evidence that the party 
 injured, a bastard child who died at twelve days old unbaptized, had 
 been called by its mother Mary Ann." A bastard which had never ac- 
 quired a name, is sufficiently identified by showing the name of its 
 parent thus — "a certain illegitimate male child then lately born of 
 the body of A. B. (the mother.)" '° A bastard must not be described by 
 his mother's name till he has acquired it by reputation." A bastard 
 child, six weeks old, who was baptized on aSiinday, and down to the fol- 
 lowing Tuesday had been called by its name of baptism and mother's sur- 
 name, was held by Erskine, J., to be properly described by both 
 those names in an indictment for its murder ;^^ but where a bastard 
 
 1 2 Curw. Hawk. 319. » Whar. Preo. 10. » R. v. Foster, R. & R. 412. 
 
 * State V. France, 1 Overton's R. 434. » Com. v. Gillespie, 7 S. & R. 469. 
 
 « 2 Hawk. c. 25, s. 71. '2 Hale, 181 ; see 2 B. & Aid. 580. 
 
 8 R. V. Stroud, C. & K. 187. 
 
 9 R. V. Smith, 1 Mood. C. C. 295; S. C. 6 C. & P. 151. 
 
 w R. V. Mary and Jane Hogg, 2 M. & Rob. 880; see R. v. Hioks, 2 ib. 302, where 
 an indictment for child-murder was held bad, for not stating the name of the child, or 
 accounting for its omission. 
 
 " R. V. Clark, R. & R. 358; Wakefield v. Mackey, 1 Phill. R. 133, contra. 
 
 " R. 1,. Crans, 8 C. & P. 765. 
 
 17 
 
258 HOMICIDE. 
 
 was baptized " Eliza," without mentioning any surname at the cere- 
 mony, and was afterwards, at three years old, suffocated by the pri- 
 soner, an indictment, styling it "Eliza Waters" that being the mo- 
 ther's surname, was held bad by all the judges, as the deceased had 
 not acquired the name of Waters by reputation.^ In the previous 
 case^ an indictment stated the murder of '^George Lakeman Clark, 
 a base-born infant male child, aged three weeks," by the prisoner, its 
 mother. The child had been christened George Lakeman, being the 
 name of its reputed father, and was called so, and not by any other 
 name known to the witnesses. Its mother called it so. There was 
 no evidence that it had been called by or obtained its mother's name 
 of Clark. The court held him improperly laid Clark, and as nothing 
 but the name identified him in it, the conviction was held bad.' How- 
 ever, in Reg. v. Biss,^ an indictment against a married woman for 
 murder of a legitimate child, which stated " that she, in and upon a 
 certain infant male child of tender years, to wit, of the age of six 
 weeks, and not baptized, feloniously and wilfully, &c., did make an 
 assault, &c.," was held insufficient by all the judges, as it neither 
 stated the child's name, nor that it was " to the jurors unknown." It 
 would have sufficed to state him as "a certain male child, &c., of ten- 
 der age, that is to say, about the age of six weeks, and not baptized, 
 born of the body of C. B."* Where a party is as usuairy known by 
 one name as another, he may be described by either, and by the 
 name which he has assumed, even though shown not to be his right 
 name.* So where an indictment charged the name of the person 
 slain as Marie Gardiner, alias Maria Bull, and the proof showed her 
 real name to be Maria Frances Bull, though she was generally known 
 by the name in the indictment, it was held sufficient.' If a false de- 
 scription be added to the name, as if a female feloniously married by 
 a man whose wife is still alive, be described a "widow," when she is 
 known to be a single woman, the error will be fatal, though no de- 
 scription of her was requisite. ° Where the party injured has a mo- 
 ther or father of the same name, it is better to style the prosecutor 
 " the younger," as it may be presumed that the parent is the party 
 meant; for George Johnson means G. J. the elder, unless the contrary 
 is expressed.' But this was held immaterial, where it is sufficiently 
 proved who Elizabeth Edwards, the party described assaulted, was, 
 viz., the daughter of another Elizabeth Edwards.^" A variance in the 
 name or identity of the party laid as injured, will entitle the pri- 
 soner to acquittal." 
 
 1 R. V. Ellen Waters, 1 Mood. C. C. 457. (N. B. No baptismal register or copy of it 
 was produced at either trial. Semb.: "Eliza" would have sufficed; see R. v. StrOud, 
 C. & K. 187, and cases collected; Williams v. Bryant, 5 M. & W. 447.) 
 
 2 R. V. Frances Clark, R. &, R. 358. 
 
 ' See R. V. Sheen, 2 C. & P. 634. * 8 C. & P. 773. 
 
 ' See 2 C. & P. 635, n.; see, also, R. v. Sheen, 2 C. & P. 634. 
 6 R. V. Norton, R. & R. 509; R. v. Berriman, 6 C. & P. 601 ; Anon., 6 C. & P. 408, 
 ' State V. Gardiner, Wright's R. 392. 
 
 8 R. V. Deeley, 1 Mood. C. C. R. 303; 4 C. & P. 579, (A. D. 1831.) 
 » Singleton v Johnson, 9 M. & W. 67. 
 i» R. V. Peace, 8 B. & Aid. 619. 
 
 " Dickinson's Q. S. 6th ed. 213. See also, generally, on this head, 2 Hale, P. C. 239, 
 edited by Stokes and Ingersoll, n. 1. 
 
INDICTMENT — DESCRIPTION OF PARTY. 259 
 
 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.'' 
 
 If a constable, watchman, or other minister of justice, be killed in 
 the execution of his office, the special matter need not be stated, but 
 the offender may be indicted generally of murder by malice pre- 
 pense.^ 
 
 Where the case rests upon a neglect to provide sufficient food to the 
 deceased, it must show that it was the duty of the prisoner to provide 
 it. An indictment charged that E. B., the wife of J. B., in and upon 
 B. E., the younger, being an infant of tender age, (to wit) of the age 
 of six months, did feloniously make divers assaults, and that the said 
 E. E., the elder, did feloniously neglect, &c., to give and administer 
 to the said E. E., the younger, proper and sufficient food, by means of 
 which neglecting, &c., (omitting any reference to the assaults) the 
 said E. E., the younger, died. It was suggested that the indictment 
 was bad, as it did not allege that it was the duty of the prisoner to 
 maintain the cliild, neither did it state that the prisoner was the 
 mother of the deceased, or in any way liable to take care of it. 
 Patteson, J., said, "This indictment is bad; it does not state any duty, 
 nor does it state that the prisoner was the mother of the deceased. 
 Where the indictment charges an imprisoning it shows an obligation 
 to maintain, for if you imprison a man you must feed him. But in 
 this case the judgment must be arrested. Every word of this indict- 
 ment may be literally true, and yet the prisoner and deceased might 
 have been strangers to each other." ^ So where a coroner's inquisi- 
 tion alleged that the prisoner did feloniously make divers assaults 
 upon E. S., "she then and there being the natural child " of the pri- 
 soner, and that she neglected, &c., to give and administer to the said 
 E. S. sufficient meat and drink ; by means of which neglect E. S. died ; 
 and it was moved that the inquisition might be quashed, on the 
 ground that it did not allege that it was the duty of the prisoner to 
 find sufficient meat for the deceased; Taunton, J., after carefully pe- 
 rusing the inquisition, ordered it to be quashed.'' 
 
 VII. '• In the peace of God and of the said state then and there being.^' 
 
 It is not necessary to allege that the party killed was "in the peace 
 of .God and of our lord the king," &c., though such words are com- 
 monly inserted, for they are not of substance, and perhaps the truth 
 may be that the party was at the time actually breaking the peace.' 
 
 As will be seen more fully hereafter, where the subject of the corpus 
 delicti is under consideration, it is essential in all cases to show 
 that the deceased was living at the time when the alleged mortal blow 
 was struck. Thus, where it was doubtful, in a case where a mother 
 was charged with throwing her child overboard, whether it was living 
 or dead at the time, it was held that it rested on the government to 
 show at the time it was living, it appearing that the mother was la- 
 bouring under puerperal fever, and the idea of malice being thereby 
 
 1 2 Hale, 182. 
 
 2 R. V. Mackally, 9 Rep. 68 ; 1 Hale, 460; 12 Rep, 17. 
 
 3 R. V. Edwards, 8 C. & P. 611. * R. v. Goodwin, MSS., 1 Rusg, 563. 
 5 2 Hawk. P. C. c. 25, s. 73; 2 Hale, 186 ; 1 Hale, 433. 
 
260 HOMICIDE. 
 
 excluded.' On an indictment for infanticide, it ia necessary to show 
 the child to be born alive.* 
 
 VIII. " Feloniously, wilfully, and of his malice aforethought J^ 
 
 It is necessary to state, that the act by which the death was occa- 
 sioned was done feloniously, and especially that it was done of malice 
 aforethought,^ which, as we have already seen, is the great charac- 
 teristic of the crime of murder ; and it must also be stated, that the 
 prisoner murdered the deceased. If the averment respecting malice 
 aforethought be omitted, and the indictment only allege that the stroke 
 was given feloniously, or that the prisoner murdered, &c., or killed, 
 or slew the deceased, the conviction can only be for manslaughter.'' 
 
 In an indictment for murder, where the killing is alleged to have 
 been caused by a battery, it is necessary to allege an assault. ' In 
 such case the time when the mortal stroke was given, and the time of 
 the death, must be alleged, and it is not sufficient to allege that " he 
 instantly did die."* 
 
 IX. " With a certain knife." (Means of death.) 
 
 The question here opened is one of the most interesting connected 
 with the doctrine of variance between pleading and evidence. 
 
 The common law rule in pleading the instrument of death is, that 
 where the instrument laid and the instrument proved are of the same 
 nature and character, there is no variance; where they are of opposite 
 nature and character, the contrary. Thus evidence of a dagger will 
 support the averment of a knife, but evidence of a knife will not 
 support the averment of a pistol. A very happy illustration of this 
 distinction is found in Com. v. Haines.^ The defendant was charged 
 with having erected a stuffed Paddy with intent't'o excite the Catholic 
 Irish; and he endeavoured to defend himself by proof that the device 
 was a stuffed Shelah, and that the object was to excite the Protestant 
 Irish. The instructions of the court were invoked as to whether there 
 was a variance; and Gibson, J., said that if there was a mere averment 
 of a Paddy, and evidence of a Shelah, the object and character of 
 the figures being similar, there was no variance ; but that if on the 
 contrary, they were devices of an antagonistic character, the indict- 
 ment could not be supported. Or, to state the principle more broadly, 
 where the method of operation is the same, though the instrument 
 is different, no variance exists; where the former is not the case, the 
 rule is otherwise. The same reasoning applies to indictments for 
 homicide. Where the species of death would be different, as if the 
 indictment allege a stabbing or shooting, and the evidence prove a 
 poisoning or starving, the variance is fatal;' and the same if the 
 indictment state a poisoning, and the evidence prove a starving. 
 Thus where an indictment stated that the defendant assaulted the 
 deceased, and struck and beat him upon the head, and thereby gave 
 
 1 U. S. V. Hewson, 7 Bost. Law Rep. 361. « R. v. Poulton, 5 C. & P. 239, »nte, p. 93. 
 
 « 2 Hale, 186, 187; Steward, P. C. 130; Bradley v. Banks, Yelv. 205. 
 
 * Whart. Free. 7, 8 ; though see Anderson v. State, 6 Pike, 445. 
 
 5 Lester i>. State, 9 Miss. 666. « Ibid. 
 
 ' 6 Penn. Law Joum. 282. » R. v. Briggs, 1 Mood. C. C. 31. 
 
INDICTMENT — FELONIOUSLY, ETC. 261 
 
 him divers mortal blows and bruises, of which he died, and it 
 appeared in evidence that the death was by the deceased falling on 
 the ground, in consequence of a blow on the head received from the 
 defendant; it was holden that the cause of the death was not pro- 
 perly stated.^ But if it be proved that the deceased was killed by 
 any other instrument, as with a dagger, sword, staff, bill or the like, 
 capable of producing the same kind of death as the instrument 
 stated in the indictment, the variance will not be material.^ So if 
 the indictment allege a death by one kind of poison, proof of a death 
 by another kind of poison will support the indictment.^ An indict- 
 ment having charged that the prisoner, with both her hands about 
 the neck of the deceased, the neck and throat of the deceased did 
 squeeze and press, and by such squeezing, &c., did suffocate and 
 strangle the deceased ; and the evidence being that the prisoner suf- 
 focated the deceased by placing one hand on his mouth, and the 
 other on the back of his head; Patteson, J., held that it was sufficient 
 if the death was caused by suffocation, and that the evidence sup- 
 ported the indictment." And in another case the offence being 
 charged to have been committed with a certain sharp instrument, 
 and the evidence was that the wound was partly torn and partly cut, 
 and was done with an instrument not sharp, Parke, B., held the in- 
 dictment proved, and said the degree of sharpness was immaterial.' 
 And where an indictment for the murder of a bastard child stated 
 that the defendant forced and thrust moss and dirt into its throat, mouth 
 and nose, and that by forcing and thrusting the moss and dirt into the 
 throat, mouth and nose of the child, the child was choked, &c., and 
 it appeared that the fchild was not immediately suffocated by the moss 
 and dirt, but that the moss and dirt caused an injury and inflamma- 
 tion in the throat, which closed the passage to the lungs and stomach, 
 of which the child died ; it was declared that the evidence supported 
 the indictment, and that it was sufficient to state the proximate 
 cause of the death, without stating the intermediate process resulting 
 from that proximate cause.* Where the prisoner was indicted for 
 cutting the throat of the deceased, and a surgeon proved that what 
 was technically called the throat was not cut, as the wound did not 
 extend so far round the neck, Patteson, J., held that the indict- 
 ment must be understood to mean what is commonly called the 
 throat.' Where the indictment alleged that the defendant suffocated 
 the deceased by placing her hand on the mouth of the deceased, and 
 the jury found that the death was caused by suffocation, but could 
 not say how it was occasioned, Denman, 0. J., held the indictment 
 proved.^ But under an indictment for shooting with a pistol loaded 
 with gunpowder and a leaden bullet, it appeared that there was no 
 bullet in the room where the act was done, and no bullet in the 
 wound; and it was proved that the wound might have been occa- 
 sioned by the wadding of the pistol. Bolland, B., Park and Parke, 
 Js., held the indictment not proved.' The same principle was 
 
 » R. V. Thompson, 1 Mood. C. C. 139. 
 
 2 R. V. Mackally, 9 Co. 67 a; Gilb. Ev. 231; R. v. Briggs, 1 Mood. C. C. 318. 
 
 » lb., and see 2 Hale, 115, 185; 2 Hawk. c. 23, ». 84. 
 
 ♦ R. V. Culkin, 5 C. & P. 121. > R. v. GrouneeU, 7 C. & P. 788. 
 
 « R. V. Tye, R. & R. 345. ' R. v. Edwards, 6 C. & P. 401. 
 
 « R. V Waters, 7 C. & P. 250. » See R. v. Hughes, 5 C. & P. 126. 
 
262 HOMICIDE. 
 
 applied where an indictment charged that the defendant struck the 
 deceased with a brick, and it appeared that he knocked the deceased 
 down witli his fist, and that the deceased fell upon a brick which 
 caused his death.^ In New York a far more liberal rule has been 
 announced, it having been substantially held that the use of a pistol 
 might be proved under an indictment charging the weapon to have 
 been a knife.^ 
 
 The evidence must show that the death was caused by the parti- 
 cular blow described and proved. Thus very recently, in a case 
 remarkable for the conflict of opinion among the assembled judges 
 on otlicr points, as well as for the public interest excited by the trial, 
 all the judges concurred in the opinion, that where certain assaults 
 were put in evidence, and relied on by the crown, as being the cause 
 of death, but where the clear surgical testimony was, that the death 
 was caused by a blow on the head of which there was no evidence 
 whatever, the defendants were entitled to an acquittal.' 
 
 An indictment, however, charging "that A. B. with a certain 
 stick, &c., in and upon the head and face of C. D., then and there 
 did strike and beat, giving to the said C. D. then and there, with 
 the stick aforesaid, in and upon the head and face of the said C. D., 
 several mortal wounds, of which said several mortal wounds the said 
 C. D. instantly died," is good; for there is in the first clause a direct 
 allegation of a stroke, and the participle giving, and the words then 
 and there, connect the allegation with the mortal wound in the 
 second clause." Where the allegation was, "that the prisoner in 
 and upon M. P., &c., feloniously, &c., did make an assault with a 
 certain gun, called a rifle gun, &c., then and there charged with gun- 
 powder and two leaden bullets, which said gun he, &c., had and 
 held, at and against the said M. P., then, &c., feloniously, &e., did 
 shoot off and discharge, and that the said M. P., with the leaden 
 bullets aforesaid, by means of shooting off and discharging the said 
 gun, so loaded, to, at and against the said M. P., as aforesaid, did, 
 &c., feloniously, &c., strike, penetrate and wound the said M. P., in 
 and upon the left side of the said M. P., &c., giving to her the said 
 M. P., &c., with the leaden bullets aforesaid, by means of shooting 
 off and discharging the said gun, so loaded, to, at and against the 
 said M. P., and by such stricken, &c., the said M. P., as aforesaid, 
 one mortal wound in and upon the left side of the said M. P.," &c. ; 
 on a motion to arrest the judgment, on the ground that there was no 
 sufficient averment that the gun was shot off, or that the contents 
 were discharged, it was said that the inference seemed to be one of 
 absolute certainty, that the contents of the gun were shot off and 
 discharged, for there was nothing else to which the words "did 
 shoot off and discharge'' with a gun charged with gunpowder and 
 leaden bullets, could be applied.' 
 
 Where an indictment describes the instrument which caused the 
 death by two names, it is sufficient if it be proved to be either. The 
 prisoner was indicted for manslaughter, in causing the death of a 
 female, by negligently slinging a cask, which was described in the 
 
 1 R. V. Kelly, 1 Mood. C. C. 113. ' People v. Colt, 3 Hill, 432. 
 
 3 R. V. Bird, 15 Jur. 193; 2 Eng. R. 448. * Gibson v. Com. 2Va. Cases, 111. 
 
 ' State V. Freeman, 1 Spears, 57. 
 
INDICTMENT — DESCRIPTION OP INSTRUMENT. 263 
 
 indictment as "a cask and puncheon;" and it was objected to the in- 
 dictment on the ground that it was so described; but Parke, J., held, 
 that if it was either, it was sufficient.* 
 
 An indictment charged that the prisoner, contriving to mur- 
 der J. S. with oil of vitriol, gave him a quantity thereof, and 
 forced him to take it into his mouth and throat, knowing that it would 
 occasion his death; by means whereof he became disordered; and by 
 the oil of vitriol aforesaid, and by the disorder, choking, &c., occa- 
 sioned thereby, died: and to this indictment there was a plea of autre- 
 fois acquit. The former indictment stated, that the prisoner, con- 
 triving to murder J. S. by poison, gave him poison; that is, oil of 
 vitriol, and forced him to take, drink, and swallow it down, by means 
 whereof he became sick; and by the poison so by him taken, drank, 
 and swallowed down as aforesaid, and of the sickness occasioned 
 thereby, he died. On demurrer, the plea was overruled, subject to a 
 case, and the prisoner was tried and convicted. The case was argued; 
 and it was urged, that on the first indictment swallowing must have 
 been proved, which in fact had been negatived; and that proof of 
 forcing J. S. to take it into his mouth and throat would not have been 
 sufficient: but eleven judges (Wood, B., being absent) held otherwise. 
 It was also urged, that upon the first indictment it must have been 
 proved that oil of vitriol was a poison, which, in the second, would 
 not be necessary: but the judges seemed to think, that the second in- 
 dictment implied that oil of vitriol was a poison, and a pardon was 
 recommended.^ 
 
 In another case, it was averred, that the prisoner gave and adminis- 
 tered poison: This was held to be supported by proof that the pri- 
 soner gave the poison to A. to administer as medicine to the deceased, 
 and that A. neglecting to do so, it was accidentally given to the de- 
 ceased by a child, the prisoner's intention to murder continuing. Upon 
 an indictment for murder, which alleged that the prisoner feloniously, 
 <fec., did administer a large quantity of laudanum to a child, it appeared 
 that the prisoner delivered to one S. Stephens, with whom the child 
 was at nurse, about an ounce of laudanum, telling her that it was pro- 
 per medicine for the child, and directing her to administer to the 
 child every night a tea-spoonful thereof, which was quite a sufficient 
 quantity to kill the child: the prisoner's intention in so doing, as 
 shown by the finding of the jury, was to kill the child. Stephens 
 took home the laudanum, and thinking the child did not require medi- 
 cine, did not intend to administer it at all, and left it on the mantel- 
 piece of her room. A few days afterwards, a little boy of the said 
 S. Stephens, during her accidental absence, removed the laudanum 
 from its place, and administered a much larger dose than a tea- 
 spoonful to the child, in consequence of which the child died. The 
 jury were directed that if the prisoner delivered the laudanum to 
 Stephens, with intent that she should administer it to the child, and 
 thereby produce its death, the quantity so directed to be adminis- 
 tered being sufficient to cause death ; and that, if the laudanum was 
 afterwards administered by an unconscious agent, while the prison- 
 er's original intention continued, the death of the child, under such 
 
 1 Rigmaidon's case, 1 Lew. 180. ^ E. v. Clarne, 1 Brod. & Bing. 473. 
 
264 HOMICIDE. 
 
 circumstances, was murder by the prisoner, and that if the tea-spoon- 
 ful was sufficient to produce death, the administration of a much 
 larger quantity by the little boy would make no difiference. The 
 jury found the prisoner guilty, and, upon a case reserved for the 
 opinion of the judges, whether the facts above stated constituted an 
 administering of the poison by the child, it was held, under the circum- 
 stances of the case, as much in point of law an administering by 
 the prisoner, as if she had actually administered it with her own 
 hand.^ 
 
 In a late case in Alabama, it was held that an indictment charging 
 A. with murder, by administering poison, need not state the particular 
 poison administered; and if it do so state, it will not be necessary that 
 the proof correspond.^ 
 
 Where the prisoner was charged with murder by poisoning, and the 
 indictment stated that she delivered the poisoned food to the deceased, 
 it was ruled that such allegation was proved, by showing that the 
 prisoner put the poison in some pudding meal, which was in a bowl 
 in the milk house, from whence it was taken by the deceased, as usual, 
 to make the pudding for the family, and afterwards eaten by her.^ 
 
 In Pennsylvania, it was held to be not a sufficient reason ybr allow- 
 ing a writ of error, after conviction, upon an indictment for a murder 
 by poison, that the indictment did not aver that the prisoner knew 
 the substance employed to be a deadly poison, though such an aver- 
 ment is always safe* 
 
 A count of an indictment charging the death of a child to have been 
 caused by its mother casting and throwing it on a heap of ashes, and 
 leaving it there in the open air exposed to the cold air, whereby it 
 died, was held good ; but it was held that, if it had charged the death 
 to have been caused by mere nonfeasance in the neglect of the pri- 
 soner's maternal duties, it would have been bad, unless the child were 
 alleged to have been of such an age, or in such a situation, as to be 
 unable to take care of itself.* 
 
 In one count of an indictment for murder, the death was stated to 
 be by a blow of a stick, and, in another, by the throwing of a stone. 
 The jury found the prisoners guilty of manslaughter generally, on 
 both counts, and the judges held the conviction right; and that judg- 
 ment could be given upon it; and it was said, that these are not 
 inconsistent statements of the modes of death, but that, if they had 
 been so, no judgment could have been given on the verdict.^ 
 
 An indictment against a medical practitioner, charging that he made 
 divers assaults on the deceased, (a patient) and applied wet cloths to 
 his body, and caused him to be put into baths, it was held, that this 
 was a proper mode of laying the offence, although all that was done 
 was by the consent of the deceased; and that the indictment need not 
 charge an undertaking to perform a cure, and a felonious breach of 
 duty.' 
 
 1 R. V. Michael, 2 Mood. C. C. R. 120; S. C, 9 C. & P 856 
 
 » Carter v. The State, 2 Carter, Ind. 617. 
 
 » R. ^. Nicholson, 1 East, P. C. c. 5, 8. 116, p. 346. 
 
 * Com. 1). Earle, 1 Wharton, 525. ' R. v. Waters, 2 Car. & Kir. 862. 
 
 «R. V. O'Brien, 2 C. & K. 115; see ante, p. 113. 
 
 ' R. V. EUis, 2 C. & K. 469. 
 
INDICTMENT — POISONING. 265 
 
 If the instrument by which the homicide was committed be not 
 known, it is enough for the indictment to aver such fact; and under 
 the circumstances the want of specification will be excused, on the 
 same principles as allow the non-setting out of a stolen or forged 
 paper, when such paper is lost or in the prisoner's possession.' Thus, 
 in a recent case of great and painful interest, the fourth count of the 
 indictment averred that the defendant, "in and upon the said G. P., 
 feloniously, wilfully, and of his malice aforethought, did make an 
 assault, and him, the said G. P., in some way or manner, and by some 
 means, instruments and weapons, to the jurors unknown, did then and 
 there feloniously, wilfully, and of malice aforethought, deprive of 
 life: so that he, the said G. P., then and there died." "The rules of 
 law," said Chief Justice Shaw, when charging the jury, "require the 
 grand jury to state their charge with as much certainty as the cir- 
 cumstances of the case will permit; and if the circumstances will not 
 permit of a fuller and more precise statement of the mode in which 
 the death is occasioned, this count conforms to the rules of the law."* 
 
 Every cautious pleader will insert as many counts as will be neces- 
 sary to provide for every possible contingency in the evidence; and 
 this the law permits. Thus he may vary the ownership of articles 
 stolen in larceny;^ of houses burned in arson;" or of the fatal instru- 
 ment in homicide. The reason for this is thus excellently stated by 
 Chief Justice Shaw: — 
 
 " To a person unskilled and unpractised in legal proceedings, it 
 may seem strange that several modes of death, inconsistent with each 
 other, should be stated in the same document; but it is often neces- 
 sary, and the reason for it, when explained, will be obvious. The 
 indictment is but the charge or accusation made by the grand jury, 
 with as much certainty and precision as the evidence before them 
 will warrant. They may be well satisfied that the homicide was com- 
 mitted, and yet the evidence before them leave it somewhat doubtful 
 as to the mode of death; but, in order to meet the evidence as it may 
 finally appear, they are very properly allowed to set out the mode in 
 different counts; and then if any one of them is proved, supposing it 
 to be also legally formal, it is sufficient to support the indictment. 
 Take the instance of a murder at sea; a man is struck down, lies 
 some time on the deck insensible, and in that condition is thrown 
 overboard. The evidence proves the certainty of a homicide, by the 
 blow or by the drowning, but leaves it uncertain by which. That 
 would be a fit case for several counts, charging a death by a blow, 
 and a death by drowning, and perhaps, a third, alleging a death by 
 the joint results of both causes combined."' 
 
 The law on this point is thus summed up by Mr. Greenleaf, with 
 his usual condensed perspicuity. "The mode of killing is not mate- 
 rial. Moriendi mille figurse. It is only material that it be shown that 
 the deceased died of the injury inflicted, as its natural, usual and pro- 
 bable consequence. The nature of the injury is specifically set forth 
 in the indictment; but as we have already seen,^ it is sufficient if the 
 proof agree with the allegation in its substance and generic charac- 
 
 J Wh. C. L. 124, 223. ' Bemis v. Webster's case, 473, Com. v. Webster, 5 Cush. 585. 
 s State V. Nelson, 29 Maine, 324. ■• R. v. Truman, 8 C. & P. 727. 
 
 ' Bemis Webster's case, 471, Com. v. Webster, 5 Cush. 635. 
 • See Hawk. P. C. c. 46. a . 37. 
 
266 HOMICIDE. 
 
 ter, without precise conformity in every particular. Tlius, if the al- 
 legation be that the death was caused by stabbing with a dagger, 
 and the proof be of killing by any other sharp instrument;^ or if it 
 be alleged that tlie death was caused by a blow with a club, or by a 
 particular kind of poison, or by a particular manner of suffocation, 
 and the proof be of killing by a blow given with a stone, or any 
 other substance, or a different kind of poison, or another manner of 
 suffocation, it is sufficient;^ for as Lord Coke observes, the evidence 
 agrees with the effect of the indictment, and so the variance from the 
 circumstance is not material. But if the evidence be of death in 
 a manner essentially different from that which is alleged; as if the 
 allegation be of stabbing or shooting, and the evidence be of death 
 by poisoning; or the allegation be of death by blows inflicted by the 
 prisoner, and the proof be that the deceased was knocked down by 
 him and killed by falling on a stone, the indictment is not supported;^ 
 and whatever be the act of violence alleged, it must appear in evi- 
 dence that the death was the consequence of that act. But if it be 
 proved that blows were given by a lethal weapon, and were followed 
 by insensibility or other symptoms of fatal danger, and afterwards 
 by death, this is sufficient to throw on the prisoner the burden of 
 proving that the death proceeded from some other cause.'' 
 
 "Where the death is charged to have proceeded from a particu- 
 lar artificial cause, and the proof is, that it was only accelerated by 
 that cause, but in fact proceeded from another artificial cause, the evi- 
 dence does not support the charge. Thus, where the charge was of 
 causing the death of a child by exposing it to cold, and the proof 
 was, that it was found exposed in a field, alive, but with a mortal 
 contusion on its head, and that it died in a few hours afterwards; it 
 was held that if the death was only accelerated by the exposure, the 
 charge was not supported.' So if the indictment charges that the 
 death was occasioned by two jointly co-operating causes, as, by starv- 
 ing and beating, both must be proved, or the indictment fails.^ But 
 if the charge be of killing by the act of the prisoner as the cause, 
 and the proof is that the deceased was sick, and must soon have died 
 from that disease, as a natural consequence, the violent act of the 
 prisoner only having accelerated his death, the charge is nevertheless 
 supported.' 
 
 "Forcing a person to do an act which causes his death, renders the 
 death the guilty deed of him who compelled the deceased to do the 
 
 1 R. V. Mackally, 9 Rep. 65, 67; 2 Inst. 319. So if the charge be of murder by cutting 
 with a hatchet, or by striking and cutting with an instrument unknown, evidence may 
 be given of shooting with a pistol. The People v. Colt, 3 Hill, 432. And if the charge 
 be of shooting with a leaden bullet, it is supported by proof of shooting with a load of 
 duck-shot. Goodwin's case, 4 S. & M. 520. 
 
 ■' 2 Hale, P. C. 185; R. v. Tye, R. & R. 345 ; R. v. Culkin, 5 C. & P. 121 ; R. v. Wa- 
 ters, 7 C. & P. 250; R. v. Grounsell, id. 788; R. v. Martin, 5 C. & P. 128; and seeR. v, 
 Heckman, 1 D. 151; R. v. O'Brian, 2 C. & K. 115; R. v. Warman, id. 195. 
 
 3 R. V. Thompson, 1 M(JOd. C. C. 139; R. v. Kelly, Id. 113. If the allegation be of 
 shooting with a leaden bullet, and the proof be that there was no bullet, but that the in- 
 jury proceeded from the wadding; quaere whether the charge is supported by the evi- 
 dence. And, see R. v. Hughes, 5 C. & P. 12G. 
 
 * United States v. Wiltberger, 3 Wash. 515. 
 
 ' Stockdale's case, 2 Lew. 220 ; 1 Russ. on Grim. 566. 
 
 • Ibid. R. V. Saunders, 7 C. & P. 277. ' State v. Moroa, 2 Ala. 275. 
 
INDICTMENT — DEgCKIPTION OP INSTBUMENT. 267 
 
 act. And it is not material whether the force were applied to the 
 body or the mind; but if it were the latter, it must be shown that 
 there was the apprehension of immediate violence, and well gr junded, 
 from the circumstances by which the deceased was surrounded; and 
 it need not appear that there was no other way of escape; but it must 
 appear that the step was taken to avoid the threatened danger, and 
 was such as a reasonable man might take.^ But if the charge be, that 
 the prisoner "did compel and force" another person to do an act, 
 which caused the death of a third party, this allegation will require 
 the evidence of personal affirmative force, applied to the person in 
 question. Thus, where it was stated in the indictment, that the 
 prisoner "did compel and force" A. and B. to leave working at the 
 windlass of a coal mine, by means of which the bucket fell on the 
 head of the deceased, who was at the bottom of the mine, and killed 
 him; and the evidence was, that A. and B. were working at one handle 
 of the windlass, and the prisoner at the other, all their united strength 
 being requisite to raise the loaded bucket, and that the prisoner let 
 go his handle and went away, whereupon the others being una- 
 ble to hold the windlass alone, let go their hold, and so the bucket 
 fell and killed the deceased; it was held that this evidence was not 
 sufficient to support the indictment.^ 
 
 X.—" Of the Value, of." 
 
 The allegation of value is now immaterial, and need not be proved.' 
 In England, where deodands are still recognised, it may be neces- 
 sary to introduce it; tliough as the same object does not exist in this 
 country the reason fails.^ 
 
 XI. — " Which he, the said A. B., in his right hand then and there 
 
 had and held." 
 
 Though the hand in which the instrument was held is set out in 
 the old forms, it is clearly not necessary to prove the allegation.* 
 
 XII. — " Him, the said E. F., in and upon the right breast of the 
 
 said E. F." 
 
 The "him " which is here inserted, is not usually introduced; and 
 counts have been sustained without it, where the express exception 
 was taken.^ 
 
 Where the indictment charged the death by cutting the throat, 
 and a surgeon proved that the jugular vein was divided, but not the 
 carotid artery, and that what he called the throat was not cut, the 
 wound not having extended so far round the neck; it was held that 
 
 1 R. V. Pitt^, 1 Carr & Marshm. 284, per Erskino, J. ; Rex v. Evans, 1 Rtiss. on 
 Crim. 489; Rex v. Waters, (3 C. & P. '283. If a sbip-master knowingly and maliciously 
 compels a sick or disabled seaman to go aloft while he is in such a state of debility and 
 exhaustion that he cannot comply without danger of death or enormous bodily injury, 
 and the seaman falls from the mast and is drowned or killed, it is murder in the master, 
 whether the means of compulsion were moral or physical. XJ. States v. Freeman, 4 
 Mason, 505. See ante, 118, 119. 
 
 ^ R. V. Lloyd, 1 C. & P. 301. a I East, P. C. s. 108, p. 341. 
 
 * Hales' Pleas of the Crown, by Messrs. Stokes and Ingersoll, i. 424. 
 Arch. C. P. 10th ed. 407. « Com. v. White, G Bian. 183. 
 
268 HOMICIDE. 
 
 this was sufficient, for the term throat meant not that part of the 
 throat which was scientifically called the throat, but that which was 
 commonly called the throat.^ 
 
 It has been held that a count in an indictment for murder, charging 
 that the prisoner did strike the deceased on the left temple, giving 
 him a mortal wound on the right temple, &c., is inconsistent and void.'' 
 The' count must state the part of the body to which the violence was 
 applied ; but the proof need not correspond with such statement.^ 
 
 XIII. — " Then and then feloniously, wilfully, and of his malice 
 
 aforethought." 
 
 The time need not be formally repeated: "then and there" carries 
 the averment back to the original date.'' Even if the " then and 
 there " be omitted, it would seem that the court will still give judg- 
 ment on the indictment, if the grammatical construction be such as 
 to apply the time at the outset to the subsequent allegations.^ But 
 where two distinct periods have been averred, the statement " then 
 and there " is not enough ; one particular time should be averred." 
 
 It has been said that, in an indictment charging "that A. feloni- 
 ously and of his malice aforethought, assaulted B., and with a sword, 
 &c., then and there struck him," &c., the first allegation of felo- 
 niously and of his malice aforethought, applied to the assault, runs 
 also to the stroke to which it is essential,^ though the point has else- 
 where been determined otherwise." 
 
 A charge that A., on such a day, at, &c., made an assault upon B., 
 and him with a knife feloniously struck, killed, and murdered, was 
 held not to import sufficiently that the stroke was at the same time 
 and place as the assault, for want of the words "then and there;" and 
 for tliis and other exceptions an outlawry on this charge was re- 
 versed.' 
 
 Upon an indictment, alleging that the prisoner did an act which 
 caused .the death, it is sufficient to prove that the prisoner caused and 
 procured the act to be done by an innocent agent. An indictment 
 charged that the prisoner, a certain plaster made by the prisoner of 
 certain dangerous ingredients, feloniously did place and fix upon the 
 head of the deceased : the prisoner was proved to have applied two 
 plasters over the head of the deceased, but a third, which was applied 
 last before the deceased died, was applied by the child's mother, in 
 the absence of the prisoner, it being made with materials, which had 
 been given by the prisoner to the mother for that purpose : it was 
 objected that the indictment was not proved; but it was held that, 
 though indictments often go on to say, that the prisoner "caused and 
 procured" the thing to be do^e, yet if the plaster was made by the 
 direction of the prisoner, that was enough.'" 
 
 An inquisition against two prisoners, charging an injury done by 
 
 1 R. V. Edwards, 6 C. & P. 401. a Dins v. State, 7 Blaokf. 20. 
 
 " Ibid. « Stout V. Com., 11 S. & R. 177. 
 
 ' State «." Cherry, 8 Murpli. 7. « Storrs v. State, 3 Miss. 4.5. 
 
 ' State V. Owen, 1 Mur. 452. « Resp. v. Honeyman, 2 Dallas, 288. 
 
 9 1 East, P. C. 0. 5, 8. 112. p. .S43 ; 2 Hawk. P. 0. c. 23, g. 90: 2 Inst. 318. 
 '» E. V. Spiller, 5 C. & P. 333. 
 
INDICTMENT — " STRIKE AND THRUST." 269 
 
 one of them on one day, and another injury done by the other on 
 another day, and that the death arose from both, is bad, there being 
 no averment that the one was present when the act was done by the 
 other. An inquisition stated that Devett, on the 27tb of May, struck 
 the deceased on the head with a poker, and gave her one mortal 
 bruise and contusion, and that Fox, on the 23d of June, kicked the 
 deceased with her foot, and gave her thereby one mortal bruise and 
 contusion, of which said mortal bruise and contusion so given by 
 Devett, as well as of the mortal bruise and contusion so given by 
 Fox, she languished, and afterwards of the said mortal bruises and 
 contusions died: it was held that this inquisition could not be sus- 
 tained.' 
 
 XIV. — "Did strike and thrust, giving to the said E. F., then and- 
 there With the knife aforesaid." 
 
 Wherever death is caused by physical violence, it is essential to 
 the indictment that it should allege that the defendant struck the 
 deceased;^ and it must also be proved; though in Virginia it has been 
 ruled that where the instrument was a dagger, "stab, stick and 
 thrust," would be held equivalent to strike.^ It is not necessary, 
 however, to prove that he struck him with the particular instrument 
 mentioned in the indictment; and therefore, although the indictment 
 allege that the defendant did strike and thrust, proof of a striking 
 which produced contused wounds only would maintain the indict- 
 menf 
 
 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.' But this doctrine has 
 been questioned, though it is admitted to be the safest course to use 
 the term whefe it may seem to be required by the nature of the fact.° 
 
 Where the death is occasioned by a wound, bruise, or other assault, 
 the stroke must be expressly laid. But an indictment charging " that 
 A. B. with a dertain stick, &c., in and upon the head and face of C. D., 
 then and there did strike and beat, giving to the said C. D. then and 
 there, with the stick aforesaid, in and upon the head and face of the 
 said C. D., several mortal wounds, of which said several mortal wounds 
 the said C. D. instantly died," is good; for there is in the first clause 
 a direct allegation of a stroke, and the participle giving, and the 
 words then and there, connect the allegation with the mortal wound 
 in the second clause.^ 
 
 Where the indictment charged that the prisoners 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 afore- 
 thought, 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 
 
 1 R. V. Devett, 8 C. & P. 639. 
 
 ' See 5 Co. 122 a; 2 Hale, 184; 2 Hawk. c. 23, s. 82. 
 
 3 Gibson v. Com. 2 Va. Cases, 111. * Arch. C. P. 10th ed. 486. 
 
 * E. V. Long, 5 Co. 122 a. 
 
 • 2 Hawk. P. C. c. 23, s. 82 ; Sum. 207; Yelv. 28. 
 ' State ti. Owen, 1 Murph. 452. 
 
HOMICIDE. 
 
 c part of the head of him the said W. W., feloniously, &c., did 
 fe, &c., an objection was taken that the mode of causing the 
 ;h was not projjerl}' stated. But the judges, upon a case reserved, 
 e unanimously of opinion that the cause of the death was sufFx- 
 tly stated; it being clear that the stones were what were cast 
 thrown at the deceased; and tlie word with might be rejected, 
 lie words cast and throw might be considered to be used as neuter 
 
 )S.> 
 
 n indictment charging "that the defendant, with a certain stone 
 :\i he held in his I'ight hand, in and upon the right side of the 
 i of the deceased, feloniously, &c., did cast and throw, and that 
 defendant Avith the stone aforesaid, so as aforesaid cast and 
 wn, the deceased in and upon the right side of the head felo- 
 sly did strike," &c., was held to contain a suiScient allegation 
 the defendant threw the stone and struck the deceased with it.* 
 '^here the allegation in an indictment for murder, was, "that the 
 :mev in and upon M. P., &c., feloniously, <fec.,did make an assault 
 1 a certain gun, called a rifle gun, <fec., then and there charged 
 gunpowder and two leaden bullets, which said gun, he, &c., had 
 held, at and against the said M. P., then, &c., feloniously, &c., 
 shoot oif and discharge, and that the said M. F., with the leaden 
 ets aforesaid, by means of shooting»ofiF and discharging the said 
 so loaded, to, at and against the said M. F., as aforesaid, did, 
 feloniously, &c., strike, penetrate and wound the said M. F., in 
 upon the left side of the said M. P., &c., giving to her, the said 
 \, (fee, with the leaden bullets aforesaid, l3y means of shooting oflf 
 discharging the said gun, so loaded, to, at and against the said 
 i^., and by such striking, &c., the said M. F. as aforesaid, one 
 tal wound in and upon the left side of the said M. P.," &c.; on a 
 on to arrest the judgment, on the ground that there was no suffi- 
 t averment that the gun was shot off, or that the contents were 
 larged, it was said that the inference seemed to be one of abso- 
 certainty, that the contents of the gun were shot off and dis- 
 ged, for there is nothing else to which the words "did shoot off 
 discharge" with a gun charged with gunpowder and leaden 
 3ts, could be applied.^ 
 
 A. be indicted as having given the mortal stroke, and B. and C. 
 resent aiding and assisting, and upon the evidence it appear that 
 ave the stroke, and A. and C. were aiding and assisting, or it be 
 proved which gave the stroke, the charge is proved, for in law it 
 e stroke of all." So if a prisoner be indicted for strangling the 
 ased with her own hands, and upon the evidence it turns out 
 the deceased was strangled by some one else in the presence of 
 prisoner, who was privy to it, and so near as to be able to assist, 
 is sufficient.* 
 
 n indictment for manslaughter alleged that T., on the 26th of 
 ember, at Groton, in the county of Middlesex, "in and upon one 
 then and there being, feloniously and wilfully did make an 
 lit, and with a stone, which said T. then and there had and held, 
 
 . V. Dale, Hil. T. 1824, 1 R. & M. C. C. 5; White v. Com. 6 Bin. 179. 
 jm. V. White, 6 Binney, 183. ' State v. Freeman, 1 Spears, 57. 
 
 Russ. on Cr. 510; 1 Hale, 462. s jj. ^. Culkin, 5 C. & P. 121. 
 
INDICTMENT — "STRIKE AND THRUST." 271 
 
 in and upon the head of the said L., then and there feloniously and 
 wilfully did cast and throw, and with the said stone, so as aforesaid cast 
 and thrown, the aforesaid L. then and there feloniously and wilfully 
 did strike, penetrate and wound, giving to the said L., by casting 
 and throwing of the stone aforesaid, in and upon the head of said 
 L., a mortal wound;" &c. It was held that it was sufBciently averred 
 that T. gave L. a mortal wound, on the 25th of September at Groton.' 
 
 Where the nature of the injury does not admit of the averment of 
 a stroke, it is enough if the artificial cases themselves are correctly 
 enumerated. Thus, where the indictment alleged in several counts 
 that the prisoner administered noxious and deleterious substances to 
 the deceased, and that he died of the sickness occasioned thereby; 
 and the evidence was, that the prisoner had administered to the de- 
 ceased, while ill of small-pox, large quantities of Morrison's pills, and 
 his death was thereby accelerated: it was objected that the indict- 
 ment was not supported by the evidence, which proved nothing more 
 than that the deceased died of a natural disorder, accelerated by im- 
 proper treatment; that 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 indict- 
 ment was held good, as all the witnesses agreed that the death was 
 accelerated by the pills." 
 
 In a case where the death proceeded from suffocation, by the swell- 
 ing 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 ne- 
 cessary 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 was then and there suffocated. It appeared 
 that this forcing of the moss and dirt did not produce immediate 
 strangulation, and that they were removed before the child died; but 
 the forcing them into the throat made the throat swell so as to choke 
 up the passage; and then the child died of suffocation. Upon a case 
 reserved, the judges held, that as the primary cause of the suffoca- 
 tion was the forcing the moss into the throat of the child, it was not 
 necessary to state in the indictment the intermediate process, viz., the 
 swelling up of the passage of the throat, which occasioned the suffo- 
 cation, such swelling having arisen by forcing the moss into the 
 throat.^ 
 
 1 Turns V. Com. 6 Metcalf, 225. 
 
 2 B. V. Webb, 2 Lewin, 196 ; S. C. 1 M. & Rob. 405. ^ R. v. Tye, Russ. & Ry. 345. 
 
HOMICIDE. 
 V. "In and upon the said left side of the heart of him the said 
 
 I a 
 
 le indictment must show in what part of the body the wound 
 inflicted, but if the wound be stated to be on the right side, and 
 roven to be on the left, the variance is not fatal.' 
 
 VI. " One mortal wound of the breadth of three inches, and of 
 lepth of one inch." 
 
 was formerly held to be necessary to insert a full description of 
 round.^ The present opinion, however, is to require no such parti- 
 'ity. Thus, where an indictment, after stating that the prisoners 
 liously and of their malice aforethought, made an assault on the 
 f killed, and threw him down upon the ground; and with their 
 s and feet, while he was upon the ground, in and upon his head, 
 ach, breast, belly, back, and sides, feloniously, &c., divers times, 
 
 great force and violence did strike, beat, and kick, and with 
 • hands, feet, and knees did strike, push, press, and squeeze, pro- 
 ed thus, — "giving to the said J. D. then and there, as well by 
 pulling, pushing, casting, and throwing of him, the said J. D. 
 1, unto and upon the ground as aforesaid, and by the striking, 
 ing, and kicking of him the said J. D., whilst he was so lying 
 being upon the ground as aforesaid, in and upon the head, sto- 
 1, breast, belly, back, and sides, of him the said J. D. as afore- 
 
 as also by the striking, pushing, pressing, and squeezing of him 
 laid J. D., whilst he the said J. D. was so lying and being upon the 
 nd as aforesaid, in and upon the belly, breast, stomach, and sides 
 m, the said J. D., with the hands, knees, and feet of them the said 
 . and B. M. in manner aforesaid, several mortal bruises, lacerations, 
 ivounds, in and upon the belly, breast, stomach, and sides, of him 
 aid J. D. ; " of which said several mortal bruises, lacerations, and 
 ids, the said J. D., from, &c. did languish, &c. ; and then it averred 
 eath and the murder in the usual form. A'conviction having taken 
 ), the prisoner's counsel moved in arrest of judgment, that the 
 ;tmcnt was insnfEcient in stating only that there were several 
 al bruises, lacerations, and wounds, on several parts of the body, 
 hich the party languished and died; that a considerable degree 
 rtainty was necessary in the statement of the wounds on the face 
 le indictment, and of the situation, length, &c. of each; that it 
 necessary to describe the particular parts of the body on which 
 vound or wounds is or are alleged to be; that charging a wound 
 ) inflicted on the side or sides of a man is bad, without more par- 
 arity, as non constat whether it is to be taken to be the side or 
 
 of the body, or of the head, or of any or of what limb; that the 
 itment, according to ancient forms, should so state the fact as that 
 2:er might be placed upon the part of the body where the wound 
 scribed to be; that this was still requisite, although a conviction 
 it take place upon evidence varying from it, for the particulars 
 t to be stated accurately, according to the facts as they are sup- 
 Hale, 186; Archb. C. P. 384. 
 
 Hale, 185, 186; 2 Hawk. P. C. c. 23, s. 80, 81 ; Trem. Ent. 10; Staundf. 78 h, 79 a; 
 40, 41; 5 Co. 120, 121b, 122; Cro. Jac. 95; Stark. Cr. L. 375, 380. 
 
INDICTMENT — DESCBIPTION OF WOUND. 273 
 
 posed 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 or the coroner's inquest as to these circum- 
 stances, 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, 186, 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., HuUock, B., Garrow, B., Burrough, J., Park, J. 
 Bayley, J., Graham, B., Alexander, L. C. B., Best, L. 0. J., and Abbott, 
 L. 0. J., held the conviction right, as it appeared in several old prece- 
 dents, 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, 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 state- 
 ment of these particulars: and as the statement; if introduced, need 
 not be proved, they thought it unnecessary. Littledale, J., and Hol- 
 royd, J., differed from the other judges, and thought the indictment 
 bad.i 
 
 Where the death was occasioned by a bruise, a description of its 
 dimensions, &c., is not necessary.^ It would seem, however, that it 
 is not necessary in general that the description of the wound should 
 be accurately suported by evidence.^ 
 
 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 ne- 
 cessary, for if common sense did not require it where there were se- 
 veral wounds, common sense did not require it where there was only 
 one." 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 judg- 
 ment, most consistent with common sense."' 
 
 The substance of the allegation of a mortal wound, however, must 
 be preserved; and an omission in this respect will be fatal. Thus, if 
 it be stated that the death was caused by any stroke, the indictment 
 should proceed to aver that the prisoner thereby gave to the de- 
 ceased a mortal wound or bruise, whereof he died;° and an indict- 
 ment setting forth that the prisoner choked the deceased, quel suffo- 
 catione ohiit, instead of de qud suffocatione, &c., was adjudged to be 
 erroneous." And if the means of the death be alleged to be by poi- 
 
 ' R. V. Mosley, R. & M. C. C. 97. 
 
 2 State V. Owen, 1 Mur. 452 ; see State v. Moses, 2 Dev. 452, contra. 
 
 3 2 Hale, 186; 1 Mood. C. C. 97. 
 
 * R. V. Toralinson, 6 C. & P. 379. ' Turner's case, 1 Lewin, 177. 
 
 6 2 Hale, 186. ' 1 Roll. 137. 
 
 18 
 
HOMICIDE. 
 
 it should be averred, after stating particularly the manner in 
 h the poison was administered, that the party died of the poison 
 ken, and the sickness thereby occasioned.^ 
 there is a substantial agreement, however, it is enough. Thus, 
 ■e the indictment alleged that a woman "with both her hands 
 t the neck" of a child, did press and squeeze, and thereby suffo- 
 l and strangled the child, it was held sufficient to prove that the 
 . came by its death by strangulation or suffocation, and it is not 
 3sary to show that the prisoner should have done it with her own 
 s, for if it was done by any other person in her presence, she 
 I privy to it, and so near as to be able to assist, that is sufficient.^ 
 here a count charged the death to be by suffocation, by the pri- 
 r having placed her hand on the mouth of the deceased, and the 
 3nce was, that the deceased had died from suffocation and pres- 
 ; it was held that, if any violent means were used to stop respi- 
 n, and the death was thereby caused, the count was proved.^ 
 , also, where the indictment stated that the prisoners adminis- 
 l a large quantity of a certain deadly poison, called white arse- 
 to the deceased, and that she swallowed down into her body 
 aid white arsenic, by means of which swallowing down the said 
 e arsenic she became mortally sick, of which said mortal sickness 
 [anguished from, &c., until, &c., on which day she "of the said 
 al sickness died:" it was objected, in arrest of judgment, that 
 ndictment ought to have alleged that she died of the poison and 
 16 sickness occasioned thereby, and that it was not sufficient to 
 e that by reason of the swallowing of the poison she became mor- 
 sick, and that she afterwards died of the said mortal sickness, 
 ine, J., overruled the objection, and, upon a case reserved, the 
 es held that the indictment was good." 
 
 all these cases it should be remembered that, even when it is 
 dered necessary to state the manner and place of the hurt, and 
 ature, in order that the indictment might be good as to its for- 
 ty; yet, if it appeared upon the evidence that the party died of 
 ier kind of wound, in another place, the indictment was never- 
 !SS maintainable.' 
 
 1 indictment which stated the death to have been caused by means 
 ivishing an infant, but omitted to aver that a mortal wound or 
 30 was given, was holden to be defective." 
 
 VII. "Of which said mortal wound the said E. F. from, ^c, to, 
 it, Sj-c, did languish, and languishingly did live." 
 
 lis averment is a mere matter of surplusage, and may be entirely 
 ken out.'' 
 
 7III, " On which said, Sfc, at, ^c, of the wound aforesaid, did 
 
 1 indictment upon which it does not appear that the death hap- 
 d within a year and a day after the wound was given, is fatally 
 3tive; because, when the death does not ensue within a year and 
 
 East, p. C. c. 5, B. Ill, p. 343; 2 Hawk. P. C. o. 23, s. 82, 83. 
 
 . u. Culkin, 5 C. & P. 121. a R. v. Waters, 7 C. & P. 250. 
 
 , V. Sandys, 1 Rus. ou Cr. 561. 6 2 Hale, 185, 186; 2 Hawk. P. C. c. 23, s. 81. 
 
 . V. Lad, 1 Leach, 38; S. C. 1 C. & Mars. 345. 
 
 enu. V. Zell, Addison, 171, 175. 
 
INDICTMEXT — STATEMENT OF DEATH. 275 
 
 a day after the wound is inflicted, the law presumes that it proceeded 
 from some other cause.' 
 
 The indictment at common law should therefore aver that the de- 
 ceased died in the county in which the indictment is found. ^ If a person 
 be stabbed in Virginia, and die of his wounds in another state, he can- 
 not be tried for murder in any county in Virginia; but he may be 
 tried for the stabbing in the county whei-e the blow was inflicted.^ 
 
 Proof that the violence inflicted by the defendant was the cause of 
 the death of the deceased is necessary, though positive proof that life 
 continued to the moment of the fatal blow, is not always necessary. 
 The presumption that a person proved to have been alive at a par- 
 ticular time, is still so, holds until it is rebutted by the lapse of time, 
 or other satisfactory proof.'' 
 
 Where the strolce was at one time or place, and the death at an- 
 other, if the day be specially alleged, it should be that on which the 
 party died, and not that on which he was stricken; for until he died 
 it was no murder.^ 
 
 An indictment which charges that the prisoner did administer the 
 poison to the deceased, wlio took and swallowed it, by means of which 
 taking and swallowing the deceased became mortally sick, and " of 
 the said mortal sickness died," is good, without also stating that the 
 deceased died of the poisoning.^ 
 
 A coroner's inquisition merely alleging, that the deceased of the 
 said mortal shock, " at the parish aforesaid, in the county aforesaid, 
 instantly died," is bad.' 
 
 Where an indictment alleged that Cox made an assault on the de- 
 ceased at the parish of All Saints, in Middlesex, and that the deceased 
 at the parish of St. Paul's in the county of Kent, did languish, &c., 
 and that he there died, and that Hargrave and others were then and 
 there present aiding, &c., Cox in the commission of the said felony; 
 it was held that the word "there" referred with suSScient certainty 
 to the parish of All Saints, where the blows, which constituted the 
 felony, were given.' 
 
 An indictment stated that the mortal wound was inflicted on the 
 7th November, 1845, and that the deceased languished on, until the 
 8th November in the year aforesaid, and then said, "on which 8th 
 day of May, in the year aforesaid, the deceased died." To this in- 
 dictment the prisoner pleaded not guilty. It was held, that the in- 
 sertion of May for November was a mistake, apparent on the face of 
 the indictment, and would not exclude proof of the death, subsequent 
 to the 7th November, or be cause for arresting the judgment.' 
 
 The dates here stated in the indictment need not be proved as laid, 
 though an indictment upon which it does not appear that the death 
 liappened 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 
 
 '(State V. Onell, 1 Dev. 139. See ante, p. 241. 
 
 2 2 Hawk. B. 2, o. 25, s. 36; 1 Ch. C. L. 178; 3 Ibid. 782; State v. OneU, 1 Dev. 139 
 Com. V. Linton, 2 Va. Cases, 205. s Com. v. Linton, Ibid. 
 
 * Com. V. Harman, 4 Barr. 269. ^ 1 East, P. C. c. 5, s. 117, p. 347. 
 
 6 R. V. Sandys, 1 Car. & Mars., 345. ' R. v. Brownlow, 11 A. & E. 119. 
 
 8 R. V. Kargman, 5 C. & P. 170. « Ailstock's cases, 3 Gratt. 650. 
 
HOMICIDE. 
 
 some other cause.'' All that is necessary to be proved, in order 
 pport this part of the indictment is, that the deceased died of 
 round or wounds given him by the defendant, within a year and 
 ifter he received them; as otherwise the case is not made out.^ 
 as already been seen, where it appeared that the man's death 
 caused by improper applications to the wound, and not by the 
 d itself, the defendant is not responsible; though if a man be 
 ded, and the wound turn to a gangrene or fever for want of 
 IV applications, or from neglect, and the man die of the gangrene 
 ver; or if it become fatal from the refusal of the party to undergo 
 gical operation,' this is homicide, and murder or not, according 
 3 circumstances under which the wound was given." An indict- 
 against two defendants, which states the death to be the result 
 different injuries inflicted by each of the defendants separately, 
 fferent days, is bad.^ 
 
 . " ^nd so the jurors aforesaid, SfC, do say, that the. said A. B. 
 n the said E. P., in manner and form aforesaid, feloniously , wil- 
 ly, and of his own malice aforethought, did kill and murder." 
 e concluding averment "and so the jurors do say," does not re- 
 
 either time or place to be alleged in it." 
 
 an indictment for murder, it is indispensable that the killing 
 lurder should be charged to be done " with malice aforethought."'' 
 late case, however, in Arkansas, it seems to have been thought 
 ihe words "and wickedly did kill and murder, against," &c., are 
 ;ent, without the words "of his malice aforethought."^ 
 
 indictment concluding with an allegation that the prisoner did 
 ,nd murder, omitting the name of the deceased in such concln- 
 was held in Indiana to be insufficient.' 
 
 Iiere an indictment for murder, after correctly charging the 
 ipal in the first degree, proceeded to allege that " at the time of 
 jlony and murder was committed, (to wit,)" &c., precisely in the 
 terms as in the preceding case, and, upon demurrer, it was ob- 
 i that the indictment was bad, and that case was relied upon as 
 int; Coltman, J., said that it was a grave authority in support of 
 bjection, but he would reserve the point as the case was so serious 
 : it was further objected that the bad English made the averment 
 icient, but Coltman, J., was inclined to think that the word 
 " might be rejected ; he, however, would reserve this point also.'" 
 here an inquisition, after correctly charging the principal in the 
 degree, alleged that the two other prisoners, at the time of the 
 y aforesaid " (to wit) on the day and year aforesaid, at the parish 
 isaid, in the county aforesaid, were feloniously present, then and 
 ) abetting, aiding, and assisting, the said N.," &c., it was objected 
 the word "feloniously," only applied to "present," and not to 
 tting, aiding, and assisting;" and it was held that the inquisition 
 bad on this ground." 
 
 ate V. Onell, 1 Dev. 189. 2 1 Hawk. c. 23, a. 90. 
 
 V. Holland, 2 M. & Bob. 351. * 1 Hale, 421. 
 
 V. Devitt, 8 C. & P. 639. E. v. Nicholas, 7 C. & P. 538. 
 
 im. V. Gibson, 2 Va. C. 70 ; though see, per contra, Anderson v. State, 5 Pike, 445. 
 iderson v. State, 5 Pike, 445. » Dlas v. State, 7 Blackf. 20. 
 
 V. Phelps, 1 Kuss. on Cr. 564; 1 C. & Mars. 180. In consequence, however, of 
 iquittal of tie principal in the second degree, no further action was had. Ibid. 
 , V. Nicholas, 7 C. & P. 538. 
 
INDICTMENT — CONCLUDING AVERMENTS. 277 
 
 In a late case, the second count oYthe indictment charged J. 0. B. 
 that he, "on the 27th of May, feloniously, and of his malice afore- 
 thought, struck the deceased with a stick, of which said mortal wound 
 the deceased died on the 29th day of May; that T. R. D. D., &c. on the 
 day and year first aforesaid, at the parish aforesaid, feloniously and 
 of their malice aforethought, were present aiding and abetting the 
 said J. 0. B., the felony last aforesaid to do and commit;" and conclu- 
 ding " the jurors, &c., say that the said J. 0. B., T. R. D. D., &c., him the 
 deceased in manner and form last aforesaid, feloniously, and of their 
 malice aforethought, did kill and murder." The third count charged 
 T. R. that he " on the 'i7th day of May, a certain stone feloniously, and 
 of his malice aforethought, cast and threw, and which said stone, so 
 cast and thrown, struck deceased, of which mortal blow the deceased 
 died on the 29th of May, and that J. 0. B., D. D., &c., were present, 
 aiding and abetting," &c., as in the first count. It was objected — 1st, 
 that the indictment was inconsistent, in charging the principals in the 
 second degree with committing the felony at the time of the stroke, 
 whereas it was no felony till the time of the death; and, 2d, tliat the 
 general verdict of guilty, left it uncertain which was the cause of 
 death, the stick, or the stone, and that, therefore, no judgment could 
 be entered on either. It was held — 1st, that the form of the indict- 
 ment was good; and, 2d, that the alleged generality was immaterial, 
 the mode of death being substantially the same.^ 
 
 If several be charged as principals, one as principal perpetrator, and 
 the other as present, aiding and abetting, it is not material which of 
 them be charged as principal in the first degree, as having given the 
 mortal blow, for the mortal injury done by any one of those present, is, 
 in legal consideration, the injury of each and every one of them.^ If 
 the actual perpetrator of a murder should escape by flight, or die, those 
 present, abetting the commission of the crime, may be indicted as prin- 
 cipals; and though the indictment should state that the mortal injury 
 was committed by him who is absent, or no more, yet if i t be subsequently 
 alleged that those who are indicted were present at the perpetration 
 of the crime, and did kill and murder the deceased, by the mortal 
 injury so done by the actual perpetrator, it will be sufficient.^ 
 
 XX. — " Contrary to the form," fyc. 
 
 As a general rule it is not necessary that indictments for murder 
 should conclude contra formam statuti. In England it is held that 
 on an indictment for manslaughter not concluding contra formam 
 statuti, the punishment provided by the 9 Geo. 4, c. 31, s. 9, may be 
 awarded, for such conclusion is only necessary where a statute 
 creates the offence, not where it merely regulates the punishment.'' 
 
 In Pennsylvania, Tennessee, North Carolina and Missouri, and in 
 fact, generally, the statutory penalty can be inflicted after conviction 
 on an indictment for murder at common lavv.^ 
 
 1 R. «. O'Brian, 1 Den. C. C. 9. 
 
 2 Fost. 551 ; 1 East, P. C. 330 ; State ». Fley & Koohelle, 2 Brev. 338 ; State v. Mair, 
 1 Coxe, 453 ; see ante, p. lo5, et seg. 
 
 3 State c. Fiey & Koohelle, 2 Brev. 338. 
 * R. c. Barry, 1 Moo. & Rob. 463. 
 
 ' Com. 17. White, 6 Binn. 183 ; Mitchell v. State, 5 Yerg. 340 ; Hines v. State, 8 Hum. 
 597; M'Gee v. State. 8 Mis. 495; State v. Drinkley, 3 IredeU, 117. 
 
HOMTCIDE. 
 
 . New York a common law indictment for murder ia proper 
 sr tlie revised statutes; but a defendant cannot be convicted on 
 
 an indictment of a felonious homicide, with malice aforethought, 
 33 the evidence is sucli as to bring the case within the statutory 
 lition of murder.^ 
 
 le general provisions in this respect have been thus laid down: 
 old reason of the ordinary conclusion of an indictment at com- 
 law, " against the peace of our said lady the queen, her crown 
 dignify," was that these words were always necessary in order 
 ow to whom the forfeiture accrued. Whether in misdemeanor,^ 
 Qon law felony,^ or felony created by statute.'* The only excep- 
 was in an indictment for a mere nonfeasance at common law, 
 1 it is said their omission would not prejudice;' and they are 
 ys necessary in an ofiFence against a statute. In this coontry, 
 ^h the reason no longer works, the form is preserved, and is in 
 r instances made imperative by constitutional enactment, as will 
 en in the next chapter. In offences of all characters, the "con- 
 acem" is essential; and the point on which any discretion may 
 iercised is in the commission or introduction of the conclusion, 
 tra formam statuti." And here it may be observed, that in all 
 
 of doubt it is proper to introduce this conclusion, and ■ even in 
 
 ar common law case, it may always be disregarded as surplus- 
 
 In a large class of offences, however, its introduction is 
 
 rative. Thus, where an offence is created, or where a misde- 
 
 or is raised into a felony by statute, the words "contrary to the 
 
 of the statute in such case made and provided," must be 
 ted either before or after the words " against the peace," &.C.'' 
 re the matter charged is no offence at common law, the omission 
 ese words will so entirely vitiate, that no judgment can be 
 1 on it.^ For every offence for which a party is indicted is sup- 
 l to be prosecuted as an offence at common law, unless the 
 icutor, by reference to a statute, shows that he means to proceed 
 ; and without such express reference, if it be no offence at com- 
 law, the court will not look to see if it be an offence by statute.' 
 ivhere the matter charged was an offence at common law, and is 
 wards prohibited by statute without being altered in degree, as 
 misdemeanor to felony, though the statute provides some new 
 3ral or other punishment, e. g. for perjury by 5 El. c. ix.. or for 
 ny by 7 & 8 0. IV. c. 28, s. 11 ;"> the omission of contra formam 
 
 iojile V. Enoch, 18 Wend. 159. « R. v. Taylor, 3 B. & C. 502 
 
 V. Cook, R. & R. C. C. 176; 2 Russ. C. & M. 172. 
 
 id.; 1 Bla. C. 116. s Per Holt, C. .T.; Fortesouc, LSI R. 
 
 . Raym. 1-19, 116i; R. v. Matthews, 5 T. R. 1C.2, 4 ib. 202; 1 Saund. 135 n 3- 
 •J. Buckman, 8 N. Hamp. 203; Knowles v. State, 3 Day, 103; State v. ci-uiser' 
 ■IS. 108; Southworth v. State, 9 Conn. 660; Com. v. Gregory, 2 Dana, 417- Com 
 :ey, 16 .Mass. 385; Resp. v. Newell, 3 Yeates, 407; PenS. v'.BeW Addison 171 ■ 
 , 190; Alleyn, 43 ; 1 Salk. 212, 213; 5 T. R. 162; 2 Leach, 584; 2 Salk'. 460- 
 Haym. 1163; 4 T. R. 202; 2 Hawk. c. 25, s. 115; Bacon Abr. Indictment, H. 2- 
 
 Just. Indictment, ix.; Haslip v. State, 4 Hay. 273. 
 lale, 192; 2 Hawk. c. 25, s. 116; 1 Salk. 370; 2 R. & R 38 
 lale, 172, 189, 102. 
 : Lawrence, J., in Lee v. Clark," 2 East, 333; Boot. Plac. 332; 2 Hawk c "5 
 
 R. V. Deacon, R. & M. N. P. C. 27. ' 
 
 V. Blea, 8 C. & P. 735. 
 
INDICTMENT — CONCLUSION. 279 
 
 statuti will not wholly avoid the indictment, but judgment may 
 pass for the punishment inflicted in such case by the common law." 
 
 Numerous distinctions have been taken in the old books as to the 
 proper conclusion where there were more statutes than one referring 
 to the offence, whether it should' be contrary to the form of the 
 statute or statutes ; and the English doctrine used to be that if one 
 statute be relative to another, as where the former makes the offence, 
 and the latter adds a penalty, the indictment should conclude contra 
 formam statutorum.^ The more recent authorities, however, seem to 
 countenance the opinion that in all cases a conclusion in the singular 
 Mall suffice.' If one statute subjects an offence to a pecuniary 
 penalty, and a subsequent statute makes it a felony, an indictment 
 for the felony concluding against the form of the statute in the sin- 
 gular, is right.'* 
 
 Besides these necessary parts of the conclusion, it was formerly 
 usual to introduce others of mere moral inference, as " to the great 
 displeasure of Almighty God," "to the evil example of all others," 
 and "to the great damage" of the party directly aggrieved; but 
 these are all clearly unnecessary, and should be omitted.* 
 
 The subject of the "contra formam" conclusion in cases of mur- 
 der, is thus learnedly discussed by Chief Justice Ruf&n of North 
 Carolina.^ "The act of 1777," he said, "in requiring pleas of the 
 state to be commenced in the district wherein the offence was com- 
 mitted, but followed the principle of the common law, that the cog- 
 nizance of crime is local. It seems to the court, that the subsequent 
 act of 1831, was intended for the sole purpose of modifying that 
 provision in particular cases, by conferring a jurisdiction to try 
 indictments for murder or manslaughter, where the whole offence 
 was not perpetrated or was not fully constituted within one county 
 or within this state. It provides,' first, that ' in all cases of felonious 
 homicide, where the assault shall have been committed in one county 
 of this state and the person assaulted shall die in any other county 
 thereof, the offender shall and may be indicted and punished for the 
 crime in the county where the assault was made;' and in the next 
 place, that ' in all cases of felonious homicide, where the assault shall 
 have been committed in this state, and the person assaulted shall die 
 without the limits thereof, the offender shall and may be indicted 
 and punished for the crime in the county where the assault was 
 made, in the same manner to all intents and purposes as if the person 
 assaulted had died within the limits of this state.' There is no 
 offence newly created, or raised to a higher offence, nor an additional 
 punishment annexed, in any of which cases, it is admitted, the indict- 
 ment ought to conclude contra formam statuti. In respect to a case 
 which occurs wholly in this state, the act is like that of 2 and 3 Ed. 
 
 1 2 Hale, 190, 192; 1 Chit. C. L. 290, 1st ed.; Areh. C. P. & Ev. 8tli ed. 55; People v. 
 Enoch, 13 Wend. 175 ; State «. Kipley, 2 Brevard, 382 ; State v. Tim, 3 Murph. 8 ; State 
 D. Crans, 7 Gill & J. 290; Warner «. Com , 1 Barr, 154. 
 
 2 Westwood's case, 2 Hale, 173. 
 
 3 Clanricarde (Earl) v. Stokes, 7 East, 520, and cases cited 1 Chit. C. L. 292, n. 
 
 ^ R. V. Pim, R. & R. 425; though in Maryland, State v. Cassell, 2 H. & G. 470, and 
 in N. Carolina, State v. Pool, 2 Dev. 202, the old rule is adhered to. 
 
 ° Dickinson's Q. S. 6th ed. 225. e State v. Drinkley, 3 Iredell, 117. 
 
 ' Eer. Stat. c. 35, s. 14, 15. 
 
280 HOMICIDE. 
 
 VI. c. 24, except that the English statute directs the trial to be in 
 the county where the person died. It enacts that ' where any person 
 shall be feloniously stricken in one county and die of the same 
 stroke in another county, an indictment thereof, found by jurors of 
 the county where the death shall happen, shall be as good and effec- 
 tual in law as if the stroke had been given in the same county where 
 the party shall die.' Mr. East says this statute created no new 
 felony, but merely removed the difficulty which existed in the trial. ^ 
 Indeed it is obvious that it provides only a mode of trial for a known 
 existing offence, 'where any person shall be feloniously stricken,' 
 and die thereof, without deflning or enacting what shall be such 
 felonious striking, or what the punishment, but leaving that to the 
 law as it stood. The same observations apply to another statute 
 connected with this subject, that of 28 Hen. VIII. c. 15, which pro- 
 vides for the case of both the stroke and death taking place at sea. 
 The words are, 'that all murders, &c. committed in and upah the 
 sea, &c., shall be inquired, tried, determined and judged, in such 
 shires as shall be limited by the king's commissions, as if such offence 
 had been committed upon the land.' So, likewise, of Stat. 2 G. II. 
 c. 21, which embraces the case of the stroke in England, and the 
 death without it, or vice versa, of which the language is ' that an 
 indictment thereof, found by the jurors, &c., shall be good and effec- 
 tual,' &c. In prosecutions authorized by those acts, the indictments, 
 as it seems, have always concluded at common law.' It is true, 
 offenders are thereby punished, who could not be punished before. 
 But the reason why they were not punished before, was, solely, 
 that no court had authority to try them. It was not because the 
 crime did not exist, for the crime, murder, is the killing of any per- 
 son in the peace of the state, with malice aforethought, and that is 
 constituted alike by killing with the evil disposition, be the places 
 of assault and death where they may. Language of precisely the 
 same character is found in our act. It does not say that killing a 
 person with malice, when the stroke is in one county, and the death 
 in another county or in another state, shall be deemed murder, or 
 that on conviction the person shall be deemed a felon, and suffer 
 death without the benefit of clergy. It does not profess to define 
 'felonious homicide,' or to constitute that crime by any particular 
 acts, but merely says, that in certain cases of felonious homicide, the 
 offender may be indicted, and, of course, tried and punished in the 
 country where the stroke was given; meaning, though it does not, 
 like Stat. 2 and 3 Ed. VI. expressly say so, 'in the same manner as 
 if the death had happened in the same county where the stroke was 
 given.' As the act of 28 Hen. VIII. c. 15, says, 'all murders com- 
 mitted on the sea shall be tried in a shire,' by commission of oyer 
 and terminer; so our act says, 'in all cases of felonious homicide, 
 &c., where, &c., the offender may be indicted,' &c. Besides, the 
 character of our enactment may be further deduced from the circum- 
 stance that it is found in the Revised Statutes, in the 35th chapter 
 on 'Criminal Proceedings,' and not in the preceding chapter on 
 
 1 1 East, C. L. 365. 
 
 2 Arch. C. P. 22, 57, 58; Doug. C. C. 295; Cro. C. C. 278, 281; 3 Chit C. L. 783. 
 
INDICTMENT— CONCLUDING TERMS. 281 
 
 'Crimes and Punishments.' It was, however, argued at the bar, that 
 it was an essential part of the definition of murder, that the person 
 slain should be in the peace of the state; and that where the death 
 occurs in another state, that requisite is deficient in the crime at 
 common law, and therefore, it cannot be an offence against this state, 
 unless made so by the statute. And upon that ground a distinction 
 was taken between the English statutes and ours, inasmuch, as it was 
 said, the statutes both of Ed. VI. and of Hen. VIII. provide for cases 
 of killing, in which the whole of the transaction occurred either in 
 England, or within the jurisdiction of England, as exercised by her 
 admiralty court. But we think the reasoning is not sound. That 
 part of the definition of murder expressed in the terms, 'on the 
 king's peace,' refers not to the place of the assault and death, but to 
 the state and condition of the person slain, as being or not being 
 entitled to the protection of the English laws; for example, whether 
 he be a subject or an alien enemy, or traitor in arms, or, in more 
 ancient times, an infidel, or guilty of a prcemunire. Then, it, is also 
 a mistake to say, that the acts are confined to cases in which every 
 part of the transaction was within the jurisdiction of England, either 
 as being within some of her territories, or on board of her ships. 
 The act of Geo. II. before mentioned, provides for the case of one 
 stricken in England and dying on the sea, or 'at any place out of 
 England,' and we do not find that this has received a different con- 
 struction from that of the previous statutes. We find an adjudica- 
 tion, however, upon another statute, which shows that the question 
 does not depend on the ground supposed, but that the indictment is 
 to conclude at common law, although no part of the transaction was 
 within the British dominions or jurisdiction. By the stat. 33 Hen. 
 VIII. c. 33, it is enacted, 'that if any person, being examined before 
 the king's council upon any murder, do confess such offence, &c., then 
 in such case a commission of oyer and terminer shall be made to such 
 persons and into such shires and places as shall be appointed by the 
 king for the speedy trial, conviction or delivery of such offenders, 
 which commissioners shall have power and authority to inquire, hear 
 and determine such murders within the shires and places limited by 
 their commission, by such good and lawful men as shall be returned 
 before them, in whatever other shire or place within the king's domi- 
 nion, or without, such offence of murder, so examined, was done or 
 committed.' In Rex v. Sawyer,' a British subject was indicted for 
 the murder of another British subject, ' at Lisbon, in the kingdom of 
 Portugal, in parts beyond sea without England,' and the indictoaent 
 was at common law. The case was argued before the twelve judges, 
 and they held that, being for a common law felony, committed 
 abroad, but made triable in England under the 33 Hen. VIII., the 
 indictment was right. That judgment is directly in point, and is 
 decisive of this case against the prisoner. It must therefore be cer- 
 tified to the Superior Court, that there is no error in the judgment 
 given by that court, in order that further proceedings may be had 
 thereon according to law." 
 
 1 E,. & R. C. C. 294. 
 
282 HOMICIDE. 
 
 XXI. — distinctive features of Manslaughter. 
 
 Where the bill of indictment is found by the grand jury a true 
 bill for manslaughter, and ignoramus as to murder, it is stated to 
 have been the English course to strike out, in the presence of the grand 
 jury, the words " maliciously " and "of malice aforethought," and 
 "murder," and to leave only so much as makes the bill to be one for 
 manslaughter; ' and this appears to be the practice at the present 
 time upon some of the circuits; but the usual course in this country 
 is, unless the emergency of the case prevents it, to present a new 
 bill to the grand jury for manslaughter. And in England a learned 
 judge went so far as to say that this should be done where the 
 grand jury have returned manslaughter upon a bill for murder, say- 
 ing he thought it the better course to prefer a new bill, although the 
 usual course on the circuit had been to alter the bill for murder, on 
 the finding of the grand jury.^ 
 
 Though the same indictment may charge one with murder and an- 
 other with manslaughter, yet if it charged both with murder, the grand 
 jury cannot find it a true bill against one, and manslaughter as to the 
 other; but a finding against one for murder will be good, and there 
 ought to be a new bill against the other for manslaughter.^ 
 
 The indictment for manslaughter differs from the indictment for 
 the higher crime of murder, in the omission of any statement as to 
 malice, and of the conclusion that the party accused did kill and 
 "murder;" and we have seen that a bill of indictment for murder 
 may be converted into one for manslaughter, by striking out such 
 statement and conclusion." 
 
 If a person be indicted as accessary after the fact to a murder, he 
 may be convicted as accessary after the fact to manslaughter, if the 
 offence of the principal turns out to be manslaughter.^ Either assist- 
 ing the party to conceal the death, or in any way enabling him to 
 evade the pursuit of justice, will render a party, who knows the 
 offence to have been committed, an accessary after the fact.° 
 
 XXII.— P/eas. 
 
 The general characteristics of pleas in criminal prosecutions have 
 been abundantly discussed in another treatise to which the reader is 
 referred.^ 
 
 In two points the pleading in cases of homicide is peculiar to itself, 
 (1) where in England benefit of clergy is claimed after a conviction 
 for manslaughter, and (2) where in this country on a retrial of a case 
 in which there had on the first trial been no judgment, the defendant 
 sets up the plea of "once in jeopardy." 
 
 In regard to the first of these cases one or two points may be ob- 
 served, which, though of no positive authority among us, may have 
 some analogical weight. 
 
 A man who has been convicted of manslaughter, and has had his 
 clergy allowed, might have pleaded autrefois convict to an indict- 
 ment, charging the same death upon him as a murder.^ And it is 
 
 1 2 Hale, 162. ^ Turner's case, ] Lew. 176. » 1 East, P. C. o. 5, s. 116, p. 347. 
 * 1 Euss. on Cr. 584. * r. „. Greenaore, 8 C. & P. 85. 6 ibid. 
 
 ' See Wharton's Cr. Law, b. 1, c. vii. ^ i Ruas. on Cr. 5G5. 
 
PLEAS — "ONCE IN JEOPARDY." 283 
 
 clear that autrefois convict of manslaughter, and clergy thereupon 
 allowed, was a good bar in an appeal of murder.' And autrefois 
 acquit, or autrefois attaint, upon an indictment for murder, has been 
 held a good plea to an indictment charging the same death as petit 
 treason .^ 
 
 Where the prisoner had been tried for murder, and convicted of 
 manslaughter, and had received the benefit of clergy, and was subse- 
 quently tried for murder, and convicted of manslaughter, in killing 
 another individual (who died after the first trial) by the same act 
 which caused the death of the first; the judges were unanimously of 
 opinion, that the former allowance of clergy protected the prisoner 
 against any punishment upon the second verdict; and that if the 
 prisoner were to be called up for judgment, he might rely upon such 
 allowance as a bar.^ 
 
 The doctrine of "once in jeopardy" has been elsewhere very fully 
 examined.^ 
 
 Where after conviction of manslaughter, a new trial was granted 
 on the prisoner's application, it was held in Tennessee that on the 
 second trial, he was discharged from the charge of murder; but 
 such has not been the usual understanding in practice. Of this a 
 striking illustration is given in the address of Mr. Justice Grier, of 
 the Supreme Court of the United States, to a party of prisoners who 
 applied for a new trial after having been convicted of manslaughter 
 in the Circuit Court of the U. S. in Philadelphia, in 1848. "But let 
 me now solemnly warn you to consider well the choice you shall 
 make. Another jury, instead of acquitting you altogether, may find 
 you guilty of the whole indictment, and thus your lives may become 
 forfeit to the law. If you choose to run this risk, and again to put 
 your lives in jeopardy, it must be by your own act and choice, being 
 neither compelled nor advised thereto by the court; and when your 
 solemn election shall have been put on record, the court will hold 
 you forever after estopped to allege that your constitutional rights 
 have not been awarded to you."'^ 
 
 As a final determination in a court having competent jurisdiction 
 is conclusive in all courts of concurrent jurisdiction, it has been held 
 that a party who has killed another in a foreign country, and been 
 there prosecuted, tried, and acquitted, may avail himself of such ac- 
 quittal in answer to any charge against him in this country for the 
 same offence. ° 
 
 1 R. V. AVigges, 4 Co. 45. 2 2 Hale, 24G; Fost. 329. 
 
 ' R. V. .Jennings, Russ. & Ry. 388. The act which occasioned the death of the two 
 individuals, (two children,) we are told by Mr. Greaves, was one and the same. The 
 general effect of the allowance of clergy, after the 8 Eliz. 0. 4, was to discharge all 
 offences precedent within clergy ; but not such as were not entitled to the benefit of 
 clergy. But by the 6 Geo. 4, c. 2.5, s. 4, the allowance of the benefit of clergy to any 
 person who was convicted of any felony, did not render the person to whom such benefit 
 was allowed, dispunishable for any other felony, by him or her committed, before the 
 time of such allowance. 
 
 ■i Wh. Or. Law, b. 1, c. 7, s 6. ° 6 P. L. J. 22. 
 
 6 1 Russ. on Crimes, 566; R. v. Hutchinson, 3 Kebl. 78.5, cited in Beak v. Thyrwhit, 
 1 Show. 6 ; Bull. N. P. 245; 3 Mod. 194; 1 Leach, 135, note o." The defendant being 
 apprehended in England, and committed to Newgate, was brought into K. B. by habeas 
 corpus, where he produced an exemplification of the record of his acquittal in Portugal; 
 but the king (Car. 2) being willing to have him tried for the same offence, referred the 
 point to the consideration of the judges, who all agreed, that, as the party had been 
 
284 HOMICIDE. 
 
 XXIII. Verdict. 
 
 The uniform rule in the country, as will be seen more fully here- 
 after, is that under an indictment for mui'der in the first degree, 
 the prisoner may be convicted of murder in the second degree. 
 
 The jury may, upon an indictment for murder, find the prisoner 
 guilty of the offence charged, or of the lesser offences of manslaughter 
 or excusable homicide;' or of an assault under the 1 Vict. c. 85, s. 
 11.^ Where, however, the facts of the case amount only to excusable 
 homicide, it is usual for the judge, at the present day, to permit or di- 
 rect a general verdict of acquittal, unless some considerable blame 
 appears to attach to the conduct of the party. ^ And several persons 
 present at a homicide may be guilty in different degrees, one of mur- 
 der, the other only of manslaughter. 
 
 In Pennsylvania it is said that under a verdict of guilty of murder, 
 sentence may be had for murder in the first degree." But in Alabama, 
 in Ohio, and in Missouri, it is necessary on the conviction of a pri- 
 soner for that ofi'ence, that the verdict of the jurj' should ascertain 
 the degree, otherwise, no judgment can be pronounced upon it.^ 
 
 Whether a conviction may be had for assault and battery under an 
 indictment for manslaughter, is in this country a matter of some 
 doubt. In England the rule at common law was, that such a convic- 
 tion could not be had, the reason being that if a misdemeanor be 
 tried under an indictment for a felony, the defendant loses his 
 right to a special jury and a copy of the bill of indictment.^ In this 
 country, though the reason fails, the principle that under an indict- 
 ment for a felony there can be no conviction for a misdemeanor is 
 followed in Pennsylvania,' in Massachusets,^ and in Maryland.^ In 
 New York,'" Vermont," and Ohio,'^ it has been held that the English 
 
 already acquitted of the charge by the law of Portugal, he could not be tried for it again 
 in England. 
 
 1 1 Hale, 449. 2 9 Hale, 302. s Co. Lit. 2S2. 
 
 * Com. 0. Earle, 1 Wh., 525. 
 
 5 Johnson v. State, 17 Ala. 618; State v. Town, Wright, 75; M'Gee v. State, 8 Miss. 
 495. 
 
 « R. V. Gross, 1 Ld, Raym. 711 ; 3 Salk. 193; 2 Hawk. c. 47, s. 6; 1 Ch. C. L. 251, 
 639 ; R. V. Walter, 6 C. & P. 657. 
 
 ' Cora. V. Gables, 7 S. & K. 433 ; Hackett v. Cora. 3 Harris, 95, may seem to conflict 
 with this, but it does not. There the word "feloniously" is mere impertinent sur- 
 plusage in the bill. 
 
 » Com. V. Newell, 7 Mass. 245. " Black v. State, 2 Maryl. 376. 
 
 1" People V. White, 22 Wend. 175; People v. Jackson, 3 Hill, 92; Lohman v. People, 
 1 Comstock, 379. 
 
 " State V. M'Coy, 2 Aiken, 181; State v. Scott, 24 Vt. (1 Deane, 129.) The opinion 
 of this court in this case was as follows : The respondent was indicted for manslaughter, 
 and on trial was convicted under the charge of the court, of a common assault and bat- 
 tery. The jury have found by their verdict, that the death of Bailey was not occasioned 
 by the assault, beating and wounding as alleged in the indictment, and the question is, 
 can a conviction for an assault and battery be sustained on an indictment for man- 
 slaughter? 
 
 In England, the rule seems well settled, that where an indictment includes an offence 
 of an inferior degree, the juror may discharge the defendant of the higher crime, and 
 convict him of the lesser. As on an indictment for murder, he may be convicted of man- 
 slaughter; for robbery, of theft; for grand larceny, of petit larceny; and on an indict- 
 ment founded on a statute, he may be convicted of an offence at common law. In all 
 these cases, and others of a similar character, the inferior ofi'ence of which he is con- 
 victed is of the same character as the greater of wiiich he is indicted, only it is inferior 
 1^ State V. Hess, 5 Ohio. 
 
mCICTMENT — VERDICT. 285 
 
 reasons ceasing, the rule itself cease's. In Massachusetts, the latter 
 position is now established by statute.' 
 
 in degree of guilt. The eTidenco introduced to prove the greater offence sustains the 
 latter. The principal is favoured for the respondent, for which he has no reason to 
 complain. It is equally well settled in England, that on an indictment for a felony at 
 common law, ii. conviction cannot be had for a misdemeanor. The reasons assigned are, 
 that the respondent loses the right of a special jury, henefit of counsel, and a cory of 
 the indictment. And for this he lias reason to object and complain, and courts adopting 
 rules most favourable to the respondent will not allow such conviction. 
 
 But for these causes, we see no reason why at common law, such a conviction would 
 not be sustained. Tliese reasons do not manifestly exist in this state. Felony, as exist- 
 ing at common law, is not known under the laws of this state, as crimes do not work a 
 forfeiture of the estate. But offences are distinguishable into what may be termed 
 crimes and misdemeanors; the former punishable capitally or by confinement in the 
 state pi'ison, and the latter by fine and imprisonment in the county jail. On the trial 
 of these cases there is no difference in the mode of trial, or the right of the respondent; 
 and no reason exists in this state why one indicted for that which would be a felony at 
 common law may not be convicted of a misdemeanor. The conviction would bar a subse- 
 quent prosecution, as well as a conviction for theft, under an indictment for burglary 
 or robbery ; indeed we must consider this subject as having beep decided in this state in 
 the two oases to which we have referred. In the case of the State v. M'Lean, 1 Aik. 
 Rep. 313, the respondent was indicted for forgery, which was punishable by imprison- 
 ment in the state prison, but of which offence he was acquitted by the jury, and con- 
 victed of a misdemeanor, a cheat, an offence at common law, and fined. So in the case 
 of State V. Coy, 2 Aik. Rep. 181, the respondent was indicted for an assault, with'intent 
 to murder, an offence punishable with imprisonment in the state prison; and on trial 
 he was acquitted of that offence, but convicted of a common assault. Manslaughter is 
 punishable by imprisonment in the state prison; it is followed by no greater punish- 
 ment or legal consequences than forgery, or assault with intent to murder. And if a 
 jury in those cases may acquit of a greater offence, and convict of the lesser, it would 
 seem to follow as a necessary conclusion, that the same principle would apply to the 
 other case. The result is that the judgment of the county court must be affirmed. 
 
 ' Com. V. Squires, 1 Mete. 258. 
 
286 HOMICIDE. 
 
 CHAPTER XL 
 
 HOMICIDE AS AFFECTED BY SLAVERY. 
 
 I. Homicide of slave by master or other white person. 
 
 II. Homicide of master or other white person by slave. 
 
 I. Homicide of slave hy master or other white person. 
 
 The wilful and deliberate killing of a slave by a white person, no 
 matter what may be his relation to the slave, is murder.^ And in 
 Virginia where the statutory distinction between murder in the first 
 and murder in tlie second degree exists, the offence, if committed by 
 cruel and unusual whipping, falls under the higher grade.'-* 
 
 "The prisoner," said Field, J., in a case where the subject was 
 fully discussed, "was indicted and convicted of murder in the second 
 degree, in the Circuit Court of Hanover, in its April term last past, 
 and was sentenced to the penitentiary for five years, the period of 
 time ascertained by the jury. The murder consisted in the killing 
 of a negro slave by the name of Sam, the property of the prisoner, by 
 cruel and excessive whipping and torture, inflicted by Souther, aided 
 by two of his other slaves, on the first day of September 1849. The 
 prisoner moved for a new trial, upon the ground that the offence, if 
 any, amounted only to manslaughter. The motion for a new trial was 
 overruled, and a bill of exceptions taken to the opinion of the Court, 
 setting forth the facts proved, or as many of them as were deemed 
 material for the consideration of the application for a new trial. The 
 bill of exceptions states: " That the slave Sam, in the indictment men- 
 tioned, was the slave and property of the prisoner. That for the 
 purpose of chastising the slave for the offence of getting drunk, and 
 dealing as the slave confessed and alleged, with Henry and Stone, 
 two of the witnesses for the Commonwealth, he caused him to be tried 
 and punished in the presence of the said witnesses, with the excep- 
 tion of slight whipping with peach or apple tree switches, before the 
 said witnesses' arrival, after they were sent for by the prisoner, (who 
 were present by request from defendant,) and of several slaves of 
 the prisoner, in the manner and by the means charged in the indict- 
 ment; and the said slave died under and from the inflictions of the 
 said punishment, in the presence of the prisoner, one of his slaves, and 
 one of the witnesses for the commonwealth. But it did not appear 
 that it was the design of the prisoner to kill the said slave, unless 
 
 1 State V. Scott, 1 Hawks, 24; State v. Hale, 2 Hawks' Rep. 582; State v. Jones, 
 Walker, 83; Souther n. Com., 7 Gratt. 073; Worlay v. State, 11 Humphr. 172, 176; 
 though see State v. Fleming, 2 Stroth. 464; Neal v. Farmer, 9 Georg. 5o5, where it is 
 held, that the common law does not apply to the institution of slavery, so far as con- 
 cerns homicide of the slave. * Souther v. Com., 7 Grat. 673. 
 
AS AFFECTED BY SLAVERY. 287 
 
 such design be properly inferrable from the manner, means, and dura- 
 tion of the punishment. And on the contrary, it did appear that the 
 prisoner frequently declared, while the said slave was undergoing the 
 punishment, that he believed the said slave was feigning and pretend- 
 ing to be suffering and injured, when he was not. The judge certi- 
 fies that the slave was punished in the manner and by the means 
 charged in the indictment. The indictment contained fifteen counts, 
 and set forth a case of the most cruel and excessive whipping and tor- 
 ture. The negro was tied to a tree and whipped with switches. When 
 Souther became fatigued with the labour of whipping, he called upon 
 a negro man of his, and made him cob Sam with a shingle. He also 
 made a negro woman of his help to cob him. And after cobbing and 
 whipping he applied fire to the body of the slave; about his back, 
 belly, and private parts. He then caused him to be washed down 
 with hot water in which pods of red pepper had been steeped. The 
 negro was also tied to a log and to the bed post with ropes, which 
 choked him, and he was kicked and stamped by Souther. This sort 
 of punishment was continued and rejieated until the negro died under 
 the infliction. It is believed that the records of criminal jurisprudence 
 do not contain a case of more atrocious and wicked cruelty, than was 
 presented upon the trial of Souther; and yet it has been gravely and 
 earnestly contended here by his counsel, that his oflence amounts to 
 manslaughter only. It has been contended by the counsel of the 
 prisoner, that a man cannot be indicted and prosecuted, for the cruel 
 and excessive whipping of his own slave. That it is lawful for the 
 master to chastise his slave, and that if death ensues from such chas- 
 tisement, unless it was intended to produce death, it is like the case 
 of homicide, which is committed by a man in the performance of a 
 lawful act, which is manslaughter only. It has been decided by this 
 court, in Turner's case,' that the owner of a slave, for the malicious, 
 cruel, and excessive beating of his own slave, cannot be indicted; yet 
 it by no means follows when such malicious, cruel, and excessive 
 beating results in death, though not intended and premeditated, that 
 the beating is to be regarded as a lawful act, for the purpose of re- 
 ducing the crime to manslaughter, when the whipping is inflicted for 
 the sole purpose of chastisement. It is the policy of the law in re- 
 spect to the relation of master and slave, and for the sake of securing 
 proper subordination and obedience on the part of the slave, to pro- 
 tect the master from prosecution in all such cases, even if the whip- 
 ping and punishment be malicious, cruel, and excessive. But in so 
 inflicting punishment, for the sake of punishment, the owner of the 
 slave acts at his peril; and if death ensues in consequence of such 
 punishment, the relation of master and slave affords no ground of ex- 
 cuse or palliation. The principles of the common law in relation to 
 homicide, apply to this case, without qualification or exception, and 
 according to those principles the act of the prisoner, in the case under 
 consideration, amounted to murder. Upon this point we are unani- 
 mous. But what was the law in respect to felonious homicide on the 
 1st day of September 1849, when the offence was committed. It is 
 to be found in the sessions acts of 1847, 1848, p. 95. By that act it is 
 
 1 5 Rani. 
 
288 H05IICIDE. 
 
 declared, " tliat unlaivful homicide shall be murder of the first degree, 
 murder of the second degree or manslaughter." Murder committed 
 by poison, lying in wait, duress of imprisonment; starving, wilful and 
 excessive whipping, cruel treatment or any kind (not any other kind, 
 as the law heretofore was,) of wilful, deliberate and premeditated 
 killing, or in the attempt to commit any arson, rape, robbery or bur- 
 glary, shall be murder in the first degree, and all other murder shall 
 be murder in the second degree. "Murder in the first degree shall 
 be punished with death." The judge certifies in his bill of exceptions 
 as a fact proved in the excuse, that "the slave died under and from 
 infliction of the said punishment." Apply the words of the act of 
 assembly to this case, and it clearly appears that the crime of the pri- 
 soner is not manslaughter, but murder in the first degree.' 
 
 If death ensue from a master's chastisement of his slave, inflicted 
 apparently with a good intent for reformation, or example, and with 
 no purpose to take life or to put it in jeopardy, the law would doubtless 
 tenderly regard every circumstance, which, judging from the con- 
 duct generally of masters towards slaves, might reasonably be sup- 
 ])Osed to have led the party into excess. But where the punishment 
 is barbarously immoderate and unreasonable in the measure, the con- 
 tinuance and the instruments, accompanied by other hard usage, and 
 painful privations of food, clothing and rest, it loses all character of 
 correction, in foro domestico, and denotes plainly that the master 
 must have contemplated a fatal termination to his barbarous cruel- 
 ties; and in such case, if death ensue, he is guilty of murder. == 
 
 The term manslaughter has in South Carolina, under the Act of 
 1821, a restricted sense, and is confined to killing in "sudden heat 
 and passion,"^ and includes any killing of a slave by undue or exces- 
 sive correction." 
 
 There is this distinction to be observed between the rule of pro- 
 vocation obtaining in reference to slaves, and that obtaining in 
 reference to freemen. As will presently be seen, abusive words or 
 threats form not sufl&cient provocation to lower to manslaughter the 
 grade of homicide committed under their sting. On the other hand, 
 when the relations of the parties are reversed, the rule is changed, 
 and abusive language from the slave to the freeman, are considered 
 so far capable of disturbing the balance of the latter's temper, as to 
 make a homicide committed by the latter on the former, in the gust 
 of sudden passion, but manslaughter.^ 
 
 It is competent for one charged with the murder of a slave, to show 
 that he was turbulent, and insolent and impudent to white men.^ 
 
 II. Homicide of master or other free person, by stare. 
 The great distinction between homicide committed with malice, and 
 that committed in a transport of passion suddenly excited by a 
 grievous provocation, is ns steadily to be kept in view, in the trial of 
 a slave charged with the murder of a wliite man, as in that of a white 
 charged with the murder of his equal, or of a slave. But the same 
 
 > Souther v. Com., 7 Gratt. 673. 
 
 2 State V. Hoover, 4 Dev. & Bat. 365; Kelly v. State, 3 Smedes & Mars. 51%. 
 
 ' State V. Fleming, 2 Stroth. 484. 4 ibid. 
 
 ' Tackett'3 case, 1 Hawks, 217. " Stiite v. Tackett, 1 Hawks, 210. 
 
OF WHITE PERSON BY SLAVE. 289 
 
 matters which would be deemed in law a sufficient provocation to 
 free a white man, who has committed a homicide in a moment of pas- 
 sion, from the guilt of murder, will not have the same eifect when 
 the party slain is a white man, and the oifender a slave ; for though 
 among equals, the general rule is, that words are not, but blows are, 
 a sufficient provocation, yet there may be words of reproach so aggra- 
 vating when uttered by a slave, as to excite in a white man the tem- 
 porary fury which negatives the charge of malice; and this rule 
 holds without regard to the personal merit or demerit of the white 
 man.^ 
 
 Recently in Tennessee this question has been fully examined in 
 the Supreme Court. The evidence was, (we quote from the opinion 
 of the court,) "That on the night of the 11th of November, 1845, the 
 prisoner and a number of other negroes were at a corn husking, at 
 the house of John Nesbit, having been invited to assist in husking 
 and putting up the corn and husks. After the husking was over, and 
 while the hands were employed in putting away the husks, a quarrel 
 arose between some of the negroes, of whom Nelson was one. The 
 deceased (who was the son-in-law of Nesbit, and had been requested 
 by Nesbit to superintend the putting away of the husks,) procured a 
 stick and struck one of the negroes. Nelson thereupon spoke in an 
 abrupt manner to Sellars, who then struck Nelson two or three blows 
 with a stick or club. It was a hickory stick as large as a stair post. 
 Some of the negroes, and Nelson among them, then went off, twenty 
 or thirty yards in the direction of their home. They were called 
 back to get their supper, by Ellis Nesbit, the son of the owner of the 
 corn. When they went back to the place where the corn had been 
 husked, Sellars, the deceased, spoke to Nelson, who was in front, say- 
 ing, "You have come back again have you?" To which Nelson re- 
 plied, "Yes, and if you will give me a white man's chance, I will whip 
 you like damnation." The deceased then struck Nelson several times 
 with a stick, knocking him down on his knees; and as Nelson re- 
 covered the deceased struck him with the stick again, and Nelson 
 pressing up toward the deceased, stabbed him with a long knife, 
 which had been made by grinding a file to an edge or point. The 
 deceased cried out, " I am stabbed;" and Nelson was pulled away, and 
 ran off. The deceased lived but a short time after the stab was given. 
 He was an athletic man, weighing 160 or 170 pounds, and had been 
 an overseer for Mr. Elliott, but was not his overseer at the time of 
 the stabbing. When Nelson and others started towards home, they 
 were not gone more than a minute or two before they were back 
 again. Joe. a slave, witness for the defendant, proved that Nelson 
 is a basket maker, and had the knife, with which the stabbing was 
 done, to work in white oak, and that he usually carried it about him. 
 Nelson had one or two bad cuts on his head, made by the blows in- 
 flicted by the deceased, and the blood was running down his face. 
 This is all the material testimony. The court charged the jury, 
 that the distinction made by the statute between murder in the first, 
 and murder in the second degree, did not apply to the defendant; 
 that if the proof satisfied the jury that the defendant was guilty of 
 
 1 State V. Jarrett, ] Ivedell, 76; Jacot v. State, 3 Uawi;. 403. Sec ante, p. 169, 170, 
 190, 191, &c. 
 
 19-. 
 
290 HOMICIDE 
 
 murder as defined by the common law, it would require them to find 
 bim guilty as charged in the bill of indictment; that malice was the 
 distinguishing character between murder and manslaughter, so far as 
 the defendant was concerned, that murder in a slave, according to 
 the common law definition, was a capital offence; and that the court 
 knew of no punishment authorized by law that the court could inflict 
 for the offence of manslaughter in a slave. The court further charged 
 the jury, " that a white man was authorized by law to correct the 
 slave of another, in a reasonable manner, for insolence, with a view 
 of stopping the insolence; but when the insolence ceased the correc- 
 tion should cease. That a slave may resist a stranger who attacks 
 him in a manner to endanger his life or limb, or to do him some great 
 bodily harm; that to make a slave excusable for killing a white man 
 who has no right of control over him, but who attacks him in a man- 
 ner dangerous to life or limb, or calculated to do him some great 
 bodily harm, he must retreat as far as he can, unless the attack is so 
 fierce that it would be more dangerous to retreat than to resist. The 
 court charged the jury, " That the great distinction between homicide 
 committed with malice, and that committed in a transport of passion 
 suddenly excited by a grievous provocation, is as steadily to be kept 
 in view in the trial of a slave charged with the murder of a white 
 man, as in that of a white man charged with the murder of his equal, 
 or of a slave. But the same matters which would be deemed in law 
 a provocation to a free white man who has committed homicide in a 
 moment of passion, from the guilt of murder, will not have the same 
 effect when the party slain is a white man and the offender a slave. 
 For though among equals the general rule is, that words are not, 
 but blows are a sufficient provocation; yet there may be words of re- 
 proach so aggravating when uttered by a slave, as to excite in a white 
 man the temporary fury which negatives the charge of malice. The 
 court also charged the jury, " That so far as the offence of murder 
 was concerned the defendant was entitled in all respects to be treated 
 as if he were a white man." Upon this evidence, and charge of the 
 court, the jury returned the following verdict: We find Nelson, a 
 slave, guilty of murder in the second degree, and submit him to the 
 mercy of the court. The defendant moved for a new trial, and offered 
 the affidavit of William Horner, A. J. Taylor, Thomas Fortner, 
 Caswell Gotham, and Richard Sucker, five of the jurors before whom 
 the prisoner was tried, who state, "That they agreed to render the 
 verdict of murder in the second degree, with a recommendation to 
 the mercy of the court, upon the ground only that they believed, 
 from the argument of their fellow jurors and the charge of the court, 
 that the court had the power to commute the punishment from hang- 
 ing to any less punishment. They state that when they agreed first 
 to offer the verdict above spoken of, in conjunction with their fellow 
 jurors, and the court refused to receive the same, they supposed that 
 the court had refused to accept the verdict and exercise any power to 
 commute the punishment. But when they were sent for the last time 
 they then supposed that the court had come to the determination to 
 receive the verdict and commute the punishment according to their 
 former views; and it was in this view of the case, and this only, that 
 they would ever have been induced to join in the verdict rendered 
 
OP WHITE PERSON BY SLATE. 291 
 
 in this case. They further state that all the juroj-s generally seemed 
 to be of opinion that the court, by sending for them, had agreed to 
 accept their verdict with the understanding stated above. While the 
 argument for the new trial was pending, the prisoner offered the 
 affidavit of A. J. Taylor, one of the jurors, who states, "that at the 
 rendition of the verdict he did not believe that the defendant was 
 guilty of murder, or any higher offence than manslaughter, and only 
 agreed to said verdict for the causes stated in the former affidavit." 
 The court overruled the motion for a new trial, and pronounced sen- 
 tence of death upon the prisoner; from which judgment the prisoner 
 appealed to this court. Several questions of considerable importance 
 are raised by this record. And first, has a stranger a right to chas- 
 tise the slave of another person? In South Carolina it is held that 
 the criminal offence of assault and battery cannot be committed 
 on a slave.' The slave is not regarded as being within the 
 peace of the state; and therefore the peace of the state is not 
 broken by an assault and battery on him. He can look alone to his 
 master for protection, who may maintain trespass for a battery on hip 
 slave. But, in North Carolina, a different doctrine prevails, and one 
 much more consonant to our feelings of humanity, and much calcu- 
 lated to preserve the peace and good order of society. It is there- 
 fore held, that the principles of the common law, where there is no 
 legislation on the subject, moulded and suited to our social condition, 
 must be held to apply to offences committed upon a slave. In the 
 case of State v. Hale,^ Chief Justice Taylor says: "It would be a 
 subject of regret to every thinking person, if courts of justice were 
 restrained by any austere rules of judicature from keeping pace with 
 the march of benignant policy and provident humanity, which for 
 many years has characterized every legislative act relative to the 
 protection of slaves, and which Christianity, by the mild diffusion of 
 its light and influence, has contributed to promote." And again ho 
 says, "When the authority of the master is usurped by a stranger, 
 nature is disposed to assert her rights, and prompt the slave to re- 
 sistance. The public peace is thus as much broken, as if a free man 
 had been beaten. A wanton injury committed on a slave, is a great 
 provocation to the owner, awakens his resentment, and has a direct 
 tendency to a breach of the peace, by inciting him to seek immediate 
 vengeance; and if resented in the heat of blood, it would probably 
 extenuate a homicide to manslaughter. These offences are usually 
 committed by men of dissolute habits, hanging loose upon society, 
 who being repelled from association with well disposed citizens, take 
 refuge in the company of coloured persons and slaves, whom they 
 deprave by their example, embolden by their familiarity, and then 
 beat, under the expectation that a slave dare not resent a blow from 
 a white man." In view of these considerations, the court rule, that 
 an assault and battery upon a slave by a stranger is indictable. But 
 in view of the actual condition of society, and the difference that 
 exists between the two races, many circumstances that would not con- 
 stitute a legal provocation for a battery by one white man upon 
 
 > state V. Minor, 2 Hill's E. 453 ; State t>. Chentwood, 2 Hill's R. 459; Hilton v. Car- 
 ton, 2 Bailey's R. 98 ; White ti. Chambers, 2 Bay's R. 70. 
 2 2 Hawks' Ren. 582. 
 
292 HOMICIDE 
 
 another, would justify it if committed on a slave, provided the batterj' 
 ■were not excessive. We fully concur with this view of the subject 
 taken by the Supreme Court of North Carolina. We think it alike 
 necessary to secure the rights of the master, to protect the slave from 
 wanton abuse, and to save white men from injury and insult. 
 
 2. "The next question is, may homicide committed by a slave on a 
 free white man, not excusable in self-defence, be reduced below the 
 grade of murder? Upon this subject the charge of his honour, the 
 circuit judge, is vague and indistinct. It is true, that in one part of 
 the instruction it is said, 'That the great distinction between homi- 
 cide committed with malice, and that committed in a transport of 
 passion, excited by a grievous provocation, is as steadily to be kept 
 in view in the trial of a slave charged with the murder of a white 
 man, as in that of a white man charged with the murder of his equal.' 
 And again, in conclusion, he says, ' that so far as murder is concerned, 
 the defendant is to be treated as if he were a white man.' These 
 passages of instruction to the jury, taken alone, indicate pretty clearly 
 that the judge was of opinion that manslaughter might be committed 
 by a slave. But in another part of the instruction, he says: 'The 
 court knows of no punishment authorized by law, that he could inflict 
 for the ofience of manslaughter in a slave.' Again, he says: 'That 
 a white man is by law authorized to correct the slave of another, in 
 a reasonable manner, for insolence; that a slave may resist a stranger 
 who attacks him in a manner to endanger his life or limb, or to do 
 him some great bodily harm: that to make a slave excusable in kill- 
 ing a white man, who has no right or control over him, but who 
 attacks him in a manner dangerous to life or limb, or calculated to 
 do him some great bodily harm, he must retreat as far as he can, 
 unless the attack is so fierce that it would be more dangerous to 
 retreat than to resist.' The sense of these latter passages seems appli- 
 cable alone to a case of excusable self-defence. The judge says in 
 substance, that a white man may correct the slave of another for in- 
 solence; but if the attack on the slave endanger his life or limb, or 
 put him in danger of great bodily harm, and he cannot retreat, he is 
 excusable if he slay his assailant; but that the court knows of no 
 punishment for manslaughter committed by a slave. The case put 
 by his honour, would clearly be a case of self-defence, and, as stated 
 by him, the slave would be excusable; and he excludes the considera- 
 tion of a case of manslaughter altogether, not only by failing to put a 
 possible case in which it may be committed, but by expressly stating 
 that there was no punishment provided by law for that offence; thus 
 leaving it to be inferred by the jury, that the offence did not exist. 
 
 " The question then is, did his honour err in this view of the subject? 
 And it may be observed here, that the question is not whether the 
 owner of a slave may be guilty of assault and battery, by the immo- 
 derately beating his slave; or, whether if a slave slay his master 
 while he is enduring a cruel and inhuman chastisement, such killing 
 could be mitigated to manslaughter. We are aware that the Supreme 
 Court of North Carolina, in the case of the State v. Mann,' held that 
 the master is not liable to an indictment for a battery committed on 
 
 1 2 Dev. 263. 
 
OP WHITE PERSON BY SLAVE. 293 
 
 his slave, no matter how cruel and excessive such battery may be. 
 And Judge Turley, in the case of the State v. Jacobs,^ says: 'The 
 right to obedience and submission in all lawful things ou the part of 
 the slave, is perfect in the master; and the power to inflict any pu- 
 nishment not affecting life or limlD, which he may consider necessary 
 for the purpose of keeping him in such submission, and in enforcing 
 such obedience to his commands, is secured to him by law; and if 
 in the exercise of it, with or without cause, the slave resist and slay 
 him, it is mjirder and not manslaughter; because the law cannot re- 
 cognise the violence of the master as a cause of provocation.' But 
 Green, J., in same case says: 'I think proper to announce distinctly 
 as my opinion, that there may exist cases in which the killing of a 
 master by a slave would be manslaughter. What circumstances of 
 torture, short of endangering life or limb, would so reduce a homicide 
 it is not easy to indicate. Every such case must rest upon its peculiar 
 facts. The rights and duties of the parties must form the criteria by 
 which an enlightened court and jury should act.' Judge Reese ex- 
 pressed no opinion upon this point, nor was there anything in the 
 case to call for the dicta above referred to. The whole court con- 
 curred in opinion, that there was no mitigating circumstance in the 
 case, and it was most clearly a case of murder. But the case now 
 before the court is of a different character altogether. The man who 
 was killed was neither the master nor overseer of the slave. He re- 
 ceived the wound while he was inflicting severe blows with a heavy 
 cudgel upon the prisoner's head. It becomes necessary, therefore, that 
 we determine whether in such a case, manslaughter may be committed. 
 In Jacobs' case, before referred to, it is asserted, that the principles 
 of the common law are applicable to the relations that exist between 
 the slave and his master; and with much more reason may we assert 
 that those principles are applicable, when the slave inflicts an injury 
 on a white man, who is a stranger. The statute^ declares, that mur- 
 der, when committed by a slave, shall be punished with death. Now, . 
 what murder is, we learn from the definition of the common law. It 
 is 'where a person of sound memory and discretion, unlawfully killeth 
 any reasonable creature in being, with malice aforethought.' And 
 unless it be so done, he is not guilty of murder. But, the killing 
 being established, the law presumes that it was done maliciously, and 
 circumstances of alleviation or excuse must be shown by the accused. 
 In general, if a party that is struck strikes again, and death ensues, 
 it is only manslaughter. The law regards the blow as a sufficient 
 provocation to excite the passions, so that the party act under the 
 influence of the sudden heat, and not from malice. But a slight 
 assault will not always extenuate the killing to manslaughter; much 
 depends upon the character of the weapon used, in reference to the 
 provocation. There must be a reasonable proportion between the 
 mode of resentment and the provocation to reduce the offence of kill- 
 ing to manslaughter.' So if there be proof of malice at the time of 
 killing, the existence of provocation will not reduce it to manslanghtei'. 
 For although the provocation usually repels the presumption of malice, 
 yet if its actual existence be established, notwithstanding the provo- 
 
 1 3 Humph. 920. ' 1819, c. 35, a. 1. ' Archb. Crim. L. 392. 
 
294 HOMICIDE 
 
 cation, it is murder, and not manslaughter.'' How then shall these 
 principles be applied to the case of a slave who kills a white man? 
 The common law is in the breast of the judges, and must be expounded 
 under the influence of enlightened reason. Thus guided, it is mani- 
 fest that the same indignity which would excite the passions of a 
 white man, would not have a like effect upon a slave. That which 
 would be grievous provocation to the one, would provoke the other 
 but slightly. This difference arises from the different habits of feel- 
 ing, and modes of thought of the two races. In view of reason, 
 then, the common law cannot hold, that an act constituting a provo- 
 cation which would mitigate a homicide committed by a white man, 
 to manslaughter, shall have a like effect when the homicide is com- 
 mitted on a white man by a slave. So to hold, would be a perversion 
 of the principles of the common law by sticking to its letter. It 
 would be to disregard entirely the character and condition of this 
 portion of our population, and would be as repugnant to reason, as 
 it would be mischievous to practice. It does not, however, follow, 
 that a provocation may not be so grievous, as that, if the slave slay 
 the white man, it will be but manslaughter, although the life or limb of 
 the party killing is not endangered. On the contrary, we think there 
 is no doubt but that cases may exist where the slave committing the 
 homicide, although not excusable as having acted in self-defence, yet 
 he cannot be deemed to have done the act with malice aforethought. 
 In the case of the State v. Will,^ Judge Gaston, delivering the 
 opinion of the court, held the killing to be manslaughter only. In 
 that case, too, the person killed was the overseer, and had authority 
 to punish the prisoner. The deceased had attempted to punish the 
 prisoner, who ran off, refusing to submit. The deceased got a gun, 
 loaded with shot, and firing on the prisoner, inflicted wounds on his 
 back. He then pursued and overtook the prisoner, and a scufiBe 
 ensued, and the prisoner inflicted the fatal stab on the arm of the de- 
 ceased withaknife, the overseer then being unarmed. Here, the pri- 
 soner was not acting in self-defence, but in the heat of blood, occasioned 
 by the smarting wounds, the act was done, and the court held it was 
 not done with malice. The court cannot point out with precise 
 accuracy, what particular extent of provocation will reduce such 
 homicide to manslaughter. Each case must depend very much on its 
 own circumstances, and must be left to the enlightened judgment of 
 the jury. If the slave has misbehaved, and by his insolence provoked 
 merited chastisement, and punishment be reasonably inflicted upon 
 him, it is his duty to submit; and if he resist and slay the person 
 chastising him, it will be murder. But if the punishment be unrea- 
 sonable and excessive, the killing will only be manslaughter. If a 
 slave, not having misbehaved or given cause for offence, is assaulted 
 and beaten by a stranger who has no authority over him, such killing 
 will be extenuated to manslaughter, in cases where such extenuation 
 would not exist, if by insolence and misconduct, the slave had pro- 
 voked chastisement. Having thus stated our opinion, that by our 
 law, manslaughter may be perpetrated by a slave, it follows that if 
 
 1 1 Russ. on Crimes, 440 ; Rosooe's Crim. Et. 627. 
 
 2 1 Dev. & Bat. Rep. 121. 
 
OP WHITE PERSON BY SLAVE. 295 
 
 the charge of the court to the jury excluded the investigation of the 
 question of manslaughter, in this case his honour erred. And it was 
 so excluded, we think has been made apparent, by the review of 
 the charge we have presented in the former part of this opinion. 
 The court also misled the jury when he told them, in effect, that there 
 was no law in this state by which manslaughter could be punished. 
 It is true, the indictment of a slave for murder does not include a 
 charge of manslaughter; and because, by the act of 1819, ch. 35, sec. 
 1, murder committed by a slave is declared to be capital; and by the 
 act of 1835, ch. 19, sec. 9, exclusive original jurisdiction is given to 
 the Circuit Courts, of all offences committed by slaves which are 
 punishable with death; and as manslaughter is not so punishable, 
 the Circuit Court has no jurisdiction thereof, and therefore it cannot 
 be included in the indictment filed in that court. But if it exists as 
 an offence, it is punishable. By the act of 1741, ch. 24, sec. 48,' any 
 crime committed by a slave, was to be tried before three justices, 
 and four freeholders and slaveholders, and punished at their discre- 
 tion. By the act of 1783, ch. 14, sec. 2,^ trivial offences were to be 
 tried before one justice alone, and punished, not exceeding forty lashes. 
 But if the justice was of opinion that the offender deserved a greater 
 punishment, he was to commit him to jail to be tried, as theretofore. 
 By the act of 1815, ch. 138, sec. 1,' the 48th section of the act of 
 1741 is repealed, and it is provided, that offences committed by 
 slaves shall be tried before three justices and nine freeholders and 
 slaveholders, and if found guilty, they shall pass such judgment, ac- 
 cording to their discretion, as the nature of the crime or offence shall 
 require. By the act of 1819, ch. 35, sec. 1, murder, arson, burglary, 
 rape and robbery are declared capital, to be punished with death; 
 and all other offences are to be punished as heretofore ; provided 
 that the punishment in no case shall extend to life or limb, except in 
 case above enumerated. It will be seen from this review of the 
 statutes, that all offences committed by slaves, the punishment of 
 which is not specially provided for by statute, may be punished at 
 the discretion of the court and jury, provided such punishment extend 
 not to life or limb. The act of 1815, ch. 138, is not in the compila- 
 tion of Nicholson and Caruthers, and the act of 1783, ch. 14, is en- 
 tirely misconceived by them, and we suppose his honour was misled 
 by that work. The jury were led to the inevitable conclusion, by 
 the charge of the court, that unless the prisoner was convicted of 
 murder, he would be excused altogether from any punishment, and 
 thus, doubtless, were influenced by his misdirection to render the 
 verdict returned by them. 3. The verdict of the jury is wholly in- 
 applicable to the case before them. They say, they 'find Nelson, a 
 slave, guilty of murder in the second degree, and submit him to the 
 mercy of the court.' There is no second degree of murder as to 
 slaves, and perhaps if the case depended alone upon the form of this 
 verdict, the court might pronounce judgment upon it, regarding as 
 surplusage, the words 'second degree.' But when we remember 
 that the law of murder as to white men is divided into the first and 
 second degree; the first punishable with death, and the second not so 
 
 » 1 Scott EeT. 74, 75. ' 1 Scott Eey. 279. ' 2 Soott Rev. 246, 247. 
 
296 HOMICIDE 
 
 punishable; and that this law is expounded and acted on every day 
 in our courts, and is familiar to the minds of men generally, we can- 
 not fail to perceive that the jury were labouring under erroneous 
 impressions as to the law of the case then before them. They un- 
 questionably supposed, that under their finding, a punishment short of 
 death would be inflicted. And this inference, from the form of the 
 verdict alone, is rendered still more certain by the affidavit of five of 
 the jurors. They say, that from the arguments of their fellow-jurors, 
 they were induced to believe that if they found such a verdict, the 
 court could adjudge a punishment short of death; and that if they 
 had not believed, they never would have consented to a verdict of 
 guilty. They say, when they came into court with their verdict, the 
 court refused to receive it, and sent them back, but soon after, sent 
 for them again, and did receive the verdict; thereby confirming 
 their first impression, that the court would not pronounce sentence 
 of death upon the prisoner. We think this is a stronger case than 
 that of Crawford, in 2 Yerg. Rep. The affidavit of the jurors, when 
 taken alone, constitutes it very analogous to Crawford's case. But 
 when we connect with their affidavit the form of the verdict by 
 which the facts they state are rendered certainly true, all the dan- 
 gers which would otherwise exist in receiving the affidavits of jurors 
 to impeach their verdict, is obviated. We do not think that a ver- 
 dict ought to stand, when the life of a human being is involved, 
 which has been rendered under the influence of such misconceptions 
 of the legal effect of it; especially where those misconceptions have 
 been produced and fortified by the action of the court. 
 
 " In the first place, the charge of the court left the jury under the 
 impression that unless the prisoner were punished for murder, he 
 could not be punished at all; and they, acting under that mistaken 
 opinion, resorted to this form of a verdict to effect what they were 
 led to suppose was the judgment of the law, and at the same time, 
 to save the life of the prisoner. Besides, it is seriously doubted by 
 some members of the court, whether the verdict is an answer to the 
 indictment. The indictment is for a charge of murder simply. It 
 includes no different grades of crime. The verdict could only be 
 'guilty' or 'not guilty.' But this verdict has manifest reference 
 to an entirely different character of indictment; one which includes 
 three grades of felonious homicide. The jury had in their minds, 
 therefore, an indictment wholly difi'erent from that actually before 
 them, and intended their verdict as an answer to that, and not to the 
 case now before us. 4. Upon the facts of the case we forbear any 
 commentary. If Nelson, after leaving and starting towards home, 
 conceived the design to inflict injury on the deceased, in revenge for 
 the blows he had received, and returned armed, and intending, by 
 insolence, to provoke blows again, and then to stab, it would be an 
 aggravated case of murder. But if, without any such purpose, he 
 returned, because he had been invited to come back to supper, and 
 his insolent reply was prompted on a sudden by the address of the 
 deceased, and the previous infliction of blows, then it will be for the 
 jury to determine whether the blows inflicted on him exceeded a pro- 
 per chastisement for his insolence. If they did not, it would still be 
 a case of murder. But if the blows were inflicted with a weapon, and 
 
OF WHITE PERSON BY SLAVE. 297 
 
 in a manner cruel and excessive, in view of the prisoner's insolence, 
 the killing wonld be only manslaughter, and of this the jury must 
 judge." ' 
 
 At common law, if a master administer moderate correction to his 
 apprentice, and the apprentice slay the master thereupon, the offence 
 is murder. So, if a slave kill his master, whilst the latter is cor- 
 recting him, it is murder at common law; and those present aiding 
 and abetting are guilty of the same offence. They would even be 
 guilty as principals in the first degree, although the actual perpetrator 
 himself were guilty of no crime, if tliey made use of him as the in- 
 strument to effect their own deliberate purpose of destroying the 
 deceased.^ 
 
 "This is a case," said the Supreme Court of Tennessee, in discuss- 
 ing a question falling under this head, "which has been productive 
 of much feeling and solicitude, and has excited that deep attention 
 and consideration with the public, the bar, and the court, which its 
 magnitude, involving, as it does, some of the most vital principles of 
 our social relation, has well merited. It has been thoroughly inves- 
 tigated and ably argued, both on the part of the state and prisoner, 
 and the opinion to which the court has arrived, has been the result 
 of its maturest examination and deliberation; prompted, on the one 
 hand, by a deep anxiety to preserve the peace and harmony of 
 society, and on the other, by the fixed determination, resulting from 
 a high sense of duty, to extend to the unfortunate individual under 
 trial, the fullest protection which the law of the state guaranties to 
 him. He is a slave. Slavery exists in Tennessee, having been 
 handed down to us from generation to generation for centuries. It 
 is secured, protected, and regulated by law. With the abstract jus- 
 tice of the institution we have nothing to do; our duties being con- 
 fined exclusively to declaring the law, upon questions of controversy 
 arising out of the relation it creates. In the case now under consi- 
 deratiouj the slave has deprived his master of his life, and it is for 
 us to pronounce what atonement the law, under the circumstances, 
 demands at his hands. It appears from the proof, that the prisoner 
 struck the fatal blow with a butcher-knife, while his master was in 
 the act of attempting to chastise him for disobedience of orders, 
 neglect of duty, and saucy, impertinent language. The case shows 
 great forbearance on the part of the master, an entire absence of any 
 inhumanity or cruelty, and nothing but a determined design to inflict 
 such punishment, in proper moderation, as the offence merited, and 
 as was necessary for the due subordination, regulation, and control 
 of his slave. The blow was struck with a deadly weapon, with a fixed 
 and deadly design, without justification, excuse, or mitigation, unless 
 the mitigation is to be found in the assault and battery inflicted upon 
 his pei'son, in the attempted chastisement. It has been argued that 
 it is; that the statute of 1819, ch. 35, which makes murder, when 
 committed by a slave, a capital offence, does not define the offence; 
 that its definition is to be sought in the common law of Great Bri- 
 tain; that there being no slavery in that country, the relation of 
 master and slave has no existence; that, therefore, there is no dis- 
 
 1 Nelson v. State, 10 Humph. 519, &c. ^ gtate v. Crank, 2 BaU. 66. 
 
298 HOMICIDE 
 
 tinction taken between a homicide committed by a slave and a free 
 person, and of consequence, that inasmuch as a blow stricken, will, 
 in the case of a free person, mitigate the offence to manslaug-hter, 
 the same result must follow in the case of a slave. This is the whole 
 argument, and upon it the case rests. The common law has been 
 aptly called the lex non scripta, because it is a rule prescribed by 
 the common consent and agreement of the community, as one appli- 
 cable to its different relations, and capable of preserving- the peace, 
 good order, and harmony of society, and rendering unto every one 
 that which of right belongs to him. Its sources are to be found in 
 the usages, habits, manners and customs of a people; its seat, in the 
 breast of the judges who are its expositors and expounders. Every 
 nation must of necessity have its common law, let it be called by 
 what name it may; and it will be simple or complicated in its 
 details, as society is simple or complicated in its relations. A few 
 plain and practical rules will do for a wandering horde of savages, 
 but they must and will be much more extensively ramified when 
 civilization has polished, and commerce, and arts, and agriculture, 
 enriclied a nation. A common law of a country will, therefore, never 
 be entirely stationary, but will be modified and extended by analogy, 
 construction, and custom, so as to embrace new relations, springing 
 up from time to time from an amelioration or change of society. The 
 present common law of England is as dissimilar from that of Edward 
 III. as is the present state of society. And we apprehend .that no 
 one could be found to contend that hundreds of principles, which 
 have in modern times been examined, argued and determined by 
 the judges, are not principles of the common law, because not found 
 in the books of that period. They are held to be great and immuta- 
 ble principles, which have slumbered in their repositories because 
 the occasion which called for their exposition had not arisen. The 
 common law, then, is not like the statute law, fixed and immutable, 
 by positive enactment, except where a principle has been adjudged 
 as the rule of action. If, then, one generation be not hedged in by 
 the principles of the common law, established by another, as to be 
 prohibited from extending them, by analogy and construction, to 
 new relations and modifications of society, by what principle shall a 
 sovereign state which has adopted the common law of another as one 
 of its rules of action be so prohibited ? It will be perceived that 
 we are approaching the examination of the question presented for 
 consideration in this case, upon the assumed ground that there is no 
 adjudged principle of the common law of England regulating the 
 relation of master and slave, (for we lay out of view the old and 
 exploded relation of master and villein, not feeling it necessary to 
 base our argument upon it,) and that there is nothing limiting ex- 
 pressly the slave's right of resistance to his master, beyond what one 
 free man is limited in his resistance of another. And we ask, if this 
 be so, as the common law is at present, and was expounded in Eng- 
 land at the time we adopted it, if it of necessity follows that, with a 
 creation of the new relation of master and slave, it may not be so 
 extended by analogy and construction to embrace it, and give secu- 
 rity and protection to all rights arising under it, as well of life aa 
 property, of master and slave? The argument extended would 
 
OF WHITE PERSON BY SLATE. 299 
 
 deprive the master of the right of property in his slave. Our sys- 
 tem of slavery in its inception is not based upon positive enactment, 
 Imt upon the common consent of the community to hold Africans as 
 property. It is true its existence has been since recognised by various 
 acts of parliament in relation to the colonies, by varions acts of the 
 legislatures of North Carolina and Tennessee, and by our amended 
 constitution; but still, when we come to inquire what kind of pro- 
 perty a man has in his slaves, what are the remedies provided to 
 secure him in its enjoyment, we are forced to the common law for 
 infoi-mation. From it we learn that it is personal property, that it 
 passes by alienation, descends and is distributed like other personal 
 property, that the same actions are provided for redress of injuries 
 affecting it, an action of trespass or case for wrongs done it, and tro- 
 ver, or detinue for its conversion or detention. But on what prin- 
 ciple do we call it personal property, or bring these actions? By 
 analogy. It is of the nature of personal property as described by the 
 common law, and as such these are the proper actions for molestation 
 in its enjoyment. Such then is the common law, that though prin- 
 ciples once established by judicial determination can only be changed 
 by legislative enactment, yet such is its malleability — if we may use 
 the expression — that new principles may be developed, and old ones 
 extended by analogy, so as to embrace newly created relations and 
 changes produced by time and circumstances. Such it is in Great 
 Britain at the present moment — such it was when we adopted it, and 
 such it now is with us. Let us then proceed with these views in 
 hand, to examine what the common law is in relation to the offence 
 with which the pi-isoner stands charged and convicted. Homicide is 
 declared to be either justifiable, excusable or felonious; it is not in 
 the present case pretended to be either justifiable or excusable; it 
 is therefore felonious, and either murder or manslaughter. Murder 
 is "where a person of sound memory and discretion unlawfully 
 killeth any reasonable creature in being, with malice aforethought 
 express or implied.'" Manslaughter is "the unlawful and felonious 
 killing of another, without any malice express or implied ;" as where 
 upon a sudden quarrel two persons fight, and one of them kills the 
 other — or where a man greatly provokes another by some personal 
 violence, and the other immediately kills him. An assault is in 
 general such provocation, as that if the party struck, strikes again, 
 and death ensues, it is only manslaughter; yet it is not every trivial 
 assault which will furnish such a justification; for if a man kills 
 another suddenly, without any, or without any considerable provo- 
 cation, the law implies malice, and the homicide is murder; but if 
 the provocation were great, and such as must have greatly provoked 
 him, the killing is manslaughter only.^ In considering, howevei-, 
 whether the killing upon provocation amount to murder or man- 
 slaughter, the instrument with which the homicide was effected must 
 also be taken into consideration, for if it were effected with a deadly 
 weapon, the provocation must be great indeed, to extenuate the 
 oflence to manslaughter; if with a weapon, or other means not likely 
 or intended to produce death, a less degree of provocation will be 
 
 1 3d lust 47. = Kel. 135; 1 Hale, 466; Fost. 290. 
 
300 HOMICIDE 
 
 sufficient; in fact, the mode of resentment must bear a reasonable 
 proportion to the provocation, to reduce the oifence to manslaughter.' 
 Again, as evidence of provocation is only an answer to that presump- 
 tion of malice which the law infers in every case of homicide, if tliere 
 be proof of malice at the time of the act committed, the additional 
 circumstance of provocation will not extenuate the offence to man- 
 slaughter. In such cases, not even previous blows or struggling 
 will reduce the offence to manslaughter.^ In the case of the King 
 V. Thomas,^ Lord Tenterden observes: 'It is not every slight pro- 
 vocation, even by a blow, which will, when the party receiving 
 it strikes with a deadly weapon, reduce the offence from murder 
 to manslaughter; that if there had been any evidence of an old 
 grudge between them, the crime would probably be murder.' So 
 tender is the law of human blood, that it watches with a jealous 
 eye, whilst it is making provisions for the weakness and imper- 
 fections common to our nature, lest advantage be taken of its 
 mercy, and vengeance be perpetrated under the garb of frailty. 
 The present case was one of no sudden outbreak; the controversy 
 had been pending for several days; a previous attempt had been 
 made to chastise the prisoner, by the deceased, which was resisted 
 and resented; information had been given on several occasions that 
 the punishment would be inflicted, and inquiry made if he were 
 willing and ready to receive it; but he obstinately stood out against 
 it; he did more, he prepared himself in the interim, coolly and deli- 
 berately with a deadly weapon with which to resist, and resist unto 
 death, if it became necessary to protect himself from personal 
 chastisement. He did resist, and with a remorseless disregard of 
 consequences, struck the blow which instantly destroyed his kind 
 and indulgent master. Who shall say that there was not in this 
 more of vengeance, than sudden heat and passion? If there was, it 
 is murder by the common law, as above expounded, though the con- 
 troversy had been between freemen and equals. But this exposition 
 of the law upon the subject of murder and manslaughter as between 
 equals, is based upon the ground, that the personal violence resented 
 is a wrong inflicted; but are there no cases adjudged by the common 
 law, where the personal violence cannot be resisted, because it is 
 legally inflicted, and if it be and death ensues, the person perpetrating 
 it is guilty of murder or manslaughter, according to the circumstances 
 and the nature of the weapon used? Assuredly there are. A mas- 
 ter may correct in moderation his apprentice, a schoolmaster his 
 scholar, a guardian his ward, a parent his child, an officer may arrest 
 and imprison off'endei-s, he may inflict legal punishment upon crimi- 
 nals. In all those cases the personal injury inflicted, if it exceed 
 not the bounds of moderation, is lawful correction, and if the person 
 upon whom it is inflicted resist and slay, he is guilty of murder and 
 not of manslaughter, for the law cannot admit of the provocation. 
 The peace, the harmony, the good order and well being of society 
 require, in the existence of these relations, that such should be the 
 right of power and command on the one part, and duty and submis- 
 
 > Archbold's Grim. Law, 392. 
 
 » 1 Russell, 440; Mason's case, Fost. 132; 1 East, P. C. 239 ; Roscoe, Crim. Ev. 62". 
 
 3 7 C. & V. 817. 
 
OF WHITE PERSON BY SLAVE. 301 
 
 sion on the other. If the right of resistance were warranted in snch 
 cases, as it is between freemen and equals, the foundations of society 
 would be broken up, and in place of obedience- and submission to the 
 laws, the land would be filled with violence and bloodshed. The 
 common law then has made provision for resistance where resistance 
 is lawful, but has prohibited it in all those relations, where the inflic- 
 tion of punishment, as a lawful correction, is necessary for the proper 
 organization and discipline of society. If slavery were introduced 
 into England, can it be a matter of doubt, that the common law 
 would at once expand, so as to embrace the relation of master and 
 slave, as it had already done those of a kindred character, master 
 and apprentice, schoolmaster and scholar, parent and child, officer 
 and prisoner? None, as we think, whatever. Why may not this be 
 done in this state? Why it may not, no satisfactory reason has been 
 or can be given. Assuming the position, then, that the common law 
 as it exists in the State of Tennessee, is of sufficient scope and power 
 to regard the institution of slavery, to preserve the harmony of its 
 relation, to protect the master and slave in the mutual enjoyment of 
 the rights secured to them, let us proceed to examine what those 
 rights are in relation to the subject under investigation. Uncondi- 
 tional submission is the duty of a slave; unlimited power is, in 
 general, the right of the master; but unquestionably there are 
 exceptions to this rule. It is certain that the master has not the 
 right to slay his slave, or inflict upon him what the law calls great 
 bodily harm, to wit, maiming or dismembering him, or such punish- 
 ment as puts his life in great and useless peril, and that the slave 
 has a right to defend himself against such unlawful attempts on the 
 part of the master. But the right to obedience and submission, in 
 all lawful things on the part of the slave, is perfect in the master; 
 and the power to inflict any punishment, not affecting life or limb, 
 which he may consider necessary for the purpose of keeping him in 
 such submission and enforcing such obedience to his commands, is 
 secured to him by law, and if in the exercise of it, with or without 
 cause, the slave resist and slay him, it is murder and not man- 
 slaughter; because the law cannot recognise the violence of the 
 master as a legitimate cause of provocation. Such we hold to be 
 the law. This is, we believe, the first case in which the courts of 
 this state have been called upon for an application of this principle; 
 but it has been adjudged in other places, to which we may refer for 
 light and instruction, as we do upon all other principles of the com- 
 mon law, of doubtful or difficult application. In the case of the State 
 V. Will,' Judge Gaston, (than whom no man is higher authority,) in 
 delivering the opinion of the court, says: "Had the prisoner resisted 
 an arrest, (previously to the shooting) and in the course of the strug- 
 gle inflicted the mortal wound on the deceased, there is no doubt his 
 crime, in legal contemplation, would have been murder; nothing had 
 then occurred, which could have excited in any but a cruel and 
 wicked heart, in a heart fatally resolved on illegal resistance, at 
 whatever risk of death or great bodily harm, a passion so violent 
 and destructive in its consequences. It is not to passion, as such, 
 
 » 1 Dev. & Bat. 121. 
 
302 
 
 HOMICIDE 
 
 that the law is benignant, but to passion springing from human infir- 
 mity.' The principle thus announced, is directly applicable to the 
 present case. The prisoner did resist an arrest; there had been no 
 attempt on the part of his master to endanger his life, and he did 
 kill him in this his illegal resistance, and the conclusion follows that 
 he is guilty of murder. In the case of The State v. Jarratt,^ it is held, 
 'that the same matters, which would be deemed in law a sufficient 
 provocation to a free white man, who has committed homicide in a 
 moment of passion, from the guilt of murder, will not have the same 
 effect, where the party slain is a white man, and the offender a slave. 
 The rule, that where parties become enraged and suddenly heated in 
 mortal conflict, fighting upon equal terms, and one kills the other, 
 the homicide is mitigated to manslaughter, applies to equals, and 
 not to the case of a white man and a slave, if the slave kill the 
 white man under such circumstances. And an ordinary assault and 
 battery committed by a white man upon a slave, will not be a suffi- 
 cient provocation to mitigate a homicide of the former by the latter, 
 from murder to manslaughter.' These authorities meet our appro- 
 bation, they are supported by reason and necessity, and we think 
 expound the law correctly, and are decisive of the present case. We 
 might here, if it were deemed necessary, enter into a more minute 
 examination of the relation of master and slave, with a view to the 
 extraction of principles, which might be more applicable to cases not 
 like the present, arising out of it hereafter, but we do not think it 
 expedient or proper. If cases arise, presenting shades of difference 
 from the present, it will then be time enough to examine them ; this 
 blow has been struck, it is all that has now to be expiated; and ' suf- 
 ficient for the day is the evil thereof.' Some criticisms have been 
 made at the bar upon the charge of the judge below; but we think 
 it substantially correct. It is true he might have been more explicit 
 upon the distinction between murder and manslaughter, and if, 
 from the facts of the case, there had been any pretence for holding 
 the killing to be manslaughter, it should have been. But there 
 is none, and a charge upon the subject would have been a charge 
 upon abstract principles, having nothing to do with the facts of the 
 case. It will be observed, that the question made as io murder or 
 manslaughter, does not arise out of a controversy about facts, but 
 about the application of a principle of law, and upon the settlement of 
 the principle, the question is settled, so that no good would have 
 resulted to the prisoner from more minuteness on the part of the 
 judge. The judgment of the court below is therefore affirmed." 
 Green, J., delivered the following opinion: "I think proper to an- 
 nounce distinctly, as my opinion, that there may exist cases, in which 
 the killing of the master by his slave, would be manslaughter. 
 What circumstances of torture, short of endangering life or limb, 
 would so reduce a homicide, it is not easy to indicate. Every such 
 case must rest upon its own peculiar facts. The rights and duties 
 of the parties must form the criteria by which an enlightened court 
 and jury should act. But the present case is destitute of a single 
 mitigating circumstance, and is most clearly one of murder."^ 
 
 ' 1 Iredell, 7«. > Jacob v. State, 3 Humphreys, 513. 
 
 I) 
 
OF WHITE PERSON BY SLAVE. 303 
 
 If a white man wantonly inflicts on a slave over whom he has no 
 authority, a severe blow or repeated blows, under unusual circum- 
 stances, and the slave, at the instant, strikes and kills, without evinc- 
 ing by the means used great wickedness or cruelty, he is only jjuilty 
 of manslaughter, giving due weight to motives of policy and the ne- 
 cessity for subordination. The same principle of extenuation applies 
 to the ease of the beaten slave's comrade or friend, who is present, 
 and instantly kills the assailant, without in like manner, evincing, by 
 the means used, great wickedness or cruelty.' 
 
 "From the nature of the institution of slavery," says Pearson, J., 
 " a provocation, which given by one white man to another, would excite 
 the passions and 'dethrone reason for a time,' would not, and ought 
 not to produce the effect, when given by a white man to a slave. 
 Hence, although, if a white man receiving a slight blow, kills with a 
 deadly weapon, it is but manslaughter; if a slave, for such a blow, 
 should kill a white man, it would be murder ; for accustomed as he 
 is to constant humiliation, it would not be calculated to excite to 
 such a degree as to ' dethrone reason,' and must be ascribed to a 
 'wicked heart, regardless of social duty.'" That such is the law, is 
 not only to be deduced, as above, from primary principles, but is 
 a necessary consequence of the doctrine laid down in Tackett's case.^ 
 " Words of reproach, used by a slave to a white man, may amount 
 to a legal provocation, and extenuate a killing from murder to man- 
 slaughter?" The reason of this decision is, that, from our habits 
 of association, and modes of feeling, insolent words from a slave, 
 are as apt to provoke passion as blows from a white man. The same 
 reasoning by which it is held, that the ordinary rules are not ap- 
 plicable to the case of a white man, who kills a slave, leads to the con- 
 clusion that they are not applicable to the case of a slave who kills a 
 white man. "The announcement of this proposition, now, directly 
 made for the first time, may have somewhat the appearance of a law, 
 made after the fact. It is, however, not a new law, but merely a new 
 application of a well settled principle of the common law. The ana- 
 logy holds in the other relations of life, parent and child, tutor and 
 pupil, master and apprentice, master and slave. A blow given to the 
 child, pupil, apprentice or slave, is less apt to excite passion than 
 when the parties are two white men, 'free and equal;' hence, a blow, 
 given to persons iilling these relations is not, under ordinary circum- 
 stances, a legal provocation, because it is less apt to excite passion 
 than between equals. The analogy fails only in this: in the cases 
 above put, the law allows of i\i&..injliction of blows. A master is not 
 indictable for a battery upon his slave; a parent, tutor, master of an 
 apprentice, is not indictable, except there be an excess of force; 
 whereas the law does not allow a white man to inflict blows u])on a 
 slave who is not his property, he is liable to indictment for so doing. 
 In other words, in this last case, the blow is not a legal provocation, 
 although the party giving it is liable to indictment; while in the other 
 cases, wherever the blow subjects one party to an indictment, it is 
 legal provocation for the other party. This is a departure from the 
 legal analogy, to the prejudice of the slave. It is supposed a regard 
 
 > State V. Caesar, 9 Iredell Law R. 391. = 1 Hawks, 217. 
 
304 HOMICIDE 
 
 to due subordination, mates it necessary, but the application of the 
 new principle, by which this departure is justified, should I think, be 
 made with great caution, because it adds to the list of constructive 
 murders, or murders by malice implied. Assuming that there is a 
 difference, to what extent is the difference to be carried? In prose- 
 cuting this inquiry, it should be borne in mind, that the reason of 
 the difference is, that a blow inflicted upon a white man carries with 
 it a feeling of degradation, as well as bodily pain, as well as a sense 
 of injustice: all or either of which, are calculated to excite passion; 
 whereas a blow inflicted upon a slave is not attended with any feeling 
 of degradation, by reason of his lowly condition, and is only calcula- 
 ted to excite passion from bodily pain, and a sense of wrong; for, in 
 the language of Chief Justice Taylor, in Hale's case,^ ' the instinct 
 of a slave may be, and generally is, turned into subserviency to his 
 master's will, and from him, he receives chastisement, whether it be 
 merited or not, with perfect submission: he knows the extent of the 
 dominion assumed over him, and the law ratifies the claim. But 
 when the same authority is wantonly usurped by a stranger, nature 
 is disposed to assert her rights and prompt the slave to resistance.' 
 "We have seen that the general rule is, that whenever force is used 
 upon the person of another, under circumstances amounting to an in- 
 dictable offence, such force is a legal provocation; otherwise it is 
 not. "By this rule, 'Will's case,'^ would have been a case of mur- 
 der, for, it was settled in 'Man's case,'^ that a master is not indicta- 
 ble for a battery on his own slave, however severe or unreasonable. 
 But Will was held guilty of manslaughter only, the court feeling it- 
 self constrained to make some allowance for the feelings of nature. 
 By this rule, if a slave who has been guilty of insolence, receives 
 a blow from a Avhite man, it is a legal provocation, for the white 
 man has committed an indictable offence.'' This case would be as 
 strong an authority, to show that the case above put was but man- 
 slaughter, except for reasons of policy, and the necessity of keeping 
 up due subordination, as Man's case, was to show, that Will's case 
 was a case of murder except for an allowance for the feelings of na- 
 ture. " In the case above put, a blow is supposed, unacompanied by 
 bodily pain or unusual circumstances of oppression, the only incen- 
 tive to passion being a sense of degradation, which a slave is not al- 
 lowed to feel. When bodily pain or unusual circumstances of op- 
 pression occur, one or both is sufficient to account for passion, put- 
 ting a sense of degradation out of the question, and there would be legal 
 provocation. "I think it clearly deducible from Hale's case, and ana- 
 logies of the common law, tliat if a white man, wantonly inflicts, on 
 a slave, over whom he has no authority, a severe blow, or repeated 
 blows, under unusual circumstances, and the slave, at the instant, 
 strikes and kills without evincing, by the means used, great wicked- 
 ness or cruelty, he is only guilty of manslaughter, giving due weight 
 to motives of policy and the necessity for subordination. " This latter 
 consideration, perhaps, requires the killing should be at^the instant ; 
 for it may not be consistent with due subordination, to allow a slave' 
 
 > 2 Hawks, 482. ' 2 1 Dev. & Biit. 121. a 2 Dev ''63 
 
 ' Hale's oaae, 2 Hawks, 082. 
 
OP MASTER BY SLAVE. 305 
 
 after he is extricated from his difficulty and is no longer receiving 
 blows, or in danger, will return and seek a combat. A wild beast 
 "wounded or in danger, will turn upon a man, but he seldom so far for- 
 gets his sense of inferiority, as to seek a combat. Upon this princi- 
 ple, which a man has in common with the beast, a slave may, without 
 losing sight of his inferiority, strike a white man when in danger, or 
 suffering wrong; but he will not seek a combat after he is extricated. 
 "If the witness, Dick, while one white man was holding his hands, 
 and the other was beating him, had killed either of them, there would 
 have been no difficulty in making the application of the above prin- 
 ciples, and deciding that the above killing was but manslaughter, and 
 of a mitigated grade, contrasted with Will's case, who, although he 
 did not seek the combat, but was trying to escape, killed his owner 
 with a knife, after being guilty of wilful disobedience; and the con- 
 firmation from the reasoning of Judge Gaston, in Jarratt's case, where 
 the prisoner had it in his power to avoid the combat if he would, and 
 struck several blows after the white man was prostrated. " In making 
 the applications of the principles before stated to the case of the pri- 
 soner, another principle is involved. The prisoner was not engaged 
 in the fight — he was the associate and friend of Dick, and was pre- 
 sent, and a witness to his wrongs and sufferings. We have seen that 
 had he been a white man, his offence would have been but manslaugh- 
 ter, "because of the passion which is excited, when one sees his friend 
 assaulted."' But he is a slave, and the question is, does that benig. 
 nant principle of the law, by which allowance is made for the infir- 
 mity of our nature, prompting a parent, brother, kinsman, friend, or 
 even a stranger to interfere in a fight and kill, and by which it is 
 held, that, under such circumstances, the killing is ascribed to passiorb 
 and not to malice, and is manslaughter, not murder; does this princi- 
 ple apply to a slave? or is he commanded, under pain of death, not to 
 yield to these feelings and impulses of human nature, under any 
 circumstances? I think the principle does apply, and am not wil- 
 ling by excluding it from the case of slaves, to extend the doctrine of 
 constructive murder beyond the limits now given to it by well-set- 
 tled principles. The application of this principle will, of course, be 
 restrained and qualified to the same extent, and for the same reasons, 
 as the application of the principle of legal provocation, before ex- 
 plained. A slight blow will not extenuate; but if a white man wan- 
 tonly inflicts on a slave, over whom he has no authority, a severe 
 blow, or repeated blows, under unusual circumstances, and another 
 yielding to the impulse natural to the relations above referred to, 
 strikes at the instant, and kills, without evincing by the means used, 
 great wickedness or cruelty, the offence is extenuated to manslauglv- 
 ter. 
 
 ^ See the case cited from Coke's Reports, and the other authorities. 
 
 20 
 
306 HOMICIDE. 
 
 CHAPTER XII. 
 
 EVIDENCE IN HOMICIDE. 
 
 It is proposed at present to touch upon such points only as are pe- 
 culiar to the law of homicide, which will be considered as follows: — 
 
 1. Dying declarations. 
 
 2. Proof of corpus delicti. 
 
 3. Presumptions in homicide. 
 
 1st. Marks of violence, indicating 
 
 (1.) Weapon. 
 
 (2.) Accident, self-inflicted or given by another. 
 
 (3.) Premeditation or passion. 
 2d. Instrument of death. 
 3d. Poison. 
 4th. Materials appropriate to be converted into instruments of 
 
 crime. 
 5th. Detached circumjacent bodies. 
 
 (1.) Position of the deceased. 
 
 (2.) Traces of blood. 
 6th. Liability to attack, from 
 (a.) Possession of money. 
 (b.) Old grudge, 
 (c.) Jealousy. 
 7th. Presumptions in infanticide. 
 
 (1.) Condition of the body of the child. 
 
 (2.) Persons suspected. 
 
 (3.) Causes of death. 
 
 (4.) Quickness. 
 
 1. Dying declarations.^ 
 
 The dying declarations of a person who expects to die, respecting 
 the circumstances under which he received a mortal injury, are con- 
 stantly admitted in criminal prosecutions, where the death is the sub- 
 ject of criminal inquiry, though the accused was not present when 
 they were made, and had no opportunity for cross-examination,^ against 
 or. in favour of the party charged with the death.' For it is consi- 
 dered that when an individual is in constant expectation of immediate 
 death, all temptation to falsehood, either of interest, hope, or fear, 
 will be removed, and the awful nature of his situation will be presumed 
 to impress him as strongly with the necessity of a strict adherence to 
 truth as the most solemn obligation of an oath administered in a court 
 
 > This section is chiefly drawn from Whavton's Crim. Law, 2d ed., 247. 
 « See 1 Phill. Et. 223 ; 1 Stark. Ev. 101 ; People v. Green, 1 Denio, 614. 
 ' R. V. Scaife, 1 M. & Rob. 551. 
 
EVIDENCE — DYING DECLARATIONS. 307 
 
 of justice,' When every hope of this world is gone, when every mo- 
 tive to falsehood is silenced, and the mind is induced, by the most 
 powerful coasideratione to speak the truth, a situation so solemn and 
 awful is considered by the law as creating an obligation equal to that 
 which is imposed by an oath administered in court.^ The constitu- 
 tional provision, that the accused shall be confronted by the witnesses 
 against him, does not abrogate the common law principle that the de- 
 clarations in extremis of the murdered person, in such cases, are admis- 
 sible in evidence,' 
 
 Dying declarations are admitted from the necessity of the case, to 
 identify the prisoner, and to establish the circumstances of the res 
 gtsta or direct transactions from which the death results; when they 
 relate to former and distinct transactions, they do not seem to come 
 within the principle of necessity. Therefore, it seems that a dying 
 declaration that the prisoner had two or three times previously at- 
 tempted to kill him, is not admissible."* 
 
 Dying declarations, however, are not admissible unless it appear 
 to the court that they were made under a sense of impending dissolu- 
 tion,' and a consciousness of the awful occasion,* though the principle 
 is aot affected by the fact that death did not ensue until a considerable 
 time after the declarations were made.'' Where the party expressed 
 an opinion that she would not recover, and made a declaration at that 
 time; but afterwards, on the same day, asked a person whether he 
 thought she would "rise again;" it was held that this showed such a 
 hope of recovery as rendered the previous declaration inadmissible.^ 
 But it is not necessary to prove expressions implying apprehension of 
 immediate danger, if it be clear that the party does not expect to sur- 
 vive the injury,' which may be collected from the general circum- 
 stances of his condition ; as when the party was a member of the Romish 
 church, and had confessed, been absolved, and received extreme unc- 
 tion before making the declaration.'* 
 
 The mere fact that a slave after receiving his mortal wound, was 
 heard to cry out "0 my people," is not alone sufficient evidence of 
 the expectation of immediate death, to authorize the admission of 
 his declarations." 
 
 » 1 I^ch, 502 ; 1 Gilb. Evid. 280; 1 CMt. C. 1. 568, 569; Com. v. Murray, 2 Ast- 
 mead, 61 ; Com. v. Williams, Ibid. 69. 
 
 2 Duna c. State, 2 Pike, 229. 
 
 3 Woodsides c. State, 2 How. Miss. R. 655; Anthony v. State, 1 Meigs, 265; Camp- 
 bell V. State, 11 Georgia, 355. 
 
 * Nelson v. State, 7 Humph. 542. 
 
 ' R. V. Woodcock, 1 Leach, 562 ; R. w. Welhourn, 1 East, P. C. 358 ; R. «. Van Butchell, 
 3 C. & P. 629 ; Com. v. Williams, 2 Ashmead, 69 ; 1 Greenleaf on Ev. s. 158 ; 2 Russ. on 
 Crimes, 752 ; Hill's ease, 2 Gratt. 594 ; Nelson v. State, 7 Humph. 542 ; Moore v. State, 
 12 Ala. 764. 
 
 « R. V. Pike, 3 C. & P. 589; R. «. Crockett, 4 C. & P. 544; R. v. Hayward, 6 C. & 
 P. 157; R. V. Spilsbury, 7 C. & P. 187; Montgomery v. State, 11 Ohio, 424 ; State v. Poll, 
 
 1 Hawks, 442; Dunn v. State, 2 Pike, 229. 
 
 ; R. V. Moslcy, R. & M. 97; 2 Russ. on Crimes, 757. 
 ° R. t7. Fagent, 7 C. & P. 238. 
 
 9 R. V. Bonner, 6 C. & P. 386; Dunn «. State, 2 Pike, 229; lEast, P. C. 385; R. v. 
 Dingier, 2 Leach, 561; Anthony v. State, 1 Humph. 265; Meigs' R. 266; Hill's case, 
 
 2 Gratt. 594; Nelson v. State, 7 Humph, 542; 2 Russ. on Cr. 761. 
 i» Com. V. WiUiams, 2 Ashmead, 69; R. v. Minton, 1 M'Nally, 38. 
 " Lewis V. State, 9 S. & M. 115. 
 
308 HOMICIDE. 
 
 A boy, between ten and eleven years of age, was mortally wonnded. 
 and died the next day. On the evening of the day on which he was 
 wounded, he was told by a surgeon that he could not recover. The 
 boy made no reply, but appeared dejected. It appeared, from his 
 answers to questions put to him, that he was aware that he would be 
 punished hereafter if he said what was not true ; a declaration made 
 by him, at this time, was, therefore, held receivable in evidence on 
 the trial of a person for killing him, as being a declaration in articulo 
 mortis.^ 
 
 But in a case of murder, it appeared that, two days before the 
 death of the deceased, the surgeon told her that she was in a very 
 precarious state; and that, on the day before her death, when she had 
 become much worse, she said to the surgeon that she found herself 
 growing worse, and that she had been in hopes she would have got 
 better, but, as she was getting worse, she thought it her dnty to men- 
 tion what had taken place. Immediately after this she made a state- 
 ment, which was considered not receivable in evidence, as a declara- 
 tion in articulo mortis, as it did not sufficiently appear that, at the 
 making of it, the deceased was without hope of recovery.^ 
 
 In a case before the twelve judges,^ it was held that the declara- 
 tions of the deceased, made on the day he was wounded, and when he 
 believed he should not recover, were evidence, although he did not 
 die till eleven days after, and although the surgeon did not think his 
 case hopeless, and continued to tell him so till the day of his death. 
 In one case where the party, being confined to his bed, said to his sur- 
 geon, "I am afraid, doctor, I shall never recover," and in another, 
 where the surgeon having said, "You are in great danger," the party 
 I'eplied, "I fear I am;" declarations subsequently made were admit- 
 ted.' In R. V. Christie,' the deceased asked his surgeon if the wound 
 was necessarily mortal ; and on being told that recovery was just 
 ])Osaible, and that there had been an instance where a person had re- 
 covered after such a wound, he said, "I am satisfied;" and after this 
 he made a statement. This statement was held by Abbott, C. J., and 
 Park, J., to be inadmissible as a declaration in articulo mortis, as it 
 did not appear that the deceased thought himself at the point of 
 death; for, being told that the wound was not necessarily mortal, he 
 might still have had a hope of recovery. And where the only evidence 
 of the dying man being aware of his situation, consisted in his saying 
 "he should never recover," it was held insuiBcient.^ 
 
 In New York, it has been laid down in a Circuit Court, that dying 
 declarations should not be excluded in all cases where there is a faint 
 and lingering hope of recovery.'' But such a relaxation of the rule 
 is without precedent, and though perhaps a case might arise where 
 the fact that the deceased entertained, at a particular moment, a 
 fugitive and transient hope, would not exclude the evidence, yet it 
 is best to take the rule without qualification.' The fact of the de- 
 claiations not being made immediately previous to death, is not fatal 
 
 1 R. V. rcrkins, 9 C. & P. 395. 
 
 2 R. u. Megson, 9 C. & P. 418. ' R. v. Mosley, Ry. & M. C. C. R. 97. 
 * R. 1). Craven, Lewin's C. C. 77; K. v. Simpson, Lew. C. C. 78. 
 
 6 Car. C. L. 232, 0. B. 1821. « R. v. Van Butohell, 3 C. & P. 631. 
 
 ' People V. Anderson, 2 Wheel. C. C. 398. e Sta ev. Moody, 2 Haywood, 31. 
 
EVIDENCE — DYING DECLARATIONS. 309 
 
 to tliera, provided the deceased was conscious at the time he was in 
 a dying situation.' 
 
 Where the deceased said on the evening before the morning of her 
 death, " Mr. P. has killed me," and about the same time, " I am dead, 
 Mr. F. has killed me;" it was held that the declarations were admis- 
 sible as the dying declarations of the deceased.^ 
 
 Where the deceased, on the day the mortal blow was inflicted, was 
 told that his deposition ought to be taken, as he must inevitably die 
 before morning, and he replied, he thought so too, and afterwards ex- 
 claimed, " Lord, I shall die soon," it was held that his declarations, 
 reduced to writing, and signed by him at that time, were admissible 
 as dying declarations, although he lived tea days after.^ 
 
 In a case in Virginia, a person having received a mortal wound, 
 and being unable, in consequence of the wound, for the greater part 
 of the interval that elapsed before his death, to speak at all, and 
 when able to speak, only able to utter a short word or two, yet re- 
 taining his perfect senses and understanding, and being under appre- 
 hension of his approaching death, was asked, "Did P. V. strike you 
 first ?" To which he answered, " Yes, sir." " Did P. V. stab you ?" to 
 which he also answered, " Yes, sir." "Do you think you are going to 
 die ?" to which he again answered, "Yes, sir;" and was asked a fourth 
 question, which he was unable to answer, but it did not appear what 
 this fourth question was, or whether it had any relation to the sub- 
 ject, or at what interval after the three first it was put to the dying 
 man; it was held that the declarations, being distinct and complete 
 in themselves, were competent evidence on the trial of P. V. on aa 
 indictment for the homicide. But, if it had appeared that the dec^ 
 rations were uttered by the dying man, to be connected with,^ncl 
 qualified by other statements, and with them to form an entire com- 
 plete narrative, and before the purposed disclosure was fully made, 
 it had been interrupted, and the narrative left unfinished; such par- 
 tial declarations, it was said, would not have been competent evidence.'' 
 
 The objection that the questions to which the answers of the dying 
 man wei-e given, were leading questions, is not properly applicable in 
 such a case.' 
 
 The declarations are only admissible where the death is the subject 
 of the charge, and the circumstances of the death are the subject of 
 the declaration.* Thus, in a case where the prisoner was indicted for 
 administering savin to a woman pregnant, but not quick with a child, 
 with intent to procure abortion; the woman was dead, and for the 
 prosecution, evidence of her dying declaration upon the subject was 
 tendered. The learned judge who tried the case, rejected the evi- 
 dence, observing that, although the declaration might relate to the 
 causes of the death, still such declarations were admissible in those 
 cases alone where the death of the party was the subject of inquiry.'' 
 In another case' the defendant having been convicted of perjury, a 
 
 1 State V. Poll, 1 Hawks, 442 ; R. v. Mosley, R. & M. 97. 
 
 2 State V. Freeman, 1 Specrs, 57. ' M-Daniel v. State, 8 S. & M. 401. 
 
 * Vass ». Com. 3 Leigh, 786. ^ Ibid. 
 
 * 2 Russ. on Crimes, 761. 
 
 ' R. V. Hutcliinson, 2 B. & C. 608; Wilson v. Boerem, 15 Johns. 286. 
 « R. V. Mead, 2 B. & C. 605; 4 D. & R. 120, S. C. 
 
310 HOMICIDE. 
 
 rule nisi for a new trial was obtained; whilst that was pending the 
 defendant, Mead, shot the prosecutor, Law; and, on showing cause 
 against tlie rule, an afSdavit was tendered of the dying declaration 
 of the latter as to the transaction out of which the prosecution for 
 perjury arose. The court held that it could not be read; for dying 
 declarations are admissible only where the death is the subject of the 
 charge, and the circumstances of the death are the subject of the 
 declaration. So, in trials for robbery, the dying declarations of the 
 party robbed are rejected.^ In Wright v. Littler,^ however, the de- 
 clarations of subscribing witnesses, confessing the forgery of a deed 
 were admitted; ^ but in Doe & Sutton v. Eidgway,' Abbott, C. J., says 
 that the cases cited, viz. those of the deceased persons, in cases of 
 murder or manslaughter, or subscribing witnesses to deeds, confessing 
 the deeds to be forged, are the only exceptions to the general rule of 
 not receiving evidence unless upon oath, and with the opportunity of 
 a cross-examination; and Bayley, J., observes, that the declarations 
 admitted in the case of Aveson v. Kinnaird,* were part of the res 
 gestce. 
 
 On the trial of an indictment for the murder of a wife by her hus- 
 band, the declarations of the deceased, made in extremis, as to the 
 cause of her death, are competent evidence against the prisoner.'' 
 
 The dying declaration of a husband is competent evidence against 
 the wife to show her guilt.' 
 
 The dying party, to make the declarations evidence, must, at the 
 time of their making, have an idea of a future state; therefore, the 
 declarations of a dying child, only four years of age, have been 
 held inadmissible.' But if the child be of intelligent mind, and fully 
 comprehends the nature of an oath, and the consequences in future 
 state of telling a falsehood, his declarations, made under a sense of 
 impending dissolution are admissible." Thus, the dying declarations 
 of an intelligent child ten years old have been admitted.'" 
 
 A copy of dying declarations, taken down in writing by a magis- 
 trate, is inadmissible in evidence, though if the declarations are 
 sworn to by the magistrate, they would be admissible." If, however, 
 the magistrate swears that he cannot recollect the statement of the 
 deceased, the written statement taken by him would be secondary 
 evidence. ^^ 
 
 Nothing can be evidence, in a declaration in articulo mortis, that 
 would not be so, if the party were sworn. On this rule, any thing 
 the murdered person, in articulo mortis, says as to facts, is receivable, 
 but not what he says as matter of opinion.^' If the declaration of the 
 deceased, at the time of his making it, be reduced into writing, the 
 written document must be given in evidence, and no parole testimony 
 
 1 Per Bailey and Best, .T. J., 1822, 1 Phillips' Ev. 225; R. v. Lloyd, 4 C. & P. 233 ; 
 see R. V. Baker, 2 M. & Rob. 53 ; 1 Green, 156, n. 2. 
 
 2 3 Burr. 1244. » See Aveaon v. Lord Kinnaird, 6 East, 195. 
 • 4 B. & Al. 54. !* 6 East, 188. 
 
 ^ People V. Green, 1 Denio, 614. ' Moore v. State, 12 Ala. 764. 
 
 8 R. V. Pike, 3 C. & P. 598 ; 2 Russ. on Crimes, 765. 
 
 " 2 Russ. on Crimes, 765. 
 
 i« R. V. Perkins, 2 M. C. C. 135; S. C. 9 C. & P. 895. 
 " Beets V. State. I Meigs, 10 i. " Ibid. 
 
 " R. V. Sellers, O. B. 1796, Cor. C, L. 233. 
 
EVTDENCB — DYING DECLAEATIONS. 311 
 
 respecting its pontents can be admitted.' And if a declaration, in 
 articulo mortis, be taken down In writing, and signed by the party 
 making it, the judge will neither receive a copy of the paper in evi- 
 dence, nor will he receive parole evidence of the declaration.^ But, 
 where the dying person repeated his declaration three several times 
 in the course of the same day, the fact of its having been committed 
 to writing in the presence of a magistrate, on the second occasion, 
 will not, it seems, exclude parole evidence of the pthers, where it is 
 not in the power of the prosecutor, at the trial, to give that which 
 has been committed to writing in evidence.^ And on one occasion, 
 in Ireland, in a case where the depositions of the individual were 
 made at the time when he thought himself dying, taken down by a 
 magistrate, and not in the presence of the prisoner, it being objected 
 at the trial that the depositions were not pursuant to the statute," the 
 magistrate was sworn, and gave parole evidence of the declarations of 
 the deceased.^ 
 
 The dying declarations of a criminal at the scaffold will not be 
 thus admissible, because his path could no longer have been received 
 in a court of justice, after his blood is corrupted.* 
 
 It seems that where the declarations of the injured party are part 
 of the res gestce, they are admissible without proof of a consciousness 
 of approaching death.^ 
 
 The court are to decide as to the admissibility of the declaration.' 
 
 The same principles of law are applicable to the contradictory 
 statements of persons in extremis, as to those of a witness under exa- 
 mination on oath.' Where the court below charged the jury, "that 
 if they found that the deceased in her dying declarations made con- 
 tradictory statements, that they were not to be governed by the rules 
 of evidence in relation to contradictory statements made by a wit- 
 ness," it was held that this charge was erroneous.'" 
 
 It seems that evidence is admissible, on part of the defence, to im- 
 peach the character of the deceased for truth; he standing on the 
 same footing as a witness called into court and there examined; and, 
 in one case, where the dying declarations of the deceased were ad- 
 mitted to show that the defendant, with intent to produce on her an 
 abortion, had administered to her oil of tansy, which was the cause 
 of her death, the defendant was allowed to show that she was con- 
 sidered a woman of loose character and light reputation." It has 
 been held, however, that it is not competent for the prisoner to prove 
 that before the affray, the deceased had expressed a violent hatred to 
 him, and a disposition to do him injury, or that he was very hostile 
 to him.'^ 
 
 ' Vin. Ab. Evid. 38, A. b. 2 R. v. Gay, 7 C. & P. 230. 
 
 s R. V. Reason, 1 Str. 500; 16 How. St. Tr. S. C. 
 
 < 10 Car. 0. 1, Irish. 
 
 » R. V. Callaghan, 1 M'Nally, 885 ; R. v. Woodcock, 2 Leach, 563. 
 
 « Drummond's case, 1 Leach, 337; 2 Russ. on Crimes, 763 ; 2 Hawk. c. 46, s. 51. 
 
 ' Com. V. M'Pike, 3 Cnsh. 181. 
 
 8 1 Leach, 504; R. v. Hucks, 1 Stark, 532 ; R, v. Van Butchell, 3 C. & P. 629 ; 2 Russ. 
 on Crimes, 761 ; 1 Greenleaf on Evid. s. 160; M'Daniel v. State, 8 S. & M. 401 ; Hill's 
 case, 2 Gratt. 594. 
 
 ' M'Pherson i>. State, 9 Yerger, 279. " Ibid. 
 
 " People V. Knapp, per Edmonds, J., MSS.; see Carter v. People, 2 Hill's N. Y. R. 317. 
 
 12 State V. Varne'^ « TinatnTi T,aw Reporter, 562. 
 
312 HOMICIDE. 
 
 Where dying declarations, made under the belief of impending 
 death, are inconsistent with each other, it is the duty of the jury to 
 weigh them, and to determine which or whether either is to be be- 
 lieved; and if the charge of the court takes this duty from them, or 
 if the court undertakes to determine these questions, it is error.' 
 
 2. Proof of Corpus delicti. 
 
 The fact of the commission of the offence must necessarily be the 
 foundation of eTery criminal suit, and until that fact is proved, most 
 dangerous would it be to convict. " I would never," says Lord Hale, 
 " convict any person for stealing the goods of a person unknown, 
 merely because he would not give an account how he came by them, 
 unless there were due proof made that a felony had been committed. 
 I would never convict any person of murder or manslaughter, unless 
 the fact were proved to be done, or at least, the body found dead." ^ 
 Equally emphatic was the language of another great judge. " To 
 take presumptions, in order to swell an equivocal and ambiguous fact 
 into a criminal fact, would, I take it, be an entire misapplication of 
 the doctrine of presumptions."^ And the civil law is the same: 
 " Diligmter cavendum est judici, ne supplicium prcecipitct, antiquam de 
 crimine constiteret." ' " De corpore interfecti necesse est ut constet."* 
 The death in such a case should be distinctly proved, either by 
 direct evidence of the fact, or by inspection of the body.* The proof 
 must be clear and distinct: thus in a case of horse- stealing, a mere 
 declaration in evidence that the horse had been stolen, is not suffi- 
 cient evidence of the corpus delicti. The facts must appear, so that 
 the judge and jury may see whether such facts in point of law 
 amounted to a felonious taking and carrying away of the property 
 in question.^ 
 
 1 Moore v. State, 12 Ala. 764. 
 
 2 2 Hale, P. C. 290; Tyler v. State, 5 Humph. 383; and see, generally, Wharton's C. 
 L. b. i. c. 1, 3. 7, 8, from which these pages are drawn. 
 
 ' Lord Stowell, in Evans v. Evans, 8 Hagg. C. R. 105. 
 
 4 Matth. de Crim. in Dig. lib. 48, tit. 16, c. 1. 
 
 5 Matth. Probat. o. 1, n. 4, p. 9. 6 1 Stark. Ev. 575, 3d, c. 5. 
 
 ' Tyner v. State, 5 Humphrey, 383. The reference to facts, which, having in them- 
 selves no bearing upon the guilt or innocence of the party, are important as leading to 
 inferences in regard to it, is called, in Germany, "indicatory evidence." On this point, 
 the curious are referred to Mittermaier, von Beweise, p. 402; Martin, in Demme's 
 Annalen des Criminalrechts, vol. iii., p. 215; Bauer, Theorie des Anzeigenbeweises ; 
 Quistorp Grunds. s. 676; Henke Darstellung. s. 99; Tittman Handb. iii. p. 495; Kitka 
 Beweislere, p. 13. Of the old Jurists, see Blanci de indioiis. Veuet. 1545 ; Bruni Guide 
 de Suzaria de indiciis et Tortura Lugd. 1546, Crusuis de Tortura et indiciis Francof. 
 1704; Menochius de pr^sunet. Colon. 1686 ; Tabor de indie, delict.; Giess. 1767, Cocieji 
 de fallae, crim, indie, in ejus exeri. our. p. i. uro. 75 ; Reinhardt de eo quod circa reum 
 ex praesumnt. convinc. et cond. just. est. Erford, 1732; Woltaer femiol, crim. quaed 
 capita Ital. 1790; Puettman de lubrico indie, indol. Lips. 1785; Nani de indicis 
 eorumque. ususu, Ticin. 1781 ; Pagano logica de probabili applicata a guidizi crimin. 
 Milan, 1806; Heinroth in Hitzig's Zeitzohrift, No. 42, p. 257; Wills' Essay on the 
 Rationale of Circumstantial Evidence. The term " Circumstantial Evidence," is objected 
 to by the German jurists, (see Bauer, p. 1214.) Indications are divided into, 1st, Those 
 which are drawn from the particular relation of the circumstances to the fact in issue, 
 so as to implicate a particular person, either as a participant in the crime, or as a pos- 
 sessor of information in regard to it; e, g., where a knife, the possessor of which is 
 known, is found at the locus in quo. 2d, Those which set out, from general observa- 
 tions of human nature, inducing suspicion against particular individuals, by reason of 
 particular moral qualities, motives, information, skill, or demeanor, e. g., suspicions on 
 
EVIDENCE— CORPUS DELICTI. 313 
 
 In most cases the proof of the crime is separable from that of the 
 criminal. Thus, the finding of a dead body, or a house in ashes, indi- 
 cate the probable crime, but do not necessarily afford any clue to 
 the perpetrator, and here it is necessary to draw a distinction rela- 
 tive to the effect of presumptive evidence. The corpus delicti in such 
 cases is made up of two things: first, certain facts forming its basis; 
 and, secondly, the existence of criminal agency as the cause of them. 
 With respect to the former of these, it is the established rule that 
 the facts which form the basis of the corpus delicti, ought to be 
 proved either by direct testimony, or by presumptive evidence of the 
 most cogent and irresistible kind. This is particularly necessary in 
 cases of murder, where the rules laid down by Lord Hale, seem to 
 have been generally followed, namelj', that the facts of death should 
 be shown, either by witnesses who were present when the murderous 
 act was done, or by proof of the body having been seen dead, or if 
 found in a state of decomposition, or reduced to a skeleton, it should 
 be identified by dress or circumstances, as in the Webster case, where 
 the teeth formed the chief means of identification, and in a leading 
 English case, where the same test was successfully applied to a body 
 exhumed after a lapse of twenty-three years.'' There are some old 
 cases which go far to establish the sound policy of this rule. One 
 given by Sir E. Coke has been already cited, where an uncle being un- 
 able to account for the disappearance of a niece of whom he had the 
 bringing up, was executed for her murder, though it afterwards ap- 
 peared that she had fled from home, to which, in fact, after a lapse of 
 some years she returned ; and Doctor Hitzig gives several illustrations 
 to the same effect.'' Lord Hale even tells us that in his own time, 
 after a murderer was convicted and executed, the " deceased " returned 
 from sea, where he had been sent against his will by the accused, who, 
 though innocent of the murder, was not entirely blameless.^ In our 
 own country, the alleged victim in one case made his appearance just 
 in time to save him who had been indicted for murdering him, and 
 who actually had made a confession of guilt, from being hung.'' Should 
 the decease be proved by eye witnesses, the inspection of the body 
 after death may of course be dispensed with. Thus, in a case in 
 England,^ the prisoner, a seaman on board of the ship Eolus, was 
 charged with the murder of his captain. The first count of the in- 
 dictment alleged the murder to have been committed by a blow from 
 a large piece of wood, and the second by throwing the deceased into 
 
 the grounds of enmity toward the deceased, or interest ; see also Archiv. des Criminals) 
 xiv. p. 587. The first species justifies the inquisitor in arresting and hearing the person 
 implicated, and demanding an explanation, while in the latter case, he dare not go fur- 
 ther than to cause the person to be watched, or examine him as a witness. There is 
 also a distinction between immediate indications, (Bayl Beitrage zum Criminale, p. 215; 
 Bentham. traite i. p. 313,) which authorize the inference in regard to the fact, without 
 the intervention of other circumstances ; and mediate ones, which only prove such facts 
 from which a further inference can be drawn, in regard to the very matter in issue, e. g. 
 approval of the crime, which leads to the inference of a disposition to commit it. The 
 doctrine of presumptions of law, and presumptions of fact, are inapplicable to criminal 
 investigations, these being matter of intention. 
 
 1 R. V. Clewes, 4 C. & P. 22. 2 Der ueue Pitoval, &c. 
 
 ' 2 Hale, P. C. 290 ; see also, Best's Theory, App. Case, 5. 
 
 * Boom's Case, 1 Greenleaf on Ev. sec. 214. 
 
 5 R. V. Hindmarsh, 2 Leach's C. L. 569, 
 
14 HOMICIDE. 
 
 le sea. It appeared in evidence that while the ship was lying off 
 le coast of Africa, where tliere were several other vessels near, the 
 "isoner was seen one night to take the captain up in his arms, and 
 irow him into the sea, after which he was never seen or heard of; 
 it that near the place on the deck where the captain was seen, was 
 lund a billet of wood, and the deck and part of the. prisoner's dress 
 ere stained with blfiod. On this, it was objected by the prisoner's 
 mnsel that the corpus delicti was not proved, as the captain might 
 ive been taken up by some of the neighbouring vessels; but the 
 )urt, although they admitted the general rule of law, left it to the 
 ry to say upon the evidence, whether the deceased was not killed 
 3fore the body was cast into the sea, and the jury being of that opinion, 
 le prisoner was convicted and executed.' 
 
 It is not pretended that in every case the dead body must be found, 
 ' the owner of the property alleged to be stolen discovered. Mr. 
 entham suggested the illustration of the decomposition of the body 
 1 lime, or by any other of the known chemical menstrua, or of its 
 iing submerged in an unfathomable part of the sea, and asks whether 
 . such a case, when the homicide is proved aliunde, the defendant is 
 I be acquitted.^ Unsuccessful attempts of such a kind have undoubt- 
 lly been made, and that the result may have been obtained, appears 
 ■obable from a recent melancholy instance in Philadelphia, where a 
 jntleman of the highest professional standing, who had won the re- 
 lect and kind feelings of all, and to whose professional and personal 
 orth the editor gladly takes this opportunity of paying tribute, was 
 
 less than eight hours so entirely consumed by the fire in the cellar 
 
 a burning house, into which he had fallen, as to leave scarcely a 
 jstige of bone or flesh behind. 
 
 The cases cited by Mr. Bentham, Dr. Hitzig, and Mr. Willis, it is 
 )t practicable now to consider; and perhaps the necessity is some- 
 hat obviated by the very thorough examination which the question 
 iderwent in the Webster case. It will be recollected that there, 
 
 the furnace attached to the defendant's laboratory, were found 
 jrtions of lime and blocks of mineral teeth. These fragments, to- 
 3ther with others elsewhere found, having been collected, were 
 entified as those of Dr. Parkman, the teeth having been declared 
 r a dentist to be the parts of a set made for the deceased. It was 
 ddent that an attempt had been made to destroy the body by fire 
 • other chemical agency, and the testimony of experienced medical 
 mtlemen was taken with reference to this point. Dr. Strong testi- 
 
 1 R. V. Ilindmarsh, 2 Leach, 569. It was urged on tlie prisoner's behalf, at the ti-ial, 
 ■ Garrow, (the late Mr. Baron Garrow,) that he was entitled to be acquitted, on the 
 ound that it was not proved tliat the captain was dead ; and that as there were 
 my ships and vessels near the place where the transaction was alleged to have taken 
 ice, the probability was, that he was taken up by some of them, and was then alive, 
 id the learned counsel mentioned a remarkable case which had liappened before Mr. 
 Gould. The mother and reputed father of a bastard child were observed to take 
 e child to the margin of the dock, at Liverpool; and, after stripping it, cast it into 
 e dock. The body of the infant was not afterwards seen; and as the tide of the sea 
 wed and reflowed into and out of the dock, the learned judge, upon the trial of the 
 ;her and mother for the murder of their child, observed, that it was possible the tide 
 ght have carried out the living infant; and upon this ground the jury, by his direc- 
 m, acquitted the prisoners. But quwre, the form of the indictment in this case. 
 
 2 Benth. Jud. Ev. 23i. 
 
EVIDENCE — CORPUS DELICTI. 315 
 
 fied tliat he had frequently found it necessary to get rid of the re- 
 mains of a subject by fire; and that upon one occasion wishing to 
 consume the flosh of the body of a pirate, he had placed it upon a 
 large wood fire, and succeeded in concluding the operation in the 
 course of one night and the forenoon of the next day, although called 
 upon during that time by the police to know what made such a smell 
 in the street.^ Dr. Jackson says " that the flesh of a human body if 
 cut up into small pieces and boiled in potash, might be dissolved in 
 two or three hours. Next to this the best substance to use in dis- 
 solving or disposing of a human body would, I should think, be nitric 
 acid, and the difficulty or danger attendant upon its use so far as the 
 evolution of noxious vapour is concerned, would depend upon the 
 degree of heat applied. If a gentle heat were used, very little ni- 
 trous acid would be given oif; but if the acid were boiled there 
 would be a great deal, though the dissolution of the body would be 
 most rapid at a boiling temperature."^ 
 
 The cases which present the greatest difficulty in establishing the 
 corpus delicti, are those of infanticide, poisoning, and suicide. 
 
 Where upon an indictment against the prisoner for the murder of 
 her bastard child, it appeared that she was seen, with the child in her 
 arms, on the road from the place where she had been at service to the 
 place where her father lived, about six in the evening, and between 
 eight and nine she arrived at her father's, without the child, and the 
 body of a child was found in a tide-water, near which she must have 
 passed in her road to her father's, but the body could not be identi- 
 fied as that of the child of the prisoner, and the evidence rather 
 tended to show that it was not the body of such child; it was held 
 that she was entitled to be acquitted; the evidence rendered it pro- 
 bable that the child found was not the child of the prisoner; and with 
 respect to the child, which was really her child, the prisoner could 
 not by law be called upon either to account for it, or to say where it 
 was, unless there were evidence to show that her child was actually 
 dead.^ 
 
 The weight of authority now clearly is that, in cases of alleged in- 
 fanticide, it shall be clearly proved that the child had acquired an 
 independent circulation and existence, and it is not enough that it had 
 breathed in the course of its birth;" and a very eminent and humane 
 American judge extended the same test — though with questionable 
 propriety, — to the case of a child some months old, whom the mother, 
 during an attack of puerperal fever, had thrown out of the window 
 of a steamboat.^ If, however, a child has been wholly born, and is 
 alive, it is not essential, as will be fully discussed hereafter, that it 
 sliould have breathed at the time it was killed ; as many children are 
 born alive, and yet do not breathe for some time after birth.* 
 
 In trials for poisoning it should lie observed that it does not ne- 
 cessarily follow, even where poison has been administered, that death 
 
 1 Bemis' Report ofWebster Case, 69. 2 Ibid. 75, 70. 
 
 » R. V. Hopkins, 8 C. & P. 591. 
 < Wills, p. 205 ; R. v. Poulton, 5 Car. & Paine, 399. 
 
 * U. S. V. Hewson, 7 Boston Law Rep. 361, Storj, J,; though see Com. v. Harman, 
 4 Barr. 269. 
 6 See R. V. Brain, 6 Car. & P. 350. 
 
1 HOMICIDE. 
 
 resulted from other than natural causes.^ The presence of poi- 
 
 may be ascertained by the symptoms during life, the post mortem 
 learances, the moral circumstances, and by far the most decisive 
 I satisfactory evidence, the discovery by chemical means of the 
 stence of poison in the body, in the matter ejected from the sto- 
 :h, or in the food or drink of which the sufferer has partaken, 
 iuicide and accident are sometimes artfully sujrgested and plausi- 
 
 urged as causes of death, where the allegation cannot receive 
 ect contradiction; and in such cases the truth can be ascertained 
 y by a comparison of all the attendant circumstances, some of 
 ich, if the defence be false, are commonly found to be irreconcila- 
 
 with the cause assigned. It may also happen that the supposed 
 ous delicti is the result of accident or carelessness. In one un- 
 ipy instance, in France, a respectable man was convicted and exe- 
 ed, on the strength of the presumption of a number of articles of 
 er, which were missing, having been found in a place to which he 
 ne had access, and which were afterwards discovered to have been 
 losited there by a magpie. 
 
 The somewhat fanciful defence of somnambulism, also, which in 
 > country was attempted in Tyrrell's case, may derive sometimes 
 lausibility from the following curious illustration, which is given 
 a writer of the last century. Two persons who had been hunting 
 ■ing the day, slept together at night. One of them was renewing 
 
 chase in his dream, and, imagining himself present at the death 
 ;he stag, cried out aloud, " I'll kill him ! I'll kill him ! " The other, 
 ikened by the noise, got out of bed, and by the light of the moon 
 eld the sleeper give several deadly stabs with a knife on the part 
 the bed his companion had just quitted. Another instance is re- 
 id of a somnambulist who was twice prevented from an apparent 
 ;mpt to murder his wife by strangling her with his hands, and by 
 low from the bar of a door. 
 
 )n this point. Chief Justice Shaw said in his charge in the Webster 
 3, "If the jury should come to the conclusion that the evidence is 
 
 sufficient to prove that Dr. Parkman was abroad ov(t of the Medi- 
 College after he entered it, at or shortly before two o'clock, the 
 stion recurs whether he lost his life there; and, if so, whether it 
 i under such circumstances as to lead to the belief that it was by 
 
 act of a third person, thereby establishing the corpus delicti. 
 
 The sudden disappearance of a man of known and established 
 lits without apparent cause, and the failure to find him or any 
 je of him, after diligent search, although they may lead to a 
 
 IVills on Circum. Ev. 209. And see 3 Green, on Ev. s. 147. 3 Inst. 57, ns limited 
 lolt, C. J.; 1 Ld. Raym. 143; J. Hale, P. C. 475: 4 Black. Com. 192, 200; 1 East, 
 . 231. Fester, 262; 1 Hale, P. C. 474; Grey's case, I. Kely. 64. See Alison's 
 1. Law of Scotland, p. 3, 4; 1 Hale, P. C. 431, 432; 1 East, P. C. 225; Palm. 548, 
 Jones, J.; R. u. Walters, 1 Car. & Marsh. 164; 1 Russ. on Crimes, 488; Squires' 
 , id. 490; Stoekdale's case, 2 Lew. 220; R. v. Huggins, 2 Stra. 882; Castelv. Bam- 
 ge, 2 Stra. 854, 856. 1 Hale, P. C. 457. Watts v. Brains, Cro. El. 778 ; J. Kely. 
 1 Hale, P. C. 455, 456; 1 Russ. on Cr. 515; State v. Merrill, 2 Dev. 269. The 
 ect of provocation, and where it reduces the crime to manslaughter, has already been 
 idered See ante, 168, &c. ; and see State v. Hill, 4 Dev. & Bat. 491. State v. John- 
 1 Iredell, 354; State v. Tilly, 3 Iredell, 424 ; Shoemaker, v. State, 12 Ohio R. 423 ; 
 . V. Green, 1 Ashm. 289. 
 
EVIDENCE — CORPUS DEUCTI. 317 
 
 strong suspicion that he has conae to an untimely end, yet are not 
 alone sufficient proof of his death, because the fact may be accounted 
 for on the hypothesis, (however improbable,) that he may have ab- 
 sconded and eluded all inquiry, or be kidnapped and concealed, and 
 be still alive. But if his dead body be found, it is a fact, in its nature 
 conclusive. It has been sometimes said by judges, that a jury ought 
 nevento convict in a case of homicide, unless the dead body be found 
 and identified. This, as a general proposition, is undoubtedly true 
 and correct; and disastrous and lamentable consequences have resulted 
 from disregarding the rule. But, like other general rules, it is to be 
 taken "vvith some qualification. It may sometimes happen that the 
 dead body cannot be produced, although the proof of the death is 
 clear and satisfactory. As in a case of murder at sea, where the 
 body is thrown overboard in a dark and stormy night, at a great 
 distance from land or any vessel; although the body cannot be found, 
 nobody can doubt that the author of that crime is chargeable with 
 murder. But, if the body can be found and identified, it goes con- 
 clusively to one of the facts necessary to be proved, — the death of 
 the person alleged to have been killed. Such proof is relied on in 
 the present case. It is for the jury to judge of it."" 
 
 Without this proof, says Mr. G-reenleaf,^ a conviction would not be 
 Avarranted, though there were evidence of conduct of the prisoner ex- 
 hibiting satisfactory indications of giiilt. But the fact, as we have 
 already seen, need not be directly proved; it being sufficient if it be 
 established by circumstances so strong and intense as to produce the 
 full certainty. Neither is it indispensably necessary to prove that the 
 prisoner had any motive to commit the crime, though the absence of 
 such motive ought to receive due weight in his favour. 
 
 The most positive and satisfactory evidence of the fact of death, is 
 the testimony of those who were present when it happened; or who, 
 having been personally acquainted with the deceased in his lifetime, 
 have seen and recognised his body after life was extinct. This evi- 
 dence seems to be required in the English House of Lords, in claims 
 of peerage; and a fortiori a less satisfactory measure of proof ought 
 not to be required in a capital trial. In these cases the testimony of 
 medical persons, where it can be had, is generally most desirable, 
 wherever the nature of the case is such as to leave any doubt of the 
 fact.3 
 
 But though it is necessary that the body of the deceased be satis- 
 factorily identified, it is not necessary that this be proved by direct 
 and positive evidence, if the circumstances be such as to leave no 
 reasonable doubt of the fact. Where only mutilated remains have 
 
 ' Com. -u. Webster, 3 Cush. 535. Bemis' Webster case, 479. 
 
 ^ 3 Green, on Ev. I 132. 
 
 3 1 Hubback on Suooesaion, p. 159, 160. By the Roman Civil law, as well as by ours, 
 the death may be proved not only by those who saw the party dead and buried, but by 
 those who saw him dying, or, who were present at a funeral called his, but who did 
 not see the body. Mascard De Profort Concl. 1077. In some cases, by that law, death 
 might be proved by common form ; but not in cases involving highly penal consequences : 
 — non in (casis) graviaboros, secus autem in his, quje modicum damnum afferre possunt. 
 Idem. Concl. 1076, n. 1, 3. It might also be proved by circumstantial evidence. But 
 was never to be presumed as an inference of law. Mors non presumitur, sed est pro- 
 banda; cum quilibet prsesumatur vivere. Idem. Coucl. 1075, n. 1. And see Idem. 
 Concl. 1078, 1079. Ante, vol. 2, tit. Death. 
 
318 HOMICIDE. 
 
 been found, it ought to be clearly and satisfactorily shown, that they 
 are the remains of a human being, and of one answering to the sex, 
 age, and description of the deceased; and the agency of the prisoner 
 in their mutilation, or in producing the ajipearance found upon them, 
 should be established. Identification may also be facilitated, by cii'- 
 cumstances apparent in and about the remains, such as the ajiparel, 
 articles found on the person, and the contents of the stomach, con- 
 nected with proof of the habits of the deceased in respect to his food, 
 or with the circumstances immediately preceding his dissolution.' 
 
 3. Presumptions. 
 
 "The death and identity of the body being established, says Mr. 
 Greenleaf,^ it is necessary, in the next place, to prove that the de- 
 ceased came to his death by the unlawful act of another person. The 
 possibility of reasonably accounting for the fact by suicide, by acci- 
 dent, or by any natural cause, must be excluded by the circumstances 
 proved; and it is only when no other hypothesis will explain all the 
 conditions of the case, and account for all the facts, that it can safely 
 and justly be concluded that it has been caused by intentional injury. 
 Though suicide and accident are often artfully and falsely suggested 
 in the defence, as causes of the death, especially where the circum- 
 stances are such as to give plausibility to the suggestion; yet the 
 suggestion is not on this account to be disregarded; but all the facts 
 relied on are to he carefully compared and considered, and upon 
 such consideration, if the defence be false, some of the circumstances 
 will commonly be found to be irreconcilable with the cause alleged. 
 Scientific evidence sometimes leads to results perfectly satisfactory 
 to the mind; but when uncorroborated by conclusive moi-al circum- 
 stances, it should be received with much caution and reserve; and 
 justice no less than prudence requires that, where the guilt of the 
 accused is not conclusively made out, liowever suspicious his conduct 
 may have been, he should be acquitted.^ 
 
 1 2 Wills on Cir. Evid. p. 164, 168. See Boom's cdsc, ante, Vol. I. 214, ii. Tliat 
 the name, as well as the person of the deceased must be precisely identified, has already- 
 been shown, supra, 22. The subject of the identification of mutilated remains was very 
 fully discussed in the trial of Dr. Webster, and is fully developed in the excellent report 
 by Mr. Bemis, 
 
 2 1 Wills on Cir. Evid. p. 168. 
 
 3 2 Ibid, p. 168, 172. On this subject the following important observations are made 
 by Mr. Starkie. It sometimes happens that a person determined on self-destruction 
 resorts to expedients to conceal his guilt, in order to save his memory from dishonour, 
 and to preserve his property from forfeiture. Instances have also occui-red where, in 
 doubtful cases, the surviving relations have used great exertions to rescue the character 
 of the deceased from ignominy, by substantiating a charge of murder. On the other 
 hand, in frequent instances, attempts have been made by those who have really been 
 guilty of murders, to perpetrate it in such a manner as to induce a belief that the party 
 was felo de so. It is well for tlie security of society that such an attempt seldom suc- 
 ceeds, so difficult is it to substitute artifice and fiction for natui-e and trutli. Where the 
 circumstances are natural and real, and have not been counterfeited with a view to 
 evidence, they must necessarily correspond and agree with each other, for they did 
 really so co-exist; and therefore, if any one circumstance which is essential to the ease 
 attempted to be established, be wholly inoon,sistent and irreconcilable with such other 
 circumstances as are known or admitted to be true, a plain and certain inference results 
 that fraud and artifice have been resorted to, and that the hypothesis to which such a 
 circumstance is essential, cannot be true. The question whether a person has died a 
 natural death, as from apoplexy, or a violent one from strangulation; whether the 
 
EVIDENCE — PRESUMPTION FROM MARKS OP VIOLENCE. 319 
 
 This branch of the subject will be considered in the following 
 divisions: — 
 
 Ist. Presumptions drawn from marks of violence, indicating, 
 
 (1.) Weapon used. 
 
 (2.) Whether the wounds were accidental, self-inflicted, or given 
 by another. 
 
 (3.) Whether they were the result of a momentary passionate 
 impulse, or of premeditation. 
 
 2d. Presumptions drawn from instruments of death. 
 3d. Presumptions drawn from poison. 
 
 ■ith. Presumptions drawn from materials appropriate to be con- 
 verted into instruments of crime. 
 
 5th. Presumptions drawn from detached circumjacent bodies. 
 6th. Presumptions drawn from liability to attack. 
 
 (1.) Possession of money. 
 
 (2.) Old grudge. 
 
 (3.) Jealousy. 
 7th. Presumptions in infanticide. 
 
 (1.) Condition of child's body. 
 
 (2.) Person suspected. 
 
 (3.) Cause of death. 
 
 (4.) Quickness. 
 
 1st. Presumptions drawn from marks of violence indicating, 
 
 [The principal part of the following sections will be found in the second edition of 
 Wharton's Grim. Law, under the head of " Preparations for Trial." The demand of the 
 material thus introduced in an independent shape, has led to its adaptation to its pre- 
 sent purpose.] 
 
 (1.) Weapon used. — In ordinary cases the shape of the wound will 
 agree with the instrument with which it has been produced. This is 
 particularly the case with those inflicted by a knife, a dirk, a sword, 
 or a razor, or, in general, by any sharp weapon by which a cut or thrtus 
 may be made. If, however, death has been produced by a bruise or 
 contusion, the case presents more difficulty, as it not unfrequently hap- 
 pens that such wounds are unaccompanied with any marks of external 
 violence. In almost every case, however, a careful investigation will 
 lead to the discovery whether the instrument were blunt or sharp, of 
 
 death of a body found immersed in water has been occasioned by drowning, or by force 
 and violence previous to the immersion ; whether the drowning was voluntary, or the 
 result of force ; whether the wounds inflicted upon the body were inflicted before or 
 after death, are questions usually to be decided by medical skill. It is scarcely neces- 
 sary to remark that where a reasonable doubt arises whether the death resulted on the 
 one hand from natural or accidental causes, or on the other, from the deliberate and 
 wicked act of the prisoner, it would be unsafe to convict, notwithstanding strong, but 
 merely circumstantial evidence against him. Even medical skill is not, in many 
 instances, and without reference to the particular circumstance of the case, decisive 
 as to the cause of the death; and persons of science must, in order to form their 
 own conclusion and opinion, rely partly on external circumstances. It is, therefore, 
 in all cases, expedient that all the accompanying facts should be observed and 
 noted with the greatest accuracy ; such as the position of the body, the state of the 
 dress, marks of blood, or other indications of violence ; and in such case of strangula- 
 tion, the situation of the rope, the position of the knot, and also the situation cf any 
 instrument of violence, or of any object by which, considering the position and state of 
 the body, and other circumstances, it is possible that the death may have been acci- 
 dentally occasioned. 2 Stark, on Evid. 519, 521, (Cam. Ed.) 
 
320 HOMICIDE. 
 
 wood or of metal, whether the blows were repeated, and whether they 
 were sufficient to cause death. If the wound has been produced hj a 
 gun or pistol, it becomes necessary to inquire whether it was received 
 from a person near at hand, or at a distance, whether the aim would 
 appear to have been deliberately taken, and whether the position of 
 the deceased, and the location and direction of the wound are such as 
 sufficiently to indicate the premeditation of the act. Of the effect 
 with which such evidence may be used, an illustration is given by a 
 case some years ago in Ireland. The question was, whether in a 
 scuffle a pistol had accidentally gone off and occasioned the death, or 
 whether the assailant had deliberately fired at him from some distance. 
 The sons of the deceased swore that the pistol was fired from some 
 distance, the prisoner taking deliberate aim. This was confirmed by 
 tlie dying declaration of the deceased. But on a careful examination 
 of the body, which was disinterred for that purpose, the surgeon was 
 enabled to swear positively, that the pistol must have been fired close to 
 the body of the deceased, as there distinctly appeared the marks of 
 powder and burning on the wrist. So conclusive was this evidence 
 deemed, that the prisoner was acquitted, and the parties who had ap- 
 peared as witnesses against him were indicted and convicted of per- 
 jury.' So, also, where the deceased was shot in the street, when 
 looking at a parade, and where the question was whether he was 
 killed by a stray shot, or by a gun which there was some evidence to 
 show was aimed from a third story window, the doubt was solved by 
 the slanting direction of the wound.^ 
 
 (2.) Whether the wounds were accidental, self-inflicted, or given by 
 miother. — It will be necessary in the investigation of this point to in- 
 quire whether the wounds are of a character, or in a position which 
 render them likely to have been the result of suicide, or whether 
 their nature, location, number, and variety conclusively point to ano- 
 ther as having pei'petrated the deed. It has been observed that in 
 ordinary cases of suicide, but one wound is inflicted, which proves fatal; 
 and that if the self-destroyer effects his purpose by a cutting instru- 
 ment, or incisions, he selects the throat; that if he stabs himself, he se- 
 lects the chest, particularly the heart or belly; and if he shoots him- 
 self, he generally does it through the head.^ It, therefore, becomes 
 a subject of legitimate investigation whether, or not, the wounds are 
 in a position likely to have been selected by one seeking instantaneous 
 self-destruction, and whose opportunities and design would be at that 
 which he conceived to be the most vital part. The fact that death 
 by suicide is almost always produced by a single wound is also an im- 
 portant feature in the examination of the body. In New York in 
 1839, a woman was found dead covered with many wounds. Her 
 husband, who was suspected, asserted that she had destroyed herself. 
 On examination there were found eleven stabs, eight on and about 
 the left side of the thorax, one of which had penetrated the pericar- 
 dium and divided the trunk of the pulmonary artery at its origin, 
 while the others were on the back near the left shoulder blade. There 
 was every reason to suppose that the stabs in front and at the back 
 
 ' Taylor's Med. Juris. 330. ■ Der neue ritoval, &c. 
 
 ^ Watson on Homicide, 270. 
 
PEESUMPTION FROM CHAEACTER OP WOUNDS. 321 
 
 were inflicted at the same time; and the inference was that it was im- 
 possible that the latter could have been self-inflicted.^ So, too, the 
 variety of the wounds will often sufficiently indicate the fact of mur- 
 der. William Corder was tried at the Bury St. Edmonds Summer as- 
 sizes for the murder of Maria Marten, whose body was discovered in 
 a barn twelve months after her disappearance. He alleged that she 
 had committed suicide, but upon examination of the body a handker- 
 chief was found drawn tightly around the neck; the course of a pistol 
 ball was traced through the left cheek passing out at the right orbit; 
 and three other wounds were found, one of which had entered the 
 heart, and all of which had been made by a sharp instrument, means 
 of death so various and unusual with females as to discredit entirely 
 the statement of the prisoner, and lead to his conviction and execu- 
 tion.^ 
 
 It ia important to inquire, in cases where the defence of suicide 
 may be started, whether there are marks upon the person other than 
 those made by the fatal wounds; e. g., whether the hands or arms 
 have the appearance of having been held forcibly during the com- 
 mission of the deed, whether the head appears to have been bruised, 
 as if the- victim were first rendered insensible by a blow upon that 
 portion of the frame, whether the wound is in a position that could 
 not have been reached by the deceased, and which may often be 
 ascertained by placing the weapon in the hand of the corpse, and 
 observing whether or not the direction of its probable course corres- 
 ponds with that of the wound. It must be considered, also, whether 
 there are signs of the presence of another, as in the case of a woman 
 found dead in a room with her throat cut, and a large quantity of 
 blood on her person, where on the floor the presence of another per- 
 son in that room was clearly demonstrated by the print of a bloody 
 left hand on the left arm of the deceased.^ 
 
 (3.) Whether the wounds, if given by another, are to be considered 
 as the result of a momentary passionate impulse, or of premeditation. 
 In this, as in the question just considered, the position of the wound 
 is of consequence. When found inflicted in a concealed part, such 
 as a superficial observer would nolrbe likely to notice, the inference 
 of intent is strong." A person acting under the impulse of passion 
 would be likely ^o inflict a less skilful wound than one whose act 
 was the result of premeditation. Thus, as in one or two Western 
 cases, where the deceased is found with his eyes gouged out, there is 
 little difficulty in deducing the intent. And so in a case where an 
 infant was found with a needle thrust upwards through its navel. 
 
 The direction of the wound may also be an important circumstance 
 to show the intent, as in a case stated by Watson, where the prisoner 
 was tried for shooting a man who came to his house under suspicious 
 circumstances. The defence was that the ground being rough and 
 slippery, the prisoner stumbled, and both barrels of the gun had gone^ 
 off by accident. This statement was confirmed by tracing the direc- 
 tion of the shot in the body of the deceased, which was found to be- 
 pointed upwards.'' 
 
 1 Taylor's Med, Juris. 257. = Wills on Circum. Evid. p. 169, 170. 
 
 3 Case of Mary Norkot and others, 14 Ho. St. Tr. 1324. 
 
 •* Dean's Med. Jm-is. 258; see ante, p. 321. ^ 'Watson on Homicide, 246. 
 
 21 
 
322 HOMICIDE. 
 
 2d. Presumptions drawn from instrument of death. 
 
 The nature of the weapon used, as has already been observed, is 
 in a great majority of cases to be deduced from the wound itself. 
 Thus, a stab or cut would indicate the employment of a sharp instru- 
 ment, while its length, shape, and direction would point to the species 
 of the particular weapon, whether it was a common clasp knife, a 
 dirk, an axe, or a razor. Frequently, also, the weapon may be dis- 
 covered near to, or in the vicinity of the body; and although this is 
 often considered a circumstantial indication of suicide, it is by no 
 means invariably found to be so. In July, 1683, the Earl of Essex 
 was found dead in the Tower, with his throat cut, and a razor lying 
 near him. His throat was smoothly and evenly cut from one side to 
 the other, and entirely down to the vertebral column. Notwith- 
 standing this, the razor was found to be much notched on the edge. 
 This fact, those who favoured the view of suicide were asked to 
 explain. They could do so no other way than by supposing that the 
 deceased had notched the razor by drawing it backwards and for- 
 wards on the neck bone. This he could hardly be deemed competent 
 to do after all the great vessels of the neck had been divided.* 
 If the weapon be found in the vicinity of the corpse, the question 
 arises whether it could have been placed in its position by the act 
 of the deceased. In the case of Courvoiser, who was tried for the 
 murder of Lord William Eussell, there were two facts relied upon to 
 show that this was not a case of suicide. One was that a napkin was 
 placed over the face of the deceased, and the other that the instru- 
 ment of death did not lie near the body.'' To the same point is the 
 case of Jane Norkott, who was found dead in her bed with her throat 
 cut, while a bloody knife was found sticking in the floor a good dis- 
 tance from the bed, but as it stuck, the point was turned toward the 
 bed and the haft from it.^ It may be that the weapon found near 
 the person of the deceased is not the one with which the crime has 
 been committed. Thue, in an old case, the deceased was found with 
 his own pistol lying near him, from which circumstance, together 
 with that of no person having been seen to enter or leave the house, 
 it was concluded that be had des'troyed himself; but on examining 
 the ball by which he had been killed, it was found to be too large 
 ever to have entered that pistol.'' If, however, the instrument of 
 death has been found, and homicide is suspected, the inquiry becomes 
 important, to whom does it belong? In order to ascertain the owner- 
 ehip it will be necessary to examine the weapon itself carefully for 
 any name or other mark by which it may be identified, and to in- 
 .quire who possessed such a weapon; whether any one purchased or 
 procured one of the kind a short time before the murder was com- 
 mitted; whether any one was observed preparing it for use; whether 
 there are any marks upon it to indicate the hand, or the size of the 
 hand in which it was held, or the direction in which the fatal blow 
 was given; whether the weapon is imperfect or broken, and if so, who 
 
 1 Dean's Med. Juris. 257; Taylor's Med. Juris. 262 ; 2 Beck's Med. Juris. 82—84. 
 " Dean's Med. Juris. 256; Guy's For. Med. 480; Taylor's Med. Juris. 262. 
 ' 2 Beck, 86, 87; Guy's For. Med. 480; Dean's Med. Juris. 267. 
 * Wills on Circum. Evid. 80 ; Dean's Med. Juris. 256. 
 
PRESUMPTIONS PROM INSTRUMENT OF DEATH AND FKOM POISONING. 323 
 
 has been observed in possession of a fragment corresponding to the 
 broken portion. Thus, in a trial in Philadelphia, in 1845, the pri- 
 soner's agency was determined by the fact that the profile of a 
 notched hatchet with which the homicide was committed, was found 
 pencilled in blood on his handkerchief, with which the hatchet pro- 
 bably had been wiped. So, when the death was produced by a dirk 
 knife, the possession of such a knife was traced to the prisoner on 
 the day of the homicide, and on the next morning, the handle of a 
 knife with a small portion of the blade remaining, was found in an 
 open cellar near the spot. Afterwards upon a post mortem exami- 
 nation of the deceased, the blade of a knife was found broken in his 
 heart. Some of the witnesses testified to the identity of the handle 
 as that of the knife previously in possession of the accused, but there 
 was no evidence to the identity of the blade. The question remained, 
 therefore, whether the blade belonged to the handle, and when these 
 pieces came to be placed together, the toothed edges of the fracture 
 so exactly fitted each other, that no person could doubt that they had 
 belonged together, because, from the known qualities of steel, two 
 knives could not have been broken in such a manner as to produce 
 edges that would so precisely match.' An instance of a somewhat 
 similar character is mentioned of a trial before Lord Eldon of nlur- 
 der with a pistol. The surgeon had stated in his testimony, that the 
 pistol must have been fired near the body, because the body was 
 blackened, and the wad was found in the wound. It being asked by 
 the judge if he had preserved that wad, he said that he had, but had 
 not examined it; on being requested so to do, he unrolled it care- 
 fully, and on examination, it was found to consist of paper, constitu- 
 ting part of a printed ballad; and the corresponding part of the same 
 ballad, as shown by the texture of the paper and purport and form 
 of stanzas of the two portions, was found in the pocket of the ac- 
 cused, and tended to fix him as the person who loaded the pistol.* 
 
 3d. Presumptions drawn from poison.^ 
 
 In the case of death by poisoning, says Mr. Greenleaf,^ "it is not 
 necessary to prove the particular substance or kind of poison used ; 
 nor to give direct and positive proof what is the quantity which 
 would destroy life;* nor is it necessary to prove that such a quantity 
 
 1 Bemis' Webster's case, p. 466. * Ibid. 
 
 3 On this point the following authorities may be consulted : Mittermaier, Deutsch. 
 Straf. s. 124 ; Henke, Lehrb. s. 627; Meckel, Lehrb. s. 145 ; Ann. d' Hygiene et de Med. 
 Leg. Juellet, 1830, p. 365; Devergie Med. Leg. i. p. 445; Wildberg, Rhapsodien aua der 
 gerichtl.; Arzneiwissenshaft, No. 8; Foder6 Med. Leg. iii. p. 449; Beck's Elements, ii. 
 p. 573; Briand et Bresson Med. Leg. p. 350; Eggert. der gewaltsaml Tod. p. 335; 
 Wurzur, Beitrag zur Lehre vom Giftmord Marburg, 1835 ; Oriila, toI. xvii. p. 5 ; Laf- 
 farge case, Raspail, Paris, 1840, &o.; Barse Manuel, Paris, 1845; Gengler, die verb, der 
 Vergiftung ii. p. 25 ; Barzellotti, question! di Medicina Legale (Bianchi's edition) p. 380 ; 
 Puccinotti Med. Leg. p. 196 — 255; Thomson, p. 477; Guy, For. Med. pt. iii.; Dean's 
 Med. Juris, p. 286 — 412 ; Taylor, Med. Juris, p. 5—161. 
 
 * 3 Greenleaf on Ev. s. 135. 
 
 s The observations of Mr. Lofft, on the testimony of men of science, are worthy of pro- 
 found attention. "In general," he says, " it may be taken, that when testimonies of 
 professional men of just estimation are affirmative, they may be safely credited ; but 
 when negative, they do not amount to a disproof of a charge otherwise established by 
 various and independent circumstances. Thus, on the view of a body after death, oa 
 
324 HOMICIDE. 
 
 was found in the body of the deceased. It is sufiScient, if the jury 
 are satisfied from all the circumstances, and beyond reasonable 
 doubt, that the death was caused by poison administered by the pri- 
 soner.^ Upon the latter point the material questions are, whether 
 the prisoner had any motive to poison the deceased — whether he had 
 the opportunity of administering poison — and whether he had poison 
 in his possession, or power to administer. To these inquiries, every 
 part of the prisoner's conduct and language in relation to the subject 
 are material parts of the res gesta, and are admissible in evidence.^ 
 But it is not necessary to prove that the poison was administered by 
 the prisoner's own hand; for if with intent to destroy the deceased, 
 he prepares poison and lays it in his way, and he accordingly takes 
 it and dies; or if he gives it to an innocent third person, to be ad- 
 ministered to the deceased as a medicine, which is done, and it kills 
 him; this evidence will support a charge against the prisoner as the 
 murderer.^ So, where a third person, who was directed by the pri- 
 soner to administer the dose, omitted to do so, and afterwards the 
 poison was accidentally administered by a child, and death ensued ; 
 this was held sufficient to support an indictment against the prisoner 
 as the sole and immediate agent in the murder.* 
 
 In inquiries falling under this head, great caution is necessary; 
 and the first step is to secure the most skilful professional aid. In the 
 German practice, the prosecuting officer, at the moment of suspicion, 
 is required to enlist the co-operation of good chemists, whenever a 
 chemical analysis is necessary;* and for the pathological diagnosis, 
 a professed forensic physician.* 
 
 The inquiry, which should not be abandoned merely on the strength 
 of the declaration of the physician attending during the last illness 
 of the deceased that no poison was administered,' is threefold. 1. To 
 
 suspicion of poison, a pliysiciau may see cause for not positively pronouncing that the 
 party died by poison ; yet if the party charged be interested in the death ; if he appears 
 to have some preparation of poisons, vrithout any probable just motive, and this secretly ; 
 if it be in evidence that he has in other instances brought the life of the deceased into 
 hazard; if deceased has discovered an expectation of the fatal event; if that event has 
 taken place suddenly, and without previous circumstances of ill health ; if he has en- 
 deavoured to stifle inquiry by precipitately burying the body, and afterwards, on inspec- 
 tion, signs agreeing with poison are observed — -though such as medical men will not 
 positively affirm could not have been owing to any other cause — the accumulative strength 
 of circumstantial evidence may be such as to warrant conviction ; since more cannot be 
 required than that the charge should be rendered highly credible, from a variety of de- 
 tached points of proof; and that, supposing poison to have been employed, stronger 
 demonstration could not reasonably be expected to have been, under all circumstances, 
 producible. 1 Gilb. on EviJ., by Lofft, p. 302. 
 
 1 R. V. Sawwell, cited in Wills on Circum. Evid. 180, 181. Statements made by the 
 deceased, a short time previous to the alleged poisoning, are admissible to prove the 
 state of his health at that time. R. v. Johnson, 2 C. & K. 354. 
 
 2 See the observations of BuUer, J., in Donnellan's case; and of Abbott, J., in R. v. 
 Donnall; and of Rolf, B., in R. v. Graham; and of Parke, B., iu R. v. Tanell, cited in 
 Wells on Circum. Evid. 187 — 191; R. v. Geering, 18 Law Journ. 215. 
 
 » J. Kely. 52, 53 ; Poster, 399; 1 Hale, P. C. 616; R. v. Nicholson, 1 East, P. C. 346. 
 
 1 R. u. Michael, 9 C. & P. 366. 
 
 6 Preuss. Crim. Ordu. s. 167; Baier, Crim. Ordu. s. 78 ; Wurt. St. P. 0. s. 108 ; Bad. 
 St. P. 0. 3. 107. For the analysis and references of this head, I am indebted to Mitter- 
 maier, Deut. St. s. 124. 
 
 » On the proper choice of chemical aid, see Barzelloti, c. i. p. 333 ; and Barse Ma- 
 nuel, p. 135. 
 
 ' Pfister, Criminalfalle, ii. p. 92. 
 
PRESUMPTION PROM POISONING. 325 
 
 discover tlie corpse of the deceased, and to ascertain by inspection 
 and by chemical analysis, whether a poisonous substance or traces of 
 the introduction of it are to be found upon the body.^ 2. To examine 
 the vessels and dishes found near the deceased, of which he made 
 iise,^ the substances he partook of during his illness, and those vomited 
 or ejected,^ with a view to the detection of traces of the poison. 3. 
 To ascertain carefully the symptoms of disease and death,'' in order 
 to ascertain whether the phenomena attending these, are such as are 
 commonly produced during the disease, at death, or subsequently, by 
 the application of poisons in general, or of some particular kind.^ It 
 must, however, be borne in mind, that many of the symptoms usually 
 produced by poisons cannot, with certainty, be considered conclusive 
 proof of death by their use, since they are often the result of other 
 diseases, as cholera, inflammation of the stomach, Ac.,** and it there- 
 fore becomes a duty to inquire whether the case is not one of this 
 description.' 
 
 As several kinds of poisons produce the same symptoms, it will be 
 sufficient for the physician to pronounce the existence of a poison 
 belonging to a certain class, if he is unable to specify the particular 
 kind employed.' 
 
 In order to an exact discovery of the symptoms as they occurred, 
 it is essential that there should be an examination of the inmates of 
 the house, particularly those who nursed the deceased, or were near 
 him in his illness, while the attending physician should be called upon 
 for an accurate report of the progress of the disease; and as the im- 
 portance of many questions to be asked on this point can only be 
 clear to a physician, it is important at the outset to obtain medical 
 counsel, not only as to the direct point of poisoning, but as to the 
 state of health of parties in the same family. This is particularly 
 important in those cases where the same symptoms shown by the de- 
 ceased, are either felt or feigned by others.' 
 
 In conducting the chemical analysis it will be necessary, 1. In 
 exhuming the body, supposing it to have been already buried, to 
 preserve portions of the soil in which it was laid, and of the earth 
 immediately adjoining the body, that they be analyzed, since recent 
 observations show that the soil is often impregnated with arsenic.'" 
 2. To preserve the specimens to be analyzed, in such a manner as 
 to protect them from all influences calculated to produce deception, 
 or lest poison be introduced into them by accident or artifice. 3. In 
 transmitting them to the hands of adepts, to reserve a portion, which 
 
 1 See note to Feuerbach Lehrb. s. 222 ; Helie Theorie de Code Penal, v. p. 334 — 341 ; 
 Barse Manuel, p. 234; Friedreich Handb. s. 1042; Gengler Verbi. der Vergiftun, ji. 
 p. 18; Pacinotti, p. 200; Richter; Strafrechtspflegl, i. p. B6. 
 
 2 Beck, p. 590. ' Meckel, s. 158; Eggert, i. p. 316. 
 
 *■ Pfister Criminalfalle, iv. p. 197; Friedreich, p. 1056; Meckel Lehr. b. 148; Henke 
 Lehr. s. 643. 
 
 5 Mittermaier, Deut. St. s. 124 ; Friedreich, p. 1069. 
 
 "Friedreich, p. 1095; Gengle, ii. p. 30; Thomson, p. 419; Taylor, Med. Juris, p. 41; 
 Puccinotti, p. 217. 
 
 ' Hitzig Zeifcschrift, 1827, vol. i. p. 1—162. 
 
 " Hitzig Zeitsehrift, No. 18, p. 402 ; No. 20, p. 461 ; No. 21, p. 208. 
 
 9 Mittermaier, Deut. St. s. 124. 
 
 10 Deyergie in the Annales d'Hygiene, No. 47, p. 165 ; Raspail, Memoire, p. 69. 
 
326 HOMICIDE. 
 
 may be wanted for a subsequent analysis;^ and to insure a careful 
 transportation,^ so that they reach the medical examiner without 
 amalgamation, with unbroken seal, and corresponding with the spe- 
 cimen to be given in the trial.^ 
 
 With regard to the discovery of poison in the body, late researches 
 have shown that many supposed indications of the presence of arse- 
 nic, as, for instance, obstructed decomposition,^ are not reliable, but 
 afford some probability, if carefully examined.* 
 
 In applying the veneficial test,* the" present European practice is to 
 analyze not only the substances found within and those ejected from 
 the stomach, but also all the other parts of the body; this particu- 
 larity resulting from the discovery that poisons, especially mineral 
 ones, may also find their way into the so called secondary courses of 
 the body, and be there detected. Recent investigations, also, have 
 shown it practicable,^ by means of the hydrogen contained in arsenic, 
 and the brown spots produced by igniting the gas, to determine the 
 presence of the poison. In estimating the value of this test, it must 
 be remembered, 1. That everything depends upon the observation of 
 the highest degree of exactness. 2dly. That the infusions used by 
 the chemists are often themselves impure. 3dly. That poison may 
 have been introduced into the body by the medicines taken during 
 the disease, which medicines should therefore be carefully examined ; " 
 or introduced by other circumstances, as, for instance, the soil in 
 which the corpse was laid,^ since it has been shown that poison may 
 be introduced into the body even after death." 4thly. That the 
 brown spots produced by the operation just mentioned, are liable to 
 be confounded with similar ones produced by antimony or other sub- 
 stances contained in the objects examined." 
 
 An exact report of the chemical analysis, and of all the proceed- 
 ings of the professional examiners, is necessary by the European 
 practice," and such a report, it cannot be too strongly urged, should 
 in this country also be exacted. The report should be directed to 
 the existence of the poison, its quality and quantity," the objects in 
 which it was discovered, whether in the stomach, in the evacuations, 
 or in the food or medicines used; and the probability of its having 
 been the cause of death. The fact of the homicide having been com- 
 
 ' Barse, Manuel, p. 161. ' Errors in the Laffarge case, Kaspail, p. 16. 
 
 5 Errors in the Laffarge case, p. 50. 
 
 ■• Feuerbach, Interesting Cases, i. p. 8; Eggert, p. 346; Bopp. Crim. Beitrage, i. p. 8. 
 ^ Burdaoh, p. 83; Friedreich, p. 1107. 
 
 6 Henke Lehrb. s. 654—673; Meckel, Lehrb. s. 176—196; Huenfeld die Chemie der 
 Eeohtsflege, Berlin, 1832; Thomson, p. 502 ; Friedreich, Handb. p. 1124; Devergie, 
 iii. p. 431. 
 
 ' Marsh in Edinburgh Journal, Oct, 1836, cited in Annalen der Pharraacie, vol. 63, 
 p. 702; Berzelius in Poggendorf s Annnlen, vol. 42, p. 159; and Annalen der Staats- 
 arzneik, by Schneider, vol. ir. No. 3, p. 133 ; Thomson, p. 551—553 ; Friedreich Handl. 
 p. 1146; Devergie, iii. p. 412 — 500; Visini, Boitrag. zur criminal reohtwissenchaft, iv. 
 p. 133; Taylor, p. 150, 152, 155; Guy, p. 158; Devergie in the Anuales d'Hygiene 
 Legale, 1840, No. 47, p. 141. 
 
 8 Devergie in the Annales, No. 47, p. 176. 
 
 9 Devergie, p. 163. '» Puocinotti, p. 248. 
 
 " Kaspail, Memoire, p. Ill ; Friedreich Central Arohiev. vol. i. p. 712 ; Vol. ii. p. 235 ; 
 Guy's For. Med. p. 460. 
 '2 Mittermaier, s. 124, &c. 
 IS Meckel Lehrb. p. 157, note; Pfister Criminalfalle, ii. p. 112. 
 
PRESUMPTION FEOM POISONING. 327 
 
 mitted by poison, must be determined by the considerations, 1. That 
 the failure to discover a poisonous substance in the body, does not 
 establish the non-administration of the poison. 2. That on the other 
 hand the presence of poisons in the food and other substances exa- 
 mined, affords no proof of the commission of the crime, since there 
 is no certainty that the poison actually entered the body. 3. That 
 even if the application of poison be established, it does not conclu- 
 sively demonstrate that the patient died of the poison.^ 4. In the 
 case of poisons that leave no trace in the body, and are not to be de- 
 tected by chemistry, it becomes necessary to ascertain the symptoms 
 of disease and death, and the condition of the corpse, with the ut- 
 most precision. In the case of Castaing, Orfila declared that he 
 could not determine whether the death of Auguste Ballet had been 
 produced by natural causes or by vegetable poisons. "The corpus 
 delicti is wanting, because the matter vomited is not forthcoming. 
 If that matter had been submitted to me, as well as the liquid con- 
 tained in the stomach, I could have given the most satisfactory proofs. 
 Two or three years ago it was a common error to suppose that certain 
 vegetable poisons left no trace, exclusive of any other symptom of 
 disease — that was even an axiom of legal medicine. At present, 
 chemistry has made great progress, and it is almost as easy to dis- 
 cover vestiges of vegetable as of mineral poisons."^ 
 
 To constitute a case on which a conviction can safely rest, it is im- 
 portant to show that a poison has been discovered in the body;^ and 
 this is carried so far in England and this country, that it would have 
 been difficult to have secured conviction for murder by poison, unless 
 the presence of the poison was chemically ascertained, although it 
 was not absolutely required that it be found in the body, though a 
 case of conviction occurred in Scotland, where a servant girl had 
 mixed some poisonous matter with gravy, and Dr. Christison was led 
 to suppose that poison had been swallowed, merely from the circum- 
 stance of two persons being taken ill nearly at the same time, after 
 partaking of the same food, and with symptoms which various kinds 
 of poison would produce ; though he said that this probability was 
 strengthened by the fact that the violence of the symptoms was in 
 proportion to the quantities of the suspected food taken."* More re- 
 cently Taylor lays down the principle, that while the chemical inves- 
 tigation should never be omitted, yet the detection of poison in the 
 body by means of the chemical analysis is not essential, but the of- 
 fence will be sufficiently proved, if established by the concurrent evi- 
 dence of the symptoms of the disease, the marks upon the body after 
 death, and other similar inferential testimony.' Guy lays peculiar 
 stress upon chemical investigations, and discovery of poison, if cor- 
 roborated by other proofs derived from symptoms and marks upon the 
 body.' Puccinotti places no reliance on the pathological observations, 
 and on the chemical ones only when all the conditions above cited are 
 fulfilled.^ The inference of poisoning is much strengthened where 
 
 1 Puccinotti, p. 250; Devergie, iii. p. 708; Mittermaier, Deut. St. s. 124. 
 
 2 Celebrated Trials, p. 110. 
 
 ' Devergie, Medicine Legale, i. 447 ; Hele, Theorie du Code Penal, vol. v. 341. 
 
 < Wills' Circum. Evid. 180; see 33 Am. Jur. 1. 
 
 6 Tavlor. 159. 6 Guv's For. Med. iii. 404 — 407. ' Puccinotti, 222, 253. 
 
328 HOMICIDE. 
 
 the analysis has brought to light traces from which the inference 
 of poison in the body may be drawn, unaccompanied by any possi- 
 bility of its introduction after death ;^ where the symptoms of dis- 
 ease and death concur in establishing the death by poison; and where 
 every doubt has been removed which might arise from the observa- 
 tion that the symptoms noticed were the results of other diseases, or 
 that the poison detected by the analysis entered the body in another 
 manner.* 
 
 In cases of poisoning it becomes important to inquire, in seeking for 
 the probable criminal, whether any party in the range of suspicion 
 procured poison, particularly of the kind which probably proved 
 fatal, shortly before the death of the deceased; whether such person 
 was acquainted with the preparation of poisons; whether he forced 
 himself into contact with the deceased, or out of the sphere of his 
 usual duties or habits, tried to administer meat or drink to the de- 
 ceased. It may, under such circumstances, be important to go far 
 back for the purpose of discovering who prepared the meats or had 
 access to the dishes, and such evidence is clearly admissible.^ There 
 are many cases where it may not be out of place to inquire whether 
 any members of the deceased's family were observed unaccountably 
 to abstain from the dishes previously poisoned, particularly if it be- 
 longed to the usual meal of the family, or was a favourite dish of the 
 deceased; whether there was any attempt to prevent others from par- 
 taking of them, or to induce the deceased from abstaining from them; 
 and very particularly, whether there was any effort to prevent a post 
 mortem examination, or to hide or destroy any remaining portions of 
 the food or drink of which the deceased partook, or any of the ves- 
 sels containing them; or whether there was an effort to throw unrea- 
 sonable obstacles in the way of the employment of a competent phy- 
 sician during the illness of the deceased. It is to be observed, in 
 concluding this subject, that the more nearly the poison found in the 
 body corresponds with that purchased or prepared by the prisoner, 
 the more vivid does the suspicion become.'' 
 
 4th. Presumptions drawn from materials appropriate to he converted 
 into instruments of crime. 
 
 At the earliest moment the situation and expression of the deceased 
 should be ascertained and noted as marks of anguish, of hurry, of dis- 
 turbance, besides marks of violence, may all tend to so elucidate the 
 question of suicide or homicide ; and though our own method of trial 
 would not make it just or decent to imitate the German practice of 
 making a cast of the deceased's face, yet experience teaches us that 
 the safety of human life requires that no details connected with the 
 appearance of the body and countenance, when discovered, should be 
 omitted. Thus, Mr. Amos, in his lecJtures,* tells us of a trial where 
 
 1 Barse Manuel, 265. 
 
 2 Friedreich, 1186 ; Barse Manuel, 167; Orfila in Friedreich's Central Archiv. vol. ii. 
 495; Taylor, 141. 
 
 3 See ante, p. 276, et seq. * 2 Mittermaier, Deut. St. J 124, ante, p. 295. 
 ' 8 London Med. Gazette, 578. 
 
 "There are many ancient testimonies,'' says Mr. Amos, (Great Oyer, 347,) " to the 
 existence of slow poisons, producing their fattJ effects after intervals of weeks or months, 
 
PRESUMPTION FROM MATERIALS, ETC. 329 
 
 the hypothesis of suicide was defeated by the fact, that while the 
 united result of medical experience is that prussic acid produces in- 
 stantaneous death, the deceased was found with a corked bottle in her 
 hand, from which five drachms had been taken, and with the bed 
 clothes composed about her person with elaborate precision. 
 
 Many points of inquiry under this head have been suggested by a 
 previous chapter, in which the presumptions drawn from extrinsic 
 mechanical indications are considered.^ Indications of such a cha- 
 racter are always admissible, and the facts from which they are to be 
 drawn should be carefully scrutinized by couAsel, whether charged 
 with the prosecution or defence of a supposed criminal. Of these fa- 
 miliar illustrations, are leaves from which poison could be concocted, 
 drugs peculiarly or exclusively suited for the purpose of adulterating 
 food, &c., or receptacles enclosing any thing of the kind, materials 
 for preparing weapons, &c. It is to be inquired in such cases, for 
 what use the accused was in the habit of making these materials, and 
 whether he was familiar or acquainted with the criminal purposes to 
 which they might be made subservient. Under this head also would 
 properly be considered the purchase of poisons under the pretence of 
 employing them for the destruction of vermin, and the question would 
 naturally arise, were they so employed ? A female convicted at the 
 Warwick summer assizes, August, 1821, of the murder of her uncle 
 by poison, alleged that she had bought' arsenic to poison mice, and 
 pointed to a mouse which she said had been killed by it, whereas it 
 was found that the mouse had not died from poison.^ Mr. Wills re- 
 
 as Plutarch, Theophrastus, Livy, Tacitus, and Aulus Gellius. In more modern times, 
 the like powers have been attributed to the Aqua Tophana, and the Succession Powder. 
 In 1659, the detection of a society of women at Rome, who had associated themselves 
 for the purpose of poisoning, created great alarm. In the year 1670, the Marchioness 
 Brinvilliers, who, among other victims, poisoned her own father and two brothers, 
 created a like sensation in Prance. An Inquisition, called the Chambre Ardente, was 
 established at Paris, for the purpose of watching the use of poison. By means of this 
 institution, two women, who dealt largely in poisons, La Vagren and La Voison, were 
 detected in 1680, and burnt alive. 
 
 The most famous poisoner of modern times, was a woman at Naples, by the name of 
 Tophana, the inventress of the Aqtia Tophana, which was administered in drops, propor- 
 tioned to kill within any particular time that might be required. This woman, who fled 
 from Naples in 1709, was visited as a curiosity at an asylum, 1730. She is stated to have 
 poisoned upwards of six hundred persons. 
 
 These celebrated adepts at poisoning became famous after the time of Somerset's trial ; 
 but shortly before that period, Shakspeare's writings show the general notion in England, 
 of the efficacy of slow poisons: 
 
 'Their great guilt. 
 Like poison given to work a great time after. 
 Now 'gins to bite the spirits.' 
 
 Tempest, Act III., sc. 3. 
 
 And the stories current in the reign of James I., of Catharine de Medicis, and of her 
 perfumer, Ren^, who had obtained the reputation of being able to convey poisons through 
 a variety of vehicles, as a jelly, or the smell of a rose, had probably possessed the minds 
 of the Peers who tried Somerset, with a belief that slow poisoning was a craft, which 
 was taught and practised. 
 
 In the present day, it may be doubted if a medical man could indicate with certainty 
 any poisonous preparation of which the effect should be fatal, but should, nevertheless, 
 be suspended for two months, or even a week. And, perhaps, good scientific testimony 
 could be produced, negativing the quality of being a slow poison, to any of Franklin's 
 drugs, unless indeed they be repeated in small doses for a considerable period of time." 
 
 1 See ante, p. 279, 280, &c. 
 
 ' K. V. Mary Ann Higgins, London Med. Gaz., vol. ix. 896; Ann. Register, 1831. 
 
330 HOMICIDE. 
 
 marks, that "possession of the instruments or means of crime, under 
 circumstances of suspicion — as of poison, coining instruments, combus- 
 tible matters, picklock keys, dark lanterns, or other destructive or 
 criminal weapons, instruments or materials, and many other acts of 
 apparent preparation for the commission of an offence, are important 
 facts in the judicial investigation of crime, though bare possession, or 
 other mere acts of preparation, without more conclusive evidence, are 
 not in themselves of great weight.'" 
 
 6 th. Presumptions drawn from detached circumjacent bodies. 
 
 It is important in this relation to consider, — 1, The position of the 
 deceased; 2, Traces of blo6d; and 3, Liability of the deceased to at- 
 tack. With reference to the first of these points, the position of the 
 deceased and the appearance of the floor or bed on which a person 
 murdered is found, it is to be inquired whether any peculiarity in the 
 position of the body determines the homicide to be the act of another, 
 as in the case just cited : whether the hands or feet are tied; whether 
 the floor, the bed, or the ground, present the appearance of a recent 
 scuffle ; what footsteps are noticed leading to or from the locus in quo, 
 together with their dimensions and other peculiarities which should 
 be carefully and immediately noted. ^ 2. Traces of blood near the 
 corpse or in the way leading to or from it, or marks or spots of blood 
 upon the person or clothes of the accused, should be carefully exa- 
 mined with a view to the solution of any or all of the following inqui- 
 ries: 1. Were the wounds self-inflicted, or the act of another? This 
 may in some cases be determined by observing that blood is visible 
 in spots or pools in places where it could not have been if the death 
 had been the result of suicide; or that there is no communication be- 
 tween the blood on the floor and the corpse; as if the body had been 
 removed by another from the spot on which the deed was committed.^ 
 (2.) Was the deceased erect or lying down when the wounds were re- 
 ceived ? It will throw much light on this question if the spots of blood 
 on the adjoining wall, or any other erect body near the locality be exa- 
 mined, as the direction from which they came may frequently be deter- 
 mined from the manner in which they have spattered. Prints of bloody 
 hands may frequently be observed, and impressions of bloody feet, 
 which give information as to the direction taken by the murderer 
 after the commission of the act. Care should be taken, however, not 
 to create indicia while searching for them." A young man in France 
 was found dead in his bed, with three wounds in the front of his neck. • 
 The physician, who was iirst called to see him, had unknowingly 
 stamped in the blood with which the floor was deluged, and had then 
 walked into an adjoining room, passing and repassing several times. 
 The consequence of this was that suspicion was raised against a party, 
 who narrowly escaped being committed to take his trial for murder. 
 It subsequently turned out to be a clear case of suicide.* The exa- 
 mination of spots supposed to be blood upon the person and clothes of 
 
 ' Wills on Circum. Et. 46; see ante, p. 318. 
 
 2 Burnett's Crim. Law of Scotland, Trial of Richardson, p. 524. 
 
 ' State Trials, vol. xiv. p. 1324; Beck's Med. Juris, p. 548. 
 
 * Beck's Med. Juris. 786. * Taylor's Med. Juris, vol. i. p. 872. 
 
PRESUMPTIOSS DRAWN FROM LIABILITY TO ATTACK. 331 
 
 the suspected party is always of the greatest importance, for although 
 this is generally attempted to be explained away by attributing it to 
 an accidental cut or bleeding at the nose, such excuses are commonly 
 easy to disprove if it be satisfactorily ascertained that the spots are 
 caused by blood. On this subject the evidence of Dr. Wyman, in the 
 Webster case, already referred to, is entitled to much weight.^ 
 
 Gth. Presumptions drawn from liability to attack. 
 
 This may arise from three different causes, 1st. The possession of 
 money or valuable articles. 2d. An old grudge, or other cause, such as a 
 previous quarrel; and 3d. Jealousy. In the first of these cases the ques- 
 tion should be asked,' was the fact that the deceased was in the posses- 
 sion of money, particularly if the amount be considerable, known to any 
 one; and if so, to whom ; was the money found on the corpse or was it 
 
 1 "When blood exists, in large quanties, upon furniture, clothing, &c., a general in- 
 spection, with the aid of chemistry, will determine its presence with sufficient accuracy. 
 It is, however, not nnfrequently found in too small quantities for chemical analysis; and 
 it has happened that the statement of a police-oflicer, or other non-professional specta- 
 tor, has been admitted as evidence that the stains in question were those of blood, when 
 the bare announcement by a physician even, should be taken with the greatest caution. 
 There are abundant instances, in the treatises on medical jurisprudence, of vmfounded 
 charges and unjustifiable arrests having been made, in consequence of an error at the 
 outset, as to the true nature of stains assumed to be blood. It is, therefore, in the 
 highest degree important that examinations should be conducted with the greatest care, 
 and that another sign than, colour (which has been abundantly proved to be fallacious) 
 should be obtained. 
 
 "Recently drawn blood, when placed under the microscope, is at once recognised by 
 the presence of a vast number of flattened discs, (commonly, though inaccurately desig- 
 nated as ' blood globules,') of a red colour, with a single central spot, interspersed among 
 which may be seen, in far lesser numbers compared with the discs themselves, rounded, 
 colourless globules, containing each three or four central granules. These last are 
 known to J)hysiologists as 'lymph corpuscles,' or 'lymph globules,' proper. If a drop 
 of blood be dried on a piece of glass, painted wood, or other surface, and a small por- 
 tion (a thin scale, scraped off with a knife, is the most desirable form) be placed under 
 the microscope, and water added to it, it soon becomes softened, very slightly tinges the 
 water around it with a pale reddish colour, and becomes more or less transparent, ac- 
 cording to its thickness. After a careful inspection, the observer will seldom be able to 
 find any traces of blood-discs, but transparent, colourless spots will be seen scattered 
 through the mass, which, with a high power, (say 800 diameters,) may be seen to have 
 a globular form, and to contain granules — usually three or four. These are the lymph 
 corpuscles. If a drop of blood be rubbed on a piece of glass, as, by drawing a bloody 
 finger across it, so that the discs are deposited in a single layer, and then allowed to dry, 
 they are readily recognised even in the dried state ; but when allowed to dry in masses, 
 I have failed to determine their presence. The lymph globules, on the contrary^ may 
 be softened out after they have been dried for months, and their characteristic marks 
 readily obtained. I have examined blood which has been dried for six months, and have 
 found it easy to detect them. It is not improbable that they may be detected after the 
 lapse of years, if the blood shall have Iseen preserved dry, so as to prevent decompo- 
 sition. 
 
 " The evidence that the stains on the pantaloons and slippers of Professor Webster, 
 were of blood, was derived wholly from the microscope. And the presence of the lymph- 
 corpuscles, combined with the colour, and other and less charactei-istio microscopic ap- 
 pearances of the blood, was the basis of the opinion given at the trial. 
 
 "While the presence of lymph-corpuscles, combined with the ordinary and more 
 obvious appearances of blood, is regarded as the diagnostic sign of blood, yet it should 
 never be lost sight of, that it does not give an absolute sign that the blood is never of 
 the human body. The blood of some animals so closely resembles that of man, in its 
 microscopic^ characters, that, as yet, no positive means exist by which they may be dis- 
 tinguished. The opinion that a stain of blood in question is human, or animal, must 
 rest upon improbabilities." (Statement by Professor Wyman, reported in Bemis' Web- 
 
 — nn t\^ « \ 
 
332 HOMICIDE. 
 
 missing; is there evidence that any suspected party, suddenly and 
 from an unexplained cause, became possessed of a large sum; paid 
 long standing and pressing debts of considerable amounts, or remark- 
 ablyincreased his expenditures? Pedlers, especially itinerant venders 
 of jewelry and other valuable articles, are from this cause rendered 
 peculiarly liable to attack, and it is of importance to inquire in cases 
 of this description, who was last seen in company with the deceased, 
 or with any of the articles known to have been in his possession.' 
 
 Where the absence of other motive makes it probable that the 
 cause was an old grudge, or of jealousy, the inquiry then arises, -with 
 whom the deceased has had a recent or violent quarrel, or who from 
 any other relation or action of the deceased toward him would proba- 
 bly be tempted to seek the death of his real or supposed enemy ; and 
 who has harboured feelings of jealousy, or who has had cause to harbour 
 such feelings. In connection with this, evidence is always admissible, 
 of threats and declaration; and it is expedient, therefore, to consider 
 who ha.s used such declarations, and what has been their character. 
 
 In England and this country, "jealousy" is a motive which, in 
 cases of homicide, is but rare, when compared with those arising from 
 the relation of debtor and creditor. When a homicide takes place, 
 where this class of motives may be supposed to have operated, it is 
 necessary to inquire whether there were any debtors of the deceased, 
 in sums which tliey were unable to pay; and whether their dealings 
 with their creditor had been marked with such urgency on his part, 
 and embarrassment on theirs, as to make his death an object to them 
 of relief. Mr. Attorney General Clifford, in his speech in the Webster 
 case, says in illustration, " Take the case of Colt in New York, for the 
 murder of Adams; there was an indebtedness, and the victim was be- 
 guiled by an appointment into the place of business of his murderer, 
 and slain for the debt; or the case in New Jersey, of Robinson, who 
 killed his creditor, Mr. Suydam, and concealed his remains in his 
 cellar, and who by a strange concurrence of circumstances was detect- 
 ed, tried and convicted, and then confessed and was executed, is an- 
 other instance.* 
 
 The Webster trial itself furnishes many suggestions which, in this 
 class of cases, should be pursued. Was the defendant at the time des- 
 perately insolvent? Was his social position such as to make appear- 
 ances of great moment; and had he been in the habit of playing at 
 heavy odds to keep them up? Were the evidences of debt of such a 
 character as if carried on the person could have been easily destroyed ; 
 and was there any attempt to induce the deceased to bring them with 
 him to the spot appointed for the interview? What, in other words, 
 were the probabilities of the debt being cancelled by the death; for 
 upon this tlie question of intention would depend? Should it be shown 
 that the debt was one of record, the presumption would be much more 
 in favour of manslaughter, arising from sudden irritability on being 
 pressed with the debt, than it would be should it appear that the de- 
 ceased had the sole evidences of debt on his person; that he had been 
 invited to bring them, and that they were afterwards destroyed. All 
 this is evidence, and so are those circumstances from which a coun- 
 
 1 Wills on Ciroum. Ev. 237—243. 2 Bemis' Webster case, 421. 
 
PRESUMPTIONS IN INFANTICIDE. 333 
 
 tervailing presumption could be drawn, such as the fact that the de- 
 ceased had independent securities for the debt, on which the defen- 
 dant was liable, or that the defendant's circumstances were not such 
 as to render the discharge of the debt of paramount importance. 
 
 1th. Presumptions in infanticide. 
 
 To support an indictment for infanticide, at common law, says Mr. 
 Greenleaf,^ "it must be clearly proved that the child was wholly born, 
 and was born alive, having an independent circulation and existence." 
 Its having breathed is not suificient to make the killing amount to 
 murder; as it might have breathed before it was entirely born;^ nor 
 is it essential that it should have breathed at the time it was killed, 
 as many children are born alive, and yet do not breathe for some time 
 afterwards;^ neither is it material that it is still connected with the 
 mother by the umbilical cord, if it be wholly brought forth, and have 
 an independent circulation.'' But in all cases of this class, it must be 
 remembered, that stronger evidence of intentional violence will be 
 required than in other cases; it being established by experience, that 
 in case of illegitimate birth, the mother, in the agonies of pain or de- 
 spair, or in the paroxysm of temporary insanity, is sometimes the cause 
 of the death of her offspring, without any intention of committing such 
 a crime ; and that therefore mere appearances of violence on the child's 
 body are not sufficient to establish her guilt, unless there be proof of 
 circumstances, showing that the violence was intentionally committed, 
 or the marks are of such a kind as of themselves to indicate inten- 
 tional murder.* 
 
 1. Condition of the body of the child. 
 
 Where a woman is accused of infanticide, or confesses to have given 
 birth to a child, the first duty is to make search for the dead body of 
 the infant, and if this be discovered under circumstances calculated 
 to excite suspicion, then to resolve all questions of place and surround- 
 ing locality, and examine the body with particular reference to 1, 
 the condition in whicli it is found; 2, the degree of maturity of the 
 child ; 3, the length of time it remained alive after birth ; 4, how long 
 since its birth took place; 5, the lapse of time since death; 6, the 
 question of its having been born alive; 7, with adequate powers of 
 vitality; and 8, the symptoms bv which the death may be accounted 
 for.^ 
 
 1 3 Green, on Ev., 137. ' K. „. Enoch, 5 C. C. P. 539; R. v. Poulton, Id. 329. 
 
 8 R. ■<.. Brain, C. C. & P. 349. 
 
 * R. V. Reeves, 9 C. C. P. 25; R. v. Crutcliley, 7 C. C. P. 754; Wills on Cir. Evid. p. 
 204; Regina v. Trillbe, 2 Mood. C. C. 260; 1 C. & M. 650. If the child be intentionally 
 mortally injured before it ia born, but is born alive, and afterwards dies of that injury, 
 it is murder, 3 Inst. 50; 1 P^uss. on Crimes, 485; R. v. Senior, 1 Mood. Cr. Cas. 346; 
 4 Com. Dig. Justices, M. 2, p. 449, ante, 93.. 
 
 6 Allison's Prin. Crim. Law, p. 158, 159; Wills on Cir. Evid., p. 206, 207. 
 
 6 On this head Mittermaier refers to the following works: — Guy's For. Med. p. 118; 
 Dean's Med. Juris, p. 123, 198; Taylor's Med. Juris, p. 435; Buettner, Vollstaend, 
 Kenntniss, wie durch anzustellende, Besiohtigung, &c., Konigsberg, 1771; Camper, 
 Frankfort, 1777, (Translated by Herbell;) Vater, Vit. 1735; Jaeger, Tub. 1780; Hutchin- 
 son, London, 1820; Capuron Med. Leg. relative a I'Art des Acoouchements, Paris, 1821; 
 Med. Leg. ou Considerations sur I'lnfanticide, &c., par Lecieux, Renard Laisne, Paris, 
 1819; Mons. diss. Med. Leg. on Infanticide, Lovan. 1822; Gans, von dem Verbrechen 
 
334 HOMICIDE. 
 
 On the first head, the external formation of the parts, the degree of 
 maturity at birth,' the orj^ans, the length and weight of the child, 
 should at once be determined with the greatest accuracy, although in 
 these cases also, particularly in reference to the point Inst mentioned,'^ 
 experience has demonstrated the impossibility of establishing a uni- 
 versal standard. 
 
 With reference to the question whether or not the child was born 
 alive, which, as will be seen, is one of decisive importance in deter- 
 mining the grade of the offence,^ if life is not proved by the confession 
 of the mother, or the testimony of witnesses, recourse is to be had to 
 certain tests'* applied to the lungs, the organs of digestion, the liver, 
 and the bladder. It is, however, to be observed that great caution is 
 necessary in receiving the testimony afforded by the confession of the 
 mother. In one case, under the editor's observation, the mother in 
 the agony of remorse, thought that she had observed the child move, 
 and so declared, when it was indisputably shown that the child was 
 dead before birth.' The test by the bladder rests upon the assump- 
 tion that a discharge of urine cannot take place without the action of 
 the lungs.® The test by suggillation proceeds on the supposition that 
 a continued circulation of the blood is necessary to any congestion.'' 
 Although these tests furnish but probabilities, no trial for infanticide 
 should be suffered to take place until they are all scrupulously applied. 
 The test by the lungs, in particular, is indispensable; and here again 
 a distinction is to be drawn between, 1. The hydrostatic test (by float- 
 ing.) 2. The hemorrhal test of Plouquet, which has regard to the 
 relative weight of the lungs to the whole body, and the alteration pro- 
 duced in that relation by the act of breathing, as, one to fifty-five where 
 the lungs have inhaled, and as one to seventy where they have not.' 
 3. Daniel's test, which principally takes into account the absolute 
 gravity of the lungs, and the other changes produced by respiration, 
 as the inflation of the lungs, and expansion of the chest.' These tests 
 
 des Kindevmord, Haaover, 1824; Devergie, Med. Leg. i. p. 186, 255; Siebentarr, 
 Handb. ii. p. 8, 626 ; Friedreich, Handb. i. p. 709 ; Schurmajer, Ann. der Staatsarznei- 
 kunde, vol. x., p. 417; Barzelloti Mod. Leg. (Bianchi's ed.) Milan, 1839, vol. i. p. 318, 
 •with notes by Bianchi, beginning at p. 454; Oi-fila, Med. Leg. p. 117, vol. 2, 1848. 
 
 * Meckel Lehrb. s. 244; Henke Lehrb. s. 80; Devergie Medicine Legale, i. p. 190; 
 Mende ii. p. 242; Friedreich, Handb. p. 113; Guy (Am. ed.) p. 122; Orfila, Med. Leg. 
 p. 154, vol. 2. 
 
 2 Mende, Handb. ii. p. 294; Meckel Lehrb. s. 444; Beck, Elements, i. p. 176; Orfila, 
 Med. Leg. p. 181; Guy (Am. ed.) p. 122; Annales D'llygiene, Apr. 1831; Ann. D'Hyg. 
 1842, p. 343; Henke's Zeitschrift, 1841, ii. p. 2.S5. 
 
 3 Poet, p. 358, 9-1, ante, p. 286. 
 
 * Buettner Anweisung, s. 54, 66; Henke, Lehrb. s. .".09, 515; Henke Abhandlung, vol. 
 ji. No. 3, and vol. v. p. 128; Gans vom Kindcrmord, p. 108, 135; Orfila, i. p. 292; De- 
 vergie Med. Leg. vol. i. p. 202, 224; Schneider, Annalen der Staatsarzneikunde, ii. b. 1, 
 p. 35, vi. p. 195 and 601, vii. p. 444, viii. p. 679, x. p. 424; Barzelloti Med. Leg. i. p. 
 324; Thomson, p. 130; Guy For. Med. p. 123; Taylor Med. Juris, p. 440; Puccinotti, 
 p. 78; Taylor (Am. ed.) p. 359; Orfila, ii. p. 172. 
 
 5 See Klein's Annalen, xviii. p. 171. 
 
 6 Mende Handb. pt. i. p. 201 ; Henke Lehrb. s. 566, 568. 
 
 ' Mende, Handb. i. p. 215; Henke, Lehrb. s. 569, 670; objections to the test by the 
 bladder in Mende, Handb. iii. p. 244; Henke, Abhandl. Medicin, i. p. 24; Meckel, Lehrb. 
 s. 269; Friedreich, Handb. p. 778; to the suggillatory test in Mende, Handb. iii. p. 137; 
 Henke, Abh. i. p. 28; Friedriech, p. 774. 
 
 8 Friedriech, p. 822. 
 
 9 Meckel, Lehr. s. 252; Friedreich, p. 822; Vorsehlag zur neuen hydrostat. Lungen- 
 probe, Vienna, 1821 ; Wildburg, Ncuer Vorsehlag zur ollstaend, an stellung der Luu- 
 
PRESUMPTIONS IN INFANTICIDE. 335 
 
 are based upon the assumption that a new-born child can on]y breathe 
 after it has left the womb; that the first breath drawn is the begin- 
 ning of life, and is to be detected by the changes it produces upon 
 the lungs in point of colour/ absolute weight,^ relation to the other 
 organs, and specific gravity, the influx of the atmosphere causing 
 them to float. Rigid investigations into the nature of the pneobio- 
 mantic test have elicited many strong arguments against its sufficiency;' 
 and although undue importance has been attached to several of them, 
 particularly to that derived from the so-called vagitus uterinus, i. e. 
 the cry uttered by a child in the mother's womb, before the birth is 
 completed,* which, from the extreme rarity of the occurrence,' is not 
 entitled to serious consideration ;° yet as the symptoms detected 
 by the hydrostatic test are not necessarily the effect of extra uterine 
 life in the child, but may also be produced by artificial inflation,^ and 
 by decomposition,' it is clear that this test is of no value,' since child- 
 ren have lived many hours and yet but a few vesicles were developed,^" 
 except where great care in conducting the examination is established, 
 every doubt on the score of artificial inflation and decomposition ex- 
 cluded, and the result found to corroborate the inferences in favour 
 of the life of the child, which are to be legitimately drawn from the 
 other circumstances brought to light by the investigation." At all 
 
 genprobe, Berlin, 1822 ; Wildberg. Darst. der Lelire von der pneobiomant. Leipsic, 1830 ; 
 Puccinotti, Med. Leg. p. 85; Orfila, ii. p. 173; Taylor (Am. ed.) p. 359; Guy (Am. ed.) 
 p. 150. 
 
 1 Baetter Anweisung, p. 85; Ibid, contra Schmidt, Versuohe und Erfahrungen aneber 
 die Lungenprobe, p. 240; Mende Handb. i. p. 190; (Juy (Am. ed.) p. 151; Taylor, 359; 
 Ed. Med. and Surg. Journal, xxvi. p. 367; Orfila, ii. p. 184, 175. 
 
 ^ Med. Leg. ou considerat sur I'Infanticide, par LCcreiux, p. 44'; Annalen der Staats- 
 arzneikunde, viii. p. 679; Die. de Medicine, tom. xvi. p. 323; Guy (Am. ed.) p. 153; 
 Fodere Med. Leg. tom. iv. p. 484, (2d ed.); Devergie, tom. i. ; London Lancet, Oct. 
 1842; Orfila, ii. p. 175; Plouquet Test, Med. Leg. i. 55-6; Ann. D'Hygiene, 1835, p. 
 485; and Med. Guzet, 1843, p. 208. 
 
 ' Schmitt Neue Versuche und Erfahrungen ueber die Lungenprobe, Vienna, 1 806 ; 
 Henke Eevision der Lehre yon der Lungenprobe, Berlin, 1811, vol. ii. No. 3, and Henke 
 Abh. V. p. 128; Henke, in the "Zeitschrift fur Arzneikunde," 1821, No. 3 and 4; Henke 
 Lehrb. s. 511, 564; Meckel, Lehrb. s. 262, 572; Olberg, diss, de dooimasia pulmon. 
 hydrostat, Halle, 1791; Mende, Handb. iii. p. 480, &c. ; Gans, vom Kindermurd, p. 110, 
 126; Archiv. des Crim. R. vii. p. 502, 522; Ann. D'Hyg. and Med. Leg. Apr. 1831, p. 
 406; Devergie, i. p. 581, 694; Friedreich, Handb. p. 788; Barzellotti Med. Leg. i. p. 
 828; Ann. des Staatsarzneik, ii. p. 35, vi. p. 195; Friedreich, Centralarchiv, vol. i. p. 
 387; Guy For. Med. 128; Taylor, p. 454; Orfila, ii. p. 187, and objections, i. p. 188; 
 Ann. D'Hyg. 1837, p. 437; also, 1841, p. 429; Brit, and For. Med. Eev. Jan. 1842; Dr. 
 Dane's Med. Gazette, vol. xi. p. 1022. 
 
 * Henke Abh. ii. p. 117; Hufeland Journ. der Prac. Heilkunde, 1823, No. 2, p. 89; 
 Schmitt, Versuche, p. 159; Mende Handb. iii. p. 290; Hitzig's Zeitschrift, No. 1, p. 
 146, &c ; Devergie Med. Leg. i. p. 204 ; Bianchi's Notes to Barzellotti, p. 473 ; Ornla, 
 ii. p. 501. 
 
 * Schuermayer in Annalen, p. 126. 
 
 * Friedreich Hand. p. 804; Thomson, Gerichtl Arzneik. p. 131. 
 
 ' Henke, Abh. ii. p. 147; Schmitt, Versuche, p. 177; Mende Handb. iii. p. 491 ; Eg- 
 gert, p. 241 ; Beck, p. 253; Friedreich, p. 498, contra, Schuermayer in Annalen, p. 439; 
 Thomson, p. 239; Guy, p. 144; Taylor, p. 461. 
 
 8 Mende Handb. iii. p. 494; Henke Abh. ii. p. 152; Beck, Elements,. i. p. 259; Thom- 
 son, p. 237; Friedreich, p. 795; Guy, p. 135; Taylor, p. 449; Puccinotti, p. 90. 
 
 9 Schmitt, Versuche, p. 216; Lecieux Med. Leg p. 36, 58; Bernt. Vorschlag, p. 18; 
 Henke Abh. ii. p. 134 — 141 ; Remer in Henke's Zeitschrift fuer Staatsarzneik, vol. i. 
 No. 1, p. 64; Hitzig's Zeitschrift, No. 20, p. 313, contra, Gans Zeit. c. 1, p. 528—540; 
 Friedreich, Central Archiv, vol. i. p. 306 ; Puccinotti, p. 96. 
 
 10 Orfila, ii. p. 203 ; Guy's Hospital Reports, vol. v. p. 355. 
 
 " Thomson, p. 245; Mende, die Menschliehe Frujuht, p. 116; Mittermaier, Archiv. 
 
 . Juris, p. 472, 467. 
 
336 HOMICIDE. 
 
 events, it goes to prove only the respiration, and not the extra uterine 
 life of the child; and in this connexion it is important to consider the 
 cases in which the child when born was not really dead, but prevented 
 from breathing by exhaustion, or the accumulation of phlegm in the 
 windpipe.! The fact that the child did not breathe will not warrant 
 the conclusion that it did not live, for the specific gravity of the lungs 
 may be affected by disease.^ Of still greater importance is the ob- 
 servation that respiration, more or less perfect, may take place during 
 delivery,^ for the child may have died in the course of a protracted 
 birth;" and hence it does not follow that the child lived out of the 
 mother's womb. Even with all the improvements recently proposed, 
 this test can never afford conclusive proof of the extra uterine life of 
 the child,' but will only serve where the conditions above stated are 
 fulfilled to corroborate others.^ The present inclination of the com- 
 mon law authorities, as has already been observed,' is, that in order 
 to make homicide, an independent circulation and existence should 
 be affirmatively proved, mere respiration during the course of birth 
 not being enough. 
 
 In examining the question of adequate vitality,^ it will not suffice 
 to determine that the child was at such a state of maturity as would 
 sustain life out of the womb,' but the possible existence of any mal- 
 formation, (as fissures in the spine, or absence of a skull,)'" which by 
 the laws of nature would take away the capacity of living," must be 
 looked to. Had such a test been applied, in more than one recent 
 case, great expense and much public time would have been spared ; 
 and it is due to the supposed offender that it should be in all instances 
 attended to before a trial is gone into. 
 
 To establish the proofs of the recent birth of the child, as well as 
 to determine the grade of offence at which the indictment is to strike,'^ 
 it is a primary duty to fix with accuracy, both the time at which it 
 was born and when it probably died. 
 
 (2.) The person suspected. 
 
 With regard to the person suspected of infanticide, the inquiry is 
 whether the woman supposed to be the mother was pregnant and de- 
 livered at a time corresponding with that of the birth of the child, 
 and under circumstances tending to substantiate the suspicion that 
 
 ' Henke, Abh. ii. p. 103; Meckel Lehrb. s. 265; Taylor, 458. 
 
 2 Friedreich, 790. 3 Taylor, 455. 
 
 * Bianchi, p. 672; Friedreich, p. 80.3. 
 
 5 Henke Abh. t. p. 142; Orfila, i. p. 341; Devergie Med. Leg. i. p. 221; Friedi-eich 
 p. 827—881. 
 
 « 2 Mittermaier, Deut. St. s. 123. ' Ante, p. 286, post, 358, 359. 
 
 » Taylor's Med. Juris, p. 851 ; Gans, von Kindermord, p. 04, 309 ; Mittermaier Neue 
 ArcMv. vii. p. 416; Devergie, Med. Leg. i. p. 388; Feuerbach's Lehrb. s. 237, note. 
 
 9 Anmerknngen zum baier Strafgesetzbuche, ii. p. 34; Henke, Abh. iii. p. 265; Tay- 
 lor's Med. Transac. p. 352; Guy's For. Med. 177, 183; Ilelie Theorie du Code Penale, 
 vol. V. p. 194. 
 
 i» Guy's For. Med. p. 183 ; Meckel Lehrb. p. 346. 
 
 11 Mende, Hand. ii. p. 328, 365. 
 
 12 Mittermaier, Arohiv. vii. p. 304—316; Henke, Zeitschaf. fuer Staatsarzneik, 1827, 
 No. 2, p. 394; Feuerbaoh, s. 287, note; Briand et Bresson Medicine, p. ]67; Olivier 
 Ann. d'Hyg. torn. xvi. p. 2; and Helie, v. p. 169; Bianchi, i. p. 455, notes; Taylor's 
 Med. Juris, p. 394. 
 
INFANTICIDE — CAUSE OP DEATH. 337 
 
 an offence has been committed against it. Where such suspicion is 
 on good grounds excited, the proper course is for the officer charged 
 with the investigation of the oifence, to tender to the person accused 
 the opportunity of an immediate medical examination to be conducted 
 by professional examiners if possible. In a trial in 1840, in Phila- 
 delphia, for this offence, the want of such a precaution was pointedly 
 brought to notice by evidence introduced by the defence, that the for- 
 mation of the female, who was a voluntary witness for the prosecution, 
 was such as made the destruction of the child ew ventre sa mere neces- 
 sary; and had it not been for an unexpected adjournment which en- 
 abled a medical examination to be had, the defendant would have 
 been acquitted. In such an examination it is important to ascertain 
 whether, and when the woman gave birth to a child, and whether in 
 cases of abortion, there is any such mal-formation as made an abor- 
 tion necessary.^ 
 
 The fallaciousness of the proofs of virginity,^ and that of the signs 
 of pregnancy,' in general, in particular of a recent delivery, on which 
 Orfila remarks, that it is difficult to determine whether a woman has 
 given birth to a child eight or ten days after, and often still more 
 difficult in cases of abortion," should throw, however, great caution 
 around the collection and reception of this species of evidence, since 
 the present tendency of medical authority is that the apparent signs 
 of a recent delivery may also be the consequence of other diseases; * 
 where, therefore, the accused denies the delivery, and refers to a 
 disease as the cause of her condition, an inquiry must be had into the 
 truth of her allegation. 
 
 (3.) Cause of death.^ 
 
 Starting with the position that the life of the child after the birth 
 is no ground for supposing that its subsequent death was brought 
 about by violence on the part of the mother, it should be observed, 
 that even where appearances go to show a violent death, the prose- 
 cution by no means possesses such conclusive testimony as to relieve 
 it from further investigation, since the cases are numerous where the 
 death is shown to have been caused during the travail by fortuitous 
 circumstances, as, for instance, suffocation,'' fracture,' change of the 
 situation of the mother,' or by some omission, for which the mother 
 
 1 Meckel, Lehrb. der Gerich. Med. s. 324—329. 
 
 2 Mende, Handb. iv. p. 420—450 ; Beck's Elera. i. p. 77; Friedreich, Handb. p. 261 ; 
 Guy's For. Med. p. 68; Dean's Med. Juris, p. 27. 
 
 « Henke, Lehrb. i. s. 186—191; Meckel, Lehrb. s. 535; Mende, Handb. iv. p. 516; 
 Beck, i. p. 114; Mittermaier, Neue Archiv. des Criminals, vol. x. p. 380 ; Devergie, Med. 
 Leg. 1. p. 161; Friedreich, p. 318. 
 
 * Orfila, i. p. 273 ; Henke, Lehrb. s. 342; Capuron, c. i. p. 128 ; Mende, Handb. it. 
 p. 680—712; Beck, p. 147; Hitzig, Zeitschrift, No. 20, p. 234; Devergie, c. i. p. 171—177. 
 
 ^ Devergie, Med. Leg. i. p. 174; Friedreich, p. 336; Orfila, vol. i. 
 
 ' See, generally, Siebenhaar, Handb. p. 713; Guentner, Kindesmord, p. 47; Annaleft 
 d'Hyg. Leg. 1840, No. 48, p. 341 ; Taylor, p. 487; Orfila, vol. ii. p. 251. 
 
 ' Henke, Ala. i. p. 71; Mende, Handb. i. p. 230; Capuron, p. 340—356; Meckel, 
 Lehrb. p. 386. 
 
 ' Henke, Abh. i. p. 52 : Mende, Handb. i. p. 149 ; Mittermaier, Neue Archiv. des 
 Crim. B. vii. p. 631 ; Mende, des Fruchtkind, p. 95 ; Friedreich, p. 719; Puccinotti, 
 Med. Leg. p. 99 ; Taylor, p. 487; Orfila, vol. ii. p. 253. 
 
 ' Mittermaier, Archiv. ii. p. 648 — 651 ; Devereie, Med. Leg. 1. p. 246. 
 
338 HOMICIDE 
 
 cannot be made accountable ;^ and the legal profession are charged, 
 also, by a late American writer, to bear in mind that a delivery may 
 take place without the knowledge of the mother,^ and that many 
 symptoms formerly looked upon as infallible signs, as bruises and 
 bloody sores, have been found to be in the highest degree fallacious.^ 
 Injuries to the head of the child should be closely scrutinized, to see 
 whether they are not the consequences of pregnancy,* or of the birth ; 
 and it. is said, that tumours on the head in particular, are often suscep- 
 tible of a natural CxXplanation, without any regard to violence.* In 
 calculating the probability of the fall of the child as the cause of the 
 death,^ it is necessary to take into account^ every circumstance which 
 can affect such estimate; as place, distance, position of the mother, 
 condition of the umbilical cord, clothing worn by the woman. At all 
 events there is nothing in the asserted improbability of injurious 
 effects from the fall of the child.^ 
 
 In cases of this class it is a fact which must have been noticed by 
 all practitioners, that in a great majority of instances of deliberate in- 
 fanticide, and in many of accidental, the child is found in a privy;' 
 and where the birth is suspected to have occurred in the same place, 
 the spot where the mother sat, and the place through which and on 
 which the child is supposed to have fallen, the German text writers 
 tell us, must be closely examined." 
 
 It should be observed that the omission to loose the umbilical cord 
 can never in itself be pronounced with certainty to have caused the 
 death of the child;" although in certain cases the hemorrhage conse- 
 quent upon it may have done so; and it would be unsafe to rest, for 
 technical reasons, on this point alone, as the weight of medical autho- 
 rity now is, that though much depends on the condition of the child, 
 the manner in which the umbilical cord was severed, and the length 
 of the piece remaining attached to the child, yet the death cannot be 
 positively traced to this cause. 
 
 Where the death is or may be attributed to a fall, it is proper to 
 inspect the spot where the birth is alleged to have taken place, partly 
 to determine the hard places on which the child is said to have fallen, 
 and partly to ascertain the nature and amount of blood and other 
 
 ' Devergie, i. p. 231; Friedreich, p. 715; Guentner, der Kindesmord, p. 51; Orfila, 
 vol. ii. p. 255; Puceinotti, p. 97. 
 
 ^ Beck's Elements, i. p. ] 06. 
 
 2 See Naegele, Erfahr. und Abh. ans deni Gebiete der Krankheiten des Weiblicheu 
 Oeschlechts, p. 247; Mende, Handb. iii. p. 138. 
 
 * Monde, des Fruchtkind, p. 54 — 6.3. 
 
 s Zeller, Ileidelb. 1822; Feist, Mayenne, 1839; Friedreich, 1845, vol. ii. p. 437. 
 
 6 Klein, Stuttgart, 1817; Klein, Beitr. zurGeriehtt. Arzneiwissench Tuebingen, 1825; 
 Henke, Abh. i. p. 6-3, pt. iii. No. 1; Mende, Handb. i. p. 227, iii. p. 149; Hitzig, Zeits- 
 chrift, No. 25, p. 66, 67. 
 
 ' Mittermaier, Archiv. vii. 633 — 639. 
 
 8 Ann. d'llygiene, 1840, No. 48, p. 331; Friedreich, Handb. p. 729 ; Devergie, i. p. 
 ^93; Siebeiiha,-ir, Handb. ii. p. 639; Friedreich, Central Archiv. 1845, vol. iii. p. 441 ; 
 Orfila, i. 379; Eggert, p. 281; Guentner, Kindesmord, i. p. 53; Taylor, p. 481; Guy's 
 For. Med. p. 151. 
 
 9 Klein, Ann. der Gesetzgebung, xv. p. 225; Pfister Criminal faelle, v. iii. No. 1. 
 
 '» Pfister, Crim. v. p. 601 ; Ann. der Staatsarzneikunde, by Schneider, 1839, iv. p. 174. 
 
 " Beck's Elements, i. p. 282; Mende, Handb. iii. p. 290; Siebenhaar, Handb. ii. 644; 
 Friedreich, Handb. 736; Ann. d'Hyg. xxv. 126, and xxvi. 244; Bianchi in Barzellotti's 
 Med. Leg. 481 ; Guentner, 49. 
 
INFANTICIDE — CAUSE OF DEATH. 339 
 
 matter discliarged by the parturient. It is indispensable to establish, 
 with the greatest possible exactness, the time of the probable concep- 
 tion, as it is of importance in estimating the period of gestation ; also, 
 the health of the mother when she first felt the motions of the child, 
 her deportment during pregnancy, whether she concealed it, and what 
 work she performed during its continuance. Evidence should also 
 be collected as to the exact progress of the birth, the time when the 
 labour began, (often the best means of unravelling prevarication,) 
 the demeanour of the patient, the occurrences after the birth, and the 
 duration of the travail. Whenever the accused herself suggests an 
 explanation of the death of the child, the possibility of such explana- 
 tion should be submitted to the judgment of medical men, or de- 
 termined by repeated inspections, if she voluntarily submits to them. 
 The following observations of Mittermaier, (from whose admirable 
 treatise most of the foregoing chapter is drawn,) are worthy of much 
 weight. "In inquests of infanticide, where the fact of a delivery is 
 not well established, particular indications are found in the suspicious 
 intercourse of an unmarried woman with a man, if followed by ail- 
 ments, or changes of appearance, or enlargement of the. abdomen, 
 denoting pregnancy; the sudden disappearance of these changes, the 
 condition of her linen, or other tokens of a delivery, especially if the 
 latter is established by inspection. The greater the concealment of 
 the pregnancy the greater the suspicions, though this concealment 
 must have been by actual contrivance, or silence towards persons who 
 had a right to ask. These suspicions may be further increased by 
 the obstinate refusal to produce the child; although it must not be 
 overlooked, that the absence of a dead child may also be explained 
 without accusing the mother of murder. If the corpse is discovered, 
 it must be identified as the same child to which the accused gave birth, 
 and scrutinized, remembering, however, that late researches have es- 
 tablished the insufficiency of many proofs heretofore claimed as de- 
 cisive. If found to bear traces of a violent death, the demeanour of 
 the accused becomes important, and the more studiously she concealed 
 her pregnancy, or has studiously deprived herself of attendance at 
 the time of delivery, or betrayed by her subsequent behaviour not 
 only the intention to conceal the delivery, but fatal designs upon the 
 child, the more foundation is there for judicial investigation; bearing 
 in mind, however, that the accused may not before delivery have been 
 entirely aware of her condition, and that it is a point of controversy 
 whether a concurrence of the three indications of concealment of 
 pregnancy, birth without attendance, and concealment of the corpse, 
 is necessary to afford §trong evidence of infanticide."' 
 
 (4.) Quickness. 
 
 Wherever there is a difference in the gi-ade of punishment attached 
 to the destruction of a " quick" child, and one not yet so, or wherever 
 the destruction of the latter is held not to be indictable, this becomes an 
 important subject of inquiry. As has been fully shown elsewhere,^ the 
 destruction of a child unborn is a high misdemeanor, and at an early 
 
 1 o M.-ttov^oio- in<..,f St o 10Q 2wi,„, r-Y. Law 2d ed. 455. 
 
340 HOMicinB. 
 
 period it seems to hSve been deemed murder.^ If the child die sub- 
 sequently to birth from wounds received in the womb, it is clearly 
 homicide,^ even though attached to the mother by the umbilical cord.^ 
 It has been said that it is not an indictable offence to administer a 
 drug to a woman, and thereby procure an abortion, unless the mother 
 is quick with child,'' though such a distinction, it is submitted,^ is 
 neither in accordance with the result of medical experience,* nor with 
 the principles of the common law.* The civil rights of an infant in 
 ventre sa mere are equally respected at every period of gestation j and 
 it is clear that no matter at how early a stage, he may be appointed 
 executor,' is capable of taking as legatee,' or under a marriage set- 
 tlement,' may take specifically under a general devise, as a "child;""" 
 and may obtain an injunction to stay waste." Such, also, has been 
 distinctly held to be the law in Pennsylvania,'^ though the contrary 
 has since been held in Massachusetts," in New Jersey,''' and in Maine.'^ 
 
 Perhaps, however, as the point may be considered as still unset- 
 tled, a recapitulation of the reasoning formerly given may not be out 
 of place. 
 
 The notion that a man is not accountable for destroying the child 
 before it quickens, arose from the hypothesis that quickening was 
 the commencement of vitality with it, before which it could not be 
 considered as existing. This "absurd distinction," as it is called by 
 Dr. Gruy," is now exploded in medicine, the fact being considered in- 
 disputable, that "quickening" is the incident, not the inception of 
 vitality. This view is clearly expounded by Dr. Beck.'' "The mo- 
 tion of the foetus," he says, "when felt by the mother, is called 
 QUICKENING. It is important to understand the sense attached to 
 this word formerly, and at the present day. The ancient opinion, 
 and on which indeed the laws of some countries have been founded 
 was, that the foetus became animated at this period — that it acquired 
 a new mode of existence. This is altogether abandoned. The foetus 
 is certainly, if we speak physiologically, as much a living being 
 immediately after conception, as at any other time before delivery; 
 and its future progress is but the development and increase of those 
 constituent principles which it then received. The next theory 
 attached to the term, and which is yet to be found in many standard 
 works, is, that from the increase of the foetus, its motions, which had 
 hitherto been feeble and imperfect, now are of sufficient strength to 
 communicate a sensible impulse to the adjacent parts of the mother. 
 
 1 1 Kusa. on Cr. 671 ; 1 Vesey, 86 ; 3 Coke's Inst. 50 ; 1 Hawk. c. 13, s. 16; 1 Hale, 
 434; 1 East, P. C. 90; 3 Chitty, C. L. 798. 
 
 2 B. V. Senior, 1 Mood. C. C. 346; 3 Inst. 50; see ante, p. 286, 341, 359. 
 s E. 0. Trilloe, 2 Mood. C. C. 413. * Com. v. Bangs, 9 Mass. 387. 
 
 5 Guy's Med. Juris., tit. Abortion; 1 Beck, 172, 192; Lewis, C. L. 10. 
 
 6 1 Kuss. on Cr. 661; 1 Vesey, 86; 3 Coke's Inst. 60; 1 Hawk. c. 13, s. 16; 1 Brac- 
 ton, 1. 3, c. 21. 
 
 ' Bac. Ab., tit. Infants. s 2 Vernon, 710. 
 
 9 Swift V. Duffield, 6 Serg. & Rawle, 38; Doe v. Clark, 2 H. Bl. 399 ; 2 Ves. jr. 673 ; 
 Thelluson v. Woodford, 4 Vesey, 340. 
 
 m Fearne, 429. " 2 Vernon, 710. 
 
 12 Com. V. Demain, 6 P. L. J. 29. S. C. Brightly, E. 441 ; Wells v. Com. 1 Harris, 631. 
 
 i» Com. V. Parker, 9 Mete. 263. " State v. Cooper, 2 Zabriskie, 57. 
 
 15 Smitli V. State, 3 Redding, 48. is Med. Juris. 133. 
 " Med. Juris. toI. i. p. 173. 
 
EVIDENCE IN INFANTICIDE. 341 
 
 In this sense, then, quickening implies the first sensation which the 
 mother has of the motion of the child which she had conceived. 
 
 "A far more rational, and undoubtedly more correct opinion, is 
 that which considers quickening to be produced by the impregnated 
 uterus starting suddenly out of the pelvis into the abdominal cavity. 
 This explains several peculiarities attendant on the phenomenon in 
 question — the variety in the period of its occurrence — the faintness 
 which usually accompanies it, owing to the pressure being removed 
 from the iliac vessels, and the blood suddenly rushing to them; and 
 the distinctness of its character, difi'ering, as all mothers assert, from 
 any subsequent motions of the foetus. Its occasional absence in some 
 females is readily accounted for, from the ascent being gradual and 
 unobserved." 
 
 The true meaning of quickening, and the absurdity of the doctrine 
 that it is the inception of life, is pointedly shown by Orfila, in the 
 recent edition of his very authoritative treatise.^ 
 
 "Chez la plupartdes femmes le foetus exerce des mouvemens que 
 I'on a appeles actifs: c'est particuli^rement vers la fin du quatrieme 
 mois; lorsque les organes de la locomotion jouissent dejtl d'une cer- 
 taine energie, que ces mouvemens sont sensibles; ils deviennent 
 quelquefois si forts par la suite, qu'on les apercoit meme k travers 
 les vetemens, et que la femme en est reveill&e pendant la nuit: 
 I'homme de I'art parvient souvent k les provoquer en appliquant sur 
 les parois du ventre la main prfealablement trempe dans 1' eaufroide. 
 Ce signe qui paraitrait au premier abord devoir permettre d'aflirmer 
 que la femme est ou n'est pas enciente, presente pourtant beaucoup 
 d'incertitude; non seulement 11 y a des femmes qui n' ont pas senti de 
 pareils mouvemens k aucune epoque de la grossesse, mais il en est 
 beaucoup d'autres chez lesquelles des contractions spasmodiques de 
 I'uterus et des intestins simulaient tellement les mouvemens du foetus 
 qu'elles se disaient encientes." 
 
 These views are fully sustained by the result of a very curious in- 
 vestigation before a jury of matrons in England in 1838.* As the 
 case is very curious in more than one respect, it is given in full. 
 "The prisoner was indicted for the wilful murder of Anne Wycher- 
 ley, the younger, a child aged three years, by drowning her. The 
 case was clearly proved, and the prisoner was found guilty. The 
 learned Baron passed sentence of death upon her; and on Mr. 
 Bellamy, the clerk of assize, asking the prisoner if she had any thing 
 to say in stay of execution, she replied, ' I am with child now.' — Gur- 
 ney, B. Let the sheriff empannel a jury of matrons forthwith. Let 
 all the doors be shut, and no one be suffered to leave the court.' 
 The under-sheriff went to twelve married ladies who were present in 
 court, and having obtained their names, he returned them in a panel 
 to Mr. Bellamy, and these ladies were then called by Mr. Bellamy, 
 
 1 Traits de Medicine Legale, Paris, 1848, vol. i. p. 226. 
 
 2 R. V. Wycherley, 8 0. & P. 265. 
 
 ' For the authorities on this subject, see 3 Inst. 17; 2 Curw. Hawk. 657; 1 H. P. C. 
 368; and 2 H. P. C. 413, where Lord Hale says, that the jury is to be a jury of "dis- 
 creet women." We believe that the reason of the order for closing the doors of the court, 
 (which is always given before a jury of matrons is empannelled,) is to prevent the ladies 
 from leaving the court, and thus preventing a jury of matrons de clrcumstantibus from 
 being empannelled. 
 
342 HOMICIDE. 
 
 and having answered to their names, the forematron was sworn in 
 the following form : — ' You, as forematron of this jury, swear that you 
 will diligently inquire, search, and try Anne Wycherley, the prisoner 
 at the bar, whether she be quick with child or not, and thereof a 
 true verdict give, according to the best of your skill and knowledge. 
 So help you God.' The other matrons were then sworn as follows: 
 'The same oath which your forematron has taken on her part, you 
 shall well and truly observe and keep on your respective part. So 
 help you God.' A bailiff was then sworn in the following form: — 
 'You shall well and truly keep this jury of matrons without meat, 
 drink or fire, candle light excepted; you shall suffer no person but 
 the prisoner to speak to them; neither shall you speak to them your- 
 self, unless it be to ask them if they are agreed on their verdict, 
 without leave of the court. So help you God.' The jury of 
 matrons then retired to a private room, and the prisoner was taken 
 to them. After a short time they sent a message into court that they 
 wished for the assistance of a surgeon. — Gurney, B. I think that I 
 ought not, considering the terms of the bailiff's oath, to allow a sur- 
 geon to go to the room in which the jury of matrons is, and that 
 they should come into court.^ The jury of matrons came into court, 
 and having publicly expressed a wish for the assistance of a surgeon, 
 Gurney, B., directed Air. Greatorex, who was a surgeon and accou- 
 cheur, and who was a witness in another case,^ to retire and' examine 
 the prisoner. This was done, and on the return of Mr. Greatorex to 
 the court, he was sworn, 'You shall true answer make,' &c., and he 
 stated that he saw no reason to believe that the prisoner was quick 
 with child, his opinion being that she was not with child at all, but 
 that if she was, she could only be in a very early stage of pregnancy. 
 Gurney, B. 'Quick with child' is having conceived. 'With quick 
 child' is when the child has quickened. Do you understand the dis- 
 tinction I make? — Mr. Greatorex, I do, my Lord. The jury of 
 matrons again retired, and on their return into court, they found a 
 verdict that the prisoner was not quick with child." ^ 
 
 1 We are informed, says the reporter, that some years ago a jury of matrons was em- 
 pannelled at Chester, and that in that instance the surgeon went to the room in which 
 the jury and prisoner were, which seems not only to have been in some degree incon- 
 sistent with the terms of the bailifiTs oath, but was also open to the objection, that the 
 surgeon was thus giving evidence out of the presence of the judge, which evidence might 
 possibly be of a nature to be perfectly inadmissible in point of law, as being hearsay 
 or the like. 
 
 2 The wife of this gentleman was the forematron of the jury. 
 
 8 Before the time appointed for the execution of the prisoner, she was respited, in 
 order that it might be ascertained with certainty whether she was with child or not. 
 
 Dr. Paris says, (Med. Jour. vol. 3, p. 90.) "The popular idea of quick or not quick 
 with child is founded in error;" and he also says, (Id. vol. 1, p. 209). "About the 16th 
 or 18th week after conception, the uterus suddenly ascends from the pelvis into the ab- 
 domen, a change which is attended with a very peculiar sensation to the woman, and is 
 erroneously called 'quickening,' from its having been supposed to arise from the first 
 motions of the foetus in utero, which was imagined at this period to receive the essence 
 of vitality. The physiologist is now satisfied that the sensation has no relation either to 
 the life or to the motions of the fojtus, but is solely attributable to the sudden change in 
 the position of the uterus ; nor is there any difference between the aboriginal life of the 
 child and that which it possesses at any period of pregnancy, though there may be an 
 alteration of the proofs of its existence by the enlargement of its size and the acquisition 
 of greater sirjngth. The feeling of ' quickening' is very different from any thing that is ex- 
 cited by the subsequent motions of the child ; it more nearly resembles that which is oo- 
 
EVIDENCE IN INFANTICIDE— QUICKENING. 343 
 
 It appears then that quickening is a mere circumstance in the 
 physiological history of the foetus, which indicates neither the com- 
 mencement of a new stage of existence, nor an advance from one 
 stage to another — that it is uncertain in its periods, sometimes 
 coming at three months, sometimes at five, sometimes not at all — 
 and that it is dependent so entirely upon foreign influences as even 
 to make it a very incorrect index, and one on which no practitioner 
 can depend, of the progress of pregnancy. There is as much vitality 
 in a physical point of view on one side of quickening, as on the other, 
 and in a social and a moral point of view, the infant is as much enti- 
 tled to protection, and society is as likely to be injured by its destruc- 
 tion, a week before it quickens as a week afterwards. But if the 
 common law in making foeticide penal, had in view the great mis- 
 chiefs which would result from even its qualified toleration, e. g., the 
 removal of the chief restraint upon illicit intercourse, and the shock 
 Avhich would be sustained thereby by the institution of marriage and 
 its incidents — we can have no authority now for withdrawing any 
 epoch in gestation from the operation of the principle. Certainly 
 the restraints upon illicit intercourse are equally removed — the in- 
 ducements to marriage are equally diminished — the delicacy of the 
 woman is as efi'ectually destroyed — no matter what may be the period 
 chosen for the operation. Acting under these views, the legislatures 
 of Massachusetts and New Jersey, in order to fill up the supposed 
 gaps, passed acts making ante-quickening-fceticide individually penal. 
 If, however, as has been argued, no such gap exists, it will be worth 
 while for the courts of those states which have not legislated on the 
 subject, to consider how far an exploded notion in physics is to be 
 allowed to suspend the operation of a settled doctrine of the common 
 law. 
 
 casioned by terror or agitation from any other cause, and is often followed by syncope 
 [fainting] or hysteria. We shall indeed cease to be surprised at this effect when we 
 consider that from the uterus thus changing its situation a very considerable pressure is 
 suddenly removed from the iliac vessels, in consequence of which the blood rushes to 
 the lower extremities, and temporary exhaustation of the vessels of the brain, and a ge- 
 neral loss of balance in the circulating system, are the results. In some women the mo- 
 tion is so obscure as not to occasion any distress ; and where the ascent of the uterus is 
 gradual, it is often not felt at all." 
 
 A newly discovered symptom of pregnancy, which is considered a very decisive one, is 
 mentioned by Dr. Parent du Chatelet, one of the members of the Conseil de Salubrite de 
 la Ville de Paris, and physician of the Hospital de la Pitie, in his very able work recent- 
 ly puliiished in Paris; he says, (Vol. 1, p. 217:) "L'examen des parites genitales des 
 prostitutes faiat decouvrir a M. Jacquemin un nouveau signe de la grossesse qui pent en- 
 core, sous le rapport de la medicine legale devenir tres utile; ce signe consiste dans un 
 coloration violac6e, et quelquefois ]ie-de-vin, que contracte, dans cet etat particulier de 
 la vie de la femme, toute la membrane muqueuse du vagin. Le signe ^st tellement evi- 
 dent, que M. Jacquemin ne s'y trornp^ jamais et qu'il lui suffit seul, independamment 
 des autres signes de la grossesse, pour decider si cet etat existe. J'ai ^te temoin d'ep- 
 reuves curieusee, aux quelles M. Jacquemin s'est soumis pour demontrer a ses confreres 
 jusqu'oil Ton pouvait, sur ce point, porter I'exactitude." 
 
 "II fallait la reunion d'un grand nombre de prostitut^es pour permettre des recherches 
 de oette nature; il fallait qu'elles fussent soumises a une inspection severe et minutieuse, 
 pour decouvrir cette nouvelle particularity touchant Ifes signes de la grossesse. C'est stir 
 un nombre de 4,500 femmes que M. Jacquemin a pu constate* cet etat de la membrane 
 muqueuse chez les femmes encientes." 
 
 The filles publiques at Paris are all obliged to be registered and licensed by the police, 
 and they undergo a medical inspection twice in every month, which gives very great op- 
 portunity for investigation on points of this kind. 
 
 c!„„ „!„.,„„ *„.!,„ „„ — I- — o „p n — a *ipend. p. xxvi. 
 
344 HOMICIDE. 
 
 CHAPTER XIII. 
 
 RIOTOUS HOMICIDE. 
 
 The object of this chapter is to consider the law of that class of 
 homicides which occur in the prosecution of unlawful assemblages. 
 It is obvious that homicide of this character must fall under two gene- 
 ral heads. When an unlawful assemblage takes place for the redress 
 of a supposed public wrong, and particularly where its object is the 
 extinction of government, the destruction of judicial process, or the 
 resistance of executive authority as such, participation in it, to the 
 extent of levying war against the government for these public pur- 
 poses, becomes treason. Where, however, the intention is to redress 
 a private or social grievance, and to incidentally resist process merely 
 so far as may be necessary to effect the private or social end, the offence 
 amounts not to the dignity of treason, and if during its commission 
 life is lost, the 6ffender must be tried for murder alone. Two obser- 
 vations, however, may properly be made in this connexion. (1.) Even 
 supposing treason exists, the felony of murder or manslaughter does 
 not merge in it. Merger only exists where a misdemeanor and a 
 felony form a constituent part of the same act, as where an attempt 
 to commit a larceny and the larceny itself unite. In such cases it is 
 the felony alone that can be prosecuted. But two felonies cannot 
 thus coalesce, for being each of equal dignity, neither sinks into the 
 other. (2.) The domains of treason have become restricted within 
 limits which exclude the great mass of those cases of general riot, 
 which were formerly included within the term. It has already been 
 noticed that during the necessities of civil war in England, the go- 
 vernment for the time in power, acting on the fundamental principles 
 that self-preservation was the duty of all governments, united with 
 its predecessor in pushing the law of treason to its extremest verge, 
 both as regards principle and temper. But in more recent days, when 
 the crown has had nothing to fear from either dynastic or republican 
 opposition, and when the government no longer feels it to be a contest 
 for life between it and the state prisoner at the bar, the old policy has 
 relaxed, and "levying war," in the definition of treason, is becoming 
 gradually shorn of the constructive element, and restricted, as the term 
 exacts, tothe actual making of war against the state. The same amelio- 
 ration of judicial construction has taken place, also, in our own country. 
 In the earlier treason cases in Pennsylvania, those of Roberts and Car- 
 lisle, which took place in revolutionary times, the early English prece- 
 dents were cited with approbation and adhered to with rigour. In 
 Fries' trial, which to6k place during the administration of John Adams, 
 when the government was scarcely settled, the same general views 
 were expressed as obtained in England during the civil wars, andj a 
 local opposition to the execution of the window tax, was construed 
 
RIOTOUS HOMICIDE. 345 
 
 to be a " levying war," (as in those troubled times it perhaps was) 
 against the government of the United States. But recently in Han- 
 way's case, the Circuit Court of the United States, sitting in Philadel- 
 phia, after noticing the fact that the better opinion in England now is 
 that the term " levying war," should be confined to insurrections and 
 rebellions for the purpose of "overturning the government by force 
 and arms," went on to say that a combination on the part of certain 
 citizens, in a particular neighbourhood, to aid fugitive slaves in re- 
 sisting their capture, even though such resistance results in murder 
 and robbery, is not treason.* And aside from the fact that an exact 
 construction of the constitutional definition of treason requires such 
 a conclusion, the policy of government, even when the ofi'ence is clearly 
 susceptible of double relation, certainly demands that that offence 
 should be selected for prosecution which is the most simple in its nature, 
 and the least political in its associations. It is apprehended, therefore. 
 Dot only from the present tendency of the courts, but from the grow- 
 ing experience of government, that trials for treason will hereafter 
 be limited to cases of direct opposition to government a.i government, 
 and that in all other cases of riotous crime, the constituent offence 
 against society or individual right, will be selected as at least the 
 primary object of judicial action. 
 
 Homicides occurring during the prosecution of unlawful assem- 
 blages, may therefore be discharged at the outset from all considera- 
 tions connected with the law of treason. For the purposes of 
 practical consideration they will be divided into the following 
 heads: — 
 
 I. The responsibility incurred by individuals who, though not 
 actually and specifically parties to the overt act, are present and 
 consenting to the assemblage by whom it is perpetrated. 
 
 II. How far provocation affects the degree. 
 
 III. How far the doctrine of self-defence applies. 
 
 IV. How far the degree is affected by resistance to officers of 
 justice. 
 
 I. — The responsibility incurred by individuals who, though not actually 
 and specifically parties to the overt act, are present and consenting to 
 the assemblage by whom, it is perpetrated. 
 
 "When divers persons," says Hawkins, "resolve generally to resist 
 all opposers in the commission of a breach of the peace, and to exe- 
 cute it in such a manner as naturally tends to raise tumults and 
 affrays, and in so doing happen to kill a man, they are all guilty of 
 murder, for they must at their peril abide the event of their actions, 
 who unlawfully engage in such bold disturbances of the public 
 peace, in opposition to, and defiance of the justice of the nation."" 
 
 The joint responsibility of rioters for each other's misconduct, 
 rests on two principles universally recognised under their respective 
 heads. In the first place, when an act is committed by a body of 
 men engaged in a common enterprise, such act is treated as if spe- 
 cifically committed by each individual. In the second place, homi- 
 
 1 See Wh. Grim. Law, (3d edit.) tit. "Treason." 
 
 » 1 Hawk. P. C. c. 31, s. 51, Staundf. 17. 1 Hale, 439, et leq. i Blac. Com. 200. 
 
346 HOMICIDE. 
 
 cide individually committed in the pursuit of an unlawful felonious 
 act, is murder at, common law, no matter what that act be, even if 
 it be so light a thing as the shooting of a tame fowl.| The applica- 
 tion of these principles to cases of riotous homicide is obvious. 
 Whether the parties are united in a common attempt to reduce a 
 supposed grievance by violence, or are engaged in M-arring against 
 each other, is no matter. Each individual is not only responsible 
 for such acts of his associates as spring from the general design, but 
 for such collateral acts as may be committed by his associates, with 
 this distinction, that if the original unlawful act was a trespass, the 
 murder, to afl'ect all, must be done in the prosecution of the design. 
 If the unlawful act be a felony, it will be murder in all, although the 
 death happen collaterally, or beside the principal design.'^ Thus, if 
 several persons conspire to seize, with force and violence, a vessel, 
 and run away with her, and, if necessary, to kill any person who shall 
 oppose them in the execution of the design, and death ensue in the 
 prosecution of the design, it is murder in all who are present aiding 
 and abetting in executing the design.' It should be observed, how- 
 ever, that while the parties are responsible for collateral acts grow- 
 ing out of the general design, they are not for indejiendent acts 
 growing out of the particular malice of individuals. Thus, if one of 
 the party, of his own head, turn aside to commit a felony, foreign to 
 the original design, his companions do not participate in his guilt.'' 
 So, where two men were beating another man in the street, and a 
 stranger made some observation upon the cruelty of the act, upon 
 which one of the two men gave him a mortal stab with a knife ; and 
 both the men were indicted as principals in the murder; although 
 both were doing an unlawful act in bea:ting the man, yet as the death 
 of the stranger did not ensue upon that act, and as it appeared that 
 only one of them intended any injury to the person killed, the judges 
 were of opinion that the other could not be guilty, either as principal 
 or accessary; and he was acquitted.^ 
 
 The most ordinary case of a riot of this character is that of a sud- 
 den popular movement got up for the purpose of redressing some 
 supposed grievance. The temper of a particular class is aroused by 
 some outrage real or supposed, which they design to summarily 
 punish. Cases of this character fall under two heads, — first, where 
 the design is to inflict injury on the person or property, and secondly, 
 where the object is death. If, as in the first case, a body of men, 
 influenced by resentment, proceed to tear down an offensive build- 
 ing, or to remove certain objectionable obstructions, or even to inflict 
 bodily violence short of death, each member is as responsible for the 
 act of death, as if he himself was the sole agent. Nor does this 
 complicity extend only to those who were united at the outset in the 
 common design. Stragglers and idlers caught up by the mob in its 
 progress, become involved in its guilt, to the very extent that they 
 are aware of its general purpose. Any other principle would not 
 
 ' See ante, 46. 
 
 2 U. S. I). Ross, 1 Gallia C. C. R. 524; Beets v. State, Meigs, 106; U. S. v. Travers, 2 
 Wheeler's C. C. 608. See also the Sissinghurst case, ante, 77, 78. 
 
 3 U. S. V. Rosa, 1 Gallis C. C. R. 824. 
 
 * 1 Hawk. c. 81, s. 52. State v. King, et al., 2 Rice's S. C. Digest, 106. 
 6 1 Hawk. P. C. 0. 31, 52. 
 
RIOTOUS HOMICIDE. 347 
 
 only secure indemnity for such cn'mes, but would destroy all effi- 
 ciency in government. It is true that a man who drops mechanically 
 into a crowd passing along the street is not responsible for a murder 
 committed by one of the number, if he is entirely ignorant that they 
 constitute an unlawful assembly. But that ignorance cannot exist 
 after an order for dispersion is given by the lawful authorities. The 
 man who, after such a moment, remains a passive spectator, is as re- 
 sponsible as he who takes an active part. For, indeed, it is from 
 this very class of men the power of a mob is derived. The immediate 
 mischief in riots in this country and England, has been always effected 
 by a very few individuals; but the real harm has been done by the 
 mass of passive spectators who prevent the prominent offenders 
 from being reached by the police, and who, by their apparent sympa- 
 thy, encourage the wrong doers, and produce the impression on 
 the well-disposed, that what really is a small knot of reckless out- 
 laws, is a well organized and ■ respectable band of citizens seeking 
 "redress" by their own agency. It will be readily seen, therefore, 
 that under such circumstances, both the policy of society and the 
 principles of justice require that responsibility should he joint. And 
 indeed any reasoning that makes one individual responsible, makes 
 all. Supposing, for instance, the object is to tear down a house, and 
 in the process of destruction a person is killed by a stone cast at 
 the building. In this case the individual who throws the stone 
 may say with perfect truth, that he never intended to kill. But the 
 common law attaches the consequences of murder to all homicide 
 committed in pursuance of an unlawful act, and the "unlawful act" 
 in this case is the riotous assemblage, of which the passive, though ac- 
 quiescing spectator is as much a component part as the prime mover. 
 At this point, also, it is important to keep in mind the qualification 
 already noticed in another connexion. While all the individuals of 
 a mob are jointly responsible for the acts of each other committed in 
 pursuance of the common design, they are not so responsible for the 
 results of the cupidity or malice of a particular person. Thus if an 
 individual pilfer from a sacked house for his own gain, or take ad- 
 vantage of the confusion of the crowd to satiate his own malice by 
 killing another, he does not shed any part of this, his particular guilt, 
 upon his confederates. It is only for what he does in pursuance of 
 the common object, that they are liable. 
 
 When this oi)ject is to inflict capital punishment, by what is called 
 Lynch law, all who consent to the design are responsible for the 
 overt act. It is not necessary to say that under our laws this is 
 murder in the fii'st degree. Of all species of homicide it is the one 
 that most strikingly combines the two distinctive features of that 
 type, — viz., deliberation, and a specific intent to take life. 
 
 It remains now only to consider that species of riotous homicides 
 which arise in the collisions of two bands of men arrayed against 
 each other. Of this, the Kensington riots in Philadelphia, in 1844, 
 are an illustration. In the consideration of this class, more difficult 
 questions arise. When two hostile bands parade the streets, intent 
 upon an encounter, it is difficult to see how guilt lower than that of 
 murder in the first degree can attach. But a more humane, as well 
 as a more rational view — a view taken in the Philadelphia riots, — is, 
 
348 HOMICIDE. 
 
 that the blood being roused at the outset, continues so excited, and 
 that there is either such a want of intent to take life as lowers the 
 offence to murder in the second degree, or such general passion as 
 lowers it to manslaughter. Supposing, however, that one party is 
 the assailant, and the other is suffering under grievous provocation, 
 it is obvious that here another element is introduced which will be 
 considered under the next two heads. 
 
 In the appendix will be found a series of heretofore unreported 
 cases falling under this head, in which the American law is fully de- 
 veloped. The leading English cases are as follows: — A party of five 
 poachers having been sent by a keeper and his assistant, some words 
 had passed, when three of the party ran in upon the keeper, knocked him 
 down and stunned him; and when he recovered himself, he saw all of 
 them coming by him, and one said, "Dam 'em we've done 'em;" and 
 when they had got two or three paces beyond him, one of them turned 
 back and wounded the keeper in the leg, and then the men set off and 
 ran away; Bolland, B., told the jury if they thought the prisoners 
 were acting in concert, they were all equally guilty of inflicting the 
 wound.' 
 
 Where the whole of a party of poachers set upon and beat a keeper 
 till he was senseless, and having left him lying on the ground, one of 
 them, after they had gone a little distance returned, and stole his mo- 
 ney, it was holden that he alone was guilty of the stealing.^ 
 
 Two private watchmen, seeing the prisoner and another man with 
 two carts laden with apples, which they suspected had been stolen, 
 went up to them, and one walked beside the prisoner, and one beside 
 the other man, at some distance from each other, and while they were 
 so going along, the prisoner's companion stepped back, and with a 
 bludgeon wounded the watchman he bad been walking with ; Garrow, 
 B., "To make the prisoner a principal the jury must be satisfied that 
 when he and his companion went out with a common illegal purpose 
 of stealing apples they also entertained the common guilty purpose of 
 resisting to death, or with extreme violence, any persons who might en- 
 deavour to apprehend them: but if they had only the common purpose 
 of stealiog apples, and the violence of the prisoner's companion was 
 merely the result of the situation in which he found himself, and pro- 
 ceeded from the impulse of the moment, without any previous con- 
 cert, the prisoner will be entitled to an acquittal.'" 
 
 Where the prisoners were hired by a tenant to carry away his goods 
 to prevent a distress, and went armed with bludgeons and other of- 
 fensive weapons; and the landlord, assisted by others, attempted to 
 prevent it; and in the violence of the affray, after the constable had 
 in vain attempted to disperse them, a boy standing at his father's 
 door, who took no part therein, was killed by one of the company un- 
 known; Holt, C. J., and Pollexfen, C. J., held it murder in all the 
 party, by reason that the prisoners came armed with offensive wea- 
 pons, and in a riotous way, and that they persisted in the affray after 
 the constable had interfered to put a stop to it. But the majority of 
 the judges held, that as the boy was unconcerned in the affray, the kill- 
 
 1 R. V. Warner, R.& M. C. C. R. 380; S. C. 5 C. & P. 525. 
 
 2 K. V. Hawk, 3 C. & P. 394. ' R. v. CoUison, 4 C. & P. 565. 
 
RIOTOUS HOMICIDE. 349 
 
 in<^ of him could not he imputed to the rest, who were merely engaged 
 in the general afifray; that he could not be deemed an opposer to the 
 party, so as to make him an object of this contention; aTid that they 
 could no more be said to have abetted the killing of him than if one 
 of the company had killed a person looking out of a window. The 
 reasoning of the majority in the above case seems to have proceeded 
 upon the defect of any evidence to show, that the stroke by which the 
 boy was killed was either levelled at any of the opposing party, but had 
 hit him by mistake, or was levelled at him upon the supposition that 
 he Was one of the opponents; for otherwise it seems that in either of 
 these cases the same guilt would have attached upon all who were 
 concerned in the same design with the striker as upon the striker 
 himself. For if the act or design be unlawful and premeditated, and 
 death happen from any thing done in the prosecution of it, it is clearly 
 murder in all who take part in the same transaction. In the above 
 case the two chief justices were of opinion, in which the others did 
 not differ from them, that though the moving of the goods might be 
 lawful, yet the continuing of the party together after the constable 
 had ordered them to disperse was unlawful : and besides, that the great 
 numbers who were thus assembled, and the unusual weapons they were 
 armed with, did also make the assembly unlawful. Perhaps the more 
 correct method, according to Mr. Bast, would have been for the jury 
 to have found the fact one way or other, whether the stroke which 
 killed the boy were or were not aimed at any of the assailants, or 
 levelled at him mistaking him to be such.' 
 
 The prisoners, eight in number, each having a gun, upon being 
 found poaching by some keepers, who went towards them for the pur- 
 pose of apprehending them, formed into two lines, and pointed their 
 guns at the keepers, saying they would shoot them; a shot was then 
 fired which wounded a keeper, but no other shot was fired: it was 
 objected that it was clear that there was no pommon intent to shoot 
 this man, because only one gun was fired, instead of the whole num- 
 ber; Vaughan, B., said, "That is rather a question for the jury, but 
 still on this evidence it is quite clear what the common purpose was. 
 They all draw up in lines, and point their guns at the game-keepers, 
 and they are all giving their countenance and assistance to the one 
 who actually fires the gun. If it could be shown that either of them 
 separated himself from the rest, and showed distinctly that he would 
 have no hand in what they were doing, the objection would have 
 much weight in it."^ 
 
 Two poachers were apprehended by some game-keepers, and being 
 in custody, called out to one of their companions, who came to their 
 assistance and killed one of the game-keepers, it was held that this 
 was murder in all, though the blow was struck while the two were 
 actually in custody, but that it would not have been so, if the two 
 had acquiesced and remained passive in custody.' 
 
 Upon an indictment for maliciously cutting, the question being, 
 how far one prisoner was concurring in the act of the other; Park, 
 
 1 1 East, P. C. 259. Kex v. Hodgson and others, 1 Leach, 6. See Plumer's case, 
 ante, 42, 46, post. 3S0. 12 Mod. 629. Thompson's case, Kel. 66. Anon, cited by Holt, C. J. 
 1 Leach, 7, note (a,) and a case Anon. 8 Mod. 165. See also Keilw. 161, and Borth- 
 wick's case. Douffl. 202. 
 
 ne, 3 C. & P. 394. 
 
350 
 
 HOMICIDE. 
 
 J., told the jury that, "If three persons go out to commit a felony, 
 and one of them, unknown to the others, puts a pistol in his pocket, 
 and commits a felony of another kind, such as murder, the two who 
 did not concur in this second felony will not be guilty thereof, not- 
 withstanding it happened while they were engaged with him in the 
 felonious act for which they went out."* 
 
 Several persons were engaged in a smuggling transaction; and upon 
 an attempt to oppose their design by the king's officers, one of the 
 smugglers fired a gun, and killed one of his accomplices. It was de- 
 termined by the court, that if the gun were discharged at the king's 
 officers in prosecution of the original design, which was a fact to be 
 found by the jury, it would be murder in them all, although one of 
 the accomplices happened to be killed. But if done intentionally 
 and with deliberation against the accomplice from anger or some pre- 
 cedent malice in the party firing, it would be murder in him only. 
 In order, therefore, to affect the particular case by the general pur- 
 pose in view at the time the death happened, the killing must be in 
 pursuance of such unlawful purpose and not collateral to it.'^ 
 
 II. How far provocation affects the degree. 
 
 The question here opened is one which involves the most impor- 
 tant principles in the law of individual homicide, and which have 
 been heretofore fully considered.^ It is proposed at present to notice 
 them very briefly in the following relations: — 
 
 (1.) Hot blood. 
 
 (2.) Cooling time. 
 
 (3.) Public wrong. 
 
 (4.) Death of innocent third parties. 
 
 (1.) Hot blood. 
 
 "Hot blood" alone is of no effect, unless it is attended with suffi- 
 cient provocating causes. Such causes, when taken in connexion 
 with riotous homicide, are comparatively limited. Heretofore they 
 have been considered so far as they relate to public and private 
 wrongs. At present it is sufficient to consider them in connexion 
 with those affrays in which bodies of men are engaged with each 
 other. When death occurs through a collision of groups of heated 
 partizans between whom there has long been a grudge, — when such 
 death is produced incidentally by an instrument not necessarily mor- 
 tal, — and when this death, therefore, is connected with a passionate 
 impulse arising from a temper already morbid with old griefs,— the 
 offence is manslaughter. And so, also, if on a collision arising one 
 or more of the parties hurries to his home, and still under the influ- 
 ences of passion, fetches fire-arms, and there kills another, the offence 
 is but manslaughter. For when there is hot blood caused by a col- 
 lision with a hostile party to any extent equal in strength, the law in 
 its tenderness makes allowance for it by lowering the degree. It 
 should be observed, however, that where one party is greatly supe- 
 rior to the other in strength, the former cannot be allowed the bene- 
 fit of such a defence.'' A party has no right to entertain " hot blood " 
 against one who is greatly his inferior in strength, and who has not 
 
 ' Duffy's case, 1 Lew. 194. 
 
 ' Plumer's case, Kel. 109, 12 Mod. 627 ; 1 Hale, 443. See as to cases of affrays, ante, 
 77—82. 5 See ante, 168, &c. * See ante, 189, 194. 
 
RIOTOUS HOMICIDE. 351 
 
 the means of inflicting serious injury, to allow such a defence to be set 
 up, would be topermit a wanton tyranny of the strong over the weak. 
 It is true, in Stedman's case, it was held that where a woman, in return 
 for words of gross provocation, struck a soldier with an iron patten 
 on the face, who thereupon killed her, the crime was only man- 
 slaughter.' But this case has been very properly doubted by an emi- 
 nent judge of our own day and country,'' who says, in entire accor- 
 dance with both the policy and the reason of the law, " If a man 
 should kill a woman or a child for a slight blow, the provocation 
 would be no justification; and I very much question whether any 
 blow inflicted by a wife upon her husband, would bring the killing 
 below murder." And this distinction is particularly applicable to 
 cases of popular affrays.. When there are two factions, (e.g., the 
 Oi-ange and Roman Catholic Irish, who were the ingredients of the 
 riots in Philadelphia in 1844,) who are in a state of temporary col- 
 lision under circumstances of mutual aggravation and misconception, 
 as long as each, under the influence of a heated imagination, has 
 reason to apprehend injury from the other, the law takes compassion 
 on this infirmity, and lessens the degree of homicide to manslaughter, 
 provided there is no cooling time, and no premeditated use of deadly 
 weapons. But where there is a marked preponderance in strength 
 on the one side or the other, no degree of supposed provocation can 
 relieve from the guilt of murder the individuals of an armed mob, 
 which undertakes thus to follow up an obnoxious interest.^ 
 
 (2.) Cooling time.* 
 
 The authorities all agree that if there is time to cool, taking in 
 view all the circumstances in the case, hot blood can no longer be 
 set up. Even supposing a murderous attack by one individual on 
 another, or as the subject of this chapter requires, of one body of 
 men upon another, if the party assailed has retreated so as to be out 
 of danger, and is secure from further personal aggression, he has no 
 right to return armed to the scene of conflict, and voluntarily engage 
 in a new conflict with the aggressor. If he do, and slay his assailant, 
 the offence will be murder or manslaughter, according to the particu- 
 lar circumstances.^ Where the whole proceeding is infected with a 
 continuous public excitement, and where the return to the conflict is 
 so immediate and so associated in sentiment as to form part of the 
 same transaction with the original assault, the law applies the original 
 provocation to the fatal blow. What interval of time is necessary to 
 exclude the hypothesis of continuousness, is of course, dependent 
 upon the circumstances of the case and the temperament of the indi- 
 viduals. But a very good test is the interposition of other subject 
 matters in the mind, and its intermediate voluntary adoption of 
 different topics. Thus, it has been ruled that if between the provo- 
 cation received and the mortal blow given, the prisoner fall into 
 other discourse or diversion, and continue so a reasonable time for 
 cooling; or if he take up and pursue any other business or design 
 not connected with the immediate object of his passion, nor subser- 
 
 1 R. V. Stedman. Fost. 292; 1 Hale. 457, ante, 189, 195. 
 
 2 Gibson, C. J., Com. u. Mosler, 4 Barr. 268. ' See post Appendix. 
 * See a'nte, p. 179, where this point is discussed in its general relations. 
 
352 HOMICIDE 
 
 vient thereto, so that it may be reasonably supposed that his atten- 
 tion was once called off from the subject of the provocation, any sub- 
 sequent killing of his adversary, especially where a deadly weapon 
 is used, is murder.^ It is obvious, therefore, that no measurement 
 of time can be adopted in this respect. In periods of great public 
 excitement, when men's minds have been so absorbed with a particu- 
 lar topic as to be incapable of considering any thing else, it takes a 
 much greater period to cool after a supposed provocation than under 
 ordinary circumstances. Care, however, should be taken in this as 
 well as in all similar cases, lest the public excitement be used as a 
 cloak for private cupidity or revenge.^ 
 
 (3.) Public wrong. 
 
 The question as to what are the circumstances which will justify 
 the abating of a public nuisance by popular action, is a difficult one, 
 which it would be out of place to discuss here. It is a difficult mat- 
 ter, also, in our own community, to state positively what the law will 
 be held to be, should judicial action ever be invoked in cases where 
 a popular organization becomes necessary, or is supposed to be- 
 come necessary, in order to sustain public order. The view sanctioned 
 by Lord Loughborough in the great London riots of 1780, as well as 
 that which the cases in the appendix show was judicially adopted in 
 the Philadelphia riots of 1844, is that citizens may, of their own 
 authority, lawfully endeavour to suppress a riot, and for that purpose 
 may even arm themselves, and that whatever is honestly done by them 
 in the execution of that object will be supported and justified by 
 the common law. And as is well stated by Judge King, in one of 
 the charges which will be given hereafter, even supposing there be 
 no public organization, yet if one man sees another in the act of burn- 
 ing a church or dwelling house, or attempting to commit a murder, 
 he has not only the right, but it is his duty to endeavour to prevent 
 him.' If the perpetrator resists, so as to make violence necessary in 
 order to the prevention, the circumstances are a sufficient sanction 
 and exculpation for the consequences of the violence, to whatever de- 
 gree it may extend. This doctrine is undoubtedly sound, both in rea- 
 son and law, in a case of individual criminality, and individual inter- 
 vention to arrest it. If such be the case, it follows that citizens 
 have the right in extreme cases, when the municipal government is 
 insufficient, to establish a preventive police, and, if it be necessary, 
 take life in order to prevent crime." But two qualifications to this 
 position should always be kept in mind. In the first place, where 
 there exist public officers, having jurisdiction, who will discharge 
 their respective duties, it is proper for the voluntary police to put 
 itself under their direction. "It would be more discreet," it was 
 said during the London riots, " for every one in such case to be assis- 
 tant to the justices and sheriffs in doing so." Of course this quali- 
 fication does not exist where the proper authorities either will not 
 act at all, or are themselves malcontent. In the second place, while 
 this might extend to the prevention of crime, it does not include its 
 punishment.' Citizens, when acting either individually or in a body 
 
 ' Com. V. Green, 1 Ashm. 289. ' See ante, p. 179. ' See ante, p. 232. 
 
 * Wh. C. L. 2d ed. 402; State v. Rutherford, 1 Hawks, 457; R. v. Haworth. 1 Mood. 
 C. C. 207. 
 
RIOTOUS HOMICIDE — KILLING THIRD PARTIES. 353 
 
 for such purposes, are bound, if tliey make an arrest, to lodge the 
 oflender in the common jail, or detain in safe keeping till the proper 
 authorities can act.^ 
 
 (3.) Killing third parties} 
 
 Where an unlawful assembly resorts to the use of deadly weapons, 
 and death ensues to innocent third parties, it seems that such a homi- 
 cide is murder at common law, supposing the guilt of the oifender is 
 not extenuated by such a state of hot blood as would reduce the grade 
 to manslaughter. In Hare's case, given in the appendix, it is broadly 
 stated, as will be seen, that such a homicide would be murder at com- 
 mon law, without any qualification from the state of the blood. This 
 has not yet been expressly ruled, and it is apprehended that it is not 
 the character of the deceased, but the relation and position of the of- 
 fender, that determines the grade. Thus, for instance, if a man in- 
 tending to kill a person attempting to commit a forcible and obvious 
 crime against his person or property, by mistake kill one of his own 
 family, it is homicide by misadventure only.^ And the same reason- 
 ing would indicate that where a man in hot blood slays an innocent 
 bystander in mistake for a supposed assailant, the offence is but man- 
 slauirhter. But be this as it may, it is clear that if by an unlawful as- 
 sembly an innocent third party be killed, it is murder at common law, 
 unless there be hot blood, and that whatever be the grade of the of- 
 fence, it is shared by all individuals engaged in the afl'ray. If, as 
 has been well stated in Hare's case, and will presently be fully seen, 
 the law should be called upon to detect the particular agents by 
 whom such a slaying has been perpetrated in a general combat of this 
 kind, it would perpetually defeat justice and give immunity to guilt- 
 Suppose, for instance, "a fight with fire arms between two bodies of 
 enraged men should take place in a public street, and from a simul- 
 taneous fire, innocent citizens, their wives or children in their houses, 
 should be killed by some of the missiles discharged, — shall the vio- 
 lators of the public peace, whose unlawful acts have produced the 
 death of the unofl"ending, escape, because from the manner and time 
 of the fire it is impossible to tell from what quarter the implement of 
 death was propelled? Certainly not. The law declares to such out- 
 laws, you are equally involved in all the consequences of your as- 
 saulting the public peace and safety. Is there any hardship in this 
 principle? Does not a just regard to the general safety demand its 
 strict application? If men are so reckless of the lives of the inno- 
 cent as to engage in a conflict with fire arms in the public highway of 
 a thickly populated city, are they to have the benefit of impractica- 
 ble niceties, in order to take their indemnity from the consequences 
 of their own conduct? " It was said, however, that such homicide, in 
 any view of the case, would not be murder in the first degree, as there 
 would be wanting that specific malice which is necessary to constitute 
 that offence. If, however, there is a deliberate killing of an innocent 
 third party, knowing him to be such, the offence is murder in the first 
 degree.* 
 
 1 state V. Roane, 2 Dey. 58 ; Wh. C. L. 2d ed. 401. « gee ante, p. 42. 
 
 3 Wh. C. L. 2d ed. 284. See ante, 210. 
 
 " " ' ' " '■ ' "' •"• • '" ird parties is fully discussed. 
 
354 HOMICIDE. 
 
 CHAPTER XIV. 
 
 MURDER IN THE SECOND DEGREE. 
 
 The principle on which rests the statutory distinction between 
 murder in the first, and murder in the second degree, is that of the 
 lex talionis, and took its origin from the admitted harshness of inflict- 
 ing death for a homicide where death was not intended. By the 
 common law, homicide unintentionally committed in pursuit of a 
 felony, — e. g,, in shooting a tame fowl with the intention of stealing 
 it — was murder, and was punishal)le with death. It is true, that so 
 long as death was the common punishment for almost all felonies, 
 its infliction, in this instance, attracted comparatively little attention. 
 But in this country, where capital punishment, generally speaking, 
 was restricted to homicides, the injustice of taking life for what 
 might, after all, be a mere species of misadventure, early attracted 
 attention. No objection was taken to the common law distinctions. 
 The general feeling was that it was proper that they should remain. 
 The question was one of punishment, not of definition. It was felt 
 that there was a large class of cases falling under the general head 
 of murder, in which a jury ought to be allowed to say whether there 
 was an intent to take life or not, and where no such intent was found, 
 that it was proper that a sentence lighter than death should be inflicted. 
 And it was to meet this class, that legislative action was invoked. 
 
 Pennsylvania was the first to move, and on April 22d, 1794, passed 
 an act which has now been in substance incorporated in the codes of 
 a majority of the states of the union. That the object of the act was 
 to diminish the area of cases to which the penalty of death is appli- 
 cable, is obvious from the first clause. "Whereas," it recites, "the 
 design of punishment is to prevent the commission of crime, and to 
 repair the injury that has been done thereby to society, or the indi- 
 vidual; and it hath been found by experience, that these objects are 
 better obtained by moderate, but certain penalties, than by severe 
 and excessive punishments; and whereas, it is the duty of every 
 government to endeavour to reform, rather than exterminate offenders, 
 iind the punishment of death ovghi never to be inflicted where it is not 
 absolutely necessary to the public safety; therefore, no crime whatso- 
 ever, hereafter committed, except murder in the first degree, shall 
 be punished with death in the State of Pennsylvania." 
 
 Then follows the operative clause : — 
 
 "And whereas, the several offences which are included under the 
 general denomination of murder differ so greatly from each other in 
 the degree of atrociousness, that it is unjust to involve them in the 
 same punishment: All murder which shall be perpetrated by means 
 of poison, or lying in wait, or by any other kind of wilful, deliberate 
 and premeditated killing, or which shall be committed in the perpe- 
 
MURDER IN THE SECOND DEGREE— MALICE NECESSARY. 355 
 
 tration, or attempt to perpetrate any arson, rape, robbery, or bur- 
 glary, ?hall be deemed murder in the first degree; and all other 
 kinds of murder shall be deemed murder of the second degree; 
 and the jury before whom any person indicted for murder shall 
 be tried, shall, if they lind such person guilty thereof, ascertain in 
 their verdict whether it be murder of the first or second degree; but 
 if such person shall be convicted by confession, the court shall proceed 
 by examination of ■witnesses, to determine the degree of crime, and 
 to give sentence accordingly." 
 
 The '-several offences which are included under the general de- 
 nomination of murder," are not here distinguished analytically from 
 each other. One alone is detached from the mass, and is particu- 
 larly defined. On it alone the penalty of death is to be inflicted, and 
 to separate it from the rest, the action of both jury and court are ne- 
 cessary. The remaining classes are to be distinguished from each 
 other by the court alone, who are to grade the degree of imprison- 
 ment according to the extent of guilt. In these cases the jury are to 
 find the general verdict, "guilty of murder in the second degree," 
 and the court are thereupon to determine on the term of imprison- 
 ment within the range specified by the act 
 
 To murder in the second degree it should always be remembered. 
 malice aforethought is essential, and a new trial will be granted 
 wherever a conviction for this grade takes place without this parti- 
 cular ingredient. Thus, in a late case in Tennessee, Turley, J., 
 said: "We have been much astonished at the verdict upon which 
 judgment in this case has been given. The prisoner, a youth of some 
 fifteen years of age, has been found guilty of murder in the second 
 degree ; to constitute which crime, malice aforethought is a neces- 
 sary ingredient, under circumstances from which, in our judgment, 
 it not only cannot be inferred, but indeed, which directly disprove 
 its existence. It appears that the prisoner, with some other youths 
 of his own age, was playing marbles, when the deceased, a full- 
 grown man, interfered in the game, and upon being remonstrated 
 with for doing so, became turbulent, and commenced inflicting per- 
 sonal chastisement upon one of the boys ; that while he was in the 
 act of doing this, the prisoner threw a stone at him, which struck him 
 on the head, and inflicted a wound of which he afterwards died. The 
 prisoner had no previous ill-will against the deceased, and that the 
 blow struck was not upon premeditation, but the result of sudden 
 excitement produced by the misconduct of the prisoner himself, can- 
 not be questioned; and the weapon used was not, in the hands of the 
 person using it, of a dangerous character, and one well calculated to 
 produce the result which followed its use. The result must have 
 been wholly undesigned and accidental — the same boy, or any other, 
 might have thrown the same stone or one like it, without the design 
 of inflicting injury, a thousand times or more, without producing 
 death; and yet the jury have thought it proper to hold the youth 
 responsible for murder. This cannot be permitted ; for murder has 
 not been committed, either in design or by implication of law. A 
 boy who, from being provoked wantonly and improperly by a man, 
 becomes excited and throws a stone at him, and it accidentally so 
 falls na in vinlntinTi of all rfiaanna.hlfi calculation of chanceS to kill 
 
356 HOMICIDE. 
 
 him, is to lio held guilty of murder, and punished as a murderer. 
 This would be cruelty, and not justice. It is true that the kind of 
 murder of which the prisoner has been found guilty, is not now pu- 
 nished by death, but that it is not so, is owing to the interposition of 
 a statute, for it is murder as described at common law, and it is 
 requisite yet that it should have been perpetrated with malice afore- 
 thought either express or implied. There is no express malice; and 
 it cannot be implied from the nature of the weapon used. The 
 Attorney General argues that a very serious wound was inflicted; 
 one which did produce death, and that this is a fair implication that 
 the weapon used was of a character to produce the effect it did. This 
 is ingenious, but fallacious; for the same thing might be argued of 
 any case in which death accidentally ensued from the use of a wea- 
 pon not calculated to kill. And, moreover, the wound of which the 
 deceased died, is shown to have been of such a character as to make 
 it, to say the least of it, problematical whether it was inflicted by the 
 stone thrown by the prisoner. We have no hesitation in saying 
 that the prisoner is not guilty of murder, though the deceased died 
 of the blow struck by him. Whether he be guilty of manslaughter 
 or not, is a question depending upon other propositions for its solu- 
 tion, and to be submitted to a jury, with all other matters in connex- 
 ion with the transaction, upon a new trial. Judgment reversed and 
 case remanded. Green, J. In this case, I think the throwing the 
 stone by the defendant, was clearly unlawful, and as death ensued, it 
 is a clear case of manslaughter. M'Kinney, J. Not being present in 
 court when this case was heard, I decline any expression of opinion 
 upon the point in respect to which my associates disagree.^" 
 
 As will be seen by the inspection of the following statutes, the 
 main features of the Pennsylvania act have been adopted in Maine, 
 New Hampshire, New Jersey, Virginia, Alabama, Tennessee, and 
 Michigan. In several other states it has been enacted entire. 
 
 Maine. 
 
 Whoever shall, unlawfully, kill any human being, with malice aforethought, 
 either express or implied, shall be deemed guilty of murder. — (Rev. Stat. ch. 154, 
 sect. 1.) 
 
 Whoever shall commit murder, with express malice aforethought, or in perpe- 
 trating, or attempting to perpetrate, any crime punishable with death, or imprison- 
 ment in the state prison lor life, or for an unlimited term of years, shall be deemed 
 guilty of murder in the first degree, and shall be punished with death. — (Ibid, 
 sect. 2 ) 
 
 Whoever shall commit murder, otherwise than is set forth in the preceding 
 section, shall be deemed guilty of murder in the second degree, and shall be 
 punished by imprisonment for life in the state prison. — (Ibid. sect. 3.) 
 
 Section 4, provides that, upon an indictment for murder, the jury shall inquire 
 and find whether the offence be of the first or second degree, or, if confessed, the 
 court shall make the inquiry. 
 
 New HAMrsHiRE. 
 
 All murder committed by poison, starving, torture, or other deliberate and pre- 
 meditated killing, or committed in the perpetration, or in the attempt at the perpe- 
 tration of arson, rape, robbery or burglary, is murder of the first degree; and all 
 murder not of the first degree is of the second degree. If the jury shall find any 
 person guilty of murder, they shall also find, by their verdict, whether it is of the 
 .first or SLcond degree. — (Rev. Stat. chap. 214, sect. 1.) 
 
 J Holly V. State, 10 Hump. 141. 
 
MURDER IN THE SECOND DEGREE — STATDTES. 357 
 
 If any person shall plead guilty to an indictment for murder, the court having 
 cognizance thereof shall determine the degree. — (Ibid. sect. 2.) 
 
 The punishment of murder in the first degree shall be death, and the punishment 
 of murder in the second degree shall be solitary imprisonment, not exceeding 
 three years, and confinement to hard labour for life. — (Ibid. sect. 3.) 
 
 CoNNEOTicoT. — Same as Pennsylvania. 
 
 New Jersey. 
 
 Be it enacted, by the Council and General Assembly of this state, and it is 
 hereby enacted by the authority of the same, That all murder which shall be per- 
 petrated by means of poison, or by lying in wait, or by any other kind of wilful, 
 deliberate, and premeditated killing, or which shall be committed in perpetrating, 
 or attempting to perpetrate, any arson, rape, sodomy, robbery, or burglary, shall 
 be deemed murder of the first degree; and all other kinds of murder shall be 
 deemed murder of the second degree; and the jury, before whom any person in- 
 dicted for murder shall be tried, shall, if they find such person guilty thereof, 
 designate, by their verdict, whether it be murder of the first or second degree; 
 but if such person shall be convicted on confession, in open court, the court shall 
 proceed, by e.vaminalion of witnesses, to determine the degree of the crime, and 
 give sentence accordingly. — (An act, supplementary to an act, entitled, "An act 
 for the punishment of crimes," passed the seventeenth day of February, eighteen 
 hundred and twenty-nine, sect. 1.) 
 
 And be it further enacted. That every person convicted of murder of the first 
 degree, his or her aiders, abettors, counsellors and procurers shall suffer death; 
 and every person convicted of murder of the second degree, shall suffer imprison- 
 ment at hard labour, for any term not less than five, nor more than twenty years. 
 (Sect 2.) 
 
 Virginia. 
 
 1. Murder by poison, lying in wait, imprisonment, starving, or any wilful, delibe- 
 rate and premeditated killing, or in the commission of, or attempt to commit 
 arson, rape, robbery or burglary, is murder of the first degree. All other murder 
 is murder in the second degree. 
 
 2. Murder of the first degree shall be punished with death. 
 
 3. Murder of the second degree, by a free person, shall be punished by confine- 
 ment in the penitentiary, not less than five, nor more than eighteen years. 
 
 4. Voluntary manslaughter by a fiee person, shall be punished by confinement 
 in the penitentiary not less than one nor more than five years. 
 
 5. Involuntary manslaughter by a free person, shall be a misdemeanor. 
 
 6. If a person be stricken or poisoned in, and die, by reason thereof, out of this 
 state, the ofTender shall be as guilty, and be prosecuted and punished, as if the 
 death had occurred in the county or corporation in which the stroke or poison 
 was given or administered. 
 
 7. If any free peison administer, or attempt to administer, any poison or destruc- 
 tive thing in food, drink, medicine, or otherwise, or poison any spring, well or 
 reservoir of water, with intent to kdl or injure another person, he shall be confined 
 in the penitentiary not less than three, nor more than five years. 
 
 Alabama, 
 
 Every homicide which shall be perpetrated by means of poison, lying in wait, 
 or by any other kind of wilful, deliberate, and premeditated killing, or which shall 
 be committed in the perpetration of, or in the attempt to perpetrate any arson, 
 rape, robbery, or burglary, shall be deemed murder in the first degree; so, also, 
 every homicide perpetrated from a premeditated design, unlawfully and mali- 
 ciously, to effect the death of any human being, other than him who is slain, or 
 perpetrated by an act eminently dangerous to the life of others, and evincing a 
 depraved mind regardless of human life, although without any preconceived pur- 
 pose to deprive of life any particular individual; and every person, guilty of mur- 
 der in the first degree, shall, on conviction, suffer death, or confinement in the 
 penitentiary for life, at the discretion of the jury trying the same. — (Penal Code, 
 chap. Ill, sect. 1; Clay's Digest, 412.) 
 
 [The next section provides that all other cases of murder, at common law, shall 
 be murder in the second degree; and punishable by imprisonment for not less 
 
 *1 . T 
 
358 
 
 MURDEB IN THE FIRST DEGREE. 
 
 Tennessee. 
 
 All murder which shall be perpetrated by means of poison, lying in wait, or by 
 any other kind of wilful, deliberate, malicious and premeditated killing, or shall 
 be committed in the perpetration of, or attempt to perpetrate any arson, rape, rob- 
 bery, burglary or larceny, shall be deemed murder in the first degree, and all other 
 kinds of murder shall be deemed murder in the second degree; and the jury, belore 
 whom any person indicted for murder shall be tried, shall, if they find such person 
 guilty thereof, ascertain, in their verdict, whether it be murder in the first or second 
 degree; but if such person shall confess his guih, the court shall proceed by the 
 empannelling of a jury and examination of testimony, to find and determine the 
 degree of the crime, and to give sentence accordingly. — (Act 1829, sect. 3, Laws 
 of Tennessee, p. 316.) 
 
 Michigan. 
 
 All murder, which shall be perpetrated by means of poison and lying in wait, or 
 any other kind of wilful, deliberate and premeditated killing, or which shall be 
 committed in the perpetration, or attempt to perpetrate, any arson, rape, robbery, 
 or burglary, shall be deemed murder of the first degree, and shall be punished 
 with death; and all other kinds of murder shall be deemed murder of the second 
 degree, and shall be punished by confinement in the penitentiary for life, or any 
 term of years, at the discretion of the court trying the same. — (Rev. Stat, part 4, tit. 
 1, eh. 3, sect. 1.) 
 
 Murder, in the first degree, in each of the above given statutes, is 
 first defined generally, and is then extended in such a way as to cover 
 certain enumerated instances; it being provided that all cases not 
 either enumerated or falling within the general definition, shall be 
 murder in the second degree. The following table will serve to 
 show what, in each state, is the general definition of murder in the 
 first degree, and what the additional particular instances: 
 
 MURDER IN THE FIRST DEGREE. 
 
 Maine, . . . 
 
 New Hampshire, . 
 Connecticut, . . 
 
 Permsj/lvania, 
 New Jersey, . 
 Michigan, . . 
 Alabama, . . 
 Virginia, . 
 
 Tennessee, , 
 
 ENUMERATED INSTANCE.9. 
 
 Murder "in perpetratjng or attempt- 
 ing to perpetrate any crime punishable 
 with death, or imprisonment in the state 
 prison for life, or for au unlimited term 
 of years." 
 
 Murder hy "poison, starving, tor- 
 ture," or, "in the perpetration or at- 
 tempt at the perpetration of arson, rape, 
 robbery or burglary." 
 
 Murder "by means of poison, or by 
 lying in wait," or " in the perpetration 
 or attempt to perpetrate any arson, 
 rape, robbery, or burglary." 
 
 Ibid. 
 
 Ibid. 
 
 Ibid. 
 
 Ibid. 
 
 Murder committed by "poison, lying 
 in wait, duress of imprisonment, star- 
 ving, wilful and excessive whipping, 
 cruel treatment." 
 
 Murder committed " by means of 
 poison, or by lying in wait," or "in 
 the perpetration or attempt to perpe- 
 trate any arson, rape, robbery, bur- 
 glary, or larceny." 
 
 GEIfEKAL DEFIXITION. 
 
 Murder with "express 
 malice aforethought." 
 
 Murder by " deliberate 
 and premeditated kill- 
 ing." 
 
 Murder committed "by 
 any (other) kind of wil- 
 ful, deliberate, and pre- 
 meditated killing." 
 
 Ibid. 
 
 Ibid. 
 
 Ibid. 
 
 Ibid. 
 
 Murder perpetrated "by 
 any (other) liind of wil- 
 ful, deliberate, malicious, 
 and premeditated killing." 
 
 "Any kind of wilful, 
 deliberate, and premedi- 
 tated killing." 
 
ETC. 359 
 
 No question exists as to the fact of the enumerated instances in 
 the above definitions falling within the definition of murder in the 
 first degree, though it seems that they do not necessarily do so. 
 Thus, where a potion was administered to a mother with intent to 
 cause the death of a child with which she was pregnant, and the 
 mother died in consequence, it was held murder in the second de- 
 gree.^ "Murder by poison or lying in wait," said King, President 
 J., " are given as instances of wilful, deliberate and premeditated 
 killing; not as cases which, under all conceivable circumstances, are 
 to be regarded as such. When, however, a malicious homicide ac- 
 companies the perpetration or attempt to perpetrate arson, rape, 
 robbery or burglary, the common law is left to its full operation, and 
 the incendiary, ravisher, or burglar, if he takes life in the prosecu- 
 tion of the crime, is answerable capitally for its consequences, 
 whether he did or did not intend to kill. Suppose, for instance, a 
 quack should administer a poisonous drug, not with intent to kill, 
 but under the honest but mistaken idea of relieving his patient; but 
 when, from the magnitude of the dose death ensues; here would be 
 a case of killing by poison, but not one of murder by poison; for who 
 could regard such a case as one of wilful, premeditated, and delibe- 
 rate killing? In the case before us, if savin or ergot was adminis- 
 tered to the deceased, it was done, not with intent to destroy or 
 permanently injure her; and it is with her murder, not with the 
 unlawful destruction of her offspring, that the defendants are 
 charged." It is submitted that the illustration used, of an over- 
 dose by a quack, is not quite in point. Death from such a cause 
 would not, at common law, be "murder;" and therefore is not 
 affected by a statute declaring that all murder by means of poison 
 shall be punished by death, &c. As to the correctness of the result, 
 however, which was arrived at by the learned court, there can be no 
 question. 
 
 The general question of the right to find a verdict for the second 
 degree, when the means was poisoning, arose in 1849, in Connecti- 
 cut, on the following statement of facts: — The prisoners, Solomon, 
 David, and Lucina Coleman, were charged in the indictment with the 
 murder of Niles Coleman, the husband of Lucina Coleman, by means 
 of poison. In the first count, it was averred, that they mixed a deadly 
 poidon called cori-osive mercury sublimate, in a solution of camphor, 
 and gave him the mixture to drink, which caused his death. In the 
 second count, it was averred, that the death was produced by causing 
 him to drink of a mixture of corrosive sublimate of mercury, and 
 "certain other ingredients, to the grand jurors unknown." There 
 were two other counts, charging them with having administered to 
 the deceased, poison, in like manner, with intent to kill and murder. 
 The prisoners pleaded not guilty, and were tried before the Superior 
 Court, holden in Hartford, in 1849. The jury found them guilty of 
 murder in the second degree. The defendants thereupon moved an 
 arrest of judgment, upon the ground that the verdict did not answer 
 the issue, and was such as the jury could not legally render under the 
 indictment. The question was reserved for the advice of the Supreme 
 
 1 Com. V. Keeper of Prison. 2 Aslimead, 227. 
 
360 MURDER IN THE FIRST DEGREE. 
 
 Court, the opinion of which was delivered by Waite, J., as follows: — 
 " The only question presented in this case, is, whether it was compe- 
 tent for the jury, upon this indictment, to find the prisoners guilty of 
 murder in the second degree, and for the court, upon such conviction, 
 to impose the punishment prescribed by law for that oifence. Formerly, 
 in this state, a person convicted of the crime of murder, whatever 
 might be the attending circumstances, was liable to the punishment of 
 death. But, in the year 1846, the legislature passed an act, in the 
 preamble to which, they say 'that several oflFences which are included 
 under the general denomination of murder, differ so greatly from each 
 other, in the degree of atrociousness, that it is unjust to involve them 
 in the same punishment.' It is, therefore, enacted, ' that all murder, 
 which shall be perpetrated, by means of poison, or by lying in wait, 
 or by any other kind of wilful, deliberate, and premeditated killing, 
 or which shall be committed in the perpetration, or attempt to per- 
 petrate, any arson, rape, robbery, or burglary, shall be deemed mur- 
 der in the first degree; and all other kinds of murder, shall be 
 deemed murder in the second degree; and the jury before whom any 
 person indicted for murder shall be tried shall, if they find such per- 
 son guilty thereof, ascertain in their verdict whether it be murder of 
 the first or second degree.' The statute then provides, that a person 
 convicted of the former offence, shall suffer death; and of the latter, 
 imprisonment for life. It is apparent, from this statute, that it was 
 not the design of the legislature to create any new offence, or change 
 the law applicable to murder, except so far as the punishment was 
 concerned. The crime still remains as it was at common law, and in 
 the more aggravated cases, the person convicted is liable to the original 
 punishment, while others, whose crimes are less aggravated, are pu- 
 nished with less severity. It is a general rule that in criminal cases 
 it is not necessary to prove all the allegations contained in the indict- 
 ment, but in general, it is sufficient to prove so much of them as will 
 constitute a substantive crime, within the jurisdiction of the court be- 
 fore which the trial is had, and punishable by law. Thus, upon an 
 indictment for murder, the jury may negative the averment that the 
 act was done with malice aforethought, and convict of the crime of 
 manslaughter.* So if a person is charged with the commission of rape, 
 he must be convicted of an assault with intent to ravish.^ And if a 
 person be indicted for an assault with intent to kill and murder he 
 may be convicted of an assault with intent to kill.^ In the most cases 
 mentioned in the statute, as constituting the crime of murder in the 
 first degree, the lesser crime is manifestly included. Thus, if the 
 charge were, that the murder was committed by the accused while 
 lying in wait, the jury might find that it was not so committed, and 
 convict him only of the lesser offence. So if it were averred that the 
 act was done by him while attempting to commit the crime of arson, 
 or rape, the jury might find that part of the charge untrue, and still 
 convict the person of murder in the second degree. Now, if the same 
 rule applies to the case where the charge is for murder by poisoning, 
 
 ' state V. Nichols, 8 Conn. R. 496; King v. HoUingberry Call 4 B C C S'Q 10 E. 
 C. S. 346 ; Rex v. Hunt, 2 Camp. 503, 2 Russ. on Crimes, 700. ' • • • - • 
 
 2 State V. Shepperd, 7 Conn. R. 554. The Commonwealth v. Cooper, 15 Mass Ren 187. 
 
 3 State V. Nichols, 8 Conn. B. 496. ^ ' ^' 
 
POISONING — LYING IN WAIT, ETC. 361 
 
 then the conviction, in this case, was legal. The language of the sta- 
 tute strongly favours such a construction. It provides that murder 
 perpetrated by means of poison, or by lying in wait, or by any other 
 kind of wilful, deliberate, and premeditated killing, shall be murder 
 in the first degree; thereby implying, that in all cases the crime must 
 be the result of a wilful, deliberate, and premeditated act. Hence, 
 if any cage can be supposed, where murder may be committed by means 
 of poison, and not be the result of such an act, then a conviction of 
 murder in the second degree may be legal. And we do not feel our- 
 selves authorized to say that the case under consideration might not 
 have been one of that description, and consequently that the verdict 
 is not right. Indeed, we are rather inclined to consider such the fair 
 construction of the statute, especially as it is a highly penal one, and 
 such a construction operates against the greater severity. But, how- 
 ever this may be, there is another provision in the statute more unequi- 
 vocal. It says that the jury, if they find the accused guilty, shall as- 
 certain in their verdict whether it be murder in the first or second 
 degree. And if he be convicted by confession, the court shall deter- 
 mine the degree of crime, by examination of witnesses. This provi- 
 sion is positive, without any exception or qualification, and we do not 
 feel authorized in the construction of a statute like this, involving the 
 life or death of the person accused, to make an exception where the 
 legislature have made none. We are rather inclined to think that 
 in all cases the degree of criminality must be determined as a ques- 
 tion of fact, and that a general conviction, upon any indictment, with- 
 out such determination, would not authorize a court to impose the 
 greater punishment. It was under such an impression, that the court 
 below, in submitting the case to the jury, informed them, that in case 
 they should find the prisoners guilty of the offence charged against 
 them, the statute made it their duty to determine the degree of their 
 guilt. And the jury having so done, their verdict must stand." ^ 
 
 With regard to the first class of other enumerated instances of mur- 
 der in the first degree, the same observation obtains. A man may 
 kill another by "lying in wait," when his intention was to maim, or 
 perhaps merely to alarm. Cases of this kind have fi'equently occurred 
 in practice, and one memorable instance is related by Hitzig, in his 
 Annals. A student in one of the German universities had become an 
 object of much dislike to his associates, who determined to seize upon 
 his nervous susceptibility to superstitious influence, for the purpose of 
 punishing him. Knowing that on a particular evening he was to de- 
 scend into a cellar, about which there was some popular superstitious 
 legend, several of them secreted themselves behind the stair way, and 
 when the visiter was about to ascend, having accomplished his purpose, 
 pinioned the end of his coat to the post by a fork, uttering, at the 
 same time, a series of unearthly noises for the purpose of adding viva- 
 city and effect to the delusion. The shock was too much for his 
 nervous system, and he fell into a convulsion, which speedily termi- 
 nated in death. This was undoubtedly a most reprehensible act on 
 the part of the guilty agents, — it was certainly homicide by lying in 
 wait — and yet, even supposing it was a case of murder at common law, 
 
 ' State V. Dowd. C9 Conn. 391. 
 
362 MURDER IN THE FIRST DEGREE. 
 
 it clearly would not have been murder in the first degree. And though 
 the case is not exactly apposite, since it would, in point of fact, have 
 been held but manslaughter, yet, supposing a felony, such as the lar- 
 ceny of a tame fowl, was involved in the original intent, so that the 
 homicide would have been positively murder at common law, yet this 
 does not alter the result. It has, in fact, been frequently judicially 
 declared that when a man intending to shoot a tame fowl, for the pur- 
 pose of stealing it, killed its owner, it is murder in tlie second degree; 
 and "lying in wait," could not make it murder in the first degree, 
 without violating all the real distinctions of the act. It is true that 
 Mr. Justice Daniel, in a case before the general court of Virginia, 
 which will be presently more fully cited,^ has intimated that in the 
 enumerated cases, the legislature has declared the law to be that the 
 perpetrator shall be held guilty of murder in the first degree, without 
 further proof that the death was the ultimate result which the will, 
 deliberation, and premeditation of the party accused sought. This, 
 however, is rather an opinion thrown out in the course of argument, 
 than an express decision, for the question was not before the court; 
 and it cannot therefore be treated as in positive conflict with the Con- 
 necticut and Pennsylvania authorities. 
 
 The same observation applies to a case in Virginia, where " wilful 
 and excessive whipping," is among the enumerated instances, and 
 where a verdict of murder in the first degree was sustained against a 
 master for whipping a slave to death, though it was maintained that 
 the intent was to do only bodily harm. It should be observed, also, 
 that in the Virginia act, the term " other" is omitted before the phrase 
 "kind of wilful, Sfc, killing" so that to some degree the bearing of 
 the latter definition on the enumerated instances, is weakened.^ 
 
 With regard to the second clause, murder "in the attempt to per- 
 petrate any arson, rape, robbery or burglary " — and in Tennessee " lar- 
 ceny," — there is at present no variation of judicial sentiment. To 
 constitute this branch of the offence, two elements are necessary. 1st, 
 murder; 2d, The intent to perpetrate the collateral felony of the class 
 mentioned. The species of cases which fall within the general rule 
 are in truth well known and have been the subject of frequent adju- 
 dication both here and in England. 
 
 When the jury, therefore, find that "murder," — i.e. homicide, which 
 would fall under the common law definition of murder — has been com- 
 mitted "in the perpetration of or attempt to perpetrate" any of the 
 specified felonies, they have no alternative but to convict of murder 
 in the first degree. 
 
 It has been made a question whether when a party intending to 
 kill A. kills B., he is guilty of murder in the first or in the second de- 
 gree. It is clear, as has already been seen, that at common law the 
 offence is murder, if circumstances would have made it such if the 
 party intended had been slain. The question was first mooted in a 
 very early case in Pennsylvania.' The prisoner was an honest and in- 
 dustrious man, but addicted to intoxication, and when in that state was 
 
 ' Com. ■„. Jones, 1 Leigh, 610. 2 Souther v. State, 7 Grat. 678. 
 
 ' Com. V. Dougherty, 7 Smith's Laws, 695. 
 
KILLING OF ONE PERSON IN MISTAKE FOE ANOTHER. 363 
 
 quarrelsome. It also appeared that his wife occasionally drank too 
 much; and on the day of the fatal occurrence they had fallen into a 
 drunken squabble. During the quarrel the wife threw several stones 
 at him, one of which struck him on the arm. A few moments after 
 they were seen struggling together, but soon after the wife was dis- 
 covered fleeing with her infant in her arms, the prisoner pursuing her 
 with an axe in his hand. When he came within reach of her he aimed 
 a blow at her which fell on the head of the child as it lay upon the 
 wife's shoulder, and caused a mortal wound, of which the child died. 
 The prisoner soon recovered himself and showed many signs of re- 
 pentance, and manifested much distress at the manner of the child's 
 death. Rush, P. J., a respectable though severe judge, who tried the 
 case, in the course of his charge to the jury, said, "We now come to 
 this point: — what was the intention of the prisoner in the bar, when 
 he killed Daniel Dougherty, his child? for, if his intent was to kill 
 his wife, and killing her would have beenjnurder in the first degree, 
 killing his child will also be murder in the same degree; as much as 
 if he had prepared a cup of poison for his wife and his child had drunk 
 it. You, however, are in this case to judge of the law and facts. 
 If you are of the opinion the injury the prisoner received from his 
 wife throwing stones at him, and hitting him, kept his passion boil- 
 ing until he gave the fatal blow, we think it your duty to find him 
 guilty of manslaughter. But if you are of the opinion his passion 
 had time to cool, or in fact had cooled, after the assault on him by his 
 wife, it is your duty to convict him of murder in the first degree." 
 The verdict was manslaughter. In this case, as will be observed, the 
 verdict having been manslaughter, and no opportunity having existed 
 of revising the charge, the authority of the case is limited by the fact 
 of its having been made in the hurry of Nisi Prius, and by a single 
 judge. Such also is the case with a subsequent charge in the same 
 court where the same point was announced by Judge Parsons.^ 
 
 More recently, however, a contrary opinion has been asserted by 
 the Supreme Court of Tennessee, upon careful consideration. In this 
 case, the defendant, when aiming at the prosecutor, shot the prosecu- 
 tor's wife, and M'Kinney, J., in delivering the opinion of the court, said, 
 " The plaintiff in error was indicted in the circuit report of Giles 
 County, for the murder of Mary Jane Wilsford; and was found guilty 
 by the jury of murder in the first degree, as charged in indictment. 
 The jury also found that there were mitigating circumstances in the 
 case. The prisoner moved the court for a new trial, but the motion 
 was overruled, and judgment pronounced, that he undergo confine- 
 ment in the jail and penitentiary house of this state, for and during 
 the period of his natural life. A bill of exceptions, setting forth the 
 proof in the case, was signed and sealed, and an appeal in error 
 prosecuted to this court. Upon a careful consideration of the proof, 
 we feel constrained to say, that the facts of the case, as presented in 
 the record before us, furnish no sufficient ground, in our judgment, 
 for disturbing the verdict of the jury. It, therefore, only remains to 
 inquire, whether or not the legal principles applicable to the facts 
 of the case, were correctly stated to the jury, in the charge of the 
 
 1 Com. V. Flavel, Mss. 1846. 
 
364 MURDER IN THE FIRST DEGREE. 
 
 court. The deceased was the wife of the prosecutor, and her death 
 was caused by a pistol shot, discharged by the prisoner. It seeps to 
 have been a question, earnestly discussed on the trial in the Circuit 
 Court, as well as in the argument here, whether the shot, which re- 
 sulted in the death of Mrs. Wilsford, was intended by the prisoner to 
 take effect upon her or the prosecutor. In reference to this question, 
 the judge instructed the jury that, "if the defendant intended to kill 
 the husband of the deceased, and undesignedly killed the deceased, 
 the offence would be the same as if he had killed the husband; that 
 is, if the defendant had killed the husband of the deceased, and such 
 killing would have been excusable homicide, in self-defence, as already 
 explained to you, then you should acquit the defendant; and so if he 
 hadlcilled the husband of the deceased, under such circumstances as 
 would make the offence manslaughter, or murder in the first or second 
 degree, as already explained to you; then, though he undesignedly 
 killed the deceased, it would be the same offence as if he had killed 
 the husband of the deceased, and you should fix the punishment of 
 the defendant accordingly." The only question presented upon the 
 record is, whether the principle announced in the foregoing instruc- 
 tions, is applicable to the crime of murder in the first degree, as de- 
 fined in the third section of the penal code of 1829. That this prin- 
 ciple is correct in reference to murder at the common law, is conceded, 
 and that it is equally so, as respects murder in the second degree, and 
 all the inferior grades of homicide under the statute, is not to be 
 questioned. But that it is wholly inapplicable and directly opposed 
 to both the letter and spirit of the statute, as regards murder in 
 the first degree, we think is clearly beyond doubt. In order to a 
 correct determination of this question, we are to inquire what was 
 the intention of the legislature? What change of the existing law, 
 upon this subject, was contemplated by the statute? What particular 
 evil was designed to be obviated, or at least alleviated? The com- 
 mon law, which was in force here prior to the statute of 1829, recog- 
 nises no distinction in respect to felonious homicide, except that 
 between murder and manslaughter; the act in the latter offence, 
 being rather imputed to the infirmity of human nature. In regard 
 to the latter crime, a distinction, certainly reasonable and just in 
 itself, was also taken between voluntary and involuntary man- 
 slaughter. But in relation to the higher crime of murder, the com- 
 mon law made no discrimination; all murders, irrespective of their 
 greater or less malignity and atrocity, were, so far at least as respects 
 the punishment, on the same footing. And, without regard to the 
 intrinsic nature of the case, or circumstances tending to enhance or 
 extenuate its legal, as well as moral guilt, the uniform and indis- 
 criminate punishment was death. With a" discrimination more con- 
 formable to the dictates of reason, justice, and humanity, as well as 
 to the spirit of the age, the penal code of 1829, had in view, among 
 other objects, the admeasurement and adaptation of punishment to the 
 different degrees of crime, according to their different degrees of 
 malignity, as far as comported with the public safety and policy. In 
 the accomplishment of this purpose, the crime of murder (the defini- 
 tion of which, contained in the second section of the statute, is bor- 
 rowed in exact terms from the common law) is divided into two 
 
KILLING OF ONE PERSON IN MISTAKE FOR ANOTHER. 365 
 
 grades, with a view solely to the graduation of the punishment. The 
 third section enacts that, "all murder that shall be perpeti'ated by 
 means of poison, lying in wait, or any other kind of wilful, delibe- 
 rate, malicious, and premeditated killing; or which shall be commit- 
 ted in the perpetration of, or attempt to perpetrate any arson, rape, 
 robbery, burglary or larceny, shall be deemed murder in the first 
 degree ; and all other kinds of murder shall be deemed murder in the 
 second degree." In this general definition, and enumeration of 
 specific instances constituting murder in the first degree, there is a 
 classification of various kinds of homicide, which it may be of some 
 importance to notice, with a view to the question under considera- 
 tion. In cases of murder by means of poison, or lying in wait, the 
 most atrocious and detestable of all kinds of homicide, and the least 
 to be guarded against, either by resistance or forethought, the crime 
 is made to depend exclusively upon the "means" causing death. So, 
 likewise, in respect to cases of murder committed in the peipetra- 
 tion of, or attempt to perpetrate arson, rape, robbery, burglary, or 
 larceny; a class of felonies most dangerous in their consequences to 
 public safety and happiness, which may be most frequently and easily 
 committed, and to which there is the strongest temptations. In all 
 these cases, the mode or "means" of destroying life, supplies a con- 
 clusive legal presumption of malice and guilty intention ; the crime, 
 as well as the guilt of the agent, is made to depend alone upon the 
 fact of taking life in eitlier of the specified modes. In such cases the 
 question of malice or intention, as a matter of fact, is whollj^ irre- 
 levant; it need not be proved, and cannot be controverted by the 
 accused. But the remaining species of murder defined in the statute, 
 namely, murder "by any other kind of wilful, deliberate, malicious, 
 and premeditated killing," falls within the operation of a directly 
 contrary principle. Here, the character of the crime and guilt of the 
 agent, are made to depend exclusively upon the mental status, at the 
 time of the act, and with reference to the act which produces death. 
 This accumulated definition of murder in the first degree, takes in all 
 the ingredients of crime descriptive of the utmost malignity and 
 wickedness of heart, as well as of the highest and most aggravated 
 species of homicide. If the universal principle of construction is to 
 be regarded, that every Avord in a statute is to have meaning and 
 effect given to it, if practicable, it results of necessity, by force of the 
 terms employed in the definition of the crime, that to constitute mur- 
 der in the first degree, it must be established that there existed in the 
 mind of the agent, at the time of the act, a specified intention to take 
 the life of the particular person slain. The characteristic quality of 
 this crime, and that which distinguishes it from murder in the second 
 degree, is the existence of a settled purpose and fixed design on the 
 part of the assailant, that the act of assault should result in the death 
 of the party assailed; that death being the end aimed at, the subject 
 sought for and wished.^ The "killing" must be wilful, that is, of 
 purpose, with the intent that the act by which the life of a party is 
 taken, should have that efl^'ect.* "Proof must be adduced to satisfy 
 the mind, that the death of the party slain was the ultimate result 
 
 1 4 Hump. 136, 139. » Terg. 551. 
 
366 MURDER IN THE FIRST DEGREE. 
 
 which the concurring will, deliberation and premeditation of the party- 
 accused, sought."' If, then, by misadventure or other cause, a blow, 
 directed at a particular person and designed to take his life, take 
 effect upon, and cause the death of a third person, against whom no 
 injury was meditated, can it be said, that the will concurred with the 
 act, which resulted in the accidental death of such third person; or 
 that there existed a specific intention to take his life? A grosser ab- 
 surdity cannot be conceived. The hypothesis that the killing was 
 undesigned, concedes that the will did not concur with the act; that 
 in point of fact no such specific intention existed, no such lawsuit was 
 either contemplated or designed. And upon what principle is it, that 
 this would be murder at common law? Simply upon the principle of 
 implied or imputed malice and intention. In such case, all the essen- 
 tial elements of murder at common law occur. A homicide has been 
 committed with deadly weapon, in the attempt to perpetrate a felony, 
 by taking the life of another person without legal justification as 
 excuse, and in such case, from the circumstances and deadly weapon, 
 the law conclusively presumes malice and intent to murder; and in 
 like manner, the law conclusively presumes that the party contem- 
 plated the consequences of his own act. There is another principle ap- 
 plicable in such cases, namely, the law by imputation, so to speak, re- 
 fers the act of murder to the felonious intent existing in the mind 
 of the agent toward the principal object of his revenge. " Thus," says 
 Blackstone,^"if one shoots at and misses A., but killsB., this is murder; 
 because of the previous felonious intent, which the law transfei'S from 
 the one to the other." But we have seen that murder in the first de- 
 gree, as constituted by our statute, depends upon the existence of a 
 specific intention to take the life of a person slain, and that the exist- 
 ence of such an intention as a matter of fact, must be satisfactorily 
 established. Hence it is clear to a demonstration, that all legal im- 
 plication or imputation of such an intention, is excluded in reference 
 to this particular species of murder. It is equally clear that all cases 
 of homicide, not falling within the principles here announced, pro- 
 perly belong to the comprehensive class, included in the statute, of 
 "all other kinds of murder," which are declared to "be deemed mur- 
 der in the second degree." To murder of this class, as well as to all 
 inferior grades of homicide, the common law principle, asserted in 
 the charge of the circuit judge, is clearly applicable. We are aware, 
 that in Pennsylvania, upon a statute almost identical in its terms with 
 our own, a different construction has prevailed. In the case of the 
 Commonwealth v. Dougherty, it appears, from the note of the case, 
 to which only we have had access, that the prisoner aimed a blow 
 with an axe at his wife, and it fell upon the head of a child which 
 lay on her shoulder, and inflicted a mortal wound, of which it died. 
 And it was held by the Court, that if the person's intent was to kill 
 his wife, and killing her would have been murder in the first degree, 
 killing his child will also be murder in the same degree. Vvith 
 deference to an authority so respectable, we think it very clear, that 
 no such conclusion can be legitimately deduced from the premises. 
 We regret that we have not seen the opinion at length, in the case 
 
 ' 1 Leigh's Rep. 611. 2 4 Bl. Com. 201. 
 
MEANING OP "WILFUL," "DELIBERATE," ETC. 367 
 
 above mentioned. The brief extract before us, merely asserts the 
 proposition we have quoted; the process of reasoning by which the 
 conclusion is supposed to be maintained is not given in the note. 
 We confess ourselves at a loss to understand in what sense it can be 
 predicated of the act of the prisoner in "killing his child," that it 
 was wilful, deliberate, and premeditated, and more especially, how 
 it can be made out that the will concurred with the act in such case. 
 The contrary construction, we think, is alone compatible with the 
 plain terms of the statute, whether we regard their proper or popular 
 acceptation; with the obvious spirit of the statute, which was to 
 alleviate the punishment of murder, except in cases of the greatest 
 enormity; with the benignant principle of interpretation, that, in 
 favour of life a statute is to be construed most favourably in behalf 
 of the accused, and most strictly against him, and finally with that 
 intrinsic and fundamental distinction, in respect to the relative guilt 
 of human actions, dependent upon the concurrence and non-concur- 
 rence of the will, which we trace back as far as the Jewish dispen- 
 sation, under which cities of refuge were provided to the end, " that 
 every one that killeth any person unawares may flee thither, and be 
 secure from the avenger of blood." ' 
 
 We now proceed to the consideration of the general definition of 
 murder in the first degree, within which, in fact, most of the cases fall. 
 By the Pennsylvania act, and by those which are directly copied from 
 it, it is declared that murder committed " by any other kind of wilful, 
 deliberate, and premeditated killing," shall be murder in the first de- 
 gree. 
 
 The first question that here arises is as to the meaning of the word 
 " other," It has been frequently argued, and still is, that " other " in this 
 sense means, such other. This question is fully discussed in the opinion 
 of Mr. Justice Daniel, which has been already referred to. "The coun- 
 sel for the prisoner," he said, " has supposed, and argued in support of 
 his supposition, that the words ' any other kind of wilful, deliberate, or 
 premeditated killing,' ought to be construed, and of necessity, as re- 
 ferring to the character or kind of killing, or murder specified in the 
 previous enumeration, (by means of poison, lying in wait, duress of 
 imprisonment or confinement, starving, wilful, malicious, or excessive 
 whipping, beating or other cruel torture,) as if it read, 'any other 
 kind of such wilful, deliberate or premeditated killing;' because, 
 otherwise, as he supposes, the preceding particular enumeration would 
 be useless. Now, a plain and invincible answer to this argument, is 
 the import of the terms used; other and such. Other killing, means 
 any other whatever, which is different from the same ; such killing 
 would refer to the modes of killing enumerated, and confine itself to 
 the kindof killing enumerated, and the means by which it was effected. 
 To admit this construction of the prisoner's counsel, would be to al- 
 low that the legislature meant nothing, or did not understand what 
 it meant, when it used, upon this very important subject of life and 
 death, those words of plain and obvious import, 'any other kind of 
 wilful, deliberate and premeditated killing.' This is what this court 
 cannot admit. Poison may reach the life of one or more not within 
 
 1 Bratton v. State. 10 Humph. 103. 
 
368 MURDER m THE FIRST DEGREE. 
 
 the design of him who lays the bait; lying in wait, may be with a view 
 of great injury, abuse and bodily harm, without the settled purpose 
 to kill; imprisonment or confinement, or starving, may be with a view 
 to reduce the victim to the necessity of yielding to some proposed con- 
 ditions, as well as a punishment for the failure of prompt obedience, 
 without any fixed determination to destroy life; and the same may be 
 said of malicious or excessive whipping, beating, or other cruel tor- 
 ture. In all these enumerated cases, the legislature has declared the 
 law, that the perpetrator shall be held guilty of murder in the first 
 degree, without further proof that the death was the ultimate result 
 which the will, deliberation, and premeditation of the party accused 
 soii'^ht. And the same authority has declared the law, that any other 
 kind of killing, which is sought by the will, deliberation, and pre- 
 meditation of the party accused, shall also be murder in the first de- 
 gree; but as to this other kind of killing, proof must be adduced to 
 satisfy the mind, that the death of the party slain was the ultimate re- 
 sult which the concurring will, deliberation, and premeditation of the 
 party accused, sought. But to this general rule the same authority 
 adds an exception, which is, that any death consequent upon the per- 
 petration or attempt to perpetrate any arson, rape, robbery, or bur- 
 glary, shall be deemed murder in the first degree: and all other mur- 
 der at common law, shall be dee.med murder in the second degree. 
 So that the cases within the exception, as now put, and the cases enu- 
 merated as first mentioned, are, in fact, placed upon the same princi- 
 ple; there is no necessity of proof in either, to establish the fact that 
 a homicide was intended. And it follows, of course, that all other 
 homicide which was murder at common law, is now murder in the se- 
 cond degree, except when it shall be proved that the homicide was the 
 result of a 'wilful, deliberate, and premeditated killing;' and it also 
 follows, of necessity, that, when by the proof the mind is satisfied that 
 the killing was wilful, deliberate, and premeditated, such killing must 
 be taken and held to be murder in the first degree."^ 
 
 Supposing then that the act reads, "any kind of wilful, deliberate, 
 and premeditated killing," the inquiry arrives as to the general mean- 
 ing of this last clause. According to the settled rule, for the construc- 
 tion of penal statutes, "killing," to be murder in the first degree, must 
 possess each of the features here conjunctively stated. It must be 
 (1) wilful, (2) deliberate, and (3) premeditated. The distinctive points 
 of these terms it is not easy accurately to determine, though from 
 their being used copulatively, it is proper to suppose that they are 
 to be read, not as representing the same, but distinct inflections of 
 meaning. Viewed in this light, we may define wilful as involving 
 the element of individual intent; deliberate, that of calmness as dis- 
 tinguished from passion; mA premeditate, that of prior consideration, 
 as distinguished from instantaneousuess. 
 
 (1.) Wilful. The doubt which arises from the use of this term, has 
 already been noticed. Can an unintended act be said to be wilful, and 
 if so, can the homicide of one party when another was intended, be 
 such? It has been seen that on this point, there exists some conflict 
 of authority. Keeping in view the severity which the construction of 
 a penal statute requires, and recollecting that the term as used in this 
 
 " Com. II. Jones, 1 Leigli, 610. 
 
MEANING OF "WILFUL AND DELIBEEATE." 369 
 
 case was meant to be restrictive, the better view seems to be that in 
 order to bring a homicide within the act, it must have been specially 
 willed by the perpetrator. It is difficult to see how if homicide of 
 an unintended person be within the act, any other kind of murder 
 with a collateral felonious intent can be excluded. 
 
 (2.) Deliberate. That species of homicide, which is the result of 
 justly provoked passion, falls at common law under the head of man- 
 slaughter, and of course is out of the question here. But there are 
 many cases of murder at common law, which are mdeliberate. Put- 
 ting aside homicides perpetrated in pursuance of a collateral felonious 
 intent, which have already been considered, we have those cases where 
 the intellect is so confused by drink or stimulus, or by undue, and 
 yet not homicidal passion, as to be incapable of deliberation. These 
 cases are all murder at common law, but it would seem that they want 
 the essential features of deliberation to make them murder here. 
 
 Intoxication, when existing to a sufficient extent to prevent deli- 
 beration, lowers the offence to the second degree.^ "Except in the 
 case of murder, which happens in consequence of actual or attempted 
 arson, rape, robbery or burglary," says Judge Lewis, now of the 
 Supreme Court of Pennsylvania, "a deliberate intention to kill is 
 the essential feature of murder in the first degree. When this in- 
 gredient is absent, where the mind from- intoxication, or any other 
 cause, is deprived of its power to form a design, with deliberation and 
 premeditation, the offence is stripped of the malignant features re- 
 quired by the statute to place it on the list of capital crimes; and 
 neither courts nor juries can lawfully dispense with what the act of 
 assembly requires."^ 
 
 And so in a recent case in Tennessee, Green, J., said, "Upon the 
 trial, there was evidence that the prisoner was intoxicated at the 
 time he committed the homicide." Upon the subject of the defen- 
 dant's intoxication thejudge told the jury, that "Voluntary intoxication 
 is no excuse for the commission of crime; on the contrary, it is consi- 
 dered by our law as rather an aggravation ; yet if the defendant was 
 so deeply intoxicated by spirituous liquors at the time of the killing, 
 as to be incapable of forming in his mind a design deliberately and 
 p^'emeditatedly to do the act, the killing under such a state of intox- 
 ication, would only be murder in the second degree." It is insisted 
 that his honour did not state the principle upon this subject, as it has 
 been ruled by this court. In the case of Swan v. The State,^ Judge 
 Eeese, who delivered the opinion of the court, says: "But although 
 drunkenness in point of law constitutes no excuse or justification for 
 crime, still, when the nature and essence of a crime is made to depend 
 by law, upon the peculiar state and condition of the criminal's mind 
 at the time, and with reference to the act done, drunkenness, as a 
 matter of fact, affecting such state and condition of the mind, is a 
 proper subject for consideration and inquiry by the jury. The ques- 
 tion in such case is, what is the mental status? Is it one of self-pos^ 
 session, favourable to a fixed purpose, by deliberation and premedita- 
 tion, or did the act spring from existing passion, excited by inade- 
 
 1 Com. V. Jones, 1 Leigh, 612: Com. v. Haggerty, lewis, C. L. 403; Pirtle v. State, 
 9 Humph. 664. 
 
 2 T „„;„ n T inr, 3 4 Tiiimri P. 136. 
 
370 MURDER IN THE FIRST DEGREE. 
 
 quate provocation, acting, it may be, on a peculiar temperament, or 
 upon one already excited by ardent spirits? In such case it matters 
 not that the provocation was inadequate, or the spirits voluntarily 
 drank; the question is did the act proceed from sudden passion, or 
 from deliberation or premeditation? What was the mental status at 
 the time of the act, and with reference to the act? To regard the 
 fact of intoxication as meriting consideration in such a case, it is not 
 to hold that drunkenness will excuse crime, but to inquire whether 
 the very crime which the law defines and punishes, has been in 
 point of fact committed. In these remarks the court intended to be 
 understood, as distinctly indicating, that a degree of drunkenness by 
 which the party was greatly excited, and which produced a state of 
 mind unfavourable to deliberation and premeditation, although not 
 so excessive as to render the party absolutely incapable of forming 
 a deliberate purpose, might be taken into consideration by a jury, in 
 determining whether the killing was done with premeditation and 
 deliberation. The whole subject was ably reviewed by Judge Tur- 
 ley, in the case of Pirtle v. The State.^ In delivering the opinion of 
 the Court, in that case, the Judge says, at page 671: "It will fre- 
 quently happen necessarily, when the killing is of such a character 
 as the common law designates as murder, and it has not been perpe- 
 trated by means of poison, or by lying in wait, that it will be a vexed 
 question, whether the killing has been the result of sudden passion 
 produced by a cause inadequate to mitigate it to manslaughter, but 
 still sufiScient to mitigate it to murder in the second degree, if it be 
 really the true cause of the excitement, or whether it has been the 
 result of premeditation and deliberation; and in all such cases what- 
 ever fact is able to cast light upon the mental status of the offender 
 is legitimate proof: and among others, the fact that he was at the 
 time drunk; not that this will excuse or mitigate the offence, if it 
 were done wilfully, deliberately, maliciously, and premeditatedly; 
 (which it might well be, though the perpetrator was drunk at the time,) 
 but to show that the killing did not spring from a premeditated purpose, 
 but sudden passion, excited by inadequate provocation, such as might 
 reasonably be expected to arouse sudden passion and heat, to the 
 point of taking life, without premeditation and deliberation." Here, 
 the court explicitly lays down the rule to be, that in all cases where 
 the question is between murder in the first and murder in the second 
 degree, the fact of drunkenness may be proved, to shed light upon 
 the mental status of the offender, and thereby to enable the jury to 
 determine whether the killing sprung from a premeditated purpose, 
 or from passion excited by inadequate provocation. And the degree 
 of drunkenness which may then shed light upon the mental state of 
 the offender, is not alone that excessive state of intoxication, which 
 deprives a party of the capacity to frame in his mind a design delibe- 
 rately and premeditatedly to do an act; for the court says that in 
 the state of drunkenness referred to, a party well may be guilty of 
 killing wilfully, deliberately, maliciously, and premeditatedly; and 
 if he so kill, he is guilty as though he were sober. The princi- 
 ple laid down by the court is, that when the question is, can drunk- 
 
 ' 9 Hum. Rep. 663. 
 
WILFUL AND DELIBEEATB— MEAKIKG OF. 371 
 
 enness be taken iuto consideration, in determining whether the party be 
 guilty of murder in the second degree, the answer must be, that it 
 cannot, but when the question is, what was the actual mental state 
 of the perpetrator, at the time the act was done, was it one of delibe- 
 ration and premeditation, then it is competent to show any degree of 
 intoxication that may exist, in order that the jury may judge, in view 
 of such intoxication, in connexion with all the other facts and cir- 
 cumstances, whether the act was premeditatedly, and deliberately 
 done. The law often implies malice from the manner in which the 
 killing was done, or the weapon with which the blow was stricken. 
 In such case it is murder, though the perpetrator were drunk. And 
 no degree of drunkenness will excuse in such case, unless by means 
 of drunkenness an habitual or fixed madness be caused. The law in 
 such cases, does not seek to ascertain the actual state of the perpe- 
 trator's mind, for the fact from which it is implied having been proved, 
 the law presumes its existence, and proof in opposition to this pre- 
 sumption, is irrelevant and inadmissible. Hence a party cannot show 
 he was so drunk, as not to be capable of entertaining a malicious 
 feeling. The conclusion of law is against him. But when the ques- 
 tion is, whether a party is guilty of murder in the first degree, it be- 
 comes indispensable that the jury should form an opinion as to the 
 actual state of mind with which this act was done. All murder in 
 the first degree, (except that committed by poison, and by lying in 
 wait,) must be perpetrated wilfully, deliberately, maliciously, and 
 premeditatedly. The jury must ascertain as a matter of fact, that 
 the accused was in this state of mind when the act was done. Now 
 according to the cases of Swan v. The State, and Pirtle v. The State, 
 any fact that will shed light upon this subject, may be looked to by 
 them, and may constitute legitimate proof for their consideration. 
 And among other facts, any state of drunkenness being proved, it is 
 a legitimate subject of inquiry, as to what influence such intoxication 
 might have had upon the mind of the offender, in the perpetration of 
 the deed. We know that an intoxicated man will often, upon a 
 slight provocation, have his passions excited, and rashly perpetrate a 
 criminal act. Now, it is unphilosophical for us to assume, that such a 
 man would in the given case be chargeable with the same degree of 
 premeditation, and deliberation, that we would ascribe to a sober 
 man, perpetrating the same act upon a like provocation. It is in this 
 view of the question, that this court held, in Swan's case, and in Pir- 
 tle's case, that the drunkenness of a party might be looked to by 
 the jury, with the other facts in the case, to enable them to decide 
 whether the killing were done deliberately and premeditatedly. 
 But his Honour, the circuit judge, told the jury, that drunkenness was 
 an aggi'avation of the offence, unless the defendant was so deeply in- 
 toxicated, as to be incapable of forming in his mind a design delibe- 
 rately and premeditatedly to do the act. In this charge there is error, 
 for which the judgment must be reversed. Reverse the judgment, 
 and remand the cause for another trial." ^ 
 
 Excitement or passion, though not of a character to lower the of- 
 fence to manslaughter, may yet operate to bring it to the second de- 
 
372 MURDER IN THE FIRST DEGREE. 
 
 gree. A striking illustration of this is to be found in the riot cases 
 tried in Philadelphia, in 1844, and which are fully reported in the 
 appendix.' It was there held by a very able judge,_ that where 
 bodies of men are labouring under continued fresh excitement, and 
 under its influence arm themselves, and when death ensues, the ofl'ence 
 is murder in the second degree. And of this a sound test is the time 
 ■when the deadly weapon was seized. If it was sought when the mind 
 was cool, in pursuance of a revengeful purpose, it is conclusive as to 
 deliberation. If, on the other hand, it was snatched up during the 
 period of excitement, or passion, no matter whether that period was 
 long or short, there is a strong presumption in favour of the milder 
 grade. 
 
 (3.) Premeditate. It is here that the most difficult questions arise. 
 It has been said that a positive previous intent to take life must be 
 shown,^ but this opinion has since been recalled by the court that de- 
 livered it,^ and is opposed to the weight of authority elsewhere. And 
 it has also been said that when the fact of death alone is proved, the 
 presumption is that it is murder in the second degree, it being in- 
 cumbent on the prosecution to rebut this by something, however 
 slight, from which premeditation can be inferred." But be this as it 
 may — and when analyzed the position varies very little from that of 
 the crown writers on murder, who draw the presumption of malice 
 aforethought, not from the fact of death, but from the nature of the 
 wound, instrument, &c., — there is a general concurrence of authority 
 on the general meaning of premeditation. It involves a prior inten- 
 tion to do the act in question. It is not necessary that this intention 
 should have been conceived for any particular period of time. It is 
 as much premeditation, if it entered into the mind of the guilty agent 
 a moment before the act, as if it entered into it ten years before.' And 
 
 1 See also ante, 350-3. a Mitchell v. State, 5 Yerger, 340. 
 
 3 State V. Andrews, 2 Tenn. 6; Dale v. State, 10 Yerg. 551. 
 
 '- Hill's case, 2 Oratt. 594. State v. Turner, Wright, 30. 
 
 5 XMs is very lucidly shown in a late case in New York, where the learned judge de- 
 livering the opinion of the court, said, "Malice prepense, however, had attained a 
 broader meaning than belongs to the term premeditated design. The intent to take life 
 was not necessary to constitute malice prepense. Even express malice, or malice in 
 fact, is defined to be a deliberate intention of doing any bodily harm to another, unau- 
 thorized by law, (Hale, P. C, 451,) and by no means necessarily involved an intent to 
 take life._ The change, therefore, which the statute has effected, by substituting the 
 word design in place of malice, is not to alter the nature or design of premeditation re- 
 quisite in the crime of murder, but to require,— which the common law did not require, 
 —the existence of an actual intention to kill, to constitute that crime under the first 
 sub-division of the 5th section. This view of the law is well sustained by the decisions 
 in those states where the crime of murder has been distinguished by statute, into mur- 
 der, in the 1st a,nd 2d degrees. In those states, wilful, deliberate and premeditated 
 killing, IS murde)< in the 1st degree. Tlie cases are very ably reviewed in Wharton's 
 Am. Crim. Law, (2d Ed.) pp. 42U and seq., and the clear result of them is, that in cases 
 of deliberate homicide, where there is a specific intention to take life, the ofl'ence, if 
 consummated, is murder in the 1st degree. The degree of deliberation is not difterent 
 from that required by the common law. As was said by.Chief Justice M'Kean in lies. 
 V. Bob, 4 Dal., 140, "the intention remains as much as ever the true criterion of crime 
 in law as well as in ethics. Let it be supposed that a man without uttering a word 
 should strike another on the head with an axe, it must on every principle by which we 
 can judge of human actions be deemed a premeditated violence." If there be a suffi- 
 cient deliberation to form a design to take life, and to put that design into execution by 
 destroying life, there is suflScient deliberation to constitute murder, no matter whether 
 the design be formed at the Instant of stvikmg the fatal blow, or whether it be contem- 
 
PREMEDITATE — MEANING OF. 373 
 
 tlie reason of this is obvious. In the first place, if in order to make 
 murder in the first degree it be necessary the idea should have been 
 conceived a weeii or a day ahead, there will be no murder in the first 
 degree at all, for the guilty party will take care that the conception 
 be concealed until the limitation is passed. In the second place, all 
 psychological investigation shows that the process of conception is 
 instantaneous, and that it knows no adolescence or minority. Under 
 these views, and inasmuch as it is necessary that a line should be 
 drawn somewhere, and as the most proper place for it to be is at the 
 root of the evil, the courts have generally united in holding that while 
 there must be some sort of pre-meditation, (i. e., the blow must not be 
 the incident of mania or a sudden paroxysm of passion, such as de- 
 stroys the intellectual powers,) a moment is as sufBcient to complete 
 the offence as a year. 
 
 The inference of premeditation from the use of a fatal weapon, was 
 drawn very forcibly by Chief Justice M'Kean, in the earliest reported 
 Pennsylvania case. It appeared that a considerable number of 
 negroes assembled; and about ten o'clock at night a quarrel arose 
 between mulatto Bob, the prisoner at the bar, and negro David, the 
 deceased. For awhile, the parties fought with fists; and the pri- 
 soner was heard to exclaim "enough!" The affray, however, became 
 general, and continued so for some time. When it was over, the 
 prisoner went to a neighbouring pile of wood, and furnished himself 
 with a club. He was advised not to use it, but he declared that he 
 would, and entered the crowd with it in his hand. After remaining 
 there about ten minutes, he left the crowd without his club; and, 
 again repairing to the wood-pile, took up an axe. Being, likewise, 
 dissuaded from returning to the crowd with the axe, he said "he 
 would do it;" and striking the instrument, with great passion, into 
 the ground, swore that he would "split down any fellows that were 
 saucy." Accordingly, he mixed once more among the people; a 
 struggle was immediately heard about the axe; the prisoner then 
 struck the deceased with it on the head; the deceased fell; and as 
 he was attempting to rise, the prisoner gave him a second blow on 
 the head with the sharp edge, which penetrated to the brain. After 
 languishing three days, death was the consequence of this wound. 
 "Prom these facts," said the chief justice, in summing up the evi- 
 dence, "we are to inquire what crime the prisoner has committed? 
 Murder, in the first degree, is the wilful, deliberate, and premedi- 
 tated killing of another. There are various inferior kinds of homi- 
 
 plated for months. It is enough that an intention precedes, the act follows instantly. 
 The law has no favour to extend either to rapid or close execution of such a design. In 
 the case before us, there was no provocation, no mutual combat, no heat of passion 
 which the law can recognise — for outbursts of ungovernable passion do not excuse a 
 man for any acts of atrocity lie may commit under their influence; men are bound to 
 control their passions, and if they suifer them to run away with their reason and senses, 
 they ought to suffer for it." State v. Spencer, 1 Bab. 206. We cannot discern a single 
 circumstance which tends in any degree to soften one feature of the atrocity of the de- 
 fendant's crime. Intending to take his victim's life, the defendant beat him upon the 
 head with a deadly weapon, until his design was accomplished. This crime is, by our 
 laws, murder; and we are well satisfied not only that this is the law, but that it could 
 not be relaxed so as to exclude such cases as the present, without substantially dimi- 
 nishing the security of human life. Johnson, J., People v. Clark, N. Y. Ct. of Appeals, 
 11 N. Y. Leg. Obser. 22. 
 
374 MUEDEE IN THE FIfiST DEGEEE. 
 
 cide ; but, on the present indictment, our attention is confined to a 
 consideration of the highest and most aggravated description of 
 crime. Then, let us ask, did the prisoner wilfully kill the deceased? 
 It is not pretended that .there was any accident in the case; and, 
 therefore, the act must have been wilful. Was the killing deliberate 
 and premeditated? or was it the effect of sudden passion, produced 
 by a reasonable provocation? There had been a combat with fists; 
 but this was over, when the prisoner, without any new provocation, 
 first procured a club, and losing that weapon, afterwards armed him- 
 self with an axe. It cannot surely be thought that the original 
 combat was a sufficient provocation for the prisoner's taking the life 
 of his antagonist. An assault and battery may, indeed, be resisted 
 and repelled by a battery more violent; but the life of a fellow 
 creature must not be taken, unlfess in self-defence. It has been 
 objected, however, that the amendment of our penal code renders 
 premeditation an indispensable ingredient, to constitute murder of 
 the first degree. But still, it must be allowed, that the intention 
 remains, as much as ever, the true criterion of crimes, in law, as well 
 as in ethics; and the intention of the party can only be collected 
 from his words and actions. In the present case, the prisoner de- 
 clared, that he would ' split the skull of any fellows who should be 
 saucy;' and he actually killed the deceased in the way which he had 
 menaced. But, let it he supposed, that a man, without uttering a 
 word, should strike another on the head with an axe, it must, on every 
 principle by which we can judge of human actions, he deemed a pre- 
 meditated violence. The construction which is now given to the act 
 of assembly, on this point, must decide whether the law shall have 
 a beneficial or a pernicious operation. Before the act was passed, 
 the prisoner's oiJence would clearly have amounted to murder ; all 
 the circumstances implying that malice, which is the gist of the defi- 
 nition of the crime at common law: and if he escapes with impunity 
 under an interpretation of the act different from the one which we 
 have delivered, a case can hardly occur to warrant a conviction for 
 murder in the first degree. Tenderness and mercy are amiable 
 qualities of the mind; but if they are exercised and indulged beyond 
 the control of reason and the limit of justice, for the sake of indi- 
 viduals, the peace, order, and happiness of society, will inevitably 
 be impaired and endangered. As far as respects the prisoner, I 
 lament the tendency of these observations: but as far as respects tlie 
 public, I have felt it a sacred duty to submit them to your considera- 
 tion." The jury rendered a verdict of guilty of murder in the first 
 degree.^ 
 
 In a case occurring shortly afterwards in Virginia, it appeared on 
 trial, that about nine o'clock of the morning on which the homicide 
 was committed, the prisoner and the deceased were seen together in 
 the streets of Dumfries, as if about to engage in a personal conflict, 
 but before any blow they were separated. They had both remained 
 in town from that time until between one and two o'clock of the 
 same day, but how employed, it did not appear; about the latter 
 hour, the prisoner was seen passing a tavern on the street, about four 
 
 1 R. V. Mulatto Bob, 4 Ball. 145. 
 
MEANING OF PREMEDITATE. 375 
 
 hundred yards distant from the spot where the murder was com- 
 mitted, and, on being accosted by the witness, who was in the said 
 tavern, he said he had been much injured by a man, whose name he 
 knew not, who had kicked him in the face; and the witness saw on 
 the side of prisoner's nose, a fresh wound, from which the skin had 
 been abraded to the superficial extent of a fourpence half-penny, or 
 ninepenny piece. The prisoner seemed angry, and said he was de- 
 termined to kill the man who had thus injured him. He then pro- 
 ceeded on about thirty yards further, to the house of a butcher, who 
 was then at dinner, told her that her father (who was also concerned 
 with her husband in the trade of a butcher,) had sent him to borrow 
 her husband's butcher knife, which she immediately delivered to 
 him. The shop where this took place, was about four hundred and 
 thirty yards from that where the murder was committed. Upon his 
 return, in about five or six minutes, from the last mentioned shop, 
 with the knife in his hand, as he was passing the tavern before men- 
 tioned, a short conversation took place between him and the first 
 mentioned witness, in which he reiterated his intention to kill the 
 deceased, and was warned against the act by the witness. He pro- 
 ceeded along the same street about three hundred yards farther and 
 stopped at the ware-room of a merchant, where he asked the young 
 man who was in attendance, for a steel to sharpen the butcher's 
 knife, declaring his intention to kill the man who had injured him. 
 About twenty yards from the ware-room he turned into a cross 
 street, and was heard denouncing loud threats of vengeance against 
 the deceased, and declaring his intention to kill him. At the further 
 corner of the first square, after entering the cross street, the prisoner 
 found the deceased on the steps of a house, with his head hanging on 
 his breast, apparently asleep. He roused the deceased by kicking 
 him, and as the deceased, who was unarmed, and made no attempt at 
 resistance, rose, the prisoner said he had come to kill him, and as the 
 deceased answered that " he reckoned no man wanted to kill him," 
 the prisoner thrust the butcher's knife into the breast of the deceased. 
 The deceased cried out, "You have stabbed me," and the prisoner 
 replied, "Damn you, if you don't hush, I will put the knife into you 
 again." The deceased walked about one hundred and fifty yards, 
 fell, and expired. The prisoner immediately going into a shop where 
 lie had a bundle, took it up, and walked quietly out of town to a 
 house about two miles distant, where he was domesticated. To the 
 owner of this house he related the incidents, and said he had given 
 the deceased his death wound, and would keep out of the way some 
 days, until he could ascertain whether or not he was dead. The 
 prisoner and the deceased were both labourers. It was proved that 
 the deceased was a turbulent man, and reputed a hard fighter. 
 Nothing was said of the character of the prisoner. It did not appear 
 that they had ever been together until the day preceding the death, 
 when they were at a cock-fight; but whether they had any associa- 
 tion there, did not appear. At the time of the murder, the prisoner 
 either did not know, or had forgotten the name of the deceased. 
 Under the charge of the court a verdict of murder in the first degree 
 was rendered.' 
 
 1 Burgess v. Com. 2 Yirg. Cases, 484. 
 
376 MUEDER IN THE FIRST DEGREE. 
 
 In another case under the Pennsylvania act, which was tried before 
 the Court of Oyer and Terminer of Philadelphia county, which is 
 reported in full in the appendix to this chapter, it appeared that the 
 prisoner was an honest and industrious man, but addicted to intoxi- 
 cation, and when in that state was quarrelsome. It also appeared 
 that his wife occasionally drank too much ; and that on the day of 
 the fatal occurrence they had fallen into a drunken squabble. 
 During the quarrel the wife threw several stones at him, one of 
 which struck him on the arm. A few moments after they were seen 
 struggling together, but soon after the wife was discovered fleeing 
 with her infant in her arms, the prisoner pursuing her with an axe 
 in his hand. When he came within reach of her he aimed a blow 
 at her which fell on the head of the child as it lay upon the wife's 
 shoulder, and caused a mortal wound, of which the child died. The 
 prisoner soon recovered himself and showed many signs of repent- 
 ance, and manifested much distress at the manner of the child's 
 death. The learned judge who tried the case, in the course of his 
 charge to the jury, said: "We now come to this point; — what was 
 the intention of the prisoner in the bar when he killed Daniel 
 Dougherty, his child? for, if his intent was to kill his wife, and kill- 
 ing her would have been murder in the first degree, killing his child 
 will also be murder in the same degree; as much as if he had pre- 
 pared a cup of poison for his wife, and his child had drank it. Yon 
 however are in this case to judge of the law and facts. If you are 
 of the opinion the injury the prisoner received from his wife throw- 
 ing stones at him, and hitting him, kept his passion boiling until he 
 gave the fatal blow, we think it our duty to find him guilty of man- 
 slaughter. But if you are of opinion his passion had time to cool, 
 or in fact had cooled, after the assault on him by his wife, it is your 
 duty to convict him of murder in the first degree. The verdict was 
 manslaughter.^ 
 
 Shortly afterwards, in the same court, Richard Smith and Ann 
 Carson were tried for the murder of John Carson. It appeared from 
 the evidence, (which, with the charge of the court, is reported in the 
 appendix to this chapter,) that the deceased had been married about 
 fifteen years to the defendant, Ann Carson, and had lived with her the 
 first eleven years of their marriage, but after that period had left the 
 country, and had not been heard from, as was alleged on the part of the 
 defendants, till a short time before his decease. In the meantime, the 
 defendant Carson, believing or pretending to believe that her husband 
 was dead, married the defendant Smith; Carson however returned, 
 and finding the defendant Smith in possession of his marital rights, 
 a quarrel ensued, which was, however, temporarily adjusted. On 
 the seventeenth day of January the prisoner and the deceased dined 
 together at the house of the latter, on which occasion Carson got en- 
 raged, at seeing the prisoner assume the direction of his children and 
 his servants, and seizing a knife, made an attempt to strike Smith, 
 who laid hold of his arm, on which the deceased, with the other 
 hand, took up another knife. Smith fled down the stairs, pursued by 
 Carson, with the two knives in his hands. The evening of tlie same 
 
 1 Com. V. Dougherty, 7 Smith's Laws of Perm. 695. 
 
"premeditate" — MEANING OP. 377 
 
 day the prisoner was seen in the kitchen with a pair of pistols, one 
 of which was loaded, and it appeared that he then declared, that if 
 Carson should enter the door to lay hands on him, he would shoot 
 him. On the following Saturday evening the prisoner came to the 
 house of Carson, and found several persons there, among whom was 
 Jonathan B. Smith, of whom the prisoner demanded a pistol, but was 
 refused. Mrs. Carson then said, "Let us go, you know where there 
 is one." The prisoner swore that if Carson attempted to touch him 
 he would kill him. Immediately after this the prisoner went up 
 stairs, and went into the parlour, where he found John Carson, Mrs. 
 Carson, and several other persons. John Carson got up, and told 
 Smith he had come to take peaceable possession of his house, that out 
 of the house he must go. The prisoner then said, "Very well," and 
 turning to Mrs. Carson, said, "Ann, shall I go?" who replied, "No, 
 stay." The prisoner then went to the north-east corner of the room, 
 and Carson following him, told him several times he must leave the 
 house. Carson had nothing in his hands. Upon this, Smith drew a 
 pistol from under his coat, and shot Carson in the mouth, and throw- 
 ing the pistol on the floor, ran down stairs. It was further in evi- 
 dence, that Smith might have left the corner in the parlour without 
 running against any body. The learned judge who tried the case 
 charged the jury, that the second marriage was invalid, that there 
 had been ample cooling time since the first quarrel, that as a princi- 
 ple of law, no aS"ront, by word or gesture, would extenuate a homi- 
 cide, and that a single moment's deliberation was sufiBcient to con- 
 stitute premeditation, under the act of assembly. Applying such 
 a view of the law to the facts of the case, he charged them that the 
 offence, if any thing, was murder in the first degree; and a verdict 
 in accordance with the charge of the court as to the defendant 
 Smith, being rendered, he was subsequently executed.^ 
 
 A verdict of murder in the first degree in Pennsylvania, was sup- 
 ported by the court, where it appeared that on the evening of the 
 fatal occurrence, Sutcliffe, the deceased, was sitting with his infant 
 in his arms, while his wife was preparing supper, when a knock 
 was heard at the door, (at the back part of the room which opened 
 upon the commons,) and Felix Murray, the defendant, entering, 
 asked if the painter was in. Having been affirmatively answered, he 
 sat down with a wheelbarrow strap in his hand. Sutcliffe handed 
 his infant to his wife ; a third person entered with a club, immediately 
 struck Sutcliffe over the head with the club, and Murray beat him 
 with the buckle end of the strap. The wife of the deceased, with 
 her infant in her arms, fled, and falling through the window into the 
 cellar, brought assistance. When she came back the assailants had 
 disappeared, but Sutcliffe was found in a state of great danger, and 
 shortly afterwards died in consequence of the wounds thus received. 
 In the course of his opinion on a motion for a new trial, Judge King 
 said: "This comprehends the great distinguishing feature between 
 the law of homicide in the two codes, and perhaps the sole one. 
 The existence of the intention to kill is ahvays, of course, a question 
 of fact for the jury; often, however, free from difficulty, but some- 
 
 1 Com. V. Smith, 2 Wheeler's C. C. 70; 7 Smith's Laws, 696, post, Appendix. 
 
378 MURDER IN THE FIRST DEGREE. 
 
 times delicate and embarrassing. When the homicide is committed 
 with a weapon deadly in its character, such as a loaded pistol, a 
 sword, a sharp axe, or other similar instrument of deadly violence, 
 the fatal intention of the perpetrator presses on the mind with irre- 
 sistible force. It is when an instrument of more equivocal kind is 
 used, that the difficulty, supposed to exist in this case, arises, and the 
 duty of the jury becomes increased in importance and complication. 
 But nevertheless, where the defendant pleads not guilty, it is the 
 duty of the jury to ascertain it; for the act of 1794: directs that ' the 
 jury before whom any person indicted for naurder is tried, shall, if 
 they find the person guilty thereof, ascertain in their verdict, whether 
 it be murder of the first or second degree.' The court, in their charge 
 in this case, carefully and fully explained the distinction of the 
 degrees of murder; expounded to the jury their duties in discrimi- 
 nating between these degrees; referred to the act of assembly 
 creating them, and the principles of the different judicial decisions 
 under it; giving to the accused every advantage imparted by either. 
 Their charge, in this particular, was all that the prisoner's counsel 
 could have, or did anticipate. The jury, comprising some of our 
 most valuable and intelligent citizens, aided by all the lights the 
 experience of the court could furnish as to the law of the case ; for 
 as to the facts, they were left wholly uninfluenced ; cautioned re- 
 peatedly and earnestly against yielding to the excitement which the 
 murder of an unofi'ending man at his own hearth-stone, was calculated 
 to produce, with the principles of the law expounded most favourably 
 to the accused, have come to a conclusion adverse to him. Admitting 
 the court to possess the authority to revise their decision, still, the 
 exercise of such a power should be influenced by the clearest reasons 
 and most cogent circumstances. But in this case, such circumstances 
 and reasons are not to be found." ^ 
 
 In a case, already cited, which was determined in the general court 
 of Virginia, where a verdict of murder in the first degree had been 
 rendered, the prisoner, to adopt the statement of the learned judge 
 by whom the opinion. of the court of appeals was delivered, " although 
 excited by strong drink, and by an insult offered to a woman, which 
 he thought himself bound to resent, and by a severe blow on himself, 
 for which he had a right of redress, was not, by any of these causes 
 or all combined, so deprived of his mental faculties, according to any 
 evidence in the cause, that he could not distinctly understand what 
 he willed and was about to do; or so that he could not reflect, and 
 reason, and deliberate and determine, and choose what he would or 
 would not do. According to the evidence, the first moving cause to 
 commit the act, which constitutes his offence, was the injury done to 
 a woman, for whom he felt an attachment; to her he promised redress 
 for tlie insult and injury which she had received; and before he had 
 himself received any personal injury, he avowed, that the measure of 
 redress which she should receive, should be filled with the heart's 
 blood of the deceased before sunset. And after he had shed the blood 
 of the deceased, as he had threatened, he said 'he had killed the 
 damn'd rascal, and was glad of it; that he would do the like to any 
 
 ' Com. V. Murray, 2 Ashmead, 56. 
 
"premeditation" — MEANING OF. 379 
 
 man who should strike the ■woman he loved, and that any man of spirit 
 would do the like.' It is true, he had received a severe blow in the 
 mean time, which was calculated to increase, and no doubt did increase, 
 his resentment against the deceased. But still he referred the revenge 
 he had sought and taken, to the original cause of the offence — the 
 blow given to the woman he loved. A considerable time elapsed be- 
 tween both causes of offence, and threats of daily revenge were made, 
 before he executed his purpose; at least three quarters of an hour; in 
 which time his resentment might have cooled. He employed this 
 time not in hasty but in deliberate preparation to execute the purpose 
 he had avowed of shedding the blood of the deceased. He dressed 
 his wound, adjusted his clothes, and, being apparently composed, deli- 
 berately arnjed himself with a dirk, or being already thus armed, went 
 abroad a considerable distance in quest of a gun; chose one with cau- 
 tious circumspection a.nd judgment; deliberately tried its fitness for 
 the object he had in view, a sure fire; primed, snapped and flashed it; 
 procured powder and lead, and loaded it; and thus armed with a 
 drawn dirk, and a loaded gun, traversed the public streets, passed 
 the market place, where, perchance, he might meet the deceased, and, 
 finally, sought him at his boat where he found him; and then, with 
 deliberate aim, shot him to death, while the deceased was unarmed, 
 unresisting, and in actual flight from him." "This must certainly," 
 said the learned judge, " be a wilful, deliberate, and premeditated kill- 
 ing," and the court of appeals, therefore, refused a new trial on the 
 merits.^ 
 
 On a trial before Judge King, in Philadelphia, in 1 826, it appeared 
 that the defendant was a drummer in the marine corps, and attached 
 to the navy yard in the district of Southwark, and that on the 19th 
 of October, 1825, he had been out of the yard, but returned between 
 the hours of two and four o'clock, and went to room No. 3. Soon 
 after his return a noise was made by some one in the room, and the 
 deceased, (who was drill sergeant of the station,) was at the time en- 
 gaged in drilling some recruits in front of the room. The deceased 
 ordered silence, and went into the room, where words were heard 
 between the defendant and Clunet, the deceased. The order was not 
 obeyed, and the noise continued. In a few minutes Clunet called 
 upon Evan W. Gamester, who was sergeant of the guard, to arrest 
 Green, the defendant. He went to the room where Green was, and 
 ordered him to come with him immediately to the guard-house. He 
 said he would go for Gamester, but not for Clunet. In a few mi- 
 nutes he called Clunet "a damned son of a bitch," or words to that 
 effect. Clunet, who had left him and gone back to the troops, stepped 
 into the room and said, "If you repeat them words again, you damned 
 scoundi-el, I'll knock you down with the musket." Clunet then held 
 his musket at an advance, and came towards Green, and raised his 
 musket with the butt towards Green, as if he meant to give him a 
 shove back. Green then threatened that if he struck him with the 
 musket, he would strike him back, or knock him down if he could. 
 Gamester then caught Green by the left arm, and pulled him towards 
 the door, to take him to the guard-house. Green then made use of 
 
 i Com. V. Jones, Opinion of Daniela, J., 1 Leigh, G12, 613, 614. 
 
380 MUEDER IN THE FIRST DEGREE. 
 
 some aggravating expressions. Clunet came at him again with the 
 musket: as he came within reach, Green jumped from Gamester and 
 made some attempts to strike him. He caught Green and held him, 
 and told him he should go to the guard-room. Clunet then came up 
 with his musket and struck him an overhand blow upon the head. 
 Green said, "it was a rascally or cowardly blow." Green was then 
 taken to the guard-house. After he got there, he asked permission 
 to go to the hospital to get his head, that was bleeding, dressed, 
 which was given to him. He returned in about fifteen minutes with 
 his head dressed. He was ordered up stairs, where he went. Ten 
 or fifteen minutes before parade, Green was in the guard-room sitting 
 by the stove quiet, and showed no passion or temper. Afterwards 
 Green said, that ^'Clunet never should strike another man; that he 
 would shoot him the first opportunity he could get ;" he further said, 
 that "t/" he could get a loaded musket, he would shoot him as he passed 
 the guard-room to the canteen." He then walked across the room 
 once or twice; when he got to the desk near the door, he made a 
 jump to the door, and seized a musket leaning against the pillar of 
 the arcade, and fired. Clunet reeled and fell. When he fired, he bit 
 his lips with great anger, and said, "he was damned glad he did not 
 shoot Sergeant Duffy." The ball entered the back between the tenth 
 and eleventh rib, about three inches to the right of the spine, passed 
 through the diaphragm, penetrated the upper circumference of the 
 liver, and came out of the front of the body on the right side, between 
 the seventh and eighth rib. Immediately after discharging the mus- 
 ket, he brought it down to a charge, and let it drop and rushed into 
 the guard-room, muttering something not understood. He was fol- 
 lowed up into the second story of the guard-room, where he was 
 commanded to surrender. He submitted, and was secured in irons, 
 during which time he was asked how he came to commit the offence. 
 Green said, " / am not sorry for it, any man would have done the same, 
 and I demand that you deliver me over to the civil authority." He 
 was then placed in a solitary cell, where" he was visited fi-equently 
 during the night. He several times asked if Sergeant Clunet was 
 dead, and said, "0 God, I must submit to my fate, and if he dies, I 
 must be hung." On the second or third day, as the officer on guard 
 opened the cell door, he heard Green exclaim, "I am damned glad I 
 shot him. I hope I hit him in the right place, and I am not sorry for 
 it." He told him he ought to take better care of what he said, and 
 to think of something else; on which he observed, "0, Mr. Barton, 
 I did not know you were here, and I did not know what I was say- 
 ing." The day Sergeant Clunet died, which was the eighth day after 
 receiving the wound, Green, who was informed of the fact, exclaimed, 
 "0, my God, I am a murderer, and must be hung." It further ap- 
 peared from the evidence produced, that the afternoon Clunet was 
 shot. Green had been drinking, but was not intoxicated. In charging 
 the jury. Judge King said, after directing attention to the question, 
 first, whether there was deliberation, and secondly, whether there 
 was a specific intention to take life, and assuming, from the evidence, 
 that both were shown to exist, "Here I conceive a state of things 
 arises, which as imperatively calls upon the court to pronounce their 
 opinion upon what they believe to be the law of the case, as it is in- 
 
"premeditation" — MEANING OF. 381 
 
 cumbent on the jury to pronounce their opinion on the law and evi- 
 dence. We will neither shrink from nor temporize with our duty in 
 this respect, but by an unequivocal expression of our judgment, take 
 that portion of the solemn responsibility of this cause which is at- 
 tached to us, as the organs through which the justice of the common- 
 wealth is to be vindicated. Upon the supposition assumed, we are 
 of opinion that the prisoner at the bar is guilty of wilful, deliberate, 
 and premeditated murder; of murder in the first degree, as it is un- 
 derstood by our act of assembly."' 
 
 The deceased, in a case occurring shortly afterwards, on the eve- 
 ning of the 9th of June, between 8 and 10 o'clock, while standing 
 near the door of his dwelling with his brother and sister, received a 
 stab in his belly by the hand of one who had approached and saluted 
 him in a friendly manner; and it appeared that this man was recog- 
 nised by both as the prisoner; and that the deceased himself, " a short 
 time before he breathed his last, declared that black Williams stabbed 
 him." Besides which it also appeared in evidence, that the night 
 previous to the murder, the prisoner and one York, who had been 
 tried with Williams and acquitted, had been knocked down, without 
 provocation, by some persons who fled into a house close by, and 
 escaped through a back passage, and that the prisoner swore he would 
 have satisfaction for it. It was also proved, that, on the day of the 
 murder, the prisoner, with several blacks, had called at three diffe- 
 rent times at the house, inquiring in angry tones for the deceased; 
 that after the murder, the prisoner was found concealed, with great 
 care, under the stairway in a cellar, in the vicinity of the murder, 
 and that when arrested, and while being conveyed to the prison, in 
 reply to 9 remark made to him, had said, "Yes, but it is done, and I 
 can't help it." The jury, having convicted him of murder in the 
 first degree, the court refused to disturb the verdict.^ The opinion 
 of the learned judge who presided, relates chiefly to the bearing of 
 dying declarations and of new trials, though one passage in reference 
 to the former subject is worthy of notice in this connexion. — "Tri- 
 bunals," he said, "whose function it is to decide disputed facts, either 
 in criminal or civil investigations, are perpetually called on to infer 
 the existence of one fact, not positively shown, from others, either 
 admitted or proved, and with whiclithe fact inferred has a necessary 
 connexion. In trials for murder in Pennsylvania, for instance, the 
 jury, before they can convict of murder in the first degree, must be 
 satisfied, not only that the criminal has committed the felonious ho- 
 micide of which he is charged, but that in its perpetration, he in- 
 tended to take away the lii^e of his victim. It is rare, indeed, that 
 this last feature of this high crime can be shown by positive proof. 
 Almost universally the jury are left to infer the existence of such a 
 deadly intent, from the manner and circumstances of the homicide 
 established. Felonious intention, guilty knowledge, malice and other 
 vital elements of crime, are only ascertainable in the same way. If 
 these are the ordinary functions of the jury, in what respect is it 
 more difiScult for a judge to decide from all the circumstances of a 
 given case, as to the existence of a consciousness of impending dis- 
 
 n 1 A «!,, 
 
 ■"^niiams, 2 Ashiread, 69. 
 
382 MURDER IN THE FIRST DEGREE. 
 
 solution in a declarant whose alleged death-bed declarations are of- 
 fered in evidence? It is admitted that the judge should see his way 
 clear, in coming to such a conclusion; but there is nothing incongru- 
 ous, with local analogies, in his exercising such a function. The cases 
 of this k^nd are numerous, in which a well regulated mind could act 
 without hesitation. Suppose a victim of secret malice is found pierced 
 through some vital part, with enough life left to tell by whom and 
 how he has been so maltreated. Is it natural, nay, an irresistible in- 
 fluence, that such a sufferer is impressed with the conviction of im- 
 pending dissolution, although he does not employ any of the brief 
 moments left him between time and eternity in saying so?^ 
 
 In 1846, Chief Justice Hornblower, in a charge in a capital case, 
 after quoting the New Jersey act, which, as has been observed, is the 
 same as that of Pennsylvania, said, "This statute, in my opinion, does 
 not alter the law of murder in the least respect. What was murder 
 before its passage is murder now — what is murder now, was murder 
 before that statute was passed. It has only changed the punishment 
 of the murderer in certain cases; or rather, it prescribes that, in cer- 
 tain specified modes of committing murder, the punishment shall be 
 death, and that in all other kinds of murder the convict shall be pu- 
 nished by imprisonment. But the law of murder is the same.^ It 
 becomes then the duty of the court, in the first place, to define and 
 declare what constitutes, and what will amount to the crime of murder 
 at the common law; and if the jury believe that the defendant has 
 been guilty of murder, it will be the duty and the province of the 
 jury to say whether the prisoner is guilty of the murder in the^r^^ 
 or in the second degree. 'Murder is defined to be the killing of a 
 person under the peace of the state, with malice aforethought, either 
 express or implied in law.'^ Independent, however, of the common 
 law presumption of malice, all will agi'ce, that killing by poison, by 
 lying in wait, or by wilful and deliberate and premeditated design, 
 is proof of express malice, and so killing by the use of a deadly 
 weapon shows a clear intent to take life. Again, if a man in the act 
 of perpetrating, or attempting to perpetrate, arson, rape, sodomy, 
 robbery, or burglary, kill another, this is evidence of express malice; 
 because such conduct evinces a depraved mind, and shows malice 
 against all mankind. In all these cases, therefore, the killing is 
 murder in the first degree. Again, the premeditation or intent to 
 kill, need not be for a day, or an hour, nor even for a minute. For 
 if the jury believe there was a design and determination to kill, dis- 
 tinctly formed in the mind at any moment before, or at the time the 
 pistol was fired, or the blow was struck, it was a wilful, deliberate, 
 and premeditated killing, and therefore, murder in the first degree. 
 Murder in the second degree under our statute, includes those cases 
 of constructive murder which are not accompanied with an intent to 
 take life, but are committed by gross carelessness, or in the commis- 
 sion or attempt to commit some less crime than those which I haveabove 
 enumerated. Notwithstanding the difference is thus distinctly marked 
 between murder in the first, and murder in the second degree, yet by 
 
 ' Com. t). Williams, 2 Ashmead, 7-i. 
 
 2 See Commonwealth v. Dougherty, in 1 Brown Append, page 18. 
 
 ' 1 Russell on Crimes, 421. 
 
"premeditation" — MEANING OF. 383 
 
 the terms of the statute, it is to be referred to the jury to say in which 
 degree the defendant is guilty, if guilty at all."' 
 
 A verdict of murder in the first degree was sustained in Ten- 
 nessee, where it appeared that the deceased was killed on the night 
 of the third of October, 1841; that the prisoner and he had had 
 angry difficulties from a period long anterior, up to the time of the 
 commission of the ofi'ence, which resulted from mutual wrongs done 
 or charged; that the prisoner accused the deceased of having har- 
 boured his wife, to his great personal injury, and the deceased accused 
 him of having fired his house; that on the 11th day of September, 
 1841, not many days before the murder, the prisoner left the country 
 in a steamboat, with threats in his mouth of vengeance for his injuries, 
 which he declared he would have before he left; that one week before 
 the murder, he returned in the steamboat Pensacola, and kept him- 
 self so concealed that but one person saw him certainly, others saw 
 what they took to be his tracks, and one, a person in disguise, whom 
 he supposed might have been him; that on the night •^;he deceased 
 took possession of the building which had formed the subject of the 
 controversy between them, he was killed, cowardly and treache- 
 rously; and that the prisoner immediately fled the country again, 
 and being captured at Memphis, denied that he had been in the 
 county of Obion since his first departure on the 11th of September, 
 but admitted that he had returned up the river in the steamboat 
 Pensacola to within fifty miles of the residence of the deceased.^ 
 
 In another case it appeared from the bill of exceptions that it was 
 proved at the trial by two witnesses on behalf of the prosecution, that 
 in the month of March, 1842, the prisoner, Wade Swan, the deceased, 
 T. G. Moore, and one Joel Blackwell, the last a penitentiary convict, 
 were assisting the witness to roll logs. While engaged in this em- 
 ployment the prisoner and the deceased both became intoxicated; 
 they were friendly during the whole day, so far as witnesses knew. 
 The two witnesses at the close of the day went to the house, leav- 
 ing the other three in the field. When supper was ready, tbey were 
 called to come and partake of it, and came; both the prisoner and 
 deceased being still intoxicated. After supper the deceased took a 
 seat by the door, and owing to his chair-post slipping through a crack 
 of the floor, he knocked his head against the door-cheek. One of the 
 witnesses, William Dye, asked deceased if he was hurt, and he said 
 "Not much." The prisoner then got a torch, and as he started out 
 of the house tripped his feet and stumbled; the deceased said, " Take 
 care and not fall." The prisoner replied, "Take care and not fall 
 yourself," and left the house. The witness thought prisoner had gone 
 home, but in about two minutes he returned and called to a little boy 
 to take his torch; the witness told the boy to do so, and he took it. 
 The prisoner was then seen having a handspike drawn in both hands, 
 holding it to one side, and immediately stepping into the house he 
 struck Moore, the deceased, two or three blows on the forehead, giving 
 him a deep cut over the left eye, two or three inches long, and break- 
 ing the bone over the eye. Two or three red spots on the forehead of 
 the deceased were also noticed. The deceased was sitting down, with 
 
 ' State V. Spencer. 1 Zabriskie R. 196. ^ Stone v. State, 4 Humphrey, 34. 
 
384 MURDER IN THE FIRST DEGREE. 
 
 his head leaning against the wall, and made no resistance to the as- 
 sault. This took place about eight o'clock at night, and Moore died 
 about nine o'clock on the morning of the next day. The handspike 
 was of young gum, about four and a half or five feet long, and very 
 large. The weapon was considered very dangerous, and it was clear 
 tliat the deceased came to his death by the blow inflicted by the pri- 
 soner, as before stated. The deceased spoke a very few words only, 
 after he was stricken by the prisoner. The deceased was an inoffen- 
 sive man, and would not take his own part when imposed upon. The 
 deceased and prisoner had always been friendly, and the pi-isoner 
 had invited the deceased to help him roll logs on the next day. An- 
 other witness for the state testified that about ten or eleven o'clock the 
 next day, he saw the prisoner passing by his field, six or seven miles 
 from tlie place where the murder was committed, and saw him run 
 into the woods. This witness was a constable, and called to two 
 other persons to assist him in arresting the prisoner. They pursued 
 and overtook him. When he had arrested him, witness told him that 
 he had killed Moore; prisoner said he supposed he had " died damned 
 suddenly," as he had given him "a few pretty good taps;" that the 
 deceased deserved them, as he had treated him " damned badly " about 
 a twenty dollar note that Joel Blackwell had at the log-rolling; the pri- 
 soner said that he pronounced the note to be a counterfeit, and that the 
 deceased jerked or snatched the note out of his hands, saying he was 
 "a damned fool and no judge of money." The prisoner also, when 
 arrested, stated that he was hunting his cow. "The question," said 
 the learned judge who gave the opinion of the court, "which first 
 presents itself upon the record is, whether the facts sufficiently estab- 
 lish that the homicide is of that kind of wilful, deliberate, malicious 
 and premeditated killing, which, by the provisions of the 2d section 
 of the act of 1829, c. 23, will constitute the crime committed to be 
 murder in the first degree ? The characteristic quality of this offence, 
 and that which distinguishes it from murder in the second degree, or 
 any other homicide, is the existence of a settled purpose and fixed 
 design, on the part of the assailant, that the act of the assault should 
 result in the death of the party assailed ; " and it appearing that death 
 was the object sought for and wished, the judgment was afi&rmed, the 
 case according to the evidence coming within the definition of murder 
 in the first degree as given in the statute.^ 
 
 As was observed on another occasion, there are certain features, 
 which, in cases of deliberate homicide, draw forth, generally from 
 the court's instructions to the jury that by them a deliberate intent to 
 take life is shown. Where a man makes use of a weapon likely to 
 take life; where he declares his intentions to be deadly; where he 
 makes preparations for the concealing of the body : where, before the 
 death, he lays a train of circumstances wliich may be calculated to 
 break the surprise, or baffle the curiosity which would probably be 
 occasioned by it; where, in any way, evidence arises which shows a 
 harboured design against the life of another;— such evidence goes a 
 great way to fix the grade of homicide at murder in the first degree. 
 Thus, where the defendant struck the deceased violently on the head 
 
 ' Swan V. State, 3 Hump. 137. 
 
PREMEDITATION — MEAKIjSG OF. 385 
 
 with a sharp and heavy axe, it was held mnrder in the first degree, 
 deliberation being shown; and it was said by M'Kean, C. J., "Let it 
 be supposed that a man, without uttering a word, should strike 
 another on the head with an axe, it must, on every principle by which 
 we can judge human actions, be deemed a premeditated violence."' 
 "Where a man loaded a pistol, took aim at, and shot another, it was 
 held murder in the first degree.^ If one man shoot another through 
 the head with a musket or pistol ball, — if he stab him in a vital part 
 with a sword or dagger, — if he cleave his skull with an axe, or the 
 like, — it is almost impossible for a reflecting and intelligent mind to 
 come to any other conclusion than that the perpetrators of such acts 
 of deadly violence intended to kill.^ Where the defendant delibe- 
 rately procured a- butcher's knife, and sharpened it for the avowed 
 purpose of killing the deceased;^ where he concealed a dirk in his 
 breast, stating, shortly before the attack, that he knew where the seat 
 of life was;^ where he thrust a handspike deeply into the forehead of 
 the deceased ;° the presumption was held to exist, that the killing was 
 wilful.' But it is not necessary, to warrant a conviction of murder 
 in the first degree, that the instrument should be such as would neces- 
 sarily produce death. Thus, where the weapon of death was a club 
 not so thick as an axe handle, the jury, under the charge of the court, 
 rendered a verdict of murder in the first degree, it appearing that 
 the blow was induced by a deliberate intention to take life.' The 
 same presumption of intention is drawn with still greater strength 
 from the declared purpose of the defendant, which is always admis- 
 sible in evidence for such a purpose.' Thus, where the prisoner, a 
 negro, said he intended "to lay for the deceased, if he froze, the next 
 Saturday night," and where the homicide took place that night:'" 
 where it was said, " I am determined to kill the man who injured 
 me;"" where the prisoner had declared, the day before the murder, 
 that he would certainly shoot the deceased;'^ where, in another case, 
 the language was, "I will split down any fellow that is saucy ;"'^ 
 where the prisoner rushed rapidly to the deceased, and aimed at a 
 vital part;" where a grave had been prepared a short time before the 
 homicide, though the deceased was not ultimately placed in it, the 
 whole plan of action being changed;" in each of these cases it was 
 held murder in the first degree. 
 
 Mnrder in the second degree, strictly speaking, may be illustrated 
 by that class of homicides where the intention is not to take life, of 
 which, death ensuing unexpectedly from bruises inflicted with the 
 intent merely to do bodily harm, death caused by a workman throwing 
 timber from a house into the street of a populous city, without warning, 
 or by a person shooting at a fowl, animo furandi, and killing a man, 
 
 1 Eesp. V, Mulatto Bob, 4 Dallas, 145. '■' Com. v. Smith, Appendix, 389. 
 
 s 4 Penn. Law Journal, 157. * Com. v. Burgess, 2 Va. Cases, 484. 
 
 6 Bennet's case, 11 Leigh, 749. 6 Swan v. State, 4 Humphrey, 139. 
 
 ' See U. S. V. Cornell, 2 Mason, 94; Woodside v. State, 2 Howard, 65b; State v. 
 Toohey, 3 Rice's Digest, 104; Com. v. Webb, 6 Randolph, 721. 
 
 « Com. V. Murray, 2 Ashmead, 57. ^ Stewart v. State, 1 M'Cook, 66. 
 
 i» Jim V. State, 5 Humph. 174. 
 
 " Com. V. Burgess, 2 Va. Cases, 484. i^ Com. v. Smith, Appendix, 389. 
 
 " Com. V. Mulatto Bob, 4 Dallas, 146. " Com. v. O'Hara, 7 Smith's Laws, G94. 
 
 i» Com. V. Zephon, Oyer and Term. Pliila. July, 1844, MSS. 
 
386 HOMICIDE. 
 
 are instances frequently given.^ There may, also, as is shown more 
 largely in the chapter on riotous homicide, be cases where death en- 
 sues during a riotous affray, under circumstances which would consti- 
 tute murder at common law, but which, in consequence of the want 
 of a specific Intent to take life being shown, amount but to murder in 
 the second degree. Thus, where it appeared that the deceased, during 
 the Kensington riots,^ was killed while a desultory fire was going on, 
 the object of which was to present either of two contending parties 
 from taking possession of a position which both of them were desirous 
 of obtaining, it was said that a homicide, committed under such cir- 
 cumstances, though murder at common law, deliberation being shown, 
 might not be murder in the first degree, and a verdict of murder in 
 the second degree was consequently rendered, l^he learned judge 
 who tried the case, however, charged the jury, "that if one or more 
 of the parties so engaged in an unlawful combat, deliberately fire at 
 and kill an innocent third person, taking no part in the conflict, having 
 no just reason to regard him as one of the belligerants, such killing 
 would be murder in the first degree. It would present the case of a 
 wilful, deliberate, and premeditated killing, peipetrated with an in- 
 strument likely to take life, rendering the actual perpetrators guilty 
 of the highest grade of crime known to our criminal code. If the 
 testimony, in your judgment," he said, " brings clearly home to the 
 defendant such a charge, he should be convicted. If, however, the 
 commonwealth has not fully satisfied your minds in the affirmative of 
 this position, or if the proofs adduced by the defendant have rebutted 
 this allegation, or thrown a fair doubt upon its certainty, then you 
 ought not, and cannot justly convict him of that part of the charge 
 involving capital punishment."^ 
 
 As has already been observed, where the defendant was in such a 
 state of drunkenness, as to he incapable of forming a design, the ver- 
 dict should be for the second degree." 
 
 And so if a pregnant woman be killed in an attempt to produce 
 abortion in her, and it appears that the design of the operator was not 
 to take the life of the mother, it is murder in the second degree;* 
 and so also, as has already been noticed, homicide by poison and lying 
 in wait may sometimes fall within the second degree, where there was 
 no specific intent to take life. 
 
 In Virginia and Ohio, it is said that where a homicide is proved, the 
 presumption is that it is murder in the second degree. If the prose- 
 cutor would make it murder in the first degree, he must establish the 
 characteristic of that crime, and if the prisoner would reduce it to 
 manslaughter, the burden of proof is on him.° 
 
 The general result of the authorities is that wherever the delibe- 
 rate intention is to take life, and death ensues, it is murder in the first 
 degree; wherever it is to do bodily harm or other mischief, and death 
 ensues, it is murder in the second degree; while the common law de- 
 
 1 Whitford v. Com., 6 Randolph, 721; Com. v. Dougherty, 7 Smith's Laws, 690. 
 
 " Reported in the appendix. 
 
 ' Com. V. Hare, 4 Penns. Law Jour. 401. 
 
 ♦ Com. V. Hagarty, cited Lewis, C. L. 403 ; Pirtle i'. State, 9 Humph. 664. See ante, 369. 
 
 ' Ex parte Chauncey, 2 Ashmead, 227. See ante, 359. 
 
 6 Hill's Case, 2 Gratt. 594; State v. Turner, Wright, 20. 
 
MURDER IN SECOND DEGREE. 387 
 
 finition of mauslaughter remains unaltered. This distinction, how- 
 ever, it is difficult practically to preserve. In those jurisdictions 
 where the juries are entitled to take control of the law, it of course 
 gives way to other tests more agreeable to the prejudices of the par- 
 ticular case. And even where the court is at liberty to assume its 
 proper province, and where it lays down the law with precision and 
 fulness, a jury is very apt to seize upon murder in the second degree 
 as a compromise, when they think murder has been committed, but 
 are unwilling, in consequence of circumstances of mitigation, to ex- 
 pose the defendant to its full penalties. In such cases courts are not 
 disposed to disturb verdicts, but permit them to stand, though tech- 
 nically incorrect. Thus, where S. having conceived and declared a 
 design to kill P., the parties m^t afterwards in front of S.'s own house, 
 and a quarrel ensued, in which S. gave the first ofi'ence; P. proposed 
 a fight; upon which S. retired for a very brief time into his house, 
 armed himself with a loaded pistol, which he concealed in his pocket, 
 and instantly returned so armed to the scene of quarrel; then P. 
 threw a brickbat at S., which did not hit him, but falling short of him, 
 broke, and a small fragment struck S.'s child, standing within his own 
 door, who cried out, and S. hearing his child cry out, but without 
 looking to see whether he was hurt or not, exclaimed, " He has killed 
 my child and I will kill him," advanced toward P., deliberately aimed 
 and fired the pistol at him, then retreating with his face towards S., 
 and the shot took effect and killed P. A verdict of murder in the 
 second degree being rendered, the court refused to set it aside.^ 
 
 Indictment and verdict. — Since, under an indictment for murder at 
 common law, a verdict will be sustained for murder in the first or 
 second degree at the discretion of the jury, it is neither usual nor 
 safe to specify or discriminate the degrees in the indictment.^ Even 
 when the homicide was committed in the perpetration of arson, rape, 
 robbery, &c., it is not necessary to set such collateral purpose out.^ 
 
 As has already been seen, the weight of authority now is, that 
 under an indictment for murder, it is necessary for the jury in their 
 verdict to specify the degree. If they find a mere verdict of " guilty," 
 it seems that no sentence can be passed on it.'' 
 
 1 Slaughters v. Com., 11 Leigh, 682. 
 
 2 Com. V. Wioks, 2 Va. Cases, 387; Mitchell v. State, 5 Yerger, 340; Com. v. Flanna- 
 gan, 8 Watts & Serg. 415 ; Com. v. White, 6 Bimiey, 183 ; Com. v. Miller, 1 Ya. Cases, 
 310; Com. v. Gilbert, 2 Va. Cases, 70; Hines v. State, 8 Humph. 597; M'Gee o. State, 
 8 Mis. 495. 
 
 3 Com. V. Flannagan, 8 Watts & Serg. 415. * See ante, 284. 
 
APPENDIX 
 
 THE TRIALS OF RICHARD SMITH, AND ANN CARSON, ALIAS ANN SMITH, 
 FOR THE MURDER OF CAPTAIN JOHN CARSON. 
 
 CONDENSED J-EOM THE PAMPHLET KEPOET. 
 
 Commonwealth v. Richard Smith and Ann Carson, alias Ann Smith. 
 
 At a Court of Oyer and Terminer and general jail delivery, held at Philadelphia, May 
 1816, before the Judges of the Court of Common Pleii.s. — The prisoners were indicted 
 for the murder of John Carson, on the 20th January, 1816 — Richard Smith as princi- 
 pal, in the first degree, and Ann Carson in the second degree. — The following gentlemen 
 were engaged in the cause. 
 
 On the part of the prosecution — The Attorney General, Jared IngersoU, Esq., and 
 Edward IngersoU, Esq., Deputy Attorney General. 
 
 On the part of the prisoners — For Richard Smith — V/illiam Rawle, Peter A. Browne, 
 and Jonathan B. Smith, Esqs.— For Mrs. Carson — Samson Levy, and Joseph IngersoU, 
 Esqrs. 
 
 Thdrsd.iy, 23d Mat, 10 o'clock, a. m. — The Court opened. The Hon. Jacob Rush, 
 President; William Moulder and Samuel Badger, Esqrs., Justices, present. — The Attor- 
 ney General, intending to try the prisoners separately, upon the distinct charges, 
 Richard Smith only was placed in the bar. — The prisoner's counsel proceeded to call 
 the names of his witnesses, when the following persons were absent : — Charles Jones, 
 Samuel Ewing, Esq., Ann Kidwell, Mrs. Yorke, Dr. Gallagher, Jacob Baker, Esq., John 
 Tittermary, Dr. James Rush, Thomas Goodwin and Miss Wright. 
 
 Peter Cummins, black man, called and sworn. 
 
 Question. Did you serve this subpcena upon Samuel Ewing, Esq., personally? An- 
 swer, Yes. Q. On Ann Kidwell? A. Yes. Q. Pid you serve it on Mrs. Yorke? A. 
 Yes. Q. On Jacob Baker, Esq. ? A. Yes. Q. On John Tittermary ? A. Yes. Q. On 
 Dr. James Rush ? A. Yes. Q. Did you make diligent search for Charles Jones ? A. Yep, 
 sir; he was gone to New Castle or Wilmington, and will not be back until Friday; he 
 lives or keeps store at the corner of Chestnut and Second streets. 
 
 P. A. Browne, Esq. Having now proved, your honours, service on these witnesses, I 
 pray attachments may issue against them. 
 
 Judge Rush. Perhaps you had better wait a little while — no doubt Dr. Rush and Dr. 
 Gallagher will come about eleven o'clock. 
 
 Browne. Does your honour think the counsel ought to take any responsibility upon 
 them in this case ? 
 
 Judge Bush. Let the attachments go then. 
 
 Attorney General. Peter Cummins, when were these subpoenas delivered to you? 
 A. On the 21st. 
 
 An afiEdavit was then drawn by Mr. Browne, and sworn to by Peter Cummins, to the 
 same effect as the foregoing testimony, and the attachments made out by the prothonn- 
 tary. 
 
 P. A. Browne. If your honours please, make the attachments returnable to-mormir 
 morning — Charles Jones is now out of town, but will be back then. I have examined 
 him ; he is a material witness. 
 
 Att. Gen. I wish the court to understand that I not only do not consent, but object 
 to this proceeding. This case was postponed with the concurrence of the Commonwealth 
 and the prisoner, until Tuesday, and then at the request of the prisoner's counsel, post- 
 poned to this day. I observed that during an interval of four days, Wednesday, Thurs- 
 day, Friday, Saturday, passed, and until Monday, without a subpoena being taken out. 
 The witness says he received them the 21st; we have therefore Wednesday, Thursday, 
 
390 APPENDIX. 
 
 Friday and Saturday, and until Monday, four days ; not a single step taten to secure 
 the attendance of -witnesses. I conceive, therefore, it is of as much importance to the 
 prisoner as to the Commonwealth, that the cause should not be postponed. 
 
 Browne. The cause was postponed before, to get a material witness from New York; 
 everything proper has been done to procure his attendance. As to the witnesses who 
 reside in Philadelphia, it was known they lived near the court house, and it was not 
 thought necessary to take measures to compel their appearance so long before the cause 
 was to come on. I have seen Mr. Jones, and he promised he would attend. I did not 
 know of his intention to leave town. Would it have been supposed it were necessary to 
 serve subpoenas to ensure attendance, it would have been done. It is well known to be 
 the practice to take out subpoenas the day before the trial comes on. It is then fresh 
 in the memories of those upon whom they are served, and they are more apt to attend 
 than otherwise. This course was thought best to be pursued in the present case, not 
 at the instance of the prisoner; he knew nothing concerning it, but by his counsel. 
 They had no communication with him upon the subject, for they could not attend him 
 at the prison even, without being spied. I therefore do not conceive how there can be 
 any objection to postpone the cause until to-morrow. In a case of this kind, your 
 honours would not ask the counsel to take any risk upon us; we have taken the sub- 
 poenas out in the usual manner, and I have a letter in my hand from the witness in 
 New York, in which he tells me he is about starting in the steamboat, and will be here 
 in a day or two. 
 
 Judge Rush. The court are of opinion, that in order to put off the cause, it must be 
 known what the witness is to prove, and an affidavit must be made to that effect. 
 
 W. Kawle, Esq. We hope, your honours, the cause will be postponed upon the com- 
 mon affidavit that the witness is material. I do not consider it proper that the prisoner 
 in a capital case must intimate to the court, and give to the prosecuting attorney an 
 opportunity of knowing what his witnesses are to prove. I refer your honour to Lord 
 Baltimore's case, in which Lord Mansfield adverted to the imprudence of making such 
 a disclosure, thereby putting it in the power of the prosecution to meet what would be 
 disclosed; and why should we practise under more rigid rules than in another country, 
 where the laws are so much more severe? It is suflcient in all cases to declare upon 
 oath that the evidence is material. I trust the court will not impose upon the prisoner, 
 rules, which to the best of my recollection, have never been the practice in this coun- 
 try ; we will make the general affidavit, and hope it will be sufficient. As to the time 
 of putting off, I believe the attorney general first proposed it. We do not think we are 
 called upon to state what the witness is to prove; we are willing to present the affidavit 
 in the manner I mentioned. 
 
 Judge Rush. There is a difference of opinion, Mr. Rawle ; we find that in the case of 
 Ogden in New York, in the case of Callender, in the case of Cooper, where you prose- 
 cuted, and therefore you have a right to know, special affidavits were required. In 
 England they always do it. Upon general principles it is very preposterous, putting off 
 a cause because of the absence of a witness, and concealing from the view of the court 
 what that witness is intended to prove. If a cause can be put off in this manner, I ask 
 where is the end of delay? Prom the observation of Lord Mansfield, a case could not 
 be tried because of the neglect of the defendant. Why this should be, we cannot know, 
 iinless reasons are shown to the court. I have never been satisfied with the reasons 
 given in the books, that the prisoner's defence is taken away ; we are clearly of opinion 
 that a special affidavit must be made, .showing in what respect the witness is material. 
 
 Mr. Rawle. I beg leave to state to your honour, that in Judge Cooper's case it was 
 not at my instance that the special affidavit was required, but it came only from the 
 court; ,and I beg leave to remind your honour that Judge Mansfield tells you, "I have 
 known it repeatedly done." 
 
 Mr. Browne drew up a general affidavit, to which the prisoner was sworn. 
 
 Mr. Browne. The affidavit being now made, I desire that it be filed with my reasons, 
 and afterw.ards I will renew my motion; but first I will read it. (Mr, Browne here 
 read the afi5davit, the purport of which was, tliat the prisoner considered the evidence 
 of the absent witness material to his defence.) Upon this affidavit I renew my motion 
 to postpone the cause until to-morrow morning. 
 
 Judge Rush. Let the cause go on — we have decided the point. 
 
 The names of the absent witnesses were agnin called before the attachments should 
 issue. Dr. Gallagher and iSamuel Ewing, Esq., had intimated that they were ready to 
 attend at any moment — no attachments were therefore issued agilinst them. Mr. 
 Ewing was engaged in a cause at another court.— At tfie wish of the prisoner's counsel, 
 the cause was delayed until the return of the attachments. — The court, after sitting 
 about half an hour for the return of the attachments, came to a resolution to adjourn 
 until halC-pnst two o'clock in the afternoon, tliinking it wpuld take two hours, at least, 
 to procure the attendance of tlie v.itr.ibses. 
 
391 
 
 Thuksday, p. m., half-past two o'clock. — The prisoner was addressed by Tench 
 Coxe, Esq., Prothonotary of the court, in the following manner: 
 
 Richard Smith, you are now about to be tried by a jury of your country. You are 
 allowed by law to challenge twenty jurors peremptorily, or without showing cause, and 
 as many afterwards as you can show cause for. 
 
 The names of the whole panel were then put in a box, and Randall Hutchinson, Esq. 
 directed by the court to draw them out. After twenty peremptory challenges, the fol- 
 lowing persons were either sworn or affirmed, as jurymen to try the cause: — 1. Jacob 
 Shoch, sworn; 2. Jacob Lancaster, sworn; 3. Francis Douglass, sworn; 4. John Wil- 
 liins, aEBrmed; 5. William Bruner, affirmed; 6. Stephen Witmer, affirmed; 7. David 
 Seegar, sworn; 8. George Thompson, affirmed; 9. William Pritchard, affirmed; 10. 
 George Getz, sworn; 11. John Kees, sworn; 12. Samuel Holgate, affirmed. — The pri- 
 soner then standing up, the prothonotary addressed the jury. 
 
 Gentlemen of the jury — The prisoner at the bar, Richard Smith, is now delivered over 
 to you upon a charge of murder; the bill presented by the grand inquest inquiring for 
 the body of the county of Philadelphia, is as follows: — If you find the prisoner guilty, 
 you will also find what goods and chattels he was possessed of at the time he committed 
 the fatal act ; if you find him not guilty, you will say so and no more. It will also be 
 proper for you to inquire and find, whether Richard Smith fled, as is specified in each 
 count. 
 
 Edward IngersoU, the deputy attorney general, then addressed the jury as follows: — 
 May it please the court — Gentlemen of the jury. The prisoner whom you have been 
 charged to try, and upon whose guilt or innocence you are now to decide, is brought 
 before this court, in consequence of an act which has occupied, to a very great degree, 
 the public attention. The rumour has spread upon all sides; the tale is told with a 
 variety of colouring and with many additions; for, gentlemen, seldom has our atten- 
 tion been excited by similar occun-ences. — It is now my duty to give you a particular 
 recital of the events as they occurred; that you may give attention to the evidence, as 
 it is brought forward, and that if any prejudices have been formed they may be removed. 
 Captain John Carson, for whose death this man is now to be tried, about fifteen years 
 ago married the daughter of Captain Baker, then an officer in the navy, and lived with 
 her until about four years since, when he sought employment abroad, where he 
 remained until January, 1816. His wife, in the meantime, had converted his property 
 into a china store, which was kept until the time of the accident. She had lived with 
 the prisoner, Richard Smith, from some time in October, 1815, until January, 1816; 
 whether married or not, gentlemen, I cannot say. After Captain Carson returned, he 
 went to demand his property and his house. He there found the stranger, Richard 
 Smith; an adjustment was made — all offences were to be forgiven; they (Captain Car- 
 son and his wife) were to live together in harmony, and Richard Smith, the prisoner, 
 declared his intention to leave the city. About this time the prisoner was seen exami- 
 ning a pistol, heavily loaded, and declared that if Captain Carson set his foot in the door 
 he would shoot him. On the evening of the 20th January, in this present year, Ca> tain 
 Carson went to the house to take peaceable possession. The prisoner and Sirs. Carson 
 left the house, separately, and met at the office of a gentleman, a member of the bar; 
 there, Mr. Richard Smith asked that gentleman for a pistol in such a way as to show he 
 had asked for it before; it was properly refused, and he'left the office without it. The 
 prisoner again approached the fatal spot; Captain Carson was sitting in the parlour, at 
 the fire, with his youngest child on his knee; Captain Baker, and Mrs. Baker, his wife, 
 sitting near, forming the family circle. The prisoner entered the room with' such an 
 appe.irance, as terrified the maid servant, who ran for assistance. With his right hand 
 under his coat, his left over it, he calmly walked to the middle of the room and took off 
 his hat. Captain Carson arose and told him he must leave the room — at the same time 
 intimating that no violence from him was to be expected. Mr. Smith turned round and 
 asked Mrs. Carson if he should leave the room ; at a word of encouragement from her, 
 he remained; the prisoner was perfectly silent, not a blow nor an angry word proceeded 
 from either side, until the prisoner drew his pistol, presented it to the mouth of Captain 
 Carson, and fired. The prisoner threw the pistol aside, and made an attempt to escape. 
 Captain Carson on his death-bed declared he had received the fatal wound from the 
 prisoner, who had acted as a midnight assassin. During his illness he had the best 
 medical attendance, and in February he died. During his illness he had repeatedly 
 declared he had received the wound from Richard Smith, who was not offended. If 
 these circumstances, gentlemen, are satisfactorily made out from the evidence which 
 will bo adduced, we confidently ask you, in the course of public justice, for a conviction. 
 Thomas Abbott called and sworn. 
 Judge Rush. Did they live at your house ? 
 
 Answer. Yes, sir, at that time. I left my house, and just as I got to the corner I 
 sajv Mrs. Carson come out of the house with the bar of the door in her hand ; I called 
 
392 APPENDIX. 
 
 to her and asked her where she was going; she observed, "Come along." I immediately 
 followed her to Jonathan B. Smith's office; she asked me to come in; I asked her what 
 was the matter. Mr. Jonathan B. Smith came to the door and asked me to walk in ; I 
 •went in — I asked her what all this meant; she observed that Captain Carson had come 
 to the house and turned her and Richard Smith out of it. Mrs. Carson asked Jonathan 
 B. Smith if he had seen Richard Smith ; he said he had been there about twenty 
 minutes before; invited her to sit down — he would be there again in a few minutes. 
 We had not been in more than five minutes when Richard Smith came in. Mr. Smith 
 observed when he came in, that he had been to four or five 'squires, that they were 
 eiiher out or in bed; after that Mrs. Carson asked Mr. Smith if he would go home; 
 she observed, we can have a fire made in the chimney-place, in the chamber above; 
 they may keep possession below, and we will keep possession above. Richard Smith 
 then asked Mr. Jonathan B. Smith to give him the pistol. Mr. Jonathan B. Smith ob- 
 served he could not give it to him, he was afraid he would do harm with it. Richard 
 Smith observed to Jonathan B. Smith, he was not his friend, if he would not give it to 
 him. Mr. J. B. Smith observed, if be would give it to him, he would not be his friend; 
 he could not persuade Mr. Smith to give him the pistol. I observed to Richard Smith 
 that Captain Carson had no weapon of any kind, I would give him my word and honour; 
 and that there was not the least intention to do him harm in any way whatever. 
 Richard Smith swore he did not care for that, he would not trust him ; and that if Car- 
 son attempted to touch him he would shoot him. From Mr. Smith's, Richard Smith, 
 Mrs. Carson and myself — 
 
 The Deputy Attorney eneral stopped the witness and asked him, how did he ask for 
 the pistol? Did he ask for the pistol? 
 
 Ans. He asked him to give him the pistol. 
 
 Dep. Att. Gen. You are sure he said the? 
 
 Ans. Yes. — Mrs. Carson observed, "Come, let us go; you know where there is a pistol." 
 From there I went with Mr. Richard Smith and Sirs. Carson over to the door ; they 
 asked me to walk in. — They asked me if I would walk up to the parlour. The parlour 
 is up stairs. I told them no, I believed I would go home. By some persuasion I 
 agreed I would go up. — I told them they might go in, I would stay at the front door. 
 I staid at the front door about one minute. Mrs. Carson and Richard Smith imme- 
 diately went up stairs. I went up to the parlour door ; Mr. Smith was standing at the 
 parlour door in this position [showing it) with his right arm in his surtout, under it, 
 and his left hand over it. I immediately passed by and went into the parlour; when I 
 got into the parlour. Captain Carson was sitting by the fire, with his youngest child 
 on his lap. Sir. Baker was sitting near to Captain Carson, Mrs. Carson also was sitting 
 near. I am not positive as to Captain Baker, whether he was sitting or standing; as 
 soon as I entered the room, Mrs. Baker began to talk to Mrs. Carson respecting her 
 living with the prisoner, and wishing her to leave him, and so on. The black girl 
 came in to take the child from Captain Carson, as I supposed, to put it to bed. I do 
 not think it was more than half a minute when Richard Smith came in; and he staid 
 a little back from the parlour door, in this position (again showing it,) his surtout but- 
 toned at the top and bottom ; when he came in. Captain Carson arose from his chair and 
 observed to him, " I have come here to take peaceable possession of my house ; out of my 
 house you must go." Richard Smith observed, "Very well, sir ;" and turned round to Mrs. 
 Carson and said, "Ann, shall I go ? " Shereplied, "No,stay." Rich.ard Smith then moved 
 up to the furthest corner of the room, at least in that direction ; Captain Carson went 
 up and told him again, says he, " Mr. Smith, you must leave my house, for in my house 
 you cannot stay; I have no weapon of any kind." He repeated it two or three times in 
 tliat way. Richard Smith was standing up pretty much towards the corner by the card 
 table, and Captain Carson was near him. Captain Carson had his hands down by his 
 sides, open; says he to Richard Smith, "You cannot stay in my house, my hands are 
 tied." In an instant, as it were, Richard Smith drew the pistol. Mrs. Baker imme- 
 diately cries out, " My God ! he has a pistol ; " and immediately, before hardly the words 
 vrere out of her month, the pistol was off, and he shot Captain Carson in the mouth. 
 
 Quest. Did you see the pistol ? 
 
 Ans. Yes, sir. It was done in a moment — when Mrs. Baker cried out, "My God ! he 
 has a pistol," I saw the pistol, and in an instant the pistol was off. 
 
 Quest. Did you see it drawn out? 
 
 Ans. No, sir, I cannot say I did. It was done in an instant. 
 
 Quest. How near was it to Captain Carson when it was fired? 
 
 Ans. It was about two inches from his mouth. 
 
 Quest. What part of the pistol was it? Ans. The muzzle. 
 
 Quest. How near were they standing to each other ? 
 
 Ans. About as far as from me to Mr. Rawle, [the table was hetxvsenthe wiiness and Uli: 
 Rawle, the breadth of which ii'as about three feet.) Captain Carson immediately exclaimed, 
 
SICHARD smith's CASE. 393 
 
 I aiB a dead man ; lie put liis hand to his mouth in this way, (thawing the manner) and 
 immediately made a catch at the window as he fell. 
 
 Judge Rusk. Which was the window he caught at ? 
 
 Ans. The window ia Second stj^et, near Dock street. Richard Smith immediately 
 threw down the pistol to make his escape. Mrs. Baker immediately cried out to Captain 
 Baker to catch him. Mrs. Baker made a grab at him first, and immediately cried out- 
 Quest. Did she catch him? 
 
 Ans. She just gat a hold of his surtout, but could not hold him. From there I went 
 down stairs, and Captain Baker, and Mr. Jonathan B. Smith, his black boy, and I be- 
 lieve two watchmen had him in possession. From there I went up to the court house, 
 and ft-ara the court house I went to the jail. 
 
 Question from Judge Rush. What court house? 
 
 Ans. Th« watch house. I then went back to the house. 
 
 ■Quest. When Richard Smith came in had he his hat on or off? 
 
 Ans. I believe he had it on. — I saw Captain Caj'son very often during his illness, and 
 sat up with him; I was with him the Eight he died, which was on the fourth day of 
 February, he died. — At times he was delirious, he was raving; part of his time he took 
 a. number to hold him to keep him down ; a few moments before he died he took five or 
 six of us to hold him. — I believe Captain Carson, nearly all the time of his illness, 
 thought he would not recover. 
 
 Judge Rush. Did you hear him declare himself, that he would not recover ? 
 
 Ans. Ye.s, sir. 
 
 'Crofs-Exarfiin'sd. — Browne. You have said, Mr. Abbott, th.at when at .Jonathan B. 
 Smith's office, Richard Smith said he had been to several justices. Did he state what 
 was his business with them ? Ans. He said, it was to turn Captain Carson out of 
 
 the house. 
 
 Quest. You have stated that Captain Carson ordered Richard Smith out of the house, 
 and said that he intended to take peaceable possession. Did he say he had been ad- 
 vised to take peaceable possession? Ans. Yes, sir, he said he had been advised. 
 
 Quest. Did he say by whom ? Ans. He said by his attorney. 
 
 Quest. Be so good as to tell us what was the size of Captain Carson ? Was he small 
 or large, strong or ? Ans. Strong, very strong. 
 
 Quest. Was there any comparison as to the strength of Smith and Carson ? 
 
 Ans. I believe Captain Carson was the strongest. 
 
 Quest. Was he not to appearance veri/ much stronger than Richard Smith ? 
 
 Ans. To appearance he was; he was a larger man. 
 
 Quest. Be so good as to describe the size of Captain Baker. Is he a small or large 
 man ? Ans. He is a large man. 
 
 Quest. Larger than Smith? Ans. Considerably larger. 
 
 Mrs. Jane Baker Sworn. — On the 20th .January I went up to the corner of Dock and 
 Second streets; it was then about ten o'clock, the watchman was crying the hour of 
 ten ; I found Captain Carson walking up and down the shop ; I said to him, John, my 
 'dear, come home with me; I repeated it two or three times; he said, I will not; this ia 
 my right, and here I will remain ; if you will not go, we will go up stairs, I said to him ; 
 we went up stairs. Quest. Who went up? 
 
 Ans. Captain Baker, Captain Carson, and myself, went up into the parlour; we sat 
 dovrn by the fire; we had sat some time there, when Mrs. Carson came into the room; 
 a little while after her Mr. Abbott came in, and after Mr. Abbott Mr. Richard Smith 
 came in ; I observed when he came in he had his right hand on his left breast, under 
 his surtout; he advanced, passed to the sofa — with his left hand he took off his hat and 
 laid it on the sofa, nearly about the middle of the sofa; Captain Carson then rose up 
 and advanced towards Mr. Smith, and said, "Mr. Smith, you must leave this house, for 
 you cannot remain here any longer; I have come here to take peaceable possession, you 
 cannot remain here any longer ; " Mr. Smith staid a little bit, then advanced towards the 
 corner towards the front window — the Second street window — there were three windows 
 in the room, two in Second street, and one in Dock street. Captain Carson advanced, 
 repeated what he had said, and said, "My hands are tied, I wiU not raise the weight of 
 my little finger against you." When Captain Carson advanced, I got up and went to- 
 wards him ; I was fearful that they would fight, and I got up with an intention to 
 throw myself in between them, and that as Captain Carson was bound over, I was fearful 
 Mr. Smith would irritate him, and make him strike him. 
 
 Quest. Where, Madam, were Captain Carson's hands ? Ans. At his sides, sir. 
 
 Quest. Were they open or shut? 
 
 Ans. I believe they were open. Mr. Smith then drew something from under his 
 surtout, which at first I supposed to be his pocket-handkerchief; Mr. Carson being so 
 
394 APPENDIX. 
 
 much more portly than Air. Smith, I did not discover the pistol until it was presented; 
 I exclaimed, "Gracious God! he has got a pistol!" it was off— it was gone. _ Captain Car- 
 son then put his hand to his mouth in this manner (showing il,) he then tried to support 
 himself, he put it to the window casing ; he told me his head got giddy— he fell, and 
 exclaimed, "I am a dead man." But I observed when Mr. pmith drew the pistol and 
 presented it, he had to lenn considerably hack over the card table.— Mr. Smith threw the 
 pistol from him and fled; I immediately hallooed " Murder, murder, seize the villain! " 
 I seized him myself, but could not hold him. I then called to Captain Baker to catch 
 him; I then returned to Captain Carson and tried to raise him, but I could not do it; 
 there were several gentlemen came into the room, and some of them came to my assist- 
 ance. We raised Captain Carson up and took off his coat and waistcoat, and neck- 
 cloth ; I then went and got some pillows to lay Captain Carson's head on. Dr. Niel 
 was called immediately, and wished to sew up Captain Carson's tongue; his tongue 
 was very much cut, and he wished to sew it up ; Captain Carson would not agree to it; 
 we then got a bed and laid him on it, and then sent for Dr. Kush. I pulled off the re- 
 mainder of his clothes myself, and examined all his pockets, he had no weapon what- 
 ever; he had a lead pencil, a slate pencil, thirty cents, and some papers. 
 Quest. How did his wound look ? 
 
 Ans. A great deal of blood was about it — it bled profusely; I washed up the blood 
 myself. Quest. But how did it look? What harm was done? 
 Ans. His tongue was much lacerated, his lips were burnt. 
 Quest. Did you see the pistol the moment it was presented? ' 
 
 Ans. Yes, sir, it was about two inches from his mouth. Quest. What size was it? 
 Ans. I believe it was a horse-pistol. Quest. A large one? 
 
 Ans. I can't say exactly ; I do not know the common size ; Mr. Charles Ross was in 
 the room, he said it was a horse-pistol. 
 
 Quest. Had you any conversation with the prisoner before that? 
 Ans. The Tuesday before it, I had a conversation with him. On Tuesday evening, I 
 went up to Mrs. Carson to have some conversation with her about the children. When 
 I went in, they were sitting in the room appropriated for the kitche^. I asked her how 
 they were — she told me. Quest. Who did you find in the kitchen? 
 
 Ans. I found Captain Smith and Mrs. Carson. After I had sat down a few minutes, 
 Mrs. Carson said to me, "Captain Carson has applied for a divorce; and the notice or 
 certificate, I do not know the name of it exactly, has been served upon me." Mr. Smith 
 made answer and said, it was a pity it had not been done before. "I dare to say, you 
 think so, sir," says I ; "so you live here now ; you have got yourself into a good lining, 
 and taking everything from the children." "Not so much as you have done, madam," said 
 he. "As I have done; I have helped to earn every dollar that is in that shop; but if I 
 was a man you would not sit there and tell me so ; but I understand, sir, you are armed ; " 
 "I am," says he; with that. Captain Carson's eldest son came up stairs, and told me 
 Captain Carson was waiting for me ; I went down and went away with Captain Carson. 
 Quest. Mrs. Baker, at the time Mr. Carson advanced to Smith, was there room for 
 JTr. Smith to pass? Ans. I think so, sir. Quest. Were you near him? Ans. I was 
 close to his side. Quest. How far off was Captain Baker? Ans. Captain Baker stood 
 nigher the door, at the furthermost side of the sofa. Quest. Did you see any blow 
 given to Smith ? Ans. No, sir ; there was none that I saw. Quest. Could you have 
 seen one had it been given? Ans. I think I could, sir. Quest. Was your daughter 
 married to Captain Carson? Ans. Yes, sir. Quest. How long .Tgo? Ans. I cannot 
 exactly tell ; I think it will be sixteen years next June. Quest. Were you present at 
 their marriage? Ans. Yes, sir. Quest. How long did tliey live together? Ans. I 
 can't exactly tell ; Captain Carson went to the East Indies after their marriage, and 
 returned; he was at Charlestown two years and upwards, before he came back. Quest. 
 How long was he absent this time? Ans. He went away in February, 1^12, and would 
 have been absent four years last February. Quest. When did he come back the last 
 time? Ans. In January, the fourth or fifth. Quest. Why did he go abroad, madam? 
 Ans. His conduct here in Philadelphia was not what it should have been. A dispute 
 arose about the vessel in which ho sailed, and the vessel was taken from him. He com- 
 manded the Pennsylvania packet. He then found he could not get a vessel out of this 
 port, and he went away. 
 
 CTOss-Examined. —r- 
 
 Mr. Browne. When he returned from that voyage in the Pennsylvania packet, did he 
 come to his own house? A. Yes, sir; they boarded with me; but not when he went 
 out with Captain M'Kibbin. Q. Where did he go then, when he returned? A. I did 
 not see him, but I was informed he went to a sailor boarding-house. Q. How long did 
 he stay there before he went to his family? A. I can't exactly (ell ; but I believe about 
 
EICHARD smith's CASE. 395 
 
 a day and a-lialf. We looked for him anxiously, and expected him every minute. Q. 
 Did he after that time come home voluntarily? A. No, sir; Mrs. Carson went for, and 
 brought him out of the sailor boarding-house. Q. In what situation did she find him? 
 A. She found him very much intoxicated — in liquor. Q. After this did he go to New 
 York? A. He staid at home about two weeks, then he said he never would sail again 
 out of Philadelphia, and he said to her, if you will go with me to New York, I will go 
 there. Q. Did she go to New York with him? A. Yes, sir; she did. Q. Did she re- 
 turn or stay there? A. Yes, sir; she returned. He did not conduct himself as he 
 ought to have done, and she left him. Q. Where did he go next, madam? A. He 
 went out from New York in some vessel, before the mast, and she never heard of him, 
 nor received a scrape of a pen from him. Q. You say he went out before the mast, and 
 did not return until January, 1816; how was she supported during that time? A. By 
 her own industry — her persevering industry. Q. He left nothing, then, to maintain the 
 children or her ? A. No, sir, nothing ; she has four children she clothed, educated and 
 supported. Q. Be so good as to state who rented the house at the corner of Dock and 
 Second streets ? A. My husband and me took a lease of it for two years and three or 
 four months. Q. Was it during Captain Carson's absence? A. Yes, sir; it was the 
 January before he came home with Captain M'Kibbin, my husband and me took that 
 house. Q. Did Carson pay the rent? A. No, not one cent of it. Q. Who took the 
 lease of it after yours expired? A. Mrs. Carson, in her own name; she paid the rent 
 and received receipts in her own name. Q. Had she not to pay some debts of his after 
 he went away ? A. Yes — she paid to Mr. Connelly, the joiner, forty-five dollars. Q. 
 Did she not carry on business in her own name ? A. Yes, sir, as a feme-sole trader. 
 <i. Did she not contract and pay debts in that capacity ? A. She did, sir. Q. Was she 
 sued as such ? A. She was, sir. Q. Was she imprisoned as such ? A. She was, sir, 
 imprisoned in the Debtors' Apartment. I believe on that very occasion she took advice 
 from Judge Rush, and Judge Tilghman also, to know whether she could be sued alone, 
 while she had a husband; but they recovered, and she suffered herself to go into the 
 Debtors' Apartment. Q. Was there not a rumour of his death ? A. Yes, sir ; a sailor 
 said he was dead, who came from the place. Attorney General. Mrs. Baker, did not 
 Captain Carson leave personal property when he went away ? A. He left property, but 
 she never got anything from it. She paid debts, and paid up his arrears to the Cap- 
 tains' Society ; but never received any assistance ; she never applied for any. Q. Did 
 he not leave a share of a house ? A. Yes, sir ; there is a share of a house in Third 
 street, but which was not to descend to him until his mother's death. The house is 
 next door to the post office, but she never received any assistance from it, or from any 
 belonging to him. Q. After you left the house, did the china store belong to her? A. 
 Yes, sir ; it belonged to Mrs. Carson. Occasionally, as I received my half-pay, I would 
 lend her money to assist her. She laid in capital in that way in her business. Our 
 merchants were very liberal — they opened their books freely, and as she received her 
 money she paid it. She had a running account with them. Browne. Did not Captain 
 Carson sell a watch of hers? A. He took up a watch of hers to the Yellow springs, 
 and pledged it, which was never redeemed. It was a watch that h.e had given her. I 
 do not know what time it was exactly — it was when he was sailing-master in the navy. 
 In the morning he took a bundle, as we supposed, to go to the Wasp, at the Navy-yard. 
 For two weeks or ten days we did not liear of him. I myself, went to every stage-office, 
 and as far as Darby, to see if I could find any tidings of him. I could hear none until 
 Mr. Tatem, the merchant, returned from the Yellow springs, and told us he was there-, 
 which relieved us very much. This was the time he pledged the watch, and then re- 
 turned with a sailor's round-about jacket and trowsers. Judge R. What do you mean 
 by your half-pay ? A. When Captain Baker commanded the Delaware sloop of war, 
 he had the yellow fever in Curragoa. It affected his brain very much, and he returned 
 in that state fifteen years ago last August. The United States then granted him for the 
 injury he had received in their service, half-pay, which is now continued, which is four 
 hundred and fifty dollars a year. Upon my receipt of it, I would tell Ann — Ann, my 
 dear, if you see a bargain, buy it, and if you want one hundred or two hundred dollars, 
 let me know. When I wanted the money back again, Mrs. Carson would repay me. 
 Q. Did Captain Carson repay you ? A. No ; when Captain Carson retuarned this last 
 time, all the money he brought with him was six hard dollars and eighty cents, whicb I 
 sold at Fletcher and Gardner's, and received six dollars fifty for. 
 
 The court adjourned till eight o'clock to-morrow morning. 
 
 Friday Mokning, 24th M.iY, 1816. — Half-past eight o'clock, A. M. 
 
 Captain Baker, sworn — v 
 
 Deputy Attorney General. Relate to the court and jury what you know of these cir- 
 cumstances. 
 
 On the 20th of January, about ten o'clock, T came up to the corner of Dock and 
 o„„.,„,i i.+,.o»to ficrnrtitinnipfl hv ATrs. Baker. When we came there we found Captain 
 
396 APPENDIX. 
 
 John Carson walking in the store — the house is occupied in that light. Mrs. Baker said 
 to him, addressing him, ^' My dear," or something of that nature, "let us go up stairs." 
 We went up stairs, and, I believe, they all sat down except myself— I was standing up 
 by the fire-side. About twenty minutes, from that to half an hour after we had been 
 there, a person by the name of Smith, which I had never seen before, the prisoner, 
 came in at the south-west corner of the room. He had on a blue surtout, double- 
 breasted, or something of that nature. He had his pistol under the left side, and his 
 right hand upon it. From this door which he came in at, he went over to the oif-side, 
 and took off his hat and laid it on the sofa. From that he went into the north-east 
 corner. Captain Carson rose up from the fire-side and advanced towards Smith. He ob- 
 served to him — "Mr. Smith," I think he called him — "I have had the advice of my coun- 
 sel, which is that you can't stay in this house — you must quit this house directly." He 
 observed to him by having his hands in this position, (the witness held his hands down by 
 his side, open,) " My hands are tied, I will not lift the weight of my finger against you," 
 They were then face to face, and within three feet and a-half, or perhaps four, at a dis- 
 tance from each other. There was at the time a card-table standing at this corner, and 
 Kichard Smith had not the room to reach Captain Carson's face; but he had to lean 
 back in this position [showing the manner) to give length to his pistol. He let his pistol 
 fall at the distance of an inch or an inch and a-half from the lips of Captain Carson, 
 and it went oif with a tremendous explosion for a thing of that nature, owing to the 
 s'ze of the confined room, I suppose. Captain Carson stood the shock, and inclined 
 shortly afterwards, in a giddiness, I presume, to catch hold of the window frame. The 
 instant he fell down, as it were on his knees, in a double posture, and instantly wheeled 
 him&elf round under the table and exclaimed; "I am a dead man." I stood with a kind 
 of astonishment at the terrible act, and was not — it did not strike me to pursue the 
 jperson. Mrs. Baker, as soon as he fell — but first, Mr. Smith, the prisoner, hove the 
 pistol to one side, and split for the south-west door — Mrs. Baker sprung at him for to 
 stop him, crying out, " Stop the murderer," or something of the kind; she made a grab 
 at him by the back, but coiild not hold him ; she observed to me, calling me by my 
 Christian name, to pursue him. I went immediately as fast as I could down the stairs, 
 it was a very winding, dark staircase; however, I knew the place very well. As I was 
 going down the stairs I heard a great noise among the china — china-ware, I believe it's 
 called. Q. Where was the prisoner? A. I'll come up to him by and by. He got to 
 the door, to the front door ; the door opened from the street, what is called inward, and 
 he could not get out without making a passage by. He opened the door and made out. 
 but he had not time to shut it. He got out on the large step at the door, and stumbled 
 off the step into the street. He made a kind of stumble, but did not fall. Rawle. Bid 
 you see that? A. I do not recollect that I did. Judge Rush. Did you see him fall? 
 A. Yes, sir; in this manner, I believe I did; (showing it.) Q. Were you near enough 
 to see him if he fell? A. I believe I was near enough to see him fall, to the best of my 
 recollection. Attorney General. Did you see him stumble? A. Yes, sir; to the best of 
 my recollection he made a kind of stumble. Q. Did you see his feet strike? A. No, 
 sir ; I got up to him and seized him in this position, by his left breast or left neck, or 
 whatever you call it. He at the same time made a kind of a motion of this kind, to get 
 at his pocket for something; but I do not know what it was. The watchman immedi- 
 ately came to my assistance, with several other citizens, in the twinkling of an eye, 
 almost. Q. Had you any struggle with him? A. No, sir; I took him as easily as I 
 would a child of fourteen or fifteen years of age ; he made no resistance. Q. Did he 
 make no effort to get from you? A. If he did I did not perceive it; I held him as I 
 pleased. Q. What did he say, sir? A. To the best of my recollection he did not say a 
 word. There was a person came up at the time I had seized him by the collar, with a 
 pair of spectacles on, and a blue coat. 
 
 Cross-Examined. — Browne. Captain Baker, you say you went up to the corner of 
 Dock and Second streets on that evening ; be pleased to tell what induced you to go 
 there? Baker. I live down Front street, near Pino street. There was a note came, 
 brought by John Carson's eldest son; I was not at home; I came home; Mrs. Baker 
 was coming to the door to go away. 
 
 Temperance Barkley Sworn. — 
 
 Att. Genl. Tell the court and jui-y where you lived in January last. A. I lived at 
 the corner of Dock and Second streets. Q. Who did you live with ? A. I lived with 
 Mrs. Carson. On the Wednesday before the accident happened, Capt. Carson came 
 there in the morning and asked where my mistress was. I told him she was not up 
 yet— he went out again— he returned again, Mrs. Carson was not up still. Mr. Smith 
 was up in the parlor. I told him I would go up stairs and call Mrs. Carson, and tell her 
 he was d?wn there. Mrs. Carson then got up and dressed herself, and came down stairs 
 andfound Captain Carson there. Mr. Smith, when he found Captain Carson was there, went 
 out. He returned again, and found Captain Carson was still there ; he went out again ; he 
 
397 
 
 came back again ; it was near 11 o'clocli, he then eat his breakfast in the parlor by him- 
 self. Captain Carson and Mrs. Carson were in the kitchen. Mrs. Carson eat her break- 
 fast about 12 o'clock in the kitchen; Captain Carson was there with her. Mr. Smith came 
 in about two o'clock, and found that Captain Carson was still there; he went out again; 
 he came in again, it was near 3 o'clock ; Captain Carson was there still ; he then sat down 
 in the parlor talking with Captain Carson ; they were talking upon very good terms, about 
 officers on the lakes, and one thing or another. Dinner went in at near 3 o'clock : Captain 
 Carson, Mr. Smith, and Mrs. Careon sat down at the table. Mr. Smith at the head of the 
 table, Captain Carson at the foot of the table, and Mrs. Carson at the side. Captain Carson 
 was sitting there with his little girl on his lap, I went down stairs in the store. I had 
 not been there but a very little while before I heard a great noise up in the parlor. I 
 then ran to the front door to call for assistance, and then I atopt. I heard a great noise 
 — it appeared as if some person was on the floor. Q. The parlor is right over the shop, 
 is it not ? A. Yes, sir ; I heard the little girl hallo very much up in the parlor. I then 
 ran up stairs to get the child out of the parlor, I met Captain Smith coming out. I then 
 ran to see what had become of Mrs. Carson, I did not hear her. Captain Smith ran 
 down stairs. I ran to the parlor door: I passed it and Mrs. Carson had hold of Captain 
 Carson by the coat to prevent him from running after Captain Smith. As soon as I got 
 the door open Captain Carsou broke his hold from Mrs. Carson and ran down stairs. Q. 
 Had he knives in his hands ? A. He had them, one in each hand ; but he placed the 
 two in one hand and ran down stairs. Mrs. Carson hallooed, "Richard, Richard fiy." Sarah 
 made answer, Richard's gone. While Captain Carson was down stairs, I went into the 
 parlor. I cannot say what he said down stairs, I went into the parlor, took Kichard 
 Smith's hat off the sofa and went back into the kitchen. Captain Carson and Mrs. Car- 
 son went into the parlor. Mrs. Carson put her hand on her breast and told him if he 
 wanted to murder, to murder her; he hallooed " murder." Yes. I went down stairs and' 
 asked the little boy who was sitting at the door, where the person went; he said across 
 Dock street. Ithen knew where he was; I went over to Jonathan Smith's and took his 
 hat to him. Q. Do you know anything of Richard Smith carrying arms ? A. Yes, sir, 
 I do. Mr. Smith came into the house that night with a pair of pistols. Q. What night? 
 A. On Wednesday night ; on the same day Captain Carson attacked him with the knives ; 
 he had them in the kitchen; Mrs. Carson had gone out; Mr. Smith had the pistol by his 
 side ; he took the ramrod out of the pistol, threw it into the muzzle, and said it was four 
 fingers ; he said there was a bullet in it. He then said, if ever Captain Carson entered 
 the door to lay hands on him, he would certainly shoot him. Q. Who did he say it to ? 
 A. He said it in the kitchen ; there was nobody else in the kitchen : he knew I was there. 
 Q. Did he say it to you ? A. I can't tell, there was no one there but some little children : 
 he did not say it to them. On Saturday morning Captain Carson wrote the note. Q. 
 What happened on Thursday? A. On "Thursday I believe Captain Smith bound Captain 
 Carson over. Q. Were they both there that day? A. No, sir. Captain Smith was there; 
 he was very sick, he could not go to Judge Badger's office until the afternoon — he was 
 sick several days before Captain Carson made the attack upon him ; Mrs. Carson had 
 been giving him physic. On Saturday following, Captain Carson wifote up a note by 
 his own son William to Mrs. Carson, wishing to see her at her house, comer of Dock 
 and Second streets. She then sent him word she would be at leisure between eight and 
 nine o'clock, she wrote a note by her son William. Captain Carson, instead of coming 
 between eight and nine, came between seven and eight in the evening : Mr. Smith was 
 then in the parlor with Mrs. Carson. A young girl, Sarah White, was down in the shop 
 and came up and told Mrs. Carson Captain Carson was down in the shop and wished to 
 see her. Mrs. Carson went down to Captain Carson and brought him up. Mr. Smith 
 went into the kitchen. Mrs. Carson after she came up into the parlor with Captain 
 Carson, came into the kitchen and asked Mr. Smith if he would not take tea; he said no, 
 he would go and stay at Jonathan Smith's till Captain Carson went away. Mrs. Car- 
 son came out after awhile and took tea herself. Captain Carson with her ; when she sat 
 down she asked Captain Carson if he would take tea ? he said he had already taken tea 
 at his mother's. After Mrs. Carson was done tea, she returned to the parlor again. 
 Captain Carson with her. I went in after awhile. Captain Carson was walking up and 
 down the parlor floor. After awhile — a good bit, Mrs. Carson came and called me to 
 get her clothes, I got her coat and hat; she came out into the kitchen — she has a little 
 red box which she keeps her money in, she opened it, took some money out, and put it 
 in her reticule. I then, sir, followed her down to the shop ; she told me if she would not 
 be at home that night, I must not be alarmed at her staying out. I then asked her why ? 
 she told me Captain Carson was come to take possession of the house, she was going out 
 to find Mr. Smith ; she said she would not wish Captain Carson and Captain Smith to meet 
 again on account of what had happened before. She then went out and staid a good 
 while, and then came back again to persuade Captain Carson to go home. He would 
 
 r^nf T friT'o-nt cninftfliiTio' hftfAna PnT^fniTi Pornnn SPTit Tlls Ron doWU fOr ThomaS Baker, be- 
 
398 APPENDIX. 
 
 fore she came in the last time. Mrs. Baiter and Captain Baker came up to the comer of 
 Dock and Second streets, Captain Carson was then walking the store. I cannot say what 
 Mrs. Baker said to Captain Carson in the store. I went up stairs, Mrs. Baker, Captain 
 Baker, and Captain Carson, went up into the parlor. Mrs. Baker was sitting near the 
 front window, near the fire-place. Captain Carson sat in the middle near the fire. Mrs. 
 Carson came in the last time, ran up stairs and came into the parlor. I was sitting in the 
 kitchen, when Mrs. Carson came up, I went into the parlor to see what was the matter. 
 Mrs. Carson was there trying to persuade Captain Carson to go home ; he would not go home. 
 After Mrs. Carson was in there a good bit, I came out to get some wood to put on the fire, 
 I went into the parlor again, Captain Carson had his little girl on his knee ; I then took the 
 little girl off his knee to put her to bed ; Mrs. Carson was then trying to persuade Captain 
 Carson to leave the room. I staid there for a good bit, after awhile Mr. Abbott came 
 in ; I waited with the child in my arms. Mr. Abbott went into the parlor and stood with 
 his back towards the dining table. He had not been in there more than a minute, or a 
 minute and a half, before Mr. Smith came in ; Mrs. Baker was then talking with Mrs. 
 Carson, asking her if she could live in a state of adultery with that wretch. In the mean 
 time, while she was saying the wretch, Mr. Smith entered the door. Mrs. Carson answered, 
 it was no fit time of the night to talk about that. When Mrs. Baker said " the wretch," 
 I happened to look up in Captain Smith's face, and saw that his countenance was very 
 much altered. When I saw Mr. Smith's countenance was changed, I took the child and 
 ran down stairs to the street door. Edward IngersoU. — Before you go further, describe 
 the change in his countenance? A. I can't well say, sir; I saw his countenance was 
 changed; I can't exactly tell how he looked, he seemed very much agitated. Edward 
 IngersoU. — Can you tell us how agitated ? A. I can't well tell, sir ; he seemed to be an- 
 gry. Q. Did you say, this change was the reason of your running down stairs ? A. 
 Yes, sir ; his son John Carson was standing at the door; I told him I was afraid some- 
 thing would happen, from the change in his countenance. ( This reflection, objected by the 
 court.) I ran back to the door and found some person in the shop, I could not tell who 
 it was until he got to the front door. Q. Did you hear any noise ? A. I heard a scramb- 
 ling in the shop. Q. Did you hear anything up stairs? A. Oyes, sir; I heard the pistol 
 go off. Mr. Smith got out by the lamp-post, there was a crowd around him. ' He went 
 away — I did not see any thing more of him. Q. How far was he from the door, when 
 his countenance changed ? A. About two yards from the door. 
 
 Cross-Examined. — 
 
 Browne. — You said that on the previous Wednesday Mrs. Carson called down to Mr. 
 Smith, "Bichard, fly!" that Sarah White was in the store, and answered, "Richard's 
 gone?" A. Yes, sir. Q. You have also stated, that when Mrs. Carson said to Captain 
 Carson, that if he wanted to murder her, he said — "murder." Yes! What were 
 his gestures at that time ? A. He had the knives in his hand, and looked very angry ; 
 his eyes were almost starting out of his head, he was almost double with anger. Q. 
 Did his voice indicate anger ? A. Yes, sir ; very much. Q. I think I understood you to 
 say. that Captain Carson and Mr. Smith dined together that day. Did they drink to- 
 gether that day? A. Yes, sir; several times; I took the water into the parlor. Q. You 
 say Mr. Smith came out of the door, and went down stairs. Did he go quickly? A. 
 Yes, sir; pretty fast. Q. Did you look at his countenance ? A. No, sir. Q. Did you 
 observe whether he looked alarmed or not? A. No, sir; I was afraid myself Q. State 
 whether you ever saw Captain Carson walk round the door? A. Yes, sir; I did. On 
 the Saturday night before this happened, I was shutting up the shop ; I saw Captain 
 Carson go past the door pretty fast, I then said to Mr. Carson's son John, " There goes 
 your father." I wondered what he was doing out so late at night — it was half past ten 
 o'clock — I went to the corner; I saw Captain Carson on the opposite side of the way, 
 behind a poplar tree ; I saw his coa,t. Q. What was he doing there ? I can't tell, sir. 
 He was looking up at our window. Q. Did you ever hear him make any declarations 
 that he would do Smith violence ? A. No, sir ; I never heard him make any. After I 
 went to the corner, he went up Dock St. I then went up stairs, and told Mrs. Carson I 
 saw Captain Carson standing on the opposite side of the way, and look up at our window. 
 She was a good deal alarmed. Q. Recollect yourself, if you did not hear some expres- 
 sions against Smith ? A. No, sir; I was scarcely ever in the room when he was there. 
 Q. Was there ever a pair of pistols in the house before Captain Smith brought those you 
 mentioned home ? A. No, sir. Q. Was there any other weapon ? A. No, sir. Q. When 
 he brought the pistols there, where did he keep them ? A. I believe up stairs in the 
 closet. He never carried them after he bound Captain Carson over. Q. You have men- 
 tioned that Mr. Smith several times came home and went out again. Did he take any 
 pistols with him ? A. I did not see him. Q. What time did you say Mr. Smith went 
 out on the 20th ? A. He went out immediately after Captain Carson came in. Q. Did 
 he take any arms with him then ? A. I did not see him take any. Q. Were you not 
 
RICHARD smith's CASE. 399 
 
 sent to warn Mr. Smith of his danger from Captain Carson? A. I do not recollect 
 whether I was or not. 
 
 Dr. DoTsey sworn. — 
 
 Dep. Att. Genl. Will you please to describe to the court and jury the wound Captain 
 Carson received? 
 
 Dorsey. I must necessarily give you a short account of Captain Carson's case, if I am 
 not suli'ered to refer to a memorandum I took at the time, and which is very full. On 
 the 21st January I was requested to visit Captain Gai-son, in consultation with Dr. Rush. 
 I saw Captain Carson for the first time on Sunday, which I helieve was the 21st of 
 January. The information received was, that the night previous he was shot with a 
 pistol. Upon examining the situation, I found his face burnt, his eyebrows and eye- 
 lashes singed, pai tides of charcoal from the explosion of gunpowder, driven into the 
 face; circumstances which proved the firing of the pistol very near his face. Captain 
 C.irson at this time was in perfect possession of his intellectual powers, and appeared to 
 have suffered very little from the accident. Pie continued in a (jondition not apparently 
 alarming, for several days. On the Thursday, Friday, and Saturday succeeding the 
 accident, in the evening, he was attacked with delirium occasionally. He continued 
 thus until after Saturday night; he appeared manifestly worse during the next week, 
 and on the fourteenth or fifteenth day of the wound he expired — if I am not mistaken, 
 it was on the fourth or fifth of February. The next morning at nine o'clock, at the 
 request of the coroner, I dissected the body in the presence of Dr. Rush, Dr. Physick, 
 and Dr. Niel, and also in the presence of the coroner and his inquest. The brain ex- 
 hibited evident symptoms of inflammation. From his mouth the ball appeared to have 
 passed in a direction backwards, carrying away the two upper teeth, and was found 
 lodged in the upper bone of the spine, for which there is no English name, but which 
 we call the atlas vertebra. The bone was considerably flattened and shattered. The 
 ball was found surrounded by matter and, fragments of the bone. Q. Is that the ball? 
 (showing one.) A. Yes, sir; I believe I can recollect it with perfect accuracy. This is 
 the one, or one very like it. Q. What is that, sir? [showing a piece of bone.) A. It is a 
 part of the bone. — The ball entered at the mouth, there was no external wound ; it is 
 the only instance in which I have found no external wound; for the burning and singe- 
 ing of the brows I spoke of, were the only evidence of external injury; there was no 
 injury on the body of Captain Carson. This is the only instance known in which the 
 three spinal bones were injured, that there was not immediate death; nor have I, nor 
 any of my medical friends, read of a similar instance. If we had known the extent of 
 the wound, we never would have entertained hopes ; but we had expectation of his re- 
 covery, and Captain Carson was encouraged by us to think he would get well ; and I 
 can assure the court, that on the fourth or fifth day of the wound, Captain Carson's 
 mind was free from the apprehension of death. [The doctor was shown a paper.) The 
 fifth February we made the dissection ; of course he died on the fourth February. 
 
 Dr. Rush sworn. — 
 
 On the 20th January in this present year, between ten and eleven o'clock at night, I 
 was requested to visit Captain Carson. I immediately followed the messenger to the 
 corner of Dock and Second streets, where I found Captain Carson lying on the floor of 
 his parlour, with the marks of a gun-shot wound on his lips. The dangerous bleeding 
 had ceased, and I gave the necessary directions for his treatment. I continued to attend 
 him, in consultation with Dr. Dorsey and Dr. Physick, until the day of his death, which 
 occurred on the fourth of the succeeding February. The body of Captain Carson was 
 examined the next day after his death, and dissected by Dr. Dorsey, in the presence of 
 Dr. Physick, Dr. Niel, the coroner's j ui-y , and myself. From that examination and dis- 
 section, I plainly saw the leaden ball, lodged in the neck. It was a ball of moderate 
 size. Q. (showing it.) Is that it, doctor? A. It was about that size, and flattened as 
 that is, exhibiting the appearance of having passed through a bone or solid substance. 
 Q. [Handing him a piece of bone. ) Do you know what that is, doctor ? A. It looks like a 
 piece of bone. The ball appearing by these marks, to have entered the mouth, leaving 
 on the lips a slight impression, tearing away the two fore teeth, shattering the tongue, 
 and finally resting on the bone of the neck, technically and specifically (Sailed the atlas 
 vertebra. It had not reached the spine, which is in the middle of the neck; it had only 
 reached the spinal marrow; it was, therefore, in the front part of the neck; the ball 
 rested upon this place, surrounded by fragments of bone, occasioning an injury in a 
 highly vital part; an injury suftieient to cause the death of the patient. Q. Was it on 
 the bone of the neck? A. The bone appeared to have been broken into many pieces ; 
 I do not know how many, but amidst these fragments it was lying. Q. Do you con- 
 sider the spine as lying in the back part of the neck? A. When I spoke of the front 
 part, I spoke of the solid structure of the neck; it was near the fleshy part of the neck. 
 Judge Rush. Do you suppose he died of this wound ? A. I believe he did. During 
 the first davs of his illness there were expectations of his recovery, arising, however, 
 
400 APPENDIX. 
 
 from our ignorance of the passage of the ball. If we could have Imown by Captain 
 Carson's being able to open his mouth, -we could not have hoped for his recovery. Q. 
 Is not a man oC intemperate habits exposed to greater dangers than a temperate per- 
 son? A. All cases of disease are more dangerous with an intemperate man ; but, la 
 this case, there were sufficient effects of disease to produce the death of the most tem- 
 perate man on earth. Q. Is a man of intemperate habits more liable to delirium than 
 another person ? A. Yes, sir. Att. Gen. Is not a weat man, doctor, more liable t» 
 delirium than a, strong one? A. I do not know, sir; strong persons are as liable t© 
 delirium as weak ones ; there is no rule that I know. Q. Did you know Captaia Car- 
 son in his life-time ? A. No,- sir. Q. Was he a large muscular man ? A. I believe he 
 was, sir. He was large in stature, and fleshy; but whether muscular or not, I do no4 
 know. Q. Were there any indications of intemperance from the time you first saw him ? 
 A. No, sir. 
 
 Samuel JEwing, Esq. sworn. — 
 
 Q. Had you any conversation with the prisoner shortly before the 20th January ? 
 
 A. I had a conversation with Captain Smith on the morning of the day he went t» 
 Judge Badger's office. I do not exactly recollect the day ; it was on the Thursday or 
 Friday before Captain Carson's death. The conversation which I had, passed in the 
 office of Judge Badger; I attended there as the attorney of Captain Carson, at his re- 
 quest. I will not pretend to state the words that passed, but the substance I can 
 1-epeat. Captain Carson was brought, and I attended at Judge Badger's that morning, 
 in consequence of a complaint that had been made against him by the prisoner at the 
 bar, who wished Captain Carson bound over to keep the peace, and I went with Captain 
 Carson as his attorney, to defend him. If I recollect right. Captain Smith made the 
 oath usual on these occasions, that he was in danger of his life, and mentioned the rea- 
 son ; a circumstance that had occurred a day or two previous, at the house of Mrs. Car- 
 son; an attack made upon him by Captain Cijrson with a knife, at the dinner table. I 
 think Captain Carson asked, and was allowed by the Alderman, opportunity to explain 
 the circumstances. Captain Carson mentioned, it was not his intention to hurt or strike 
 Captain Smith, but merely to frighten him out of the house ; Captain Carson mentioned 
 that his feelings were very much irritated at seeing the prisoner, Captain Smith, in the 
 house, which Captain Carsou considered his own, assuming the command over the 
 servants and children at the dinner table; and that in consequence of these feelings 
 being excited, he suddenly seized the knife that was lying before him on the table; 
 used some strong expression toward the prisoner, I forgot the expression he said, and 
 made an apparent attempt, as he said, to strike ' Captain Smith with the knife, but 
 without any intention of doing it, but merely to frighten him. Captain Smith, as Cai^ 
 son said, ran beliind Mrs. Carson, and Captain Carson sat down again. It was upon 
 that statement, and upon tlie impression I had, that Captain Carson had a right, — 
 (stopped by the counsel for the prisoner.) I then took occasion to remonstrate with the 
 prisoner at the bar, against his being in that house ; I told him that he was not the 
 husband of Mrs. Carson, and had no right to live with her ; that her husband was 
 living; that his marriage with Mrs. Carson was void ; and referred him to the act of 
 Assembly. If I recollect right, the gentleman who attended as Captain Smith's coun- 
 sel upon that occasion, Mr. Jonathan B. Smith, said the marriage was legal. Captain 
 Smith himself, in consequence I suppose of that, said also the marriage was legal. I 
 asked Captain Smith, the prisoner at the bar, whether he did or did not know, that her 
 husband was living; his answer was that he did not know anything about it himself, 
 but heard that she was a fine widow, with three or four children, I asked him, whether 
 at the time he married her, he did not marry her by the name of Carson, and whether, 
 seeing the children there, did not remind him that she was a married woman ; and 
 whether these circumstances did not lead him to inquire whether she was mariied. 
 Captain Smith rather objected to answering ; he said some of my questions were illegal ; 
 lie referred to his counsel; his counsel told him not to answer such questions, and he 
 rather declined answering them. I asked whether he knew or had known Mrs. Carson 
 twenty-four hours before he married her; his answer was, he was introduced to her on 
 Saturday, and married her on Sunday; there was some more conversation before Cap- 
 vain Carson was bound over, I believe in a recognizance of five hundred dollars ; 1 will 
 not be certain as to the amount ; but Captain Smith seemed, towards the conclusion of 
 the conversation, to have doubts of the legality of the marriage. — (Stopped by the pri- 
 soner's counsel, and desired to tell the words that passed.) I am now at that part of 
 the conversation when the prisoner was in the entry aloue. Mr. Browne, (Objected to 
 the relation of what passed in the entry when Mr. Smith was alone.) Mr. Ewing has 
 stated he was the counsel of Captain Carson; I would ask him whether he did invite 
 Mr. Smith out in the entry, and whether Mr. Smith went with him as counsel ; if he 
 answers in the affirmative, I object to his now disclosing anything there confided to 
 him. Q. Did you not invite Captain Smith out into the entry to give him advice? A. 
 
EICHABD smith's CASE. 401 
 
 Yes, I touched him in tlie room, and inyited him into the entry. Q. Waa it not to give 
 him legal advice ? A. I considered it more friendly than legal. Q. Was it not upon 
 legal principles? A. Yes. Browne. Then certainly, your honour, what was declared 
 by Smith in the entry, was in confidence, and Ewing was there as counsel. Att. Gen. 
 I' cannot distinguish the difference between the public and private conversation. But 
 we do not wish Mr. Ewing to disclose anything confided to him as counsel. Did not 
 Mr. Smith know you were the counsel employed against him? A. He certainly knew 
 I was employed against him. Browne. Mr. Ewing invited Mr. Smith from his counsel, 
 into the entry, and anything he said there, was as much in confidence, as if it had been 
 said to a hired counsel. A hired counsel is sworn to do his duty, but here, where 
 there was an invitation, an offer of legal advice, Captain Smith reposed as much confi- 
 dence as if Mr. Ewing had been hired counsel. 
 
 The court were of opinion that the evidence must be heard. The witness proceeded. 
 
 I took Captain Smith into the entry, with a view and hope to persuade him to leave 
 the house. Browne. — Mr. Ewing, you must not state your views and hopes — you know 
 you ought not. E. I do not, sir ; begging your pardon. B. You ought to know it, 
 sir. E. I think not, sir. It was intimated by the counsel, that my taking Captain Smith 
 into the entry, was with a view of giving legal advice. I told Captain Smith he must 
 now be satisfied, he had no right to live with that woman; that he now knew she was a 
 married woman, her husband was living, and had returned; that Captain Carson could 
 not bear to see him in the house which Captain Carson thought his own, with his wife and 
 his children; and that to avoid all disputes between himself and Captain Carson, he had 
 better leave the house. Captain Smith said, he had a right to be there, and would not 
 go away. I again repeated to Captain Smith wliat I have mentioned; expostulated with 
 Captain Smith about the propriefy of his being in the house, and advised him to leave 
 it; and he finally told me that he would go away to Kentucky, I think he said, on the 
 following Monday or Tuesday ; I think this conversation happened on Thursday or Fri- 
 day. I told Captain Smith he had better go away at once, and then left him. Q. Do 
 you recollect any contemptuous language used by Carson ? A. Yes, sir, I recollect clear- 
 ly and distinctly, that when the attempt was made, Carson said, "You danm'd scoundrel, 
 or you damn'd rascal," or something of that kind. Q. Did not Smith say, Carson said, 
 he went behind Mrs. Carson as a coward ? A.I have some recollection that something 
 of the kind did happen. Q. Were you the only counsel of Captain Carson? A. There 
 was no other that I knew of; I believe I was the only one. Q. Did fou advise him to 
 take possession of that house on the 20th? A. No, sir, I never advised him to take for- 
 cible possession of that house. Att. Gen. That was not the question. E. My advice 
 to him was to keep away from the house. To act peaceably and quietly until he got the 
 title papers from his wife. This was the advice I gave him for nearly two weeks. 
 
 Mrs. Marlia De Gorgue sworn — 
 
 Defit. Att. Gen. Relate, Madam, any conversation that passed in your presence be- 
 tween Mr. and Mrs. Carson. Witness. I know nothing of Mr. Smith more than the 
 greatest stranger on earth. My husband has been acquainted a long time with Captain 
 Carson and his family. Q. Have you ever seen Mr. Smith ? A. I saw him at my 
 house, I think on Friday before the circumstance occurred ; I believe he got some medi- 
 cine from my husband. Nothing took place except that he got the medicine. I never 
 heard him say anything respecting the business, except when he last called ; then he 
 spoke of having some dispute with Mr. Carson. Q. Do you know anything of a letter 
 written by him? A. I saw a paper given by Mr. Smith to Mrs. Carson. Att. Uen. 
 (showing a paper.) Is that the paper, Madam ? A. I think it is, sir. Q. Did he give it to 
 her? A. I was in the store at the time Mr. Smith came down stairs, and had a paper 
 folded in his hand; he merely handed the paper to Mrs. Carson, and said, "Read that 
 when you are alone." Q. What time did this happen? A- I think it was on Thursday. 
 Q. Do you know what were the contents of the note? A. I am certain, sir, I read the 
 paper; I was requested to read it by Mrs. Carson ; I did so : it was a request to make 
 up certain sums of money, and there was a note on the table. — (The Dept. Att. Gen. 
 read the letter, which was as follows:) 
 
 " Account of moneys which I have received from my dear Ann, since I had the pleasure 
 of knowing her, — thirty-five, ten, five, five, in all amounting to fifty-five dollars since 
 our connexion — too proud to ask any favours from my relations, and it being my deter- 
 mination never to oppose your wishes, whose happiness is dearer to me than life; I con- 
 template the moment, the fatal separation takes place, to leave town; it may give peace 
 to my Ann, the only woman I ever loved, and the last. — My destination will be Lexing- 
 ton Kentucky — I have had several invitations to join my cousin — to remain here and be 
 the scoff of my own connexions, I never will — my heart is too big to say more. Yon 
 know me, and that is saying volumes. But to accomplish my wishes, my dear Ann, it is 
 requisite I should ask of you to make my pecuniary debts amount to $200, promiging 
 
402 APPENDIX. 
 
 to discharge soon after my arriTal in Lexington; the sooner you can let me have it 
 the better.— Good God! that I should be what I am. I cannot eat with you— my soul 
 is nothing — I will see you before three o'clock." 
 
 Your ever affectionate and loving husband, RICHARD SMITH. 
 
 (There is no date to the letter.) 
 
 60 days after date, I promise to pay, either in Lexington, Kentucky, or in the city of 
 Philadelphia, to or order, two hundred dollars. Value received. 
 
 Philadelphia, Jan. 18, 1816. RICHARD SMITH. 
 
 Temperance Barclay again called. 
 
 Q. Did you hear any conversation between Mrs. Carson .and Captain Smith on Sa- 
 turday morning? A. Yes, I did; Mrs. Carson wished Captain Smith to go and board 
 out. Captain Smith told her he had no money at present, he could not think of living 
 on her money. She wished to pay his board. I cannot exactly teU you the words. 1 
 just heard it as I opened the door. 
 
 William Tyson, black man, sworn. 
 
 Att. Gen. Tell the court and jury whether Captain Smith said any thing to ycu im- 
 mediately before the death of Captain Carson ? A. Mr. Richard Smith sent me for 
 two balls — pistol balls. Q. When was this? A. At night, sir. Q. How long before ? 
 
 A. I can't exactly teU. I believe some days before, at night. Att. Gen, We shall 
 rest the prosecution here, unless it is necessary to adduce further testimony to rebut. 
 Browne. I wish to ask Mrs. Baker a further question, which 1 will now take the op- 
 portunity of doing. 
 
 Mrs. Baker, called again. 
 
 I have heard Captain Carson say, he would take Captain Smith and serve him as 
 they served them in Scotland; he would take a big stick and beat him. This was some 
 time after Captain Carson came to my house. I do not know exactly the day. Q. Do 
 you not know of Captain Carson's way-laying Mr. Smith ? A. The Saturday night before 
 the accident happened, Captain Carson heard that Mr. Smith was at Mr. Sergeant's 
 tavern; he put on his hat and went out. When he returned he told me he went to Mr. 
 Sergeant's tavern to hunt Captain Smith, but when he went he was gone. Q. Did he 
 say anything about knocking his blue eyes into black ones? A. I am not certain, but 
 I think he used some expression of the kind. The court adjourned. 
 
 Fkidax Afternoon, 3 o'clock, P. M. — Att. Gen. I beg to mention to the court, that 
 I wish to put one question to Mrs. De Gorgue I omitted in the morning. I have sent 
 for her. A number of questions were proposed by the counsel last night without ex- 
 plaining how the testimony was to be used — I am left to conjecture. If it is to show 
 that the prisoner had a right to remain in that house, in consequence of his marriage 
 with Mrs. Carson, then it would be proper to know how Captain Carson acted. I pro- 
 pose this question for Mrs. De Gorgue. Whether she was present at an agreement 
 entered into by Captain Carson and Ann Carson to live together ; when it was, and what 
 it was. Mr. Bawle wished to know what time this supposed agreement was made. Att. 
 Gen. Within two or three days preceding his wound, probably about the 18th; the let- 
 ter which I suppose was a consequence is dated the 18th ; I therefore suppose this agree- 
 ment to have taken place about the 17th or 18th. Rawle. We consider it better to post- 
 pone this evidence, as the lady is not present, until we have gone through our case. We 
 will not object to the time. Att. Gen. I have no objection: provided the time is not 
 objected to. 
 
 Mr. Browne then opened the defence. 
 
 If your Honours please. Gentlemen of the Jury. So uncommon an occurrence is it, 
 to be concerned in the trial of an issue, where the life of a valuable fellow-citizen is at 
 stake, that I may promise myself your most serious attention; and if we have shown an 
 anxious desire to arrest the time in this all-important case, and zeal to lay the whole 
 evidence before you, to establish our defence; we hope this you will receive as a full and 
 ample apology. We labour, gentlemen, on the present occasion, under very considerable 
 difficulties, which are not felt on the side of the prosecution. On their side, they have 
 had opportunity to examine the circumstances, to see and examine witnesses, and know 
 what evidence was to be brought before you ; and on our side, we have had nonft of these 
 advantages ; we come in a manner unprepared ; we were ignorant of what evidence would 
 be adduced against us; we were even unacquainted with the nature of the charge; and 
 did not see the indictment until it came before the court. I trust we will find in the jury 
 a proper consideration on this subject, although these are not the only difficulties under 
 which we labour. It has been very properly hinted at, by the Attorney General in his 
 opening, that this case has excited not only curiosity, but indignation ; this, it is impos- 
 sible can operate with you, against the prisoner. No, gentlemen, I flatter myself, that 
 whatever you have heard as citizens, when you have once taken possession of that box, 
 you will abandon every idle story you have heard out of doors ; that you will decide 
 
RICHARD smith's CASE. 403 
 
 merely upon the evidence adduced at this bar; that you will not consign a va'.uaWe fel- 
 low citizen to disgrace and an ignominious death, without fully weighing every circum- 
 stance alleged both for and against" him; and that you will wuU examine also, the an- 
 swer, perhaps fatal answer, (if you do not properly and with care consider the cape,) 
 the which may bereave your fellow creature of life. Richard i^mith was born in Ire- 
 land. His father, Samuel Smith, was a respectable inhabitant of the town of Sligo. 
 Young Smith had the misfortune to lose him while in his infancy, and his mother con- 
 tracting a second marriage, he, at an early age, emigrated to this country. He arrived 
 at Philadelphia in the summer of 1803, and (jhus, in a strange land, was "launched into 
 life without an oar." 
 
 " iNo mother's care shielded his infant innocence with prayer, 
 
 No father's guardian hand his youth maintained, 
 
 (Called forth his virtues and from vice restrained." 
 
 He was put to school, and remained in or near Philadelphia until 1807, when he was 
 sent out to New^ Orleans, and placed under the protection of his maternal uncle, Daniel 
 Clark, formerly a member of Oongress from the territory of Louisiana, but better known 
 to the citizens of Philadelphia, for his unexampled humanity in cruising in a leaky ves- 
 sel, for the crew of the ship Arago, which was wrecked on the Bahama Banks, and at 
 the peril of his life, and risk of losing a valuable vessel and cargo, (the insurers of which 
 were discharged by the deviation,) snatching from the jaws of death a number of our 
 valuable fellow citizens. Oh ! how unlike that generous, humane and disinterested uncle, 
 is the hideous picture now drawn of the nephew. — How unlike the public festival 
 with which Mr. Clark was justly honoured by your city, is the degradation of his me- 
 mory in the public trial of his only male representative on this side the grave ! But, 
 to return from this digression. Being adopted by his uncle, who to immense wealth 
 added great political consequence, young Smith was regarded as his heir apparent. With 
 these flattering prospects he commenced his acquaintance with the world. Thoughtless 
 and unreflecting, flattered and caressed by the friends and dependants of the then pow- 
 erful Daniel Clark, he imbibed ideas illy calculated to support him through the scenes 
 of sorrow and adversity that have succeeded. Scenes that have chilled the hearts of 
 some of the warmest of those friends. Nor was this the only disadvantage under which 
 young Smith at that time laboured. Mr. Clark, with one of the warmest hearts that 
 ever animated the breast of a true born son of Erin, had a heart least calculated to en- 
 hance the value of the favours he dispensed to all around him. He gave with a liberal 
 hand, but his favours seldom secured him lasting attachments. He expected too great, and 
 received too little return from those who rose to eminence upon his patronage. With 
 regard to Smith, he was still more unfortunate, attached to him by all the ties of blood 
 and friendship, he expected from him a steadiness and gravity of conduct totally incon- 
 sistent with his years and education, and Mr. Clark's disappointment, on the one hand, 
 and the independent spirit of young Smith on the other, were the only things which 
 in a small degree interrupted the harmony that should have existed between them. Thus 
 circumstanced, young Smith sighed to be released from the golden cage in which he was 
 confined ; buf gratitude to his benefactor for the time restrained his inclination. We 
 have now traced him to that period when our country, wearied with the injuries that 
 had been heaped upon her by the transatlantic rulers, resolved to appeal to the last re- 
 sort of nations, and to emancipate her sons by the power of her own arms. You will 
 all remember ■the fire that at that interesting period burned in every young .American 
 bosom ; how the native and the adopted citizen emulated each other in their ardour to 
 be foremost in the ranks. Young Smith's heart caught the sacred flame, and with such 
 vigour did it blaze, that he instantly burst asunder all the chains that bound him to the 
 mansion of his adopted parent. Then only 18, he repaired immediately to the city of 
 Washington, and having been introduced to the secretary of war by James Brown, the 
 senator from Louisiana, on the 3d of May he received an appointment of lieutenant in 
 the 23d regiment, and went immediately to the seat of war. His regiment was then 
 under the command of Colonel Brown, but that gentleman soon after retiring from ser- 
 vice, the regiment for the remainder of the campaign was consolidated with the 6th, 
 under command of brevet Colonel, now brevet Brig. Gen. Miller. Although nothing 
 brilliant was achieved during this campaign, stUl it was an active one ; the Americans 
 were obliged to be continually on the alert, as the main body of the British army under 
 the orders of Major General De Rottenburg were intrenched within three miles of their 
 camp, and there was continued, during the whole time, a petite guerre of out posts, fre- 
 quently surprising and cutting off pickets; and, so far, as opportunity off'ered. Lieutenant 
 Smith showed himself worthy of the commission with which he had been honoured. It did 
 not fall to his lot to share the laurels, but by his general good conduct and co-operation 
 with his gallant companions in arms, he assisted in redeeming from obloquy the Ameri- 
 /.an nnTnn In the fall of 181.S General WilkinRon took command of the army. Smith. 
 
404 APPENDIX. 
 
 obtained a furlough for two months, and on its expiration he was ordered on the re- 
 cruiting service. During the winter he was appointed adjutant of the recruiting district. 
 In the spring of 1814, news arrived at Utica (N. Y.) where Lieutenant Smith then was, 
 that Saokett's Harbour was attaclied. Smith left Utica with 120 recruits, 60 rounds of 
 ammunition, and 3 days' provisions and in 40 hours they were at Saokett's Harbour, a 
 distance of 80 miles. For liis promptness and good conduct on this occasion he received 
 the thanks of General Gaines, who, afterwards, in aletter to his Colonel which was pub- 
 lished in the Aurora, spoke of him in handsome terms. Sometime afterwards an order 
 was issued for the consolidation of the battalion to which he belonged with some others, 
 the whole to be under the command of Major Lyman, the senior field officer present, and 
 by the recommendation of General Gaines, Lieutenant Smith was appointed adjutant, 
 and from that time, (except when prevented by sickness) he continued to perform that 
 duty; until (wishing for more active employment) he applied for and obtained an order 
 to join the army under General Brown, then besieged by a vastly superior force under 
 General Drummond. With this division he remained until the army went into winter 
 quarters. In the winter he was employed on a special mission, and performed it to the 
 satisfaction of his superior of&cers. I have been thus particular in tracing Mr. Smith, 
 because, among other falsehoods industriously circulated with a view to prejudice his 
 trial, it has been reported that he was disgraced in the army. We challenge the inquiry, 
 and will adduce such honourable testimonials of his bravery and good conduct during the 
 whole time he was in the service, as will admit of no contradiction or doubt upon this 
 subject. The return of peace, though pleasing to Mr. Smith in common with the rest 
 of his fellow citizens, did not better his situation. While he was in the army he had 
 met with, in the death of Mr. Daniel Clark, one of the heaviest misfortunes that could 
 have befallen him. It was not until the derangement of the army, and Smith's return 
 to civil life, that he felt the full weight of the loss he had sustained. Educated to no pro- 
 fession, with no relations, few friends, and slender means of gaining an honest and honour- 
 able livelihood, he was reduced to a distressing situation. Let it not then be objected 
 to him that he married the lady upon too slight an acquaintance, that he neglected to 
 make all those prudential inquiries and arrangements which an older man, and one dif- 
 ferently circumstanced, would have done. Considering his inexperience and situation 
 suffice it that he was assured that she was free from any pre-engagement. 
 
 They were married at Frankford, on the 15th day of October, 1815, by the Rev. Mr. 
 Doak. — The lady had acquired the character of a, feme sole trader by Carson's desertion. 
 She had rented the house at the comer of Dock and Second streets, in her own name, and 
 had power, by the act of Assembly of 22d February, 1718, to acquire and hold property 
 independently of her husband ; she became liable to be sued and imprisoned for debt, 
 and had actually been confined in the Debtors' Apartment of this city. — The marriage 
 of Smith with the lady having taken place, upon/afee rumour in appearance well founded 
 of the death of Mr. Carson, he having teen absent two whole years, was, in some respects 
 lawful by the divorce law of Pennsylvania. The lady was not liable to the joams of adul- 
 tery. And Smith acquired the possession of the house and other property, and became 
 liable to pay such debts as she had contracted. — Soon after the marriage Smith came 
 there and reduced his right to the house ia possession ; from that time he remained there 
 and was looked upon by every body, as he was in law, the master of the family. — Even 
 Mrs. Baker, the mother of the lady, recognised him as her son-in-law. She saluted 
 him, called him her dear son, and wished him joy. — By her frequent visits ,at the 
 house, and familiarities when there, she, for some time, gave the strongest testimony of 
 her approbation of the match. — This state of quietude was not, however, of long dura- 
 tion. Mrs. Baker and Mr. Smith had an unfortunate dispute about pecuniai-y matters, 
 and the old lady taking offence at some expressions of his, it implanted in her a hatred 
 and desire of revenge which nothing could allay.— In this unfortunate state of affairs, 
 Carson unexpectedly arrived from Europe. He was ignorant of the second marriage, 
 but had been absent so long without even writing to his family, that he would not go to 
 the house. He proceeded to Mr. Baker's, and there, it is natural to suppose, he re- 
 ceived no favourable impression of Mr. Smith.— Here let us pause for a moment and 
 examine the course pointed out to Carson by law. We shall find it reasonable in its 
 terms, and ample in its provisions.— The second marriage was, as I before said, in some 
 respects lawful. The lady was not liable for the pains of adultery, and Smith acquired 
 dominion over the property; but it was in the election of Carson to dissolve this con- 
 nexion that existed between them, and have his wife restored, or to have his own mar- 
 riage dissolved, and the lady remain with the second husband.— But this was to be done 
 not by his own act merely, but by a suit or action instituted for the purpose, within six 
 months after his return, in which the court might decree accordingly.— Until Carson de- 
 clared his election by instituting the suit, the possession of the lady and the house 
 remained in Smith. — Such action claiming the restoration never was brought; but on the 
 contrary, Carson, on the 15th of January, 1816, formally and legally renounced and 
 
405 
 
 abandoned all right to her and her possessions, by petitioning for a divorce from the 
 bond of matrimony. — On the 16th January, the next day a/ter Carson had made his 
 election, he came to the house which was thus in the legal and peaceable possession of 
 Smith, and committed a most unprovoked and violent outrage upon his person, attempted 
 to murder him with deadly weapons, and forcibly expelled him from his home. — At this 
 time Smith had no arms ; he had no occasion for any ; he was at peace with all mankind, 
 and had done nothing justly to excite the displeasure of any one. — As the circumstances 
 attending this unwarrantable attack and expulsion have, it is conceived, a material 
 bearing on the decision of this cause, I shall be excusable while I place them more in de- 
 tail before the court and jury. — When Carson came to the house he disavowed all hostility, 
 and by that means put Smith off his guard ; he sat down to the table with Smith, ate 
 with him, and drank with him, and conversed with mildness and pacification. Having 
 by these means completely lulled to sleep any latent apprehensions that might exist in 
 Smith's mind, Carson suddenly inquired of him whether he was armed, and being an- 
 swered in the negative, he arose, seized a carving-knife, and aimed a deadly blow at the 
 most vital part of Smith's body. The knife entered his coat, and would have been fatal 
 in its consequences, had it not been for the exertions of Smith to avoid the blow, and 
 the timely interference of the lady, who threw herself between them. Carson seized 
 another knife in the other hand, and Smith saved his life by flying to a neighbouring 
 house, without his hat. Carson, armed with the two knives, followed Smith down stairs, 
 and loading him with imprecations, expressed his regret that he had not effected his 
 bloody purpose. — Smith immediately applied to Mr. Alderman Badger, and took out a 
 warrant, but the hearing did not take place until the 18th of the same month. — In the 
 interim Smith learned that Carson had made threats of further injury, which induced 
 him to borrow a pair of pistols to defend his life. — Every man has a right to keep and 
 use arms for hi^ defence, and it will appear that this was the only object Smith had in view. 
 On the 18th January, when the hearing came on before Mr. Alderman Badger, Smith 
 stated the conduct of Carson, and Carson did not deny the charge or circumstances. 
 He pretended that it had been the effect of sudden passion, and disavowed then harbour- 
 ing any intention to do him an injury ; but what evinced his insincerity in this respect, 
 was the provoking and contemptuous language with which, (as we shall show you,) in 
 the face of justice, he endeavoured to excite Smith to acts illegal and bloody ; but 
 which his inexperienced and warm mind, with false notions of honour, might deem 
 justifiable. — Carson was recognised to keep the peace and be of good behaviour, himself 
 in five hundred dollars, and gave a surety in the like sum. This step of "preventive 
 justice," as Blackstone calls it, being had, it was reasonable to suppose that the public 
 peace would thenceforth be preserved ; and this reasonable expectation would have been 
 realized, if Mr. Carson and his surety had complied with the terms of the obligations 
 they had entered into. This was not the design or intention of Mr. Carson, as will 
 appear in the sequel. He was bound by his recognizance to refrain from, not only 
 such acts of violence as would be offensive to Smith's person, such as assault, battery, 
 and imprisonment, but also from trespasses on his possessions, in his presfence all for- 
 cible entries on his real-estate, and even from provoking and offensive language to him 
 or in his presence, as challenge a breach of the peace ; not only were his hands tied, 
 as he expressed himself, but so also were his feet and his tongue. — Into the house of 
 Smith, without his previous invitation or consent, he should not have entered on any 
 pretence whatever; out of it, as soon as he found himself an unwelcome visitor, he 
 should instantly have gone without hesitation or delay. — On the evening of the 20th of 
 January, only six days after he had attempted the life of Smith, and four days after he 
 h.ad been recognised to keep the peace, to the same house of Smith, unasked, uninvited 
 by Smith, he repaired, with the avowed intention of taking possession. It was about 
 seven o'clock in the evening. He came as before, with words smooth as oil on his 
 tongue, but with falsehood and revenge in his heart. Smith would have been perfectly 
 justifiable in expelling him from the house, and had he harboured any injurious inten- 
 tions against him, never was a more favourable opportunity of putting them in execution : 
 but trusting that mildness on his part would set a good example to Carson, an'd hoping 
 that if he were permitted, for a short time, to converse in private with the lady, he 
 would afterwards quietly retire. Smith went out and left him there. — He took with him 
 no weapon of offence ; he meditated no mischief; he brooded over no murder ; but spent 
 his evening with a friend, in a social and innocent manner. — Returning home about ten 
 o'clock, he was met by the lady, and learned from her the circumstances that had trans- 
 pired after he had left the house. That Carson, having obtained admittance to the 
 house under the garb of the lamb, had immediately after his departure, thrown off the 
 covering, and shown himself in his real character of the wolf; that he had acknow- 
 ledged that he came with the illegal intention of taking possession of the house, and 
 remaining with Mrs. Smith all night, and after threatening and abusing her, had finally 
 turned her out of doors to brave the pitiless storm in that inclement night. A person 
 
406 APPENDIX. 
 
 possessing more prudence than is allotted to Smith, and one bound by weaker ties than 
 those by which he was allied to the lady, would have been roused to vengeance by such 
 a tale of wo. — It will therefore excite some surprise to find that he was anxious to 
 avoid an encounter with Carson. He persuaded the lady to go with him to his lodging, but 
 this she declined.— They then went to the ofBce of J. B. Smith, to take his advice. He 
 recommended a warrant to be taken out, by virtue of which Carson might be dislodged 
 by a peace officer, and Smith furnished another and a very strong evidence of his desire 
 to avoid a meeting with Carson, bj' going in search of a warrant and constable. In the 
 meantime the lady went over to the house, and found Carson still there, accompanied 
 by Mr. and Mrs. Baker, whom he had sent for to aid him in taking forcible possession 
 of the house. This measure he falsely asserted was done in obedience to the direction 
 of his counsel. — His counsel never gave him any such advice ; and no such advice, if 
 given, would have justified the measure. — Unfortunately for all parties, no alderman or 
 constable was to be found at that late hour of the night. — I omitted to mention that the 
 lady brought with her, when she iirst came out, one of the pistols from Smith's bed- 
 chamber, where they had been publicly exposed, which was laid upon the table in J. 
 B. Smith's ofiice; and that while Smith was gone for the warrant, and the lady went 
 over to the house, Mr. J. B. Smith drew the load, and put the pistol away. When the 
 lady came out the second time, she met at the door Mr. Abbot (Carson's friend,) who 
 also went to Mr. J. B. Smith's ofiice. — They continued some considerable time at J. B. 
 Smith's office. Smith showing great reluctance to going home while Carson was there. 
 He sent J. B. Smith's servant over twice to see if he was gone. ■ Such conduct negatives 
 all idea of premeditation. — At length, it growing too late to stay any longer at Mr. J. B. 
 Smith's office, and having no other place to have recourse to, he was reluctantly pre- 
 vailed on to return home. — They went up stairs, the lady went into the parlour, while 
 Smith, justly apprehending his life to be in imminent danger, went up to his bed- 
 chamber, and got the other pistol for defence. — When he entered the room, he found 
 there Mr. Carson, Mr. and Mrs. Baker, (the latter his deadly enemy,) Mr. Abbot, (the 
 friend of Carson,) and the lady. He took oflF his hat and laid it down, and had taken 
 a few steps within his own parlour ; Mrs. Baker called him a wretch and adulterer, 
 upon which Carson rose, and in an angry and determined tone, ordered Smith out of his 
 own house. Such' conduct would have been highly illegal and improper in any place, 
 towards any person and under any circumstances; but when it is considered that it was 
 in the very place where he had a few days before attempted the life of Smith, and that 
 he was then under a recognizance to keep the peace towards that very person, and par- 
 ticularly in that very house, his conduct shows an utter contempt for the law, a deter- 
 mined resolution to revenge himself upon the person of Smith at all hazards. — But to 
 return to the interesting crisis in which we left tlie parties. — Carson advanced upon 
 Smith; Smith retired from Carson. Who then was the aggressor ? Smith, whom the 
 charge supposes to have made the attack, retired to the utmost extremity of the room, 
 and Carson, who it is pretended was the attacked, follows him to that extreme corner. 
 In the meantime, Mr. Baker, a very powerful man, and Mrs, Baker, u very resolute 
 and determined woman, both of whom came there for the very purpose of assisting 
 Carson in his illegal and forcible entry into, and detainer of the house, rise and follow 
 Carson ; not to prevent his attack on Smith, but to place themselves in positions that 
 would effectually cut off Smith's retreat to the door. Even Mr. Abbot, who had heard 
 the lady tell Smith he knew where there was another pistol, and who saw from the po- 
 sition of his hand, when he passed him at the door, does no act, utters not a word to 
 prevent the impending mischief. — Smith had, therefore, only a choice of evils; to be 
 killed, or to defend his life by repelling force to force. — As to the pacific expressions of 
 Carson, they cannot alter the case, for they were at variance with his actions, and 
 therefore insincere. He was speaking the language of peace, but he was advancing 
 with all the attitudes of war. " His tongue dropt manna, but his heart was false and 
 hollow." — Nor was open force the only thing with which Smith had to contend, but 
 secret art and guile. On the former occasion, when he apprehended that Smith was 
 armed, what was his behaviour? He made slow and peaceful advances, and having, 
 under colour of a flag, ascertained that his opponent was unarmed and unprepared, he 
 seizes his weapons, and makes !v sudden onset. Then he only smpected, now he must 
 have known that Smith was armed. He had been informed so by Mrs. Baker, and from 
 the position of his right hand, he must have known that the information was correct. 
 He therefore counterfeits the same pacific intentions, with the same illegal and mali- 
 cious motives and intentions. When, therefore, he said his hands were lied, he was 
 desirous, a second time, to lull Smith into security, that he might approach near enough 
 to seize him with his powerful arm, when Smith's life would inevitably have been the 
 forfeit. He possessed personal strength vastly superior to Smith, and was of a violent 
 temper. His words and actions, when taken altogether, will admit of no other construc- 
 tion, for he declared and repeated, that out of the house Smith should go, and there 
 
RICHAED smith's CASE. 407 
 
 were but two ways of putting him out of the house — one by the legal authority of the 
 county, which he had contemned, and did not deign to call to his aid ; and the other 
 by the power of his own ai-m, which he falsely asserted he was exerting by the advice 
 of his counsel. His election being made, he followed up his declarations with a violent 
 blow upon Smith's nose, which but for his situation would have knocked him down, 
 and it was not until all hopes of saving his life by any other means was entirely lost, 
 that Smith resorted to the right of self-protection, and the act was therefore clearly 
 done se defendmdo. He places his defence, therefore, as wiU be perceived, upon that 
 law which is implanted in our nature, unalterable and eternal. To impair or abolish 
 which, or even to restrain its operations, is an attempt wicked and vain. Neither by 
 the legislature nor the people can its powerful obligations be dissolved. Nor judge 
 nor jury can abrogate or annul its provisions. It is not the law of man, but of nature. 
 It requires no commentator ; it needs no interpreter ; for Almighty God, in his infinite 
 goodness, has stamped it on the living tablets of our hearts. 
 
 The Rev. John W. Doak, sworn. — ■ 
 
 Browne. Have the goodness to state whether you performed the marriage ceremony 
 between Mr. Smith and Mrs. Smith ? Witness. I did perform the marriage ceremony 
 between the prisoner at the bar, and a lady who was called Mrs. Carson. I do not 
 recollect the time, but it was, I believe, in October last. Judge Kush. Where were 
 they married ? A. In Frankford, at the tavern of Mr. Haines, on Sunday afternoon. 
 I proposed giving a certificate. Mr. Smith declined accepting it. I a few days after- 
 wards gave a certificate to a lady calling herself the mother of Mrs. Carson. Q. What 
 was the date of that certificate ? A. I cannot recollect. 
 
 Jonathan B. Smith, Esq. sworn. 
 
 Q. When did you become acquainted with Mr. Smith? A. In the spring of 1815; 
 about at the time of the disbandisg of the army I became acquainted with him. I was 
 freqviently in the habit of seeing Richard Smith. I had frequently given him advice 
 concerning trifling affairs. Some time previous to this unfortunate affair, I observed 
 him considerably agitated in mind; he told me on one occasion, there was something he 
 wished to explain to me, but would not do it at that time : considering it indelicate to 
 investigate anything relative to his family concerns, I forebore from asking him. This 
 is the only circumstance worth mentioning — previous to his coming to my office, the 
 evening Mr. Browne referred to. It was three or four days, I cannot recollect precisely 
 the day, before the 20th of January, that Richard Smith came to my office in the after- 
 noon greatly agitated, with his hat ofl', and his clothes very much dishevelled, aild he, 
 under so extreme perturbation, that he could not tell me what was the matter or why he 
 came. Application was made by my advice to Judge Badger, to bind over Captain Carson 
 for good behaviour and to keep the peace. Q. Did you attend the examination ? A. I 
 did. Q. Were they both there ? A. Yes, sir. Q. Was it the same afternoon the ap- 
 plication was made ? A. I think it was, sir. Q. Was the warrant obtained that same 
 afternoon? A. It was, sir. Q. Did the hearing take place that day, sir ? A. I believe 
 two days elapsed before the hearing took place. Q. State the nature of the complaint. 
 A. Richard Smith, complained that Captain Carson had on the day to which I referred, 
 sat with him at dinner, and they had dined together. They were sitting after dinner 
 conversing upon their particular subject, in an amicable manner, and drinking brandy 
 and water together. As they were doing this, immediately and suddenly, Captain Carson 
 turned to him, and said, "I understand you go armed for me."— Smith replied, " I do not," 
 using some stronger asseveration which I forget. Captain Carson immediately after took 
 up a knife from the dining table at which they were sitting, and made a lunge at Smith's 
 breast ; Smith seized the arm and held it. Captain Carson took with the other arm and 
 grasped another knife. Smith then began his retreat, and in the moment of his retreat, 
 Captain Carson made another attempt to strike the knife into him ; and at this moment 
 Mrs. Smith threw herself between them, though I must explain to the court and jury, 
 I am doubtful whether I received that idea from the examination before Judge Badger, 
 or from her own representation. Richard Smith fled — Carson pursued him — and Smith 
 came to my office; from there we went to Judge Badger's, and took out the writ. Smith 
 was examined on oath, and disclosed all that I have repeated. Carson denied at first, 
 but afterwards admitted that he had attacked him with a knife. Mr. Badger bound him 
 over in 500 dollars^Mr. Hutton was his security. Q. Do you recollect any reflections 
 on the courage of Mr. Smith? A. I recoUect one. Richard Smith stated that he had 
 fled from Captain Carson, and Captain Carson used this expression, which I recollect 
 perfectly well: "He fled behind my wife's petticoats like a coward." Q. Did Captain 
 Carson upon that occasion express any contempt of Mr. Smith? A. I do not recollect 
 further than that expression. Q. Did he not intimate that he had challenged Captain 
 Smith, and he would not fight him ? A. No, sir, I do not recoUect that he did. Mr. 
 Smith stated before Captain Carson during the altercation, (there was a good deal of 
 altercation between them,) that Carson had challenged him. There was a great deal of 
 
408 APPENDIX. 
 
 conversation, a little violent, but there vraa nothing that I recollect. Richard Smith, in- 
 stead of demanding money security from Captain Carson, told him that if he would give 
 him his word and honour not to molest him until the affair was settled, he would not bind 
 over. Judge Badger and myself both thought he ought to be bound over, although we 
 agreed that Mr. Button should be admitted as security. Q. Was there not grease on 
 Smith's coat when he came to your ofBce ? A. Yes, sir, there was grease ; it appeared 
 to be newly done, and such as would be done from such a cause. He appeared to be in 
 great agitation — the marks of grease were on his breast. On the evening of the 20th, I 
 had been out all the evening; about half after nine I returned home ; there was a gentle- 
 man with me. We were sitting in my office — I suppose we might have sat ten or fifteen 
 minutes — when Kichard Smith came to the door. I forget whether he knocked or'not ; how- 
 ever he opened it, but refused to come in. I asked him the usual questions, what was 
 the matter ? His answer was that he and his wife had been turned out of doors, and that 
 she was then at the front door. This conversation took place, may be, eight or nine 
 feet from the office door. I went to the door and found Mrs. Smith there; she con- 
 firmed what her husband had said, and requested that I would let them stay in my 
 office a little while. They added that they had been walking about a good while — it was 
 a very cold night, that they were very cold, and had no fire to go to. Mr. Smith gave 
 as a reason for not coming into the office, that there was a gentleman there, and his 
 wife did not wish to see any. I accordingly took the gentleman up stairs, and left my 
 office in the possession of Lieutenant Smith and his wife. They remained there, I suppose, 
 twenty minutes or half an hour. By this time, the gentleman who was with me thought 
 it time to go home, and he left me. I went into the office to see what was the matter 
 with Mr. Smith and his wife. From this time until they went, I remained in the office 
 with them; they explained to me the conduct of Captain Carson. I advised Richard 
 Smith to go immediately for a wan-ant to Judge Badger. Richard Smith went out accord- 
 ing to my advice; he returned after a lapse of fifteen or twenty minutes, and told me that 
 he had been to Judge Badger's. Q. Where was Mrs. Smith? A. She had gone home. 
 He told me he had been to Judge Badger's; that he was out — he had been to Bartram's, 
 and he was out — he went to all the other magistrates he could think of, and could find none 
 of them. I expressed my regret that he had been unsuccessful, and he not only appeared 
 to regret it, but to be afflicted at it. Q. What was the expression of his countenance ? 
 A. I am no physiognomist, but my impression was, that it was an expression of very deep 
 regret, almost amounting to despair. I was still inculcating upon him the necessity of 
 taking further steps to procure a magistrate. I did not recollect myself to tell him to 
 go to the watch. When they first came, after I had gone into the office a second time, 
 I think it was, I observed they had brought a pistol with them; which of them brought 
 it I cannot say. This pistol remained on the table; and when Richard Smith went for 
 the magistrate, and when he went home, I took the opportunity of drawing the load and 
 putting away the pistol. Judge Rush. Was it your pistol? A. Yes, sir, it was my pistol. 
 Q. What time was it you loaned the pistol? A. When Captain Carson had, I understood, 
 made the attack upon Lieutenant Smith, and after we had applied to bind over Captain 
 Carson, the constable who had the warrant, (Mr. Hoops,) came to me and requested per- 
 mission, not to take the body of Captain Carson, but appoint an hour when we should all 
 meet at Judge Badger's. This was in the afternoon ; but in the course of the evening I saw 
 Richard Smith and Mrs. Smith; they both expressed such a fear of being intruded upon in 
 the night, that I thought it was right and proper Richard Smith should have some arms to 
 protect him from any attack that might happen. He asked me for the pistols. I frequently 
 refused, but his wife's fears appearing as great as his were, I lent them — they were loaded 
 in my office. At the time I lent him the pistol, 1 represented to him the proper use which 
 was to be made of them, and told him only to use them in defence of his own life, or in 
 defence of his wife's honour. He promised to me that he would make that use and no 
 other of them— that is the history of the lending. It was the evening of the same day 
 on which Captain Carson attempted to take Richard Smith's life. After Richard Smith 
 and Mrs. Smith left my office I remained there for some time. In about a quarter of an 
 hour I heard an outcry in the street. The windows of some of the opposite houses were 
 thrown open, and people inquiring and running down the street. I ran down and found 
 Richard Smith. I believe he was seized and surrounded by three or four people ; Captain 
 Baker was near him— it was dark; I did not expect to find Smith there, and I was much 
 astonished to find that he was surrounded in that way. I found him much disordered ; 
 his face was bloody. Q. Was there a lamp ? A. There was a lamp, sir; I believe that 
 was the only mark of violence. I soon found that the people were attempting to treat 
 him very harshly, and I presuming upon the influence I supposed myself to have over 
 him, demanded that they should not injure him, but leave me to assist in taking him to 
 the watch. There were many remarks made which I did not pay attention to, and do not 
 recollect. He was finally put into the hands of some person, who treated him as he ought 
 to have been treated, and he was conducted to the watch. When we got to the watch- 
 house, corner of Market and Second, after I had delivered him into the hands of the watch, 
 
HIOHABD smith's CASE. 409 
 
 and his face was washed, I observed a contusion on his nose; the blood, however, did 
 not proceed from it ; but from his nose or his mouth. Q. You say you knew him in 1815 ; 
 did he bear a respectable character? A. He bore as respectable a character as young 
 men of his age generally do. One of the jurymen wished to know if he had henrd cor- 
 rectly, that he understood that Kichard Smith, when attacked by Captain Carson, had 
 seized his arm and held it? A. Yes, sir. 
 
 Mrs. Baker again called. — 
 
 Browne. I wish you to state to the court and jury whether Captain Carson did not 
 insist upon staying and sleeping with Mrs. Smith ? A. She told me so, sir, and I heard 
 her say to him she could not nor would not that night. Att. Gen. You mentioned some- 
 thing of intemperance ; I wish to know to what time of his life you referred? A. Be- 
 fore he went away. Q. How since his return ? A. I have seen him twice a little gay. 
 Q. How was he at the time of his marriage ? A. I have seen him intoxicated before 
 his marriage, and Captain Baker also, but I did not suppose he was habituated to it. 
 
 Sarah White sworn. — 
 
 Q. Did you live in the house with Mrs. Carson and afterwards with Mrs. Smith ? A. 
 Yes, sir. Q. How long did you live there? A. Nearly three years. Q. Did you live 
 there on the 20th of January last ? A. Yes, sir. Q. Did you live there when Mr. Smith 
 married Mrs. Carson? A. Yes, sir. Q. Did you see the interview between him 
 and Mrs. Baker? A. No, sir. Q. Did you see him and Mrs. Baker after they had 
 come home? A. Yes, sir. Q. Did she receive him with kindness? A. Yes, sir. Q. 
 And acknowledge him to be her son ? A. Yes, sir. About three o'clock in the after- 
 noon on Wednesday, I was sitting in the store, and I heard a very loud noise above ; it 
 was a short time after when Captain Smith came down stairs without his hat; presently 
 Mrs. Carson said, " Richard, fly." Q. Where did her voice come from ? A. From the 
 stairs. I then made answer, he was gone; in the space of two or three minutes after. 
 Captain Carson came down with two knives in his hand, appearing to be in a violent 
 passion, exclaimed, "Where is the son of a bitch?" I then made answer, I know not 
 Q. Where did Captain Carson then go ? A. He then went up stairs again. Q. Did you 
 go up ? A. No, sir, I remained down. Q. Did you hear anything after he went up ? 
 A. No, sir; nothing after he went up. Q. Were you at home when Richard Smith went 
 out on the night of the 20th ? A. I do not recollect whether or not. Q Try to recol- 
 lect if you did not let him out. A. Oh ! yes, sir, I did see him go out. Q. Did he take 
 any arms or weapons with him ? A. No, sir. 
 
 - Mr. Browne here read the 4th section of the Act of the Legislature, passed the 19th 
 September, 1785, concerning divorces and alimony. 
 
 " Sec. 4. And be it further enacted by the authority aforesaid. That if any husband or 
 wife, upon any false rumour, in appearance well founded, of the death of the other, 
 (where such other has been absent for the space of two whole years,) hath married, or 
 shall marry again, he or she shall not be liable to the pains of adultery ; but it shall be 
 in the election of the party remaining unmarried, at his or her return, to insist to have 
 his or her former wife or husband restored, or to have his or her own marriage dissolved, 
 and the other party to remain with the second husband or wife ; and in any suit or 
 action instituted for this purpose, within one year after such return, the court may and 
 shall sentence and decree accordingly." 
 
 Mr. Browne also read the petition for the divorce, dated the 15th January, 1816; the 
 order to issue it was written the 18th January, 1816, and libel filed the 18th January, 
 1816. The Subpoena was also read. 
 
 X>r. Oallagher sworn. — 
 
 Q. Do you know Captain Baker ? A. Yes, sir. Q. Does he labour under any mental 
 derangement ? A. I believe it has been fifteen years since I attended the family ; it was 
 in the year 1801. I had not recollected that I had ever attended Captain Baker him- 
 self; but upon referring to my books, I found there was a consultation with Dr. Physick. 
 I do not remember the case, nor have I put it down ; I know about that time Captain 
 Baker was deranged, but whether we attended him for that complaint, I cannot recol- 
 lect. X have thought very much about it, but it is so many years ago, I cannot recol- 
 lect. I have seen him subsequently, which impressed me with the fact, that he was in 
 that state. I have seen him frequently since, but not as a physician. 
 
 Browne. As a further proof that Ann Carson was u, feme sole trader, I produce a 
 license from the United States to sell. Mr. Cose, be so good as to state if that certifi- 
 cate was given by you. Mr. Coxe. Yes, sir ; this was a license from the United States. 
 Mr. B. read the license. — The court adjourned. 
 
 Saturday, 25th Mat, 8 o'clock. — Mrs. De Oorguc called. — 
 
 Att. Gen. On the part of the prisoner a marriage has been given in evidence, which 
 was solemnized in October, 1815. The act of Assembly has been read, which excuses 
 in certain cases the parties from the pains of adultery, and the husband has his eleo- 
 
410 APPENDIX. 
 
 tion. I call this lady, to inquire -whether she knows of an agreement which took place 
 in January last. 
 
 Mr. Rawle. Although as yet we have had little success in opposing evidence alto- 
 gether improper, yet, we think it our duty to oppose testimony which in our opinion 
 ought not to be admitted. When we had gone through the testimony on the part of the 
 prisoner, we did not contemplate an objection to this lady's testimony being admitted as 
 to respect of time; but now it is clear, the case shows this lady's testimony is not ad- 
 missible. We have it in evidence, that when Captain Carson made unexpectedly his 
 appearance in Philadelphia, he was apprized in due time of his wife's second marriage; 
 and he also, in due time, and after full opportunity of deliberation, determined to con- 
 firm that marriage, and seek relief from the marriage he had contracted, which he had 
 now an opportunity of doing. On the 15th January he made his election decidedly ; he 
 confirmed the rights of Richard Smith, and completely destroyed his own. It was no 
 longer in his power to impair the nuptial rights thus confirmed in Richard Smith. 
 Under these circumstances, an agreement made between Ann Smith and John Carson, 
 is not binding upon, and cannot affect the rights of Richard Smith ; and now is it to 
 come forward, and must it be admitted, not only to affect his property, but his life ? — 
 clearly not — I therefore contend that this evidence is not admissible. The prisoner at 
 the bar was not a party, and could not be bound by any agreement entered into by his 
 ■wife, to his prejudice. We conceive the act done by Carson in filing the affidavit, and 
 applying for a divorce, was effectually binding upon him, and we therefore object to this 
 evidence being admitted. 
 
 Att. Gen. I do not understand my friend, Mr. Rawle, when he says they have not 
 been successful in opposing testimony. If the evidence had been according to law, no 
 doubt it would have been admitted by the court. I stated that an agreement, not a 
 mere conversation, was effected between Captain Carson and Mrs. Smith, to live together 
 as man and wife ; under the act of Assembly this was enough. As to the pretended 
 marriage between Mrs. Carson and Richard Smith, I shall contend, and I trust will 
 prove, concerning this marriage no evidence has been given, but the loose testimony of 
 Mrs. Baker. But, I would ask, have I not a right to prove facts that bring the ques- 
 tion before the court? Whether the court will decide for me or against me, upon these 
 facts, must be tried. On the 15th an application was made by Captain Carson for a 
 divorce; it was a matter merely inchoate ; how it would terminate was uncertain; but 
 the party applying for the divorce, may waive th.at application when he pleases; 
 although he begins, he is not forced to proceed to a conclusion. On the 17th, this 
 agreement was made, and on the 18th it was coincided in by Smith himself; for, there 
 is a note from Richard Smith to Mrs. Carson, drawn in her favour, in which he says he 
 is going to a distant part of the United States. Here, then, are all concuri'ing in the 
 restitution of Ann Carson to her husband. I am not going to anticipate ; but I have a 
 right to state these facts, and then refer to your honours, whether this is not allowed 
 by the act of Assembly. This is a law of latitudinary effect ; and therefore it ought, 
 when it comes under the cognizance of the court, to receive a rather strict interpreta- 
 tion. All I shall now say upon this subject is, that 1 think it proper the witness should 
 state these facts, which are accompanied by a letter on the 18th, from Richard Smith, 
 to show they all acquiesced in the plan of Mrs. Carson's living with her husband. 
 
 Rawle. I shall say one word in reply. That we have been generally unsuccessful in 
 opposing testimony, the court very well know. The observation of Mr. Ingersoll, was 
 to imply, I presume, that we have taken wrong grounds before the court; I merely in- 
 troduced the observation, in my objection to this testimony, to evince to the court, that 
 we were not discouraged from doing what we considered our duty, by repeated disap- 
 pointment. One of my learned friend's positions is certainly untenable, and altogether 
 inadmissible. He asks "Whether he has not aright to prove the facts, and to take the 
 determination of the court:" if this be so, the court has nothing to do but take all the 
 testimony that is offered, and afterwards decide whether it was or was not proper to 
 have been adduced. This is not the general practice of our courts. The court must 
 anticipate the result of such a practice, and I trust, will not conform to it. Am I not 
 correct in saying, that when John Carson made his election, his rights were concluded 
 on the one side, and the rights of Richard Smith completely established and confirmed? 
 Mr. Ingersoll says a person may draw up a petition for a divorce, but may retire from 
 its prosecution at any time before the decree of the court: this I grant may be gene- 
 rally correct, but when we find it on other grounds, when Captain Carson makes such 
 election by filing a petition for a divorce, which sets forth the subsequent marriage, 
 does it not at once place the case on a different footing? does it not state facts, not 
 necessary to be introduced unless to establish the right of the succeeding husband ? 
 Under these circumstances the election of Captain Carson was complete, and excluded 
 him from any other marital rights. Mr. Carson had no right to enter into any conver- 
 sation with the wife of another in his absence that could divest the property; nor could 
 
EICHAED smith's CASE. 411 
 
 it affect the life of the other person; let that letter stand on its own ground ; -when we 
 come to observe upon it to the jury, it will afford sufficient argument. That letter 
 oifers to our view a willingness in Richard Smith to separate himself from a wile ten- 
 derly loved, but far from acknowledging his marriage to be invalid; he considers him- 
 self and signed it as her husband; and in that letter there is no reference to this agree- 
 ment to which he was a stranger, and therefore it could not bind him ; we do not wish to 
 impress anything upon the minds of the jury which is not completely relevant and con- 
 sistent to established rules of evidence. 
 
 Judge Rush. It appears to the court the evidence is clearly admissible. In the course 
 of this cause a collateral issue has arisen, brought into our view as evidence by the pri- 
 soner himself. This issue is, whether the woman was the wife of the prisoner or John 
 Carson. When this is brought into the presence of the court and jury, it would be 
 wrong to exclude any evidence that would throw any light upon it. We are therefore 
 of opinion, since it has been introduced, the evidence ought to be heard on both sides. 
 We think clearly, the evidence ought to be admitted. 
 
 Quest. Have you heard any agreement made between Captain Carson and his wife? 
 A. I can't clearly recollect the circumstance; I put it in writing, and gave it to Mr. 
 Hutton. On the Wednesday evening prior to this accident, Captain Carson and Mrs. 
 Carson came to my house. I was called down stairs. I was told a gentleman and 
 lady wished to see me. I desired they should walk into the parlour. No conversation 
 ever took place, only that which was relative to the business. When I came down Captain 
 Carson and Mrs. Carson were in the room. I was not on habits of intimacy with them 
 nor in the habit of seeing them. — Mrs. Carson observed to me, turning round, "This is 
 Captain Carson, my husband." I turned then, and asked in these words, or tantamount 
 to them, and asked what they wanted with me ; they both exclaimed as with one voice, 
 that they were too unfortunate and came to me to get some advice, or my assistance, 
 as they wished again to live together; then they said they had come to an agreement to 
 live together. Captain Carson wanted to know what would be the consequence of the 
 proceeding for a divorce. I said, I was incapable of informing them on that subject. 
 Mrs. Carson then requested Captain Carson to show the paper ; h e took it out of his pocket, 
 and she read it; this was the notice about the divorce. I told them I did not know the 
 nature of those things; but 1 supposed where there is no prosecutor there is no defendant, 
 and that he had better apply to his lawyer. Then they departed, having agreed that 
 they were to live together again. I told him, he had acted highly culpable ; he acknow- 
 ledged he had been so. I represented to him this as forcibly as I well could; he was, I 
 told him, the natural protector of his wife and children, and that he had deserted them. 
 He acknowledged he had ; he said that he had left his wife and children unprotected, and 
 surely, as an apology, I can't do otherwise than love this woman who has acted in such 
 a way with my children. He said, he had left his children to the world ; he could not help 
 but love the wife who had been such a protector for his children. He then told me, 
 that in all the time he was gone, he had never written to his wife, nor given her any 
 intimation he was in existence. Captain Carson then asked my advice, respecting the 
 situation they should place themselves in ; as they thought it was highly improper for 
 them to remain in Philadelphia. Captain Carson made a great many observations re- 
 specting the respectability of his children. Mrs. Carson said that they had never lived 
 very happily together; Captain Carson was of a very violent temper, and she was of a 
 high spirit ; it was not for want of affection, but because of the disagreement of dispositions. 
 They then agreed perfectly to quit Philadelphia together. Captain Carson was to get a 
 ship for Liverpool; I understood, that he had the offer of one, and he was to take his 
 wife and family with him to Liverpool. Captain Carson spoke of realizing some property 
 and of turning it into cash, to the amount of about 15,000 dollars, the papers of which 
 were in the possession of Mrs. Carson. They appeared perfectly agreed on the subject ; 
 the money was to be taken with him and be laid out in her way, in ware ; they were then 
 to return to America together ; they were to live together, and Mrs. Carson exacted from 
 Captain Carson, that he would never again leave her. Mrs. Carson observed to him, 
 " I cannot think myself protected without you, and my children will have no protector." 
 Captain Carson then represented to Mrs. Carson that his element was the sea; that he 
 could do nothing on shore ; she told him, " It would take very little time to instruct him in 
 that business, and he would make more in one day than a month's wages." He acqui- 
 esced in her wishes, apparently, and finally promised he would never quit her again ; that 
 he would remain with her and protect her and her children. Att. Gen. You mentioned 
 yesterday a letter which had been written by the prisoner. Wit. Yes. it was a paper 
 written by Mr. Smith: it was in the shop of Mrs. Carson, prior to this conversation. 
 On Wednesday I had a visit from Mrs. Carson to make this inquiry ; whether I would 
 have time to come there — whether I would take an interest in their affairs. The paper 
 was delivered on Thursday before me ; the conversation I have been relating took place 
 on Friday evening, the evening succeeding. Here is a note 1 received from Mrs. Carson 
 
412 APPENDIX. 
 
 on Thursday morning; it accounts, in some respects, for my having seen Mrs. Carson. — 
 Att. Gen. It is not evidence eevtainly, {havinff looked at it.) Q. Was there anytime 
 mentioned -when Captain Carson was to come to the house? A. I believe he was to come 
 on Monday next. It was my impression it was to be on Monday following; it was not ac- 
 tually stated ; but it was my supposition from what had been said and subsequent circum- 
 stances. Mr. Carson came to my house on Saturday night, and said he was going there 
 that night ; I observed to him, "Why Captain Carson, I thought you were not to go until 
 Monday," and advised him very much against it. 
 Mrs. De Gorgue's evidence closed the testimony. 
 
 Tuesday, 28th May, p. m. — Judge Rush charged the jury in the following manner : 
 Gentlemen of the Jury : — 
 
 I request your attention to what I am about to say to you, and I also request that you 
 would consider this charge as proceeding from the whole court. — The prisoner in the 
 bar, Richard Smith, is indicted for the murder of John Carson by shooting him through 
 the head, on the 20th of January last. There is not the least doubt he died of the wound, 
 after languishing till the 4th of February. It is your duty, to decide, by your verdict, 
 taking into consideration all the circumstances of the case, whether he be guilty of mur- 
 der or not. A jury has a right, in criminal cases, to give a special, or a general verdict. 
 A special verdict states all the material facts, and submits to the court the question of law 
 arising on these facts. This is not usual, and is not expected by this court. A general 
 verdict is where the jury, in general terms, say the prisoner is guilty or not guilty. From 
 the right which a jury has, to give a general verdict in all criminal cases, it follows they 
 have incidentally a right to determine both the law and the facts, which are often almost 
 inseparably connected with each other. What says the Constitution upon this point ? In 
 indictments for libels, the jury shall have a right to determine the law and the facta, under 
 the direction of the court, as in other cases. From the evidence it appears, that John Car- 
 son the deceased, was married to Ann Baker, in June, 1 801, and tliat she was afterwards 
 married in the month of October, 1815, to Richard Smith the prisoner in the bar. It is 
 made a question whose wife she was on the 20th of last Janu.ary, the day on which Carson 
 fell, by the hands of Smith. It is provided by our Divorce Law, where a man leaves his 
 family for two years, and his wife marries after that time, in consequence of a report, ap- 
 parently well grounded, tha,t her husb.and is dead, that in such case she is not guilty of 
 adultery — and that the husband, on his return, may insist upon having his wife back again, 
 or to be divorced from her — and that he may institute a suit for a divorce within six months 
 after his return. To make the mai-riage of a wife lawful, in any degree, under this act, 
 two things are expressly required by the very words of it. 1st. That the husband has 
 been two years absent. 2d. Thatarumourexistedof thedeathof thehusband. Themar- 
 riage must be founded on both circumstances to give it validity. What is the evidence in 
 this case? There is no doubt that Captain Carson had been absent two years at the time 
 his wife was married to the prisoner. But the other circumstance, viz. the report, or 
 rumour of thedeathof Captain Carson, has not been made out in proof To justify the 
 second marriage of Mrs. Carson, there should be evidence of a rumour of this description. 
 What is the meaning of the expression — " a rumour of the death of a man, in appearance 
 well founded ?" We think it means general report, that a man died at a particular town or 
 place, was shipwrecked, or lost his life in some way, which the report specifies. It appears 
 to the court that the expression " in appearance well founded," has reference to the place 
 andmannerofhisdeath. No such evidence has been given. Jane Baker only says, "There 
 was a rumour of Carson's death ; a jailor said so." This loose evidence is not the evidence 
 the law requires, to justify a wife's marrying in the absence of her husband. There must 
 be a general report of his death, and of the place and manner of it. There not being the 
 evidence required by law, to authorize the marriage of Ann Carson with the prisoner in 
 the bar, it is clearly the opinion of the court, it was to all intents and purposes null and void. 
 This being the case, it follows, that she was guilty of adultery with Smith, that the rights 
 of Smith as a third person, have no legal foundation or existence, that Carson l»!id an un- 
 doubted right to prodeed at law against his wife for a divorce, and to settle with her, and 
 withdraw the suit, whenever he thought proper, without the consent of the prisoner, or 
 any other person. The law now under consideration supposes a case of this very kind, 
 by enacting, that in any suit for a divorce on the ground of adultery, if the defendant shall 
 prove that the plan tiff admitted the defendant into conjugal embraces, after he knew she 
 had been guilty of adultery, it shall operate as a perpetual bar to his obtaining a divorce. 
 We go further and state to you upon this point, that Ann Carson could not have two husbands 
 at the same time. She could not be at the same time the wife of John Carson and of the 
 prisoner. She was unquestionably once the wife of John Carson, and nothing but death 
 or divorce could dissolve the connexion. These are the only two modes known to the law, 
 of terminii ting the marriage contract. It is stated by the defendant's counsel, that a sub- 
 pa'ua for the purpose of obtaining a divorce, is so decisive of the intent of the party, that 
 
BICHABD smith's CASE. 413 
 
 he cannot alter or change his intention. This is strange language, and is equivalent to 
 saying, the bringing a suit for divorce, and the decree in the case are equally binding 
 on the party. Where would be the use of the decree, if the subpoena was conclusive in 
 the libellant? We are therefore clearly of opinion that on the 2uth of January last, Ann 
 Carson was the wife of John Carson, and that he had a right to settle his differences with 
 his wife, and to receive her again into his arms. It being universally understood and 
 known that the property of the wife is the property of the husband, and that he alone 
 has the control over it, the consequence is, that John Carson had an undoubted right to 
 take possession of the house and goods which belonged to his wife, on his return in Janu- 
 ary last, to this city and to his family. It follows that Kichard Smith, the prisoner, was an 
 intruder, and had acquired unlawful possession of the wife, of the house, and of the goods 
 and chattels of John Carson. This point being settled, we proceed to remark, that the 
 crime of murder essentially consists, in taking away the life of a fellow creature, with 
 circumstances that show a vindictive temper and malignity of heart. It is not the design 
 of the court to distract your minds, or fatigue your attention, by a tedious discussion on 
 the law of murder. We shall endeavour to make you understand so much of this subject, 
 that j'ou may be able to form a correct judgment on the question submitted to you. It 
 will be proper to state a few leading principles, that have received the sanction of the 
 highest judicial authority, in this state, subsequent to passing the law of 1794. In the 
 case of the Commonwealth vs. Mulatto Bob, tried at Easton in 1795, before Chief Justice 
 M'Kenn and Judge Smith, it was decided by the court, that since passing the law of 
 1794, the intention still remains the criterion of the crime — that the intention of the 
 prisoner, is to be collected from his words and actions, and that on the supposition, a 
 man, without uttering a word, should strike another on the head, with an axe, it would 
 be deemed premeditated violence. In the case of the Commonwealth vs. O'Hara, tried 
 before Chief Justice M'Kean and Judges Shippen, and Smith, in Philadeli hia, in the year 
 1797, the court held, if the murder be committed with an insti'ument, likely to kill, it ia 
 wilful ; and that to make it deliberate and premeditated the party must have time to reflect 
 and to frame the design, however short the time may be, smimust intend to kill. If the 
 defendant has time to think, and did intend to kill for a minute as well as an hour, or a 
 day, it is a deliberate, wilful, and premeditated killing, constituting murder in the first 
 degree within the act of assembly. We shall presently examine the conduct of the 
 prisoner, and compare it, with the principles laid down in these cases. In the mean- 
 time, we observe to you, gentlemen, that the principles just stated, are from the highest 
 judicial authority in Pennsylvania, and that it is the duty of this court, and of you as 
 jurymen, to submit to them. For a moment however, gentlemen, let us inquire into their 
 correctness. The wilfvd, deliberate, and premeditated killing a person, is by the law of 
 I794, described to be murder in the first degree. What is it to kill a person wilfully? It 
 is the same thing as killing him on purpose. He who does an act wilfully, does it on pur- 
 pose, and he who does an act on purpose, does it wilfully. The next ingredient to make 
 the killing murder in the first degree, is, it must be deliberate. But does the law fix the 
 time of such deliberation — no such thing, gentlemen — does it say that the prisoner must 
 ponder over the crime for years, for months, for weeks, or days, or hours, or for any 
 other given time ? What sort of a law would it be, if such construction were put upon 
 it, by courts and juries? Suppose, for example, it should be contended, that it must 
 appear the party had pondered on the commission of the crime one hour or five minutes 
 before the fact. I ask then, why fix an hour or five minutes, for deliberation ? why not 
 half an hour ? why not two hours ? why not two minutes ? The truth is, in the nature 
 of the thing, no time is fixed by the law, or can be fixed for the deliberation required, to 
 constitute the crime of murder. To deliberate is to reflect, with a view to make a choice, 
 and if it appeared the party did reflect, though but for a minute before he acted, it is 
 unquestionably a.sufficient deliberation, within the meaning of the act of assembly. The 
 last requisite to constitute murder in the first degree, is that the killing must be pre- 
 meditated. To premeditate is to think of a matter before hand, it is to conceive of a 
 thing before it is executed. The word premeditated would seem to imply, something 
 more than deliberate, and may mean, that the party had not only deliberated, but had 
 framed in his mind the plan of destruction. We therefore say to you, gentlemen, and we 
 say it confidently, that it is equally true, both in fact and from experience, that no time 
 is too short for a wicked man to frame in his mind a scheme of murder, and to contrive 
 the means of accomplishing it. Gentlemen — It is well known that certain acts will so 
 far justify a man, that his killing another wiU not be murder. There are also other acts 
 that are not a sufficient provocation to justify killing a person. For example, the de-, 
 mand of a debt is not a provocation to justify killing. It is therefore murder, to kill a 
 man in the act of asking the payment of a debt. Further, gentlemen, it is a principle 
 of law, that no breach of a man's word or promise — no trespass either to lands or goods, 
 no affront by word or gesture, will excuse a person from the crime of murder, if he 
 becomes so far transported as to kill the person trho then offends him. Apply this to 
 
414: APPENDIX. 
 
 the facts before you. — Suppose then the house was in fact Smith's, and that Carson, in 
 going there on Saturday to demand the possession of his family, was a trespasser, it is 
 the opinion of the court, that Smith's Icilling him, under these circumstances, in the very 
 act of mailing such peaceable demand is, in every principle of law, murder in the first 
 degree. To recapitulate all the testimony that has been laid before you, would be an 
 endless task, and I add, a useless task; because on this trial, as on all others, a great 
 deal of evidence has been given, that has no more bearing on the merits of the case than 
 one of iEsop's Fables, or a chapter from Don Quixote. Evidence of this description it 
 is not our practice to take down in writing. The material facts in this cause seem to be 
 these: On the 20th of January last, at about 11 o'clock at night, the prisoner in the bar 
 shot John Carson through the head, of which wound he died on the 4th of the next month. 
 That on Wednesday the 17th of January, the prisoner and the deceased dined together 
 at the house of John Carson, at the corner of Second and Dock streets — on this occasion 
 John Carson got into a rage, at seeing the prisoner assume the direction of his children, 
 and his servants, and seizing a knife, made an attempt to strike him ; the prisoner laid 
 hold of his arm, on which the deceased with the other arm, took up another knife — Mrs. 
 Carson attempted to hold her husband, but breaking loose, he ran down stairs, with two 
 knives in his hands, in pursuit of Smith, who had gone ofif without his hat. Upon Mrs. 
 Carson telling her husband, if he wanted to commit murder, to murder her, he exclaimed, 
 " Murder — yes ! " The evening of this very day, the prison-er was seen in the kitchen with 
 a pair of pistols, one of which was loaded, that he then declared " That if Carson entered 
 the door, to lay hands on him, he would certainly shoot him." Inconsequence of this 
 violence of John Carson, he was on the application of the prisoner bound over the next 
 day to keep the peace. The next interview between the prisoner and the deceased was 
 on Saturday evening, which terminated the mortal career of John Carson, in the manner 
 you have heard. On this fatal evening, Captain Carson came to his house between 7 
 and 8 o'clock, when Mrs. Carson and Smith both left it. Carson then sent for Thomas 
 Baker and Jane Baker, the parents of Mrs. Carson, who about 10 o'clock went to the 
 house. On coming there, they found Carson in the china-store — he and they went up 
 stairs into the parlour. Between 10 and 11 that evening, Thomas Abbot went home, 
 and being informed that Mr. and Mrs. Baker, who lived under his roof, had gone to Mrs. 
 Carson's, he determined to follow them there. When he got near the house, he saw Mrs. 
 Carson, and went with her into the office of Jonathan B. Smith, in the neighbourhood of 
 Carson's house. The prisoner came in soon after, and asked Jonathan Smith to give 
 him the pistol, which was refused. Mrs. Carson then said, "Let us go — you know where 
 there is one." The prisoner swore, if Carson attempted to touch him, he would kill him. 
 The prisoner, Mrs. Carson, and Thomas Abbot, left the office' of J. B. Smith togetherj 
 and on coming to the house of Carson Abbot staid below, and Mrs. Carson and the pri- 
 soner went up stairs. In about a minute Abbot followed them up stairs, and passing 
 the prisoner standing in the entry, with his right hand upon his breast, under his snr- 
 tout coat, and his left hand also on his breast ; he went into the parlour, where he found 
 Captain Carson, Mrs. Carson, Thomas Baker, and Jane Baker. Abbot had not been in 
 the room more than half a minute, when the prisoner came in, and stood near the door, 
 in the same attitude in which he appeared in the entry ; that is, he had his right hand 
 under his surtout, buttoned on top and bottom, and his left hand on his breast, over his 
 right hand. Captain Carson then got up, and told the prisoner he had come to take 
 peaceable possession of his house, that out of thehouse he must go. The prisoner then said, 
 "Very well," and turning to Mrs. Carson, said, "Ann, shall I go?" who replied, "No, stay." 
 The prisoner then went to the north-east corner, and Carson followed him, told him 
 again, and repeated it two or three times, ho must leave the house — " My hands are tied — 
 1 have no weapon" — at this time, he held his hands down by his side, open — it might be 
 seen he had nothing in his hands. Upon this, Smith drew a pistol from under his surtout 
 coat, and shot Carson in the mouth, and throwing the pistol on the floor, ran down stairs as 
 fast as he could; that Captain Baker pursued him, heard him tumble among the china, 
 and overtook him on the step of the front door. Smith, the prisoner, when conveyed to 
 jail, had his nose injured and bloody. The deceased declared in his last illness, "that 
 the prisoner had come in like a midnight assassin, and had shot him like a coward." 
 It was further in evidence, that Smith might have left the corner in the parlour without 
 running against any body. From this evidence the question presented to you is, of what 
 crime is the prisoner guilty. Murder in the first degree, is the wilful, deliberate and 
 premeditated killing another. There are various inferior kinds of homicide. But on 
 the present indictment, our attention is confined to the consideration of the highest and 
 moFt aggravated description of the crime. Then let us ask, did the prisoner wilfully 
 kill Jihu Carson ? It is not pretended there was any accident in Ihe case. The killing, 
 therefore, was wilful, and on purpose. Was it deliberate and premeditated? or was it 
 the effect of a sudden passion, produced by a reasonable provocation? There is no evi- 
 dence to show a sudden passion, or that the prisoner had that evening received any provo- 
 
RICHARD smith's CASE. 415 
 
 cation from the deceased. All the witnesses who were present agree, that Carson did 
 not touch him, or lay the weight of his fingers upon him. The killing, therefore, was not 
 the effect of a sudden passion. — But was it deliberate, gentlemen ? Look at the prisoner 
 standing in the entry, with the pistol buried under his surtout, see him entering the parlour, 
 in the same attitude, taking his stand, drawing the pistol, and coolly discharging it into 
 the mouth of Carson, and ask yourselves whether this was not a most deliberate act. — 
 Was the killing premeditated? On Wednesday night he had prepared himself with pis- 
 tols, and declared, if ever Carson entered the door, to lay hands on him, he would cer- 
 tainly shoot him. On Saturday evening, he made a similar declaration. He did not 
 however wait, until Carson touched him, but shot him, without receiving from him the 
 least personal injury, or even threat. In the language of Chief Justice M 'Kean, we add, 
 that where a man, without uttering a word, strikes another on the head with an axe, it 
 is an act of premeditated violence. What is the language of the court in the case of the 
 Commonwealth v. O'Hara? If the prisoner have time to think and did intend to kiU for 
 a minute, it is wilful, deliberate and premeditated killing ; as well as if he had intended 
 to kiU, for an hour or a day. With respect to the conduct of Carson at his own^ house 
 on Wednesday, in drawing a knife on Smith, it was altogether unjustifiable. What would 
 have been the consequence if he had killed him, we are not now called upon to decide. 
 This we will say, that two wrongs cannot make a right — that Carson's violence on Wednes- 
 day, can never justify Smith in deliberately killing Carson on the Saturday following. 
 Who is there among us that will justify assassination? Nobody, I trust. — But it will 
 be quite as easy to justify assassination, on the principle of revenge, as the conduct of 
 the prisoner, in deliberately shooting Carson through the head three days after Carson 
 had injured him. Much has been said on the principle of self-defence, as applied to the 
 prisoner, but with what propriety, we are at a loss to discover. Who laid hands on him ? 
 who attacked him? who threatened him? who touched him? He went voluntarily into 
 the room, chose his situation, and fired when he pleased. He was not dragged into the 
 room, and there detained against his will. On the contrary, he only was armed, and 
 under restraint from no person. It has been said by one of the witnesses, that the pistols 
 were procured for self-defence. If this was really the case, it is much to be lamented, 
 they were employed to a most mischievous and deadly purpose. The dying declarations 
 of John Carson are of weight in this cause, who averred, when he lost all hopes of living, 
 "that the prisoner had come like an assassin, and shot him like a coward." This de- 
 scription of the offence of the prisoner accords very much with the representation of it 
 given by tlie witnesses. The flight of the prisoner is always, in the eye of the law, evidence 
 of guilt. Smith had no sooner discharged the fatal instrument, than it was dashed on 
 the floor, and he fled from the room with the utmost speed. His fall among the china, 
 the difficulty of getting through the street door, which opened inwardly, and his stumb- 
 ling at the front door, were the providential circumstances that prevented his escape. 
 The man who has committed no crime, in general faces his accusers, and boldly maintains 
 his innocence. On the other hand, the guilty creature, who knows he has exposed him- 
 self to the jvist vengeance of the law, is uniformly seen to endeavour to avoid, by flight, 
 that punishment which he is conscious he has merited at every earthly tribunal. A 
 good deal has been said of the history of Captain Carson's life and character. Alas ! 
 gentlertien, it is the melancholy history of his death, you are called upon to hear and to 
 decide. He had settled his difference with his wife on Friday : and anxious for a reunion 
 had formed a pl.in of getting possession of his house on Saturday, the next day. He 
 very naturally, therefore, sends for his wife's nearest connexions to be witnesses of his 
 ordering the prisoner to quit his house. It is plain, they were not sent for to assist 
 him to take possession by force, because they came without arms, and no force was used. 
 But whatever was his motive, it was so ordered by Providence, that it was an invitation 
 to his death and funeral. It is true, gentlemen. Smith did go on Saturday night, to look 
 for a magistrate, to turn Carson out, as he expressed it. — Being disappointed, he resolved 
 to take the law into his own hands, and d«liber.ately procuring a pistol, went forward into 
 the room, where he knew Carson was, and coolly discharged its contents into his head. 
 Justice is certainly due to the prisoner in the bar — nobody doubts it. But is justice due 
 to Richard Smith only? Is no justice due to the public? — Is no justice due to society? Is 
 the life of a man of no value ? Is no atonement to be made to offended law, for the shed- 
 ding of innocent blood ? Judge for yourselves, gentlemen. Punishment is not the pro- 
 vince of a court and jury. Our rulers, the legislature of our country, have established a 
 penal code, assigning to each crime its proper punishment. Upon this point, we have 
 no right to reason — acquiescence is our duty. I will however observe, gentlemen, that 
 the practice of all nations, civilized and barbarous, accords with the voice of religion, 
 which is the voice of God: "Whoso sheddeth man's blood," that is, deliberately sheds 
 it, "by man shall his blood be shed." What is the case before you in substance, and in 
 a few words? It is this : — The prisoner having by colour and forms of laws acquired un- 
 lawful possession of the house of Carson, of his goods and chattels, of his wife and chil- 
 
416 APPENDIX. 
 
 dren, deliberately shot him, afterwards, in his own house, in the very act of peaceably 
 demanding restitution of all that was dear to him. It is a fine reflection of chief justice 
 Hale, "Let me remember," says that great and good man, "when I find myself inclined 
 to pity a criminal, that there is also a pity due to the people and to the country." The 
 court have done their duty — it remains with you to do your duty. Remember, gentlemen, 
 the vows of God are upon you; to decide according to law, and to evidence. We have 
 Stated both the law and the facts, and leave you to judge for yourselves— you have a 
 right to determine both. If you believe the witnesses, who were present, and saw the 
 crime committed, it is your duty to convict the prisoner of murder in the first degree — 
 but if you do not believe the witnesses, it is your duty to acquit him. 
 
 Saturday, June 1st, 7 o'clock, a. m. — Judge Rush proceeded to sentence the prisoner. 
 Eichard Smith, you have been convicted on fuU and satisfactory evidence, of the murder 
 of John Carson, for which, by the law of the land, you must suifer death. What have 
 you to say why sentence of death should not be passed upon you ? 
 
 P. A. Browne, Ksq. — That the prisoner's objections^ why senteiice should not be passed 
 upon him^ tnay be better understood^ his counsel have reduced them to writing. — Richard 
 Smith being asked if he has anything to say why judgtrtent shoxdd not be pronounced 
 against him, answers, that his conviction is unjust and illegal. — His trial was hurried 
 on 111 the absence of one of his witnesses, although he made the usual affidavit, and prayed 
 a continuance. — His cause was tried before thr prejudices, which had arisen against him, 
 had had time to subside, and the public mind had graduated to that temperature which 
 was necessary to insure him. a fair trial. — The court rejected legal evidence which would 
 have been favourable to him, {the prisoner.) — After one of the witnesses for the prosecu^ 
 tion had, in her cross-examination, and without objection on the part of the attorney-ge- 
 neral, stated that the deceased had been at times subject to intemperance, he {the prisoner) 
 was not allowed to give further evidence by Redwood Fisher of those habits of intempe- 
 rance. — The court admitted illegal evidence unfavourable to him, {the prisoner.) — Mrs* 
 De Gorgne was admitted to give evidence of a conversation between herself, John Carson^ 
 und Ann Smith, formerly Ann Carson, at which he {Richard Smith) was not present ; 
 and of Q.n agree.ment alleged to have been made between the said Ann Smith and John 
 Carson, that the said John shoitld resume his marital rights in respect to the said Ann^ 
 although a subpoena, under the divorce law, had been previously issued and served on 
 the said Ann, whereby the election of the said John to be divorced from the bonds of Tnat. 
 rimo?iy with her, and thereby the subsequent m-arriage 'with him, {Richard Smith) was 
 thus manifested. — The president formed his opinion, and wrote his charge, before he had 
 heard his {the prisoner's) defence. — The president of the court erred in his charge to the 
 jury. — The question, whether the marriage of him. {the priso7ier) with Ann Smith, the 
 former wife of Carson, was legal, depended upon the facts, whether John Carson had 
 been absent for two years, and whether previously to themarriage there escisted a rumour, 
 in appearance well founded, of the death of Carson. — The absence of Carson for two 
 years and upwards was fully proved. — It was also fully proven, by the witnesses for 
 the prosecution, that during his absence no intelligence from him., nor of his continuing 
 in eceistence, had been recuved, and that there was a rumour of his death — a sailor had 
 said so. — It thus became a 'mere question of fact, on which the jury alone were to decide, 
 whether such a rumour existed, and whether it was in appearance well founded, — Yet 
 the court laid it down to the jury, as the legal construction of the act of assembly, that 
 no such rumour could be well founded unless it stated the place where, and the manner in 
 which^ the supposed death took place. — The court also erred in the charge, in not inform- 
 ing the jury that they had power, tinder the bill of indictment, to find him {the prisoner) 
 guilty of murder in the second degree. — The court also erred, in not informing the jury, 
 that if they doubted they should acquit him {the prisoner.) — The court also erred, in en- 
 deavouring to throw ridicule on the evidence produced by him, {the prisoner) by comparing 
 it to JEsop's Fables, and Don Quixote, instead of stating it to the jury for their deliberate 
 consideration. — The court also erred, in refusing to inform one of the jurors, who asked 
 the question, whether he could find him {the prisoner) guilty of murder in the second 
 degree. 
 
 Judge Rush. — The court think this is not a proper time to refute several things alleged 
 in that paper. It is sufficient to say, they are not only false, but utterly without foun- 
 dation.— [The judge then continued]— Previous to doing this, permit me to address a 
 few words to you. — As your continuance in this world will be but for a short time, it 
 becomes you seriously to reflect on the world of spirits, into which you will soon be 
 launched. Dream not, I beseech you, of annihilation, or that death is an eternal sleep. 
 The more you indulge in such unfounded speculations, the greater will be your disap- 
 pointment and horror, when you awake in the eternal world.— You have received life, 
 not upon your own terms, but upon the terms of Him who gave it. With the existenca 
 of every moral agent, God has seen fit, inseparably to connect, both Immortality and 
 responsibility. — It is not in your power, however it may consist both with your wishes 
 and your interests, to cease to be, or to direst yourself of responsibility. God is repre- 
 
T. 0. selfridgb's case. 417 
 
 sented in the Scriptures, as an infinitely wise and just Being — but we could scarcely con- 
 ceive of Him in that character, if a wicked man, after committing innumerable crime* 
 and murders, were permitted to escape punishment, by ceasing to exist. — It is, therefore, 
 both wisdom and duty, to prepare for the change in your mode of existence, that is 
 rapidly approaching. — Life and immortality are brought to light by the Gospel. In this 
 precious volume only, is discovered a true account of the fall and depravity of man, and 
 of his elevation to happiness through the atoning blood of the Son of God. — Here, and 
 here alone, a soul, lost and bewildered in a maze of guilt, can find a clue to guide him 
 to the Day-spring from on high — the Saviour of sinners. — The principal feature in 
 this astonishing display of infinite wisdom and goodness, is, that it opens a door for the 
 most abandoned sinners to return through the means of repentance. Murderers have 
 been pardoned, therefore you may be pardoned in the case of your repentance, and washed 
 from your sins in the blood of Jesus, that cleanseth from all sin. To this blood you 
 must apply, if you wish to escape the regions of perpetual sorrow and despair. — Though 
 it be true, the gospel has opened a door for a repenting and returning sinner, it is equally 
 true, he has no right to expect to be pardoned unless he uses his best endeavours ; which 
 there is reason to believe God wiU bless with success, as they are the means appointed 
 by himself. I therefore advise you to strive to enter in at the strait gate. Double 
 diligence, nay, ten-fold diligence, is necessary in your alarming situation. You have 
 but a short time to live, and a great work to accomplish in the space of a few weeks. 
 It becomes you, therefore, to work out your salvation with fear and trembling, for it is 
 God that works in you to will and to do of his own good pleasure. — You are a young 
 man, cut off by vice in the morning of your days. Your sun has scarcely risen, before 
 it will set — not, I hope, under shades of everlasting night, but that in the morning of 
 the resurrection you may shine in robes of innocence, purchased by the blood of the 
 Lamb. — Now to the grace, mercy, and goodness of God I commend you; and conclude 
 with this single request, that immediately on your return to prison, you send for some 
 pious divine, to pray with you and for you, and to assist you in preparing for the awful 
 change that soon awaits you. — The sentence which the law prescribes for murder in the 
 first degree, and the court awards, is this : " That you be taken from hence, to the jail of 
 the city and county of Philadelphia, from whence you came, and from thence to the place 
 of execution, and to be there hanged by the neck, until you are dead; and may God 
 have mercy upon your soul." 
 
 REPOKT OP THE TKIAL OF T. 0. SELFEIDGE, ESQ.' 
 
 CONDENSED FROM PAMPHLET KEPORT. 
 
 The Court was opened on Tuesday, the 25th day of November, 1805, present,^— The 
 Hon. Theophilus Parsons, LL. D., Chief Justice; the Hon. Theodore Sedgwick, LL. D., 
 the Hon. Samuel SeweU, the Hon. Isaac Parker, Justices. The Grand Jury being 
 impannelled and sworn, viz: Thomas Handyside Perkins, Esquire, Foreman, Samuel 
 Emmons, George Paine, Daniel Tuttle, Joshua Davis, Jedediah Parker, David Townsend, 
 Jonathan Kelton, Moses Gardner, Joseph Francis, Mitchell Lincoln, Samuel Sturgis, 
 Charles Vose, Stephen Gore, Gamaliel Bradford, William Harris, William M'Neil Watts, 
 Daniel Deunison Rogers, William Walter, William Shimmin, all of Boston, and Caleb 
 Pratt of Chelsea, the Chief Justice delivered a learned and impressive charge, from 
 which the following extract, as having more immediate relation to the subject of this 
 Report, is copied by permission: — "Felony, affecting life, is either murder or man- 
 slaughter. Murder is the wilful killing any person of malice aforethought, either ex- 
 pressed or implied. — The malice is express, when there was a premeditated intention to 
 kill. Malice is implied, when the killing is attended with circumstances which indicate 
 great wickedness and depravity of disposition, a heart void of social duty, and fatally 
 bent on mischief. — Formerly if the husband was maliciously killed by his wife, or the 
 master by his servant, the offence was adjudged to be petit treason ; but by virtue of a 
 late statute it is now considered only as murder, and as such is indicted and prosecuted r 
 And every man who kills another, in a duel deliberately fought, is a murderer. — Man- 
 slaughter is the killing another, either wilfully, or through gross negligence, but not 
 
 1 See this case commented on ante, 170 — 5, 213 — 4. 
 
 ^ It was understood that suggestions had been received from the Attorney General, that he had 
 some legal objections to the return of the jurors from Boston, upon which it was desirable to have 
 the opinion of the full Court; and that these suggestions were the occasion of the presence of the 
 other members of the Court besides Judge Parker, to whom this session had been assigned. The 
 objections being considered and overruled by the Court, but one judge sat in the trials after the 
 first day, except in the trial of one indictment for murder. 
 
418 APPENDIX. 
 
 from malice aforethought. — Homicide from accident is excusable; from necessity it is 
 either excusable or justifiable, when for the advancement, or in execution of public jus- 
 tice, it is justifiable. — Observing in the list of prisoners, returned by the jail-keeper, 
 that two persons are in custody charged with felonious homicide, it may be useful to 
 you, in your inquiries, to mention some principles of law, relating to this subject. — In 
 every charge of murder, the fact of killing being first proved against the party charged, 
 to reduce the offence below that crime, by any circumstances of accident, necessity, or 
 human infirmity, he must satisfactorily prove these circumstances, unless they arise out 
 of the evidence produced against him. — When the act which occasions the death is un- 
 lawful, yet if malice either express or implied, be wanting, the killing is not murder, but 
 manslaughter, the act being imputed to the infirmity of human nature. — Neither words 
 of reproach, however grievous, nor contemptuous or insulting gestures, without an as- 
 sault on the person, are sufficient to free the party killing with a dangerous weapon, 
 from the guilt of murder. — An assault is any attempt or ofi'er, with force and violence, 
 to do a corporal hurt to another, as by striking at him, or even by holding up the fist at 
 him in a threatening or insulting manner, or with such other circumstances as denote 
 an intention and ability, at the time, of using actual violence against his person. And 
 when the injury, however small, as spitting in a man's face, or unlawfully touching him 
 in anger, is inflicted, it amounts to a battery, which includes an assault. — Any assault 
 made, not lightly, but with violence, or with circumstances of indignity, upon a man's 
 person, if it be resented immediately, and in the heat of blood, by killing the party with 
 a deadly weapon, is a provocation, which will reduce the crime to manslaughter ; unless 
 the assault was sought for by the party killing, and induced by his own act, to afford 
 him a pretence for wreaking his malice. To illustrate this exception, a case is stated 
 of the falling out of A. and B. A. says, he will not strike, but will give B. a pot of ale 
 to touch him ; on which B. strikes A., who thereupon kills 15. This is murder in A., not- 
 withstanding the provocation received by the blow from B., because A. sought that pro- 
 vocation. — A man may repel force by force, in defence of his person, against any one 
 who manifestly intends, or endeavours by violence, or surprise, feloniously to kill him. 
 And he is not obliged to retreat, but may pursue his adversary, until he has secured 
 himself from all danger ; and if he kill him in so doing, it is justifiable self-defence. But 
 a bare fear, however well grounded, unaccompanied by any open act, indicative of 
 such an intention, will not warrant him in killing. There must be an actual danger at 
 the time. And, (in the language of Lord Chief Justice Hale,) it must plainly appear by 
 the circumstances of the case, as the manner of the assault, the weapon, &c., that his 
 life was in imminent danger ; otherwise the killing of the assailant will not he justifiable 
 homicide. — But, if the party killing had reasonable grounds for believing, that the person 
 slain had a felonious design against him, and under that supposition kill him ; alAough 
 it should afterwards appear that there was no such design, it will not be murder j but 
 it will be either manslaughter or excusable homicide, according to the degree of caution 
 used, and the probable grounds of such belief. — These principles have been recognised 
 by the wisest and most humane writers on criminal law. — After a due and impartial 
 inquiry into the several cases, that may require your attention, you will ascertain the 
 facts, and afterwards apply the principles of law, to obtain a just and legal result." 
 
 On Tuesday, December 2d, the Grand Jury returned into Court, and, amongst other 
 bills, presented the following indictment against Thomas Oliver Selfridge. Esquire : — 
 Commonwealth of Massachusetts. — Suffolk and Nantucket, ss. — At the Supreme Judicial 
 Court begun and holden at Boston within the County of Suffolk, and for the Counties of 
 Suffolk and Nantucket, on the fourth Tuesday of November, in the year of our Lord one 
 thousand eight hundred and six. — The Jurors for the Commonwealth of Massachusetts 
 upon their oath present, that Thomas Oliver Selfridge, of Boston, in the county of Suf- 
 folk, gentleman, otherwise called Thomas Oliver Selfridge of Medford, in the county of 
 Middlesex, gentleman, not having the fear of God before his eyes, but being moved and 
 seduced by the instigation of the devil, on the fourth day of August, in the present 
 year, with force and arms, at Boston aforesaid, in the county of Suffolk aforesaid, in and 
 upon one Charles Austin, in the peace of God and the said Commonwealth, then and 
 there being, feloniously, wilfully, and of the fury of his mind, did make an assault; and 
 that he the said Thomas Oliver Selfridge, a certain pistol of the value of five dollars, 
 then and there loaded and charged with gunpowder and one leaden bullet; which pistol 
 he the said Thomas Oliver Selfridge, in his right hand, then and there held, to, against 
 and upon the said Charles Austin, then and there, feloniously, wilfully, and of the fury of 
 his mind, did shoot and discharge; and that he the said Thomas Oliver Selfridge, with 
 the leaden bullet aforesaid, out of the pistol aforesaid, then and there, by force of the 
 gunpowder, shot and sent forth as aforesaid, the aforesaid Charles Austin, in and upon 
 the left breast of him the said Charles Austin, a little below the left pap of him the said 
 Charles Austin, then and there, with the leaden bullet aforesaid, out of the pistol afore- 
 said, by him the said Thomas Oliver Selfridge, so as aforesaid, shot, discharged and 
 
T. 0. SELFRIDGE's CASE. 419 
 
 sent forth, feloniously, wilfully, and of the fury of his mind, did strike, penetrate and 
 iround, giving to him the said Charles Austin, then and there, with the leaden bullet 
 aforesaid, shot, discharged and sent forth out of the pistol aforesaid, by him the said 
 Thomas Oliver Belfridge, in manner aforesaid, in and upon the left breast of him the said 
 Charles Austin, a little below the left pap of him the said Charles Austin, one mortal 
 wound, of the depth of six inclies, and of the breadth of one inch, of which mortal wound 
 aforesaid the said Charles Austin then and there instantly died ; and so the jurors afore- 
 said, upon their oath aforesaid, do say, that he the said Thomas Oliver Selfridge, the 
 said Charles Austin, then and there, in manner and form aforesaid, feloniously, wilfully, 
 and of the fury of his mind, did kill and slay, against the peace of the Commonwealth 
 aforesaid, and the law in such case made and provided. — A true bill. — T. Handyside 
 Perkins, Foreman; James Sullivan, Attorney General. 
 
 The Defendant, being soon after brought into Court and arraigned upon the foregoing 
 indictment, pleaded Not Guilty. Being inquired of by the Court' at what time he would 
 be ready for his trial, he prayed for a postponement of it to some future day in the term. 
 He stated that he could not at that time name the day, as he should have occasion to 
 send to a considerable distance for witnesses, whom he believed essential to his defence, 
 of whom he had understood that one was in the District of Maine, and another in the 
 State of New York.— On the motion of his counsel that he might be admitted to bail, 
 which was not opposed by the counsel for the Government, he was ordered to recognise 
 himself in two thousand dollars, with sufficient surety or sureties in the same sum for 
 his appearance de die, in diem during the present term, &e. 
 
 On Tuesday the 23d day of December, which had been previously assigned by the 
 Court, the trial commenced before the Hon. Mr. Justice Parker. — At nine o'clock the 
 Court opened. The clerk then proceeded to call the jury in the following order: — 
 1, Paul Revere — sworn. Thomas Fracker. — Mr. Selfridge, — I wish to inquire if Mr. 
 Fracker has not formed an opinion on this occasion? Mr. Fracker being sworn to 
 answer, was asked by Parker, J. Have you heard any thing of this case, so as to have 
 made up your mind? Ans. No. Parker, J. Do you feel any bias or prejudice for or 
 against the prisoner at the bar? Ans. No. Parker, J. Swear him. 2. Thomas 
 Fracker — sworn. 3. Isaac Parker — sworn. 4. Micaiah Clark — sworn. Ward Jack- 
 son. — Mr. Selfridge, — I wish Mr. Jackson to say whether he has not some bias in this 
 case ? Mr. Jackson being sworn to answer, was asked by Parker, J. Have you formed 
 any opinion as to the issue of this cause ? Ans. No. Parker, J. Do you feel any bias or 
 prejudice for or against Mr. Selfridge? Ans. None. Parker, J. Swear him. 5. Ward 
 Jackson — sworn. Henry Sargent. — Mr. Selfridge, — I object to him as having been one 
 of the Jury of Inquest. 6. Francis Tufts — 7. Lemuel Gardner — 8. Elisha Learned — 
 9. Ebenezer Goffe — 10. John Fox — 11. John West — 12. Dexter Dana — sworn. 
 
 For the Commonwealth, James Sullivan, Attorney General ; and Daniel Davis, Solici- 
 tor General. — For the Defendant, Christopher Gore and Samuel Dexter. 
 
 Clerk of the Court. Gentlemen of the Jury, hearken to the indictment found against 
 Thomas Oliver Selfridge. (Here the Clerk read the indictment, see page 418.) — Clerk 
 of the Court. To this indictment the defendant has pleaded not guilty, and has put him- 
 self on the country, which country you are, and you are now sworn to try the issue. 
 
 Mr. Solicitor General: — May it please your Honour, and you. Gentlemen of the Jury. 
 You perceive by the indictment that has been read to you, that Thomas Oliver Selfridge 
 is charged by the Grand Jury of the body of this county with the crime of manslaughter. 
 The indictment particularly states that on the fourth day of August, in the present year, 
 he discharged a loaded pistol at Charles Austin, in consequence of which he instantly 
 died. This fact is alleged, in the indictment, to have been committed feloniously, wil- 
 fully, and in the fury of the mind of the defendant; and this is the appropriate descrip- 
 tion of the crime of manslaughter. — It is not my duty, on this occasion to portray the 
 consequences that have resulted from the shocking event which has brought Mr. Sel- 
 fridge to the bar of his country. It is my more immediate and appropriate duty to ex- 
 plain the nature of the crime, and apply the facts which will be proved to you by the 
 witnesses on the part of Government; I shall then adduce the authorities and cases in 
 the books which are applicable to the present issue. It is impossible for me to discharge 
 this duty with any satisfaction to myself, or any assistance to you, without recurring to 
 the authorities which treat on the subject of homicide. You will find by a recurrence 
 to those authorities, that it will be impossible to understand them, without attending to 
 the subject of homicide at large. It will also be impossible to understand the crime of 
 manslaughter, without a previous acquaintance with the crime of murder. Writers 
 have so blended the different degrees of guilt attached to these crimes, and the shades 
 are in many instances so faintly delineated between them, that it is difficult to be ac- 
 quainted with the distinction, which it is your duty to make before you can understand 
 
 > The Hon. Jadge Sedgwick was then sitting in the place of Judge Parker. 
 
420 APPENDIX. 
 
 and decide on the present case. Therefore, I ttUI, before I state the facts and call the 
 witnesses to prove these facts, aslc your attention for a few minutes to several passages 
 that will be referred to, merely with a view to define the crime, and which you ought, 
 in the beginning of the cause, to understand. I shall, for your convenience and my own, 
 trouble you no further than to read those authorities which contain the general defini- 
 tion; and then will state the facts which are to be proved by the witnesses that will be 
 adduced, and then read certain rules of law which apply to this case in particular, and 
 having done that, I shall have done all that the Government will require of me on the 
 present occasion. I have not been able to find, by attention to the several treatises on 
 the subject of homicide, any book that will assist you more satisfactorily, or give you a 
 more correct notion of the crime of manslaughter, than what may be derived from the 
 4th volume of Blackstone's Commentaries, in which the subject of homicide is treated at 
 large. I shall not read at length all that is written, but shall ask your attention to those 
 parts only which treat of the crime of which the defendant stands accused. In 4 Black- 
 stone's Com. p. 177, that learned author says : " Of crimes injurious to the persons of private 
 subject.?, the most principal and important is the offence of taking away that life, which 
 is the immediate gift of the great Creator; and of which therefore no man can be entitled 
 to deprive himself, or another, but in some manner, either expressly commanded in, or 
 evidently deducible from, those laws which the Creator has given us ; the divine laws, 
 I mean, of either nature or revelation." The author then proceeds to state what would 
 be justifiable homicide; but the crime with which the defendant is charged is not of that 
 nature, and of this I shall say nothing; because, nothing can occur in the present trial, 
 which can render the homicide of that nature. — In pages 180 and 181, he proceeds, in 
 the next place, to consider such homicide as takes place to prevent a crime. — "The 
 Roman law, "'he says, " also justifies homicide, when committed in defence of the chastity 
 either of one's self or relations; and so also, according to Selden, stood the law in the 
 Jewish republic. The English law justifies a woman killing one who attempts to ravish 
 her; and so too the husband or father may justify killing a man, who attempts a rape 
 upon his wife or daughter ; but not if he takes them in adultery by consent, for the one 
 is forcible and felonious, but not the other. And I make no doubt but the forcibly at- 
 tempting a crime, of a still more detestable nature, may be equally resisted by the death 
 of the unnatural aggressor. For the one uniform principle that runs through our own, 
 and all other laws, seems to be this : that where a crime, in itself capital, is endeavoured 
 to be committed by force, it is lawful to repel that force by the death of the party at- 
 tempting. But we must not ca,rry this doctrine to the same visionary length that Mr. 
 Locke does; who holds, "that all manner offeree, without right, upon a man's person, 
 puts him in a state of war with the aggressor ; and, of consequence, that, being in such 
 a state of war, he may lawfully kill him that puts him under this unnatural restraint." 
 However just this conclusion may be in a state of uncivilized nature, yet the law of 
 England, like that of every well regulated community, is too tender of the public peace, 
 too careful of the lives of the subjects, to adopt so contentious a system; nor will suffer 
 with impunity any crime to be prevented by death, unless the same, if committed, would 
 also be punished by death. — In page 18.3, the author considers that species which con- 
 sists in self-defence: — "Homicide in self-defence or se defmdendo, upon a sudden affray, 
 is also excusable rather than justifiable, by the English law. This species of self-de- 
 fence must be distinguished from that just now mentioned, as calculated to hinder the 
 perpetration of a capital crime; which is not only a matter of excuse, but of justifica- 
 tion. But the self-defence, which we are now speaking of, is that whereby a man may 
 protect himself from an assault, or the like, in the course of a sudden brawl or quarrel, 
 by killing him who assaults him. And this is wh.at the law expresses by the word 
 chance-medley, or rather, (as some choose to write it) chaud-medley ; the former of which 
 in its etymology signifies a casual affray, the latter an affray in the heat of blood or 
 passion; both of them are pretty much of the same import; but the former is in com- 
 mon speech too often erroneously applied to any manner of homicide by misadventure ; 
 whereas it appears by the statute 24 Hen. viii. c. 5, and our ancient books, that it is 
 properly applied to such killing, as happens in self-defence upon a sudden rencounter. 
 This right of natural defence does not imply a right of attacking; for, instead of at- 
 tacking one another for injuries past or impending, men need only have recourse to the 
 proper tribunals of justice. They cannot therefore legally exercise this right of pre- 
 , ventive defence, but in sudden and violent cases ; when certain and immediate suffering 
 would be the consequence of waiting for the assistance of the law. Wherefore, to excuse 
 homicide by the plea of self-defence, it must appear that the slayer had no other pos- 
 sible (or at least probable) means of escaping from his assailant."— In page 188, the 
 le.irned writer describes the nature of felonious homicide: — "Felonious homicide is an 
 act of a very different nature from the former, being the killing of a human creature, of 
 any age or sex, without justification or excuse. This may be done, either by killing 
 one's self, or another man."— I will thank you, gentlemen of the jury, to attend to the 
 
T. 0. sslfridge's case. ■f21 
 
 distinction between that offence, and tlie one for -which the defendant stands indicted, 
 and which I am about to state from the same elegant author. In page 191, he says : — 
 " Manslaughter is therefore thus defined, the unlawful killing of another, without malice 
 either express or implied; which may be either voluntarily, upon a sudden heat, or in- 
 voluntarily, but in the commission of some unlawful act." — "As to the first, or volun- 
 tary branch ; if upon a sudden quarrel two persons fight, and one of them kills the 
 other, this is manslaughter; and so it is, if they upon such an occasion, go out and fight 
 in a field; for this is one continued act of passion; and the law pays that regard to 
 human frailty, as not to put a hasty and a deliberate act upon the same footing with re- 
 gard to guilt. So also if a man be greatly provoked, as by pulling his nose, or other 
 great indignity, and immediately kills the aggressor, though this is not excusable se de- 
 fendendo, since there is no absolute necessity for doing it to preserve himself ; yet neither 
 is it murder, for there is no previous malice; but it is manslaughter." — There is only 
 one other definition, which I will trouble you, gentlemen, to attend to in the history of 
 this trial; it is the definition of the crime of murder, as given in the 195th page of the 
 same book, in the words of Sir Edward Coke ; — " Murder" is therefore now thus defined, 
 or rather described, by Sir Edward Coke: "When a person of sound memory and dis- 
 cretion, unlawfully killeth any reasonable creature in being, and under the King's peace, 
 with malice aforethought, either express or implied," it is murder. He then goes on to 
 give different descriptions of the several branches of murder, which it is not necessary 
 in this state of the trial to trouble you with. — I thought it my duty, gentlemen, to read 
 to you such passages in the book I have resorted to on this occasion, as contained the 
 description of all the different branches of homicide, from wilful murder down to justi- 
 fiable self-defence. — I will now state my reasons for so doing. So far as I am acquainted 
 with the facts of this case, it will turn out, from the testimony of the witnesses on the 
 part of the Government, that this event happened in such a manner, that it may become 
 a question whether the fact charged by this indictment was murder, or manslaughter. — 
 I do not mean to insinuate that it is possible to convict the defendant on this indictment 
 of a higher species of homicide than manslaughter; but you will find by a recurrence to 
 other books, and on an investigation of the facts, that though he be indicted for man- 
 slaughter, if from those facts he might have been found guilty of murder, he must be 
 found guilty of manslaughter. I mention this, because, it is possible, that distinctions 
 of this kind may be set up ; that, either the facts amount to murder or to justifiable self- 
 defence, in either of which cases, you must acquit. I say it is possible, because it is 
 out of my power exactly to anticipate on what ground the defendant's counsel will place 
 their defence. But I may suppose, that they will rest it on that. It is therefore neces- 
 sary that you should have a just idea of this, and I have laid all these things before you 
 that will show you, that you cannot convict of murder on an indictment for man- 
 slaughter; for though you find that the facts approach the degree of murder, you must 
 from every principle of public justice say, that the defendant 'is guilty of manslaughter 
 only. — I will now state to you generally, the facts which will appear in evidence to you 
 on the part of the Government, and before I proceed particularly to state those facts, I 
 will mention that it is necessary that the Government prove these two things ; first, that 
 Charles Austin, the person named in the indictment, is dead; secondly, that he came to 
 his death by the instrumentality of the defendant at the bar, and under the circumstances 
 alleged in the indictment ; which two facts will amount to the crime of manslaughter. 
 These then are the facts which the Government must prove before it can be entitled to 
 your verdict; and you are to judge from the evidence that will be laid before you, 
 whether these two points are or are not substantiated on the part of the Commonwealth. 
 I expect that it will appear, that on the day mentioned in the indictment, between the 
 hours of one and two o'clock in the afternoon, Selfridge was in his office employed about 
 his ordinary business ; that a few minutes before he proceeded from thence into State 
 Street, he had a conversation, in which he mentioned that he anticipated some attack in 
 the course of the day, (probably about 'change hours) and that he then stated a conver- 
 sation which took place between Mr. Benjamin Austin and Mr. Welch, in which Mr. 
 Austin had threatened to have him chastised; that Mr. Selfridge declared to the person 
 with whom he had that conversation, that he was not a man to engage at fisticuffs, 
 though he was prepared to protect and defend himself; to this, will be added other cir- 
 cumstances which tend to show, that Mr. Selfridge went out of his oiEce with the pistol, 
 which was the instrument of the death of the deceased, and which was deliberately 
 loaded for that purpose. About twenty minutes after Mr. Selfridge went out of his 
 office, down into State Street, and the deceased was then on 'Change, standing near the 
 door of Mr. Townsend's shop ; that Mr. Selfridge walked down State Street with his 
 hands in his pocket or behind him, with, probably, an intent to conceal the instrument 
 he had in his pocket, and with which he gave the deceased his death wound ; that in 
 passing down in this manner, Austin leaving the place at which he stood, approached 
 him with a stick in his hand ; that they met together a few paces from the door of the 
 
422 APPENDIX. 
 
 shop, and that there a combat ensued. It will appear that the deceased came -with a 
 stick in his hand, in a manner to make an assault ; but from the evidence we^ shall in- 
 troduce, it will be impossible, I think, to decide, whether the pistol was discharged, and 
 the death wound given, before, or after Austin gave Selfridge a blow. — It is not neces- 
 sary now so very minutely to state the circumstances of this aifecting tragedy; I shall 
 rely on the information of the witnesses for these facts, but it will appear from the 
 whole, that this tragedy was performed in the course of twenty seconds at the farthest ; 
 the parties met, the pistol and first blow given were discharged, probably at the same 
 instant. Austin then fell to the ground, and soon expired; he was carried into the 
 shop of Mr. Townsend, where his wound was examined, found mortal, and of which he 
 died. — When the people collected, Mr. Selfridge appeared perfectly in possession of his 
 mind; declared himself in a state of recollection, and said, he knew what he had done, 
 and was ready to answer for it at the bar of his country. These were the defendant's 
 declarations ; and whether just or not, will come under your consideration. — I mention 
 this to show that he was in the possession of his mind — These are the outlines of this 
 case; these facts, I am confident, frgm what I know of the former testimony of the wit- 
 nesses, they will again declare, and, perhaps, something further in favour of the Govern- 
 ment. If so, it will be impossible the defendant should escape the punishment the law 
 affixes to the crime. Taking it for granted that I shall prove the facts, it may be con- 
 venient at this time to ask your attention to those rules of law applicable to a case of 
 this kind. When I have so done, their applicability will easily be perceived and the 
 cause will be fully opened on the part of the Government. I do not know that the book 
 I have in my hands, has ever been read as an authority. It is 1 East's Pleas of the 
 Crown, which contains the best treatise on the subject of homicide that has been printed ; 
 and though it has been but recently published, I presume I may read the authorities 
 adduced by him, in support of what he lays down, as they are the original authorities 
 on the subject. — I will begin by reading some parts of the 19th sec. chap. 5, page 232. 
 If any question is made as to the correctness of the principles, I have Hale, Hawkins, 
 and the other authorities cited, which can be referred to. 
 
 Parker, J. There are few authorities in that book, that are not taken from Hale and 
 Hawkins. 
 
 Sol. Gen. The part I cite is that which treats of homicide from transport of passion 
 or heat of blood. — "Herein is to be considered under what circumstances it may be pre- 
 sumed that the act done, thoiigh intentional of death, or great bodily harm, was not the 
 result of a cool deliberate judgment and previous malignity of heart, but imputable to 
 human infirmity alone. Upon this head it is principally to be observed, that whenever 
 death ensues from sudden transport of passion, or heat of blood, if upon a reasonable 
 provocation and without malice, or if upon sudden combat, it will be manslaughter ; if 
 without such provocation, or the blood has reasonable time or opportunity to cool, or 
 there be evidence of. express malice, it will be murder. For let it be again observed, 
 that in no instance can the party killing, alleviate his case, by referring to a previous 
 provocation, if it appear by any means that he acted upon express malice." — I shall now 
 read part of the 21st sec. of the same chapter: — "It must not however be understood 
 that any trivial provocation, which in point of law amounts to an assault, or even a blow, 
 will of course reduce the crime of the party killing to manslaughter. This I know has 
 been supposed by some, but there is no authority for it in the law. For where the pu- 
 nishment inflicted for a slight transgression of any sort is outrageous in its nature, either 
 in the manner or tht^ continuance of it, and beyond all proportion to the offence, it is 
 rather to be considered as the effect of a brutal and a diabolical malignity, than of human 
 frailty; it is one of the true symptoms of what the law denominates malice; and there- 
 fore the crime will amount to murder, notwithstanding such provocation. Barbarity, 
 says Lord Holt, in Keate's case, will often make malice." — I will now read another rule 
 from the 23d sec. page 239: — "In no case, however, will the plea of provocation avail 
 the party, if it were sought for and induced by his own act, in order to afford him a pre- 
 tence for wreaking his malice. As where A. and B. having fallen out, A. says he will not 
 strike, but will give B. a pot of ale to touch him ; on which B. strikes A. and A. kills him ; 
 this is murder. And in all cases of provocation, in order to extenuate the offence, it 
 must appear that the party killing, acted upon such provocation, and not upon an old 
 grudge; for then it would amount to murder." 
 
 Gore. The gentleman has stated and laid down principles which I shall oppose; and 
 I may as well take the opinion of the Court now as at any time hereafter. The gentle- 
 man has said that on this indictment he shall offer evidence to show, that there was 
 that sort of malice which is described in the same crime of murder. He has stated that 
 by entering into the conversation and antecedent circumstauces, he will be able to prove 
 there was a previous malice, and that those circumstauces and malice amount to the 
 crime of murder; now the indictment being for manslaughter, negatives all idea of malice; 
 he therefore can give no testimony on the ground of malice, as it does not comport with 
 
T. 0. selpridge's case. 423 
 
 crimes stated in the indictment. It is confounding all rules of law, if under this in- 
 dictment for manslaughter, he should attempt to set up a proof of murder; to this 
 point I quote Hawkins. Book 1, chap. 30: — "Homicide against the life of another 
 amounting to felony is either with or without malice. That which is without malice," 
 I am reading now from the first section, "is called manslaughter, or sometimes chance 
 medley, by which we understand such killing as happens either on a sudden quarrel, or 
 in the commission of an unlawful act, without any deliberate intention of doing any mis- 
 chief at all ;" and in the second section he goes on to state, " And from hence it follows, 
 that there can be no accessaries to this offence before the fact, because it must be done 
 without premeditation." — Here is an exact definition of the crime of murder, corrobo- 
 rated by other definitions in the books cited, in the margin, which perfectly excludes aU 
 idea of malice. Therefore they cannot, under this indictment, attempt, according to any 
 rule of law (that I know of, ) to prove malice in my client, for it would make a distinct 
 crime, difTerent from that with which the defendant is charged. ' 
 
 Sol. Gen. I had no inducement to make this statement to the jury, or to intimate the 
 nature of the evidence I should offer, but that of doing what I apprehend to be my duty. 
 I stated that it was impossible for me to anticipate on what grounds the defence would 
 be placed ; but if it should turn out that it should be, that the defendant is not guilty 
 of the crime of manslaughter, according to the technical definition of that crime, because 
 the evidence may show that it was either murder, or may tend to prove it justifiable 
 self-defence ; that on the first case, it was clearly law, that if, on an indictment for man- 
 slaughter, the evidence should show the crime was murder with malice, the jury would 
 be justifiable in convicting him at least of manslaughter. The reason upon which I 
 bottom this opinion is, that they being judges of the facts and of the law as it applies to 
 those facts, they are competent to the decision, and they will find themselves warranted 
 in so doing by the opinion of Judge Holt, delivered in Mawgridge's case, reported by 
 Kelyng, page 125. The principle I lay down, was then recognised, and on the authority 
 of that ease, I ground myself on the present occasion. Holt then, after speaking of 
 homicide or manslaughter says, — "The killing of a man by assault of malice prepense, 
 hath been allowed to be murder, and to comprehend the other two instances." 
 
 Parker, J. I see no reason to doubt that principle. If the evidence proves the defen- 
 dant guilty of a higher crime than that with which he stands indicted ; for example, if 
 they prove him guilty of murder, it is competent to the jury, to find him guilty of man- 
 slaughter, for which he is indicted. 
 
 Attorney General. The books are so full on this point, that it is unnecessary to trouble 
 the Court with the recital of them. 
 
 Dexter. I wish to know what is precisely the question, and to what point it is neces- 
 sary to turn our attention. If it be true, that the whole question before the court and 
 jury, is whether the same evidence can be given on a trial for manslaughter as on an 
 indictment for murder, and it be decided that it can, it appears to follow that the cause 
 is to be tried on principles on which there can be no legal decision ; if we are to try on 
 the present occasion for murder, the jury cannot convict nor acquit. It seems to me 
 clear law that no case can be decided but that which is in issue. — The indictment is for 
 manslaughter ; the definition of this crime is that it must be committed on a sudden, 
 without malice. If malice aforethought be proved, then no part of the definition is sub- 
 stantiated. We cannot have come here to defend what we are not charged with. We 
 have no objection to go into every fact anterior; but we ought to have had an opportunity 
 to know of this, and of what was intended by the prosecution, and further we ought to 
 have known of it legally, that is by the indictment. The defendant is not prepared to 
 meet suggestions of malice. We are not willing to exclude any facts, but the truth is, 
 that not expecting a charge of this kind, the defendant is not completely prepared; we 
 do not wish to escape from the offence, if it be one ; but it ought to have been described 
 with technical precision. We insist that it has not. The authorities exclude malice and 
 premeditation, and we cannot be prepared to meet them, nor is it competent for the 
 Government to show them, nor is it incumbent on us to prove that they were not in 
 existence. 
 
 Parker, J. There is no definite motion before the court; the observations now made, 
 arise from what the Solicitor General expected to be able to prove. I understand, that 
 he expected to show a previous preparation, and that what was done by the defendant 
 was not to protect himself from attack. Whether the offence was manslaughter or ex- 
 cusable homicide, depends perhaps on the instrument that was employed, the opportu- 
 nity to conceal it, whether he carried it before him, or whether he took up a stick in 
 the street to defend himself. The object of the Solicitor General was to show whether 
 it was merely in defence of himself, or whether there was any previous malice ; it ap- 
 peared to me proper to go into evidence to that effect. 
 
 Att'y. Genl. There are several authorities to show that this may be done. 
 
 Dexter. There is but one, and that is from an opinion of Holt's. 
 
424 APPENDIX. 
 
 Parker, J. I state this, that if from the evidence admitted, and laid before the jury, 
 they should be of opinion that the crime was of a higher nature, the same facts -would 
 prove manslaughter was committed. I believe there can be no doubt of this. 
 
 Dexter. We do not hold as law, that if the facts come out to prove this offence to be 
 a higher crime th^an manslaughter, the jury are to acquit. 
 
 A tt'y. Gen. If by excluding evidence that would show a previous design, they cannot 
 get rid of this indictment, it would amount to saying, if it be proved that he was guilty 
 of murder, he shall not be found guilty of manslaughter. 
 
 Sol. Gen. I was reading to you, gentlemen, a passage from the same authority which 
 occupied your attention when 1 was interrupted; it was from East's Pleas of the Crown, 
 sect. 23, p. 239: — "And in all cases of provocation, in order to extenuate the oifence, it 
 must appear that the party killing acted upon such provocation, and not upon an old 
 grudge ; for then it would amount to murder." — And in the next sect. 24, he proceeds, — 
 "But there is another class of cases, where the degree or species of provocation enters 
 not so deeply into the merits of them as the foregoing ; and those are, where upon 
 words of reproach, or indeed any other sudden provocation, the parties come to blows, 
 and a combat ensues, no undue advantage being taken or sought on either side ; if death 
 ensue, this amounts to manslaughter." — The application of this rule will be to that part 
 of the case, by which it will appear that the defendant took an undue advantage, by 
 being secretly armed ; a fact, of which the deceased could have no knowledge at the 
 time. I shall therefore next read the latter portion of sect. 30, from the same chapter, 
 page 251 : — "It has been shown that such malice will be presumed, even though the act 
 be perpetrated recently after the provocation received, if the instrument or manner of 
 retaliation be greatly inadequate to the offence given, and cruel and dangerous in its 
 nature ; because the law supposes that a party capable of acting in so outrageous a man- 
 ner upon a slight provocation, must have entertained at least a general, if not a par- 
 ticular malice, and have before determined to inflict such vengeance upon any pretence 
 that offered." — I will now beg leave to state part of sect. 44, of the same chapter, page 
 272: — "A man may repel force by force, in defence of his person, habitation, or pro- 
 perty against any one who manifestly inteiids or endeavours, by violence or surprise, to 
 commit a known felony, such as murder, rape, robbery, arson, burglary, and the like, 
 upon either. In these cases he is not obliged to retreat, but may pursue his adversary 
 until he has secured himself from all danger; and if he kiU him in so doing, it is called 
 justifiable self-defence." — The next authority, which I shall ask your attention to, is 
 in sect. 47, page 246: — "In another case, however, where the assault, though a very 
 violent one, was plainly with a view to chasten the party for his misbehaviour, and there 
 appeared no intent to aim at his life ; his killing the assailant was not holden to be law- 
 ful or excusable under the plea of self-defence. That was Nailer's case, tried before 
 Holt, C. J., Tracy, J., and Bury, B. The prisoner, who was indicted for the murder of 
 his brother, appeared to have come home drunk on the night the fact was committed; 
 his father ordered him to go to bed, which he refused to do ; whereupon a scuffle hap- 
 pened between the father and son. The deceased, who was then in bed, hearing the dis- 
 turbance, got up, threw the prisoner on the ground, and fell upon him, and beat him, 
 the prisoner lying upon the ground with his brother upon him, not being able to avoid 
 his blows, or make any escape from his hands. And as they were striving together, the 
 prisoner gave his brother the mortal wound with a penknife. At a conference of all 
 the judges after Michaelmas term, 1704, it was unanimously hoWep to be manslaughter; 
 for there did not appear to be any inevitable necessity, so as to excuse the killing in that 
 manner. The deceased did not appear to have aimed at the prisoner's life, but only to 
 have intended to chastise him for his misbehaviour to his father ; and to excuse homi- 
 cide upon the ground of self-defence, there must always appear to have been such a 
 degree of necessity as may reasonably be deemed inevitable. At the conference in the 
 above case, Powell, J., put the case: If A. strike B. without any weapon, and B. retreat 
 to a wall, and then stab A, that will be manslaughter, which Holt, C. J., said was the 
 same as the principal case; and that was not denied by any of the judges. For it can- 
 not be inferred from the bare act of striking without any dangerous weapon, that the 
 intent of the aggressor rose so high as the death of the party stricken ; and without 
 there be a plain manifestation of a felonious intent, no assault, however violent, will 
 justify killing the assailant under the plea of necessity."— And in the same section it is 
 further laid down,— " In no case can a man justify the killing of another imder the pre- 
 tence of necessity, unless he were wholly without any fault imputable by law in bringing 
 that necessity upon himself." — The next section I shall read is sect. 51, page 279. This 
 section contains a rule and principle directly applicable to the present case, and the 
 most important distinction you will have to take into consideration in this trial, I there- 
 fore ask your particular attention to it:— "It has been shown that where death ensues 
 from a combat on a sudden quarrel, without prepense malice, such act amounts but to 
 manslaughter; being attribute(^ to heat of blood arising from human infirmity." I pre- 
 
T. 0. sblpeidgb's case. 425 
 
 sume it will be impossible for the defendant's counsel to place his defence on stronger 
 grounds than the one in this rule. Now the authority proceeds, that in this necessity, 
 which you will probably find to be the precise case of the defendant, — "In order to re- 
 duce such offence from manslaughter to self-defence upon chance medley, it is incum- 
 bent on the defendant to prove two things: first, that before a mortal stroke given 
 he had declined any farther combat, and had retreated as far as he could with safety ; 
 second, that he then killed his adversary through mere necessity, in order to avoid im- 
 mediate death." — And here you observe it will be a fact of inquii-y whether the defendant 
 declined the combat and retreated as far as he could with safety, and then killed the 
 deceased through mere necessity, in order to avoid his own immediate death. If the 
 facts should turn out to be such that the defendant cannot justify himself on one or other 
 of these principles, so long as they remain the rule of law, the defendant must be found 
 guilty. 
 
 Parker, J. There is'a natural exception to that rule, which you will find in the book 
 you have read ; it is, that if the retreat would be such as would cause his own death, 
 then the retreat is not necessary. 
 
 Sol. Gen. That forms a part of the rule itself, and is not, I presume, an exception to it. 
 I shall read some authorities to that by and by, and will not trouble you any farther, 
 except for the purpose of reading part of section 55, page 285 . — "As to the other point 
 to be established, namely, the existence of the necessity under which the party killing en- 
 deavours to excuse himself, he can in no case substantiate such excuse if he kill his ad- 
 versary, even after a retreat ; unless there was reasonable ground to apprehend that he 
 would otherwise have been killed himself And, therefore, where nothing appeared in 
 Nailer's case above mentioned, to show that the deceased aimed at the prisoner's life ; 
 although he held him down on the ground, beating him, and the prisoned could not avoid 
 his blows, it was ruled manslaughter." — That is the rule to which your Honour referred. 
 The author proceeds: — "It is to be noted in that case, that the prisoner struck the 
 mortal blow with a penknife, which was a dangerous, mischievous weapon; from whence 
 it was to be presumed, that he intended to rid himself of the chastisement which his 
 brother was then inflicting on him, by his death. Mr. Justice Foster, in alluding to this 
 case, seems to lay a stress upon the want of an inevitable necessity, so as to excuse 
 the killing in that manner." — These principles you will find have a direct application to 
 the present cause ; the books which contain them will be adverted to in the course of 
 the trial, by those gentlemen who follow me. I will only read a passage from Foster's 
 Crown Law, and then pass to one or two other authorities; and that will be all that is 
 necessary in the opening. I do this for your information, by which you can apply the 
 evidence more correctly, and also to advertise the defendant's counsel of the books we 
 shall rely on to establish, that the defendant must be convicted of the crime for which 
 he stands indicted. The first I shall now read, is from Foster's Crowp Law, page 255 ; — 
 "In every charge of murder, the fact of killing being first proved, all the circumstances 
 of accident, necessity, or infirmity, are to be satisfactorily proved by the prisoner, unless 
 they arise out of the evidence produced against him ; for the law presumeth the fact to 
 have been founded in malice, until the contrary appeareth. And very right it is, that 
 the law should so presume. The defendant, in this instance, standeth just upon the same 
 foot that every other defendant doth : the matter tending to justify, excuse, or alleviate, 
 must appear in evidence before he can avail himself of them." — There is a case, 1st, 
 Hale's History of the Pleas of the Crown, page 479. It contains a single sentence only, 
 and very short, but which appears to be directly applicable to the present case. It is this: 
 — "A. assaults B., and B. presently thereupon strikes A. without flight, whereof A. dies; 
 this is manslaughter in B., and not se defmdendo." — He further adds, in page 480: — 
 " Regularly it is necessary that the person that kilJs another in his own defence, fly as far 
 as he may to avoid the violence of the assault before he turn upon his assailant : for though 
 in cases of hostility between two nations, it is a reproach and piece of cowardice to fly 
 from an enemy ; yet in cases of assaults and affrays between subjects under the same law, 
 the laws own not any such point of honour, because the king and his laws are to be the 
 vindices injuriarum, and private persons are not trusted to take capital revenge one of 
 another." — One or two other passages in Hawkins, are all that is necessary to trouble 
 you with in opening, and stating the law on the subject. In 1st Hawkins' P. C, chapter 
 28, sec. 25, page 109, there is a sentence which has a remarkable degree of applicability 
 to the present case : — " However, perhaps in all these cases, there ought to be a distinc- 
 tion between an assault in the highway and an assault in a town. For in the first case 
 it is said, that the person assaulted may justify killing the other, without giving back at 
 all; but that, in the second case, he ought to retreat as far as he can without apparently 
 hazarding his life, in respect of the probability of getting assistance." — You will recollect, 
 gentlemen, the scene where this tragedy was performed, and will recollect from that 
 scene, from the circumstances, situation, and possibility of assistance, how immediately 
 applicable the quotation is to the present case. — One other authority I shall adduce. 
 
426 APPENDIX. 
 
 •which will have a reference to the authority I read to you, as to the defendant's being 
 master of his temper and in possession of his mind; it is from page 123, chap. 31, sec. 
 23 of the book last cited:—" And whenever it appears from the whole circumstances ot 
 the case, that he who kills another on a sudden quarrel, was master of his temper at the 
 time, he is guilty of murder ; as if after the quarrel he fall into other discourse, and talk 
 calmly thereon ■ or perhaps if he have so much consideration, as to say, that the place 
 wherein the quarrel happens is not convenient for fighting; or that if he should fight at 
 present, he should have the disadvantage by reason of the height of his shoes," &o.— 
 These are the cases and principles which I consider to have a direct reference to the 
 nature nf the cause you have to determine. I have now stated the facts, and the only 
 remaining duty for me to perform is to call the witnesses to prove them. But before I do 
 that, I will give you the usual evidence of the death, or first faot^-this I shall do by the 
 inquisition taken by the coroner's jury. 
 
 Dexter. We object to the reading of that. 
 
 Sol. Gen. I read it merely to prove the fact of the death of the person deceased. 
 
 Parker, J. I never knew it used, but as 1 have never been much conversant in trials 
 for homicide, I may perhaps be mistaken. 
 
 Att. Gen. It has been the practice to use it. 
 
 Gore. It was ten days ago attempted and rejected. 
 
 Parker, J. I do not recollect that circumstance. 
 
 Att. Gen. It has been used as evidence of the death, and this before the revolution — 
 it was done in the case of the British soldiers, and there admitted to prove the fact of the 
 death— .and it was recently oflFcred in the case of Fairbanks of Dedham — it was there 
 objected to and allowed by the court. 
 
 Dexter. If limited to that simple object, of merely proving the death, we shaU not 
 object to it. 
 
 Att. Gen. We will go so far as to leave out the words killed and murdered. 
 
 Solicitor General was then about to read the inquisition, but was interrupted by 
 
 Dexter. We are unwilling to be troublesome, but we are told by some of the gentle- 
 men of the bar, not now engaged, and who were engaged in the case of Hardy, that this 
 same evidence was offered the present term and rejected by the court. 
 
 Blake as amicus ourise. I recollect the objection, and that I made the motion to reject 
 the evidence, and whether the court decided against it or not, or it was withdrawn, I 
 cannot tell, but I recollect it was not read. 
 
 Dexter. Mr. Otis recollects that it was not read; and further, that the Chief Justice 
 overruled it ; but if offered for no other object, than to prove the death of the deceased, 
 it is really unimportant ; there must, we thick be some other design in offering it, and 
 therefore we object to it. 
 
 Parker, J. I really should think it, were there other evidence of the fact of the death, 
 very important, because itmight prejudice the minds of the jury on the subject; have you 
 not plenary evidence of another sort ? 
 
 Sol. Gen. Yes, but I do it as being the course of the court; and have no view to create 
 an impression on the minds of the jury ; we had agreed to leave out all those words 
 which might have had that effect, and to read it merely to show that the death was oc- 
 casioned by the injury received from the discharge of the pistol. 
 
 Att. Gen. Yielding points will be construed into authorities ; if this is evidence to prove 
 the death, we have a right to it, and are not obliged to waive it; the idea of rejecting it 
 because no better is offered is not law ; it is either evidence or not ; if evidence, then, it 
 may be read; if a thousand witnesses to prove his death should be called, they may not 
 be believed, or may be discredited ; the question is, whether it be law, and the inquisition 
 is to be read, to prove the death ; if the court say it is not to be read, then I shall never 
 offer it in any other case, except before a full court to obtain their opinion. 
 
 Dexter. I stopped in my objections because I understood that it was the invariable 
 practice to read it, for we want no law that is not to apply in every other case ; but if, 
 in a recent instance, it has been rejected, we are at liberty to investigate the principles 
 on which its admissibility is attempted to be supported. It is the verdict of the jury in 
 the nature of an inquest of office, where the party charged has no opportunity of exa- 
 mining witnesses ; of being heard by himself or counsel; no judge to lay down the law or 
 instruct the jury as to the nature of the offence; is it consistent with general principles 
 that such a piece of testimony should be admitted as evidence? If then there be no usage 
 for it, and general principles are against it, it is clear that it ought not to be received. 
 
 Att. Gen. We can show from the authority of Hale and Hawkins, that it is admissible. 
 
 Parker, J. As the practice has been, as stated, both ways, X should like to hear some 
 authorities upon the subject. 
 
 Att. Gen. We wiU produce the authorities at another stage of the trial, if they should 
 be necessary. 
 
 Sol. Gen. We waive reading the coroner's inquest for the present, and now proceed to 
 call our witnesses. 
 
T. 0. belfridge's case. 427 
 
 The Solicitor General called the following -witnesses to the stand: — 
 
 Doctor Thomas Danforth, having been sworn, testified that on the 4th of August, 
 he was requested by some unknown person, to, step into the shop of Dr. Townsend, and 
 there saw the body of a dying man, lying on his back. The shirt was torn down, and 
 the neckcloth taken off; when he discovered a wound a little below the left pap, the 
 pulse was gone, and though still some slight remains of life, there was no respiration. 
 About a minute afterwards, the deceased expired. He then proceeded to examine the 
 wound, and noticed that the fifth rib was cut. At this time. Dr. Jarvis came into the 
 shop. — He then passed the handle of a smaU hammer about three inches into the wound. 
 He saw from the direction of the wound, that it must have passed through some prin- 
 cipal blood vessel ; on withdrawing the hammer, blood flowed very freely from it. He 
 was satisfied deceased died of the wound. The direction of the wound was oblique, and 
 diagonal with the trunk of the body, inclining upwards towards the right side. It must 
 have passed through the lungs, but not the heart. He could not say whether it would 
 produce instant death, or a temporary suspension of muscular power — a wound of a 
 large blood vessel might not be attended with instant death, but would produce syncope 
 and death afterwards. Such a wound would produce a momentary spasm, a sort of 
 convulsive, involuntary action. 
 
 James Richardson, having been sworn, testified that he was in defendant's ofl5ce, 
 some little time before the death of the deceased occurred ; that defendant gave him that 
 account of the controversy between him and B. Austin ; that Mr. Selfridge seemed to 
 have some intimation that he would be attacked, not by old Mr. Austin, but by some 
 bully employed by him. He observed that he would go out, notwithstanding any appre- 
 hension of being attacked. He added that he was no man for bullying or fisticuffs. 
 He left the oiEce, and was near the Branch Bank, when he heard the report of a pistol, 
 he thought within four minutes after leaving Mr. T. 0. Selfridge's office. 
 
 On cross-examination he testified that Selfridge had been his classmate at college; — 
 was never robust or healthy, nor did he mix with his companions in manly or athletic 
 exercises — th.at at the conversation above mentioned, he was calm and cool. 
 
 Beiijamin Whitman sworn. — Testified that on the 4th of August, he had seen defend- 
 ant at his office, and had asked him how he and B. Austin came on ; to which he re- 
 plied, that he, B. Austin, had hired some one to bully him — witness afterwards left 
 him. He said nothing as to mode of defence. He walked on to near the head of the 
 Exchange, when he heard the report of a pistol — turned and saw a person in the act of 
 striking with a cane, the cane was elevated; saw the smoke of the pistol about breast 
 high — -the pistol not raised higher than his chin; saw a number of blows struck at him 
 with the cane; saw deceased fall ; the parties were quite near each other. About two 
 hours after saw Mr. Selfridge with a wound on his head, and another on his arm ; the 
 • wound on the forehead was oozing blood at the time; the blow must have been a severe 
 one, the hat was fractured. 
 
 John M. Lane sworn. — Testified, that a little after one o'clock on the 4th of August, 
 he was at his shop, looking directly across the street, and there saw defendant standing 
 on the pavement in front of Mr. Townsend's shop, and the deceased standing in front of 
 defendant, a little to the right. Defendant had his arms crossed horizontally, and in 
 that position fired the pistol at the deceased; he turned and gave defendant several 
 strokes before he fell ; saw defendant throw the pistol at the deceased while he was 
 striking. There was a number of persons in the street, some fifteen or twenty, between 
 Congress street and Mr. Townsend's shop. Is positive that defendant was facing him; 
 when he fired the pistol he did not extend his arms. 
 
 Edward Howe sworn. — Testified same as preceding witness as to time and place, also 
 that defendant had on a frock coat, and his hands were behind him. After passing de- 
 fendant, he heard loud talking behind him, and turning, saw defendant with a pistol in 
 his hand, which was immediately discharged. The instant afterwards, saw the deceased 
 step forward and strike the prisoner several very heavy blows upon the head; saw de- 
 fendant throw the pistol at deceased. The instant after the pistol was fired, the deceased 
 sprang from the pavement and struck the defendant as above stateii. 
 
 Ichabod Frost sworn. — Testified as prior witness as to time and place, also that he was 
 standing at the door of a building directly opposite Mr. Townsend's shop, looking at 
 some persons at the door of the post-office ; that he heard the report of a pistol, and 
 turning, saw the smoke, and at that instant saw the deceased step from the side-walk, 
 with his stick up. He struck the defendant several severe blows on the head, and de- 
 fendant either struck him with the pistol, or threw it at him. 
 
 On cross-examination, this witness testified that defendant was six or seven feet from 
 the pavement when he first saw him, with his face towards the post-office. The blows 
 with the stick, and the throwing or striking with the pistol, seemed to be simultaneous. 
 He cannot say that he saw defendant's hands behind him while passing down the street. 
 Did not see defendant retreat with hands raised to ward off the blows ; but defendant 
 
428 
 
 APPENDIX. 
 
 appeared to press towards tbe deceased. When first saw defendant his arm was raised, 
 and aiming a blow with the pistol at the deceased, who was striking with his stick. 
 
 Mr. Gore then opened for the defence as follows: — 
 May it please your Honour, and you, gentlemen of the Jury, — 
 
 Permit me, gentlemen, to ask for your candid attention and indulgence, while I ad- 
 dress Tou in behalf of the defendant at the bar, who stands charged by the grand 
 inquest of this county, with the crime of manslaughter. A patient investigation of the 
 evidence, so far as it is necessary to the attainment of the truth, a strict observance of 
 the law of the land as it is derived from the natural char.acter of man, as it is recorded 
 and laid down in our books, as has been invariably known and practised in all civilized 
 countries, as well as in our own, and as it shall be pronounced to you by the court, with 
 a due regard to such arguments and observations as may be founded in reason and com- 
 mon sense, unbiassed by Q,ny previous impressions, but what shall be imposed by the 
 law and the testimony, constitute all I have a right to expect, and be assured that, 
 notwithstanding the solicitude I may justly be presumed to feel on this occasion, it is 
 all I have even a wish to obtain. 
 
 After the most mature reflections I have been able to give to this cause, and as I 
 trust it will appear to you when the whole transaction is exposed, I cannot prevail on 
 my mind to raise a doubt as to the issue, however important the event may be to the 
 public justice of the country, and however interesting to the property, the freedom and 
 character of my client ; provided the case be decided on its own real and intrinsic 
 merits. Yet I cannot but feel some apprehension, from the various measures taken to 
 pre-occupy the public mind, nor is it surprising that I should be thus apprehensive, 
 when I call to mind the cruel, unjustifiable and illegal conduct which has been resorted 
 to through the newspapers, to influence the judgment, to inflame the passions, and cause 
 such an agitation through the whole community, that its eft'ect might be felt even here, 
 where the rights of all require that justice, assisted by the calmest deliberation, should 
 alone preside. Whence should be banished every thing that can tend to stir or move 
 the passions, where every feeling which can disturb the judgment or influence the 
 imagination ought to be extinguished, and no impression admitted but from the unerring 
 voice of truth and of law, which are the same to all men and on all occasions, which 
 bend not to the supplications of mere distress, because extreme or deplorable, nor the 
 clamours of the few, or the many, however overbearing in power, or terrific in threat, 
 however eager and violent in their calls for the sanction of judicial authority, or their 
 own wild and intemperate decrees. 
 
 ^ It will not be strange that I should feel something like apprehension, something like 
 dismay when.I behold the effect of this excitement in the immense multitude that throng 
 around, and the crowd assembled in this court. Many, no doubt, are brought here by 
 the most laudable motives, on a case the most solemn, affecting an individual in the 
 most tender part, involving every interest that can be dear to man. If any be here 
 with other views, I am sure they have seen, I am sure they will see nothing iii the con- 
 duct and decision of this cause, but what will convince them of this irrefragable truth, 
 that the liberties, life, reputation and property of every man, essentially and mainly 
 depend on the impartial administration of justice ; and this is true at all times, and 
 on all occasions, whatever passion or prejudice, or party spirit itself may whisper to 
 the contrary, or urge as an exception. On the impartial administration of justice, I 
 repeat, depend at all times and on all occasions, the liberties, life, reputation and pro- 
 perty of man, and in the very best of times, it is the best reliance, and only solid foun- 
 dation for the rights of all men. 
 
 In evil times, which sooner or later befall every community, it will be found the only 
 protection for the possessions of the rich against the grasp of the needy, and the violence 
 of the profligate ; the only safeguard and shield for the rights of the poor and oppressed 
 against the insolence of wealth and power ; may we not therefore indulge the hope, that 
 all men, of whatever sect or party, persuaded of this truth, which will be found more 
 apparent, the more it is reflected on, will bring to the altar of public justice their pas- 
 sions and prejudices, however warmly they may have excited the one, or closely they 
 may have clung to the other, as a tribute and willing sacrifice for their own good, and 
 that of their country. 
 
 From the nature and circumstances of this case, known as they were or would have 
 been, at the moment of this dreadful catastrophe, which we nil deplore, from the age 
 and relation of the deceased to the cause which produced the fatal event, the subject of 
 our present inquiry— the most unfavourable conclusions were made against my client. 
 The deceased was young, just emerging from a state of pupilage to a state of manhood, 
 glowing in all the bloom of youth and pride of strength, to behold him of graceful and 
 well-proportioned form, of athletic muscle and of nervous arm, in a moment stretched 
 lifeless on the ground, his heart's blood gushing in copious streams from his manly face 
 and heart, called forth the commiseration and regret of every beholder. These feeli.igs 
 
T. 0. selfridge's case. 429 
 
 almost as instantly changed to resentment against him who was supposed to have done 
 the deed — for of the hundreds, I may say thousands, who saw the last part of this tragic 
 scene, there are not ten, perhaps not five, who saw the whole transaction, and witnessed 
 the n cessity imposed on the defendant, with which he ,ould neither equivocate or com- 
 promise, of preserving his own life at eveiry expense to him who assailed it. And yet, 
 even of these, some hurried away by the impulses of the instant, and catching the con- 
 tagion of other men's passions, may have surrendered their judgment to their emotions, 
 and have joined with others in the general execration of the deed, and blaming the con- 
 duct of the defendant, have found or thought they found an apology for this strange 
 abandonment of their reason, by assuming the doctrine that no man can innocently spill 
 the blood of another. This is a position unsupportable by any law, human or divine; 
 contradicted by the nature of man, and the very purposes of his creation. I shall con- 
 tend, and 1 have too much respect for those I address, to doubt of proving, that every 
 individual has not only the right, but is in duty bound to defend his own life at every 
 hazard and expense of him who assaults it. — The principle of self-defence is founded in 
 the nature and the constitution of man; It is indispensable to, and insep.arable from his 
 character. It is not derived froiu books, nor from the institutions of civil society, 
 though they confirm it. It is born and created with us, co-existent with the first germ 
 of life ; conceived, felt, and apparent in the first dawn of our being, and continues the 
 same through all the stages, relations and conditions of human existence. Without this 
 right, and without its exercise whenever the occasion arises, man could perform no 
 duties, and enjoy no rights. He could not discharge even those duties imposed on him 
 by a state of nature, neither could he perform those duties and superadded obligations 
 created by, and incurred in a state of society. If this be true, and that it is, is so self- 
 evident that none will or can deny it, the consequence indisputably follows, that man 
 has not only a right, but is in duty, a duty which he owes to himself, society and his 
 Maker, bound to defend and protect his own life, by all the means in his power, at every 
 hazard and expense of the life of him who assaults him, and whatever the results may 
 be, they are imputable not to him who may destroy, but to him who imposed the neces- 
 sity. The institutions of civil society are made not only for the whole, but for every 
 part, as well as the whole, and to confirm those rights derived from nature, and which 
 are necessary for the performance of those duties imposed on man by the laws of that 
 civil society itself. The first and fundamental principle in every free government is, 
 that obedience to the government and protection to the subject are reciprocal, and 
 whenever statutes are made to abridge so essential and natural a right as that of self- 
 defence, they are bottomed on this condition implied, as strongly as if expressed in lan- 
 guage the most forcible, that the government can and will, by its laws, afford complete 
 and perfect protection. The civil and subordinate rights the subject is forbidden to 
 defend by force, because the laws of society hold out restoration if deprived of them, or 
 a fuU indemnity for the injury sustained by their loss. Now life once taken away can- 
 not be restored, and for the privation of being there is no indemnity. It follows 
 therefore tliat society acknowledges and admits, that every man is bound and ordered 
 to protect his own life, when the government cannot do'it for him, at every hazard and 
 expense of the life of him who assaults it. Vain and absurd, nay, impracticable would 
 be that statute which would demand of an individual to wait the formal and slow deci- 
 sion of a court of law, when the uplifted hand of violence was ready to end his days, to 
 sink him into tlie earth far beyond the reach of any earthly tribunal. I have said that 
 the laws of civil society admit and confirm this right of self-defence. They stop not 
 here — they go fnrther. The institutions of civil society authorize and justify a man in 
 taking the life of another who shall attempt to enter his house in the night. They jus- 
 tify the taking of the life of him who shall attempt to rob of the smallest mite of pro- 
 perty. The law excuses the man who shall take the life of another on an apparent, 
 though not real necessity of defending his own. 
 
 When I come to read to you some of the authorities I shall offer, and which contain 
 the law of our own country, you will be convinced that I have advanced no one princi- 
 ple which they do not warrant, nor do I, gentlemen, wish to extend them beyond their 
 fair import in behalf of the cause I defend. At present, my only object is, by proposi- 
 tions so plain, that they must command the assent of every human understanding, to 
 efface any erroneous impressions which may have been made in relation to the law on 
 this subject. 
 
 There is another important, though groundless charge and prejudice, against my 
 client, which I wish and trust to remove. It is founded on this fact, that he had in his 
 pocket a pistol with which he preserved his life, against a man who would have beaten 
 out his brains wiih a cudgel. An instrument, gentlemen, as effectual for the purposes 
 of death as a pistol, and if we take into view some considerations, far more so ; for the 
 pistol, once discharged, is useless against an assailant armed with a stick, and, unless 
 some vital part be struck by the bullet, can do no further injtiry. But a wrong blow 
 
430 APPENDIX. 
 
 ■with a cane may be rectified; a second may be given with more certainty; others may 
 be discharged, and discharged again and again, till the person bring his victim maimed, 
 disfigured and disgraced, dying and dead at his feet. 
 
 I wish to bring before you this single fact, the circumstance of wearing a pistol 
 distinct from any relation to the particular state of the defendant, or the reason which, 
 had the law been as is pretended, might and would have justified him in wearing an 
 instrument of this sort. There is no law written or unwritten, no part of the statute 
 or common law of our country which denies to a man the right of possessing or wearing 
 any kind of arms. I say there is no such law, and in every free society a man is at 
 liberty to do that which the law does not interdict, nor can the doing that which is not 
 forbidden be imputed as a crime. But it may be again said, as it has been already, 
 that possessing a pistol is evidence of malice. If it be lawful to possess and wear such 
 an instrument, it would be unjust in the highest degree to make it, unconnected with 
 anything else, evidence to change another act, lawful in itself,, into an act criminal and 
 unlawful. For instance, it ought not, and I trust would not, in the opinion of any 
 court or jury, change a justifiable homicide into manslaughter, or manslaughter into 
 murder. 
 
 I will attempt to illustrate this by putting one or two cases. Every man has a right 
 to possess military arms of every sort and kind, and to furnish his rooms with them. 
 Suppose a man occupying a house thus furnished, a neighbour comes in, and from some 
 warm conversation an affray ensues, the owner glance his eye on the sword, instantly 
 snatches it from the place where it hung and destroys his neighbour. But for this pos- 
 session it would, I presume, under such circumstances, be manslaughter ; can that pos- 
 session be so tinctured with criminality as to render this crime of manslaughter, murder ? 
 If so, do but alter the case : Suppose the visitor, not the occupier of the house, to cast 
 his eye on the sword, and to use the same instrument in the destruction of his opponent, 
 would he be guilty of manslaughter only? The like fact committed by one man would 
 then be murder, and by another only manslaughter. Can the mere circumstance of the 
 not being the owner of the instrument used, change the act from murder to man- 
 slaughter? 
 
 Further, a man about to travel a road infested with robbers, and knowing it is lawful 
 for him to kill another who attempts to rob him, arms himself with a pistol ; on the road 
 he is attacked by a person who means to rob him, on which, in the exercise of his right, 
 he uses his pistol, and destroys the life of the aggressor; if the having a pistol with 
 him be an argument against him, will not that which was a lawful act become an argu- 
 ment to prove it unlawful, and merely from having the precaution to supply himself 
 with what the law authorizes him to carry ? Again, suppose a man having occasion to 
 travel a road infested by robbers, and, for the purpose of defending himself and his 
 property, that he provides himself with a pistol; on the way to the road, or on the 
 road, or on his return from it, he is met by a person who attacks him without any 
 intention of robbing, but witlj- a view of assaulting his person only, makes an attack 
 with so much violence, that his life is brought into imminent hazard, on this he uses his 
 pistol and destroys his assailant.. Shall you draw, from the fact of his having a pistol, 
 for the just and lawful purpose of defence against one sort of violence, and using it to 
 another equally just and lawful, although not the object of his being so provided, an 
 argument to turn justifiable homicide into the crime of murder? A doctrine which 
 leads to such absurd consequences cannot be founded in truth or justice, and it is on 
 these principles that this cause must be determined. The quality of every act must be 
 according to the intention and design of the agent at the moment. It is by this inten- 
 tion and design that you must decide the quality of the act, not by the manner of doing 
 it or its event. So says our law, and so say the laws of God and of reason. For should 
 a, man have an instrument of death for an unlawful purpose, and be compelled to use it 
 for one lawful and just, it would be the extreme of injustice so to tincture this lawful 
 act by an unlawful intention, which was never executed, as to render that criminal 
 which was right and just in itself. For instance, suppose a man armed for the pur- 
 pose of a duel ; he meets in the way to the place of appointment a person who attacks 
 him, and in defence of his own life destroys the assailant. Can you say that the having 
 the pistol would make it a crime ? If you can say so, it would be to confound every 
 principle of law and justice: you would decide a lawful and just act to be criminal 
 merely because an unlawful act was intended, which could at the worst, be but a mis- 
 demeanor. I draw from these premises this inference, that you cannot make any 
 conclusion against Mr. Selfridge from the circumstance of his havmg a pistol about 
 him. It cannot be of the smallest weight. For if he had it with an intention that 
 was lawful, it cannot give an unlawful quality to this act of homicide. If he possessed 
 it for any other purpose not lawful, and used it for a lawful end, it will not alter this 
 lawful act. If then you shall be satisfied that the homicide committed was either justi- 
 fiable, or excusable self-defence, all presumptions which may arise from Mr. Selfridge's 
 
T. 0. selpeidge's case. 431 
 
 having a pistol with him, are totally destroyed, for presumptions are resorted to only in 
 the absence of express testimony. Wherever there is express evidence presumptions 
 are necessarily excluded ; otherwise you will go into the wide field of uncertainty when 
 you have certainty to rely on. If then you are satisfied from all the circumstances which 
 happened at the moment of acting, that it was a lawful act of self-defence, all further 
 inquiry is precluded, and much more so, all presumption or conjecture of unlawful 
 motives, from any preceding act. 
 
 For the purpose of enabling you fully to understand the nature of the charge against 
 the defendant, I shall read to you first from 3 Coke's Inst. p. 56. 
 
 " Manslaughter is felony, and hereof there maybe accessaries after the fact done; 
 hut of murder, there may be accessaries, as well before as after the fact." 
 
 "Some be voluntary, and yet being done upon an inevitable cause are no felony. As 
 if A. be assaulted by B., and they fight together, and before any mortal blow be given 
 A. giveth back until he cometh unto a hedge, wall, or other strait, beyond which he 
 cannot pass, then in his own defence, and for safeguard of his own life, killeth the 
 other, this is voluntary, and yet no felony, and the jury that find it was done se defen- 
 dendo, ought to find the special matter. And yet such a precious regard the law hath 
 for the life of man, though the cause was inevitable, that at the common law he should 
 have suffered death ; and though the statute of Gloucester save his life, yet he shall forfeit 
 all his goods and chattels. Hereof there can be no accessaries, either before or after 
 the fact, because it is not done felleo animo, but upon inevitable necessity se defendendo. 
 If A. assault B. so fiercely, and violently, and in such a place, and in such manner, as 
 if B. should give back, he should be in danger of his life, he may in this case defend 
 himself; and if in that defence he killeth A., it is se defendendo, because it is not done 
 felleo animo, for the rule is, when he doth it in his own defence, upon any inevitable 
 cause, Quod quis ob tutelam corporis suifecerit, jure id fecisse videtur." ' 
 
 I shall now call your attention to Foster's Crown Law, p. 273. 
 
 "Self-defence naturally falleth under the head of homicide founded in necessity, and 
 may be considered in two different views." 
 
 " It is either that sort of homicide se ei sua defendendo, which is perfectly innocent and 
 justifiable, or that which is in some measure blameable and barely excusable. The 
 want of attending to this distinction hath, I believe, thrown some darkness and confu- 
 sion upon this part of the law." 
 
 " The writers on the Crown law, who, I think, have not treated the subject of self- 
 defence with due precision, do not in terms make the distinction I am aiming at, yet all 
 agree that there are cases in which a man may without retreating, oppose force to force, 
 even to the death. This I call justifiable self-defence, they justifiable homicide." 
 
 "They likewise agree that there are cases in which the defendant cannot avail him- 
 self of the plea of self-defence, without showing that he retreated as far as he could 
 with safety, and then, merely for the preservation of his own life, killed the assailant. 
 This I call self-defence culpable, but through the benignity of the law, excusable." 
 
 "In the case of justifiable self-defence, the injured party may repel force by force, 
 in defence of his person, habitation, or property, against one who manifestly intendeth 
 and endeavoureth by violence or surprise, to commit a known felony upon either. In 
 these cases he is not obliged to retreat, but may pursue his adversary till he findeth 
 himself out of danger, and if in a conflict between them he happeneth to IdU, such kill- 
 ing is justifiable." 
 
 " The right of self-defence in these cases is founded in the law of nature, and is not, 
 nor can be, superseded by the law of society. For before civil societies were formed, 
 (one may conceive of such a state of things, though it is difficult to fix the period when 
 civil societies were formed,) I say, before societies were formed for mutual defence and 
 preservation, the right of self-defence resided in individuals; it could not reside else- 
 where ; and since, in cases of necessity, individuals incorporated into society cannot 
 resort for protection to the law of the society, that law, with great propriety and strict 
 justice, considereth them, as still in that instance, under the protection of the law of 
 nature." 
 
 "Where a known felony is attempted upon the person, be it to rob or murder, here 
 the party assaulted may repel force by force ; and his servant then attendant on him, 
 or any other person present may interpose for preventing mischief, and if death ensueth, 
 the party so interposing wiU be justified. In this case nature and social duty co- 
 operate." 
 
 There may, gentlemen, be some confusion in your minds from the expression " a 
 known felony." In order to do it away, and explain what is meant when the terms, " of 
 a known felony being intended," are made use of, I shall read some authorities to show 
 you that when there is, from circumstances, an apprehension of this tendency, the party 
 
 1 What every one doeth for the defence of his body, he aeemeth to do lawfully. 
 
432 APPENDIX. 
 
 is excused and may justify tlie killing his opponent. The first I shall advert to is from 
 East's P. C. 276. 
 
 " Other cases have occurred, -wherein the question has turned upon the apparency of 
 the intent in one of the parties to commit such felony as will justify the other in killing 
 him. As Mawgridge's case, who upon words of anger between him and Mr. Cope, threw 
 a bottle with great violence at the head of the latter, and immediately drew his sword: 
 on which Mr. Cope returned a bottle with equal violence; which, says -Lord Holt, it was 
 lawful and justifiable for Mr. Cope to do ; for he who hath shown that he hath malice 
 against another is not fit to be trusted with a dangerous weapon in his hand. The 
 words previously spoken by Mr. Cope could be no justification for Mawgridge; and it 
 was reasonable for the former to suppose his life in danger when attacked with so dan- 
 gerous a weapon, and the assault followed up by another act, indicating an intention of 
 pursuing his life : and this at a time when he was oif his guard, and without any warn- 
 ing. This latter circumstance forms a main distinction between that case and the case 
 of death ensuing from a combat, where both parties engage upon equal terms; for 
 there, if upon a sudden quarrel, and before any dangerous blow given or aimed at 
 either of the parties, the one who first has recourse to a deadly weapon, suspend his 
 arm till he has warned the other, and given him time to put himself on his guard; and 
 afterwards they engage on equal terms ; in such case it is plain that the design of the 
 person making such assault is not so much to destroy his adversary at all events, as to 
 combat with him and to run the hazard of his own life at the same time. And that 
 would fall within the same common principle which governs the case of a sudden com- 
 bat upon heat of blood, which has before been treated of" 
 
 In the same work, page 273, the author speaking of known felonies, says : — 
 
 "There seems, however, to be a distinction between such felonies as are attended 
 with force, or any extraordinary degree of atrocity, which in their nature betoken such 
 urgent necessity as will not allow of any delay, and others of a different sort, if no re- 
 sistance be made by the felon; and therefore a party would not be justified in killing 
 another who was attempting to pick his pocket. But if one pick my pocket, and I can- 
 not take him otherwise than by killing him, this falls under the general rule concerning 
 the arresting of felons. The above is further confirmed by the term known felony, 
 made vise of in our books, which contra-distinguishes it from secret felonies; and seems 
 to imply that the intent to murder, ravish, or commit other felonies attended with force 
 or surprise, should be apparent, and not left in doubt; for otherwise the party killing 
 will not be justified. It must plainly appear, says Lord Hale, speaking of a felonious 
 attack upon B. by the circumstances of the case, as the manner of the assault, the 
 weapon, &o., that his life was in danger, otherwise the killing of the assailant will not 
 be justifiable self-defence. 
 
 "Yet still if the party killing had reasonable grounds for believing that the person 
 slain liad a felonious design against him, and under that supposition kill him ; although 
 it should afterwards appear that there was no such design, it will only be manslaughter, 
 or misadventure, according to the degree of caution used, and the probable grounds for 
 such belief. As where an officer, early in the morning, pushed abruptly and violently 
 into a gentleman's chamber in order to arrest him, not telling his business, nor ut^ing 
 words of arrest; and the gentleman, not knowing that he was an officer, under the first 
 surprise, took down a sword that hung in the chamber, and stabbed him ; it was ruled 
 manslaughter at common law, though the defendant was indicted on the statute of stab- 
 bing. It is to be inferred from the form of the indictment, and what was said by Lord 
 Hale, that the bailiff had no offensive weapon in his hand, from whence the party might 
 reasonably have presumed that his life or property was aimed at ; and therefore there 
 seems to have been a manifest want of caution in not demanding the reason of such 
 intrusion by a stranger; especially as some interval must have elapsed before the sword 
 was taken down and drawn." 
 
 From this authority it will appear that the oflScer went into the room without any 
 weapon, and there could be no inference that he intended any bodily harm, yet it was 
 held manslaughter, but if he had had an offensive weapon, it would undoubtedly have 
 been excusable if not justifiable homicide; this would have been so on the apparent 
 attempt, and therefore if a man has reason to suppose any felony is to be attempted on 
 him, he has a right to defend his own life by taking that of his assailant. 
 
 I will now read a casO from the opinion of Powell, J., in Nailor's case. 
 
 " If A. strike B. without any weapon, and B. retreat to a wall, and then stab A., that 
 will be manslaughter, which Holt, C. J., said was the same as the principal cat-e, and 
 that was not denied by any of the judges, for it cannot be inferred from the bare act 
 of striking without any dangerous weapon, that the intent of the aggressor was so high 
 as the death of the party stricken, and without thei e be a plain manifestation of a felo- 
 nious intent, no assault, however vio'ont, will justify killing the assailant under 'the plea 
 of necessity." 
 
T. 0. selpeidgb's case. 433 
 
 It would seem here that if the party who kills was resisting a person who had a dan- 
 gerous weapon, it would be excusable homicide ; and Nailor's case, which has been 
 read to you by the solicitor general, turned on that principle; for though the prisoner 
 there was the first in fault, it is clearly inferable, that if the other who was killed had 
 had a dangerous weapon, it would have been justifiable homicide, and not manslaughter, 
 or at most, exciisable homicide. 
 
 On the same point as to the apprehension of a felony, I shall adduce the same autho- 
 rity, page 293. 
 
 " SawUns indeed says, that if a servant, coming suddenly, and finding his master 
 robbed and slain, fall on the murderer immediately and kiU him, it may be justified ; for 
 he does it in the heat of his surprise, and under just apprehensions of the like attempt 
 on himself. But he adds, that in other circumstances, (which must be understood 
 where he has no just reason to apprehend the like attempt on himself, and the fact is 
 not recent,) he could not have justified the killing of such a one, but ought to have 
 apprehended him. The fact will be either murder or manslaughter, according to the 
 circumstances above alluded to." 
 
 You have already heard, gentlemen, that a man has a right to defend his own habi- 
 tation, by taking the life of another who attempts to enter it feloniously. In the same 
 book from which I last read to you, it is laid down in page 321. 
 
 "In civil suits the officer cannot justify the breaking open an outward door or win- 
 dow, to execute the process : if he do, he is a trespasser, and consequently cannot be 
 deemed acting in the discharge of his duty. In such case, therefore, if the occupier of 
 the house resist the officer, and in the struggle kill him, it is only manslaughter. For 
 every man's house is his castle for safety and repose for himself and his family. And 
 it is not murder in this case, says Lord Hale, because it is unlawful in the officer to 
 break the house to arrest. Secondly, it is manslaughter, because he knew him to be a 
 bailiff. But, thirdly, had he not known him to be a bailiff, or one who came on that 
 business, it had been no felony, because done in his house. This last instance, which is 
 set in opposition to the second, must be understood to include at least a; reasonable 
 ground of suspicion that the party broke the house with a felonious intent ; and that 
 the party did not know, as in the second instance, nor had reason to believe that it was 
 merely a trespasser with a different intent." 
 
 I shall now quote another passage from the same book, of which, perhaps, you will 
 see the applicability as I read, though it may possibly strike you more forcibly after 
 you have heard the evidence. It is from page 278. 
 
 "If A. challenge B., who declines to fight, but lets A. know that he will not be 
 beaten, but will defend himself; and B. going about his occasions, and wearing his 
 sword, be assaulted by A. and killed, this is clearly murder. But if B. had killed A. 
 upon that assault, it would have been se defendendo, if he could not otherwise have es- 
 caped, or bare manslaughter, if he might and did not. But if B. had only made this a 
 disguise to evade the law, and had purposely gone to a place where it was probable he 
 should meet A., then it had been murder ; but herein the circumstances at the time of 
 the fact done, must guide the jury." 
 
 Thus, if the person who is threatened says, I " wiU not fight, but I will not be beaten," 
 and under these circumstances meets a man who attacks him, and in resisting that man 
 destroys him, it is justifiable self-defence, and that I take to be the law of this case. 
 
 In page 893, which I shall now read to you, you will find principles equally governing 
 the present occasion. 
 
 ' ' A mayhem or maim, at common law, is such a bodily hurt as renders a man less 
 able in fighting to defend himself, or annoy an adversary ; but if the injury be such as 
 disfigures him only, without diminishing his corporal abilities, it does not fall within 
 the crime of mayhem. Upon this distinction, the cutting off, disabling, or weakening a 
 man's hand or finger, or striking out an eye or fore-tooth, or castrating him, or, as Lord 
 Coke adds, breaking his skull, are said to be maims ; but the cutting olf his ear or nose 
 are not such at common law. But in order to found an indictment or appeal of mayhem, 
 the act must be done maliciously; though it matters not how sudden the occasion." 
 
 You have it in evidence, gentlemen, that the defendant's skull was attempted to be 
 broken, and as the authorities say, if a man be attacked by another with a view to com- 
 mit a felony, that is, a known felony, as the law terms it, he may take away the life of 
 the assailant. I .'shall now read a part of tlie same page, to show that a mayhem is a 
 felony. 
 
 "All maims are said to be felony ; because anciently the offender had judgment of 
 the loss of the same member, &o., which he had occasioned to the sufferer; but now 
 the only judgment which remains at common law is of fine and imprisonment." 
 
 I have quoted these last passages for the purpose of showing that breaking a man's, 
 skull is a mayhem, and that every mayhem is a felony. We shall give the most s.atis- 
 factory proof that the deceased intended to break the defendant's skull. 
 
434 APPENDIX. 
 
 From a book -which has been cited on the part of the government, I shall beg leave 
 to read a few lines; it is from 4 Blackstone's Com. 184. 
 
 In the same volume of the same learned author, p. 192, he says: — 
 
 " Manslaughter, therefore, on a sudden provocation, differs from excusable homicide 
 se defendendo in this : that in one case there is an apparent necessity for self-preserva- 
 tion, to kill the aggressor; in the other, no necessity at all, being only a sudden act of 
 revenge." 
 
 If, therefore, there was an apparent necessity, and if putting yourselves, gentlemen, 
 in the defendant's situation, you think there was a necessity of preserving his life by 
 taking away that of the deceased, it was done in excusable self-defence. 
 
 Manslaughter is a sudden act of revenge ; excusable self-defence, when there is an 
 apparent necessity ; though it may turn out not to be real, as was the case of the gentle- 
 man who was attacked in this room. 
 
 That this is the true distinction between manslaughter and excusable self-defence, I 
 refer to 
 
 1 Hale's Hist. P. C. 479. "Homicide se defendendo is the killing of another person in 
 the necessary defence of himself against him that assaults him." 
 
 "In this case of homicide se defendendo, there are these circumstances observable." 
 
 1. "It is not necessary that the party killed be the first aggressor or assailant, or of 
 his party, though commonly it holds." 
 
 "There is malice between A. and B., they appoint a time and place to fight, and 
 meet accordingly. A. gives the first onset, B. retreats as far as he can with safety, and 
 then kiUs A., who had otherwise killed him : this is murder, for they met by compact 
 and design, and therefore neither shall have the advantage of what they themselves 
 each of them created." 
 
 Ibid. 482. "In respect to the manner of the assault. 
 
 "If A. assault B. so fiercely that B. cannot save his life if he gives back, or if in 
 the assault B. falls to the ground, whereby he cannot fly, in such case if B. kiUs A. it 
 is se defendendo." 
 
 I will now support these positions from 1 Hawk. P. C. 113. 
 
 ^' And now I am to consider homicide se defendendo, which seems to be where one, who 
 has no ather possible means of preserving his life from one who combats with him on a 
 sudden quarrel, or of defending his person from one who attempts to beat him, (espe- 
 cially if such attempt be made upon him in his own house,) kills the person by whom 
 he is reduced to such an inevitable necessity. 
 
 "And not only he who on an assault retreats to a wall or some such strait, beyond 
 which he can go no further, before he kills the other, is judged by the law to act upon 
 unavoidable necessity ; but also he who being assaulted in such a manner, and such a 
 place, that he cannot go back without manifestly endangering his life, kills the other 
 without retreating at aU." 
 
 In the Queen v. Mawgridge, Kel. 120. "The jury found this special verdict: That 
 ■WiUiam Cope was lieutenant of the Queen's Guards in the Tower, and the principal 
 officer then commanding there, and was then upon the guard in the guard-room: And 
 that John Mawgridge was then and there, by the invitation of Mr. Cope, in company 
 with the said William Cope, and with a certain woman of Mr. Cope's acquaintance, 
 which woman Mawgridge did then affront, and angry words passed between them in the 
 room, in the presence of Mr. Cope, and other persons there present, and Mawgridge 
 there did threaten the woman ; Mr. Cope did thereupon desire Mawgridge to forbear 
 such usage of the woman, saying that he must protect the woman; thereupon Maw- 
 gridge did continue the reproachful language to the woman, and demanded satisfaction 
 of Mr. Cope, to the intent to provoke him to fight; thereupon Mr. Cope told him it was 
 not a convenient place to give him satisfaction, but at another time and place he would 
 be ready to give it to him, and in the meantime desired him to be more civil, or to leave 
 the company ; thereupon John Mawgridge rose up, and was going out of the room ; 
 and so going did suddenly snatch up a glass bottle full of wine then standing upon the 
 table, and violently threw it at him, the said Mr. Cope, and therewith struck him upon 
 the head, and immediately thereupon, and without any intermission, drew his sword, 
 and thrust it into the left part of his breast, over the arm of one Robert Martin, not- 
 withstanding the endeavours used by the said Martin to hinder Mawgridge from killing 
 Mr. Cope, and gave Mr. Cope the wound mentioned in the indictment, whereof he in- 
 stantly died. But the jury do further say, that immediately, in a little space of time, 
 between Mawgridge's drawing his sword and the giving the mortal wound by him, Mr. 
 Cope did arise from his chair where he sat, and took another bottle that then stood 
 upon the table, and threw it at Mawgridge, which did hit and break his head; that Mr. 
 Cope had no sword in his hand drawn all the while; and that after Mawgridge had 
 thrown the bottle, Mr. Cope spake not. And whether this be murder or manslaughter, 
 the jury pray advice of the court." 
 
435 
 
 In ^delivering the opinion of the judges upon this verdict. Holt, C. J., has the following 
 passage — page 128: — 
 
 " In the second place, I come now to consider whether Mr. Cope's returning a bottle 
 upon Mawgridge, before he gave him the mortal wound with the sword, shall have any 
 manner of influence upon the case; I hold not. First, because Mawgridge, by his 
 throwing the bottle, had manifested a malicious design. Secondly, his sword was drawn 
 immediately, to supply thei mischief which the bottle might fall short of. Thirdly, the 
 throwing the bottle by Captain Cope was justifiable and lawful; and though he had 
 wounded Mawgridge, he might have justified it in an action of assault and battery, and 
 therefore carmot be any provocation to Mawgridge to stab him with his sword. That 
 the throwing the bottle is a demonstration of malice, is not to be controverted ; for if 
 upon that violent act he had killed Mr. Cope, it had been murder. Now it hath been 
 held, that if A. of his malice prepense, assault B. to kill him, and B. draws his sword 
 and attacks A. and pursues him; then A. for his own safety gives back and retreats to 
 a wall, B. still pursuing him with his drawn sword, A. in his defence, kills B. This is 
 murder iu A. For A. having malice against B., and in pursuance thereof endeavouring 
 to kill him, is answerable for all the consequences of which he was the original cause. 
 It is not reasonable for any man that is dangerously assaulted, and when he perceives 
 his life in danger from his adversary, but to have liberty for the security of his own 
 life, to pursue him that maliciously assaulted him; for he that hath manifested that he 
 hath malice against another, is not fit to be trusted with a dangerous weapon in his 
 hand. And so resolved by all the judges, 18 Car. 2, when they met in preparation for 
 my Lord Morley's trial." 
 
 Having read to you, gentlemen, the authorities which confirm and go, indeed, beyond 
 the principles t stated, I will proceed, before I remark on the testimony adduced on the 
 part of the government, to call some witnesses which the gentlemen on behalf of the 
 commonwealth called, but did not choose to examine ; that we may obtain from them 
 the whole of the testimony respecting this transaction. 
 
 The first witness for the defence was — 
 
 John Bailey, sworn. — Testified that on the 4th of August, a little before one o'clock, 
 he saw Charles Austin pass down the street; afterwards pass up; return and take hia 
 stand directly in front of where witness was at work. Young Mr. Fales was with him ; 
 he carried in his hand a stick of an unusual size. Soon after saw defendant pass down 
 the street with his right hand in his pocket, and his left hanging down. When Mr. 
 Selfridge first came in sight, deceased was standing on the pavement in conversation 
 with Fales, and playing with his cane. The moment the defendant caught his eye, 
 he stepped quickly from the pavement into the street, toward the defendant, with his 
 cane raised, the upper, or largest end in his hand. The cane was uplifted and actually 
 descending, at the time the pistol was discharged. The biow was not' struck till after 
 the pistol was fired. The first blow was a long blow, and staggered the defendant; the 
 deceased struck four or five blows after the first. After the first blow, which was upon 
 defendant's forehead, he held up his hands to ward oif the blows, and, as they were re- 
 peated, he aimed a blow at the deceased with his pistol. There was the usual number 
 of persons on the exchange: when Austin left the sidewalk with his cane raised, no one 
 attempted to stop him. Had Mr. Selfridge pursued his course, and Mr. Austin stood 
 still, they would have passed at a distance of ten or twelve feet. 
 
 Zadock French, sworn. — Testified that about one o'clock on the 4th of August, saw 
 Selfridge coming around the N. E. corner of the old State house; he walked very deli- 
 berately, with his hands behind him, or under his coat. When opposite me, he turned 
 towards me ; at the same moment Austin stepped quickly towards him, from the pave- 
 ment, with his cane raised. He made towards him as a man would rush upon a wild 
 beast; defendant presented a pistol as if to defend himself. Austin struck the defend- 
 ant a blow on the head, and at the same instant the pistol was fired. The defendant 
 did not advance toward the deceased after he turned ; he stepped one foot back as if to 
 put himself in a posture of defence. After the fact, when the people cried out, ' ' Who 
 is the damned rascal, who did it," Mr. Selfridge said, "I am the man." The defend- 
 ant took hold of the cane after the firing of the pistol, but the deceased recovered it, 
 apparently with great ease. When Mr. Austin advanced on the defendant, the end of 
 the cane which he held, was even with his hip, and the other end elevated about to the 
 height of his shoulder. At the moment Mr. Selfridge turned, deceased was stepping 
 towards him. No time passed between taking out the pistol and firing it. The whole 
 was instantaneous. 
 
 Richard Edwards, sworn. — Testified the same as preceding witness — but was unable 
 to say whether, when he saw the cane elevated, it was descending to strike, or recover- 
 ing from a blow. Saw Mr. Selfridge raise his arms, but cannot say whether to give 
 blows or ward them off. The first blow was not so severe as some that followed. The 
 
 1 must have struck that or the shoul- 
 
436 APPENDIX. 
 
 der. Tho pistol glistened so, that I saw it very plainly. It was four or five seconds 
 after I had seen him walking with his hands behind him, that I saw the pistol in his 
 hand; the deceiisou was then rapidly advancing towards defendant, with his stick raised 
 to his shoulder. 
 
 Zadock French, recalled —After the first blow, and the pistol was discharged, the de- 
 ceased struck several blows. Defendant, finding the blows repeated, struck at deceased 
 with his pistol. Mr. Austin made a mis-step, and sallied two or three paces down the 
 street, when defendant threw the pistol at him, which missed its aim. When Mr. Sel- 
 fridge had hold of the cane, the deceased recovered it with great ease ; he took it with 
 as much ease as a man would from a boy. 
 
 William Fales, sworn. — Testified as to the whereabouts of the deceased on the day of 
 his death, prior to his meeting with defendant; and continued, when Austin left the 
 sidewalk, my back was toward the street. He moved very rapidly; Selfridge was 
 standing with his face toward the post-office; deceased was opposite to him, with his 
 cane raised. Cannot say that » blow was given before the pistol was fired. Did not 
 see the pistol till it was thrown. The parties, when I first saw them, were three or 
 four feet apart. The deceased stated, before the meeting with the defendant, that so 
 long as he remained connected with the college, he could not, consistently with that 
 connexion, talce any notice of tlie publication of the morning, hut that after he left 
 college, neither T. 0. Selfridge, nor any one else, should asperse his fathej- with impu- 
 nity. He usually carried a rattan, except when he walked to Cambridge, when he fre- 
 quently carried one as large as the one he then had. He was eighteen years of age, 
 tall, but not stout, and was not called strong. 
 
 Horatio Bass, sworn. — Testified to the same facts as the preceding witness. It was 
 impossible for him to say which was first, the blow •ith the cane, or the pistol shot. 
 Could not say that the first blow hit Mr. Selfridge. After the pistol was discharged, 
 Mr. Austin struck three or four heavy blows with his cane, and Mr. Selfridge struck 
 two or three times at Mr. Austin's face with his pistol, but cannot say that he hit him. 
 Mr. Austin sallied, and defendant threw his pistol, which passed the deceased without 
 hitting him. 
 
 John Erving, sworn. — Saw Austin with his cane raised, moving rapidly, but not run- 
 ning, towards defendant, who had his arm lifted as if to parry a blow. He took a pistol 
 from his right-hand pocket, and fired under his arm. The first blow, and the firing of 
 the pistol, seemed to be at the same instant. At the fourth blow, Selfridge caught hold 
 of the stick ; Austin recovered it, and fell immediately afterwards. The blows were 
 heavy. 
 
 William Shaffer, sworn.— About a quarter past ten o'clock in the morning of the 4th 
 of August, Mr. Charles Austin came into my shop, and picked out a cane ; he bent it, 
 tod asked me if.it was a strong one, and would stand a good lick — it was a good piece 
 of hickory — heavy for hickory. He had usually bought small India joints. Had sold 
 canes to him for about six months. He had bought as often as one a-week, and always 
 small bamboos. 
 
 Lewis Glover, sworn. — Was present at the affray — saw a young man step quickly from 
 the sidewalk, with his cane lifted. Selfridge had his hands behind him, but quickly 
 turned ; when deceased came up to Mr. Selfridge he struck him on his hat ; while he was 
 aiming tie second blow, Selfridge presented a pistol and fired it. Had a fuU view of 
 the whole transaction ; was within fifteen feet of the parties, and kept my eye on them 
 steadily. Am confident there was one blow before the pistol was fired ; the blow before 
 the pistol was fired was a violent one, sufficient to knock down a man who had no hat on. 
 Austin struck three or four blows after the first, before he fell. Went on 'change with 
 expectation of seeing an aifray. There were a good many persons upon 'change— there 
 were not many near the spot— none between me and the parties. If there were words 
 spoken before the blows, I did not hear them; there was not much time for words — 
 the thing was done instantaneously. Did not observe the hat was broken from the first 
 blow. 
 
 John C. Warren, sworn.— Called on the evening of 4th of August, to visit defendant; 
 found large contusion on the forehead of defendant, about the middle of it ; it was three 
 inches in length, two in breadth, and one in depth ; think the skin was not broken 
 through. Defendant must have received the blow through his hat. The centre of the 
 blow was about the turn of the forehead, part in front, and part under the hair. Wit- 
 ness was asked, if such a blow, in his opinion, would probably have fractured the skull, 
 had not the hat intervened. Objected to — objection sustained. 
 
 Lewis Glover, recalled.— Defendant's hat was on at the time of the first blow ; de- 
 ceased struck directly upon the hat. 
 
 Dr. Warren, recalled.- Cannot say whether the blow would have fractured his skull 
 or not. It was on a part of the skull very liable to fracture. The wound was about the 
 middle of the forehead— not a wound, but a contusion only. At college defendant was 
 
T. 0. selfridge's case. 437 
 
 fepble in musoulnr strength, more so than any young man of his size in his class ; — had 
 no knowledge of his haying lost the use of his limbs by sickness. 
 
 William Ritchie, sworn, — Have the hat Mr. Selfridge wore — received it from him in 
 prison. It is broken on the edge of the crown, in front. I saw the hat was broken 
 before we left the street. When defendant went into my house, I took the hat, examined 
 it, and found it as I have described. Was near the Fire and Marine Insurance office, 
 heard some one exclaim, "Selfridge has shot Austin" — heard the pistol — ran to the 
 spot, and saw the parties engaged. Selfridge's hands were raised — whether to strike 
 or ward, I cannot say. When I got to Mr. Townsend's shop, Austin had fallen. De- 
 fendant said four or five times, "I am the man." When I observed to him that he was 
 agitated, he said, "Not so much as you are." Mr. Selfridge desired that the people 
 might be told that he was going to my house. 
 
 Duncan Ingraham, sworn. — On the evening before the fatal occurrence, Mr. Selfridge 
 was at my house in Medford. I desired him to get an execution for me, on a judgment 
 he had obtained for me. He agreed to give it me on 'change the next day. 
 
 Dr. James Jackson, sworn. — Saw defendant in prison on the evening of the 4th — ex- 
 amined his wound — it was three inches long, near two wide, and elevated above the sur- 
 face of the skin about half an inch ; skin broken near the centre ; it was bleeding when 
 I saw it. If he had had a hat on, it would have covered the j)art where the blow was 
 received. Knew health of defendant was very feeble — he told me he had lost the use 
 of his limbs, but do not recollect that he expressed any fear of the return of the com- 
 plaint. 
 
 Dudley Pickman, sworn. — Testified that Mr. Lane was sitting within his shop, when 
 the report of the pistol was heard, he then rose and went to the door, and I followed 
 him. Saw Selfridge with his hands raised to ward off the blows that the deceased was 
 giving. I went out of the door directly at Lane's back. 
 
 John Brown, sworn. — Knew that Selfridge in the early part of his life, lost in a great 
 measure, the use of his limbs, before he went to college. As far as I knew him, was 
 always a weak and feeble young man. 
 
 Dr. Isaac Hand, sworn. — Testified in regard to the wound on defendant's forehead, 
 the same as prior witnesses. A fortnight afterwards there were still very visible marks 
 of the blow. This witness gave much evidence as to the probable effect of the blow 
 upon defendant's forehead; and the nature of the blow upon the deceased relative to 
 its influence upon his muscular action, immediately upon the wound being received. 
 
 Warren Dutton, Esq., sworn. — Testified as former witnesses, as to the position of de- 
 fendant's hands immediately before hearing the report of the pistol. Could not say, 
 however, whether they were folded behind him or under his coat. 
 
 Lemuel Shaw, Esq., sworn. — Testified to obtaining a writ of possession in favour of 
 Duncan Ingraham, from defendant, while in prison ; did not recollect the date of writ. 
 Occupied the same office with Mr. Selfridge. Did not recollect seeing any pistol in his 
 office on the day of the affray. Defendant had kept, many months before, a pair of 
 pistols in his desk. Was in the office when he went on 'change. Did not leave the 
 office till I heard the report of the pistol; defendant usually rests his hands by folding 
 them either behind or before him, or supporting them in the arm-holes of his jacket. 
 Thinks the pistol presented in court, one of those which defendant kept in his desk. 
 
 Henry Cahot, Esq., sworn. — Testified to notifying defendant that he was to be attacked. 
 This was inferred from a conversation with Mr. Welch. Told defendant he was to be 
 attacked, I thought, by some bully; from having seen a stout, athletic person, with a 
 horsewhip in his hand, standing near defendant's office. Defendant gave me to under- 
 stand that he was ready, or something to that effect. Do not recollect his words. 
 
 John Brooks, sworn. — Saw defendant going down towards, the exchange — was walk- 
 ing slowly, with his hands hanging loosely behind him, outside of his coat — saw his 
 hands — he had no pistol in them — lost sight of him when one-third across the street, — 
 his hands were behind him, without a pistol, as long as I saw him. 
 
 Mr. French, recalled. His right hand was in his pocket, his left held up. I am clear 
 I saw him put his hand in his pocket and take out the pistol. 
 
 Some witnesses were here called for the commonwealth, whose testimony is as fol- 
 lows: — 
 
 Wm. Donnison, Jr., sworn. — Testified to deceased being known to defendant. Austin 
 was always neat in his dre?s and person — about eighteen years old — noticed that de- 
 ceased had a new stick on the morning of the 4th of August — deceased said he had pur- 
 chased it that morning. I knew he had broken his own stick the Saturday before. 
 Never saw him with so large a stick before. 
 
 Rev. Charles Lowell, sworn. — Saw Mr. Austin on the day he died; was introduced to 
 him at the house of Captain Prince, that morning. Had some conversation with him, 
 he appeared to be a pleasant young man. I left him there — it must have been about 
 the middle of the day, a little before noon. The Attorney General here made a motion 
 
438 APPENDIX, 
 
 that evidence' be admitted to prove that the defendant's threatening to defend himself, 
 was from his intent to draw the father of the deceased, or his family and friends, into 
 mortal combat. No opinion on the legality of the evidence given by the court, but evi- 
 dence admitted. 
 
 Jonathan Hastings, sworn. — Saw deceased on the day of the affray. Saw defendant 
 after hearing the report of the pistol. Mr. Ritchie had hold of defendant, requesting 
 him to go away. Defendant said, "I am not at all agitated — I am the man." 
 
 Hugh Rogers Kendall, sworn. — A little past one o'clock on 4th of August, in passing 
 State street, heard the report of a pistol — turning, saw Selfridge and another engaged; 
 he was striking Selfridge with a cane. Saw the pistol in Selfridge's hand. Mr. Austin 
 struck two pretty smart blows ; the two or three which he struck afterwards, were faint. 
 As Austin fell, it appeared that defendant struck him with his fist. 
 
 Israel Eaton Glooer, sworn. — Lived with defendant in his office. On Saturday before 
 the affray he sent me to buy some lead, but I did not get it. He then gave me 4Jrf. to 
 buy some shot, he said it was no odds what sort. I bought the money's worth — it was 
 small shot. Was in the office on Monday ; defendant came to town between nine and 
 ten o'clock. Saw no pistol in the office on the day of this affair, but had before. There 
 used to be two of them ; for about three or four weeks there was one missing. I saw 
 Mr. Selfridge put the shot in his pocket. U.^ually go home to dinner at one o'clock. 
 Went home that day just before one, not more than three or four minutes. I went out 
 and came in again; Selfridge said, "Is it not time for you to go to dinner?" I said, not 
 quite. He said I might go. Have seen powder in Mr. Selfridge's office : some time be- 
 fore, a man brought some to the office. 
 
 Thomas Welch, Esq., sworn- — Defendant requested me on Tuesday, 29th July, to deliver 
 to Benjamin Austin, Esq. , a letter, of which the following is a copy, which I did on that day. 
 
 Mr. BssJAMiif Austin, Boston, 29th July, 1806. 
 
 Sir: — My friend, Mr. Welch, will deliver you this note, and receive any communica- 
 tion you may see fit to make. 
 
 You have to various persons, and at various times and places, alh ged, "that I sought 
 Mr. Eager, and solicited him to institute a suit against the Committee (of which you 
 were Chairman,) who provided the public dinner on Copp's Hill, on the fourth of July," 
 or language of similar import. As the allegation is utterly false, and if believed, highly 
 derogatory to any gentleman in his professional pursuits, who conducts with fidelity to 
 his clients, integrity to the courts, and with honour to the bar: you will have the good- 
 ness to do me the justice, forthwith, to enter your protest against the falsehood, and 
 furnish me with the means of giving the same degree of publicity to its retraction, that 
 you have probably given to its propagation. I had hoped the mention of this subject 
 to you yesterday, would have spared me the trouble of this demand ; — that twenty-four 
 hours would have enabled you, without difficulty, to have obtained correct information 
 as to the fact; and that a just sense of propriety would have led you to make voluntary 
 reparation, where you had been the instrument of injustice: — The contrary, however, 
 impresses me with the idea, that you intended a wanton injury from the beginning, 
 which I never will receive from any man with impunity. 
 
 I am, sir, your humble servant, [Signed,] Tuo. 0. Seltkidge. 
 
 Mr. Austin, after reading the letter, observed that he could say nothing further tlian 
 he had to Mr. Selfridge, yesterday. The next morning Mr. Austin met me, and ob- 
 served that he had made inquiry concerning the truth of the report, and was convinced 
 of its falsity; that he had been to those persons to whom he had mentioned it, for the 
 purpose of removing the unfavourable impression which the report, if true, would make. 
 He observed that it was not true that he had used Mr. Selfridge's name. I stated to 
 Mr. Selfridge on my return, what I have just related. He replied that his name had 
 been used, and that which Mr. Austin stateil was not ti-ue. The same day, July 30th, 
 I saw Mr. Austin, and told him that Mr. Selfridge was not satisfied with the result of 
 the conversation of the morning; and that he conceived he had a right to demand of 
 him the means of counteracting the effects of the falsehood. He answered that he en- 
 tertained a different opinion, and did not think anything more could reasonably be 
 expected of him. On Thursday, 31st of July, I was prevented from calling on Mr. 
 Austin with a letter, of which the following is a copy, and which was not delivered till 
 the next day. 
 
 July 30th, 1800. 
 Me. B. Austin, 
 
 Sir:— The declarations yon have made to Mr. Welch are Jesuitically false, and your 
 concession wholly unsatisfactory. 
 
 You acknowledge to have spread a base falsehood against my professional reputation. 
 Two alternatives, therefore, present themselves to you; either give me the author's 
 
T. 0. selpridge's case. 439 
 
 name, or assume it yourself. Tou call the author a gentleman, and probably a friend. 
 He is in grain a liar and a scoundrel. If you assume the falsehood yourself to screen 
 your friend, you must acknowledge it under your own hand, and give me the means of 
 ■^indicating myself against the effect of your aspersion. 
 
 A man who has been guilty of so gross a violation of truth and honour, as to fabri- 
 cate the story you have propagated, I will not trust ; he must give me some better 
 pledge than his word for present indemnity, and future security. The positions I have 
 taken are too obviously just to admit of any illustration, and there is no ingenuous mind 
 would revolt from a compliance with my requisitions. 
 
 I am sir, your humble servant, 
 
 [Signed,] Tho. 0. Selfridge. 
 
 As soon as he read the letter, he observed that he did not expect to hear from Mr. 
 Selfridge again ; that he had done all which could be reasonably expected of him in the 
 matter. He stated that he had nothing more to say, and would give no further satis- 
 faction. This I communicated to Mr. Seltridge, who said that he would not relinquish 
 the pursuit until the foul imputation which had been cast upon him was removed ; that 
 his means of redress were reduced to a triple alternative, a prosecution, chastise- 
 ment, or posting. The first he said was too tardy, and failed to reach the extent of the 
 injury; the second, from his imbecility, was impracticable; and his only remaining 
 alternative was posting. The following is Mr. Selfridge's note, published in the Boston 
 Gazette of August 4th. 
 
 Benjamin Austin, loan officer, having acknowledged that he has circulated an infa^ 
 mous falsehood concerning my professional conduct in a certain cause, and having re- 
 fused to give the satisfaction due to a gentleman in similar cases — I hereby publish 
 said Austin as a coward, a liar, and a scoundrel ; and if said Austin has the effrontery to 
 deny any part of the charge, he shall be silenced by the most irrefragable proof. 
 Boston, iih August. Tho. 0. Selfridge. 
 
 P. S. The various editors in the United States are requested to insert the above 
 notice in their journals, and their bills shall be paid to their respective agents in this 
 town. 
 
 About nine o'clock on Monday morning, the 4th of August, Mr. Austin met me ; he 
 said "he should not meddle with Selfridge himself, but some person on a footing with 
 him should take him in hand." I saw defendant on Sunday at Medford, he never 
 expressed a vindictive spirit against Mr. Austin, he wished to have the matter accommo- 
 dated. I always conceived that Selfridge wished Austin to sign something, to show 
 that he had circulated a falsehood. There was a total refusal on the part of Mr. Austin 
 to put anything on paper. 
 
 Benjamin Austin, Esq., sworn. — Met Mr. Selfridge about the 20th or 22d of July, in 
 Court street ; he came to me and said he understood from Captain Scott, I had used his 
 name improperly. I replied that I had never made use of his name. As we went down 
 the street, Mr. Selfridge said that it was an injury to his character. I said I had con- 
 versed with Mr. Scott, but as his name was not mentioned, it could not affect his cha- 
 racter. On the 28th or 29th of July, I received from Mr. Welch the letter which has 
 just been read. After I had read it, I went to see Mr. Scott, and asked him if 1 had 
 used Mr. Selfridge's name. He said I had not. Mr. Welch appeared perfectly satisfied. 
 A few days afterwards I received another letter, which was also brought by Mr. Welch. 
 I then asked what more was wished for. Mr. Welch answered that the contradiction 
 1, li only been made verbally, and Mr. Selfridge wished me to sign a paper. I told him 
 1 did not know that I could do anything more than I had done. He asked me if that 
 was my only answer. "I said, I do not know of any further that I can make." He went 
 away, and I heard nothing more of the business till I saw the publication in Monday's 
 paper. Mr. Welch mentions that I said I would get some one to handle Selfridge ; I 
 said no such thing. I had no thoughts of assaulting him. I appeal to God, he would 
 have passed me as safely as he stands here at your bar, I saw my son on 'change four 
 or five minutes before the event took place. I did not expect him there ; I never said 
 a word to him on the subject of this dispute. My son usually walked with a small 
 cane, but he had one with which he used to walk to Cambridge, twice as large as the 
 one produced. Do not recollect that Fales told me my son struck Selfridge before the 
 pistol was fired. 
 
 Thomas Melville, Esq., sworn. — I was in Mr. Lane's shop at the time of the occur- 
 rence ; heard the report of the pistol, and asked what it was. Lane replied that it was 
 Mr. Selfridge, he has killed a man. I asked if it was Austin; he said "No, it was 
 some young man, whom he did not know." I went into the street and saw Selfridge; 
 went up and tapped him gently on the shoulder, and desired him to go away. He an- 
 swered me civOly, that he had no intention of going away. In Mr. Lane's shop, the 
 
440 APPENDIX. 
 
 street door and the shop door both fall together, so that standing in either, one can see 
 directly across the street. Lane was standing full in front of the street door. 
 
 Henry Flagnor, sworn. — Mr. Lane was standing at the front door, he had been sit- 
 ting ; but before the pistol was fired he had gone to the door. 
 The following witnesses were called by the defendant's counsel: — 
 Daniel Seott, sworn. — Mr. Austin told me that a federal lawyer had been to thy tavern 
 keeper, to persuade him to institute a suit against the Committee. He did not state 
 the lawyer's name, but I understood from what was said, that it was Mr. Selfridge. 
 Mr. Austin mentioned after this, that he had received one or two letters from Mr. Sel- 
 fridge, but would take no notice of them. 
 
 Abraham Babeock, sworn.— On the 28th of July saw Mr. Austin. He inquired of me 
 how Mr. Selfridge came to be employed in this matter. I told him I did not know. He 
 replied that he sought it, or went after it, I can't say which expression he used. I told 
 Selfridge what Austin had said. Selfridge requested me to give him this in writing, 
 which I declined to do ; he made a minute of it himself. This was about a week before 
 the affray. 
 
 Deacon Warren (called by the prose -.ution,) sworn. — I was in the street, and heard 
 the report of the pistol ; turned and saw the young man strike defendant several blows 
 with a cane. Afterwards heard Selfridge say he was not going to leave; he was ready 
 to answer for what he had done. 
 
 Nathaniel P. Russell (by prosecution,) sworn. — Heard Mr. Austin say that the action 
 was commenced by a federal lawyer, at his own solicitation ; heard no name mentioned, 
 but was led to believe it was Selfridge that was meant. Never heard Mr. Austin con- 
 tradict this. 
 
 Daniel Scott, recalled. — When Mr. Austin mentioned this matter, he did not say it in 
 a ligljt and trifling manner. 
 
 M. Carroll. — I was opposite the post-office; heard a pistol fired behind me, and ran - 
 'round to see what was the matter ; saw Selfridge and Ritchie together. Ritchie said 
 to Selfridge that he was extremely agitated, to which defendant replied, "I am not agi- 
 tated — I have done what I intended to do, or meant to do." 
 
 Benjamin Austin, recalled. — Never told any one that I had destroyed the letters sent 
 from Mr. Selfridge. I went to the Insurance Office, and there made a declaration that 
 I had been misinformed as to the circumstance about the federal lawyer. Mr. Scott 
 told me I had not used Mr. Selfridge's name. 
 
 John Osborn, sworn. — Was at B. Austin's on the evening of the 4th of August. 
 Heard young Fales tell Mr. Austin that he was in State street with young Mr. Austin 
 and some other gentlemen ; on a sudden, young Austin stepped from them. He then 
 turned round and saw Mr. Austin strike the defendant one blow, and then the pistol 
 was discharged. Benjamin Austin was present, and attentive to the conversation, and 
 asked many particulars. Do not recollect that this statement was made more than 
 once. 
 
 Perkins Nichols, sworn. — Testified to hearing young Fales tell Mr. Austin that his 
 son had said, "I must be in State street;" that he urged him to give up his cane; but 
 that he refused. Remainder of testimony same as preceding witness. 
 
 John Parkman, sworn. — Heard Fales say, about five minutes after the event, that 
 there was one blow before the pistol was fired. Am certain he said so. 
 
 William Fales, recalled. — I believe Mr. Parkman's relation is pretty correct. Do not 
 recollect seeing these gentlemen at Mr. Austin's in the evening; was much confused and 
 agitated. Am not able now to say whether the blow was before or after the pistol was 
 fired. I have testified according to the best of my recollection and belief. 
 
 James T. Austin, Esq., sworn. — Was at Mr. Austin's in the evening — everything was 
 in great confusion; we could get no distinct account from Mr. Fales. Remember he 
 said deceased had struck several blows, but do not recollect any distinction being made 
 between blows before and after the pistol-shot. 
 
 Joseph Wiggin, s worn.— Was on 'change ; saw deceased there with a cane. Saw Selfridge 
 come 'round the corner of the State house. Heard a sound as of a stick struck upon a 
 coat; turned and saw defendant present his pistol and fire at deceased, who afterwards 
 struck two or three blows more. Was about two rods from the place. 
 » James Cutler, sworn. — The Gazette is printed in my office ; the note, " Austin posted," 
 was printed at the request and on the account of Mr. Selfridge. I hesitated about 
 publishing it. He wished it delayed until the last moment, until we should have seen 
 his friend, Mr. Welch. On Sunday I called on Mr. Welch, he told me nothing had 
 been done ; and gave me no direction about omitting to print the note. 
 
 Ephraim French, sworn. — Saw Selfridge coming from the State house, walking very 
 deliberately. Young Austin went from near where I was standing. As he advanced 
 towards Selfridge I saw the pistol go off. I should say that the pistol was one or two 
 seconds before the first blow was struck. Did not see any cane raised before pistol was 
 
T. 0. sblfridge's case. 441 
 
 fired. I looked particularly at Mr. Selfridge from the time he came in sight. After 
 he had tired he held up his hands to defend his head, and afterwards threw the pistol. 
 No person stood between me and the parties ; I saw them distinctly, haTing gone out 
 of the shop before they met. 
 
 Eber Eager, sworn. — This witness's testimony went to disprove any improper solici- 
 tation of the suit against the Committee, by the defendant. 
 
 Mr. Gore then proceeded in the foUowuig manner; 
 
 May it please your Honor, andyou gentlemen of the Jury. — After having made a few pre- 
 liminary observations which I thought pertinent, merely with a view to placing you in 
 a. situation, in which I presume you are disposed to be placed, that of being free from 
 every bias or prejudice ; and I in the like manner, wish to be heard, as the Attorney Gene- 
 r.al said he was disposed to be heard, that is, as if this were a cause between two indif- 
 ferent persons of whom you know nothing ; for that I presume to be the very essence of 
 justice ; and if it were possible that a court and jury should ever decide the suit before 
 them, abstracted from the parties, and merely by tidtitious names, we should have de- 
 cisions more correct than we now have ; not that I mean to find fault with our own juris- 
 prudence, or the organization of our courts, but it is sometimes impossible to be unaf- 
 fected by the parties who are to be benefited or to suffer. It was therefore that I took 
 the liberty to remark on the danger of prejudice, and to illustrate it by proposilions so 
 simple and plain, that they wovild receive the assent not only of the minds to which di- 
 rected, but of every human being to whom they could be addressed. The consequences 
 that followed were so natural and necessary, that they could not be mistaken, and I did 
 flatter myself, and I do flatter myself that they apply to the cause I now defend. 
 
 Having stated the law, from the several authorities which I have read in support of 
 the principles I laid down, I went into the examination of the evidence, and you have 
 heard it with an attention and patience which will enable you to determine this issue 
 according to the dictates of impartial justice. 
 
 This is a day of anxiety and solicitude to my client, and of interest to his counsel ; yet 
 I can say that it is "a day of humble hope and tranquillity ; a day of firm confidence in the 
 truth and justice of his case, for it is on these that he must depend for his acquittal, 
 and on these alone does he wish to depend. I should say, this was to him a day not 
 only of consolation, but of joy, if joy could be presumed to enter the heart of a man who 
 for more than four months has been immured within the damp and unwholesome walls 
 of a prison, when his constitution demanded free and open air, who required liberty for 
 the discharge of the usual duties of life, but who felt himself at that time subject to the 
 most unfounded calumny, yet would not from his respect to the laws of his country reply ; 
 for though he could have replied, he did not. No speeches were made, no observations 
 were addressed to the public, except to request that they would not prejudge his cause, 
 but wait patiently for the time when he might have it in his power to state fairly to the 
 world, the law and facts of his case ; when he would put himself on trial by his country, 
 which country, you, gentlemen of the jury, are ; and it is now on that law and on those 
 facts, as they shall be laid before you, that he is willing to depend for his acquit'.al. With 
 respect to the law, it is my duty, and I have no disposition to go beyond it, to state the 
 principles as they have been read to you from the books ; to ascertain what it is in this , 
 case, and when that is done, to state the facts, that you may apply the one to the other, 
 and come to a just issue. The law I read to you, is not of this day ; it is not novel, or of 
 recent date. It is older than any of us, older than society, old as nature herself. It is 
 founded in nature and in the principles of society, and without it man could not exist. 
 
 Of the authorities that were read, one of the first was from Lord Coke, who says, that 
 if A. assault B. so fiercely and violently, and in such place and in such a manner, that 
 if he should give back he should be in danger of his life, B. may defend himself, and if 
 in that defence he killeth A. it is se defmdendo, because it is not done felleo animo. The 
 rule is, Quod quia oh tutelam corporis suifecerit. Jure idfecisse videtur. That is, whatever a 
 man does in preservation of his person he does not do feloniously. This I take to be the 
 sense of the doctrine laid down by Lord Coke. 
 
 I took the liberty of reading another authority from Grotius ; one of the first and 
 brightest ornaments of the age in which he lived, who has done more for civilizing and 
 humanizing the world, than any author who ever wrote ; who has written more forcibly 
 and efiFectually on the rights of man and in support of the religion of Jesus, than perhaps 
 any divine however celebrated. What says he ? He says that if a person be in danger 
 of life, or losing a limb, or a member, especially one of the highest consequence, and it 
 be even doubtful if he can survive the loss, and there be no probability of avoiding it, 
 the criminal person may be lawfully and instantly slain. 
 
 We then come to Judge Foster, one of the ablest judges that ever sat on a British 
 bench ; he tells you, that the injured party may repel force with force, in defence of his 
 person, habitation, or property, against one who manifestly endeavours, with violence 
 and surprise, to commit a known felony upon either : in these cases, he is not obliged to 
 
442 APPENDIX. 
 
 retreat, but may pursue his adversary, till he find himself out of dang sr; and if in the 
 conflict he happen to kUl, such killing is in justifiable self-defence. 
 
 You have the same doctrine laid down by Lord Hale, who was one of the best and 
 most humane of judges, as well as one of the most devout Christians that ever appeared. 
 Both he and Hawkins support the same doctrine ; and in Hawkins it is further said, if 
 the party assaulted cannot conveniently and safely retreat, and if he kill the^ assailant to 
 avoid this beating, it is justifiable homicide. This is the law from those writers. 
 
 The next is Blackstone, whose doctrines have never been controverted. He tells you, 
 that the party assaulted must flee, as far as the fierceness of the assault will permit him, 
 for it may be so fierce as not to allow him to yield a step without manifest danger of his 
 life, or enormous bodily harm, and then in his defence he may kill his assailant. _ He 
 does not put it on the question of life being in danger, but says, that where a mnn is in 
 danger of any enormous bodily harm, he is not to wait till the case has happened, but 
 has a right to kill his assailant. This forms the law of justifiable homicide, and is the 
 doctrine of universal justice, as well as of our municipal law. 
 
 Thus, gentlemen, I have shown from the books the principles that govern in relation 
 to ju-tifiabie homicide. I will now read one or two cases which more perfectly establish 
 this doctrine, and show what is the nature of the assault, that justifies the assaulted in 
 taking the life of the assailant. 
 
 In Mawgridge's case, who upon words of anger between him and a Mr. Cope, threw a 
 bottle with great violence at the head of the latter, and immediately drew his sword, on 
 which Mr. Cope returned a bottle with equal violence, Lord Holt says, it was lawful for 
 Mr. Cope so to do, for he who hath shown that he hath malice against another is not 
 fit to be trusted with a dangerous weapon in his hand ; and he adds, it was reasonable 
 for Mr. Cope to suppose his life in danger when attacked with so dangerous a weapon, 
 and the assault followed up by another act indicating an intention of pursuing his life. 
 
 It appears to me that this case justifies him who shall kill, where a weapon is used 
 which would endanger his life, though it have not the eifect ; and that the person assaulted 
 has a right to attempt the destruction of the assailant, that he himself might not be de- 
 stroyed. You there have the particular case. This case will depend on the law of ex- 
 cusable homicide. It therefore is not necessary to have recourse to such as are so strong 
 as that I have read. The law says, that if there be reasonable ground to suspect that 
 life is in danger, a man shall be excused, if he exercise the right nature has given him 
 to destroy and take away the life of him, by whom his own has been endangered. 
 
 As to Nailer's case, I do not mean to contradict it, any further than it is contradicted 
 by the doctrine I state. You recollect, gentlemen, that it was a case, where a son, in 
 consequence of hearing a scuffle between his father and brother rose from his bed, threw 
 his brother on the ground, fell upon him and beat him ; that while in this situation, he was 
 undermost, not being able to escape or avoid the blows he received, he gave his brother a 
 mortal wound with a penknife. This was ruled to be manslaughter, because the prisoner 
 was, in the first place, in the wrong, as much so as any man can be who offends against 
 the law of society and of nature by fighting with his father ; and further because he was 
 not necessitated from the attack of his brother, which brother was without any weapon 
 in his hand, to have recourse to such violent means for defence ; because also he was in 
 a wrong act, and then made use of a mischievous weapon. For, says the book, from 
 the manner in which he was attacked, there was no reason to believe his life ever was 
 in danger. But had he been attacked with a dangerous weapon, then he would have 
 been clear of crime. The law will not countenance a man in destroying his assailant, 
 unless there be a reasonable ground to believe that his life or person is in imminent danger ; 
 and whether it be so or not, may be determined from the circumstance of the weapon, 
 whether it appeared to be such a one, with which life might be destroyed. 
 
 On this apparency of intent and reasonable ground of apprehension that life was in 
 danger, was determined the case of the servant, who coming up found his master robbed 
 and slain, and instantly killed the murderer. Although not attacked himself, yet on 
 account of the apprehension which it was supposed he might be under of being at- 
 tacked, and his own life put in danger, it was held, excusable homicide. — This is the 
 principle on which some writers defend the authority given by the law of destroying the 
 robber who demands your purse ; because the same man who comes to rob, would, if 
 necessary for his purpose, take your life. 
 
 Further, if an officer, going to arrest a man in a civil suit, break into a house, which 
 he is not justifiable in doing, and the person within kill him, knowing him to be a bailifl", 
 it is manslaughter; but, adds the .authority, if he had not known him to be a civil officer, 
 the breaking in would have afforded a reasonable ground of suspicion that it was done 
 with a felonious intent, and of course excusable homicide. 
 
 There was another case read to you which it is important perhaps to notice. It is 
 that of the officer who entered the chamber of a gentleman who was in bed, on which 
 he sprang out of bed, seized a sword, and ran the officer through the body. This was 
 
443 
 
 determined to be manslaughter. Because he did not use sufiSoient caution, and because 
 the officer had no -weapon in his hand, for had tliere been any, that cireumirtance might 
 have led the gentleman to think there was a felonious intent in entering his room, and 
 then it would have been excusable homicide. 
 
 It will be important, gentlemen of the jury, for you to keep these doctrines in your 
 minds when you come to consider this case on the evidence. It will be incumbent on 
 you to further fecoUect the decision of Mawgridge's case as to excusable homicide, as 
 distinguished from manslaughter. If I recollect aright, the true criterion between homi- 
 cide in chance medley upon self-defence and manslaughter is, where both parties are 
 actually iighting at the time when the mortal stroke is given, the slayer is guilty of man- 
 slaughter; but if the slayer had not begun to fight, or having begun had endeavoured to 
 decline any further struggle, and aferwards, being closely pres.-ed by his adversary, kill 
 him, to avoid his own destruction, this is homicide excusable in his own defence. Man- 
 slaughter therefore on a sudden provocation, differs from excusable homicide se defendendo 
 in this, that in the one there is an apparent necessity, for self-preservation, to kill the 
 aggressor ; in the other there is no necessity at all, being only a sudden act of revenge, 
 and then it is manslaughter, 
 
 This distinction I wish you, gentlemen, to keep in your minds when you come to ex- 
 amine this particular case. 
 
 Having stated the law as I conceive it to be, as, on reflection, it will be found to be 
 supported by the books which have been read, and as it will, I presume, be given to you 
 by the court, — I now come to state the facts, for it is my duty only to state the facts as 
 they have appeared in evidence, without arguing upon them. — In doing this, although I 
 do not mean to go into a critical examination of the testimony you have heard from some 
 of the witnesses, nor in the least to question their veracity, yet there is a fitness and pro- 
 priety that some of them should be laid out of the way. I mean Mr. Lane. And though 
 I have not the slightest intention of impeaching his character, yet it is manifest from 
 the whole current of the testimony delivered, that Mr. Pickman must have been right, and 
 Mr. Lane, as well as the other witnesses who were examined in support of his evidence, 
 mistaken. Because Mr. Lane says that the transactions he testified to, were on the brick 
 pavement, when all the other witnesses, as well as Mr. Pickman who was with him, say 
 the scene was in the middle of the street. I shall say no more on this point. It would 
 be wasting time to suppose you can attach the least weight to the testimony of Mr. Lane. 
 On that of Mr. Howe, I have only to beg you will compare it with that of the other wit- 
 nesses ; because, as the first time he saw the parties together, was when they were on 
 the brick pavement, he could not have seen the first blow and the earlier parts of the 
 transaction ; he could not have witnessed all those ingredients, which go to enable you 
 to make a just conclusion from the whole ; he could not have seen those circumstances 
 which took place before the firing. 
 
 On the previous circumstances which have been detailed to you, I mean the misunder- 
 standings that have taken place between the defendant and Mr. Benjamin Austin, the 
 father of the deceased, it is not necessary to say much. I shall merely ask you to con- 
 sider the statement made to you by the witnesses examined. It is from them only that 
 I wish you to judge of the serious provocation received. — You have the testimony of 
 Messrs. Babcock, Scott, and Eussell, as to expressions used by Mr. Austin, and the 
 manner in which they were delivered. It is by putting yourselves in the situation in which 
 these witnesses stood, that you must examine the force of Mr. Austin's expressions. Mr. 
 Scott so perfectly understood the meaning of Mr. Austin, that he went to Mr. Selfridge 
 to communicate it; and permit me to say, that whatever took place at that time, if from 
 the general apprehension of yourselves, you think it was applicable to Mr. Selfridge, 
 you will believe and suppose it to be true, that Mr. Austin meant to charge Mr. Selfridge 
 with being the damned federal lawyer, who had solicited the action ; and in a court of law 
 it cannot but be believed it was as high a charge as could be made ; it amoxinted to a 
 criminal offence, for it was that he went about stirring up and soliciting suits. You saw 
 Mr. Scott on the examination stand, and have to decide whether he did, or could believe 
 it was Jlr. Selfridge that was meant. The story from Mr. Austin is that he had con- 
 tradicted the report to the very persons to whom he mentioned it. Mr. Scott says that 
 he never did ; Mr. Russell, who also heard the imputation, and knew, it appears, how 
 it was intended to be applied, says that Mr. Austin never did contradict that fact. The 
 conduct then of the defendant in demanding a written recantation from Mr. Austin must 
 appear, I trust, to have been perfectly justifiable and warranted from the general charge 
 against him. He did not persist in his demand of reparation more pertinaciously than 
 wh.it in duty to himself and family he was bound to do. He asked only for the means of 
 proving that Mr. Austin himself had acquitted him from the charge he had made against 
 him, as he found Mr. Austin would not do it himself. This satisfaction was refused. 
 You have it in evidence that he never received any thing like a satisfaction, which a man 
 of honour in his profession, or as a man of any decent standing in society could be satisfied 
 
444 APPENDIX. 
 
 with. For, there is not the smallest evidence that there was a contradiction of the re- 
 port, but only an evasion. Mr. Austin did not contradict the charge that he had made ; 
 he merely said that he had not used the name of Mr. Selfridge ; this too, was not done hy 
 way of disavowal to the man himself to whom he had said it ; and was, from the very 
 manner, rather a confirmation than denial. Having thus acknowledged that he had not 
 used the name of Mr. Selfridge, Jlr. Austin satisfies his conscience that he had made 
 every amends. Can any honourable man say that he had, when Mr. Russell and Mr. 
 Scott say that he never had contradicted it to them ? When asked, " Did you contradict it 
 to Mr. Babcock ?" he in the first place says that he heard it from Mr. Babcock, and that 
 this was after the suit was brought. I shall not enlarge on this point ; I refer you to 
 the evidence for Mr. Austin's behaviour. His own testimony is against him. Can you 
 then have any doubt that Mr. Selfridge persisted more than he ought to have done in 
 requiring Mr. Austin to contradict in writing what he had circulated ; because, said Mr. 
 Selfridge, I find that when you say you have contradicted the assertion in person, these 
 very people to whom you say you have done it, declare it has not been done. Was it 
 then honourable in Mr. Austin to refuse giving to the defendant a written acknowledg- 
 ment, that the report was without foundation ? I put it to you, gentlemen, if you had 
 stated to various persons, from misinformation, that which bore hard on the character 
 of any one, and you were asked to give a note in writing that you were misinformed, 
 would either of you have refused that small and honest avowal ? No ; I know you too 
 well to think it ; for I know that no honourable man could or would refuse it. For where 
 I have undesignedly done an injury, by spreading a false report of another, would I not 
 fly to retract it, that I might make reparation as much as I could, and even put it in his 
 power to show that he was right and I in error ? Examine whether there was, through- 
 oul^the whole, a desire in the defendant for Mr. Austin to do anything more than to 
 enable him to have this retraction, that it might be in his power to use it for his own 
 justification. He says, in his conversation with Mr. Welch, that his only motive in moving 
 in the affair, was to rescue his professional conduct from imputation. That he could 
 not relinquish this pursuit ; but before he adopted other measures, he would leave Mr. 
 Austin a day or two to reflect. Was this the language of a man who sought revenge ? 
 No, it was that of a calm and mild expostulation, asking redress for an injury sustained. 
 I shall say no more on this part of the testimony, than to observe, it rests with you ; if 
 you give credit to Mr. Austin, you must believe Mr. Welch tells a falsehood ; you must 
 believe that Eager Eussell and Scott, all tell falsehoods, or are most strangely, not to 
 say grossly mistaken. You cannot, I say, believe the relation of Mr. Austin, unless you 
 believe that all these persons are mistaken. — I now come to the motives and to the con- 
 duct of the defend.ant on this unhappy day. If you are of opinion that there was no 
 felonious intent on the part of Mr. Selfridge, at that time, then you cannot find him guilty 
 of manslaughter, because manslaughter must be committed with a felonious intent. If 
 there were no felony in his mind, no crime in his heart, he must be decided by your ver- 
 dict to be an innocent man. — I wish now to trace the conduct of Mr. Selfridge on that 
 day : — You find there had been a suit prosecuted by him, in which he was by the desire 
 of Captain Ingraham to sue out an execution, and to deliver it to him on 'change. Cap- 
 tain Ingraham is positive that he told the defendant on Saturday or Sunday evening, to 
 get the execution ; and that he himself went twice to the exchange for the purpose of 
 receiving it from Mr. Selfridge. You have therefore the very reason why the defendant 
 went there ; when in the common practice of his profession, it would be natural to go on the 
 exchange in the general course of business ; but here is a particular piece of business to 
 meet a person by appointment ; there can therefore be no doubt, that he went there for 
 that purpose, and for that only. 
 
 In the conversation with Mr. Richardson, the defendant said, he could not confine 
 himself; that his business was of a peculiar nature, and that he must go about it as 
 usual. Perhaps he recollected at the time, that he was to go out on special business, 
 and that was the reason why he spoke to Mr. Richardson as he did. When this took 
 place with Mr. Richardson, he h.ad no idea of the affray which afterwards happened. It 
 is hardly possible, if he had entertained the smallest intention of provoking a quarrel, 
 that he should not have mentioned it in conversation to Mr. Welch and Mr. Richardson, 
 persons who were his intimate professional acquaintances. After Mr. Selfridge left his 
 office, you find him walking on exchange, in as calm and deliberate a manner as ever he 
 did in his life ; and if any of you, gentlemen, have ever observed Mr. Selfridge walk, you 
 must recollect that he does hold his hands in walking, exactly as the witnesses have de- 
 scribed ; for it is the natural position of a man who would wish to aid the debility of his 
 body ; and the manner in which Mr. Selfridge is stated to have walked, gives the exact 
 description of the walk of a weak and feeble man. — From the testimony ofl'ered, you will 
 farther find, and particularly by the evidence of Brooks, (for I wish to trace the defend- 
 ant down to the Exchange) that he is clear Mr. Selfridge's hands were behind him, and 
 not in his pocket. Mr. Brooks stood at Clark's shop, and observed Selfridge from the 
 
T. 0. selfridge's case. 445 
 
 moment of his entering State Street. He must therefore have seen the position of his 
 arms best. Some of the witnesses suppose that his hands were in liis pocket ; tliis was 
 a mistake that might easily arise from not having a full view of his body. It would be 
 difficult in some kinds of coats which have the pockets behind, to ascertain whether the 
 hands were actually in them or not; but Brooks who saw him pass first in the front, and 
 then in the rear, must be the best qualified to determine what was the actual situation of 
 the defendant's hands. Irwin tells you that his hands were behind him ; that in this 
 position he came down the street, but that when Austin came out from the side walk, 
 Mr. Selfridge held up his left hand, as if to guard his head, took his right hand from 
 behind him, put it into his pocket, drew out a pistol, extended his arm, and tired. — Take 
 this with the testimony of French, Bailey, and Shaw, who received from the defendant 
 the execution he sued out at the request of Mr. Ingraham, and the current of evidence 
 from other witnesses ; for on thete facts it is, that you have to determine, and if you 
 must judge from the weight of evidence, and decide according to the number of witnesses, 
 you can have no doubt that the defendant, instead of going to meet an affray, was going 
 down to the E.^change on special business, with his hands behind him, and walking 
 very deliberately, when he was assaulted by young Austin. To further prove that he 
 could not have gone to seek this insult, you will please to recollect that he went with 
 his face looking towards the Branch Bank, and not towards the place where the deceased 
 was. When in this situation, judge you whether a man with, as you are told, the sun 
 in his eyes, and his hat flapped or slouched over them, could have seen Mr. Austin, who 
 stood wiih his back against Jlr. Townsend's shop. It is manifest that Mr. Selfridge could 
 not, from the course he was taking, have looked that way, and it is in evidence that he 
 did not bear towards Mr. Townsend's shop, till obliged, from the violence of young Aus- 
 tin's attack, to turn to defend himself. Some say that he stepped back, others, that 
 he turned around to do this. 
 
 It wo\V;d seem that, when the defendant had got a little to the southward of the mid- 
 dle of the street, the unfortunate young man rushed out and made an attack upon him. 
 Let us, for the purpose of ascertaining this, now compare the testimony. Lewis Glover 
 states to you, that he went into State street that day for the express purpose of seeing 
 what would take place, supposing there would be an aflray between Mr. Selfridge and 
 some other person, in consequence of the publication in the Gazette. He says he took 
 a station where he had a full view of the defendant, as he came down the street; that 
 he walked very deliberately, with his hands behind him; that Austin went from the 
 pavement with a quick pace, directly against Selfridge, with his cane uplifted, and gave 
 the defendant one violent blow, and as he was giving the second, Selfridge fired. If 
 you believe this, there was, before the discharge of the pistol, as violent a blow given 
 as could be struck by an athletic young man, directly on the defendant's head. This 
 witness's credit stands totally unimpeached, even if alone; but is it not corroborated? 
 Mr. Edwards also was in expectation of some affray, and stopped before Mr. Town- 
 send's shop. He saw Mr. Selfridge walking in a direction that would have brought 
 him on the brick pavement near the Branch Bank, when a person brushed by him, and 
 got near the middle of the street, with a stick in his hand; he adds, that it was 
 uplifted, but whether in the attitude of giving or receiving a blow, he could not say; 
 but that the cane descended, and the pistol was fired at the same instant. You have it, 
 however, in evidence, that just before, something caught the eye of Mr. Edwards, and 
 he turned his head to Mr. French. Does not this interval afford time for the first blow 
 deposed to by Glover? Were there no other testimony but that delivered by these two 
 witnesses, would not this of Edwards be the strongest corroboration of that of Glover? 
 Would you not, on giving a due credit to both, say that his evidence is confirmed by 
 the statement of Edwards ? Consider the situation of the parties ; — Selfridge coming 
 down the street, pursuing a course that would have taken him to the left of Austin, to- 
 wards the Branch Bank — as soon as Austin perceived him, he changed his stick from 
 the left to the .right hand, and brushed by every one with a quick pace. Consider the 
 distance between him and Selfridge, the few paces that intervened; that Mr. Austin 
 was running on the defendant, as you have been told, as if he was going to attack u, 
 wild beast; that he sprang from the pavement and rushed on him, when it was not pos- 
 sible for Mr. Selfridge, whose hat was over his eyes, and when his hands were behiBd 
 him, to guard himself before a blow could have been given. The circumstances of the 
 case render the testimony of Glover so connected, as not to leave you a possibility of 
 doubting it, and unless what is testified be contradicted, you cannot reject it; but if it 
 be of such a nature that it can be reconciled with, and is supported by circumstances 
 and other evidence, you cannot but believe it. See how this is established more and 
 more by every comparison. Wiggin says that he was in State street also, for the pur- 
 pose of seeing anything that might take place ; that he was conversing about young 
 Austin and Selfridge ; that he saw Mr. Austin with a stick in his hand, and Selfridge 
 coming down the street, that he looked round for Austin after having seen Mr. Sel- 
 
446 APPENDIX. 
 
 fridge, and while hia eye was thus momentarily directed, he heard a Mow. Can you 
 account for this, and the other blow which followed, unless there was one given before 
 the pistol was fired? Mr. Wiggin could not have been deceived, when all his attention 
 was awake for the purpose of observation ; and he saw, when the pistol was fired, the 
 hand descending again. There is a corroboration as strong as possible, of this fact, that 
 a blow was given before the discharge of the pistol, from the testimony of Bailey and 
 French. They tell you the assault was as violent as possible, and that they could not 
 tell which was first, the blow or the firing of the pistol. Now, if their eyes were turned 
 aside but for an instant, there can be no dou^t but that this evidence is true, and that 
 they did not see the whole of the transaction. From some of the testimony, it appears, 
 that in wounds of this kind, the strength is very great, and the muscular action quicker 
 and more sudden. Do not these circumstances go to corroborate the statement of Mr. 
 Glover, and to account for the instantaneous act of the blow, and discharge of the pistol ? 
 
 It is but fair to draw this conclusion, that, when witnesses testify positively to a fact, 
 which other persons might not have seen, but which is neither contradicted by, nor 
 contradicts the testimony given by others, to believe that what was seen by some of the 
 witnesses, might have escaped the observation of the others. Because, if you do this, 
 you give credit to each party, without supposing either to have sworn falsely. 
 
 I now come to the testimony of Mr. Fales. I mean not by any means to discredit 
 him. I believe him to be an honourable young man; nor has anything that has taken 
 place caused me to doubt it. I, however, do believe, that when a transaction is recent 
 and fresh, the impressions are stronger than at a future day. I need not contend for 
 a proposition like this. There is no reason to suppose that he could then tell what was 
 untrue. He relates that there was some conversation between young Austin and him- 
 self about the cane, from which you will draw your own conclusions. It appears, how- 
 ever, that he had some apprehensions about his friend's having this cane, for he asked 
 young Austin to give it him, and he states that, when at Townsend's shop, the deceased 
 brushed by him, and went towards Mr. Selfridge. He further tells you, and tells you 
 very candidly, that he cannot tell which was first, the blow, or the firing of the pistol. 
 
 When you see the sensibility of this young gentleman, who could not but be agitated 
 on the occasion, when he was deceived and deluded by his friend, who had told him he 
 was not on this errand, could he be unruffled, calm, and unagitated ? Surely not, for 
 even at our time of life, when the nerves are hardened — when we are not so liable to 
 be agitated as a young man like Mr. Fales, should we see a person spring forward to 
 do that which we should so earnestly wish he was not going to do, would we not feel 
 agitated and alarmed? Had he any motive on earth not to declare the actual fact? 
 Had he any occasion to prevaricate? None. Would you, Gentlemen of the Jury, oi 
 would you not, believe what he said at that time ? Can you think he did not then feel 
 every disposition to speak in favour of his friend, who lay bleeding and dead on the 
 spot he had left? He must have had every feeling alive to the memory of his friend, 
 and would have been happy to raise it, in the estimation of those he addressed. It is 
 but natural that he should. But it is not in nature that he should wish to say anything 
 against him. How then can you account for the answer ? It was the undisguised voice 
 of truth at a moment when she could be the least concealed, in answer to a distinct and 
 positive question. It is on that answer that I would rely, and it is on that that you 
 will, I trust, also rely. Look to the further declarations of Mr. Fales on this unhappy 
 occasion. In the course of the evening, when Mr. Benjamin Austin must have felt all 
 that resentment which a parent may be supposed to feel against the man who had taken 
 the life of his son ; when he could not wish to hear hia child deemed the aggressor ; when 
 Mr. Fales could not have wished to plant a dagger in a father's bosom ; when he must 
 have gone to the house of Mr. Austin with far different intentions ; when he went to 
 administer balm and consolation to an aged and afflicted parent ; when it might, with- 
 out impeaching the character of Mr. Fales, be well supposed, he wished to hide the 
 truth, but truth must be told. What was it that he then answered to iwfather's ques- 
 tion ? " Your son struck a blow first — a violent blow, before tjie pistol was fired." Had 
 Mr. Fales the least motive on earth to represent his friend's conduct as infiuenced by the 
 spirit of a bravado, or to give that colour to the transaction ? Mr. Nichols went and made 
 a memorandum of the words. You therefore have this fact fully in evidence. There was, 
 then, every motive but that of truth, to tell a different story. From the representations 
 made by the friend of the deceased at the very hour of his death ; from his answer tc 
 an inquiring and afflicted parent, you have the testimony of Glover most fully and com- 
 pletely corroborated. There must necessarily have been one violent blow first, and oi 
 the second blow descending, the pistol was fired. Thus then stands the evidence ol 
 this important fact ; you have to it, tlie positive testimony of Glover, corroborated by thai 
 of Edwards, and of Wiggin, by a circumstance as strong, as if he had seen the blow, foi 
 he heard it. You have it corroborated, not only by the first declarations of Mr. Fales, 
 but from probability arising from the manner in which he delivered his testimony whe.: 
 on the stand. 
 
T. 0. selfridge's case. 447 
 
 This then was the situation of the defendant, ho was going down State street, not only 
 on his just and ordinary l)usiness, but on a special agreement to meet a client there for 
 a particular purpose. True, he had notice that some person was to be hired to destroy 
 or attack him. It may have been said that he could have gone to a magistrate and ob- 
 tained the protection of the laws of his country, and have taken security for keeping the 
 peace. I agree that this would have been a fair answer to the question of, what could 
 he do ? If Mr. Cabot had said, young Austin is to attack you ; speaking as I do in a 
 court of justice, it was, under such a circumstance, his duty to have done so. But it 
 was not so said to him, it was merely mentioned to him that some person was to be hired 
 or employed to destroy or beat him. Ho had it not then in his power to avail himself 
 of the protection of the law by taking security; for he did not know by whom he was to 
 be assailed. It became then, as the laws of his country could not afford him protection, 
 a duty in him to protect his own life by all the means in his power. The particular pur- 
 pose for which he had the pistol in his pocket I know not. What it was is not fuUy in 
 evidence. But the plain fact is this, that the defendant, with a pistol in his pocket, was 
 going down to the exchange on business, and was met by a man coming upon him like 
 a person attacking a wild beast ; a blow was struck on his head which would have frac- 
 tured his skull had it not been for the hat which he had on. What did nature, what did 
 law and reason prompt him to do on such an occasion? Was it not to make use of every 
 means in his power to defend himself? Let me here ask what were these means? You 
 have heard accounts of his debilitated state, his total want of muscular strength. He 
 could not have defended himself by his hands; he could not have got out of the way, for 
 he was unable to fly. You have it in evidence that Austin was on the run; he could 
 not have even turned round without receiving two or three blows, perhaps fatal ones. 
 What then could he do ? that only which he could do in defence of his life. The only 
 remaining thing he had to do, was what he was compelled to do. He took his pistol 
 from his pocket, and, after having received one blow, killed, as he was receiving another, 
 the assailant who would have killed him. This is the defence we make to the charge 
 against Mr. Selfridge. This we contend to be the legal and proper one of justifiable 
 homicide to preserve his own life. If this be unwarrantable, our defence is gone. But 
 if nature, if reason, if instinct impel every created being, when attacked, to make use of 
 all the means in his power to defend his life and person, you cannot adjudge this to have 
 been unlawful in the defendant, without reducing every one that is assailed by a ruffian 
 to this dreadful alternative, of perishing by the hand of violence, or by the verdict of a 
 jury. After this was done Mr. Selfridge defended himself by holding up his hands. 
 Some say he struck; I must say, that from the testimony, it appears to me he did not. 
 But allowing that he did, it was natural that he should do so. He threw his pistol, it 
 is true, but whether at the deceased or not does not appear. The person says it was 
 thrown at his head, and Howe teUs us it rolled towards Mr. Russel's printing ofBoe. 
 
 The conflict over, no violence was seen on the part of Mr. Selfridge. Nothing bar- 
 barous, nothing even like anger or rage. He went forward as if exhausted, and leaned 
 against Mr. Townsend's shop. Some cried out, who is the rascal that has killed him? 
 " I," said the defendant, " am the man. I mean not to go away. I know what I have done, 
 and am ready to answer for it to the laws of my country." Mr. Melville came up to him 
 and said, " You ought not to go away. " "I do not intend to," was still the answer. When 
 other persons, seeing a crowd assembled, and violence talked of, advised him to retire, 
 he went off, sending for the ofiicers of justice, that he might be ready to answer to the 
 laws of his country, if he had oS'ended against them. He desired Mr. Bourne to let Bell 
 be informed where he was to be found. This was the conduct not of guilt, but of con- 
 scious innocence. It is attempted to be done away by saying, that he was to have dined 
 with Mr. Bell ; but could any man, especially a lawyer, after an act of this sort, have 
 imagined that he might take his dinner, without interruption, in a public house ? — There 
 can be no doubt, therefore, that he told where he was to be found by the sheriff of the 
 county. True, he went away, but not to fly. It was in that awful moment, as in this, 
 that he appealed from the passions of the people to their judgment, from their imagi- 
 nations to theii- reason, from their feelings to their sense of justice, from their violence 
 to his country. You, gentlemen of the jury, are that country. — It is not possible to con- 
 ceive any motive to do this act, but what arose from necessity, imposed at the very in- 
 stant, it is hardly in evidence, that Mr. Selfridge knew this unfortunate young man. 
 
 If there be any feelings of revenge to gratify, would he have gone on the Exchange to 
 indulge them? No, he would have sought some other opportunity. And what was his 
 behaviour there? He was tranquil and calm. — Look at his after conduct. It was not 
 the result of hardness of heart, but of that conscious innocence which protects the man 
 unpolluted with sin, when every friend flies from him ; which in the hour of terror and 
 disma,y, whispers comfort and consolation to his soul ; for the heart which knows no crime, 
 can be tormented with no remorse. — This, gentlemen, is, I believe, the whole of our story. 
 I am not permitted, by the rules of the court, to go into argument on the facts. I have 
 
448 APPENDIX. 
 
 barely stated the law; not what are my notions of it, but from the books. I took espe- 
 cial care not to state the case before the witnesses were examined. For it was not my 
 wish to exaggerate or diminish. I meant to place it on the ground of the efidence itself, 
 and to leave, without any appeal to the passions, your minds open to receive the fair 
 impressions from testimony I have attempted to recapitulate.- Having said nothing but 
 what they testified, I have done all the duty which in this state of the case, I am at liber- 
 ty to perform. I therefore leave the defendant with you, barely stating my own con- 
 viction, as a lawyer, a Christian, and a man, that he has committed no offence, either 
 against the law of society, of religion, or of nature. That he has not against the law 
 of society, I bottom myself on the authorities which have been read. That he has not 
 against the laws of religion, I infer from the duty which every created being owes to Him, 
 who in his beneficence brought us into existence, to defend life, by all means in his power. 
 Not against the law of nature, for whatever theorists, or speculative men may say to the 
 contrary, yet, when the alternative arises, whether a man must fall, or whether it must 
 be he who assaults him; whether he must sacrifice all his duties to God, to religion, and 
 to society, or put to death the man by whom he is assailed, nature would assert her pre- 
 rogative, the aggressor must die, and the innocent man remain alive. 
 
 Mr. Dexter. — May it please your honour, and you, gentlemen of the jury. — It is my duty 
 to submit to your consideration some observations in the close of the defence of this im- 
 portant and interesting cause. In doing it, though I feel perfectly satisfied that you 
 are men of pure minds, yet I reflect with anxiety, that no exertion or zeal on the part 
 of the defendant's counsel can possibly insure justice, unless you likewise perform your 
 duty. Do not suppose that I mean to suggest the least suspicion with respect to your 
 principles or motives. I know you to have been selected in a manner most likely to 
 obtain impartial justice; and doubtless you have honestly resolved, and endeavoured to 
 lay aside all opinions which you may have entertained previous to this trial. But the 
 difficulty of doing this is not perhaps fully estimated; a man deceives himself oftener 
 than he misleads others; and he does injustice from his errors, when his principles are 
 all on the side of rectitude. To exhort him to overcome his prejudices, is like telling a 
 blind man to see. He may be disposed to overcome them, and yet be unable, because 
 they are unknown to himself. When prejudice is once known, it is no longer prejudice, 
 it becomes corruption ; but so long as it is not known, the possessor cherishes it without 
 guilt ; he feels indignation for vice, and pays homage to virtue ; and yet does injustice. 
 It is the apprehension that you may thus mistake — that you may call your prejudices 
 principles, and believe them such, and that their effects may appear to you the fruits of 
 virtue ; which leads us so anxiously to repeat the request, that you would examine your 
 hearts, and ascertain that you do not come here with partial minds. In ordinary cases 
 there is no reason for this precaution. Jurors are so appointed by the institutions of 
 our country, as to place them out of the reach of improper influence on common occa- 
 sions ; at least as much so as frail humanity will permit. 
 
 But when a cause has been a long time the subject of party discussion — when every 
 man among us belongs to one party or the other, or at least is so considered — when the 
 Democratic presses throughout the country have teemed with publications, fraught 
 with appeals to the passions, and bitter invectives against the defendant ; — when on one 
 side everything has been done that party rage could do, to prejudice this cause ; and on 
 the other, little has been said in vindication of the supposed offender ; though on one 
 occasion I admit that too much has been said ; when silence has been opposed to cla- 
 mour, and patient waiting for a trial to systematic labour to prevent justice ; — when the 
 friends of the accused, restrained by respect for the laws, have kept silence, because it 
 was the exclusive right of a court of justice to speak, — when no voice has been heard 
 from the walls of the defendant's prison, but a request that he may not be condemned 
 without a trial; the necessary consequence must be, that opinion will progress one way 
 — that the stream of incessant exertion will wear a channel in the public mind; and the 
 current may be strong enough to carry away those who may be jurors, though they 
 know not how or when they received the impulse that hurries them forward. 
 
 I am fortunate enough not to know, with respect to most of you, to what political 
 party you belong. Are you republican federalists? I ask you to forget it; leave all 
 your political opinions behind you; for it would be more mischievous, "that you should 
 acquit the defend.ant from the influence of these, than that an innocent man, by mistake 
 should be convicted. In the latter case, his would be the misfortune, and to him would 
 it be confined; but in the other, you violate a principle, ,aud the consequence may be 
 rum. Consider what would be the efl'ect of an impression on the public mind, that in 
 consequence of party opinion and feelings, the defendant was acquitted. Would there 
 still be recourse to the laws, and to the justice of the country ? Would the passions of 
 the citizens, in a moment of frenzy, be calmed by looking forward to the decision of 
 courts of law for justice? Rather every individual would become the avenger of ima- 
 gmary transgressions— violence would be repaid with violence; havoc would produce 
 
449 
 
 havoc ; and instead of a peaceable recurrence to the tribunals of justice, the spectre of 
 civil discord would be seen stalking through our streets, scattering desolation, misery, 
 and crime. 
 
 Such may be the consequences of indulging political prejudice on this day ; and if so, 
 you are amenable to your country and your God. This I say to you who are federal- 
 ists ; and have I not as much right to speak thus to those who are democratic republi- 
 cans ? That liberty which you cherish with so much ardour, depends on your preserving 
 yourselves impartial in a court of justice. It is proved by the history of man, at least of 
 civil society, that the moment the judicial power becomes corrupt, liberty expires. 
 What is liberty but the enjoyment of your rights free from outrage or danger? And 
 what security have you for these, but an impartial administration of justice? Life, 
 liberty, reputation, property, and domestic happiness, are all under its peculiar protec- 
 tion. It is the judicial power, unoorrupted, that brings to the dwelling of every citizen 
 all the blessings of civil society, and makes it dear to man. Little has the private citi- 
 zen to do with the other branches of government. "What to him are the great and 
 splendid events that aggrandize a, few eminent men, and make a figure in history ? 
 His domestic happiness is not less real because it will not be recorded for posterity : 
 but this happiness is his no longer than courts of justice protect it. It is true, injuries 
 cannot always be prevented ; but while the fountains of justice are pure, the sufferer is 
 sure of a recompense. 
 
 Contemplate the immediate horrors and final despotism that must result from mutual 
 deeds of vengeance, when there is no longer an impartial judiciary, to which contending 
 parties may appeal, with full confidence that principles will be respected. Fearful 
 must be the interval of anarchy; fierce the alternate pangs of rage and terror; till one 
 party shall destroy the other, and a gloomy despotism terminate the struggles of con- 
 flicting factions. Again, I beseech you to abjure your prejudices. In the language once 
 addressed from Heaven to the Hebrew prophet, "Put off your shoes, for the ground on 
 which you stand is holy." You are the professed friends, the devoted worshippers of 
 civil liberty; will you violate her sanctuary? Will you profane her temple of justice? 
 Will you commit sacrilege while you kneel at her altar? 
 
 I will now proceed to state the nature of the charge on which you are to decide, and 
 of the defence which we oppose to it; then examine the evidence to ascertain the facts, 
 and then inquire what is the law applicable to those facts. 
 
 The charge is for manslaughter; but it has been stated in the opening, that it may 
 be necessary to know something of each species of homicide, in order to obtain a correct 
 idea of that which you are now to consider. 
 
 Homicide, as a general term, includes, in law, every mode of killing a human being. 
 The highest and most atrocious is murder ; the discriminating feature of which is pre- 
 vious malice. — With that the defendant is not charged; the Grand Jury did not think 
 that by the evidence submitted to them, they were authorized to accuse him of that 
 enormous crime. They have therefore charged him with manslaughter only. 
 
 The very definition of this crime excludes previous malice ; therefore it is settled, 
 that there cannot, with respect to this offence, be an accessary before the fact; because 
 the intention of committing it is first conceived at the moment of the offence, and exe- 
 cuted in the heat of a sudden passion, or it happens without any such intent, in doing 
 some unlawful act. It will not be contended that the defendant is guilty of either of 
 these descriptions of manslaughter. Neither party suggests that the defendant was 
 under any peculiar impulse of passion at the moment, and had not time to reflect; on 
 the contrary, he is said to have been too cool and deliberate. The case in which it is 
 important to inquire, whether the act was done in the heat of blood, is where the indict- 
 ment is for murder, and the intent of the defence is to reduce the crime from murder 
 to manslaughter ; but Selfridge is not charged with murder. There is nothing in the 
 evidence that has the least tendency to prove an accidental killing, while doing some- 
 unlawful act. It is diificult to say, from this view of manslaughter, when compared 
 with the evidence, on what legal ground the defendant can be convicted; unless it be,, 
 that he is to be considered as proved guilty of a crime which might have been charged 
 as murder, and by law, if he now stood before you under an indictment for murder,, 
 you might find him guilty of manslaughter, and therefore you may now convict him. 
 
 This does not appear to be true ; for the evidence would not apply to reduce the 
 offence from murder to manslaughter, on either of the aforementioned grounds. Per- 
 haps it may be said that every greater includes the less, and therefore, manslaughter 
 is included in murder; and that it is on this principle, that a conviction for manslaugh- 
 ter may take place on an indictment for murder. I will not detain you to examine this, 
 for it is not doing justice to the defendant to admit, for a moment, even for the sake of 
 argument, that the evidence proves murder. Our time will be more usefully employed 
 in considering the principles of the defence. Let it be admitted then, as stated by the 
 counsel for government, that, the killing being proved, it is incumbent on the defend- 
 
450 APPENDIX. 
 
 ant to discharge himself from guilt. Our defence is simply this, that the killing was 
 necessary in self-defence ; or, in other words, that the defendant was in such imminent 
 danger of being killed, or suffering other enormous bodily harm, that he had no reasona- 
 ble prospect of escaping, but by killing the assailant. 
 
 This is the principle of the defence stripped of all technical language. It is not im- 
 portant to state the difference between justifiable and excusable homicide, or to show 
 to which the evidence will apply ; because, by our law, either being proved, the defend- 
 ant is entitled to a general acquittal. 
 
 Let us now recur to the evidence, and see whether this defence be not clearly estab- 
 lished. 
 
 [Mr. Dexter then went into a minute examination of the whole evidence, which is here 
 omitted, because it was necessarily very long, and the evidence itself is all before the 
 public. In the course of it he laboured to prove, that Mr. Selfridge went on the exchange 
 about his lawful business, and without any design of engaging in an affray; that he was 
 in the practice of carrying pistols, and that it was uncertain whether he took the weapon 
 in his pocket in consequence of expecting an attack; that if he did, he had a right so 
 to do, provided he made no unlawful use of it ; that the attack was so violent, and with 
 so dangerous a weapon, that he was in imminent danger; that it was so sudden, and 
 himself so feeble, that retreat would have been attended with extreme hazard; that the 
 pistol was not discharged until it was certain that none would interfere for his relief, 
 and that blows, which perhaps might kill him, and probably would fracture his skull, 
 were inevitable in any other way, and that the previous quarrel with the father of the 
 deceased, if it could be considered as affecting the cause, arose from the misbehaviour 
 of old Mr. Austin, and that the defendant had been greatly injured iu that affair.] 
 
 Mr. Dexter then proceeded as follows : — 
 
 It cannot be necessary, gentlemen, for the defendant to satisfy you beyond doubt, 
 that he received a blow before the discharge of the pistol. There is positive evidence 
 from one witness, that the fact was so, and other witnesses say much that renders it 
 probable. But if the defendant waited until the cane was descending, or even uplifted 
 within reach of him, reason and common sense say, it is the same thing : no man is 
 bound to wait until he is killed, and being knocked down would disable him for defence. 
 The killing can be justified only on the ground that it was necessary to prevent an injury 
 that was feared ; not that it was to punish for one that was past. This would be re- 
 Tengc, and not self-defence. 
 
 The same law authorities which tell you that a man must retreat as far as he can, say 
 also, that if the assault be so violent, that he cannot retreat without imminent danger, 
 he is' excused from so doing. If this means anything, it is applicable to our case ; for 
 perhaps you can hardly imagine a more violent or more sudden assault. When to this 
 is added the muscular debility of the defendant, it certainly forms a very strong case. 
 He could neither fight nor fly. Had he attempted the latter, he must have been over- 
 taken by his more athletic and active antagonist, and either knocked down, or maimed, 
 or murdered, as the passions of that antagonist might dictate. 
 
 But it is said, and some passages from law books are x-ead to prove it, that the neceg- 
 «ity which excuses killing a man, must not be produced by the party killing ; and that 
 lie must be without fault. You are then told that the defendant sought the affray, and 
 armed himself for it, and that he had been faulty in calling Mr. Austin, the father, op- 
 probrious names in the newspaper. 
 
 As to the affray being sought by the defendant, there is no evidence to support such 
 an assertion, but what arises from his conversation with Mr. Richardson and Mr. Whit- 
 man, or from the fact of his having a pistol in his pocket. These only prove that he 
 was prepared to defend himself, if attacked; and if he did defend himself lawfully, this 
 is the best evidence to show what was his intention ; it cannot be presumed that he 
 took the pistol with an unlawful intent, when he never expressed such intent, and when 
 his subsequent conduct was lawful. He had been informed that he should be attacked 
 by a bully ; in such case what was his duty ? Was he bound to shut himself up in his 
 own house ! Was he bound to hire a guard ? If he had done so, this would hnve been 
 urged as the strongest evidence of his intention to commit an affray. Could he obtain 
 surety of the peace from a future assailant, whose name was unknown to him ? Or was 
 he bound to go about his business, constitutionally feeble and unarmed, at the peril of 
 his life ? There would be more colour for this suggestion, if the defendant had gone on 
 the exchange, and there insulted either old Mr. Austin or his son, or voluntarily en- 
 gaged in altercation with either of them. But he went peaceably about his ordinary 
 business, and made use of his weapon only when an unavoidable necessity happened. 
 A man when about to travel a road infested with robbers, lawfully arms himself with 
 pistols; if he should be attacked by a robber, and from necessity kill him, is he to 
 be charged with having sought this necessity, because he voluntarily undertook the 
 journey, knowing the danger that attended it, and took weapons to defend himself 
 
T. 0. SELFRIDGE's CASE. 451 
 
 against it? As little is tlie defendant to be censured for going about his ordinary busi- 
 ness, when he knew that it would be attended with danger, and arming himEclf for de- 
 fence in case such an emergency sliould happen, as that the law could not afford him 
 protection. I have here supposed that the pistol was taken for the purpose for which 
 it was used ; this, however, is far from being certain from the evidence, as it is in proof 
 that the defendant had daily occasion for pistols in passing between Boston and Med- 
 ford, a road that has been thought attended with some danger of robbery; and that he 
 sometimes carried pistols in his pocket. There is not the least pretence for saying, that 
 he expected an aifray with young Mr. Austin. He could not presume that his father 
 would wwj^oy him, and it is not probible that he knew him in the confusion that the 
 sudden attack must have produced. As to the publication in the newspaper against old 
 Mr. Austin, though this might be in some sense a fault, yet it is far from being within 
 the principle established by the books. When it is said the party must be without fault, 
 it is evident that nothing more is meant, than that he must be without fault in that par- 
 ticular transaction. If we are to leave this and look back, where are we to stop ? Are 
 we to go through the life of the party to examine his conduct? If the defendant had 
 libelled Mr. Austin, that was a previous and distinct offence, for which he was, and yet 
 is, liable to an action or an indictment ; and unless it be presumed without evidence and 
 against all probability, that it was intended to produce this affray, it can have no con- 
 nexion with the principle stated. There is another obvious motive for it, and there is 
 nothing in the evidence tending to convince you that it was intended to provoke an 
 attack; the defendant had been defamed ; retaliation was the natural punishment; and 
 there is no reason to presume that anything more was intended, unless it was to blunt 
 the shafts of calumny from Mr. Austin, by destroying his credit and standing in society. 
 It is true, that it is said by several respectable compilers of law, that the party killing 
 must be without fault; but they all refer to one adjudged case, which is found stated 
 in 1 Hale's P. C. page 440. By recurring to the statement of this case, it appear.-i, that 
 the persons who killed, and would have excused it on the ground of necessary self-de- 
 fence, had forcibly entered and disseized the rightful owner of a house, and continued 
 forcibly to detain it against him; in an attempt by the owner forcibly to recover 
 possession, those who held wrongfully were reduced to the necessity of killing ; and it 
 was holden, that as they were then engaged in an unlawful act, namely, forcibly detain- 
 ing the house against him who had a right to enter, they had produced this necessity 
 by their own wrongful conduct, and therefore it should not excuse them. So that this 
 principle seems to be related to another, and in reality to be involved in it ; I mean the 
 well known principle that he who kills another by accident, while performing an unlaw- 
 ful act, is guilty of manslaughter. It would be absurd, that a man who kills by acci- 
 dent, while performing an unlawful act, should be guilty of manslaughter ; and yet that 
 he who kills from design, while performing an unlawful act, however necessary it maj 
 have become, should be guiltless. It is settled that if on a sudden affray, A. make an 
 assault on B. , and afterwards the assaulter be driven to the waU, so that he can retreat 
 no farther, and then kill B. necessarily in his own defence, that is excusable homicide 
 in A. ; and yet here, A. was in fault in this very affray, by making the first assault; 
 but having afterwards retreated as far as he could, the law extends to him the right of 
 self-defence. This shows that unless at the moment of killing, the party be doing 
 wrong, the principle contended for on the other side does not apply. In proof of this 
 I will also read to you an authority from 1 Hale's P. C. 479. "There is malice between 
 A. and B.; they meet casually, A. assaults B. and drives him to the wall; B. in his own 
 defence kills A. This is se defendendo, and shall not be heightened by the former malice 
 into murder or homicide at large ; for it was not a killing on the former malice, but upon 
 a necessity imposed upon him by the assault of A. 
 
 "A. assaults B., and B. presently thereupon strikes A. without flight, whereof A. 
 dies; this is manslaughter in B., and not se defendendo. But if B. strikes A. again, but 
 not mortally, and blows pass between them, and at length B. retires to the wall, and 
 being pressed upon by A. gives him a mortal wound, whereof A. dies, this is only homi- 
 cide se defendendo, although that B. had given divers other strokes that were not mortal 
 before he retired to the wall, or as far as he could. But now suppose that A. by malice 
 makes a sudden assault upon B., who strikes again, and pursuing hard upon A., A. 
 retreats to the wall, and in saving his own life, kills B. Some have held this to be mur- 
 der, and not se defendendo, because A. gave the first assault, Cromp. fol. 22, b. grounding 
 upon the book of 3 Edw. 3, Itin., North Coron. 287; but Mr. Dalton, ubi supra, tninketh 
 it to be se defendendo, though A. made the first assault either with or without malice, 
 and then retreated." 
 
 I am bound in candour to add, that the law, as above laid down, on the authority of 
 Dalton, has since been doubted as to that part of it which supposes previous malice. 
 This passage has been reviewed by Hawkins and East in their several treatises on crown 
 law, and I have chosen to read it from this very circumstance, because it appears that it 
 
452 APPENDIX. 
 
 lias been well considered; and wlien subsequent and eminent -writers, on full examina- 
 tion reject a part, and admit the residue to be law, it is strong confirmation of that 
 residue. It is that alone on which I rely, and it is amply sufficient to prove what I have 
 before stated; that if A. first assault B. on a sudden affray without malice, A. may 
 still excuse killing B. from a subsequent necessity in his own defence ; and yet none 
 will deny that first assaiiUing B., though without malice, was a fault. On this point, I 
 submit to your consideration one further remark. The publication in the newspaper is 
 nothing more than provoking language; now if the defendant had immediately before 
 the affray, made use of the same language to old Mr. Austin, no lawyer will pretend 
 that this would have been such a fault as would have precluded the defendant from ex- 
 cusing himself for the subsequent necessary killing on the principle of self-defence. If 
 it were so, we should find it so stated in books of authority that treat on this subject; 
 for the case must often have happened, as provoking language generally precedes blows. 
 On the contrary, we find it settled, that even making the first assault does not deprive 
 the party of this defence. It would be absurd then to say, that rude and offensive lan- 
 guage, which cannot even justify an assault, should produce this effect. It can hardly be 
 necessary to add, tliat, if these words, spoken at the moment, would not have deprived 
 the defendant of this defence, having published them before, in a newspaper, cannot 
 produce this consequence. I have hitherto admitted that the publication in the news- 
 paper was a fault in the defendant; nor am I disposed entirely to justify it; yet circum- 
 stances existed which went far to extenuate it. He had been defamed on a subject, the 
 delicacy of which, perhaps, will not be understood by you, as you are not lawyers, 
 without some explanation. Exciting persons to bring suits is an infamous offence, for 
 which a lawyer is liable to indictment; and to be turned away from the bar. It is so 
 fatal to the reputation of a lawyer, that it is wounding him in the nicest point to charge 
 him with it. It is the point of honour; and charging him with barratry, or stirring up 
 suits, is like calling a soldier a coward. Mr. Austin, the father, had accused the de- 
 fendant publicly, of this offence, respecting a transaction in which his conduct had been 
 punctiliously correct; the defendant first applied to him in person, and with good tem- 
 per, to retract the charge ; afterwards in conversations with Mr. Welch, Mr. Austin 
 acknowledged the accusation to be false, and promised to contradict it as publicly as he 
 had made it ; yet he neglected to do it ; again he said he had done it, but the fact 
 appeared to be otherwise. This induced the defendant to demand a denial of it in 
 writing; though Mr. Austin privately acknowledged he had injured Mr. Selfridge, yet 
 he refused to make him an adequate recompense, when he neglected to make the denial 
 as public as the charge. This was a state of war between them upon this subject, in 
 which the more the defendant annoyed his enemy, the less power he had to hurt him. 
 It was therefore a species of self-defence; and Mr. Austin, who had first been guilty of 
 defamation, perhaps had little cause to complain. To try the correctness of this, we 
 will imagine an extreme case. 
 
 Suppose a man should have established his reputation as a common slanderer and 
 calumniator, by libelling the most virtuous and eminent characters of his country, from 
 Washington an^ Adams, down through the whole list of American patriots ; suppose 
 such a one to have stood for twenty years in the kennel, and thrown mud at every well 
 dressed passenger; suppose him to have published libels till his style of defamation has 
 become as notorious as his face, would not every one say, that such conduct was some 
 excuse for bespattering him in turn? I do not apply this to any individual; but it is a 
 strong case to try a principle; and if such conduct would amount almost to a justifica- 
 tion of him who should retaliate, wiU not the slander of Mr. Austin against Mr. Sel- 
 fridge, furnish some excuse for him? It haa also been stated to you, gentlemen, and 
 some books have been read to prove it, that a man cannot be justified or excused in 
 killing another in his own defence, unless a felony were attempted or intended. Some 
 confusion seems to have been produced by this, which I will attempt to dissipate. It 
 has been settled that if a felony be attempted, the party injured may kill the offender, 
 without retreating as far as he safely can ; but, that if the offence intended, be not a 
 felony, he cannot excuse the killing in his own defence, unless he so retreat, provided 
 circumstances will permit. On this principle, all the books that have been read to this 
 point, may easily be reconciled. But the position contended for by the opposing coun- 
 sel, IS m direct contradiction to one authority which they themselves have read. In the 
 fourth volume of Blackstone's Commentaries, page 185, the law is laid down as follows: 
 "The party assaulted must therefore flee as far as he conveniently can, either by rea- 
 son of some wall, ditch, or other impediment, or as far as the fierceness of the assault 
 will permit him; for it may be so fierce as not to allow him to yield a step, without 
 manifest danger of his life, or enormous bodily harm; and then in his defence, he may 
 kill his assailant instantly. And this is the doctrine of universal justice, as well as of 
 themumcipallaw." Also in 1 Hawkins' Pleas of the Crown, chap. 29, sect. 13, the 
 law on this point IS stated thus: "And now I am to consider homicide se defendmdo, 
 
T. 0. selpridgk's case. 453 
 
 which seems to be where one, who has no other possible means of preserving his life 
 from one who combats with him on a sudden quarrel, or of defending his person from 
 one who attempts to beat him, (especially if such attempt be made u pon him in his own 
 house) kills the person by whom he is reduced to such an inevitable necessity." From 
 these two highly respectable authorities, it appears that, though nothing more be at- 
 tempted than to do great bodily injury, or even to beat a man, and there be no possi- 
 bility of avoiding it, but by killing the assailant, it is excusable so to do. When the 
 weight and strength of the cane, or rather cudgel, which the deceased selected, is con- 
 sidered, and the violence with which it was used, can it be doubted that great bodily 
 h.arm would have been the consequence if Selfridge had not defended himself? The 
 difference between this weapon and the pistol made use of by the defendant, perhaps, 
 is greatly exaggerated by the imagination. The danger from the former might be nearly 
 as great as from the latter : when a pistol is discharged at a man in a moment of con- 
 fusion and agitation, it is very uncertain whether it will take effect at all; and if it 
 should, the chances are perhaps four to one, that the wound wUl not be mortal. Still 
 further, when the pistol is once discharged, it is of little or no use ; but with a cane, a 
 man within reach of his object, can hardly miss him, and if the first blow should prove 
 ineffectual, he can repeat his strokes until he has destroyed his enemy. 
 
 If it were intended to excite contempt for the laws of the country, a more effectual 
 method could hardly be taken, than to tell a man, who has a soul within him, that if one 
 attempts to rob him of a ten dollar bill, this is a felony ; and therefore esteemed by the 
 law an injury of so aggravated a nature, that he may lawfully kill the aggressor ; but 
 that, if the same man should whip and kick him on the public exchange, this is only a 
 trespass, to which he is bound to submit rather than put in jeopardy the life of the as- 
 sailant ; and the laws will recompense him in damages. 
 
 Imagine that you read in a Washington newspaper, that on a certain day, immediately 
 on the rising of Congress, Mr. A. of Virginia, called Mr. B. of Massachusetts, a scoundrel, 
 for voting against his resolution; and proceeded deliberately to cut off his ears. Mr. B. 
 was armed with a good sword cane, but observed, that his duty as a citizen forbade him 
 to endanger the life of Mr. A., for that cutting off a man's ears was by law no felony ; and 
 he had read in law books that courts of justice were the only proper " vindices injuria- 
 rum," and that he doubted not, that by means of a law suit, he should obtain a reasonable 
 compensation for his ears. What are the emotions excited in your breasts, at this sup- 
 posed indignity and exemplary patience of the representative of your country ? Would you 
 bow to him with profound respect on his return ? Or rather, would not his dignity and use- 
 fulness, by universal consent, be lost forever? — -We have now taken a vievr of the facts, 
 and the positive rules of law that apply to them ; and it is submitted to you with great 
 confidence, that the defendant has brought himself within the strictest rules, and com- 
 pletely substantiated his defence, by showing that he was under a terrible necessity of 
 doing the act; and that by law he is excused. It must have occurred to you, however, 
 in the course of this investigation, that our law has not been abundant in its provisions 
 for protecting a man from gross insult and disgrace. Indeed it washardly to be expected, 
 that the sturdy hunters, who laid the foundations of the common law, would be veiy 
 refined in their notions. There is in truth much intrinsic difiiculty in legislating on this 
 subject. Laws must be made to operate equally on all members of the community ; and 
 such is the difference in the situations and feelings of men, that no general rule, on this 
 subject, can properly apply to all. That, which i9 an irreparable injury to one man, 
 and which he would feel himself bound to repel even by the instantaneous death of the 
 aggressor, or by his own, would be a very trivial misfortune to another. There are men, 
 in every civilized community, whose happiness and usefulness would be forever destroyed 
 by a beating, which another member of the same community would voluntarily receive 
 for a five dollar bill. Were the laws to authorize a man of elevated mind, and refined 
 feelings of honour to defend himself from indignity by the death of the aggressor,- they 
 must at the same time furnish an excuse to the meanest chimney sweeper in the country 
 for punishing his sooty companion, who should fillip him on the cheek, by instantly thrust- 
 ing his scraper into his belly. But it is too much to conclude, from this difficulty in 
 stating exceptions to the general rule, that extreme cases do not furnish them. It is 
 vain, and worse than vain, to prescribe laws to a community, which will require a dere- 
 liction of all dignity of character, and subject the most elevated to outrages from the most 
 vile. If such laws did exist, the be!=t that could be hoped, would be, that they would be 
 broken. Extreme cases are in their nature exceptions to all rules; and when a good 
 citizen says, that, the law not having specified them, he must have a right to u^e hi.- own 
 best discretion on the subject; he only treats the law of his country in the same manner 
 in which every Christian necessarily treats the precepts of his re'igion. The law of his 
 master is "resist not evil." "If a min smite thee on the one cheek turn to Hm the other 
 also." No exceptions to the^e rules are stated; yet doe^ not every rati .nal Cbri?ti3n 
 necessarily make them ? I have been led to make these observations, not because I think 
 
454 APPENDIX. 
 
 them necefsary in the defence of Mr. Selfridge; bnt teoause I Tvill have no volunta- 
 ry agency in degrading the spirit of my country. The greatest of all public calami- 
 ties, would he a pusillanimous spirit, that would tamely surrender personal dignity to 
 every invader. The opposing counsel have read to you, from books of acknowledged 
 authority, that the right of self-defence was not given by the law of civil society, and that 
 that law cannot take it away. It is founded then on the law of nature, which is of 
 higher authority than any human institution. This law enjcins us to be useful, in pro- 
 portion to our capacities; to protect the powers of being useful, by all means that nature 
 has given us, and to secure our own happiness, as well as that of others. These sacred 
 precepts cannot be obeyed without securing to ourselves the respect of others. Surely, 
 I need not say to you, that the man who is daily beaten on the public exchange, cannot 
 retain his standing in society, by recurring to the laws. Recovering daily damages will 
 rather aggravate the contempt that the community will heap upon him; nor need I say, 
 that when a man has patiently suffered one beating, he has almost insured a repetition of 
 the insult. — It is a most serious calamity, for a man of high qualifications for usefulness, 
 and delicate sense of honour, to be driven to such a crisis, yet should it become inevitable, 
 he is bound to meet it like a man, to summon all the energies of the soul, rise above 
 ordinary maxims, poise himself on his own magnanimity, and hold himself responsible 
 only to his God. Whatever may be the consequences, he is bound to bear them, to stand 
 like mount Atlas, 
 
 " When storms and tempests thunder on its brow, 
 And oceans break their billows at his feet." 
 
 Do not believe that I am inculcating opinions, tending to disturb the peace of society? 
 On the contrary, they are the only principles that can preserve it. It is more danger- 
 ous for the laws to give security to a man, disposed to commit outrages on the persons 
 of his fellow citizens, than to authorize those, who must otherwise meet irreparable injury, 
 to defend themselve at every hazard. Men of eminent talents and virtues, on whose ex- 
 ertions, in perilous times, the honour and happiness of their country must depend, will 
 always be liable to be degraded by every daring miscreant, if they cannot defend them- 
 selves from personal insult and outrage. Men of this description must always feel, that 
 to submit to degradation and dishonour is impossible. Nor is this feeling confined to men 
 of that eminent grade. We have thousands in our country who possess this spirit; and 
 without them we should soon deservedly cease to exist as an independent nation. I re- 
 spect the laws of my country, and revere the precepts of our holy religion ; I should shud- 
 der at shedding human blood ; I would practise moderation and forbearance, to avoid so 
 terrible a calamity; yet, should I ever be driven to that impassable point, where degrada- 
 tion and disgrace begin, may this arm shrink pahied from its socket, if I fail to defend 
 my own honour. 
 
 It has been intimated, that the principles of Christianity condemn the defendant. If 
 he is to be tried by this law, he certainly has a right to avail himself of one of its funda- 
 mental principles. I call on you then to do to him as, in similar circumstances, you 
 would expect others to do to you: change situations for a moment, and ask yourselves, 
 what you would have done, if attacked as he was. And instead of being necessitated to 
 act at the moment, and without reflection, take time to deliberate. Permit me to state, 
 for you, your train of thought. You would say this man, who attacks me, appeai-s young', 
 athletic, active and violent. I am feeble and incapable of resisting him; he has a heavy 
 cane, which is undoubtedly a strong one, as he had leisure to select it for the purpose: 
 he may intend to kill me; he may, from the violence of his passinn, destroy me, without 
 intending it; he may maim or greatly injure me; by beating me he must disgrace me. 
 This alone destroys all my prospects, all my happiness, and all my usefulness. Where 
 shall I fly, when thus rendered contemptible ? Shall I go abroad? every one will point 
 at me the finger of scorn. Shall I go home ? my children— I have taught them to shrink 
 from dishonour; will they call me father? What is life to me, after suffering this outrage? 
 Why should I endure this accumulated wretchedness, which is worse than death, rather 
 than put m hazard the life of my enemy ?— Ask yourr^elves whether you would not make 
 use of any weapon that might be within your power to repel the injury ; and if it should 
 happen to be a pistol, might you not with sincere feelings of piety, call on the Father 
 of Mercies to direct the stroke.— While we reverence the precepts of Christianity, let us 
 not make them void by impracticable construction. They cannot be set in opposition 
 t . the law of our nature ; they are a second edition of that law ; they both proceed from 
 the same author.— Gentlemen, nil that is dear to the defendant, in his future life, is by 
 the law of his country placed in your power. He cheerfully leaves it there. Hitherto 
 he has suffered all that his duty as a good citizen required, with fortitude and patience: 
 and If mr.re he yet in store for him, he will exhibit to his accusers an example of patient 
 submission to the laws. Yet permit me to say in concluding his defence, that he feels 
 lull confidence that your verdict will terminate his sufferings. 
 
T. 0. selfridge's case. 455 
 
 Paekbk, J., charged the jury as follows: — 
 
 Gentlemen of the jury! — As this most interesting trial has already occupied four days — 
 And as you must by this time he nearly exhausted, I shall endeavour, in discharging the 
 duty incumbent on me, to consume as little more of your time as may be consistent with 
 a clear exposition of the principles necessary to be understood, in order to form a just 
 and legal decision. You have heard the important facts in the case, minutely and dis- 
 tinctly stated by the witnesses, ably and ingeniously commented upon by counsel, and the 
 principles of law elaborately discussed and illustrated in as forcible and eloquent argu- 
 ments as were ever witnessed in any court of justice in our country. It is now left to 
 you upon the whole view of the case, both of the law as it shall be declared to you by the 
 court, and the facts as proved by the testimony, to pronounce a verdict between the de- 
 fendant and your country. — That in so important a trial, it should have devolved upon 
 me, alone, to preside over its forms, as weU as to declare the principles upon which your 
 decision is to rest, is by no means a subject of congratulation. It is a situation which 
 of all others I should have avoided, had not official duty imperiously imposed it upon me, 
 But the organization of the court, and distribution of the services of its members are 
 such as to have rendered any other arrangement difficult, if not impossible. Under 
 our present judiciary establishment, all criminal causes, other than capital, are triable 
 before one judge; and this system has proved itself to be eminently calculated for the 
 despatch of public business ; other provisions in the system ensure as great a degree of 
 correctness as can be expected of any human institution. — It is true that although at a 
 term holden by one judge, if others are present, they may proceed together ; but at this 
 time, the court being in session in three, if not four several counties, it was impracticable, 
 had it been desirable, to have more than two judges engaged in the present trial. The 
 great delay which would have taken place, in consequence of a division of opinion (a case 
 not unlikely to happen in the course of any trial) between two judges, rendered it alto- 
 gether inexpedient that more than one should attend ; and as this term had been previ- 
 ously assigned to me, the unpleasant task of officiating in the present case, seemed 
 imavoidably to belong to me. 
 
 Since it has thus fallen to me to execute a painful and anxious duty, I shall not shrink 
 from the task of declaring to you the principles of law by which you are to be governed 
 in your investigation and decision of this case. If in doing this, I should be found capa- 
 ble, in order to retain the favour of one class of the community, or to court that of another, 
 of abusing my office by stating that to be law which I know to be otherwise ; this is the last 
 time 1 should be suffered to sit upon this bench, and I ought to meet the execration and 
 contempt of the society to which I belong. — The crime charged by the grand jury upon the 
 defendant is manslaughter ; a crime of high consideration in the eye of the law. This 
 crime, however, is not defined by our statute, but its punishment is by it provided for. — 
 In order, therefore, to ascertain the nature and character of the crime, it is necessary to 
 resort to the books of the common law, the principles of which, by the constitution of 
 our government, are made the law of our land, until they shall be changed or repealed, 
 by our own legislature. — The counsel for the government, as well as for the defendant, 
 have therefore wisely and properly searched the most approved authorities of the common 
 law, for the principles upon which the prosecution or the defence must be supported. 
 It is from those books alone, that any clear ideas of the offence which is in trial, or the 
 defence which has been set up, can be attained. — The crime of manslaughter, according 
 to thuf e authorities, consists in the unlawful and wilful killing of a reasonable being, 
 without malice, express or implied, and without any justification or excuse. — That the 
 killing of a human being, under some circumstances, is not only excusable, but justifiable, 
 is proved by the very terms of this definition. — Some persons, however, have affected to 
 entertain the visionary notion, that it is in no instance lawful to destroy the life of an- 
 other, grounding their opinion upon the general proposition in the Mosaic code, that 
 "Whosoever sheddeth man's blood, by man shall his blood be shed." There is always 
 danger in taking general propositions as the rules of faith or action, without attending 
 to those exceptions, which if not expressly declared, necessarily grow out of the subject 
 matter of the proposition. — Were the position above alluded to, true, in the extent 
 contended for by some; then the judge who sit in the trial of a capital offence, the jury 
 who may convict, the magistrate w;ho shall order execution, and the sheriff who shall 
 execute, will all fall within this general denunciation, as by their instrumentality the 
 blood of man has been shed. — The same observations may be applied to one of the pi-e- 
 cepts in the decalogue. Thou shalt not kiU, is the mandate of God himself. Should this 
 be construed literally and strictly, then a man who, attacked by a robber, or in defence 
 of the chastity of his wife, or of his habitation from the midnight invader, should kill the 
 assailant, would offend against the divine command, and be obnoxious to punishment. 
 But the common understanding of mankind will readily perceive that the very nature of 
 man, and principle of self-preservation, will supply exceptions to these general denun- 
 ciations. 
 
 Our If — '■'— ■" " ■" -^^ :-.:i:— J -^^mtries, abundantly negative such unquali_ 
 
456 APPENDIX. 
 
 fied definitions of crime, and have adopted certain principles by which the same act may 
 be ascertained to be more or less criminal or entirely innocent, according to the motive 
 and intent of the party committing it. — Thus when the killing is the effect of particular 
 malice or general depravity, it is murder, and punished with death. — When without malice, 
 but caused by sudden passion and heat of blood, it is manslaughter. — When in defence of 
 life it is excusable. — When in advancement of public justice, in obedience to the laws of 
 the government, it is justifiable. — These principles are all sanctioned by law and morality, 
 and yet they all contradict the dogma, that "whosoever sheddeth man's blood, by man 
 shall his blood be shed." — It is not necessary for you to run a nice distinction between 
 justifiable and excusable homicide; if the one now in trial be either the one or the other, 
 it is sufficient for the purpose of the defendant. — A distinction existed in England, which 
 does not exist here ; there the man who had committed an excusable homicide forfeited 
 his goods and chattels ; while he who had a justification forfeited nothing. Here, whether 
 the homicide be justifiable or excusable, there must be an entire acquittal.^Numerous 
 authorities, ancient and modern, have been read to you upon this subject. Were it ne- 
 cessary for you to take those books with you, and compare the different principles and 
 cases which have been cited, your minds might meet with some embarrassments, there 
 being in some instances an apparent though in none a real incongruity. But I appre- 
 hend you need not trouble yourselves with the books out of court, for I think I shall be 
 able to state all the principles you will have occasion to consider ; there being in fact no 
 disagreement about them from the time of Sir Edward Coke, one of the earliest sages of 
 the law, down to Sir William Blackstone, one of its brightest ornaments. These same 
 principles, although taken from English books, have been immemorially discussed, and 
 practised upon by our lawyers, adopted and enforced by our courts and juries, and recog- 
 nised by our legislature. To prove this, I now need say no more, than that the same 
 learned judge Trowbridge, who was quoted by the Attorney General, in his charge to 
 the jury in the trial of the soldiers for the massacre in 1770, laid down, discussed and 
 illustrated with great precision and cle.arnesa, every principle which can come in ques- 
 tion in the present trial. — These principles I will endeavour to simplify for your con- 
 sideration. 
 
 First. — A man who, in th« lawful pursuit of his business, is attacked by another under 
 circumstances which denote an intention to take away his life, or do him some enormous 
 bodily harm ; may lawfully kill the assailant, provided he use all the means in his power, 
 otherwise, to save his own life, or prevent the intended harm — such as retreating as far 
 as he can, or disabling his adversary without killing him, if it be in his power. 
 
 Secondly. — When the-attack upon him is so sudden, iierce and violent, that a retreat 
 would not diminish, but increase his danger, he may instantly kill his adversary without 
 retreating at all. 
 
 Thirdly. — When from the nature of the attack, there is reasonable ground to believe 
 that there is a design to destroy his life, or commit any felony upon his person, the 
 killing the assailant will be excusable homicide, although it should afterwards appear 
 that no felony was intended. 
 
 Of these three propositions, the last is the only one which will be contested anywhere; 
 and this will not be doubted by any who is conversant in the pi-inciples of criminal 
 law. Indeed, if this last proposition be not true, the preceding ones, however true and 
 universally admitted, would in most cases be entirely inefficacious. And when it is 
 considered that the jury who try the cause are to decide upon the grounds of apprehen- 
 sion, no danger can flow from the example. To illustrate this principle, take the fol- 
 lowing case. A. in the peaceable pursuit of his affairs, sees B. rushing rapidly towards 
 him_, with an outstretched arm and a pistol in his hand, and using violent menaces 
 against his life as he advances. Having approached near enough, in the same attitude, 
 A. who has a club in his hand, strikes B. over the head before, or at the instant the 
 pistol IS discharged, and of the wound B. dies. It turns out that the pistol was loaded 
 with powder only, and that the real design of B. was only to terrify A. WiU any rea- 
 sonable man say that A. is more criminal than he would have been if there had been a, 
 bullet in the pistol? Those who hold such doctrine, must require, that a man so 
 attacked, must, before he strike the assailant, stop and ascertain how the pistol is 
 loaded. A doctrine which would entirely take away the essential right of self-defence. 
 And when it is considered that the jury who try the cause, and not the party killing, 
 are to judge of the reasonable grounds of his apprehension, no danger can be supposed 
 to flow from this principle. These are the principles of law, gentlemen, to which I call 
 your attention. Having done this, I might leave the cause with you, were it not neces- 
 sary to take a brief view of some other parts of it. As to the evidence, I have no inten- 
 tion to guide or interfere with its just and natural operation upon your minds. I hold 
 the privilege of the jury to ascertain the facts, and that of the court to declare the law, 
 to be distinct and independent. Should I interfere, with my opinion on the testimony, 
 m order to influence your minds to incline either way, I should certainly step out of the 
 
T. 0. selpeidge's case. 457 
 
 province of a judge, into that of an advocate. All which I conceive necessary or pro- 
 per for me to do, in this part of the cause, is to call your attention to the points of fact 
 on which the cause may turn, state the prominent testimony in the case which may tend 
 to establish or disprove those points, give you some rules by which you are to weigh 
 testimony, if a contrariety should have occurred, and leave you to form a decision 
 according to your best judgment, without giving you to understand, if it can be avoided, 
 what my own opinion of the subject is. Where the inquiry is merely into matters 
 of fact, or where the facts and the law can be clearly discriminated ; I should always 
 wish the jury not to leave the stand without being able to ascertain what the opinion of 
 the court as to those facts may be, that their minds may be left entirely unprejudiced, to 
 weigh the testimony, and settle the merits of the case. An important rule in the pre- 
 sent trial is, that on a charge for murder or manslaughter, the killing being confessed 
 or proved, the law presumes that the crime, as charged in the indictment, has been com- 
 mitted, unless it should appear by the evidence for the prosecutor, or be shown by the 
 defendant on trial, that the liilling was under such circumstances as entitle him to jus- 
 tiiication or excuse. On the point of killing, there is no doubt in this case. The young 
 man named in the indictment, unquestionably came to his death by means of the dis- 
 charge of a pistol by the defendant at the bar. This part is confessed as well as proved. 
 The great question in the case is, whether according to the facts shown to you on the 
 part of the prosecution, or by the defendant, any reasonable, legal justification or excuse 
 has been proved — Whether the killing were malicious or not, is no farther a subject of 
 inquiry than that if you have evidence of malice, although the crime charged does not 
 imply malice, it may be considered as proving this crime, because it effectually disproves 
 the only defence which can be set up, after a killing is established. 
 
 From the testimony of sevei'al witnesses examined by the Solicitor and Attorney Ge- 
 nerals, it appears that on the day set forth in the indictment, the defendant was in his 
 office a little before one o'clock — that in a conversation about his quarrel with the father 
 of the deceased, he intimated that he had been informed an attack upon him was in- 
 tended, and that he was prepared. — That a short time afterwards, he went down from 
 his office, which is in the Old State House, crossing State-street diagonally, tending 
 towards the United States Bank. That as he passed down his hands were behind him, 
 outside of his coat, without any thing in them, is proved by the testimony of Mr. Brooks, 
 who saw him pass down, and by that of young Mr. Erving, who saw him when the deceased 
 approached, put his right hand in his pocket, and take out his pistol, while his left arm 
 was raised to protect his head from an impending blow. The manner of his going down 
 upon 'change, the weapon which he had with him, the previous intimation of an attack 
 which he seems to have received, from Mr. Cabot or Mr. Welch, and the errand upon 
 which he went down as stated by Mr. Ingraham, are all circumstances worthy of your de- 
 liberate attention. Passing down State street as before described, several witnesses tes- 
 tify that the deceased, who was standing with a cane in his hand, near the corner of the 
 Suffolk buildings ; having cast his eye upon the defendant, shifted his cane into his 
 right hand, stepped quick from the side walk on to the pavement, advanced upon the 
 defendant, with his arm uplifted; that the defendant turned, stepped one foot back, and 
 that a blow fell upon the head of the defendant, and the pistol was discharged at the 
 deceased, at one and the same instant. Several blows were afterwards given and 
 attempted to be parried by the defendant, who threw his pistol at the deceased, 
 seized upon his cane, which was wrested from him by the deceased, who becoming 
 exhausted, fell down, and in a few minutes expirsd. This is the general course of 
 the testimony; the scene was a shocking one, and all the witnesses state to you that 
 they were exceedingly agitated. This will account for the relation given by Mr. 
 Lane and one other witness, I believe Mr. Howe, who state the facts so differently 
 from all the other witnesses produced by government as well as by defendant, that how- 
 ever honest we may think them, it is impossible not to suppose they are mistaken. — 
 Indeed, the Attorney General has wisely and candidly laid their testimony, so far as it 
 differs from that of the other witnesses, out of the case. There is one witness, Mr. 
 Glover, who states the transactions somewhat differently from the other witnesses. He 
 says, that having expected to see a quarrel upon Exchange, in consequence of the pub- 
 lication against the deceased's father, in the morning, he went there for the express 
 purpose of seeing what should pass — that he saw Mr. Selfridge coming down street, 
 saw young Austin advance upon him, that he had a full view of both parties, was within 
 fifteen feet of them, that he saw a blow fall upon the head of Selfridge with violence, 
 the arm of the deceased raised to give a second blow, which fell the instant the pistol 
 was discharged. This is the only witness who swears to a blow before the discharge of 
 the pistol; but he swears positively, and says he has a clear, distinct recollection of the 
 fact; his character is left without impeachment. If you consider it important to ascer- 
 tain whether a blow was or was not actually given before the pistol was fired, you will 
 inquire whether there are any circumstances proved by other witnesses, which may 
 corrobor-^ '"~ '■'^- '"'' " "' . Glover. On this point you will attend to 
 
458 APPENDIX. 
 
 the testimony of Mr. Wiggin, who swears that he heard a Wow as if on the clothes of 
 some person, that he turned, and saw the deceased's arm uplifted, and another blow 
 and the discharge of the pistol were together. You will consider the testimony of young 
 Evving, who swears that the left arm of the defendant was over his forehead, as though 
 defending himself from blows, when he saw the blow fall. You will consider that all 
 the Avitnesses but GloTer, state that the blow which they saw, and thought the first, was 
 a long blow across the head, that the blow which Glover says was the first, was a direct 
 perpendicular blow, and that he then saw the second blow, which was a cross one, as 
 testified by the other witnesses. If you find a difficulty in settling the fact of the pri- 
 ority of the blow, take this for your rule, that a witness who swears positively to the 
 existence of a fact, if of good character, and sulBcient intelligence, may be believed, 
 although twenty witnesses of equally good character, swear that they were present, and 
 did not see the same fact. The confusion and horror of the scene was such, that it was 
 easy for the best and most intelligent of men to be mistaken as to the order of blows, 
 which followed each other in such rapid succession, that the eye could scarcely discern 
 an interval. You will, therefore, compare the testimony of the witnesses, where it ap- 
 pears to vary, attending to their diiferent situation, power of seeing, and capacity of 
 recollecting and relating, and settle this fact according to your best judgment, never 
 believing a witness who swears positively, to be perjured, unless you are irresistibly 
 driven to such a conclusion. Upon this point you will also attend to the testimony of 
 Mr. Fales, and of Mr. Osborne, and Mr. Perkins Nichols, touching the testimony of Mr. 
 Fales. The counsel for the defendant seem, however, to deem it of little importance to 
 ascertain whether the blow was given before the pistol was discharged or not, as there 
 is evidence from all the witnesses that an assault, at least, was made by the deceased, 
 before the pistol was fired. I think differently from them upon this point. When the 
 defence is, that the assault was so violent and fierce that the defendant could not retreat, 
 but was obliged to kill the deceased to save himself, it surely is of importance to ascer- 
 tain whether the violent blow he received on his forehead, which at the same time that 
 it would put him off his guard, would sfttisfy him of the design of the assailant, was 
 struck before he fired or not. I doubt whether self-defence could in any case be set up, 
 where the killing happened in consequence of an assault only, unless the assault be 
 made with a weapon which if used at all, would probably produce death. When a wea- . 
 pon of another sort is used, it seems to me that the effect produced is the best evidence 
 of the power and intention of the assailant to do that degree of bodily harm, which 
 would alone authorize the taking his life on the principles of self-defence. But whether 
 the firing of the pistol was before or after a blow struck by the deceased, there is another 
 point of more importance for you to settle, and about which you must make up your 
 minds, from all the circumstances proved in the case; such as the rapidity and violence 
 of the attack, the nature of the weapon with which it was made, the place where the 
 catastrophe happened, the muscular debility or vigour of the defendant, and his power 
 to resist or to fly. The point I mean is, whether he could probably have saved himself 
 from death or enormous bodily harm, by retreating to the wall, or throwing himself 
 into the arms of friends who would protect him. This is the real stress of the case. If 
 you believe under all the circumstances, the defendant could have escaped his adver- 
 sary's vengeance at the time of the attack, without killing him, the defence set up has 
 failed, and the defendant must be convicted. If you believe his only resort for safety 
 was to take the life of his antagonist, he must be acquitted, unless his conduct has been 
 such prior to the attack upon him, as will deprive him of the privilege of setting up a 
 defence of this nature. It has, however, been suggested by the defendant's counsel, 
 that even if his life had not been in danger, or no great bodily harm, but only disgrace 
 wasintended by the deceased, there are certain principles of honour and natural right, 
 by which the killing may be justified. These are principles which you as jurors, and I 
 as a judge, cannot recognise. The laws which we are sworn to administer are not 
 founded upon them. Let those who choose such principles for their guidance, erect a 
 court for the trial of points and principles of honour ; but let the courts of law adhere 
 to those principles which are laid down in the books, and whose wisdom, ages of expe- 
 rience have sanctioned. I therefore declare it to you as the law of the land, that unless 
 the defendant has satisfactorily proved to you, that no means of saving his life, or 
 his person from the great bodily harm which was apparently intended by the deceased 
 against him, except killing his adversary, were in his power— he has been guilty of 
 manslaughter, notwithstanding you may believe with the grand jury who found the bill, 
 tliat the case does not present the least evidence of malice or premeditated design in the 
 defendant to kill the deceased or any other person. 
 
 I ought not to rest here; for although I have stated to you that when a man's person 
 is fiercely and violently assaulted, under circumstances which jeopardize his life or impor- 
 tant members, he may protect himself by killing his adversary; yet he may from the 
 existence of other circumstances proved against him, forfeit hia right to a defence which 
 
T. 0. selfridge's case. 459 
 
 the laws of God and man ■would other-wise have given them. — If a man, for the purpose 
 of bringing another into a quarrel, provoke him so that an affray is commenced, and the 
 persun causing the quarrel is overmatched, and to save himself from apparent danger kill 
 his adversary, he would he guilty of manslaughter, if not of murder, because the necessity 
 being of his own creating, shall not operate in his excuse. — You arc therefore to inquire 
 whether this assault upon the defendant by the deceased, was or was not by the pro- 
 curement of the defendant ; if it was, he cannot avail himself of the defence, now set up by 
 him. And here you are called upon to distinguish pretty nicely, and to attend to a part 
 of the case which I thought was going too far back to have an influence upon this trial, 
 but which the urgency of the Attorney General and the consent of defendant's counsel 
 finally induced me to admit. — You have heard the whole story of the misunderstanding 
 between the defendant and the father of the deceased — who was originally in the wrong, 
 it is not for me to say, but I feel constrained to say, that whatever provocation the de- 
 fendant may have conceived to have been given him, and however great the injury which 
 the deceased's father may have done him, he certainly proceeded a step too far in making 
 the publication which appeared in the paper which came out on the morning of this un- 
 fa ippy disaster. — To call a man coward, liar and scoundrel, in the public newspapers, 
 and to call upon other printers to publish the same, is not justifiable under any circum- 
 stances whatever. Such a publication is libellous in its very nature, as it necessarily 
 excites to revenge and ill blood. Indeed, I believe a court of honour, if such existed, to 
 settle disputes of this nature, would not justify such a proclamation as the one aliuded 
 to. A posting upon 'change or in some public place, we have heard of, but I never be- 
 fore saw such a violent denunciation as this in a public newspaper. — Neither can I refrain 
 from censuring the managers of the paper who admitted such a publication, for so readily 
 receiving and publishing, what in its very nature would tend to disturb the public peace. 
 But, gentlemen, it is one thing for a man to have done wrong, and another thing for 
 that wrong to be of a nature to justify an attack upon his person. If personal wrong, 
 done by the father of the deceased to the defendant, would not justify him in publishing 
 a libel; neither would the libel have justified the deceased or his father in attacking the 
 person of the author of the libel. — No man can take vengeance into his own hands, he 
 can use violence only in defence of his person. No words, however aggravating, no libel, 
 however scandalous, will authorize the suffering party to revenge himself by blows. — If 
 therefore, Mr. Austin himself, the object of the newspaper publication, would not be 
 justified had he attacked the defendant and beat him with a cane; still less would the 
 circumstances have justified the unfortunate young man, who fell a victim to this most 
 unhappy and ever to be lamented dispute. For however a young and ardent son may 
 find advocates in every generous breast, for espousing his father's quarrel, from motives 
 of fi.ial affection, and just family pride ; yet the same laws which govern the other parts 
 of the case, would have pronounced him guilty, had he lived to answer for the attack 
 which was the cause of his death. 
 
 The laws allow a son to aid his father if beaten, and to protect him from a threatened 
 felony, or personal mischief, and in like cases a father may assist a son, and should a 
 killing in either case take place it is excusable; but neither one nor the other can justify 
 resorting to force, to avenge an injury consisting in words however opprobrious, or 
 writings however defamatory. — You will therefore consider, whether thesefacts, antecedent 
 to the meeting on 'change, can have much operation in the cause, let which partj' will, 
 be found by you to be in the wrong. — Upon the whole, therefore, of these circumstances, 
 should you be of opinion that the defendant, in order to avenge himself upon the father 
 of the deceased, prepared himself with the deadly weapon which he afterwards used, 
 went upon 'change with a view to meet his adversary, and expose himself to an attack, 
 in order that he might take advantage of and kill him, intending to resort to no other 
 means of defence in case he should be overpowered ; there is no doubt the killing amounted 
 to manslaughter — but if from the evidence in the case, you should believe that the de- 
 fendant had no other view but to defend his life and person from an attack which he 
 expected, without knowing from whom it was to come — that he did not purposely throw 
 himself in the way of the attack, but was merely pursuing his lawful vocations, and that 
 in fact he could not have saved himself otherwise, than by the death of the assailant — 
 tlien the killing was excusable, provided the circumstances of the attack would justify a 
 reasonable apprehension of the harm which he would thus have a right to prevent. Of 
 all this you are to judge and determine, having regard to the testimony of the several 
 witnesses who have given evidence to these several points in the defence. — The principles 
 which I have thus stated are recognised by all the books which have been read, and are 
 founded in the natural and civil rights, and in the social duties of man. — The last subject 
 on which I shall trouble you, is the address which has been so forcibly urged upon 
 your minds by the counsel on one side, and as zealously and ably commented on by the 
 Attorney General on the other, touching the necessity of excluding all prejudices and 
 prepossessions relative to this cause. I do not apprehend these observations were in 
 
460 APPENDIX. 
 
 any degree necessary, as I cannot bring my mind to fear that the verdict of twelve up- 
 right, intelligent jurors, selected by lot from the mass of their fellow-citizens, will be 
 founded on any thing beside the law and evidence applicable to the case.— Every person 
 of this numerous assembly, let his own opinion of the merits of the cause be as it may, 
 must be satisfied of the fairness, regularity, and impartiality of the trial, up to the pre- 
 sent period ; and sure I am, that nothing which is left to be done by you, will impair the 
 general characterof the trial. If you discharge your duty conscientiously, as I have 
 no doubt you will, whether your verdict be popular or unpopular, you may defy the 
 censure, as I know you would disregard the applause of the surrounding multitude. 
 
 Least of all do I apprehend that party spirit will come in, to influence your opinions. 
 However the storms of party rage may beat without these walls, I do not believe the time 
 has yet come when they shall find their way within. Nor do I believe that a general 
 apprehension is entertained, that a man accused of a crime is to be saved or destroyed, 
 according to the political notions he entertains. If ever the time should come, that a 
 general belief shall be entertained that trials are conducted and judgments given with 
 a view to the political character of the parties interested, vain and ineffectual will be 
 the forms of your constitution, and useless the attempts to administer the laws. A 
 general resistance would be the consequence, and if this belief should be founded in 
 fact and in truth, that resistance would, in my apprehension, be perfectly justifiable ; 
 forno people would be bound to respect the forms of justice when the substance shall 
 have vanished; when the fountains of justice shall be manifestly corrupt, and the forms 
 and parade adhered to for the purpose of imposing on the citizens, and subjecting them 
 to oppression under the garb of law. 
 
 You, gentlemen, will. not be the first to violate the solemn oath you have taken, and 
 seek for a conviction or an acquittal of the defendant upon any other principles than 
 those which that oath has sanctioned. And as I trust, that in performing my duty, I 
 have conscientiously regarded that oath which obliges me "faithfully and impartially 
 to administer the laws according to my best skill and judgment," so that in dischnrging 
 yours, you will have due regard to that which imposes upon you the obligation well and 
 truly to try the cause between the commonwealth and the defendant, according to law 
 and the evidence which has been given you. 
 
 Verdict, not guilty. 
 
 PHILADELPHIA RIOT CASES— 1844. 
 CHARGE OP KING, PRESIDENT, TO THE GRAND JURY, 
 
 FOE, SEPTEMBEK TEEM, 1844. 
 
 Gentlemen of the Grand Jury: — Important as are the ordinary duties imposed upon 
 the grand jury of a tribunal possessing exclusive and unlimited criminal jurisdiction, in 
 this great and populous district; they will be found seriously and solemnly enhanced, by 
 the course of ofiicial inquiries, consequent upon recent outrages, wliich have filled the 
 community with consternation and alarm. This once peaceful and law-loving people, 
 have witnessed the open assault of lawless violence on public order ; and the blood of our 
 citizens shed in support and opposition to the public law has crimsoned our highways. 
 Our city during these scenes of violence has exhibited the appearance of a town of war, 
 instead of the pacific seat of science and literature, of commerce and the industrial arts. 
 The timid have trembled for the safety of person and property; and even bolder spirits 
 have for a moment hesitated in the opinion, whether some fault did not exist jn the vital 
 organism of a social system, the workings of which displayed such terrifying irregulari- 
 ties. All these consequences seem to have flowed from unauthorized multitudes as- 
 suming upon themselves the authority to redress supposed wrongs, and punish supposed 
 offenders. May the mournful lessons of the past, deeply impress all with the certain 
 truth, that neither peace, safety nor security can prevail in any community except under 
 the guarantees of law and order ; and that the first and greatest duty which every citizen 
 owes to his country, is a reverential regard for these sacred and holy elements" of true 
 civil liberty. 
 
 If the common law was really wanting in adequate means for the prevention of a crime 
 fraught with such results, and for punishing it when committed, it might justly be re- 
 proached for inefficiency. Such, however, is not the truth. If on any occasion, the 
 peaceable and law-loving have sufi'ered from outbreaks, the fault will be found to have 
 arisen rather from misconception of the extent of its preventive powers, than their want 
 of adequate stringency. I cannot but think that absence of proper information on this 
 
PHILADELPHIA RIOTS — JUDOE KING'S CHARGE TO GRAND JURY. 461 
 
 subject both in the citizens generally, and the officers especially charged Tvith the conser- 
 vation of the public peace, as to the duty of the one and the authorities of the other, on 
 emergencies such as we have recently witnessed, has done much to produce results 
 deeply disparaging to the character of this community, the great body of which yield to 
 none in respect and vencraliou for law and its peaceful and uninterrupted exercise. I 
 state this, not by way of reproach or censure, but a^ the simple enunciation of a fact. — 
 The present seems a favourable occasion for the court to express its opinion on these in- 
 teresting topics, which although it cannot rtemedy the past, may not be without its whole- 
 some effect on the future. — Accordingly we propose instructing you as to what constitutes 
 an unlawful, what a riotous, and what a treasonable assembly ; and to explain the au- 
 thorities possessed.by sheriffs, justices of the peace and private citizens, for the suppres- 
 sion of such assemblies, and the arrest and detention of such offenders ; and what is the 
 protection given by law to its ministers acting for the advancement of public justice in 
 such suppression, arrest and detention. — Any tumultuous disturbance of the public peace 
 by three persons or more, having no avowed or ostensible, legal or constitutional object, 
 assembled under such circumstances, and deporting themselves in such a manner, as to 
 produce danger to the public peace and tranquillity, and which excites terror, alarm, and 
 consternation, in the neighbourhood, is an unlawful assembly. — Every tumultuous disturb- 
 ance of the public peace by three or more assembling together of their own authority, 
 with an intent mutually to assist one another against any who shall oppose them in the 
 execution of some private object, and afterwards executing the same in a violent and tur- 
 bulent manner to the terror of the people, whether the act intended is lawful or unlawful, 
 is a riot. — It is not necessary that any person, in order to bring himself into the perilous 
 position of a rioter, should be a chief actor in the scene of outrage. The common law, 
 founded on the teachings of centuries, holds that if any person, seeing ethers actually 
 engaged in the riots, joins himself to them, and assists therein, he is as much a rioter as 
 if he had first assembled with them for that purpose ; inasmuch as he has no pretence 
 that he came innocently into the company, but appears to have joined himself to them 
 with an intention of seconding them in the execution of their unlawful enterprise. And 
 it would be endless, as well as superfluous, to examine whether every particular person 
 engaged in a riot was in truth one of the first assembly, or had a previous knowledge of 
 their design. Every person who encourages, or promotes and takes part in the riots, 
 whether by words, signs, or gestures, or by wearing the badge or ensign of the rioters, 
 is himself to be considered such — for, in this crime, all concerned are principals. 
 
 One of the chief causes of danger in popular tumults, such as we have just passed 
 through, arises from the congregating, at the scene of outrage, of multitudes of persons 
 professing to be influenced by mere motives of curiosity. It is a notorious fact, that in 
 all the great riots that have, in this country and elsewhere, disturbed the communities 
 in which they have occurred, and prostrated the laws, the actual mischief is done by com- 
 parq,tively few, the strength of the meeting being composed of individuals who seem to 
 be passing spectators. I say seem — for although in many instances they are so, yet fre- 
 quently these same passive spectators really are in cordial union of feeling with the more 
 reckless spirits, who do the work of destruction, but, from cunning and caution, abstain 
 from apparent participation in their atrocities. This class of reasoning rioters are quite 
 conscious that their presence and quiet sympathy embolden the active partisans, by im- 
 parting that confidence always derived from numbers, while it alarms, hinders, and 
 embarrasses the officers of justice in their efforts to restore public order. No really well 
 disposed citizen should remain at such a scene, unless engaged in aid of the public authori- 
 ties. Were aU such either to stay away or depart, there would be less difficulty in deal- 
 ing with the avowed offenders. The dread of injuring the innocent would not then pa- 
 ralyze the ministers of justice, and the supporters and opponents of law would be arrayed 
 in uneqrdvocal battalia. 
 
 In adopting this proper course, such persons avoid placing themselves in a position, 
 from which they may find difficulty in extricating themselves. For, in riotous and tumul- 
 tuous assemblies, all who are present and not actually assistant in their suppression, in 
 the first instance are, in presumption of law, participants ; and the obligation is cast 
 upon a person so circumstanced, in his defence to prove his actual non-interference. — 
 When, however, the sheriff of a county, the mayor of a city, or any other known public 
 conservator of the peace, has repaired, in the discharge of his duty, to the scene of tu- 
 mult, and there commanded the dispersion of the unlawful or riotous assembly, and de- 
 manded the assistance of those present to aid in its suppression, from that instant there 
 can be no neutrals. The line is then drawn between those who are for, and those who 
 are against the maintenance of order, and with the forces of the one or the other, all 
 who see fit to- remain, must promptly arrange themselves. Those who continue looking 
 on while the active rioters are resisting the public authorities, and daringly moving on 
 to the consummation of their designs of destruction — who refuse to join with the authori- 
 ties, and witness their defeat without striliing one blow in aid of outraged law, are just as 
 
462 APPENDIX. 
 
 much rioters as those most active in the work of violence; and in such circumstances it 
 ■will avail them nothing that they appear only passive lookers on, instead of active rioters 
 and incendiaries. The idea intended to be conveyed by the court may be exemplified 
 by an actual occurrence during the riots of May last. On that occasion, after the rioters 
 had satiated themselves with destruction in Kensington, they proceeded to the city, and 
 collected in front of St. Augustine Church, threatening its destruction. The worthy and 
 excellent chief magistrate of the city, placing himself at the head of a police force, re- 
 paired to the scene of violence. The keys of the church were delivered to him by that 
 part of the congregation who previously had them in charge, and the church was left in 
 the immediate custody of the law ; no attempt or effort being made to otherwise defend it. 
 The mayor, seeing no disposition in the multitude to retire, addressed them, urging and 
 commanding them to depart in peace, and soliciting all good citizens to unite with him 
 in accomplishing this so much to be desired object. What followed? Not only was he 
 received with insults and imprecations, but actually assaulted, his ofBcers forcibly driven 
 off, and the church which had been given up to his protection and that of the law, was 
 set fire to and consumed, amid felonious and incendiary shouts. While this work of out- 
 rage was transacting in the heart of our city, hundreds stood gazing on the conflagration, 
 deaf to the admonitions of their chief magistrate, either to disperse, or aid him in main- 
 taining the laws ; refusing to perform their first and most sacred duties as citizens, which 
 required them to peril life itself, if necessary, in his support. Under such circumstances, 
 all who composed that lawless assembly, whether active participants in the arson, or ap- 
 parent spectators, refusing either to disperse or aid the mayor, were equally rioters. 
 Had the tithe part of them performed the duty of good citizens, the blackened walls of 
 that once stately edifice would not now be frowning reproachfully upon us. The time 
 has come when such things have arisen among us, that men should be taught their duty 
 to society in such emergencies, unless we desire to substitute unrestrained anarchy in 
 the place of legal government. 
 
 It follows from the principles discussed, that all who join in unlawful and riotous as- 
 semblies, are responsible criminally for the acts of their associates done in furtherance 
 and pursuance of their common object. "Where divers persons," says an ancient and 
 authoritative writer, "resolve generally to resist all opposers in the commission of a 
 breach of the peace, and to execute it in such a manner as naturally tends to raise 
 tumults and affrays, and in doing so happen to kill a man, they are all guilty of murder, 
 for they must at their peril abide the event of their actions, who unlawfully engage in 
 such bold disturbances of the public peace in opposition to and defiance of the justice of 
 the nation." If the fury of rioters is directed against dwelling houses, churches, and the 
 like, and they are destroyed by fire, all concerned in the riot are equally guilty of the 
 crime of arson, and liable to the severe and infamous punishment visited by the law on 
 its perpetrators. These undoubted doctrines of the common law should be known, paused 
 and pondered upon by all who are preparing to join in riots. In doing so they should 
 bear in mind, that they put their lives and liberties in the hands of the most worthless 
 and reckless offcasts of society, who generally are found conspicuous leaders of public 
 tumults. 
 
 I have heretofore spoken of riotous and tumultuous assemblies for private objects. — 
 When, however, the objects of such turbulent combinations are of a general and public 
 nature, in which the rioters have no special interest, they assume even a graver character. 
 Thus where the premeditated object and intent of a riotous assembly is to prevent by 
 force and violence the execution of any statute of this commonwealth, or by force and 
 violence to coerce its repeal by the legislative authority, or to deprive any class of the 
 community of the protection afforded by the law, as burning down all churches or meeting 
 houses of a particular sect, under colour of reforming a public grievance, or to release 
 all prisoners in the public jails and the like, and the rioters proceed to execute by force, 
 their predetermined objects and intents, they are guilty of high treason, in levying war 
 against the commonwealth. 
 
 Having, I conceive, sufficiently remarked on the nature and consequences of unlawful, 
 riotous and treasonable assemblies, 1 will proceed to point out the powers vested in the 
 public authorities, and in private citizens, to disperse such assemblies, and arrest their 
 perpetrators. They will be found so ample and efficient as to leave nothing but surprise 
 that their adequacy should be questioned.— An unlawful assembly, such as I have 
 described, may be dispersed by a magistrate whenever he finds a state of things existing, 
 calling for interference in order to the preservation of the public peace. He is not re- 
 quired to postpone his action until the unlawful assembly ripens into an actual riot. For 
 it is better to anticipate more dangerous results, by energetic intervention at the incep- 
 tion of a threatened breach of the peace, than by delay to permit the tumult to acquire 
 such strength as to demand for its suppression those urgent measures which should be 
 reserved for great extremities. The magistrate has not only the power to arrest the 
 offenders and bind them to their good behaviour, or imprison them if they do not offer 
 
PHILADELPHIA BIOTS — JUDGE KIXG's CHARGE TO GRAND JURY. 463 
 
 adequate Ijail, but lie may authorize others to arrest them by a bare verbal command, 
 ■without any other warrant ; and all citizens present ivhom he may invoke to his aid, 
 are bound promptly to respond to his requisition, and support him in maintaining the 
 peace. And a magistrate eitlier present or called on such an occasion, who neglects or 
 refuses to do his utmost for the suppression of such unlawful assemblies, subjects him- 
 self to an indictment and conviction for a criminal misdemeanor. — When, however, an 
 unlawful assembly assumes a more dangerous form, and becomes an actual riot, particvi- 
 larly when life or property is threatened by the insurgents, measures more decisive should 
 be adopted. Citizens may, of their own authority, lawfully endeavour to suppress the 
 riot, and for that purpose, may even arm themselves, and whatever is honestly done by 
 them in the execution of that object will be supported and justified by the common'law. 
 In the great London riots of 1780, this matter was much misunderstood, as it clearly 
 was with us, and a general persuasion prevailed, that no indifferent person could interfere 
 without the authority of a magistrate, in consequence of which much mischief was done, 
 which might otherwise have been prevented — But, as was observed two hundred and 
 fifty years ago, by the judges who decided as to the right of citizens to arm on their own 
 motion in suppression of dangerous riots, ' ' It would be more discreet for every one in 
 such a case to be assistant to the justices and sheriffs in doing so." This is equally pru- 
 dent and sound advice at this time. For on sheriffs and justices is the duty specially 
 cast, of conserving the public peace. The very name of sheriff indicates his duties, being 
 derived from two Saxon words, scyre, that is, shire or county, and reve, keeper or guar- 
 dian. He is both by the common law and special commission, the keeper of the peace 
 of the commonwealth within the county, and any neglect or omission on his part in the per- 
 formance of this great duty to the utmost of his power and ability, subjects him to heavy 
 legal liabilities, both civil and criminal. Of course, to execute such duties and encounter 
 such responsibilities, he must have the means of commanding adequate physical force. 
 For this purpose every citizen capable of bearing arms of every rank, description and 
 denomination, is bound to yield a prompt obedience to his command, and repair to meet 
 him at any appointed place of rendezvous within the county. This duty of the citizen is 
 absolute. He has no discretion in the matter, and if he neglect or refuse obedience to 
 the command of the sheriff requiring his aid in tlie suppression of a dangerous riot or 
 other insurrectionary tumult, he may be fined and imprisoned for such contumacy, at 
 the discretion of the court. His obligation to come to the aid of the sheriff is just as 
 imperative as that imposed on the latter to see the community suffer no harm from law- 
 less licentiousness. But unless the citizen promptly responds to his call, how is the sheriff 
 to act with effect ? His title and wand of office carry no magic with them, by which he 
 can overcome an armed mob. Those who love law and order, should not shrink or hesi- 
 tate in striking an honest blow for their protection, when threatened by lawless violence. 
 When such a timid and feeble spirit prevails, the days of the republic are numbered. — 
 This general duty, this universal obligation, extends to the citizen soldiers who, in com- 
 mon with all other members of the community, are required to be assistant in the main- 
 tenance of the public peace on the call of the civil magistrate. They are subject to the 
 same penalties in case of neglect or refusal to appear, as any other citizen summoned by 
 the sheriff. They do not, on such occasions, act in their technical character as military. 
 When assembled, they are but part of the sheriff's posse, and act in subordination to, 
 and in aid of, that ofScer, who is the true and responsible chief of all forces summoned 
 under his authority. If the soldiers act in any manner not authorized by law, they are 
 amenable for such acts, not to the military but the civil law. In brief, as to all rights 
 and authorities, they stand on the same footing with the other citizens summoned by the 
 sheriff, and composing with them his posse. 
 
 It is said that on the occasion of the recent riots, when the sheriff had summoned nu- 
 merous citizens to his aid, his command was, with but few honourable exceptions, treated 
 with neglect and disregard. If bills are laid before you, charging such a violation of 
 social duty on private citizens or volunteer soldiers, oflScers or privates, sustained by 
 sufficient proof, you should without hesitation find them, that the recusants may be dealt 
 with according to law. — It would be unreasonable that such duties and liabilities should 
 be imposed on sheriffs, justices, and citizens, by the common law, and no corresponding 
 authority given them to act equal to any emergency that might arise, or that they should 
 not be protected against lawless resistance in the execution of their public functions. — 
 But both authority and protection, to those who are doing the first duty of citizens, 
 against those who are violating it, are amply afforded by the common law. When en- 
 gaged in the suppression of dangerous riots, the sheriff and his assistants are authorized 
 to resort to every necessary means to restore the public peace, and prevent the commis- 
 sion of criminal outrages against person or property. They may arrest the rioters, detain 
 and imprison them. If they resist the sheriff and his assistants in their endeavour to ap- 
 prehend them, and continue their riotous actions ; under such circumstances the killing 
 them becomes justifiable. In a case where the danger is pressing and immediate ; where 
 
464 APPENDIX. 
 
 a felony hag been actually committed, or cannot otherwise be prevented, the sheriff and 
 his assistants not only may but afe bound to do their utmost to put down riot and tumult, 
 and to preserve the lives and property of the people. 
 
 If one man sees another in the act of burning a church, or dwelling house, or attempt- 
 ing to commit a murder, he has not only the right, but it is his duty to endeavour to pre- 
 vent him ; if the perpetrator resists, so as to make violence necessary in order to the 
 prevention, the circumstances are a sufficient sanction and exculpation for the conse- 
 quence of the violence, to whatever degree it may extend. This doctrine is undoubtedly 
 sound, both in reason and law, in a case of individual criminality, and individual inter- 
 vention to arrest it. It is, if possible, clearer when similar enormities are attempted by 
 vast'and riotous assemblies, and when the known officers of the law are engaged in the 
 endeavour to prevent their consummation. 
 
 The protection given to officers of justice engaged in enforcing the laws, is in like man- 
 ner full and unequivocal, and such are the sheriif and his assistants, civil and military, 
 engaged in the suppression of a great and dangerous riot, such as occurred in Kensington 
 in May, and in Southwark in July last. It may be premised, generally, that where per- 
 sons having authority to arrest or imprison, or otherwise to execute the public justice of 
 the commonwealth, and using the proper means for that purpose, are resisted in so 
 doing, and the party resisting is killed in the struggle, such homicide is justifiable ; and 
 on the other hand, if the party having such authority, and executing it properly, happen 
 to be killed, it will be murder in all loho take a part in such resistance ; this being consi- 
 dered by the law as one of the strongest indications of malice, an outrage of the highest 
 enormity committed in defiance of public justice against those under its special protection. 
 Ministers of justice, says a great criminal law authority, while in the execution of their 
 offices, are under the peculiar protection of Law. This special protection is founded in 
 great wisdom and equity, and on every principle of political justice. And the rule is not 
 confined to the instant the officer is on the spot, and at the scene of action engaged in 
 the business which brought him thither, for he is under the same protection going to, 
 remaining at, or returning from the same, and therefore if he cometh to do his office, and 
 meeting great opposition, retireth, and in the retreat is killed, this will amount to murder. 
 He went in obedience to the law and in the execution of his office, and his retreat was 
 necessary to avoid the danger which threatened him. And upon the same principle, if 
 he meeteth with opposition by the way, and is killed before he cometh to the place, such 
 opposition being intended to prevent his doing his duty, which is a fact to be collected 
 from the circumstances appearing in evidence this will amount to murder. He was 
 strictly in the execution of his office, going to discharge the duty the law required of him. 
 It follows from these premises that if such an officer successfully resists those who seek 
 to obstruct and hinder him from proceeding to the lawful execution of his duty, he is 
 justified, even should the lives of the assailants, their aiders and abettors, be taken, from 
 the necessary extent of the resistance so made. Surely the way of the transgressor is 
 hard. For it is thus seen that while felonious rioters resisting the lawful authorities 
 may be slain with impunity, if any one of the associates engaged in such common resist- 
 ance slays an officer of justice, all are involved in the common guilt of murder. And 
 this is perfectly just; for all engaged in such an outrage are aware that their acts are 
 unlawful, and that murder may result from such resistance. Where, however, the resist- 
 ance is carried on with the use of deadly weapons ; where cannon charged with every 
 species of offensive missile, and small arms loaded with ball are used, there is no room 
 for doubt as to all engaged in such resistance being guilty of murder, whether the proof 
 establishes the particular individual on trial to have actually fired the cannon and mus- 
 ketry or not. Being engaged in a riot, the avowed object of which was the killing of the 
 ministers of justice while engaged in the execution of their duty, every man concerned 
 is just as guilty of a murder committed by any one of such a combination, as if he actu- 
 ally struck the fatal blow himself How can such a man escape this conclusion ? Did 
 he not array himself with a lawless band, armed with the most dangerous and deadly 
 weapons, and having for their direct object the attack and destruction of the officers of 
 the law ? If the deaths of the officers follow, that is the intention with which the assault 
 is made. And surely there is neither hardship nor severity in holding all the members 
 of an illegal combination responsible for the acts of each done in furtherance of their com- 
 mon design. In one class of the cases likely to come before you, this clear doctrine both 
 of law and morals is most material to be considered by you. It is a doctrine whose 
 adoption as the basis of your deliberations in the cases alluded to, is of the deepest mo- 
 ment to the common security. Any other would tend to give impunity toriotous murder. 
 
 I regret that so much of your time has been occupied by the exposition of general prin- 
 ciples. The occasion, however, seemed to demand it. Strange misconceptions as to legal 
 principles, of the first importance in their influence on the maintenance of public peace, 
 and social order, seem to have misled the community. An exposition of the true doc- 
 trines of the common law will be found alike calculated to re-assure the timid, and check 
 
PHILADELPHIA EIOTS — JUDGE KING'S CHAEGE TO GRAND JUET. 465 
 
 the licentious. Tliey will exhibit, that we have laws adequate to meet aU public emer- 
 gencies, if they are firmly and vigorously administered, and that we have nothing to fear 
 except from time-serving pusillanimity in their execution. Their vindication and main- 
 tenance is the first duty of patriotism. Living under a government, where the laws derive 
 their existence and force solely from the consent of the governed, where those laws are 
 framed exclusively to subserve the common good, every citizen should regard their infrac- 
 tion as au outrage on himself, and be ready, prompt and eager, to sustain and support 
 them. 
 
 In your preliminary inquiries, the first thing which will naturally suggest itself for 
 consideration, is the true legal position occupied by those who are said to have con- 
 veyed arms and ammunition into St. Philip's church. This becomes necessary from the 
 fact that one or more persons are recognised to appear before this court for alleged 
 ofi'ences connected with this arming. — In resolving this question for your information, 
 we first inquire whether the proprietors of any church, meeting house, bank or other 
 public building, have the legal right to arm it for defence, against the rational and proba- 
 ble danger of a felonious assault; such as threatened arson, that being, by the statute law 
 of Pennsylvania, the crime of those maliciously burning any such building? And 
 secondly, supposing such arming not to be in itself illegal, whether it may not become 
 so from the manner of conducting and motives which induced such arming! — ^To the first 
 question thus proposed the court distinctly respond, that the arming of a church or other 
 public building against threatened malicious burning by a mob, such arming being in- 
 duced by a reasonably founded apprehension of the reality and danger of such threats, 
 is no offence against the laws of this commonwealth, but the simple exercise of a clear 
 legal right. By the common law a man is authorized to defend his person, habitation 
 or property against one who manifestly intends or endeavours by violence or surprise to 
 commit a known felony — such as murder, robbery, arson, burglary and the like, on 
 either. This right to defend, involves of necessity, the right to collect and prepare the- 
 means of making such defence effective. To deny the latter, makes the concession of the 
 former unsubstantial and iUusory. Although there is a peculiar sanctity attached to the 
 habitation of a citizen, and although in defending that which is expressively called his 
 castle, he may go to great extremities, yet that is not the only part of his property he' 
 can defend against a felonious assault. Nor can we perceive why the same right, which 
 pertains to individuals, to defend their property so assailed, does not extend to property 
 owned by corporations or other lawful associations of citizens. On the contrary, the law 
 gives to such legal associates the same rights as those possessed by individuals, to defend 
 their property thus attacked, to the last extremity. The right to prepare for such an 
 attack follows from the right to repel it. It is in vain to say that parties so threatened 
 by a mob ourfit to depend on the preventive justice of the commonwealth, and obtain 
 protection by Binding the persons so threatening over to keep the peace. — Against whom, 
 where the wrong is about being committed by a mob, is such application to be made ? — 
 The name of the mob is legion. To offer this as the sole protection to individual or as- 
 sociated property against threatened mob destruction, would be to surrender the innocent 
 and unoffending to the tender mercies of rioters and incendiaries. — But it is most mate- 
 rial to be borne in mind, that such armings are not under all circumstances lawful. — • 
 They may, as was asserted from this bench by Judge Jones at last term, be accomparaed 
 by concomitants making them clearly illegal and dangerous breaches of the peace. Thus, 
 if in arranging such means of defence, the parties engaged in it conduct themselves in 
 such a way as naturally to fill the neighbourhood of the scene with alarm and terror ; if, 
 from all the circumstances connected with the arming, the object seems to be to invite 
 assault rather than for bona fide self-defence; if the intention is to collect and arrange 
 materials for ultimate attack, either on individuals or the general community, then in- 
 deed does such arming become a great offence against the peace of the commonwealth, 
 demanding the most vigorous intervention of the law for its suppression. Our ideas on 
 this part of the subject may be advantageously explained by this exemplification. Sup- 
 pose, for instance, one or more of those fire companies, who are almost nightly disturbing 
 the community with their factious feuds, should openly, insultingly and tauntingly arm 
 their engine houses with deadly weapons; suppose their object in so doing, appears, from 
 all the circumstances attending it, to invite the attack of some obnoxious rival in order 
 to achieve the glory of a successful resistance; suppose such a state of things should 
 spread alarm and consternation in the neighbourhood of their fortification, from the natural 
 apprehension that the blood of the innocent might be shed along with that of the com- 
 batants, such, an arming would undoubtedly be illegal, and subject the parties engaged 
 in it to criminal censure. Other illustrations of the principle enunciated will suggest 
 themselves to the intelligent mind. Such, gentlemen, are the legal principles which the 
 court unhesitatingly present for your guidance on entering into the investigation of the 
 charges preferred before you, against the individuals concerned in arming St. Philip's 
 church. 
 
 an 
 
466 APPENDIX. 
 
 It is not my intention, gentlemen, to enter into a particular detail of the facts connected 
 ■with the recent riots. Their great and shameless notoriety renders this unnecessary. 
 Besides, I have so long trespassed on your attention that I am unwilling further to oc- 
 cupy it. They will appear before you from the examination of the witnesses, and you 
 can readily make the application to them of the law, as expounded. It would also be 
 difficult to do so without committing myself as to some statement that may here be the 
 subject of dispute. It seems to me, therefore, better that for the present I should con- 
 tent myself with the general allusions to them already made, which were indispensably 
 necessary as introductory to the principles indicated for your guidance and instruction. 
 
 In considering any bills submitted to you charging parties with murder, treason, 
 arson, riot, or other offences springing from the recent outbreaks, you will apply the 
 facts elicited to the principles exponnded, and find or not find the bills as the laws of the 
 commonwealth and the evidence in the case seem to demand. — Nor will I, gentlemen, 
 occupy you with any detailed reference to the ordinary business of the term. Tlie 
 legal nature of the crimes to which human frailty is continually liable, and which form 
 the routine of business of criminal courts, is generally so familiar to gentlemen charged 
 "with your duties, that under existing circuoistances, I will not engage your attention 
 with any special reference to them. If, however, in the course of your session you 
 should find yourselves embarrassed from the want of any legal information material to 
 the correct administration of your duties, it will be my pleasure, as it is my duty, to 
 furnish it. 
 
 On the great business of the term, the opinions of the court have been given to you 
 ■with a due sense of the responsibilities under which we labonr, but without hesitation or 
 equivocation. I am satisfied that on your part your public functions will be performed 
 with an equal regard to the safety and security of the public, and the lives and liberties 
 «{ the accused involved in the issue of your deliberations. — The result of deliberations 
 conducted under such influences, cannot but meet the approbation of your consciences 
 and the applause of your country. 
 
 CHARGE OF JUDGE KING, 
 
 ON THE TRIAL OP JOHN DALEY FOR MURDER. 
 
 Gentlemen of the Jury : — After a session of excessive labour, we have arrived at the 
 'Conclusion of the first of a series of causes, which, from the importance of their prin- 
 ciples, and the intense interest felt by the community in their results, are without pre- 
 cedent in the history of this Commonwealth. It is not to be expected in the nature of 
 things, but that an investigation in which so much'national, political and even religious 
 zealotry are involved, should exhibit the vehement excitement so painfully manifested 
 throughout its progress. In none of these feelings does this Court, in none of these feelings 
 should this jury participate. Our duties are holier. We are the chosen ministers of the 
 people of a great Commonwealth, called upon to decide between her and one of her 
 citizens, who is said to have forfeited his life by the violation of her laws. Our trust 
 equally demands, that the public laws should be vindicated to the full extent to which 
 they have been infracted; but that no particle of the rights of the accused guarantied 
 ■by those laws should be compromised in order to accomplish this end. Our duty is to 
 punish offenders, not to immolate victims; to execute the public law, not to search after 
 excuses for its violation. The task we have in hand is one requiring no common effort ; 
 but cool heads and honest hearts have achieved results more diiBcult. And rarely have 
 these constituents of impartial justice been more urgently demanded. We have had given 
 us versions of the unhappy events leading to this homicide, coming from sources ap- 
 parently equally trustworthy, seemingly irreconcilable with one another. 
 
 To those familiar with judicial investigations there is no novelty in this. We are per- 
 petually observing that witnesses, apparently equally honest, describing transactions 
 occurrmg in large, tumultuous and highly excited assemblies, are in some of their state- 
 ments respecting even prominent facts, in direct collision. These discrepancies may 
 arise from various circumstances. One man, from his immediate contiguity to the scene 
 of the occurrence he describes, from his attention being particulariy directed to it; from 
 his nervous organization, being cool in the midst of danger and excitement, and from the 
 natural superiority of his observing faculties, may truly detail actual events of instan- 
 taneous occurrence, which another, of equal integrity and seemingly with the same 
 means of knowledge, but less favourably circumstanced, has not noticed, and therefora 
 
PHILADELPHIA KIOTS — DALEY's CASE. 467 
 
 denies to have existed. The juvist, familiar with the nature and course of these dis- 
 turbing influences, makes the just allowance for them, and endeavours to reconcile such 
 conflicting statements. Where some witnesses testify to an occurrence happening under 
 their direct observation, and others swear they were present and did not see it, if the 
 thing said to have happened be such as it may reasonably be supposed some might see 
 or hear, and others not, by reason of any of the causes stated, the jurist rather con- 
 cludes both have given their exposition of the facts honestly, than that either has fore- 
 sworn himself. But if witnesses are in such direct collision that their testimonies can- 
 not be reconciled, the duty of the inquirer after truth becomes more complicate. IIo 
 should first coni^ider the number of witnesses on each side, as multiplied perjury is less 
 probable than individual instances. 
 
 He should then consider the capacity of the witnesses for observation, having regard 
 to their apparent intellectual power, and steady coolness of character, as displayed in 
 delivering their testimony. He should, however, have especial regard to the relative in- 
 diffcreBce of the conflicting witnesses to the point in question. Where two men testify 
 to the same fact, in direct opposition to each other, the one having no particular interest, 
 sympathy, or prejudice on the subject matter of investigation, the other manifesting all 
 the heat, bias, and zeal of an excited partisan, we are certainly more likely to obtain, 
 unvarnished truth from the former than the latter. In any and every case assuming 
 from its circumstances a partisan character, it is always safest, if practicable, to come to 
 our conclusion as to its real merits through lights drawn from sources having no con- 
 nexion with either of the contestants. Finally, in estimating the comparative forces of 
 conflicting testimony, you are to look into the probability or improbability of the re- 
 spective statements arising from the nature of the subject in question. Having tried 
 them by these tests, you should adopt the one most consonant with the convictions of 
 your understanding. 
 
 In a case like the present, which is readily divided into several distinct and prominent 
 parts, you will be greatly aided by taking up these parts in detail, aud in the orc|er of their 
 occurrence. In no other way can truth be so well arrived at, in a transactioit extensive 
 and complicate in its incidents, and testified to by numerous witnesses. If in such an 
 inquiry we look only to the testimony of an individual in order to form an opinion of the 
 whole transaction, we are involved in contradictions which want of ability in the witness 
 accurately to cover the whole ground of inquiry must almost inevitably produce. 
 
 This will be avoided by the more philosophic mode of examining the proofs of each 
 subdiyision in detail, and forming conclusions of the whole transaction in connexion, by 
 the aggregation of the results of inquiries as to each distinct part. This mode of ar- 
 riving at truth may indeed be more tedious than by blindly attaching exclusive faith to 
 individual statement. But the present is a case in which we are called upon to spare no 
 labour to get at exact and certain truth; one in which nothing would justify impatience 
 or indifference in its investigation. If we desire that the result of our toil be received 
 with the respectful and deferential acquiescence which ever follows impartial and honest 
 judicial action, we must manifest that we have commenced and concluded our labours 
 with an exclusive view to equal j usticc, and that our decision arises from the sober de- 
 ductions of reason and judgment, anxiously and conscientiously applied to the facts and 
 law of the case. 
 
 In the present state of our mutual exhaustion, I will not attempt a full recapitulation 
 of the voluminous testimony in the cause, all of which has been reduced to writing, and 
 accessible if required. I will content myself with a summary of the case as represented 
 by the testimony of the commonwealth and defendant respectively, so far as such sum- 
 mary seems necessary for the clearer understanding of the principles of law in which 
 the opinion of the court are applicable to each version of the facts assumed by the com- 
 monwealth and defendant. 
 
 The case supposed by the commonwealth to have been established by their testimony 
 is this; On Friday, the 3d of May last, a meeting of about three hundred citizens assem- 
 bled in the Kensington District, on an open space at the corner of Master and Second 
 streets, for the purpose of considering the expediency of a proposed alteration of the 
 law of the United States, in reference to the naturalization of foreigners, and promoting 
 the ends and objects of the Association known as the Native American Party. The 
 meeting was organized, and the offi-oers being placed on a temporary platform, erected 
 for the purpose, Mr. S. R. Kramer commenced an address, but was interrupted by a 
 large number of persons opposed to the objects of the meeting, among whom this 
 defendant was particularly prominent. A scene of confusion arose, and shortly after 
 the opponents of the meeting rushed forward, pulled down the platform, and dispersed 
 the meeting. To this violence the meeting offered no resistance, preferring to submit to 
 the aggression rather than resort to a forcible maintenance of their rights. It was, how- 
 ever, agreed by some that an adjourned meeting for the same purposes should be held 
 OQ Monday, the 6th of May, at 4 o'clock in the afternoon, at the same place. Thia 
 
468 APPENDIX. 
 
 version of the erents of the 3d of May is proved by the testimony of WUliam Craig, 
 S. R. Kramer, John M'Manus, and William Friheller. • It was Craig who proves Daley's 
 presence and participation. 
 
 On Monday, the 6th of May, a large meeting assembled pursuant to this adjournment. 
 After organizing, one or more persons addressed the meeting, but a heavy shower sud- 
 denly coming on, caused an adjournment to the Washington market, which is in the 
 immediate vicinity of the first place of assembling. The only event which disturbed this 
 meeting before its adjournment, arose from a man, named O'Neill driving a horse and 
 cart through the assembly, and shooting down its load of dirt in their midst. The Wash- 
 ington market stands north and south on a street of that name, running in the same 
 direction. On the west, Washington street is divided from Cadwalader street, which 
 runs parallel with it, by a strip of ground about 150 feet lyide, partly vacant. And on the 
 west side of Cadwalader street stood the Hibernia Hose house. No house intervenes, 
 between the west side of Cadwalader street, on that part of the dividing strip, between 
 the hose and market house, so that the communication between them is direct and unin- 
 terrupted. Shortly after the meeting re-assembled in the market, and almost imme- 
 diately after the speaking re-commenced, it was interrupted by a number of Irishmen. 
 This at once produced a fight between one of the Irish and a Native American, that led 
 to a collision, which drove the Irish from the market. About this moment Sharp, the 
 witness who gives us this account, says he saw a gun pointed out of a raised window in the 
 Hibei'nia Hose house and discharged against the crowd. This shot was returned by one 
 of the meeting from a pistol, and afterwards by two or three other persons. The firing 
 on the meeting then became more general, until it was routed and dispersed. John 
 Daley, the prisoner, was seen firing on the meeting, from a point not in its immediate 
 vicinity, by Sophia Clark, who has stated the circumstances before you in detail. 
 
 It was at some stage of the firing on Monday that George Shifder was killed. Several 
 other persons, Sophia Clark says ten or twenty, besides the defendant, were observed 
 firing on the meeting from the vicinity of Master street, which lies south, and Jefi'erson 
 street, which lies north of the market, and the Germantown road, which runs parallel 
 with Washington and Cadwalader streets. None of these persons seem to have been at 
 the actual scene of the first outbreak, but acted with the assailants of the meeting at 
 those distant points. 
 
 In respect to the origin of this transaction, it is proved by John Donnel, who, to a 
 certain extent supports Joseph Sharp, that h» was among the first of the meeting of the 
 6th of May, who came over from Second and Master streets to the market, when the 
 adjournment consequent upon the rain took place. He there saw a man somewhat in- 
 toxicated, with his shirt sleeves rolled up to his elbows, who exclaimed, as the Natives 
 rushed toward the market, "Keep the damned Natives out of the market house; this 
 ground don't belong to them — this is ours." He says there were thirty or forty persons 
 present with their sleeves rolled up in the same way, and as he said the word, they all 
 started up and got close together, cheering and huzzaing as the Natives entered the 
 market house ; that this man struck the first blow. The witness then went away, and 
 had not proceeded more than one hundred feet when he heard the first firing which 
 seemed to proceed from Cadwalader and Master streets. Afterwards he heard a good 
 many shots, but who they proceeded from he did not know. The witnesses of the com- 
 monwealth who speak in reference to the doings of Monday, the 6th of May, are Augus- 
 tus R. Peale, Sophia Clark, Wm. Craig, Joseph Sharp, John Donnell, John Perry and 
 George Friheller. This occurrence, which was certainly calculated to produce excite- 
 ment, aroused the most intense feeUng in the public mind. A meeting was caDed to be 
 held on the next day, Tuesday, the 7th inst., in Independence Square, which, contrary 
 to the advice of the more prudent and judicious leaders of the Native American Party, 
 adjourned to reassemble at the Washington street market house, in Kensington, to which 
 they proceeded in a body, all, say the Commonwealth's witnesses, without arms -the 
 great body certainly unarmed. The meeting carried with them an American Flag, 
 across which was an inscription in these words: " This is the flag that was trampled on 
 by the Irish Papists." The approach of this meeting seems to have been anticipated 
 and fully prepared for by the Irish party. One witness for the commonwealth, Mrs. 
 Morton, proves that while the meeting was advancing up Second street, towards the 
 scene of action, she saw several men in Cadwalader street, who, as the meeting crossed 
 Cadwalader street, exclaimed: "Now the women and children in the houses, and every 
 man to his gun." About the same time, Stephen Winslow saw a crowd standing at the 
 corner of Cadwalader and Master streets. As the meeting advanced, they ran up Ger- 
 mantown road to an alley, exclaiming, "Get the guns." Of these, six or eight wentinto 
 the alley and came out each with a musket. Edwin Greble, from curiosity, rode up in 
 a carriage m advance of the meeting, and stationed himself in Second street, opposite 
 Harmony Court, m which Daley, the defendant, resided. As the meeting approached, 
 he saw a number of armed men standing in and about the court. The first demonstra- 
 
PHILADELPHIA RIOTS — DALKY'S CASE. 469 
 
 tion he saw from the meeting below, was four or five boys running out of the market 
 house, north-east ; when these armed men above deliberately levelled their guns and fired. 
 They seemed to go up Harmony court, load, and run out towards the market, and fire. 
 Some fired where they stood. One man appeared to go stealthily, as if seeking for game. 
 
 Martha Longshore swears positively to the defendant Daley being among the party in 
 the vicinity of the Germantown road, Harmony court, and Jefferson street. She saw him 
 with them with a gun, which he discharged down Jefferson towards Cadwalader street, 
 returned and loaded his gun. Mr. O'Neil, one of the defendant's witnesses^ saw him at 
 a late hour in the same vicinity with a party of eighteen men, all armed, and he among 
 the rest. Wm. Friheller saw him with the same party with a powder flask assisting them 
 to load. Jacob Trollenger saw him furnish them with ammunition. Harmony court 
 seems to have been the head quarters of the Irish party, and from that point and its 
 immediate vicinity was the position from which those not operating in the houses acted 
 most unitedly and effectually. The meeting had not all reached the market house when 
 the first blood was shed. When part had arrived and were about organizing, Thomas 
 S. Harris states that he inquired of some one for the Hibernia hose house. It was 
 shown to him, and as he got his eye upon it he saw a gun pi iated out of the second 
 story window and fired upon the crowd. The crowd immediately rushed to the hose 
 house, forced its doors and dragged the carriage towards Master street. At this moment 
 a volley was fired in the direction of the carriage, and another immediately followed. 
 That after this he turned and saw a man with a gun come from behind a brick house in 
 Cadwalader street, kneel down and fire. This shot was said to have killed a man named 
 Young. Fortunately for Young, he escaped with a severe wound, the ball passing 
 through him. That the first=firing came from the vicinity of the Hibernia hose house. 
 
 The general course of the testimony shows the difference between the witnesses to be 
 whether the firing preceded or succeeded the attempt to break into the hose house and 
 take and destroy the Company's carriage and apparatus. The firing into the market 
 house then became general and severe. Mr. Peale says he remained in the market 
 house about fifteen minutes, and that all that time it was fired into. On leaving it he 
 went into Cadwalader street, where one ball passed close to his ear, another through his 
 fingers, a third struck his hand, but its force being spent did him no injury, and a fourth 
 struck his left arm, splintering the bone to such an extent as to require immediate am- 
 putation, and thus maiming him for life. The meeting was routed and dispersed by the 
 severity of the first attack. But a rally was soon made by the routed party ; deadly 
 weapons were collected, and a desultory and bloody combat continued between the 
 parties until the approach of the military, late in the evening, arrested the combatants. 
 The Commonwealth's witnesses generally deny that there were any ostensible arms 
 among the meeting at the outset of the affray, but the proof is perfect that their oppo- 
 nents, to use the language of one of the defendant's witnesses, were "armed to the hilt," 
 prepared for their reception. One man is shown by George Young, a witness examined 
 for the Commonwealth, to have been at the meeting armed with a double barrelled gun. 
 
 The next material circumstance occurring on the 7th, is that of the death of Hammit. 
 All the testimony seems to agree that he was shot at the corner of Jefferson and Cad- 
 walader streets. How and by whom are the disputed points. George Friheller proves 
 that he saw one of the party at Jefferson street, and Germantown road, in which asso- 
 ciation Daley is distinctly traced by the Commonwealth's evidence, take deliberate aim 
 with his gun at a rest at a man coming across Jefferson and Cadwalader streets. The 
 man fell. This person had a gun lying across his arm ; which when he fell a man came 
 down Cadwalader street and took away. The witness then says that some men came 
 waving handkerchiefs to take the body away, but that the firing party pointed their 
 guns at them and cried "let him lay." That these men returned, and dragged the body 
 away by the arms. John M'Cleary proves that he saw a man lying dead in Cadwalader 
 near Jefferson street. That he attempted to remove the body, when the men at the 
 corner aimed at him ; that he waved his hat at them, and that with the assistance of 
 another young man he carried the body down Jefferson street ; that these men fired at 
 them and they dropped the body, which they afterwards took up and removed. He 
 afterwards learned the name of the deceased was Matthew Hammit. Peter Kenney, one 
 of the defendant's witnesses, states that Matthew Hammit crossed over to the corner of 
 Jefferson and Cadwalader streets; that two of the men at the corner of Jefferson street 
 and the Germantown road, fired at him and missed him; that then one kneeled, took 
 deliberate aim at him, fired, and Hammit fell. That at the moment he was shot, he had 
 his gun pointed up Cadwalader street, in a direction north ; the men who shot him 
 standing at the corner of Jefferson street and Germantown road, west. That when some 
 men came to take the body of Hammit away, these men at Germantown road aimed, but 
 did not fire at them; that the men near Hammit's body then waved their handkerchiefs, 
 and those at Germantown road cried out to them to take his body away; that Daley was 
 back am" " " "''^'' ^' "~ ~ ' "^ ^ ' no gun. John Daley, another of the com- 
 
470 APPENDIX. 
 
 monwealth's witnesses, aair Hammit shot at the north-east comer of Jefferson and Cad- 
 Tralader streets — he saw him fall on the pavement, with his head to the curbstone. He 
 heard the report of guns, but does not know from what quarter the shot came that killed 
 him. As he received the wound, his tarpaulin hat flew off, the ball penetrated the brain, 
 passing through his ear. The witness went in pursuit of assistance, returned with 
 M'Cleary and another person, and attempted to remove the body. Before they got to 
 the body, the men with arms pointed them at the witness and the man assisting him, 
 when they waved their handkerchiefs, and then the armed men halloed to them to take 
 the body away. When, however, they had carried the body about fifteen yards, they 
 were fired at, but not, it seems, by the men at the corner of Jefferson street and the 
 Germantown road. The body was then carried away. 
 
 Independent of the testimony for the defence, it would seem very clearly established 
 by this chain of testimony coming from four witnesses, that Matthew Hammit lost his 
 life by a fire from the party at the corner of Jefferson street and Germantown road. 
 ■William Shields, one of the commonwealth's witnesses, certainly throws some doubt on this 
 otherwise clear statement. He says he saw Hammit coming up Master towards Cad- 
 walader street, with a gun in his hand; that he advised him to stay away, but he refused 
 taking his advice, saying he would "stick to them." He says he fell at the corner of 
 Jefferson and Cadwalader streets, the witness standing in Cadwalader street, ten feet 
 below Jefferson; and that he saw him shot from a blue frame in Harmony Court, by a 
 short man, in a frock coat, having a black hat on. He says that before he was shot, he 
 fired his gun in Cadwalader street near Master street. How far this statement shakes 
 the conclusions seeming to follow the testimony of the other witnesses is for your decision. 
 The witness was before you ; you heard his statement, saw his manner, and can estimate 
 how far his recollections are to be preferred to those of others describing the same 
 transaction. It seems clear from all the testimony that when Hammit was killed, he 
 was alone; the only associate he had with liim about that time was Wm. Shields, who 
 left him before he was shot. He therefore was not at the immediate instant of his death 
 directly engaged with any associate in wrong. The witnesses who describe the armed 
 band congregated at Jefferson street, Germantown road, and Harmony court, and their 
 deportment from the time the meeting came in sight, up to the arrival of the militaa'yin 
 the evening, are Martha Longshore, Jacob Trollenger, Wm. Friheller, J. W. Barton, 
 Edwin Greble, John M'Cleary, Stephen Winslow, John Daley, AVm. Shields, John M'Kee, 
 George Friheller, John Craig, and John Steel. Having thus given you a general sketch 
 of the commonwealth's case, which 1 leave you to fill up from your recollections of the 
 testimony, I will in the same way endeavour to group the testimony of the defendant 
 following in the like order. In such a generalization, I njay omit many things which 
 the defendant's counsel regard and have commented upon as important to the defence. 
 Of course all these matters will be properly estimated by you, in considering of your 
 verdict, which is to be founded on the entire testimony adduced. I wish you distinctly 
 to understand, that these summaries are given for the better appreciation of the princi- 
 ples of law, which it is my duty to expound to you ; not to control or interfere with your 
 right to pass upon the facts. And first, as to the defendant's version of the transactions 
 of the third of May. The only witness examined on the part of the defendant, in respect 
 to the doings of that day, Joanna Maloy, substantially shows the violent and unjustifiabie 
 breaking up the meeting. She however says, that previous to this event the speaker 
 said "that there was a set of citizens, Germans and Irish, who wanted to get the Consti- 
 tution of the United States into their own hands, and sell the country to a foreign power." 
 That some one from the meeting exclaimed "that is the Pope, to hell with him." That 
 another individual called the speaker a liar, and said he was an Irishman and a natu- 
 ralized citizen, and would support the constitution. It was at this time and under these 
 circumstances, that the rush was made at the stage, which was pulled down and the 
 meeting dispersed. It is here proper to call your attention to the fact, that the speaker, 
 on that occasion, Mr. Kramer, distinctly denies having used the language attributed to 
 him by Joanna Maloy at this, or any other time, in addressing the public in mafntenance 
 of the principles of his party. He is supported, with respect to the 6th of May, by the 
 testimony of John M'Manus. 
 
 In reference to the events of the 6th of May, the testimony of the defence is in more 
 serious collision with that of the commonwealth. The testimony however generally, 
 seems with that of the commonwealth, to show that until the adjournment of the meeting 
 from the comer of Second and JIaster streets to the Washington market, the meeting 
 was not disturbed otherwise than by O'Neil's cart. It was after the meeting had com- 
 menced their deliberations in the market, that the first serious difBculty between friends 
 and opponents arose. At this time the defendant's testimony shows, that a fight origi- 
 nated on the western side of the market house, between two or more persons which was 
 joined by others, amid cries of " Kill the damned Irish," and the like. Almost immediately 
 after this fight began, a pistol or pistols were discharged from the eaves of the market 
 
PHILADELPHIA RIOTS — DALEY 'S CASE. 411 
 
 towards Cadwalader street, which the defendant's witnesses say were the first fire-arms 
 used. The firing was returned from an alley near the Hibernia hose house. At the 
 commencement of the firing, the body of the persons assembled in the market house 
 dispersed. A combat with brick bats and similar missiles, was however afterwards 
 maintained by the few who remained. During this conflict which lasted some time after 
 the first onslaught, fire-arms were used by both sides. Towards night the neighbour- 
 hood became apparently quieted. After night fall a number of persons attempted to set 
 fire to a Roman Catholic school house, at Second and Phoenix streets. They were fired 
 upon by persons prepared to defend it, and two persons, Wright and Ramsey, killed. 
 The assailants were dispersed, and with this iinhappy and deplorable incident the event- 
 ful 6th of May terminated. The witnesses sustaining these views are Joseph Wood, 
 Alexander Brown, Alfred M. Clark, Wm. F. Small, Mary Baker, Joanna Maloy, Michael 
 Keenan, A. MuUin, Elizabeth Browne, Edward Sheridan. Besides these the defendant 
 Daley standing on his defence independent of the general grounds taken, attempted to 
 prove that he was at another place on the afternoon of the 6th of May, and not inter- 
 fering with the meeting at Washington market. The witnesses examined to prove this 
 defence technically known as an alibi, were Sarah Dillon, the prisoner's step-daughter, 
 and Elizabeth Bennett, a next door neighbour. Of course, in applying the events of the 
 6th of May to the case of John Daley, this testimony will be considered. Always bear- 
 ing in mind that a position of this kind taken by an accused, is one that demands from 
 the jury the closest scrutiny. It is a defence frequently simulated and often resorted 
 to, in order to defeat justice; although when clearly proved is among the most satisfac- 
 tory of defences. The events, however, of the 6th of May, like those of the 3d, are not 
 the primary objects of inquiry. They are only important as manifesting the mind of 
 Daley and his associates, in the doings of the 7th, which it is insisted by the common- 
 wealth were but the continuation and consummation of the original violence of the Sd 
 and 6th. 
 
 The history of the doings of Tuesday, as it is presented by the defendant's testimony, 
 is in much stronger collision with that of the commonwealth. And as the transactions 
 of that day are the main subjects of this inquiry, the testimony bearing on them on both 
 sides demands peculiar attention. This testimony naturally begins with the call and 
 character of the public meeting which assembled at Independence Square, on Tuesday, 
 the 7th of May, at 3 o'clock. This meeting was summoned by Mr. Peale, and in the 
 form he originally put the call there seems to have been no offence. At the instance of 
 a Mr. Gihon, a postscript was added in these words, "Let every man come prepared to 
 defend himself." As to this fact no difl'erence exists in the testimony. A meeting 
 accordingly assembled, at which much vehemence and feeling were manifested. A pro- 
 position made by Mr. Peale to hold an adjourned meeting on Thursday failed, the excited 
 majority resolving to adjourn to meet forthwith at the Washington market, in Kensing- 
 ton. Several witnesses have been examined to prove that arms had been actually 
 brought to the meeting. Jacob Loudenslager, one of the city police, proved that he 
 took a double barrel gun from a man in the State House yard, who when asked what he 
 purposed doing with it, said he was going up to Kensington. The gun was taken from 
 him and given into the custody of the Mayor. This witness saw no other guns in the 
 meeting. George B. Brown says he saw two persons with horse pistols, which they 
 concealed with their handkerchiefs. Mr. O'Neil saj'S he saw one man with an iron bar- 
 relled pistol, another with a double barrelled one disputing which was most eff'ective. 
 As the meeting approached its destination he saw one man cross to Cadwalader street 
 ■with a gun ; that after him followed three men with guns in advance of the meeting. 
 Lewis Snell proves that two men with guns joined the meeting at Second and Coates 
 streets, the vicinity of the place of meeting, probably the persons seen by Mr. O'Neil. 
 R. J. Fougeray saw the meeting at Phoenix and Second street, near the market noticed 
 a number of men with arms. Some with single and some with double barrelled guns. 
 I have said that the commonwealth's witnesses deny distinctly that there was any osten- 
 sible arms when the meeting left Independence Square. These statements are recon- 
 cilable on the supposition that some openly armed men joined the procession in its pro- 
 gress, as is stated to have been the fact, by Snell. The meeting proceeded, on the 
 adjournment, towards Kensington in a very large body, carrying with them an American 
 flag, across which was written, on a placard aflixed to it, "This is the flag that was 
 trampled upon by Irish Papists." It may here be observed that one of the defendant's 
 witnesses, Joanna Maloy, proves that the flag raised at the meeting of Monday was 
 dragged along the ground in the hurried adjournment which followed the rain, which 
 first caused the separation of the meeting. 
 
 The first witness in order of time who proves the circumstances connected with the 
 inception of Tuesday's meeting on behalf of the defendant, is George H. Martin. He 
 was at the meeting in Independence Square, in which he says he saw no fire-arms. 
 Being on horse back, he arrived in front of the market about fifteen minutes before the 
 
472 APPENDIX. 
 
 main body reached it; he stood in the street at the north end of the market house, and 
 was there a few minutes when the meeting arrived at the south end, near Master street. 
 He saw two Irishmen and two women in the street ; the crowd, he says, commenced 
 stoning the women, and on his calling on them to desist they did so ; he told the Irish- 
 men and the women to go home, which they did unhurt. The people then began to 
 throw stones at the houses on the west side of the market; one man ran and jumped 
 with both feet against the door of one of the houses : thinking they would be defended, 
 he retired and had not gone more than twenty yards before he heard the report of fire- 
 arms, and the crowd soon dispersed. After the dispersion of the meeting, and about an 
 hour after the crowd first came up Second street, he saw a body of some twenty or 
 thirty men form in files of two abreast, armed with shot guns, come up through the 
 market, formed in open order on the lot, and commence a fire at the houses on the west 
 of the market. The fire was returned from the houses on Cadwalader and Washington 
 streets, which was kept up for half an hour ; one man was killed at the west end of the 
 market house : the firing he says was continued in various places until the arrival of the 
 military. R. J. Fougeray, another witness for the defendant, saw the meeting coming 
 up Second street : the witness went to the S. W. corner of Cadwalader and Master streets, 
 and saw the procession come up. But a few moments elapsed when the boys and men 
 at the head made an attack on the Hibernia hose house and broke the doors open. He 
 was on a line with the hose house, and not a hundred yards from it. He saw some men 
 at the corner of Cadwalader and Jefferson streets with guns, who fired down Cadwalader 
 street, as he thought, at those attacking the hose house ; this fire was returned by some 
 eight or ten men on the open lot at Master street: then the firing became general. Wit- 
 ness remained in his original position until RhinedoUar was brought down dead. This 
 combat continued from an hour to an hour and a half. He says the disturbance began 
 with the arrival of the meeting; that there was no attempt to organize. The demon- 
 stration upon the hose house came from the meeting, and the first firing came from 
 Jefferson street after the attack on the hose house. After the firing began, a number of 
 persons came from the direction of the city with fire-arms. When the men from above 
 fired, they ran ; he could see as far as Harmony court, and saw persons fire from that quar- 
 ter. John Mathey s states that he came to the ground in a cab with some friends, and taking 
 his station on the south side of Master and east side of Cadwalader streets : saw a num- 
 ber of boys at the head ; the disturbance began by the boys, who rushed to the hose 
 house ; battered the doors with stones ; burst them open, and were about taking the 
 carriage out, when he heard the first shot; they took the carriage down the street, and 
 were breaking it, when there was firing again; afterwards they commenced firing sharply 
 on both sides. He says the carriage was taken out before any shot was fired, and that 
 shot was from a pistol. When they attempted to break the carriage, the firing was 
 heavy and the crowd desisted. He saw firing from the houses, &c., from the pavement 
 on the west, firing eastward. He saw men among the crowd with muskets and fowling- 
 pieces. When he left the crowd they appeared forced back by the firing of their 
 opponents. To questions put by the court, he said the first fire came as the boys 
 were about taking out the hose carriage; that he thought it was a pistol from firemen 
 defending the hose house. That it caused a rush to the house by the men and boys, 
 who took the carriage to the lot and attempted its destruction: and that then there was 
 firing from the hose and other houses. This witness says he saw four or five men 
 with arms march from the people who came up Second street, into the lot in front of 
 the hose house. 
 
 Alfred M 'Clark's testimony has not the same minuteness as that of these witnesses, 
 but it is generally confirmatory. Wm. Buck testifies that he met the crowd in Second 
 street, and begged them not to go up to that market, as many would be killed and the 
 balance would have to run away. The reply was, that they would be afraid to do any thing 
 as they had got such a crowd. 'William Heedman was at the market when the proces- 
 sion arrived; says they attacked the hose house with brick bats and stones, and got 
 away the carriage; that after the carriage was out the firing began from the hose house 
 and houses near it. That the first came from the hose house, and that he heard no fire 
 from the north end of the market, nor the market itself, and, if there had been any, 
 thinks he would have heard it; that there were eight or ten guns fired from the hose 
 house. Joanna Maloy was in the Master street school house; saw the crowd come up 
 Second street ; they made a rush towards the market, and, as they were crossing, several 
 guns were fired from the crowd; that then the hose house was broken open. John W. 
 Keen came up with the meeting ; saw a man throw a stone at the hose house ; that then 
 the mob burst it open, and the carryige was brought out, when a shot was fired, followed 
 by others. Some ran when the finng commenced, which was from those opposed to the 
 meeting; the fire dispersed the meeting ajmost entirely, and, as the witness went down, 
 he saw men coming up with guns, who appeared to have come from the Northern Liber- 
 ties. Mrs. Brown states that there were rumours that the Natives were coming up 
 
PHILADELPHIA EIOTS — DALBY's CASE. 473 
 
 on Tuesday. Mrs. Malone states she saw the meeting arrive between four and five 
 o'clock; that some of the men, armed with guns, pushed her down on the cellar door, 
 broke into her house, inquired for arms, asked lier if she would die for her religion, said 
 they would shoot her husband to inches, if they had him, but would not hurt a woman. 
 Finding no guns, they went away. This witness was manifestly in a great, and, under 
 the circumstances, natural state of trepidation and alarm from the terror of the scene 
 and anxiety for her husband. Francis Brady's testimony is of a general kind, de- 
 scriptive of the effect produced by the events of the afternoon on the inhabitants of the 
 district. 
 
 When the testimony relating to the events of Tuesday is carefully collated and com- 
 pared, the extent of the collision between the different witnesses is not so serious as would 
 at first be supposed. The essential point of diiference between them, is as to when the 
 Irish party first fired, whether before or after the Hibernia hose house was rushed upon 
 and broken into by a portion of the meeting. The commonwealth's witnesses, who 
 speak directly and affirmatively to this part of the case, declare the first fire to have 
 come from the hose house, before any attack upon it. This is as distinctly denied by 
 the defendant's witnesses, who assert the first fire to have followed the assault. In point 
 of numbers, the witnesses of the defendant certainly preponderate, and there are among 
 them many native American citizens, having no apparent connexion with either of the 
 conflicting parties. It is for you to consider and determine on which the greatest reli- 
 ance is to be placed. From the whole testimony it also appears that the meeting was 
 generally routed by the first firing, and that the subsequent bloody contest was between 
 the assailants, of the meeting and a body of armed men, who rallied and formed on the 
 vacant lot on the north side of Jefferson street, whose appearance and conduct are clearly 
 described by Mr. Martin. It was about this time that Hammit was killed — Shields, his 
 companion, says that he heard the guns going oft' over by the market, about five o'clock ; 
 that he went over to the property of John Rox, corner of Second and Master streets, and 
 after seeing the firing and riot, he "backed out a little while; that he saw Mr. Hammit 
 coming up Master towards Cadwalader street; told him he had better stay from there, 
 but Hammit said he would go, and refused to take his advice, saying he would " stick 
 to the rioters." This testimony would seem to fix the time of Haramit's approach to 
 some time after the firing began, and to render it probable that he acted in unison with 
 the armed body described by Mr. Martin. I will conclude this summary by calling to 
 your recollection the testimony as to the previous good character of the accused, which, 
 if the proofs of his guilt are at all doubtful, will receive its due estimation in your de- 
 liberations. If the call of the meeting of the 3d of May, was addressed exclusively to 
 persons favourable to its objects, the interference of individuals, hostile to its proceed- 
 ings, and the breaking up and dispersion of the meeting by them, was a gross outrage 
 on the rights of those who called it. It was a riot of a flagrant kind. Any body of 
 citizens having in view a constitutional and legal purpose, have the right, peaceably and 
 quietly to assemble together for its consideration and discussion. Any attempt by 
 another body of citizens opposed to the objects of the asfemb'y, to interrupt and dis- 
 perse it, is not to be tolerated. In this instance it has led to the long train of riots, 
 murders, and arsons, which have disgraced our city and shaken the foundations of social 
 order. American citizens, native and naturalized, should act on the principle that error 
 is harmless while reason is left free to combat it. Every attempt by force and violence, 
 to interfere with the rights of citizens, to meet and discuss proposed lawful public 
 measures, is the direct infraction of a vital principle of our institutions. State and 
 National. But a public meeting, otherwise legal, may, from the manner, place, and cir- 
 cumstances of its organization, become an unlawful and even a riotous assembly. Thus, 
 if it is true, as has been stated in proof here, that the meeting of the 7th of May, in 
 Independence Square, was convened under a notification to those who attended it to 
 come armed; if in pursuance of such a suggestion, it was attended by persons armed 
 with deadly weapons; if tlie meeting so summoned and assembled, adjourned to march 
 in a body to a place principally inhabited by citizens notoriously opposed to its objects, 
 openly exhibiting arms, and displaying banners containing inscriptions lacerating to the 
 feelings of such citizens, the assembly sunk from the dignified position of a body of free- 
 men exercising a great constitutional right into a mere riot. The adjournment of this 
 meeting to Kensington, was as imprudent as it was illegal and disastrous ; and it is to 
 the credit of some of the gentlemen concerned in getting it up, that they strove against 
 it; and most unfortunately for this community their sober counsels were disregarded, 
 and those of rash and hot-headed zealots adopted. The sorrowful history of the 7th of 
 May would not have been found In our city's annals, nor the painful task impofed on 
 us, of deciding the solemn question whether many of our fellow men shall live or die for 
 acts consequent upon this adjournment. In expressing the opinion of the court, on the 
 legal principles involved in this inquiry, I will, after noticing the general doctrines dis- 
 cussed, examine those urged by the Commonwealth, as requiring the conviction of the 
 
474 APPENDIX. 
 
 accused ; and afterwards consider those insisted upon as demanding his acquittal. In 
 performing this duty, I shall simply expound principles, leaving their application to you. 
 Murder, as defined by the common law, is when a person of sound memory and dis- 
 cretion, unlawfully kills any reasonable creature in being, and in the peace of the com- 
 monwealth, with malice prepense or aforethought, either expressed or implied. Each 
 branch of this definition must be carefully considered, but the last requiring the act 
 should be done with malice aforethought, demands peculiar regard. Malice in the 
 legal, as contradistinguished from the popular sense of the word, does not denote a 
 spite, or malevolent feeling against the deceased in particular, but that the fact of kill- 
 ing has been attended with such circumstances as are the ordinary symptoms of a 
 wicked, depraved, and malignant spirit — a heart regardless of social duty, and fatally 
 bent on mischief. Express malice is where the killing is the result of a sedate, delibe- 
 rate mind, and formed design; this internal feeling being manifested by external cir- 
 cumstances, such as antecedent menaces, former grudges, and concerted schemes to do 
 the party bodily harm. Malice is implied by law from any deliberate, cruel act, com- 
 mitted by one person against another, however sudden; or where the fact has been 
 attended with such circumstances as to carry with them the plain indications of a malevo- 
 lent and diabolical spirit. Although in homicide there may be no provocation of such a 
 character as to rebut the legal inference of malice, yet provocation has its defined legal 
 limits. No breach of a man's word, no mere trespass on his lands or goods, no insults by 
 words, however offensive, will free a party killing, from the guilt of murder. This rule 
 certainly holds good where the party killing upon provocation, makes use of a deadly 
 weapon, or otherwise manifests an intention to kill. None can doubt that gross insults, 
 or wanton destruction of property, are as well calculated to provoke, as anything which 
 can be done by one man to another. Yet the law, wisely judging that too great latitude 
 should not be given to the taking away of human life, refuses to extend it to the provo- 
 cations enumerated, particularly where the party killing uses a deadly weapon. 
 
 Where divers persons resolve generally to resist all ofiBcers in the commission of a 
 breach of the peace, and to execute it in such a manner as naturally tends to raise 
 tumults and affrays, and in doing so happen to kill a man, they are all guilty of murder ; 
 for they must at their peril, abide the event of their actions, who unlawfully engage in 
 such bold disturbances of the public peace, in opposition to, and in defiance of the justice 
 of the nation. Malice in such a killing is implied by law in all who were engaged in 
 the unlawful enterprise; whether the deceased fell by the hand of the accused in parti- 
 cular, or otherwise, is immaterial. All are responsible for the acts of each, if done in 
 pursuance and furtherance of the common design. This doctrine may seem hard and 
 severe, but has been found necessary, to prevent riotous combinations committing mur- 
 der with impunity. For where such illegal associates are numerous, it would scarcely 
 be practicable to establish the identity of the individual actually guilty of the homicide. 
 Where, however, a homicide is committed by one or more of a body unlawfully asso- 
 ciated, from causes having no connexion with the common object, the responsibility for 
 such homicides attaches exclusively to its actual perpetrators. 
 
 The doctrines so far expressed, are those of the common law. It is therefore proper 
 that your attention should be turned to the act of 1794, to see how far these doctrines 
 have been modified by that statute. By the act of 1794 it is declai-ed, that all murder 
 which shall be perpeSrated by means of poison, or by lying in wait, or by any other kind 
 of wilful, deliberate, and premeditated killing, or which shall be committed in the per- 
 petration or attempt to perpetrate any arson, rape, robbery or burglary, shall be deemed 
 murder of the first degree ; and all other kinds of murdci-' shall be deemed murder of the 
 second degree; and the jury before whom any person indicted for murder shall be tried, 
 if they find .'uch person guilty thereof, ascertain in their verdict whether it be murder 
 of the first or second degree. By an unbroken chain of decisions from our courts of the 
 highest resort, as well ns the subordinate tribunals following them, from the passage of 
 tlie act to this time, it has been held, that the true and only modification of the common 
 law, introduced by it in the crime of murder, is this: — To constitute murder of the first 
 degree, the intent of the party killing must have been to take life ; whereas, by the com- 
 mon law, if the mortal blow is malicious, and death ensues, the perpetrator is guilty 
 of murder, whether such an intention does or does not appear to have existed in his 
 mind. The injury being malicious, the common law holds the offender responsible for 
 all the consequences following liis unlawful and malicious act. The first inquiry, there- 
 fore, of a Pennsylvania jury, after a felonious and malicious homicide is established, not 
 committed by moans of poison, or lying in wait, or in the perpetration of one of the 
 felonies enumerated in the act, is, whether the mortal blow was given with an intent to 
 tike life, or merely to do great bodi.y harm. If the former is proved by the evidence, 
 the crime is murder of the first degree; if .-uch intent does not satisfactori'y appear, 
 the jury should return a verdict of murder of the second degree. In ascertaining the 
 intent of the perpetrator of a maiicious homicide, difficulties may, and continually do 
 
PHILADELPHIA EIOTS — DALET'S CASE. 475 
 
 arise. Hence, juries inclining, as they always will do, to a merciful interpretation of 
 the motives of the accu?ed, often render verdicts which surprise the general public, not 
 familiar with the delicate naturC'Of the question involved. 
 
 In the solution of such a question, an easy and safe criterion of the intent with which 
 the act is done, may be found in the means by which the homicide lias been committed. 
 If the means of death is a deadly weapon, used in an unequivocal manner, the inquiring 
 mind can come to no other conclusion but that the deatti of the victim was intended. 
 Thus, if one man shoot another through the head with a muslset or a pistol-ball — if he 
 stab him in a vital part witli a sword or a dagger — if he cleave his skull with an axe or 
 the like — it is almost impossible for a reflecting and intelligent mind to come to any 
 other conclusion than that the perpetrators of such acts of deadly violence intended to 
 kill. I have put strong instances in order better to escm ilify the principle. In its 
 practical application, a variety of oases less urgent in their circumstances, will neces- 
 sarily arise. It is true, the act says the killing must be wi ful, deliberate, and premedi- 
 tated. But every intentional act is of course a wilful one, and deliberation and 
 premeditation simply mean that the act was done with reflection, was conceived before- 
 hand. No specific length of time is required for such deliberation. It would be a most 
 difficult task for human wit to furnish any safe standard in this particular. Every case 
 must rest on its own circumstances ; the law, reason and common sense, unite in de- 
 claring that an apparently instantaneous act may be accompanied with such circum- 
 stances as to leave no doubt of its being the result of premeditation. "Whether the fact 
 of killing was or was not malicious, still constitutes the great inquiry on the trial of 
 every indictment charging murder. For even where the intent to kill is vinquestionable, 
 still the killing must be malicious, to constitute murder. Where the killing is without 
 malice, though it be unlawful, it is but manslaughter. If, therefore, upon a sudden 
 quarrel, the parties fight upon the spot, or if they presently fetch their weapons, and go 
 in a field and fight, and one be killed, it will be but manslaughter in the survivor, because 
 it may be presumed thit the blood never cooled. And it must be observed with regard 
 to sudden encounters, that when they are begun, the blood previously heated, kindles 
 afresh at every blow, and in the tumult of the passions in which the mere instinct of 
 self-preservation has no inconsiderable share, the voice of reason is not heard. There- 
 fore the laiT, kindly appreciating the infirmities of human nature, extenuates the offence 
 committed under such circumstances, from murder to manslaughter. In the whirlwind 
 of passion accompanying such illegal conflicts, the law supposes that malice aforethought, 
 the vital element of murder, does not exist. In one view of this case, this doctrine 
 may become material to be regarded. A man may repel force by force in the defence 
 of his person, habitation or property, against one or many who manifestly intend and 
 endeavour by violence or surprise, to commit a known felony on either. In such a case 
 he is not obliged to retreat, but may pursue his adversary till he find himself out of 
 danger; and if in a conflict between them he happeneth to kill, such killing is justifia- 
 ble. The right of self-defence in cases of this kind is founded on the law of nature, and 
 is not nor can be, superseded by any law of society. Where a known felony is attempted 
 upon the person, be it to rob or murder, the party assaulted may repel force by force; 
 and even his servant attendant upon him, or any other person present, may interpose 
 for preventing mischief, and if death ensues, the party so interposing will be justified. 
 Here the law of self-defence plainly coincides with the dictates of reason. An attempt 
 i.g made to commit arson or burglary on the habitation; the owner, or any part of his 
 family, or even a lodger with him, may lawfully kill the assailants for preventing the 
 mischief intended. Here, likewise, nature and social duty co-operate. A riotous and 
 tumultuous body attempt to commit an arson on a church, or to maliciously bum and 
 rob a bmk; they maybe resisted to the extreme extent required to repel them, and life 
 itself may be taken, if the necessity of the defence demands it. In these cases the 
 party killed is engaged in the commission of a crime of the highest grade, next to mur- 
 der or treason, and he may be lawfully resisted, even unto death. 
 
 But a mere trespass on a man's property, not his dwelling-house, will not justify the 
 owner in taking away the life of the aggressor in protecting it. p'or the rule of the law 
 is, that where such trespass is barely against the property of another, not his dwelling- 
 house, it is not a provocation sufficient to warrant the owner in using a deadly weapon, 
 and if he do so, and with it kill the trespasser, this will be murder ; because it is an 
 act of violence beyond provocation; but if the injury be infiicted with an instrument, 
 and in a manner not likely to kill, and the trespasser should, notwithstanding, happen 
 to be killed, it will be no more than manslaughter — the law so far recognising the ade- 
 quacy of the provocation arising from the trespass. Under what circumstances the lives 
 of rioters concerned in the commission of unlawful acts may be justly taken by officers 
 or citizens, I have had occasion already to express during the present term — I then 
 stated that where an actual riot exists, particularly when life and property are threat- 
 ened by the insurirents. citizens mav. of their own authority, lawfully endeavour to 
 
476 APPENDIX, 
 
 suppress the riot, and for that purpose, may even arm themselves ; and that whatever is 
 honestly done by them in the execution of that object, will be supported and justified 
 by the law. But I expressed my opinion then, and I still think, that citizens using such 
 force had better be assistant to the sheriff and public functionaries, than to assume siich 
 an urgent authority, except in oases of the extremest necessity. But if under proper 
 circumstances, the law will ex.tend to citizens the same indemnity in resorting to extreme 
 measures for the suppression of dangerous riots, that it affords to ofiBcers acting for 
 the lilie object, it will certainly extend no greater. How this authority is to be exercised 
 by sheriffs, I have expressed in the opinion referred to, in these words: "When en- 
 gaged in the suppression of dangerous riots, the sheriff and his assistants are authorized 
 to resort to every necessary means to restore peace, and prevent criminal outrages 
 against person or property. They may arrest rioters, or detain and imprison them. If 
 they resist the sheriff and his assistants in their endeavour to apprehend them, and con- 
 tinue their riotous actions under such circumstances, the killing becomes justifiable." 
 There is nothing here said or intended to convey the idea that a mere unlawful, or even 
 riotous assembly, can be shot down by musketry without any previous effort being made 
 to suppress it by less bloody and more pacific measures. It is when the conservator of 
 the peace is contemned and resisted, and the law and its ministers set at defiance, 
 that he is authorized to vindicate its majesty at all hazards. Riotous and turbulent as 
 may have been the meeting on the 7th of May, in its organization in the Independence 
 square, and its progress to the Washington market, no one, wliether private citizen or 
 public officer, would have been authorized to fire upon it until other means were resorted 
 to for its dispersion ; and necessities arose from the manner and extent of the resistance 
 to such means, demanding extremities. The law recognises the existence of a necessity 
 for the suppression of riot and rioters, by extreme means ; but it is a necessity only jus- 
 tifiable in extreme cases. Where indeed, rioters exhibit a spirit that manifestly would 
 mock expostulation ; where they at once enter upon a predetermined work of destruc- 
 tion, and execute it under circumstances of violence and ferocity ; and with the display 
 of force, clearly manifesting that delay in action for the employment of remonstrances 
 would be useless and pernicious, then such a mob may be regarded and treated as a 
 common enemy. 
 
 But the demonstration on the Hibernia hose house and carriage, admitting it to have 
 preceded any attack on the assembly in the market, presented no such contingency as 
 justified the firing on the boys and men engaged in it. Before this, no felonious assault 
 was made on any other property; none certainly, which called for or produced a fire 
 on those perpetrating it. The attack on^the hose house, and the removal of the appara- 
 tus for the purpose of its destruction, was the aggression followed by the firing. This 
 was a gross trespass, deserving of severe legal punishment, but it did not justify the 
 use of deadly weapons, which followed it, even by the owners of the property, much 
 less by strangers at a distance from the scene of action ; such as the armed occupants 
 of Jefferson street, the Germantown road, and that vicinity. If death had followed 
 that rash and wicked act, all the actors in it would have been guilty of murder at the 
 common law certainly. But neither Matthew Hammitt nor any other individual, as far 
 as the proofs are before us, was killed by this fire ; and hence the legal liabilities in- 
 curred by those by whom it was perpetrated, are not the primary subjects for conside- 
 ration in this investigation, although they may become matters of future examination. 
 The true legal character of this act may be of importance in another view to be taken 
 of this case hereafter. Hammitt was killed after the first attack, and after the friends 
 of the meeting had rallied and commenced returning the assault of those who were 
 guilty of the first illegal firing. Such a course was most natural under the circum- 
 stances, it is true. But nevertheless, was it legal ? The law permits no man to be his. 
 own avenger. Vengeance belongs only to the Most High. Instead of such a move- 
 ment, the injured parties sliould have appealed to the laws for justice and protection. 
 The act went beyond the necessities of self-defence, which are limited to the immediate 
 resistance of aggression. Should this right be conceded to the extent assumed, the wild 
 ferocity of private vengeance would usurp the place of the public vindication of law; and 
 social security and order would wither under the heated atmosphere of passion. I speak 
 not now of the case of a lawful assembly, illegally attempted to be dispersed by force 
 and violence, and persisting, in the face of such opposition, to maintain its right to as- 
 semble, at all hazards. That question is reserved for the occasion in which it shall 
 arise. But the meeting of the 7th of May, we have said, was, if the defendant's testi- 
 mony is believed, from its attending circumstances an unlawful assembly. This charac- 
 ter was conceded to it by the Attorney General. It was unlawfully, indeed, assaulted, 
 and if death had ensued, the assailants would have been guilty of murder. But an un- 
 lawful assembly, unlawfully assailed and dispersed, has certainly no legal right tp 
 re-assemble with deadly weapons to attack and destroy those who have so assaulted 
 them. By so doing, they are usurping the authority of the law. But if in the heat of 
 excited passion consequent upon such wrong, they should "presently fetch their wea- 
 
PHILADELPHIA EIOTS — HAEE'S CASE. 477 
 
 pong, and go into a field and fight," and in the oomhat one of the original assailants 
 should be killed, it would only be manslaughter in them, because the law would presume 
 their blood had never cooled since the first aggression. If the original assailants in 
 this renewed combat should, without malice, lull any of the party so returning to the 
 afiray, they would be equally guilty of manslaughter ; for they were the first aggres- 
 sors, and the wrong done by them originally, led to the homicide. They occupy the 
 position of one of the parties engaged in a mutual unlawful combat, where either of the 
 contestants slaying his opponent is guilty of manslaughter. 
 
 The Attorney General has put the case in one point of view, which if sustained by 
 the proof, would make the killing of Matthew Hammitt u, murder of the first degree. 
 He insists that the whole case shows an original and formed design in the defendant 
 and his associates to disperse any meeting having for its object that contemplated by 
 the meeting of Friday, the 3d of May, and to destroy and kill those concerned in it, if 
 their object could be accomplished in no other way. He insists that the whole conduct 
 of Daley and his associates manifests that such was their intention, and that the affair 
 of the hose house was a mere pretext to cover a deeper and deadlier design. If you 
 should believe that the arming and array in the vicinity of the market was really with 
 this diabolical motive, and that the slaying of the deceased and all others who fell on 
 that day was the product of such a design, and done in the consummation of it, then all 
 those concerned in this deed, principals, aiders and abettors, are guilty of murder of 
 the first degree ; although Hammitt might have been guilty of manslaughter only, had 
 he been the slayer. "Whether the facts proved justify this inference, is for your deci- 
 sion, and yours only. The court distinctly leave that question exclusively to you, 
 without designing in the slightest degree to interfere with your judgment. 
 
 Finally, the defendant's counsel, in their zealous and eloquent argument on the plea of 
 justification, insisted that all the facts of the case show that the object of the assembly 
 of the 7th of May at the market house, was to sack and destroy the houses, and injure 
 and abuse the persons of those with whom the defendant was in connexion on that oc- 
 casion — that they marched to the scene of contemplated violence with arms and banners 
 displayed, threatening vengeance and destruction — that they actually assailed persons 
 and dwellings — that the wives and children of the assailed were forced to fly for safety 
 and protection to the highways, and to the hospitable roofs of the charitable — that if in 
 their terror, they may not have measured the defence with the cool accuracy of a court 
 and jury, secure in the dignity of their position, a slight excess should not change them 
 from the condition of injured and persecuted men, vindicating the rights of humanity, 
 into that of condemned felons. How far these positions are just inferences from evi- 
 dence, is for your decision. If sustained, a case of justifiable self-defence would be 
 made out. 
 
 In our opinion the indictment is sufficient, and under it you can convict the defend- 
 ant of murder in the first, or of the second degree of manslaughter, or entirely acquit 
 him. 
 
 I have now, gentlemen, given you the united views of the court as to the law of the 
 case. It is for you to apply the facts to those principles, and render your verdict ac- 
 cordingly, always remembering that the dictates of your conscientious judgments should 
 alone influence your conclusions. 
 
 COMMONWEALTH v. HARE. 
 
 Isaac Hake was put upon his trial charged vrith the murder of Joseph Eice, during 
 the riots in Kensington in May, 1844. The general nature of those outbreaks maybe 
 ascertained by turning to the case of Daley, reported in the preceding pages. The reference 
 to the facts in evidence in the present case, contamed in the subjoined charge, will Office 
 to show the defendant's participation. The following charge was delivered by King, 
 president, who prefaced it by referring generally to the facts, out of which arose the 
 legal principles contended for by the commonwealth and defendant respectively. After 
 observing that it was not his intention to express any opinion upon those facts, but to 
 leave them exclusively to the jviry, he proceeded as follows: 
 
 The doctrines of the law may be thus summed up ; and we desire you to receive them 
 as our judgment on the principles which we think ought to guide your deliberations. — 
 If from the proofs before you it has been made to appear that Hare, and others with 
 whom he was in association, after the original assault on the meeting of the 7th of May, 
 and the dispersion of that meeting consequent upon it, left the scene of action, gathered 
 
478 APPENDIX. 
 
 arms and friends, and returned, and there commenced burning the houses and property 
 of the assailants, and firing upon and killing, or endeavouring to kill them, for the pur- 
 pose of avenging the wrongs they had suffered, and not for the purpose of arresting and 
 bringing the original offenders to justice ; then their conduct was illegal and unjustlliable, 
 and they each and all are criminally liable for all the consequences flowing from such 
 acts of unauthorized vengeance. The law does not and will not permit any individual 
 or body of men to become their own avenger, and if they attempt it, and injuries to per- 
 son or property follow, they are criminally responsible for their conduct. If courts of 
 justice should once recognise tliis wild right of private vengeance, it is evident that the 
 bands of social order and security would be torn asunder, and the cannon and the musket 
 become the substitutes for the bench and the jury box, in measui-ing out the nature and 
 amount of punishment to offenders against public law. The concession of such a right 
 of self-vindication, would be the immediate and complete demolition of all public safety, 
 the surrender of all the powers of government, and the termination of the supremacy of 
 the law. 
 
 If any citizen or body of citizens are injured or aggrieved, the vindication of their in- 
 fracted rights belongs exclusively to the civil government ; and if they attempt to fore- 
 stall the public arm and undertake to chastise those from whom they have suffered wrong, 
 tliey are acting as much in oppo.-ition to public justice as the original aggressors. Let 
 me not, however, be here misunderstood; I do not mean at all to question the sacred and 
 unalienable right of self-defence; a right derived from the laws of nature, and superior 
 to anything emanating from human lawgivers. By virtue of this inherent right, any 
 man assailed by another, under circumstances manifesting an intention to take life, or 
 do great bodily barm, may immediately resist the assailant, even unto death. He may 
 even, under circumstances of urgent and manifest necessity, anticipate the blow of an 
 assailant threatening such an attack, and strike him down before his deadly intention is 
 followed by an actual assault. But when a man so assailed has retreated from the as- 
 sailant, and is secure in his separation from farther personal aggression, he has no right 
 to return armed to the scene of conflict, and voluntarily engage in a new contest with 
 the aggressor. If he does so, and slays him, he is guilty of murder or manslaughter, 
 according to the circumstances under which the homicide is committed. If, on receiving 
 such a deadly assaiJt, he suddenly leaves the scene of outrage, procures arms, and in 
 the heat of blood consequent upon the wrong, returns and renews the combat, and slays 
 his adversary, both being armed, such a. homicide would be but manslaughter. For 
 the law, from its sense of and tenderness towards human infirmity, would consider that 
 sufficient time had not elapsed for the blood to cool and reason to resume its empire over 
 the mind, smarting under the original wrong. And such I said in Daley's case was the 
 position of any who, after the illegal firing on the citizens on the 7th of May, hastened 
 and gathered friends and arms and returned to the scene of assault, having in view the 
 destruction of those who were guilty of the outrage, if they subsequently killed any of 
 the original aggressors. Parties meeting and entering into deadly conflict, under such 
 circumstances, are all criminals — ^perhaps in different degrees, having regard to those 
 who were the first and unprovoked assailants. And if human life is taken in such a 
 combat, renewed by common consent, the slayer and all aiding, abetting, and assisting 
 him, are at least guilty of manslaughter. Masses of men have no more right to engage 
 in such general and mutual combat, than individuals have to array tliemselves against 
 each other in private duel. If life is taken in either of these cases, the offenders, their 
 aiders and abettors, are guilty of felonious homicide. The law does not stop to inquire 
 into the relative merits of such violators of the public peace, but regards them all as ob- 
 noxious to censure and punishment. 
 
 If during such a scene of unlawful violence an innocent third person is slain, who had 
 no connexion with the combatants on either side, nor auy participation in their unlawful 
 doings, such a homicide would be murder at common law in all the parties engaged in 
 the affray. It would be a homicide, the consequence of an unlawful act, and all partici- 
 pant in such an act are alike responsible for its consequences. If tlie law should be 
 called upon to detect the particular agents by whom such a slaying has been peipetrated 
 in a'general combat of this kind, it would perpetually defeat justice and give immunity 
 to guilt. Suppose, for instance, a fight with fire-arms between two bodies of enraged 
 men should take place in a public street, and from a simultaneous fire, innocent citizens, 
 their wives or children in their houses, should be killed by some of the missiles dis- 
 charged—shall the violators of the public peace, whose unlawful acts have produced the 
 death of the unoffending, escape, because from the manner and time of the fire it is im- 
 possible to tell from what quarter the implement of death was propelled? Certainly 
 not. The law declares to such outlaws, you are equally involved in all the consequences 
 of your assault on the public peace and safety. Is there any hardship in this principle ? 
 Does not a just regard to the general safety demand its strict application? If men are 
 BO reckless of the lives of the innocent as to engage in a conflict with fire-arms in the 
 
PHILADELPHIA PJOTS — HARe'S CASE. 479 
 
 public highivay of a thickly populated city, are they to haTC the b(niefits of impractica- 
 ble niceties, in order to their indemnity from the consequences of their own conduct ? 
 Take the present case as exemplifying the effects of such a doctiine. Joseph Rice was 
 killed within the enclosure of his house, at a time when the probabilities are that both 
 belligerents were maintaining a desultory fire upon each other, and hence it becomes 
 difficult to say with positive accuracy by which he was killed. Are the party at the 
 market to escape the consequences of his death by raising a doubt whether a shot from 
 their opponents at Jefferson street. Harmony court and the Germa:itown road, may not 
 have killed him? — Such a doubt must equally enure to the benefit of those opponents, 
 should they be placed on trial for the same offence; and between these doubts the life 
 of a citizen is taken with impunity. Is it not both a juster and a wiser course to say that 
 both were alike offenders when the homicide was perpetrated, and both are alike charge- 
 able with its consequences ? Is it not of the deepest moment to the future peace and 
 safety of the community; is it not of all things that best calculated to prevent our 
 streets from becoming, hereafter, bloody arenas, where enraged and lawless men shall 
 settle their disputes with weapons of death, alike calculated to reach the combaiant and 
 the non-combatant ; to at once declare, that for every drop of innocent blood shed in such 
 a scene of outrage, every man who is taking a part in such an infraction of the law, is 
 equally guilty ? Such we believe to be the law, founded on the plainest reason, justi- 
 fied by the clearest expediency, and demanded by the most obvious necessity. A homi- 
 cide committed under such circumstances would not, however, be a murder of the first 
 degree, because there would exist no such malice as is required by our statute to con- 
 stitute that crime. At common law such a homicide would be murder, reduced, how- 
 ever, by the act of 1790 to murder of the second degree. 
 
 But if one or more of the parties so engaged in an unlawful combat, deliberately fire 
 at and kill an innocent third person, taking no part in the conflict, having no just reason 
 to regard him as one of the belligerents, such killing would be murder of the first degree. 
 It would present the case of a wilful, deliberate and premeditated killing, perpetrated 
 with an instrument likely to take life, rendering the actual perpetrators guilty of the 
 highest grade of crime known to our criminal code. — If the testimony, in your judgment, 
 brings clearly home to the defendant such a charge, he should be convicted. If, how- 
 ever, the commonwealth has not fully satisfied your minds in the affirmative of this po- 
 sition ; or if the proofs adduced by the defendant have rebutted this allegation, or thrown 
 a fair doubt upon its certainty, then you ought not and cannot justly convict him of that 
 part of the charge involving capital punishment. 
 
 The defence, besides denying the adequacy of the proof to establish the identity of 
 the defendant, either as one of the parties actually killing Rice, or as being one of others 
 acting in concert by whom he was killed, and assuming, for the sake of the argument, that 
 Hare was present when he was so killed, insists that the killing was justified, first, as 
 being done in self-defence; and second, as being done by those with whom Hare is said 
 to have been associated in an honest endeavour to repress a dangerous and bloody riot, 
 and to bring its perpetrators to public justice. — In order to raise the first point, it is 
 argued that there was no cessation of the mutual firing between the combatants from 
 the first onslaught ; that Rice was acting with the original assailants armed and engaged 
 in the firing, and that he met his death in the resistance made to the murderous assault 
 committed by himself and his associates on the defendant and those united with him. 
 If it is true that the attack with deadly weapons on the meeting of the 7th of May, was 
 instantly returned by those unlawfully assailed ; that they continued it in order to the pre- 
 servation of their own lives, which, by no other practicable and reasonable means, could 
 have been preserved, by reason of the sudden, fierce, and deadly nature of the assault upon 
 them ; if Rice was engaged in this assault, and fell from the resistance of the assailed, ren- 
 dered absolutely and indispensably necessary, from the suddenness, violence and extent of 
 the assault, a case of homicide in self-defence, and as such justifiable in law, has been made 
 out, and the defendant is entitled to an acquittal. But still, if the return of the fire was not 
 an immediate act; if the proof shows that the assaulted party retired, armed themselves, 
 returned to the scene of original violence, and there voluntarily and without any neces- 
 sity in order to the preservation of their lives, renewed the combat for the object of in- 
 flicting even what they supposed just chastisement on their opponents, the doctrine of self- 
 defence has no relevancy to the case. The plea of self-defence rests on the natural right 
 every man has to protect his own life against an unlawful assault upon it by another. If, 
 however, when secure from danger, by his actual removal from the threatened assault, he 
 voluntarily returns to meet his adversary, and renews the combat, it cannot be pretended 
 he acts in defence of his own life against impending and inevitable destruction. He as- 
 sumes, under such circumstances, a new character. He becomes ■•■ party voluntarily 
 entering into an unlawful conflict, and is responsible for all the consequences following 
 his new position. You are, however, the exclusive judges of the facts of this case, and 
 if you are of opinion that Hare was actually present and participated in the affray that 
 
480 APPENDIX. 
 
 led to tlie death of Eice, but are satisfied from the proof that a case of excusable self- 
 defence has been made out within the principles of law, as expounded by the court, you 
 ought to acquit him. 
 
 As to the second ground of justification assumed. In a prcTious case tried in this par- 
 ticular, nearly under the same facts, it was considered by us that the weight of the tes- 
 timony established the first firing to have followed the attack on the Hibemiahose house 
 and orriage; that this firing was unauthorized by law, under the facts disclosed in the 
 evidence; and that if death had followed this fire, it would have been murder in those 
 who were guilty of it. I then was of opinion, and so continue to think, that the weight 
 of the evidence shows that the party on Jefferson street. Harmony court, and the Ger- 
 mantown road, were fully prepared for this fire before the meeting approached the Wash- 
 ington market. It is now urged that this assembly of armed men having illegally fired 
 upon the meeting at the market, it was competent for all good citizens to endeavour to 
 bring them to justice, and the doctrine of my charge to the grand jury is invoked as con- 
 taining principles which would justify the assemblage of citizens, and even the ute of 
 arms, in order to bring such offenders to justice. 
 
 From no doctrines laid down in that charge are we prepared to depart, and the de- 
 fendant shall have the full benefit of any of them which the facts of the case entitle him 
 to invoke. Those doctrines were well considered, and will not be lightly changed. We 
 there said ' ' citizens may of their own authority lawfully endeavour to repress riots, and 
 for that purpose may even arm themselves, and whatever is honestly done by them 
 in the execution of that object, will be supported and justified by the common law. But, 
 as was said then, it would be more discreet in such cases to be assistant on the justices 
 and sheriff."— ^Undoubtedly, if the peaceable citizens of Kensington, after the meeting of 
 the 7th of May, 1844, had been unlawfully assailed and dispersed, and assembled together 
 for the purpose of restoring the public peace, and arresting the offenders by whom it had 
 been broken, they might rightfully employ all the force necessary to restore order and 
 bring the criminals to justice. But this kind of popular vindication of pub'.ic law. and 
 order is most hazardous at best, and those who assume upon themselves public functions 
 must be wary in the exercise of them. The law will justify what is " honestly done by 
 such citizens," but nothing more. If, under the pretext of maintaining the public order, 
 mea become themselves infractors of it, they are really more worthy of punishment than 
 the unequivocal offender, for they add hypocrisy to crime. 
 
 If, under proper circumstances, the law will extend to citizens the same indemnity in 
 resorting to extreme measures for the suppression of dangerous riots, that it aff'ords to 
 officers acting for the like object, it will certainly extend no greater. How this authority 
 is to be exercised by sheriffs, I have expressed in the opinion referred to in these words: 
 "When engaged in the suppression of dangerous riots, the sheriff and his assistants are 
 authorized to resort to every necessary means to restore peace and prevent criminal out- 
 rages against person or property. They may arrest rioters, detain and imprison them. 
 If they resist the sheriff and his assistants in their endeavour to apprehend them, and con- 
 tinue their riotous actions under such circumstances, the killing them becomes justifiable." 
 There is nothing here said or intended, to convey the idea that a mere unlawful or even 
 a riotous assembly can be shot down by musketry without any previous effort being made 
 to suppress it by less bloody and more pacific measures. It is when the conservator of 
 the peace is contemned and resisted, and the law and its ministers set at defiance, that 
 he is authorized to vindicate its majesty at all hazards. 
 
 If the sheriff and his posse engaged in suppressing a riot, should burn down private 
 houses and public buildings ; should array themselves in hostile conflict against the alleged 
 offenders, and unnecessarily and wantonly take their lives, unquestionably their official 
 character would operate in no other way than to increase the atrocity of the offence. — 
 So, in this case if the citizens who assembled after the dispersion of the meeting of the 
 7th had not in view the vindication of the public law, and the arrest of the violators of 
 the peace, but were really influenced by angry and revengeful feelings, which led them to 
 engage in an open street fight, in order to punish the original aggressors, they never can 
 be classed with the sheriffs and justices of the peace, and their assistants, engaged in 
 suppressing great and dangerous riots. Nor can they claim the indemnity for extreme 
 measures ^given by law to such public agents acting bona fide in the support of the public 
 law. 
 
 If, however, the commonwealth has failed in proving Hare to have been present at the 
 time of the conflict between the Jefferson street and Washington market parties, during 
 which Rice was killed ; or if the defendant's evidence has thrown a fair doubt on that 
 fact, he is entitled to your verdict. And if from the evidence you are satisfied that Rice 
 fell resisting the law, by hands of citizens, bona fide and honestly engaged in the endea- 
 vour to restore order and bring offenders to ju-tice, and that such killing was necessary 
 and indispensable, in order to accomplish these objects, and that Hare was really and 
 truly engaged at the time as a good citizen, striving to maintain the supremacy of the 
 
PHILADELPHIA RIOTS — SHERRY's CASE. 481 
 
 laws, he is equally entitled to your verdict. But if the testimony proves to your satis- 
 faction that Hare and others, after the assault on the Tuesday meeting, retired and col- 
 lected arms and men, returned to the scene of aggression, and in pursuit of satisfaction for 
 the wrong done him and them, entered into a combat with the aggressors in the streets 
 of Kensington, with fire-arms ; and if, during the combat, Joseph Rice, an innocent and 
 unoffending citizen, fell by a shot from any of those so unlawfully engaged, it is murder 
 of the second degree, in Hare and all others engaged in the unlawful acts which resulted 
 in his death. It is also important for you to understand, that under this bill you may 
 convict of murder of the first or second degree, or of manslaughter, or you may generally 
 acquit. The facts of the case are for your exclusive consideration. We give no opinion 
 upon them, contenting ourselves with declaring principles, leaving their application to 
 the facts to you, to whom this important branch of public justice pertains by the con- 
 stitution and laws of the commonwealth. 
 
 COMMONWEALTH v. SHERKY. 
 
 Before Mr. Justice Rogers of the Supreme Court of Pennsylvania, at a special Court 
 of Nisi Prius, hold at Philadelphia, in April, 1845. 
 
 This, and the then undisposed of cases arising out of the writs of 1844, having been 
 removed to the Supreme Court by certiorari, a jury was called on the 29th of April, 
 1845, the defendant pleading not guilty. Three days were occupied in calling a jury, 
 in the course of which the following questions were put by the counsel for the defendant. 
 
 Question. — Could you conscientiously agree to a verdict of murder in the first degree, 
 death being the punishment ? 
 
 Answer. — I am conscientiously scrupled against the death punishment, and against 
 anything that would involve it; though if I was sworn in a case, I might be forced to 
 convict if the evidence required it, though against my scruples. The court held that 
 the juror must be excused. 
 
 Q. — Have you formed or expressed such an opinion as to the comparative merits of 
 the controversy in Kensington, as would affect your action as a juror? 
 
 A. — I have. The court held the juror incompetent. 
 
 Q. — Have you formed or expressed an opinion as to the guilt or innocence of either 
 of the parties in Kensington? 
 
 A. — I have; The court held the juror incompetent. 
 
 A jury having been at last obtained, the commonwealth's case was opened by Mr. F. 
 Wharton, assistant Attorney General. A series of witnesses were then examined, who 
 testified to the same general outline of facts as was detailed in the case of John Daley, a 
 summary of which has been already given. Great doubt existed, however, as to the 
 personal participation of the defendant in the affray, and in consequence of the lapse of 
 time, and the general softening of partisan temper, the evidence on both sides harmo- 
 nized much more readily than on the earlier trials. 
 
 After the evidences were through, the jury were addressed by Mr. Wharton and Mr. 
 Kane, Attorney General, for the commonwealth, and by Mr. H. M. Phillips and Mr. !>» 
 P. Brown, for the defence. 
 
 Judge Rogers charged the jury substantially as follows:' — 
 
 You are, it is true, judges in a criminal case, in one sense, of both law and fact, for 
 your verdict, as in civil cases, must pass on law and fact together. If you acquit, you 
 interpose a final bar to a second prosecution, no matter how entirely your verdict may 
 have been in opposition to the views expressed by the court. The popular impression 
 is, that this power to definitely close a prosecution by an acquittal, arises from a right 
 (in the jury's part to decide the law as well as the facts according to their own sense 
 of right. But it arises from no such thing. It rests upon a fundamental principle of 
 the common law, that no man can twice be put in jeopardy for the same offence. No 
 matter from what cause an acquittal results, the defendant cannot be retried.. If, for 
 instance, it should result from a usurpation by the court of the facts of the case, which 
 undoubtedly belong to the jury, the acquittal would be final ; and yet it would be very 
 improper to draw from such a result the assumption that the disposition of the facts 
 belongs to the court. It is import.ant for you to keep this distinction in mind, remem- 
 bering that while you hare the physical power, by an acquittal, to discharge a defend- 
 ant from further prosecution, you have no moral power to do so against the law laid 
 
 ^ This charge was noted by the editor at the time, and is now reported from his notes. 
 .S!1 
 
482 APPENDIX. 
 
 down by the court. The sanctity of your conclusions in case of an acquittal, arises not 
 from any inherent dominion on your part over the law, but from the principle that no 
 man shall be twice put in jeopardy for the same offence, a principle that attaches equal 
 sanctity to an acquittal produced by a blunder of the clerk, or an error of the Attorney 
 General. You are bound, notwithstanding this, to conform your verdict to the law of the 
 laud, in the same way that the two latter functionaries are bound to confonn their con- 
 duct to the same standard ; for it would be productive of the wildest consequences to 
 establish the principle, that any officer whatever, in a criminal case, should be relieved 
 from the restraint of the law as settled in a uniform system by the supreme authority. 
 For your part, your duty is to receive the law for the purposes of this trial from the 
 court. If an error injurious to the prisoner occurs, it will be rectified by the revision of 
 the court in banc. But an error resulting frcm either a conviction or an acquittal 
 against the law, can never be rectified. In the firsts case, an unnecessary stigma 
 is affixed to the character of a man who was not guilty of the offence with which he 
 is charged. In the second case, a serious injury is effected by the arbitrary and irre- 
 mediable disch'irge of a guilty man. You will see from these consiueKitions tbe great 
 importance of the preservation, in criminal as well as in civil cases, of the ma.xim that 
 the law belongs to the court, and the facts to the jury. My duty is, therefore, at the 
 outset, to charge you, that while you will in this case form your own judgment of the 
 facts, you will receive the law as it is given to you by the court. 
 
 The learned judge after recapitulating the testimony, thus proceeded: — 
 
 Xtesolving this into its elements, and stripping it of party names and badges, we have 
 the spectacle of two factions arrayed again-^t each other, in a bloody contest for supremacy. 
 It is not the ordinary case of a riot, in which the government is on one side and a mob on 
 "the other. Here there was no political question whatever leading to either insurrection 
 •or uproar. "Neither side moved with the purpose of effecting any public object by an 
 agitation against government, though each in turn, as it came in conflict with ibe public 
 ■authorities, chafed against the hand that sought to restrain it. The difficulties origi- 
 nated in a street fight between two distinct interests of society, comprising on the one 
 •side a portion of the Irish Roman Catholics, and on the other, the Irish Orangemen, to- 
 gether with such portions of the American population as sympathized with them. It is 
 true, that subsequently, when the latter interest preponderated, and proceeded to de- 
 stroy the churches and other public buildings of their opponents, the civil and military 
 authorities, as well as the friends of good order generally, arrayed themselves on the 
 side of the former. But this was for a temporary purpose only, disconnected entirely 
 with the partisan conflict. At the period which concerns this trial, as well as generally 
 throughout the riots themselves, the only thing that the law knows, is, that there were 
 two distinct and lawless parties, who undertook to settle private and social grievances 
 which they had against each other, by a resort to fire-arms in the public streets. 
 
 What, then, is the law in such a case ? I say unhesitatingly, the law is, that if in 
 such a conflict, death ensues, all parties are guilty of murder at common law. Tliey are 
 engaged in an nnlawful design, which is the first ingredient of murder, and it is only 
 necessary to cousumraate the offence, that death should be the consequence. It is not 
 necessary, in order to charge a particular offender, that he should be proved to have 
 fired the particular gun, or discharged the particular missile, that caused the fatal 
 wound. In the contemplation of the common law, where a mob of ten thousand is en- 
 gaged in an unlawful design, and one of them, not out of special malice, but a general 
 design to do harm, fires a gun, they all are to be considered as having pulled the trig- 
 ger. But while such is the common law, the Pennsylvania act of 1794, by creating a 
 distinction between murder with a specific intent to take life, and murder without such 
 Intent, has established a test, which it becomes your duty in the next place, to consider. 
 The reason of the establishment of the new grade, undoubtedly was the inhumanity 
 of attaching capital punishment to anything under an actual and specific intention to 
 take life. Was there such an intent here? It is for you to say whether the parties 
 who formed the mob, or either of them, were actuated by so incredibly malignant a 
 temper. It will be well for you to consider, whether the object of such outbreak and 
 of such intent, was not rather to humble than to slay an adversary ; rather to chastise 
 than to annihilate. But be this as it may, I charge you that no special malignity on 
 the part of an individual or individuals, against a specific object, can affect his asso- 
 ciates with the grade of the guilt incurred by himself. They are answerable for the 
 common design of those with whom they associate ; not for the private design of indi- 
 viduals. Should you find that the object of the conflicting parties in the riot in which 
 the deceased found his death, was merely to humble and repulse each other — should you 
 reject the theory that their object was death and annihilation— then your finding will 
 be for murder in the second degree. 
 
 The next inquiry for you will be whether there was such provocation towards the de- 
 fendant, or the party of which he was a supposed ingredient, as to lower the offence to 
 
STEAMBOAT NEGLIGENCE — THE HENRY CLAY. 483 
 
 manslaughter. Was the homicide both conceived and committed in hot blood ? Was it 
 throughout, the result of passion induced by an adequate exciting cause? If so, the 
 offence is manslaughter, provided two qualifications are understood. In the first place, 
 no breach of a man's word; no mere trespass on his lands or goods; no insults by 
 words, however irritating, will form a sufficient provocation. In the second place, even 
 where the provocation was originally adequate, if the party offended withdraws-, and 
 then, after having had time to cool, procures weapons, and having fetched them to the 
 scene of conflict, kills his assailant, the offence is murder, subject to the limitations as 
 to degree which I have already mentioned. 
 
 It becomes necessary for me now only to advert in conclusion to the state of facts 
 which will be necessary to sustain an .acquittal on the ground of necessary homicide. 
 A man when driven to the wall by an assailant, who to all appearances intends to 
 take his life, or do him grievous bodily harm — whose house is attacked by armed men, 
 — or who has no other means of resisting the commission of a felony on himself, his 
 family, or his property — may take the life of his assailant. You must recollect, how- 
 ever, that a defence such as this, as well as that of provocation, must be proved to your 
 satisfaction, the burden being on the defendant. 
 
 The defendant was acquitted, it being understood that there was a defect of proof 
 as to identity. 
 
 STEAMBOAT NEGLIGENCE. 
 TRIAL OP THE OWNERS AND OFFICERS OP THE HENRY CLAY.» 
 
 (united states circuit OOUET, southern district of new YORK.) 
 
 The United States v. Thomas Collyer, |ths owner; John F. Tallman, captain; John 
 Germaine, 1st engineer; Edward Hubbard, 1st pilot; James Elmendorf, ^d pilot; James 
 L. Jessup, captain's clerk; Charles W. Merrit, oiler, charged as 2d engineer. 
 
 The lamentable accident wherein the steamboat Henry Clay was destroj'ed on the 
 banks of the Hudson river, and about eighty-five lives destroyed, is of too recent occur- 
 rence to need any particular recital of the same to bring it to the memory of our readers. 
 This vessel started from Albany about 7 o'clock, A. M. on the 28th July, 1852, with a 
 large load of passengers and freight, bound for New York, to stop at most of the inter- 
 mediate landings, and there to receive and land passengers and freight. The steamboat 
 Armenia started from the same place bound on a like voyage, with a smaller load of 
 passengers at about the same hour. It was alleged that shortly after starting from 
 Albany, and somewhere in the neighbourhood of Hudson, which is thirty miles below 
 Albany and abjut one hundred and seventeen miles from New York, a contest of speed 
 arose between the two boats, wherein the greatest exertion was made use of by the two 
 boats to surpass each other in speed. The result of this contest was, that at a point a 
 little north of Kingston, the two b^ats came in collision, and it was alleged and believed 
 by the public, the Henry Clay endeavoured to crowd the Armenia on shore. This con- 
 test created excessive alarm on the part of the pas engers, especially the females on 
 board of both boats. It continued until about Kingston, whereat the Armenia hove to 
 for the alleged purpose of cooling her boilers and engine, which it was averred were 
 overheated ; but nevertheless, after a time the Armenia followed the Henry Clay, which 
 latter proceeded on her course down the river, but with diminished speed, until her 
 arrival in the vicinity of the Forrest House, two miles below Yonker's, and about fifteen 
 miles from New York, when fire was discovered proceeding up from the fire room ; 
 attempts were made to put it out but without success, and finally the vessel was headed 
 to the shore, and was beached, but unfortunately the progress of the fire was such, that 
 most of the passengers were prevented from reaching the shore by the fire intercepting 
 their passage through the gangways and over the promenade deck. They were gradu- 
 ally driven off the stern of the boat by the devouring flames, and all, or nearly aU, who 
 were at the stern perished. On the voyage down, it appeared that the crptain was con- 
 fined to his state-room from sickness, occasionally giving an order. It was alleged that 
 Collyer, who was principal owner of the boat and who was on board, was in command, 
 or had the principal charge and direction of the boat. The other officers were at their 
 posts and remained so until the vessel was beached, when they rushed in and en- 
 
 'For this valuable report the editor is indebted to D. M'Mahon, Esq., of the N. Y. Bar. 
 
484 APPENDIX. 
 
 deavoiired to fjive the livea of the pnsscngers, who Tvere drowning. Many of them were 
 saved by their o er.iuns. It appeared also, that before the boat reached the shore, num- 
 bers of the pajhongers plunged into the river, and the master of a boat who was near at 
 hand went to their asfi.<tance and saved a few; many of them, however, were drowned. 
 Complaint was made in the public press, also, against the pilot of the boat, because of his 
 beaching his boat at right nngles to the shore inste^id of an oKique position; if the latter 
 had been done, it was maintained that all might have escaped. Much indignation was ex- 
 pressed at an order which was said to have been given to the pastengers by some one in 
 authority, just before the vessel reached the shore, for them to go aft, which order was 
 generally obeyed, and many of them who went aft were Ofnseqnently destroyed. It was 
 also charged that the veatel was insufficiently provided wit'i boats, water buckets, life pre- 
 servers, and pumps; that if the ve-^el had been so furnished, all, or nearly all would 
 have escaped, or the flames would have been mastered. A coroner's inquest was heJd at 
 Yonker's, a place about three mi!es from the place of the calamity, and was in perma- 
 nent session for ab'jut ten days after the event, whereat evidence was taken of a very 
 exciting and inflammatory nature. In New York, Dutches?, and West Chester counties, 
 the Grand Juries of those counties were respectively charged by the Judges of the 
 Supreme Court, to take action in the premies. But the United States Courts first pro- 
 ceeded and arrested the principal owner, Collyer, and the others above named, on the 
 
 day of August, 1852, ond held them to bail in $10,000 to answer any indicLment which 
 might be found agsinst them, under the section of the act of Congress of 1 838, which is as 
 follows: "That every captain, engineer, pilot, or other person employed on board of any 
 steamboat or ve?sel, propelled in whole or in part by steam, by whose misconduct, negli- 
 gence, or inattention to his or their respective duties, the life or lives of any person or 
 persons on board said vessel may be destroyed, shall be deemed guilty of manslaughter, 
 and upon conviction thereof before any Circuit Court in the United States, shall be sen- 
 tenced to confinement at hard labour for a period not more than ten yeirs. After their 
 arrest at the instance of the United States Courts, and bailing out as above stated, the 
 West Chester authorities, on the finding of the coroner's inquest, preferred a complaint 
 agiiinst them for murder, under the following section of the New York Rev. statutes, viz. 
 2 Rev. stat., p. 843, sect. 5, 4th ed. Such killing, unless it be man^^laughter, or ex- 
 cusable or justifiable homicide, as hereinafter provided, shall be murder in the following 
 cases: — 1. When perpetrated from a premeditated design to eifect Ihe death of the 
 person killed, or of any human being. 2. When perpetrated by any act imminently 
 dangerous to others, and evincing a depraved mind, regardless of human life, although 
 wittiout any premeditated design to effect the death of any particular individual. 3. 
 When perpetrated witliout any design to eff'eot death, by a person engaged in the com- 
 mission of any felony. 
 
 The defendants were arrested and held in custody by the sheriff of West Chester 
 county, but before they could be removed to West Chester county, a writ of habeas corpus 
 was sued out at the instance and on the petition of Dennis M'lilahon, Jr., who appeared 
 as counsel for all except Collyer. This habeas corpus was argued and discussed before 
 his Honour, Mr. Justice Edmonds, in the month of September; 1852, by Mr. M'Mahon, 
 for all the defendants excepting Collyer, by Mr. Cutting and O'Connerfor defendant Coll- 
 yer, and by the District Attorney, Wells, of West Chester county, and Mr. Lockwood for 
 the State authorities. The argument and decision were fully reported in tenth vol. Legal 
 Observer, p. 298, to which we refer our readers. The learned judge overruled the 
 charge of murder, but held them to answer on the charge of manslaughter in the first 
 degree, and held them in bail in $10,000. Shortly after this decision, the Grand Jury 
 summoned to the United States District Court in New York, found an indictment for 
 mm.slaughter ngain-t all the defendants, under the aforesaid section of the act of 1838. 
 After the finding of this indictment, an oyer and terminer was subsequently held in 
 West Chester county, by the State Court, and an indictment was there found against .all 
 the defendants for manslaughter in the first degree. To this indictment the defendants, 
 Tallman, Germaine, Hubbard, Jessup, Elmendorf, and Merrit, pleaded to the jurisdiction. 
 To that plea the District Attorney demurred. The other defendant, Collyer, pleaded not 
 guilty. The argument of the demurrer to the plea of jurisdiction was never brought on 
 for argument, the State authorities concluding to await the issue of the trial on the United 
 States indictments. The plea was as follows :— In the Court of Oyer and Terminer held 
 in, and for the County of West Chester. The People, &c. v. John F. Tallman, James 
 L. Jessup, John Germaine, Charles Merrit, Edward J. Hubbard, James Elmendorf, 
 imp'd. with Thomas Collyer. And the said defendants impleaded as aforesaid, come 
 into this Court of Oyer nnd Terminer, held in and for the County of West Chester, and 
 having heard the indictment now here read, say that the said Court of Oyer and Terminer 
 ought not to have or take cognizance of the said offences in the said indictment, against 
 them preferred, because protesting that they are not guilty of any of the said ofl'ences, 
 they say that the same were committed on the waters of the Hudson river, near Yonker's, 
 
STEAMBOAT NEGLIGENCE — THE HENRY CLAY. 485 
 
 and within the county of West Chester, within the ebb and flow of the tide. And they 
 aver that at the several times when the said supposed offences set forth in the several 
 counts in the said indictment, were as therein alleged committed, the said John F. Tall- 
 man, was captain or master of the steamboat or vessel, hereinafter named, and the said 
 John Uermaine was engineer thereof, and the said Edward Hubbard was pilot thereof, 
 and the said James L. Jessup, Charles Merrit, and James Elmendorf were pers' ns re- 
 spectively employed on board thereof. And the said steamboat, Henry Clay, was at tbe 
 several times when the said supposed offences, set forth in the several counts of the said 
 indictment, were as therein alleged committed, a vessel propelled in whoie or in part by 
 steam, duly enrolled and licensed under the enrolment and navigation laws of the United 
 States of America, and engaged in the navigation of the navigable tide waters of the 
 Hudson river, between the cities of Albany and New York, stopping at the intermediate 
 places on said river, at and above Sing Sing. And the said several persons mentioned 
 in the several counts of the indictment now here, whose lives, as therein alleged were 
 destroyed, were persons respectively on board of said vessel at the time of the commis- 
 sion of the said supposed offences. And they aver that the said supposed offences were 
 committed after the 7th day of July, A. D. 1838, to wit at the several times in the several 
 counts of the said indictment declared. Wherefore they say that the Circuit Court of 
 the United States, within, and for the southern district of New York, had at the several 
 times when the said supposed offences set forth in the said several counts of the said in- 
 dictment were as therein alleged committed, and have nuw the sole and exclusive right 
 to entertain cognizance of, and jurisdiction over the offences in the said indictment 
 described and set forth, and this tliey are ready to verify. Wherefore they pray judg- 
 ment whether the said Oyer and Terminer ought and will further proceed agiinst them. 
 D. M'Mahon, jr.. Attorney for defendants TaUman, Jessup, Hubbard, Germaine, Elmen- 
 dorf, and Merrit. 
 
 State of New York, City and County of New York. — John F. Tallman, James L. 
 Jessup, Edward Hubbard, John Germaine, James Elmendorf, Charles Merrit, being 
 duly sworn, say that the aforesaid plea is true in substance and matter cf fact. Sworn 
 to before me this 25th day of November, 1852, John Germaine, Alle.v Handhcrst, Jus- 
 tice of the Peace. Sworn to before me this day of December, 1852, by Benedict Levis, jr. , 
 Commissioner of Deeds, John F. Tallman. 
 
 In January, 1853, the defendants, Tallman, Germaine, Hubbard, Elmendorf, Jessup, 
 and Merrit, were called upon to plead to the United States indictment, when their 
 counsel made a motion to quash the indictment, on the following grounds, namely:^!. 
 That the indictment was defective in form. — 2. That the first, second, third, fourth, fifth, 
 sixth, seventh, thirteenth, fourteenth, and fifteenth counts were defective in form.^ 
 3. That the different counts of said indictment, charge the offence in the words of the 
 statute, without setting forth with sufficient minuteness, the offence and the circum- 
 stances constituting the same. 4. That it does not charge the offence as having been 
 committed knowingly or feloniously, or with intent to injure any person on board the 
 vessel. — 5. All the counts want the fulness and precision required by law in describing 
 a criminal offence, and connecting any pers n with it. 6. It does not describe any of 
 the defendants as having been engaged in the actual navigation of the ves el at the time 
 the lives were lost; nor does it describe that their duties were such as that a neglect 
 thereof, or inattention destroyed the lives. It indicts jointly for the same offence, in the 
 s.xme count, several different defendants, occupying different stations of employment on 
 the boat, for a negligence or inattention to, and a misconduct in executing their respec- 
 tive duties, without showing how, or in what manner their different acts were joint in 
 bringing about directly the destruction of the lives alleged to be lost. 
 
 The following is a synopsis of the indictment in que._-tion: — First count, That CoUyer, 
 Tallman, Germaine, Hubbard, Jessup, Elmendorf and Merrit, on the 28th day of July, 
 1852, on the navigable waters of the United States, and witiiiu the ebb and flow of the 
 tide on the Hudson river, &c. were persons employed on board of the Henry Clay, pro- 
 pelled by steam — which vessel was then owned by persons, citizens of the United States 
 unknown, and did then, and there, by their misconduct, negligence and inattention to 
 their several and respective duties, in their several and respective employments on board 
 of said steamboat, cause the lives of Stephen Allen, Abraham Crist, A. S. Downing, Geo. 
 F. Whittock, Julia Hoey and divers other persons tlien being on board, to be destroyed. 
 — Second count, That the same persons on the 28th July, 1852, on the Hudson river, &o. 
 were persons employed on board the steamboat Henry Clay, which was then owned by 
 William Radford, Thomas Collyer and John F. Tallman; and did then, and there, by 
 their misconduct in their several and respective employments on board of said vessel, 
 cause the lives of Stephen Allen, &e., and others unknown, on board of said steamboat 
 Henry Clay, to be destroyed. — Third count. Same as second count, except it uses the 
 word negligence instead of misconduct. — Fourth count. Same as third count, except it 
 uses the words of the statute, viz. : inattention to their several and respective duties in 
 
486 APPENDIX. 
 
 their several and respective employments. — Fifth count, That said persons. &c. on the 
 28th July, 18-31', in the navigable -waters of the U. S., and within tJie ebb and flow of the 
 tide, that is to say, on the Hudson river, in the southern district of New York, were per- 
 Fon5 employed on board of a steamboat propelled in whole by steam, called the Henry 
 Clay, that is to say, Thomas CoUyer, as part owner, and acting for the Ciiptain in com- 
 mand of the boat, Tallmxn as captain, Germaine as engineer, Habb;ird as first pilot, 
 Jessup as clerk, Elmendorf as second pilot, Merrii as a-sistant engineer of said boat, 
 which was then and there owned by Thomas Collyer, William Radford, and John P. Tall- 
 mm, citizens of the United States, and did then and there by the misconduct of the 
 said persons in their several and respective duties, in their before mentioned and de- 
 scribed employments, on board of said steamboat Henry Clay, cause the lives of Stephen 
 Allen, Abraham Crist, and divers other per.'ons unknown, on board thereof, to be de- 
 stroyed. — Sixth count, Same as fifth count, except it uses the word negligence, — Seventh 
 count. Same as fifth count, except it uses the words of the statute thus: "By the inatten- 
 tion of them, &c. to their social and respective duties, in their before mentioned and de- 
 scribed employments," &c. — Eighth count. That said per.^ons, on the 28th July, 1852, on 
 the river Hudson, commonly called the Ncrih river, within the ebb and flow of the tide, and 
 within the southern district of New York. &c. being then and tliere, persons employed in 
 the following capacities, that is to say, CoUyer as part owner in command, the said John 
 F. Tallman as captain, the said John Germaine as engineer, the said Hubbard as first 
 pilot, Jessup as clerk, Elmendorf as second pilot, Charles Merrit as assistant engineer, on 
 board of a steamboat propelled in whole by steam, called Henry Clay, not regarding their 
 several and respective duties, in their aforesaid respective capacities, did then and there, 
 by inattention to their said duties, so negligently navigate, control and steer the said 
 steamboat, called the Henry Clay, as to cause one Ju'iia Hoey, then, and there, being a 
 passenger on board said steamboat Henry Chiy, to be overwhelmed by the waters of the 
 said river Hudson; and in, and by said waters she was drowned, and did die; and so the 
 jurors say, that the said Thomas Collyer, John F. Tallman, &c. the life of the said Julia 
 Hoey by their negligence and their inattention to their said several duties, feloniously 
 did destroy, &c. — Ninth count, Same as eighth count, except it charges "So inattentively 
 navigate and manage the said steamboat Henry Clay, and manage and regulate the steam 
 and furnace on board said steamboat, as to cause the said steamboat to take fire; by 
 means whereof, Stephen Allen and Abraham Crist, and divers other persons were over- 
 whelmed," &c. ; and charges that the lives of said Allen, &c. were destroyed by the inat- 
 tention of the defendants to their several duties as aforesaid. — Tenth count. Same as 
 last count, excepting it calls Collyer "acting captain." It uses the words misconduct 
 and negligence, and by inattention to their respective duties ; and so inattentively manage, 
 regulate, and conduct the fires and steam on board said Henry Clay, as to cause her to 
 catch fire, whereby they were cast and thrown from, and out of the steamboat into the 
 water of the Hudson river ; and that by their misconduct and negligence, and inattention 
 to their respective duties, the lives of the said persons were destroyed. — Eleventh count. 
 Same as tenth count, except it uses the words, " feloniously disregarding their respective 
 employments, did so negligently and inattentively navigate, control, and manage the steam- 
 boat Henry Clay, and so negligently and inattentively manage and regulate the fires and 
 steam, &c.," which said steamboat was then and there under the guidance and control of 
 the said defendants, that by their misconduct and negligence, the said lives were de- 
 stroyed. — Twelfth count. Same as eleventh count, except it uses the words "by misconduct 
 and negligence, and by inattention to their respective duties as aforesaid, so inattentively 
 manage, navigate, and control the said steamboat Henry Clay; and so inattentively ma- 
 nage, regulate, and control the fires and steam on board said steamboat Henry Clay, as 
 to cause said steamboat to take fire, by means whereof one Inock Simons, then and there 
 being on board, was burned, and from such burning died; and charges his destruction to 
 their misconduct and negligence, and inattention to their respective duties." — Thirteenth 
 connt. Same as second count, except it charges the life of Inock Simons to be destroyed. 
 — Fourteenth count. Same as last count, except using the word negligence instead of mis- 
 conduct. — Fifteenth count, Same substantially as fifth count, excepting it charges the 
 death of Inock Simons, having been caused by fire, by reason of their iuattention to their 
 respective duties. 
 
 Argument was heard at great length on this question, before his Honour, Mr. District 
 Judge Betts, and a similar case, that of the Reindeer, was heard at the same time. In 
 the latter case the defendants had pleaded to the indictment, but having faith in Mr. 
 McMahon's motion, united with him in it on the part of their clients. — The following are 
 the arguments of the defence, and of the U. S. on that motion. Mr. McMahon, for the 
 six defendants above named agreed : 
 
 I. The Circuit Court of the United States of America has no jurisdiction of the ofl'ences 
 described in the indictment, because — 1 . It describes the ofl'ence as having been committed 
 on the Hudson river. The court can take judicial notice that the Hudson river ends at 
 
STEAMBOAT NEGLIGENCE — THE HENRY CLAY. 487 
 
 New York Bay, all above New York Bay, is entirely within the limits of the State of New- 
 York. Peyton v. Howard, 7 Peters, 322.-2. In U. S. v. Bevans, 3 Wheat, p. 336, it 
 was decided that the courts of the United States have not jurisdiction of offences under 
 the admiralty, until Congress have legislated on the subject. — 3. Congress have no right 
 to legislate respecting offences committed on navigable waters, entirely within the limits 
 of a State; and the Hudson river is a navigable stream, entirely within the limits of the 
 State of New York. The jurisdiction of the State of New York, extends to low water 
 mark on the Jersey shore. Commonwealth v. Peters, 12 Metcalf, 187, 12 Howard's Re- 
 ports, p. 443. — 4. The act of 1838 does not in terms extend the jurisdiction of the U. S. 
 courts to the navigable waters wholly within a state. It merely authorizes the general 
 admiralty jurisdiction to apply to take cognizance of what it describes to be an offence, 
 and the general admiralty jurisdiction does not apply to waters within the body of a 
 county, or fauces terrce. U. S. v. Wildbore, 5 Wheat, p. 76, 103 and 104, S. C. Crimes, 
 Act 3 March, 1825; 30 April, 1790, sec. 12, 5 Mason's Reports, p. 290.— 5. The court 
 should be extremely chary of extending the act, to apply to offences committed on the 
 Hudson river, because if the admiralty has jurisdiction it is exclusive, and is a serious 
 attack upon the rights of state sovereignty. This point is pressed in sober earnestness, 
 as it happens that both the state, county, and the United States courts have here assumed 
 jurisdiction, and intend to exercise it. 
 
 II. This indictment is defective in form, and describes no offence whatever. — 1. It fol- 
 lows the words of the statute of 1838, in describing the offence without stating in what 
 way the defendants were guilty of misconduct, negligence or inattention to his, or their 
 respective duties, or what were the respective acts of misconduct, negligence or inatten- 
 tion constituting the offence. In any event, the first, second, third, fourth, fifth, sixth, 
 seventh, thirteenth, fourteenth, and fifteenth counts are bad for that reason. — 2. The 
 offence being a felony, such a particularity is required, both at common law and by the 
 decisions of our courts. 1 Chitty's Cr. Law, sec. 22, Arch. 50 and 64, Starkie's Cr. PI., 
 235; Regina v. Barrett, 2 Car. & Kir. 343; Carr. & Payne, 156; U. S. v. Mills, 7 Peters, 
 142; States. Raines, 3 McCord'sRep. p. 533; Hampton's cft^e, 8 Grattan, 590; Common- 
 wealth !;. Stout, 7 B. Mon. 247; People v. Allen, 5 Denio, 74, 76. — 3. As the terms mis- 
 conduct, negligence or inattention are very broad and indefinite, by the use of them alone, 
 no indication is given to the defendants of what they are guilty, and to meet such a 
 charge they must be in great danger of conviction, because of their not knowing what 
 description of misconduct, negligence, or inattention, they are to combat. Regina v. 
 Barrett, 2 Carr. & Kir. 348; Tennessee v. Fields, Martin & Yerger, Rep. 137.— 4. The of- 
 fence is not set forth as having been committed feloniously, or with intent to injure any 
 person or persons on board said vessel. Arch. Cr. PI. 64. — 5. It sets forth that the mis- 
 conduct, negligence or inattention to their respective duties, &c. caused the lives of, &c. 
 to be destroyed, with showing that such acts directly destroyed the said lives ; and under 
 the principle of causa proxima non remoia spectatur, the indictment shows no offence under 
 that statute. Howell v. Commonwealth, 5 Gratt. 664; Anthony vs. the State, 18 S. & M. 
 263. 
 
 III. The indictment is defective in substance because, — 1 . It indicts jointly for the same 
 joint offence in the same count, several defendants occupying different stations of em- 
 ployment on the steamboat, for a joint misconduct, negligence or inattention to their 
 respective duties, without showing that their acts were jointly destructive of the lives of 
 those on board, or became, or were joint in their commission. — 2. The statute of 1838 
 under which this indictment is framed, does not contemplate a joint negligence, because 
 the phrases of the act are disjunctive, or distributive, thus, every captain, &c. by whose 
 misconduct, negligence or inattention, respecting duties, &«. — 3. The words misconduct, 
 negligence or inattention, mean omission or ill conduct that is passive ; action is not 
 implied ; the terms amount to an absence of will in what they do or omit to do, because 
 if there is will, then malice would be inferred, and they would be guilty of murder. If 
 no will, then there is inertness of the mind, which in each one is separate, because the 
 inertness of the mind of the captain is different from the inertness of the engineer, their 
 duties being distinct, and the exemplification of that inertness being different. The cap- 
 tain's misconduct, negligence, or inattention has reference only to his respective duty as 
 captain ; so with the engineer, with the pilot, and so with the others ; each is guilty in 
 his respective s phere ; their guilt is diffei-ent, and the manifestations of that guilt are dif- 
 ferent, and in no sense are their acts or causes conducing to those acts joint. Where 
 several commit a joint act not of itself illegal, but which becomes so by reason of some 
 circumstance applicable to each individual, severally and not jointly, they must be in- 
 dicted separately. 2 Hawk. Ch. 25, sec. 89; Barbour's Cr. T. p. 388. Thus several 
 partners cannot be indicted jointly, for exercising their trade without having served an 
 apprenticeship, 1 Salk. 382 ; 1 Strange, 623 ; and 2 Strange, 921; Barbour's Gr. T. 888 ; 4 
 Burrough, 2, 46. When several persons are engaged in publishing a libel, and the publica- 
 tion of each be separate, they must be severally indicted, Barbour's Cr. T. 388. So on a 
 joint ch i" ■ • ■ - ' • •jjj g^j. g£ receiving must be proved. Proof 
 
488 APPENDIX. 
 
 that one received in the absence of the other, and afterwards delivered to him, will not 
 sufEce. Rex. v. Messingham, Ryan & Moody, C. C. p. 257. See Russ. & Ryan, Re- 
 served 344, see Vaughan v. the State, 4 Miss. 530; Weinzorpflin v. the State, 7 Black. 
 186. — The motion to quash is the proper way to moot these puints, for if the matters al- 
 leged in the indictment are not punishable by law, the indictment will be quashed. 
 Wharton's Cr. L. 131, Arch. Cr. L. 64. So the court may quash in its discretion, for such 
 insufficiency as will make any judgment erroneous, given upon any part of it against the 
 defendant. Betts, J. in U. S., v. O'Sullivan, 9 Leg. Obs. p. 259, citing authorities U. 
 S. V. Goodwin, 12 Wheat, p. 460. 
 
 The United States District Attorney, Mr. J. Prescott Hall, in rising to oppose the 
 motion to quash the indictment in this case, said, that he should not consider it any 
 part of his duty to occupy much of the time of the court in discussing the exceptions 
 taken to the indictment, because he knew his honour was famUiar with the law and the 
 principles laid down in several discussions in similar cases. Knowing the judge's 
 general preparation in all matters, he would merely state, first, in answer to the objec- 
 tions as to jurisdiction, that the law was sufficiently explicit in bringing this offence 
 within the terms of the act of Congress, and that the objection was at an end, provided 
 there is nothing in the law inconsistent with the Constitution of the United States. The 
 learned counsel then referred to the act providing for the better security of the lives of 
 passengers on vessels which are propelled in whole or in part by steam. Twelfth sec- 
 tion provides, that every captain, engineer, pilot, or other person employed on board 
 any steamboat, by whose misconduct, negligence or inattention, life is destroyed, shall 
 be deemed guilty of manslaughter. Yet it may be, that Congress had no right to pass 
 the law ; if so, there would be an end to the question : but he, the District Attorney, took 
 it for granted, that no Court at Nisi Prius would take upon itself to assume that Con- 
 gress had violated the Constitution of the United States, unless it clearly appear that 
 it had done so. It would be enough for him (Mr. Hall,) to show that Congress have 
 that authority, not only by the words of the Constitution, but by express adjudications 
 of the Supreme Court. It does not follow as a logical deduction, that because the states 
 have jurisdiction over certain crimes. Congress, therefore, has not. It does not follow 
 that because Congress has jurisdiction over certain crimes, the states have not. The Dis- 
 trict Attorney then referred to the case of Fox, charged with counterfeiting, reported in 
 5th Howard, p. 434, and remarked that his honour, Judge Betts, had given the same con- 
 struction to the act concerning the counterfeiting of coins, which had been put upon it 
 by the Supreme Court of the United States, in Marigold's case, 12 Howard, p. — , even 
 before that case was decided, the Supreme Court held, in those cases, that although the 
 states might have jurisdiction over certain crimes, yet, that Congress might also exer- 
 cise the same power in cases within their jurisdiction. In relation to the matter now 
 before the court, he submitted that it was not important whether it was exclusively 
 under the authority of Congress or not : it is part of that jurisdiction in which is included 
 the power to regulate commerce, and that also includes the power to regulate naviga- 
 tion. If Congress had the power to regulate navigation, they have the right to regu- 
 late it everywhere. The power extends to the land as well as the sea. As to the point 
 about the flow and ebb of the tide, that has been long since exploded. He. referred to 
 the case of the Ohio bridge, in which it had been decided that the admiralty power ex- 
 tends to the lakes, and the power of Congress extends to the land as well as to the sea, 
 in matters of commerce. It is a question of power, not of discretion. If Congress have 
 a right to regulate navigation, there is no limit upon their discretion. It is for Congress 
 to say how, and in what manner, the regulation shall be made and exercised. But this 
 is not a matter open for construction. The Supreme Court has expressed its opinion 
 upon this very act, and has decided that it is applicable to all steam vessels, whether 
 navigating the rivers, the ocean, or the lakes; and that its commands must be obeyed 
 by all persons within its description and enumeration. The District Attorney here cited 
 and commented at great length upon the following cases, which he insisted bad set the 
 matter of jurisdiction at rest. New Jersey S. N. Co. v. Merchants' Bank, 6th Howard, 
 394; United States t). Coombes, 12th Peters, 72; Waring «. Clark, 5th Howard, 461- 
 465. In this last case, the Supreme Court say that the act of July 1838, in all its pro- 
 visions, is obligatory upon the owners and masters of steamers navigating the waters of 
 the United States, whether navigating on waters within a state or between states. 
 Then as to the forms of the indictments, the District Attorney insisted that they were 
 sufficient in all particulars, and conformable not only to precedents, but to express ad- 
 judications. In setting forth a crime created by statute, it is sufficient to describe the 
 otience in the words of the statute itself, and this rule has been followed in some of these 
 counts; while in others, the particular mode in which tlie terrible calamity overwhelmed 
 men, women and children, in one common ruin, are particularly set forth. In some 
 counts, death is attributable to the direct action of fire and steam; in others, water, in 
 which the sufferers sought refuge to escape the still more dreadful ravages of flame. 
 The District Attorney then commented upon the objection made that there could be no 
 
STEAMBOAT NEGLIGENCE. — THE HENRY CLAY. 489 
 
 such thing as joint negligence, and insisted upon it, that in practice, such inattention 
 might exist, as in cases where two men are stationed at one point to keep common 
 watch, and both neglect their common duty by gross acts of negligence. But in this 
 case joint misconduct is charged, and in the Henry Clay's case the indictment sets forth 
 that he, CoUyer, the owner, was acting as master, that the captain was also acting in 
 conjunction, not only with him, but with the engineer, pilot, clerk, and others of the 
 crew; that all these were acting together, each in his own department, the object being to 
 surpass the Armenia in speed ; that each and all were reckless, and that the consequence 
 of this recklessness was the burning of the boat, and the destruction of her passengers. 
 He insisted, therefore, that both in theory and in practice, the indictments were good, 
 and ought to be sustained, and he cited and commented upon many cases in support of 
 his positions. The argument of the District Attorney occupied upwards of two hours. 
 
 Mr. M'Mahon replied on the part of his clients. In the course of his argument, the 
 judge interrupted him, saying, that he would not take into consideration the question 
 whether the law was unconstitutional. The only question he would entertain, was 
 whether this court had jurisdiction in the matter. 
 
 Mr. Jl'Mahon then continued his argument, and was followed by Mr. Noyes on be- 
 half of the parties implicated in the Reindeer catastrophe. The court then adjourned, 
 the judge reserving his decision until morning. 
 
 The court, after advisement, delivered an oral opinion, in which he considered at 
 some length the objections, but finally overruled them, and ordered the defendants to 
 plead to the indictment.' The defendants all plead not guilty. After several continu- 
 ances, the indictment came on to be tried at the October Circuit Court, before his honour 
 Cb.arles A. IngersoU, sitting in the place of the present court, under the act of Congress, 
 and a jury. 
 
 Mr. D. M'Mahon appeared for defendants Tallman, Jessup, Elmendorf and Merrit. 
 Mr. Henry G. Wheaton for Germaine. Mr. George N. Betts and Mr. Ambrose L. Jor- 
 dan for CoUyer. 
 
 Mr. J. Prescott Hall, late District Attorney, and Mr. Dunning, for United States. 
 
 The prosecution moved on the trial of the defendants together. The counsel for the 
 defence, on affidavits, asked for separate trials, principally because the defence of the 
 defendants were antagonistical to each other, and that no fair trial could be had of all 
 the defendants together, and that the evidence of the defendants were reserved for each 
 other. This separate trial was opposed at much length by the prosecution. After a 
 long discussion, Judge IngersoU decided against the separate trial, remarking as fol- 
 lows, viz. : — 
 
 It appears to me that a great many topics have been discussed here which it is unne- 
 cessary to consider in disposing of this motion. They will properly be considered when 
 the case goes to the jury; and as to what weight wUl then be given to them, under the 
 instruction of the court, I do not think it necessary to intimate an opinion. The act of 
 Congress provides "That every captain, engineer, pilot, or other person employed on 
 board any steamboat or vessel, propelled in whole or in part by tteam, by whose mis- 
 conduct, negligence, or inattention to his or their respective duties, the life of any per- 
 son or persons maybe destroyed, shall be deemed guilty of manslaughter." Now, the 
 indictment at present under consideration, is founded upon this act of Congress, and it 
 charges the individuals named in it of this misconduct and negligence. It charges them 
 with a joint misconduct, and that by such misconduct and negligence they are all liable. 
 It is not necessary for me to determine any questions which may have been had up 
 before Judge Betts, heretofore, or to intimate what I think of his opinions ; but un- 
 doubtedly I should have concurred in his opinion, after due consideration had by me. 
 The question now is, whether the court will order a separate trial to Mr. CoUyer, before 
 the other defendants are tried, because it is evident that the object is to have Mr. 
 CoUyer tried first. 
 
 Mr. Jordan. — So far as we are concerned, we never asked anything of the sort, nor 
 do we wish it. 
 
 His Honour. — It makes no difference whatever. The object is to have one tried before 
 the other — and why? The reason is, and there can be no other legitimate reason, that 
 unless there is a separate trial, there cannot be a fair trial ; and then the question 
 comes up, that being the reason — has there anything transpired by which it is made to 
 appear that these parties cannot have a fair trial if they are tried jointly ? And if 
 there is no reason made to appear that they cannot have such a fair trial, then it is the 
 duty of the court not to order a trial separately. But if it is made to appear that they 
 cannot be fairly tried jointly, then, as I conceive, it is the duty of the court, although 
 it has often been said to be in their discretion, to order a trial separately. What are 
 the reasons which are urged to induce me to believe that the defendants cannot be tried 
 jointly ? They are two — the first is, that the defence of some of these defendants is so , 
 
 "^nme of Blatchford's C rcuit Court Keports. 
 
490 APPENDIX. 
 
 antagonistic to each othei% that they cannot have a fair trial; and, secondly, that they 
 canr.ot be tried fairl.y -without having the testimony of their co-defendants in their be- 
 half, as I understand it, and that therefore they should be ordered to be tried separately, 
 so that they could have the testimony of their co-defendants adduced in their behalf. 
 One word as to this latter reason before I consider the first. Is there any ground for 
 that reason, that I should order a separate trial to be had in this case ? Whether Mr. 
 CoUyer were tried first, or the captain, or the engineer, it is said that the one who ia 
 thus tried first, ought to have the benefit of the testimony of the other, and could not 
 have it, and it follows that it should be granted for that reason; and the question is, 
 couid he do it? This question has been often before the courts, not only in the states, 
 but before the courts of the United States. It has been before the Supreme Court, in 
 a case reported in Johnson, in a case in Massachusetts, of Pickering, where a separate 
 trial was ordered, and where the party who was first tried offered the testimony of his 
 co-defendants, and it was refused, because the co-defendant was not a witness. Two 
 years ago the same subject was had up before the Supreme Court of the United States. 
 It was a case that went up from Virginia, where two individuals were indicted for mur- 
 der upon the high seas, and where a separate trial was ordered, and where the one first 
 tried offered the testimony of the other one who was indicted, and not upon trial, and 
 the question went up to tlie Supreme Court, whether he was a competent witness for the 
 one first tried, and the Supreme Court decided that he was not, although in the State of 
 Virginia a law had been passed prior to the time that the trial was had in the Circuit 
 Court, that where a sepirate trial was had, the one first tried might have the benefit of 
 the testimony of the other. The Supreme Court decided, although it was so in the 
 State of Virginia, yet in the courts of the United States, the one first tried could not 
 have the benefit of the testimony of the other who was indicted with him, and there- 
 fore this reason which has been urged, is not well sustained; for if this defendant was 
 tried separately, the object would not be obtained, for he could no more have the testi- 
 mony of those indicted with him upon that trial, than he could have upon a joint trial. 
 
 Now, as to the other reason. Is the defence so antagonistic that the defendants can- 
 not be fairly tried? I certainly do not thinli so; if I did, I should be inclined to grant 
 a separate trial. It is not that any one who is acting as captain, or mate, or engineer, 
 and him only, shall be liable under the statute, but it is any person; and in reference to 
 the ground urged by the last counsel, that it is necessary for him to implicate the wit- 
 nesses in order to excuse the captain whom he represents, I do not understand it so at 
 all; if what he says is true, that the captain was sick, so that he was not able to attend 
 to his duties on board the vessel, and did not so attend to them, and the command de- 
 volved upon the next officer — if he was sick and could not attend to his duties, he has 
 done nothing. If that is made to appear, then, as I view the case, unless there is some- 
 thing more in it, and this misconduct happened during his sickness, and he could not 
 attend to it, then in my judgment he will be free, because he will not be implicated in 
 that misconduct. His sickness would excuse him. I do not therefore see any reason 
 upon each of the grounds to which I have alluded, that the defence of the defendants is 
 so antagonistic that they cannot have a fair trial if tried together. 
 
 Mr. Dunning, the Associate District Attorney, opened the case for the prosecution. 
 He said : — The defendants have been indicted under the provisions of the twelfth section 
 of the act of Congress, approved July 7, 1838, entitled, "An act to provide for the bet- 
 ter security of the lives of passengers on board of vessels propelled in whole or in part 
 by steam." That section says, "And bo it further enacted, that every captain, engi- 
 neer, pilot, or other person employed on board of any steamboat or vessel propelled in 
 whole or in part by steam, by whose misconduct, negligence or inattention to his or 
 their respective duties, the life or lives of any person or persons on board said vessel 
 may be destroyed, shall be deemed guilty of manslaughter, and upon conviction thereof 
 before any Circuit Court in the United States, shall be sentenced to confinement at hard 
 labour for a period of not more than ten years." The indictment in this case contains 
 various counts, and in substance charges that the defendants, on the 28th day of July, 
 1852, were the persons having charge of, and employed on board the steamboat Henry 
 Clay, a vessel propelled by steam; that John P. Tallman was the captain, John Germain 
 engineer, Edwnrd Hubbard pilot, James L. Jessup clerk, James Elmendorf second pilot, 
 and Thomas CoUyer acting as captain : that by the misconduct, negligence and inat- 
 tention to their respective duties, the lives of Stephen Allen, A. J. Downing, Abraham 
 Crist, and divers other persons, wore destroyed, 'it will appear that on the morning of 
 the 28th July, 1852, the Henry Clay left Albany, freighted with human beings, having 
 more than four hundred passengers on board, bound for this city; while on her passage 
 down the river, at about three o'clock in the afternoon, when nearly opposite Yonker's, 
 she was discovered to be on fire, and so rapidly did the flames spread, that they soon 
 gained the mastery, and it was found to be impossible to extinguish them ; the boat at 
 this time was near the middle of the river, but was soon headed for the shore, which 
 she succeeded in reaching, her bow being run aground, her stern remaining in deep 
 
STEAMBOAT NEGLIGENCE — THE HENRY CLAY. 491 
 
 water. Then ensued a scene of horror that haffles all description. At the time the 
 Tessel reached the shore, most of the passengers were on the after part of the boat, 
 having been directed to go there by those in command. The wind was blowing from 
 the shore, and the fire, which originated near the middle of the boat, was raging to such 
 an extent as to render it almost impossible to pass it. In their attempts to reach the 
 shore, more than eighty of the passengers on board, with scarce a moment's warning, 
 were hurried into eternity. The fearful alternative of perishing by the flames or the 
 waves, was presented to many of the unfortunate passengers of that ill-fated vessel ; 
 and each element, the fire and the water, received its share of victims ! No age, sex or 
 condition in life escaped — the mother and her infant, the old and the young, the man 
 of four score years and the youth, shared a common fate. For a time the sad tidings 
 of this catastrophe spread a gloom over the land, and well they might — for they brought 
 sorrow and anguish to many a heart, and desolation to many a home. It is charged 
 that this sacrifice of human life, was caused by the negligence, carelessness and inatten- 
 tion of the defendants, and it will be for you to say whether this charge is well-founded. 
 Your position, therefore, gentlemen of the jury, is an important and a responsible one — ■ 
 important for the defendants — important for the community. You stand between the 
 living and the dead; for although your verdict cannot re-animate the dead, it may save 
 the living ; may prevent the occurrence of similar calamities ; may teach a lesson to 
 those who have the charge and management of steamboats, much needed to be taught, 
 that the safety and lives of passengers committed to their charge are not to be trifled 
 with or taken with impunity. The frequency of occurrences of this character may well 
 excite alarm ; — scarcely a day passes, but we receive intelligence through the public 
 prints that life has been destroyed by the recklessness — the criminal recklessness of 
 those having charge of our railroad locomotives and steamboats. And where shall we 
 look for a corrective, if not to a jury, when a proper case is presented for their considera- 
 tion ? Let the law be rigidly enforced, and such occurrences will cease. Let courts 
 and jurors, ministers of justice, falter in the proper discharge of their respective 
 duties, and such occurrencSs will be more frequent still. I have said thus much, gen- 
 tlemen, to show you the importance of the position you occupy. I ask you to weigh 
 the evidence for the prosecution calmly and dispassionately, and render such a verdict 
 as will satisfy your minds under the circumstances. I shall not attempt any minute 
 statement of the evidence that will be introduced. I prefer that you should listen to 
 the statements of the witnesses, and take the evidence as it shall fall from their lips, 
 rather than any statements or conclusions of my own. We shall produce as witnesses, 
 many passengers who were on board and saw the whole occurrence. We insist, and I 
 think it will appear from the evidence, that on the 28th July, 18.52, the day on which 
 this awful calamity occurred, the Henry Clay was engaged in a fearful race — a trial of 
 speed with the Armenia — and that from that cause the catastrophe resulted. The ves- 
 sels left Albany at nearly the same time, the Henry Clay being a few minutes in advance 
 of the Armenia. That there was a race, we shall call a variety of testimony to prove ; 
 the witnesses will detail the occurrences that took place on that passage ; and that the 
 race for supremacy was contemplated before the vessels left Albany, will also be ap- 
 parent. So evident was it to the passengers on board that the boats were racing, and 
 so much were their fears excited, that they remonstrated with the officers, and Mr. 
 CoUyer, the captain, being sick, and not on deck, they besought them to desist, but in 
 vain, their remonstrances were unheeded, and the race continued. Many of the pas- 
 sengers who had paid their passage to this city, landed at Poughkeepsie and other points 
 of stopping, being fearful to proceed further in the boat, and pursued their journey by 
 other conveyances. This apprehension of the passengers, this desertion of the boat would 
 scarcely have occurred unless they were satisfied that there was a race. We shall show 
 also that the boat that day, did not make all her usual landings; they were so anxious to 
 succeed in the race, that they passed the landings to which some of the passengers had 
 paid. The vessels were in such close proximity, that at one time the Henry Clay ran 
 into the Armenia. One of the firemen who went up to Albany on the Henry Clay, on 
 the 27th, refused to return on the 28th, fearful of the occurrence of some such calamity 
 as actually happened. That the boats were engaged in a fearful contest for supremacy 
 will, I think, abundantly appear from the evidence; and that each and all of the defend- 
 ants contributed their efforts to enable the Henry Clay to succeed, will also be fully es- 
 tablished. Mr. Dunning then proceeded to state the other facts that he would adduce 
 in evidence for the prosecution ; that the race was continued notwithstanding the remon- 
 strances of the passengers; that the vessel was certified to carry thirty pounds of steam 
 to the square inch, and that she had much more ; that the vessel was not provided with 
 the neoessaiy means of ' escape— with life boats, life preservers or the usual number of 
 buckets, in case of fire ; that each of these was deficient in number, and that the catas- 
 trophe resulted from a want of care in this respect; that the vessel was on fire the day 
 before this catastrophe ; that she was on fire at an earlier period on the same day, and 
 
492 APPENDIX. 
 
 that she had been frequently on fire before the 28th July ; and these facts, though not 
 bearing on this case, go far to show a criminal negligence; Ihey were notified not only 
 at an earlier hour on the same day, but they had been frequently notified previously. — 
 The passengers would tell the jury of these facts, and that some of them counted the 
 number of revolutions the vessel made, though they may not be able to tell the exact 
 speed she was going at ; that, however, is not material ; it will be for the jury to deter- 
 mine whether the defendants caused this destruction of lives. They would perceive 
 that by the statute, while the punishment may be ten years' imprisonment, it is within 
 the discretion of the court to reduce it to one day. It was not necessaiy for the prose- 
 cution to show that the defendants, or any one of them, intended this calamity; it was 
 enough for them to show that it was the result of misconduct, carelessness or negligence. 
 The learned gentleman then referred to the able and elaborate charge of his honour. Judge 
 Betts, in the case of captain Farnham, of the Reindeer, in which he says: — The indict- 
 ment charges on the muster of the Reindeer the crime of manslaughter ; because, by his 
 misconduct, negligence, or inattention at the time and place alleged, the lives of many per- 
 sons were destroyed. The question at issue, on this indictment, is whether the government 
 have, by legal and sufficient proof, convicted the defendant of the crime of man;-laughter. 
 In the first place the law does not require the public prosecutor to prove wi'.ful mis- 
 m^^nagement or mal-conduct by the accused. You are not to inquire if he was guilty 
 of intentional negligence or inattention; but only if he did what is forbidden by the law. 
 The point of inquiry before you is, whether he was guilty of misconduct, negligence, or 
 inattention, and whether the explosion and destruction of life arose from either of those 
 causes. In order to determine that, we must have a cle:ir and accurate understanding of 
 the meaning of the terms used by Congress in this law. By misconduct, negligence, or 
 inattention in the management of steamboats, is undoubtedly meant the omission or com- 
 mission of any act which may naturally lead to the consequences made criminal, and it 
 is no matter what may be the degree of misconduct, whether it is slight or gross, if the 
 proofs satisfy you that an explosion of the boiler was the necessary or most probable result 
 of it. — Mr. Dunning concluded his address, which was listened to with marked attention 
 by a crowded court, by saying that it was neither the duty nor the inclination of the 
 prosecution to urge the conviction of the defendants, unless the evidence we shall be able 
 to introduce shall satisfy your minds of their guilt. We are not here to urge the con- 
 viction of the innocent ; the law neither needs nor seeks such victims. It vrill be our 
 purpose to introduce such evidence as is under our control, and which, in our judgment, 
 clearly tends to establish the guilt of the defendant?. We shall strive to state the case 
 fairly, between the government and the accused, and having done so, we shall have dis- 
 charged our duty; and it will then be for you, gentlemen, to discharge yours. 
 
 Much evidence was given in on the part of the United States, (Sie trial occupying 
 fourteen days) to support the propositions of fact in their opening. — The facts appeared 
 in proof pretty much according to the previous statement, excepting that witnesses of 
 the prosecution were principally unacquainted with steamboats and their management, 
 and two or three whom they called who were experts in navigation, approved of the con- 
 duct of the pilot of the vessel in putting her ashore. The defence was opened by Mr. 
 McMahon, who said : 
 
 Before opening the case, I beg leave to submit to your honour one or two authorities, 
 and one or two propositions of law, in answer to the cases which have been cited very 
 frequently by the prosecution: the first proposition is, " That under the act of Congress 
 of the 7th July, 1838, it must appear that the deaths or the homicides must result directly 
 and proximately from the misconduct, the neg'igence, or inattention complained of." In 
 support of that proposition, I refer to the 12th section of the act, that every captain, 
 engineer, pilot, or other person employed on board of any steamboat, or vessel, propelled 
 in whole, or in any part by steam, by whose misconduct, negligence or inattention to his or 
 their respective duties, the life or lives of any person, or persons on board said vessel may 
 be destroyed, shall be deemed guilty of manslaughter, and upon conviction thereof, before 
 any circuit court of the United States, shall be sentenced to confinement at hard labour for 
 a period not more than ten years. The act declares that the death must be caused directly 
 and proximately by misconduct and inattention to their respective duties. The second pro- 
 position is, that mere negligence or misconduct, or mere inattention, although it be suffi- 
 cient to charge the officers in a civil suit for damages, does not subject the defendants to this 
 indictment, and that an error in judgment, such as putting this boat on shore, or in the con- 
 fusion that ensued on that day, when the fire was discovered, in ordering the passengers 
 aft, does not constitute the misconduct, &o. as used in the 12th section. It must be such 
 negligence, or such misconduct, or such inattention as would, when committed, be likely 
 in itself, directly to cause the homicide; thus in a case of bursting boilers; for the engi- 
 neers to put extra weight on the safety valves, or for the captain to engage in a race 
 with a rival boat, and in such race his boilers would collapse from the extra strain put 
 upon them ; and tho act of omission must be such, as that its performance, or uon-per- 
 
STEAMBOAT NEGLIGENCE — THE HENRY CLAY. 493 
 
 formance -would be a notice to the officurs doing, or omitting to do the act, that he was 
 guilty of criminal dereliction of duty. Eex agt. Allen and another, 7 Carrington & 
 Payne, page 153; Rex agt. Green, same vol. page 156. — The third proposition is nearly 
 involved in the second ; that the negligence, misconduct, or inattention must not be merely 
 emissive, but it must be such gross negligence as is akin to fraud, under the law of bail- 
 ments, or as Judge Betts expresses it, "intentional negligence." (3 East's Pleas of the 
 Crown, 265.) My fourth proposition is, that under this indictment it is necessary to show 
 that each of the defendants, in the performance or non-performance of his respective duty, 
 was guilty of such misconduct, neglect or inattention, as that thereby, they all directly 
 Ciused the injury complained of, and that their acts converged to, and had in view some 
 great personal injury to the passengers. — Now with regard to the inferior officers of that 
 vessel, for instiuee the captain's clerk, it is necessary we suppose under this indictment, 
 that the prosecution must show that he was guilty of such misconduct in the performance 
 of his duties, in selling and taking tickets, so that that directly converged to this fire; 
 because under this 12th section, the homicide must be occasioned by the misconduct, 
 negligence, or inattention to his or their respective duties : so with the assistant pilot, 
 and so with the other officers of the vessel. The next proposition is, that even if there 
 be, as claimed by the prosecution, a general concert of action towards this race, yet, 
 under this act, the officers of this vessel, not in command, and not in charge of the fire, 
 cannot be held responsible for the fire. I am assuming the claim of the prosecution — 
 admitting nothing; for although as claimed by the prosecution, they might be guilty of 
 misconduct in assenting to the race, yet their misconduct had reference to the race, aiid 
 not to the fire ; and, in tlie absence of any evidence, as in this case, on the part of the 
 prosecution, to show that this fire was a direct consequence of that race, they must be 
 acquitted. One word as to the opinion of Judge Betts, in the case of the Reindeer. I 
 happen to know something about that case, although I was not one of the counsel who 
 tried it. The boilers of that vessel exploded on the North river, at Maiden landing, and 
 it was shown, affirmatively, on the part of the prosecution, that there was a violation of 
 the act of Congress on the part of the officers of that vessel, in not causing the safety- 
 valve to be raised at each landing place ; and the prosecution claimed, and direct affirma- 
 tive testimony was given to show that that collapsing of the boilers arose from the pres- 
 sure of steam, which pressure was occasioned, in a great measure, by the negligent act 
 of the officers of that vessel, in not doing that which they are enjoined to do by the act 
 of Congress. I state these facts with reference to this opinion, in order that the court 
 may see that it is entirely a distinctive case from the present. There was evidence to 
 show that the collapsing of these boilers, arose from the want of a performance by the 
 officers of that vessel, of the duties enjoined upon them by the act of Congress. This 
 was a charge to the jury: it was not brought up in any authoritative way, so that counsel 
 upon both sides, could discuss this particular question of law. The case was entirely 
 distinctive from the present case, and I do not think that any more weight should be at- 
 tributed to it, than to those English cases which 1 have cited, and which were determined 
 upon in solemn consideration by a bench of judges. May it please the court, gentlemen 
 of the jury, the duty has now devolved upon me, to open this case on the part of all the 
 defendants charged in this indictment; I represent in fact only four of these defendants, 
 but my colleagues not wishing to trifle with your patience, in having three openings of 
 this case on the part of the defence, the duty devolves upon me of representing all the 
 defendants. It is with the most profound emotion that I rise to address you upon this 
 occasion. We have here upon trial ^ix men of the utmost respectability, who are charged 
 here, after all, for nothing more than negligence, by the prosecution, and they are charged 
 with an ofl'ence of the gravest magnitude, the effect of which will be to consign them to 
 what would be worse than death to them — a living tomb. I feel, gentlemen, the re- 
 sponsibility of the task which I assumed here, in opening this defence. I look upon the 
 one side and observe two prosecutors, who, by their acts in this case have shown their 
 deterraination to convict these men of the offence with which they are charged before 
 you — an offence of the gravest magnitude ; but yet when I look to my clients, I feel re- 
 assured by the innocence of their looks, and thus imbued with this profound conviction 
 of their innocence, I rise to address you upon this occasion. 
 
 Now what is the offence with which they are charged here before you? So far as re- 
 girds the act of Congress, under which they are charged, or so far as regards the par- 
 ticular indictment, under which they are brought to trial before you, there is no fact, no 
 circumstance, which would give any notice to these gentlemen of what they are to meet 
 in this case, nor had they any notice, in point of law, of what they were to rebut, until 
 the evidence was given on the part of the prosecution. I say, therefore, that they are 
 bound to consideration in that respect. Men charged with the consequences of neo-li- 
 gence, how difficult it is to show exactly, step by step, every act which they did upon 
 that day. Yet this act of Congress is very comprehensive. It is very general in its pro- 
 visions; the indictment is equally general; it does not allege any duty which they are 
 
494: APPENDIX. 
 
 called upon to perform, nor any breach of that duty, except in most general terms; and 
 so far as regards the act of Congress and the indictments, the defendants knew nothing 
 until they werfl brought into Court, of what they were to meet. Now, gentlemen, on the 
 28th of July, 1852, a most appalling catastrophe occurred upon the North River, by which 
 a number of human beings were sent into eternity. So awful and dreadful was this 
 catastrophe, th;it immediately the public papers took it up, and the public jumped to the 
 conclusion that these men were necessarily guilty of misconduct or negligence. It was 
 spread through the land, and when this case was referred to, it was called "The Henry 
 Clay murder;" and whenever it was brought up in any court of justice, the "Henry 
 Clay murder" was a constant expression; but, gentlemen, very fortunately, fifteen 
 months have elapsed since th '.t occurrence, public excitement has to a great degree, died 
 away, and very fortunately for these defendants, they now stand before twelve men who 
 are unprejudiced, and who come to this caui^e witli no bias on their minds. Gentlemen, 
 it is a fortunate circumstance, and one which these defendants rejoice in, that they 
 are enabled for the first time, to spreid forth their defence before the public, and to 
 justify themselves in tlie eyes of the world. Wh.it must have been the feelings of these 
 men during the last fifteen months? How dreadful, how agonizing must have been their 
 thoughts, when at every turn they were ch».rged with the most heinous of offences? But 
 truth will prevail at last; and I appear before you now to develope what we conceive to 
 be (he truth in this case, and to justify every one of these men in what they did; we 
 deeply deplore the calamity that eusued, but we will show you by evidence and by facts 
 that will not lie, that they are innocent of any guilt in the premises. The prosecution 
 here claims that on the 28th of July, the Henry Clay started from Albany a little in ad- 
 vance of the Armenia, and that shortly after, a race occurred between those two boats. 
 They claim further, that that race was the cause of a fire which ensued some eighty-five 
 miles below, where these vessels were shown to be in close proximity to each other. 
 No evidence has been introduced here by scientific men, by engineers, or by any one who, 
 by reason of their location, ought to know ; no evidence has been introduced, to show 
 that the fire was legitimately the result of that alleged racing. Let us suppose there 
 was racing on that day; does it follow that the vessel was set on fire by that racing? If 
 the boiler had burst upon that, it would be perfectly legitimate to infer that the boiler 
 burst from the race. But it does not, by any means follow, that because there was a 
 race eighty-five miles above the scene of the catastrophe, of necessity, that fire originated 
 from that race. Now, gentlemen, in order to rebut any possible conclusion or inference 
 upon your minds, by the evidence which the prosecution has here introduced, we wiU 
 put upon the stand, engineers of the greatest respectability, who will show, by their sci- 
 entific testimony, that this fire could not have occurred from any racing ; that this vessel 
 might have been driven to its extremity of speed upon that day, yet the boilers of the 
 vessel were so arranged, water bottomed, the fire surrounded on every part by water, 
 that it was impossible, in the nature of things, for the fire to originate from that racing. 
 We will not put upon the stand a man brought from Yonker's, who knew nothing about 
 steamboats, nor had been engaged in any capacity on board a steamboat, but we will 
 put upon the stand scientific men, who know what they are talking about, and to whose 
 evidence you are bound, gentlemen, to give the utmost reliance. Was there any racing 
 on that day? I shall not go over the evidence of the prosecution, for it is out of place in 
 the opening of a case, for a counsel to recapitulate in minute terms, the evidence intro- 
 duced upon the other side, I will merely generally allude to it. You have all heard the 
 evidence of these excited pas.>jengers, (Mr. Minturn and so forth) from the commence- 
 ment to the end, a great many of whom differ in the details of this occurrence ; one of 
 them makes this collision one and a half miles from the western side of the river ; another 
 makes it almost on the western side of the river; and a third places it just reaching 
 Kingston dock. A number make it four or five miles above that place, and one goes so 
 fiir as to say eight or ten miles above Kingston dock. We will put upon the stand 
 pilots of long experience on this river, wlio will develope to you the channel of that river, 
 and who will show you how devious and winding that channel is from Hudson down, and 
 that it runs from one side of the river, and goes again to the other until it reaches King- 
 ston, and what struck these excited passengers as being racing, from the fact that the 
 Henry Clay came out to meet the Armenia, was nothing more than the Henry Clay 
 pursuing the natural channel in her navigation. We will put upon the stand pilots who 
 will explain to you about the collision of these two vessels; that it arose from the prin- 
 ciple of suction, and that when two vessels of a class, or nearly of a class, as the Arme- 
 nia and Henry Clay, are in close proximity, the principle of suction is such as would 
 bring them together, and that what the oflicers of the Henry Clay did upon that dav, 
 was perfectly proper, under the circumstances of the ease. They had excited passen- 
 gers on bo.ard, crying out, "What must we do?" The .\rmenia was in their way. We 
 will put upon the stand, passengers who will show that the Armenia came out and met 
 the Clay, and that the Clay endeavoured to avoid the Armenia, and for that purpose, on 
 
STEAMBOAT NEGLIGENCE — THE HENRY CLAY. 495 
 
 one occasion, run inside of a sloop, not a great distance from the eastern shore, in order 
 to avoid lier (the Armenia.) We will put upon the stand, witnesses to show that on 
 that day, the Henry Clay was not making her ordinary speed ; who will prove that she 
 could make twenty-seven and twenty-eight revolutions of her wheel in a minute, and 
 that her speed was from twenty-one to twenty-two miles an hour; and, further, that at 
 different landing places upon the river, she was behind her time. When you connect 
 that fact, gentlemen, with the fact that at the time she was run ashore, she was an 
 hour or an hour and a quarter behind her time, can you arrive at the result that there 
 was racing on that day? It is absurd to talk about it; there was no racing on that day; 
 and for fear that there should be racing, an agreement was entered into between the 
 owners of the two vessels, before she went on her trip to Albany, that there should be 
 no racing, and that the Armenia should keep behind the Clay on the up trip and down 
 trip. Yet, gentlemen, for fifteen months has it been bruited throughout the land, that 
 these vessels were engaged in a deadly strife; that pitch and tar were used, and that 
 the utmost means were resorted to by the officers of that vessel to beat the Armenia. 
 Why, gentlemen, it was, as stated by one of my colleagues, a "cripple's race." One 
 witness testifies that he got on board the boat at Hudson, which is thirty miles from 
 Albany; that he started a little before seven; and that she was going fourteen lailes an 
 hour. One witness gets on at Poughkeepsie at 12 o'clock, which is seventy-two miles 
 from Albany, and she was then going about fourteen and a half miles an hour, and at 
 the time she was run ashore, it was from three and a quarter to three and a half o'clock, 
 P. M., being eight hours from Albany, a distance of one hundred and thirty -five miles, 
 which would make her rate of speed from fifteen to sixteen miles an hour. If they had 
 been going twenty-one or twenty-two miles an hour, for eight hours, they might have 
 reached Sandy Hook. 
 
 Thirty years ago, for a steamboat to go eight or ten miles an hour, was considered ex- 
 traordinary speed; but such has been the force of American energy and go-ahead-itive- 
 ness, that from that time to the present, improvements upon improvements have been 
 made in the speed of vessels; and it is well known that there are now in our harbours, 
 vessels that go from siKteen to twenty-three miles an hour. But the prosecution says, 
 that in order to race they made extraordinary fires ; that these extraordinary fires were 
 made seven times hotter, in order to keep up the steam ; and the safety-valve was bound 
 down, in order to run this vessel at the extraordinary speed of sixteen miles an hour. 
 For that purpose, they have introduced some passengers who stood, on a hot day, on the 
 promenade deck, in the vicinity of the engine room and her steam drum, and they found 
 it hotter than they ever found it before ; what they mean by that, gentlemen, does not 
 appear before you, as these witnesses are not shown to have had any experience on 
 steamboats. It is absurd and ridiculous for the prosecution to send six men to the State 
 Prison upon evidence like that; we have to meet that evidence, however ridiculous and 
 absurd the testimony is ; but we shall be able to place upon the stand, witnesses who 
 will put a quietus upon it. We shall show, in reference to the construction of the Henry 
 Clay, that this steam drum or chest on the promenade deck, was uncovered, and the 
 reason of its being uncovered was for greater security against fire; it was found by one 
 of the owners of this vessel, that another steamship belonging to him had taken fire from 
 the steam-drum being covered, and consequently, on this boat a different regulation was 
 made use of. It would very naturally happen, that persons standing on the promenade 
 deck, with the steam-drum uncovered on a hot day, and but little breeze above the High- 
 lands, would feel very warm. Now as to the subject of extraordinary fires ; when steam- 
 boats intend to race, they take on board an extra quantity of coal, they employ extra 
 firemen, they break them up into many watches, and do a great many things in order 
 to carry out the race; but we will show to you that on that day no more coal was 
 taken on board than usual, and that there was no tar, pitch, or rosin on board; Lacka- 
 wanna coal was used, and that of thg best quality ; and no extra hands were employed 
 besides the regular men; we shall show that there was but a little breeze above the 
 Highlands, and further, that from the commencement of the voyage until Catskill, the 
 ] ressure of steam, as indicated by the gauge, was much less than she was allowed to 
 carry by law. One word upon that subject; they have introduced upon this stand, an 
 aged man, who, from his testimony, has shown his liability to make mistakes, for the 
 purpose of proving that the certificate of that vessel only allowed her to carry thirty 
 pounds of steam, but we shall show to you, by a number of witnesses, although that cer- 
 tificate has been consumed by the flames, that that certificate allowed her to carry thirty- 
 five pounds of steam; and further, that it was perfectly safe for the boilers of that 
 vessel to bear fifty pounds of steam, and that they were built with the intention of carry- 
 ing seventy-five pounds; but for greater security, and at the request of the engineer him- 
 self, the certificate was narrowed down in one year from sixty pounds to thirty-five 
 pounds; and the reason was, not as Curtis stated, because he saw some defect in the 
 furnace, but, because, although the boilers could bear sixty pounds with safety, yet it 
 
496 APPENDIX. 
 
 might not be witli safety to the other parts of the machinery of that vessel, for in the 
 spring of 1852, an alteration was made in her steam cylinder, and a larger one was put 
 on board. We shall show that the fire-room of that vessel was better constructed than 
 thnt of any other vessel of her class on the North river, and that with her boilers below 
 deck, she had greater precautions against fire than any other vessel of her class; we 
 shall show that she had, which few vessels were furnished with at that time, a steam 
 cock, for letting off the steam, in order to extinguish the fiames; we shall show that 
 these boilers were properly covered with the usual covering; that they were far back, 
 where no fire could reach; that the fire broke out on the starboard side of the starboard 
 boiler, immediately under the grating, on the side of the vessel where no fire could 
 reach ; we cannot account for this fire ; we did not set the vessel on fire ; because, gentle- 
 men, it would have been too great a loss to the owners of this vessel; they will lose by 
 this catastrophe $200,000; it is a deep and abiding calamity to them. This fire oc- 
 curred either from accident or design ; if it occurred from accident, it was no accident 
 that happened through the acts of any one of the firemen or the officers of that vessel. 
 We can imagine how it occurred, but we are not called upon to show how. Wc could 
 refer to the testimony of Mr. Wilkes, who was so prophetic upon that day, but who has 
 never been so prophetic since. We could show that a lying, drunken fireman was dis- 
 charged from his employ, and a great many other facts, but it is enough for us to show, 
 that on that day, it occurred through no negligence, misconduct, or omission upon our 
 part. The prosecution claims that if the pilot had put that vessel ashore in an angular, 
 sidelong position, the passengers could all have escaped. For fifteen months has this 
 been bruited about in the public prints of the United States. Men, knowing nothing of 
 steamboats, have discussed eloquently upon this subject; that is one of the most cruel 
 things that has ever occurred in this case, and I say that the pilot, instead of being in- 
 dicted, should have received from those passengers who now malign him, a testimony for 
 his good conduct in putting the vessel on shore. That pilot is one of the best men of 
 his class in the State of New York. He has a rough exterior, but a kindly heart; for 
 although his pilot-house was in flames, and the boards crackling at his feet, and although 
 he ran the risk of being crushed by the steam pipe and walking beam, yet, like a Roman 
 sentinel, he stood at his post, and did not abandon it. We shall produce evidence to 
 show that, had the vessel been run ashore in an angular or sidelong position, she would 
 have shot off into the stream, and every soul on board would have perished. We shall 
 show, by the most competent witnesses, that the vessel was put on shore in the most 
 proper and scientific manner. We shall put upon the stand, if we deem it necessary, 
 the pilot of the Hendrick Hudson, who was run into by a sloop, and in attempting to run 
 his vessel sideways on shore, came very near losing her and all the passengers he had on 
 board. 
 
 It has been claimed by the prosecution, that if the oflBcers on board the vessel that 
 day had performed their duty, and had they given directions to the passengers what to 
 do, the lives of all would have been saved; and it has been harped upon, in the course 
 of the trial, that there was an order given to the passengers to go aft. Now, supposing 
 that it was so, it was a perfectly proper order, as will appear by our evidence. This 
 vessel was going to the shore head on, as was right and proper. If it had been a rocky 
 bottom at the place where it struck, the effect would have been that the vessel would 
 have been broken in two ; if this had happened, her boilers would have collapsed, and all 
 those who were forward would have lost their lives. Another circumstance was, the bow 
 of that vessel could not, by any possibility, hold a quarter of the passengers upon it, 
 suppose then, that the order had been given to rush forward — in a body of four hundred 
 excited passengers, having the fear of death before their eyes, how many of them would 
 have found a place of security there? Why, as it was, when the vessel reached the shore 
 there was not standing room even for those who were already there. You would, there- 
 fore, have enacted there the same scene that takes place where a theatre is burned and 
 the doors are shut, and no one can get out. The same fears, the same struggle to get 
 out and get forward, would have ensued; and yet the prosecution, in their ignorance of 
 what they were talking about, got up and introduced testimony in order to poison your 
 minds. But we shall show that so intense was the excitement, that even before the 
 vessel had reached the shore, between thirty and forty (and some say as many as fifty) 
 persons leaped off into the river. In such a state of things, there was absolutely no use 
 in trying to restrain them. Many of us, indeed, did try to do so, the officers tried it, 
 but it was found impossible to succeed. The passengers wore piinic-stricken, and like 
 every panic-stricken crowd, rushed they knew not whither. It was, as described by one 
 of the witnesses for the prosecution, a beehive. Now, gentlemen, what could the officers 
 have done on that occasion? Mr. Hubbard, the pilot, was in the pilot-house; he did 
 not abandon his position. We shall show you that Mr. CoUyer, Mr. Elmendorf, the en- 
 gineer, and the barman, were all engaged in pouring water down the fire-room in order 
 to check the fire. We will show that one of the officers was on the lower deck, and or- 
 
STEAMBOAT NEGLIGENCE — THE HENRY CLAY. 497 
 
 dered all to go forward ; that persons were sent to the crowd to tell them that when the 
 boat reached the shore, they should go forward ; and that when the vessel did reach the 
 shore, every officer in the vessel, as soon as they saw persons struggling in the water for 
 their lives, sprang forward to save them. Now, for the last fifteen months, the brunt of 
 this offence has been charged on Mr. Collyer; every one has united in condemning that 
 gentleman, and yet no one exerted himself more than that same Mr. Collyer. As soon as 
 the vessel reached the shore, he did not spend his time in hunting after his carpet-bag, 
 or standing on the shore crying "Oh dear!" but he sprang to a fence, broke it down, 
 rushed with it into the water, placing boards within the reach of all that it was possible 
 to approach, and was the means of saving fifteen persons. He rescued so far as man 
 could by his own unaided exertions. What did the engineer do? he was in the water 
 likewise ; but, for a part of the time, he was endeavouring to scuttle the vessel, thinking 
 that by sinking her the fire could be put out, or the flames quenched, or that the vessel 
 might be made to touch the bottom, and the lives of the passengers be thus to some extent 
 rescued. Captain Tallman had on that day been confined to his berth from an attack of 
 the cholera-morbus, and unable to be on deck, except at intervals for the purpose of 
 breathing fresh air. Though he was taking calomel, a kind of medicine which rendered 
 it exceedingly dangerous for him to go into the water, yet he sprang in, got hold of a 
 boat, made two voyages in it, and was the means of taking to land some nine or ten 
 ladies. No efforts made to save the passengers ! Why, their efforts were superhuman ; 
 they did all that men possibly could ; and when Captain Tallman reached the shoi-e, he 
 had to be carried on board the Armenia almost insensible, and was obliged to be imme- 
 diately put to bed. What as to the pilot ? He was in the water, and I could relate to 
 you several touching incidents of his acts, when his kindly nature was aroused. Mr. 
 Jessup was up to his neck in the water, doing all he could, though he was unable to 
 swim. Mr. Elmendorf, too, was making exertions. There was not an officer on board 
 that boat, whether engineer, assistant engineer, pilot or assistant pilot, captain cr Mr. 
 Collyer, that did not make more than human exertions in order to save the lives of those 
 passengers. Why, did not the prosecution ask Mr. Minturn whether any thing was done 
 to save the lives of the passengers ? They did not; and if they had, it would have let us 
 •understand what they were endeavouring to set up, and we could have elicited that on 
 that day Mr. Collyer made most superhuman exertions. But it is said that the vessel 
 was not sea- worthy. On this subject I will make a few remarks ; we will introduce evi- 
 dence to show that the vessel was built by one of the most talented ship builders in the 
 United States, Mr. Collyer; that she was built with a view to rapidity of motion in the 
 water, and also with a view to safety. We will introduce evidence~to show that the 
 witness, Edwards, who said he saw wood around the smoke chimney charred, must have 
 lied, because there was no wood-work touching it. On the contrary, there was such an 
 opening that there was at least a foot of space between the chimney and the wood, and 
 besides that, there was a protection of canvass on each side. I will show, too, that the 
 vessel was built in every respect with an eye to security, and especially to safety from 
 fire. We will show that she had twenty-four buckets for water, on her hurricane deck, 
 and two boats, capable of containing fifty passengers, and four chain-buckets on her for- 
 ward deck ; that she had a steam cock to let off the steam, for the purpose of extinguishing 
 any flame, steam being the best extinguisher known; that we had one of the most expe- 
 rienced masters on the river, who, however, on that day was unfortunately sick and confined 
 to his berth ; that we had one of the best pilots on the river ; one also of the best engineers 
 —the man whom Cornelius "Vanderbilt would not go to sea without, and one of the most 
 scientific and careful pilots in the craft ; that we also had a good second pilot, and a good 
 clerk, who was selling tickets, and is now claimed by the prosecution to have set the 
 vessel on fire. We shall prove that it was a steamboat of the most improved model, 
 and we will show on the part of the officers of the vessel, the best possible character for 
 care, skill and caution. Now in conclusion let me beg of you not to listen to the voice 
 of prejudice. For fifteen months have these men been pursued with public odium ; their 
 characters maligned in every possible way— standing under this indictment— in another 
 county actually charged with murder; fortunately, however, able to quash that; then 
 charged with manslaughter. Actually under that indictment in another county, pressed 
 vigorously too, by the prosecution for fifteen months. Nor were the pubhc, notwith- 
 standing, satisfied with that— during the whole period the officers of the steamboat and 
 the owners were pursued with public odium. The matter was spoken of as the steam- 
 boat so and so, commanded by Captain Tallman, and piloted by Edward Hubbard. During 
 the entire period, they suffered intensely and agonizingly from the attacks upon their 
 character, many having wives and children, most of them having those who were near 
 and dear to them depending on them for their subsistence, and suffering the most intense 
 anxiety for the result of this prosecution. I beg of you, gentlemen, in conclusion, that 
 you will not listen to the voice of prejudice, but that you will calmly and dispassionately 
 
498 APPENDIX. 
 
 consider the testimony submitted to you. When we get through we will scotch the 
 snalie ; we will put an end to the malignity of the prosecution. 
 
 Evidence at great length was introduced by the defence, to prove the facts contained 
 in their opening. — The case was summed up by Mr. Jordan for CoUyer, and by Mr. 
 Wheaton for Germaine. Mr. McMahon, after their summing up, declined to speak. — Jlr. 
 Wheaton then commenced summing up for the defence ; as it had been remarked by the 
 counsel who opened the case, it was one undoubtedly of very great importance in its results, 
 both to the public, who feel a deep interest in it, as well as the defendants themselves. 
 Most certainly it was so to the latter, for on this occasion the jury had before them, men 
 who had not heretofore been charged with crime — men who bad, up to the time of the 
 destruction of this boat — he might say up to the present time, held as high a position 
 in society, and had had the confidence of the public, perhaps as much as any of their 
 fellow citizens that could be selected from this city. They were men accomplished in 
 the employments in which they were individually engaged, and their employments were 
 such, as the public had the deepest interest in having responsible or skilful men em- 
 ployed to perform. They were arraigned upon a high charge, with being the criminal 
 authors of the most extraordinary destruction of human life that has occurred for some 
 time. If the crime which has been alleged against them shall have been proved, it will 
 expose them to one of the highest punishments known to our laws — they being liable to 
 be consigned to the state prison for a period even of ten years ; their characters, of course, 
 too, to be destroyed in the estimation of the public, and themselves to be cut off from 
 ■society, and even be deprived of their liberty. The jury saw, therefore, that the case 
 was of the utmost importance, but still they came into court, and presented their defence 
 with the utmost assurance, and the utmost confidence, that after a fair examination of 
 ithe evidence that had been produced on the part of the defendants, the jury would be 
 satisfied, not only that they were not guilty of the crime which had been charged against 
 them, but that there was not the semblance even of a crime made out against them. — 
 There was no doubt this was a case in which the public had felt a deep interest, arising, 
 as it did, out of an almost unparalleled destruction of human life, and a feeling had got 
 abroad that the whole case should be thoroughly investigated, and beyond a question, 
 it was peculiarly proper that a thorough search should be made to ascertain, if possible, 
 whether any one was the criminal cause of the destruction of human life in question. 
 But they must act against individuals, only upon evidence, and he did say that if there 
 had been no more evidence before the grand jury, on which to ground their presentment 
 against the accused, he was amazed how it was possible that they could have come to the 
 conclusion of there being prima facie evidence against the defendants. But they all knew 
 ■how investigation before coroners' juries was conducted — that only one side of the case 
 was presented for consideration, and that the defendants had no opportunity of cross- 
 e.tamining the witnesses, or of discussing the testimony, as to whether it was suflScient 
 to ground an indictment upon it, or even presented a case that was proper for investiga- 
 tion. — He. would next call the attention of the jury to the statute upon which the indict- 
 ment was framed ; see what it was the defendants were charged with, what testimony 
 would be required for conviction, and then look at the evidence in the present case, to 
 see whether really there was a single fact on which the prosecution could rely, for the 
 purpose of obtaining a verdict. This indictment was founded on the 12th section of the 
 act of Congress, entitled an act to provide for the better security of the lives of passen- 
 gers on board vessels propelled in whole, or in part by steam; and he called their atten- 
 tion particularly, to the wording of the section. And every person employed on such 
 steamboat, impelled wholly or in part by steam, by whose misconduct, negligence, or 
 inattention to his or their respective duties, the life or lives of any person or persons on 
 board may be destroyed, shall be deemed guilty of manslaughter, and, upon conviction 
 thereof, shall be sentenced to confinement with hard labour, for a period of not more 
 than ten years. The first thing to be found upon this was, whether the persons charged 
 with the offence were employed on board such a boat, and had some distinct and par- 
 ticular business on it to perform. Then what misconduct, negligence, or inattention 
 to their respective duties they had been guilty of: then you must find a particular act 
 in each instance, against each of the defendants charged. In the case of an indictment 
 arising out of a boiler explosion. Judge Betts laid down that by the misconduct, negli- 
 gence, or inattention in question, was undoubtedly meant the omission, or commission of 
 any act, the necessary or most probable result of which was the loss of human life; and 
 no matter what amount of misconduct the parties were guilty of, it must be shown clearly 
 and distinctly that the misconduct led to the destruction of human life in question. Let 
 them now apply that to the present case. The jury had heard about the inspector's 
 certificate, but the inspector had not power to compel obedience ; he could only give a 
 recommendation as to the quantity of steam, and the parties might follow it or not, just 
 as they chose. Great stress had been laid by the counsel for the prosecution upon the 
 fact which they strove to establish, that the limit was thirty pounds ; but there had not 
 
STEAMBOAT NEGLIGENCE — THE HENRY CLAY. 499 
 
 been a particle of proof that at any time during the -whole distance between Albany and 
 Yonker's, she had carried an ounce of steam beyond thirty pounds, but, moreover, the 
 ■weight of evidence was most decidedly in favour of the defendants' position, that the amount 
 of steam fixed was thirty-five pounds. There was to this point the testimony of one of 
 the firm of Radford & Co , and several other witnesses, to that effect. Even from one 
 of their witnesses' testimony, it was as likely that it was thirty-five pounds as thirty 
 
 pounds. — Let them take the different oflioers, and see what they had been guilty of 
 
 What misconduct, for instance, had been proved against the engineer ? Had he not 
 managed, in the most skilful manner, so far as his part was concerned, up to the mo- 
 ment that the boat struck the laud? He challenged the counsel for the prosecution, 
 when he stood up, to point out any act of his which was criminal — any omission to per- 
 form his special duty. If he could not show this to the jury in letters of living fire ; if 
 he could not show it to them so plain, that the way-faring man, though a fool, could 
 see it ; if he could not point it out to them so plainly tliat the human eye could not be 
 deceived, then, appealing to the true spirit of our law, that a man is not to be presumed 
 to be guilty until his criminality is clearly and satisfactorily established, he should ask 
 them with confidence for their verdict on the part of the defendants. Then, what had 
 been proved with respect to the pilot? The prosecution had, indeed, only attempted to 
 urge one fact against him. and that was, that cresting over to his landing place at Kings- 
 ton, he had run his vessel in contact with the other, and that this was a culpable act on 
 his part, he having at the time the control of the helm. Well, even supposing the jury 
 found that this had been a wrong act, though undoubtedly his vessel had been chased by 
 the Armenia, either in the endeavour to make the landing first or to get into the suction 
 of the Henry Clay, this act could not be said to have any connexion with the burning 
 of the vessel; it was eighty-five miles from the place where the fire had been first 
 discovered, and the contact had been appropriately described by one of the witnesses 
 as a blow, and then separate. The Clay had not been injured at all ; not even had her 
 paint been rubbed. All the time of the accident, much excitement had prevailed, and 
 every slander that human ingenuity could suggest, had been thrown out against the 
 accused. Indeed, to such an extent did the excitement go, in relation to the matter, 
 that looking back at it now, and considering it coolly, they could only regard it with 
 astonishment. The catastrophe was undoubtedly an awful one, and the public, in their 
 indignation, did not stop to examine whether this person or that person was guilty, but 
 with one general voice exclaimed against all the officers. — They are guilty, punish them. 
 A victim was demanded, and the voice was, let us pay- back life with life, but the laws 
 were not now so vindicated. This had gone out with paganism ; the time had been 
 when, if the winds blew unpropitiously, the oracle was consulted, and the answer was 
 that the storm should be appeased by the sacrifice of human life ; but that time has 
 passed. Punish the guilty by all means ; but let them take care that it was the guilty 
 they punished. The defendants were charged with bearing on the waters, a precious 
 burden of men, women and children; but let them punish the innocent, and what would 
 the navigator say ? that it made no difference, let him be as careful as he could — when 
 the public indignation was raised, and a victim called for, it took the innocent as well 
 as the guilty. It was a happy thing in the administration of our laws, whenever there 
 was a great deal of excitement prevsSiling against an individual charged with a crime, 
 to put it off until the public mind had settled down under the excitement. In the pre- 
 sent case, they had waited until the excitement was in some measure subdued, and the 
 consequence was, that instead of having the court crowded with spectators, there was 
 only a small gathering, for the purpose of gratifying their curiosity, rather than from 
 revenge.— He would now read from Starkey, 478, a distinction in criminal cases, as con- 
 tradistinguished from civil ones: — "Tvlie distinction between mere proof, and mere pre- 
 ponderance of evidence, is very important in all criminal oases ; it is essential to a verdict 
 of condemnation, that the guilt of the accused should be fully proved: neither a mere 
 preponderiinoe of evidence nor any weight of preponderant evidence is sufficient, unless 
 it generates full .belief of the fact, to the exclusion of every reasonable doubt. It was 
 laid down in the 507th page, that the conclusion to be drawn should be fully established ; 
 that if the basis was unsound, the superstructure could not be sound ; that the party upon 
 whom the burden of proof rested, was bound to prove every single circumstance which was 
 essential to the conclusion, in the same manner and to the same extent as if the whole 
 issue rested on the proof of such individual and single circumstance. An attempt had 
 been made in this case to prove that there had been racing, and inferences were sought 
 to be drawn from this ; but before this could be done, they must first be convinced of the 
 existence of the fact, that there was racing: but not only was there no evidence as to 
 this but every fact and circumstance went to show that not even was there any attempt 
 at it • that even if the racing had been proved, it was not shown that the fire in question 
 had resulted from it. The evidence of Mr. Belknap went to show that the furnaces 
 were surrounded with water, and that, consequently, it was utterly impossible to raise 
 
500 APPENDIX, 
 
 the heat to such an extent as to set fire to the wood-work by radiation. — [Counsel then 
 proceeded to review the evidence produced for the defence, and concluded by saying:] 
 With respect to Xr. Ridder, I shall say nothing, in consequence of the fact of their having 
 disparat;cd his testimony, by showing that he told a very different story at the indigna- 
 tion meeting. From the appearance of the man, and the circumstances that transpired 
 during the examination, I apprehend that he was n, little desirous of making a speech 
 there which would satisfy his hearers, and in all human probability he said things then 
 that he was unwilling to corroborate under oath. He was making a speech to an excited 
 meeting, that would not listen to any vindication of the officers, and I apprehend that 
 he told stories then which he was not afterwards willing to corroborate under oath. I 
 ■will, therefore, pass i.ver his testimony. With respect to that of Mr. Van Buren, which 
 there can be no reason lo disbelieve — instead of there having been anything criminal on 
 the part of the pilot of the Henry Clay, in what he did, it would appear that he did 
 nothing more than what was right for a vessel under such circumstances to do, in order 
 to obviate what the Armenia was endeavotiring to accomplish, by dragging herself along 
 in the Henry Clay's suction; in trying to make the landing at Kingston before her. I 
 appeal to you in conclusion, whatever else may happen, whatever may be the strifes or 
 disputes, only keep sacred the altar of justice: let the sword be wielded only by the 
 Innds of a pure and honest jury, and then, when it strikes, the public voice will say Amen, 
 and, when it acquits, Amen. It reverberates through the halls of justice, and will 
 roach the utmost corners of our Union ; and thsit it may continue to be venerated, I call 
 upon you on this occasion, if you are not satisfied of the guilt of tliese men, to say so 
 promptly; there is a great deal in promptness: let not the public think that you have 
 doubted, beoaiuse of a long continuance in deliberiition. The facts are few, though so 
 much time has been spent in this voluminous evidence, when you come to winnow out 
 the wheat from the chrff, how much is there of the wheat left? How much out of the 
 whole mass of evidence is there that bears upon any of the questions, upon which you 
 are to satisfy yourselves, before you pass your verdict upon the case which is now before 
 you? — Has there been a culpable omission on the part of either of these defendants? 
 If there has, can we say clearly and distinct'y that that act which we have marked 
 down as culpable wss the cause of the destructiijn of this vessel, and, consequently, the 
 cause of the destruction of human life ? Gentlemen, ponder upon these things, if you 
 have doubt. If you have no doubt, let me ask you, in favour of these men, whom you 
 would be proud to honour, and whom the very kindness of your hearts would prompt 
 you to favour — say to them promptly, and in that pure energetic language, consisting 
 of these words : In our opinion you are not guilty of the charge brought against you. 
 
 Mr. Jordan, (counsel for Mr. CoUyer) then proceeded to address the jury on bebalf of 
 his client. If, said he, I had the power, gentlemen of the jury, of taking the vote of the 
 jury whether they would hear any more on the part of the defence, I should feel very 
 well satisfied, in my own mind, that any remarks which I am about to make would be 
 excluded : it appears to me that such is the nature of the case, and such the demonstra- 
 tions of innocence of all the parties concerned in this indictment, that it would be unne- 
 cessary to spend time in any further discussion. I did not expect, until recently, for 
 reasons personal to myself, and therefore not necessary to mention, to take part in this 
 discussion ; but feeling a little more like a man to-day than I have for the last three or 
 four days, I shall endeavom- to show you, beyond all doubt, that my client, Mr. Collyer, 
 the only person with whose defence I am particularly charged, is entirely beyond the 
 scope and pale of this indictment, and that to punish him, under the act of Congress, is 
 entirely out of the question; and if I undertake to submit my views upon the general 
 subject, which has been ably and eloquently discussed, they will be very general indeed, 
 M;, object is, more particularly, to perform a dissecting process upon some of the testi- 
 mony. I intend to show that all the witnesses who have sworn to facts relative to Collyer, 
 have so exhibited themselves before you as to entitle them to no credit or consideration ; 
 not that I intend to charge them with untruthfulness, but that they were so excited, that 
 they were unable to discriminate as to the facts which they swore to. . It is one of the 
 noblest efforts of the human mind, to endeavour to raise itself above prejudice and error, 
 and to arrive at truth; because truth is always the foundation of justice, and falsehood 
 and fiction always the basis of every error. Courts of justice are instituted for the purpose 
 of arriving at the truth ; they were framed for that purpose ; facts are frequently coloured 
 by men's feelings and prejudices, but when we come into a court of justice, where the 
 balance is held equal and even, and where the judge sits with that equipoise, which 
 is necessary to the calm investigation of truth, it is there alone that we can arrive at the 
 truth of the subject in controversy. It is that which distinguishes courts of justice from 
 mobs. It is that which distinguishes courts of justice from those indignation meetings 
 that we have heard of; not that I feel disposed to cast any blame upon those persons 
 who assembled at the Astor House for the purpose of passing resolutions upon this sub- 
 ject; because I know, under the impulse of their feelings, it was the only vent their 
 
STEAMBOAT NEGLIGENCE— THE HENRY CLAY. 501 
 
 humsm nature liad to let off, so that under the pressure and agony of their feelings 
 something might go forth to the community; and though it wr.s rather of a vindictiTe 
 character, and the circumstances under which they were assembled unfavourable to the 
 investigation of truth, yet it was a relief to them, which I have no disposition to find 
 fault with. I shall proceed, first, to consider whether Jlr. Collyer is implicated in the 
 indictment, admitting that all the rest are to blame; and secondly, I shall proceed to 
 make a few general observations, for the purpose of gleaning a few facts. I wi.l demon- 
 strate to you that Collyer is not implicated; and further, notwithstanding the efforts of 
 the able prosecutor, which will be continued up to the death, I will show that all these 
 defendants in this case are equally innocent with Mr. Collyer, who had nothing to do 
 with the matter, and is not implicated in this transaction at all; you will recollect that 
 this is an indictment under the statute of an act of Congress, but it is not an indictment 
 at common law, for no such indictment at common law would lie; it is therefore under the 
 act of Congress alone, that these parties can be indicted and punished, and they must 
 be brought within the terms of that act of Congress, one and all of them, in order to find 
 a verdict against them. That act of Congress being a penal statute, must be strictly 
 construed, and they must be strictly brought within it before they can be punisiied ac- 
 cording to the penalties inflicted by the twelfth seciion. I will once more refer to the 
 twelfth section of the act of Congress, not generally, but for a particular purpose which 
 I have now in view: "Every captain, engineer, pilot, or other person employed," (it is 
 the word "employed" which I wish to call your attention to) "and who shall, by any 
 misconduct, negligence, or inattention to his or their respective duties, destroy the life 
 of any person on board, shall be guilty of manslaughter." Now, the fir.-t question is, 
 was Mr._ Collyer employed on board this vessel? I beg to call your attention .strictly to 
 the section, and to impress. upon you that no man can be convicted unless he comes 
 within the meaning of the word "employ," and I shall ask his honour, which, I tliink, 
 will be his obvious duty, to charge the jury that to convict Mr. Collyer, or any other per- 
 son here, it must appear that he was employed on board the vessel at the time of the 
 happening of this accident. Mr. Collyer was one of the owners; but the Act of Congress 
 has nothing to do with owners of a vessel, and it has purposely omitted them. It nould 
 be unjust and improper to make the owners of a vessel responsible in a criminal prose- 
 cution, for the negligence, misconduct, or inattention of those engaged in the navigation 
 of the vessel. But if the owner goes on board and takes charge of the vessel, — if any 
 third person goes on board and takes charge, — if any man should substitute himself in 
 the place of the captain, and in case of illness, or from some other cause, assume the 
 command of the vessel, he would, I am willing to admit, be within the true interpreta- 
 tion of the act of Congress. The question then is, was Mr. Collyer in that situation ? Mr. 
 Collyer was a ship-builder in the city of New York, carrying on such business here, and he 
 constructed this boat as he had many others. lie was the owner of five-eighths of her, 
 and I shall show that he had performed his duty as owner by providing one of the best 
 vessels that was ever built in this port, or that ever ran upon ilie Hudson river, and so 
 far as he was concerned, together with his co-owners, he provided one of the best set of 
 men who were ever employed upon this river : all young, active, intelligent, vigilant 
 men. It has been satisfactorily proved that this vessel was fully equipped with boats 
 and buckets, and that the hull of the boat was one of the most substantial kind; and 
 one of the witnesses, a pilot, tells you that her running up on to the beach in the manner 
 she did, and remaining unbroken, was an evidence of the substantial qualities of the 
 frame of that vessel. The learned counsel then proceeded at great length to dissect the 
 evidence of Minturn, Gilson, Gourley, Connor, Hubbard, and Shelraore. He contended 
 that even supposing their testimony to be worthy of credence, Mr. Collyer did not lie 
 under the imputation sought to be sustained by the prosecution, of having in any man- 
 ner engaged in the control or management of the Henry Clay on the day of the calamity, 
 and that, therefore, the twelfth section of the act of Congress did not, in the slightest 
 degree, apply to his case; he commented with particu'ar severity on the contradictions 
 in Mr. Gilson's evidence. The facts which Gilson attributed to have taken place in 
 regard to Mr. Collyer, at the time of the collision, were all facts which took place with 
 reference to Mr. Ridder, and that this appeared plain and conc'.usive, there could be no 
 doubt, for when he (Mr. Jordan) pointed to Mr. Ridder, and asked Gilson if that gen- 
 tleman was Mr. Collyer, Gilson said it was he. From this fact alone, there could be 
 no doubt but that Gilson did not know what he was talking about; Gilson might be an 
 honest man, but he was a very unfortunate one. He, (Gilson) was a man who looked 
 across a gangway ten feet wide, and through a,n engine twenty feet wide, and saw forty 
 marked on the gauge-rod of the engine, which had no number at all upon it; Gilson 
 was determined to leave an impression upon the mind of the jury that the vessel was 
 carrying forty pounds of steam ; and the reason was, because the carrying of this forty 
 pounds of steam was a violation of duty, and beyond the amount allowed by the certifi- 
 cate. It was a maxim, that a lie would stick to a man as well as the truth, but that 
 
502 APPENDIX. 
 
 fortunately it did not prevail in a court of justice. This was the description of evidence, 
 in infinitesimal doses, by which the prosecution sought to prove that Mr. Collyer was 
 managing the boat on July 28th. But he, (Mr. Jordan) would as soon think of fattening 
 an ass on the east wind, as endeavour to fix Collyer as controlling the action of the boat 
 on the day of the accident, by such desultory and unsati.-fiictory testimony. At this 
 point of the learned counsel's speech, the court adjourned until ten o'clock the next day. 
 Mr. Jordan resumed his address to the jury this morning; the counsel for the defence 
 had been aware from the commencement that they would have little occasion to make 
 use of Mr. Bidder's testimony; that it was a plain, simple, continuous narrative of the 
 whole journey from Albany to the fatal spot, unembellished, unadorned, uncontradicted, 
 but in fact eoi-roborated by everj'thing in the case; all he said had, in fact, been proved 
 by other witnesses, so that they had little occasion to make use of his testimony. He, 
 (Mr. Jordan,) should use it but little, although his learned associate had thought proper 
 to abandon anything like a justification of the conduct and position of Mr. Bidder, and 
 t~> give him up a prey to the district attorney, to be pounced upon as a lamb is pounced 
 on by a vulture. He, (Mr. .lordm) would mw any a few words in his defence, not be- 
 cause his clients needed Mr. Kidder's evidence, but because he thought it unjust 
 that any person should be so treated, who, by process of law, had been compelled, whether 
 he willed or not, to come into court and give his evidence. He would show that the 
 assistant editor of the New York Daily Times had not contradicted Mr. Ridder in any 
 essential particular, but first he would exprCFS his regret that the counsel for the defence 
 had not pertinaciously objected to the questions put by the district attorney, and doubt- 
 less, the decision of his Honour would have been to rule against it. In answer to the 
 questions of Mr. Hall, Mr. Ridder said, "I cast no blame upon the oflS.cers; I said no- 
 thing about their firing up to a dangerous extent ; now let them see what it was that 
 the assistant editor of the Times swore it was Mr. Ridder did say." He expressed an 
 opinion as to the cause of the fire, attributing it to an unusual firing ; they made a hotter 
 fire than was usual or necessary; thus the jury would see that while the witness said, 
 "i cast no blame upon the officers, I said nothing about their firing up to a dangerous 
 extent," all the assistant editor maintained was that Mr. Ridder "expressed an opinion" 
 tjat there had been too much fire; he did not maintain that Mr. Ridder distinctly said 
 so and so. Mr. Bidder could no more state the causes of conflagration than any one else 
 could; no one could do more than surmise, whether it arose from a match being thrown 
 down there, or a cigar, or whether it was that some fiend in human shape had thrown 
 down camphine, which, running along the heated timber, would account for the flames 
 firing up so suddenly, no one could do more than surmise: or whether by the engineer 
 opening the doors of the furnace to damp the fire, instead of pulling the safety-valve; 
 whether these things were so, Jlr. Bidder and they all alike were in the dark, and could 
 only surmise. Besides, the assistant editor did not swear that Mr. Bidder said the firing 
 up, if he ever did speak of such a thing, had been done by the order or with the know- 
 ledge or consent of t'ne oSicers; where then, after all, were the mighty contradictions? 
 I\Ir. Hall ne.tt asked the witness, "Did you say anything about their continuing to race 
 after remonstrance?" his reply was, "I did not." Now mark the words of the assistant 
 editor, "He said that the officers were remonstrated with after racing."' Mr. Hall's ques- 
 tion, if it had been answered in the affirmative, would have been, " I said there Was 
 racing after they had been remonstrated with;" the assistant editor only s.iid, Mr. Bid- 
 der said they had been remonstrated with after racing. Neither he nor any one else 
 denied that there was racing at one particular point, but it had no connexion with the 
 catastrophe which caused the loss of life. The next question of Mr. Hall was, "Did 
 you not say there were no buckets there to extinguish the flames?" the reply was, " No, 
 sir, I did not say exactly that; I said he used all the buckets there were:" that answer 
 might certainly imply that there were buckets, and doubtless they were used until it was 
 seen that they were of no use ; and if they had ten thousand buckets there, they would 
 not have been of any use, f )r the steamboat went off almost like a charge of gun powder. 
 So much for Mr. Ridder, a mm who certainly had told a plain, con»is";ent, orderly nar- 
 rative of the transactions of th.-it lamentable day; so far a< he, (Mr. Jordan) could dis- 
 cover, without passion or prejudice in heart, he being, to a great extent, one of the suf- 
 ferers, although he had not lost his daughter: doubtless, however, he had not considered 
 it just that those men should, without cause, bo so universally condemned, particularly 
 when he saw the meeting so gravely passing a resolution, sending forth to the world a 
 statement that they had not been contented with the usual firing up on board, but had 
 burned t.-ir, and resin, and pitch, and other combustible material. It was for opposing 
 that resolution, too, that the engineer, who, having been down to the boilers after the 
 catastrophe, and seen the marks of the quenched anthracite coal, knew that there was 
 no other fuel used, was threatened to be thrown out of an upper story window ; he, (Mr. 
 Jordan) did not know who led that indignation meeting, but he had been informed that 
 it was a particularly precious individual for such occasions, though he would not mention 
 
STEAMBOAT NEGLIGENCE — THE HENRY CLAT. 503 
 
 his name ; and doubtless, if a resolution had heen proposed, which alleged that the ofS- 
 cers had got the devil from heU chained down below, vomiting up fire and brimstone for 
 the burning of the steamboat, it would have been passed, and if it had, it would have 
 been just as reasonable as the infernal one that the murderers, for such they would have 
 been, of the Henry Clay, had been firing it up with tar and resin, and God knows what. 
 He then proceeded to comment upon the evidence for the prosecution, saying, in the 
 course of his allusions to the different witnesses, that he did not like the cut of Mr. 
 Minturn's jib. That gentleman had attempted to impress upon the jury, that a passen- 
 ger was refused to be landed at Bristol, because of the boat being in such a hurry ; 
 whereas, on cross-examination, it turned out that he was nothing more than a drunken 
 loafer, who was making a disturbance on board, and had made no demand at all to be 
 landed until after the boat had passed the place. Dr. Wells he designated as a "do-no- 
 harm, do-no-good sort of a man;" and declared that he, (Mr. Jordan,) could from perso- 
 nal trial contradict his statement about the particles of anthracite coal as large as pea- 
 nuts. He had tried with a newspaper to brush away such pieces, and could easily re- 
 move them in that way; nay, he could do so with a cambric handkerchief; but he could 
 not remove flat pieces of coal, such as might be naturally expected to pass from any 
 smoke pipe, and which were doubtless the kind that were blown over the decks and the 
 awning of the Clay on the day in question. He held out to the jury as a guiding polar 
 star in this case, the consideration that they must positively find that the deaths in 
 question were occasioned by the act complained of, though it might not be necessary 
 that the act complained of should have been perpetrated just at the time of death; still 
 the last must be clearly traced to it ; as clearly as ever the effect was traced to the 
 cause. He maintained at some length, that this could not be done in the present case, 
 even according to the evidence for the prosecution. He concluded by expressing a hope 
 that the magnanimity of the district attorney's nature would, despite his employment 
 by the government, compel him not to do any injustice, even though he possessed the 
 power, to those men who would stand that day in peril, if it was not that they relied 
 upon the intelligence of the jury. Mr. M'Mahon, after the able and eloquent addresses 
 of his associates, declined addressing the jury. 
 
 Mr. J. Prescott Hall, for the United States, closed summing up, and said: — 
 May it please the Court, Gentlemen of the Jury : — This is now the fourteenth day 
 that you have lent your attention patiently to the investigation of the facts in this case. 
 I will not abuse that patience by any protracted examination of the testimony, but will 
 endeavour to state as briefly and clearly as I can, the law which is applicable to the case 
 which is now before the court and the jury, and the evidence which the prosecution has 
 adduced to support it. In endeavouring to discharge my duty, gentlemen, I shall make 
 no efibrt to go beyond the proper limits, although I shall, on this occasion, discharge it 
 without pain, because I, as a man, think that gross misconduct exhibited itself on the 
 part of the oflScers of the Henry Clay, on the fatal 28th of July, 1852. I will not en- 
 deavour, by any effort to strain the testimony, nor shall I be willing to fall one inch 
 short of it, for I conceive that by my duty to the government, as prosecuting ofiicer, I 
 am required without fear, and without favour, and without regard to the particular in- 
 dividuals who are charged, that I should discharge that duty, in the best manner I am 
 capable of. By the constitution of the United States, the commerce of the whole country 
 is placed under the control of Congress. The Supreme Court of the United States have, 
 on many occasions, decided that the word "commerce," as used in the constitution, in- 
 cluded navigation also, and that therefore the whole navigation of the United States, as 
 well as the whole commerce of the United States, are under the jurisdiction and super- 
 vision of the people's representatives in Congress assembled. At the time the constitu- 
 tion went into effect, and for many years thereafter, the mode of propulsion adopted on 
 the rivers of the United States, was such that the intervention of the powers of the law 
 was not called for to check any abuses, or to guard people in their rights ; but after the 
 discovery of that mighty and potent engine, which was thereafter to be used on all the 
 navigable waters of this country, and perhaps of the globe — after these potent energies 
 had been brought out, and applied to the propulsion of steam vessels, it was discovered 
 by experience that great want of care had been exhibited on so many occasions, that the 
 people of the United States were not safe, in the prosecution of their ordinary business 
 upon the water courses of the United States, unless they were in some degree protected 
 from the acts of those who were their transporting agents ; and, so serious had this whole 
 matter become, that Congress, in 1838 passed a law upon this subject, which is signifi- 
 cant in its very title. It is entitled "an act to provide for the better security of the 
 lives of passengers on board vessels pro'peUed in whole or in part by steam." It pro- 
 ceeds, then, to give a set of rules, which are to govern the conduct of those who are 
 charged with guarding the lives of passengers on board of the vessels which they control, 
 and which rules they have no right to disobey or disregard. And, in order that the ut- 
 most vigilance should be exerted, it is provided after the passing of this act, that no vessel 
 
504 APPENDIX. 
 
 shall tie permitted to navigate the waters of the United States, unless they take out a 
 license, under the conditions which are imposed by the statute — that in the first instance 
 the district judge should appoint competent persons to inspect the boilers, and all hulls 
 of the steam vessels ; that the hulls of the steam vessels shall be inspected once in twelve 
 months, and that the boilers shall be inspected once in six months, and to disregard this, 
 is visited with the severe penalty of the law. He then referred to that section of the 
 act, which made it the duty of the officers of vessels to let off steam at every landing 
 place, or whenever the headway of the vessel should be stopped, and in support of this 
 he cited Judge Betts, in the case of the Reindeer, to show that it was imperative, and 
 that the captain had no discretion. But Congress, not deeming the act stringent enough, 
 passed the following statute : — Section 12, and be it further enacted, that eveiy captain, 
 engineer, pilot, or other person, employed on board any steamboat or vessel, propelled 
 in whole or in part by steam, by whose misconduct, negligence, or inattention to his, or 
 their respective duties, the life or lives of any person, or persons, on board said vessel 
 may be destroyed, shall be deemed guilty of manslaughter; and, upon conviction thereof, 
 before any circuit court in the United States, shall be sentenced to confinement at hard 
 labour, for a period not more than ten years. — If this statute is to be applied to the poor 
 fireman or deck hand, much more is it to be applied, to masters and owners on board the 
 vessel, who take part in the navigation, and to the pilot in the wheel-house, and the en- 
 gineer in the engine room. — Upon these persons rests the responsibility, and respectable 
 as they are, intelligent as they are, there is less excuse for their neglect of any duties 
 which the law casts upon them, to have been the cause of this terrible calamity. What, 
 because Mr. CoUyer's ship yard is to be shut up, is he to be held irresponsible for such 
 acts ? The whole theory of this case rests upon the charge of mismanagement and neg- 
 ligence. I will state the theory that has been adopted by the prosecution in this matter. 
 We suppose that this terrible accident occurred in consequence of the misconduct of 
 those having charge of this vessel on the 28th of July. It is in evidence here, that the 
 steamboat Reindeer, which used to be the Race-horse, upon the North river, with the 
 Henry Clay, had become disabled, and it was necessary to have some boat to take her place. 
 The Armenia, a boat of about equal speed with the Henry Clay, was selected for that 
 purpose. She was to sail on the 27th of July, bound from New York to Albany ; but 
 with a very cunning regard to their own interests, the owners of the Henry Clay had 
 made a secret contract with those who were to navigate the Armenia, that the Armenia, 
 was to lie behind the Henry Clay, and that the Henry Clay was to be permitted to go to 
 all the docks ahead of the Armenia, take in the passengers that first offered themselves, 
 carry them to Albany, and deliver them there, and that on the return down, the same 
 course of conduct should be pursued. It is in evidence that this arrangement became dis- 
 pleasing to the charterers of the vessel. They therefore took Captain Smith from his com- 
 mand, and gave the vessel in charge of Captain Polhemus, and placed another individual 
 on board to direct him in her management. After the vessel had departed from Albany, 
 it was supposed on the part of the officers of the Henry Clay, that this same arrangement 
 was to be persisted in, and there was no reason to suppose that this arrangement would 
 not be kept up until after the Henry Clay came to Hudson. When she came to Hudson, it 
 was then discovered that the Armenia, in apparent violation of the arrangement which 
 had been made between these vessels, instead of following the Henry Clay to Hudson, 
 had gone down the west passage, avoiding the landing at Hudson, and made directly for 
 Catskill. The instant the Henry Clay discovered this, it became the subject of conver- 
 sation between the passengers, and it was so admitted that when Mr. CoUyer was asked 
 whether the Armenia would pass the Henry Clay, the answer given by Collyer was, that 
 he thought she would not. The learned counsel here entered upon a critical examina- 
 tion of the testimony introduced, and contended that the prosecution had clearly proved 
 that the vessels were engaged in a fearful contest of speed, the results of which were the 
 destruction of the Henry Clay, and the fearful loss of life: such being the case, he called 
 upon the jury to pronounce a verdict of guilty against the defendants — particularly Coll- 
 yer and Tallman, who were in a position of life which should have prevented them from 
 doing that which they knew was contrary to law. The question which the jury had to 
 determine was one of the greatest importance to the community, who were looking with 
 intense anxiety to the result of the present trial. Mr. Hall wished to ask whether there 
 was any validity in an act of Congress, or whether it was null and void. If the former 
 proposition was correct, the defendants must be convicted — if the latter held good, they 
 would be acquitted. 
 
 His Honour, Charles A. IngersoU, charged as follows : — 
 
 Gentlemen of the Jui-y: There is a prospect that we shall now bring this protracted 
 trial soon to a close. It has occupied a very considerable portion of your attention ; but 
 not in my judgment more than was due to the transaction which had to be investigated. I 
 am glad to be able to say, gentlemen, that you have thus far exhibited that patience, 
 and given that attention which the case requires. It has been intimated, during the 
 
STEAMBOAT NEGLIGENCE — THE HENRY CLAY. 505 
 
 progress of the trial, that injustice had been done to these individuals under trial from 
 the fact that they were not enabled to have separate trials, fur the reason that if they had 
 had separate trials, the testimony cf those not on trial, might have been used in defence of 
 the others wlio should be tried. In the examination of this question, when the motion 
 was made for separate trials, I gave my reason why separate trials should not be granted, 
 and I will again state in this place, gentlemen, that as they have been indicted by the 
 grand jury jointly, if they had been permitted to have had separate trials, the one who 
 should have. been tried first could not have called upon the others to testify in his de- 
 fence. That is the law, it has been so decided, upon solemn argument by the Supreme 
 Court of the United States, and to that decision we must all bow. I therefore say, gen- 
 tlemen, that if they had been permitted to have separate trials, the one who should have 
 been first tried would not in law be permitted to call upon the others to testify in his 
 defence. In the year 1838, the Congress of the United States, in view of the many start- 
 ling disasters which had happened upon the waters of the United States, to vessels pro- 
 pelled by steam, by which great loss of life had been occasioned, passed a law, the object 
 of which was, as appears by its title, to protect the lives of passengers on board vessels 
 of that description. That law, among other things, provides ; — That every captain, en- 
 gineer, pilot, or other person employed on board of any steamboat or vessel, propelled in 
 whole, or in part by steam, by whose misconduct, negligence, or inattention to his, or 
 their respective duties, the life or lives of any person, or persons on board said vessel, 
 may be destroyed, shall be deemed guilty of manslaughter, and, upon conviction thereof, 
 before any circuit court in the United States, shall be sentenced to confinement at hard 
 labour, for a period not more than ten years. The indictment which you have to pass upon 
 is founded upon this violation of this act of Congress. It charges that Thomas Cullyer, 
 Jolin P. Tallman, John Germain, Edward Hubbard, James L. Jessup, and James Elmen- 
 dorf, the parties now on trial, in July, 1852, were employed on board the Henry Clay, a 
 vessel propelled by steam, and navigating the waters of the southern district of Sew 
 York ; and that while they were thus employed, the lives of several passengers on board 
 the vessel were destroyed by their misconduct, negligence and inattention to their re- 
 spective duties. To the charges set forth in the indictment, the individuals named therein 
 and against whom the charges were made, have severally pleaded, that they were not 
 guilty. The question, then, at issue, and upon which you, upon your oaths, have to deter- 
 mine, is, whether they are guilty, as charged in the indictment ; and to enable you to come 
 to a correct result, it is necessary that your attention should be directed to certain inqui- 
 ries which are involved in the question at issue. These inquiries are ; First, whether the 
 lives of the persons named in the indictment, or the lives of any of them, have been de- 
 stroyed ? secondly, whether they have been destroyed by the misconduct, negligence, or 
 inattention of any one? Thirdly, whether the individuals against whom the charges ia 
 the indictment are made, were employed on board the Henry Clay, at the time such lives 
 were destroyed ; and fourthly, if they were thus employed, whether such lives were de- 
 stroyed by his, or their misconduct, negligence, or inattention to his, or their respective 
 duties ? And in considering the case now to be submitted to you for your determination, 
 it is important, that you may come to a just conclusion, to bear constantly in mind certain 
 rules of law, which should govern trials in all cases involving in their consequences a pu- 
 nishment that is infamous — which should govern them in all criminal investigations, and 
 particularly in those investigations which are of an aggravated character. These rules 
 are, that every one accused of crime, whether the offence charged be one of commission 
 or omission — whether it be criminal or culpable neglect, shall be presumed to be innocent 
 until the contrary appears. He should be considered as innocent until his guilt is made 
 appear manifest, by evidence given in court, and when, upon evidence given in court, there 
 is in the minds of the jury a reasonable doubt of the guilt of the accused, no matter what 
 the charges may be, he who is accused should have the benefit of that doubt. By the law 
 which governs this court, and which also governs all well regulated courts, he who is in an 
 indictment charged with crime, is not called upon to establish his innocence. That duty is 
 not imposed upon him. His innocence is considered to be established, until by convincing 
 proof brought forward in court that presumed innocence is destroyed. It is the duty of 
 the government to convince the jury, beyond a reasonable doubt, of the guilt of him who 
 may be indicted, and not the duty of the accused to convince them of his innocence ; and if 
 the jury are not convinced beyond a reasonable doubt of the guilt, then it is the duty of the 
 jury to acquit. The disaster which gives rise to this prosecution, at the time at which 
 it occurred, deeply excited the feelings of the community ; and the public mind, for a 
 considerable period — was in such a state, that if the trial of those implicated — or, I 
 should rather say, of those supposed to be implicated, had taken place soon after it hap- 
 pened, there would have been some danger, and, I may add, there would have been great 
 danger, that that calm and dispassionate investigation might not have been given to the 
 investigation of the truth, which is due to all subjects of iuquiry in a judicial tribunal, 
 and particularly to a subject demanding so much impartial uivestigation as the one now 
 
506 APPENDIX. 
 
 to be submitted to your determination. But that excitement has now passed away, and 
 you as impartial jurors sworn to a faithful discharge of your duty, have been selected to 
 pass between the government and the accused, and I have no doubt that the duty which 
 devolves upon you will be faithfully performed. I have told you what duty devolved 
 upon the government, before they could claim a conviction. It is also incumbent upon 
 me to state what is not required of them, and what is no part of their duty in conducting 
 the prosecution. It is not required of them to prove wilful orintentional mismanagement 
 or misconduct on the part of the accused. In a prosecution of this kind, it is not the 
 intent which constitutes the essence of the offence, but it is an improper act, although 
 unaco'jmpanied with any evil intent or negligence, in the perfr)rmance of a proper act, 
 or inattention to any duty imposed upon any captain, engineer, pilot, or other person 
 erapkiyed on board any steamboat or vessel, propelled in whole or in part by steam, 
 when by such improper act, or negligence iu the performance of a proper act, or inat- 
 tention to any duty imposed upon such captain, engineer, pilot, or other person, the life 
 of any person on board such vessel is destroyed, but there must be some improper act 
 inconsistent with the faithful performance of duty, or negligence iu the performance 
 of a proper act or inattention to some duty imposed upon such person, and the death 
 of some person on board a vessel in consequence thereof, before there can be a conviction, 
 there must be not only such improper-act, or negligence, or inattention, but there must 
 also be a death of some person on board, as a consequence of such improper act, negli- 
 gence or inattention, and if these are proved it is unnecessary to inquire whether or not 
 the accused had any wrong intention ; but although such improper acts and negligence, 
 inattention and death are proved, yet if such death was not in consequence of such im- 
 proper acts, or negligence, or inattention, there can be no conviction. To make myself 
 understood, gentlemen, the law of Congress makes it necessary, or rather makes it the 
 duty of every captain, at every landing place to blow off steam. If he does not blow 
 off steim, that is misconduct, or negligence, or inattention to his duty; but if, subse- 
 quently to that time, a death occurs on board of a boat, and it is not attributable to that 
 cause, although there may have been misconduct, negligence or inattention, there can 
 be no conviction,, for the death is not connected with the act complained of, and which 
 is said to be misconduct or negligence'; and if there were death, and such a death were 
 in consequence of some misconduct, negligence or inattention by some one employed on 
 the vessel; if these defendants are not chargeable with such misconduct, negligence or 
 inattention, and if there is not proved to your satisfaction, that they have been guilty in 
 this respect, there can be no conviction, in other words, if there has been a death, and 
 such death has been occasioned by the misconduct or negligence of some other person, 
 other than those; if those persons have not been guilty of negligence, or such misconduct 
 or negligence as caused that death, or contributed to it, then they cannot be convicted. 
 Those 'who conduct this prosecution do not claim that these defendants, or either of 
 them, intended the death of any one on board the vessel. There is no necessity that 
 they should. They are not accused of any wilful design to take the life of any one. The 
 indictment is not pressed upon that ground, but, as I have before intimated, it is pressed 
 on the ground that the lives which have been lost, were lost by the misconduct, negli- 
 gence or inattention of the defendants. In an action in favour of any passenger on board 
 the Henry Clay, at the time of the disaster, against the owners or captain of the boat, 
 for any injury to his person, or to his property, the mere fact of such injury, caused by 
 the burning of the boat, would be sufficient, if there was nothing else in the case, for the 
 jury to fay, and they would be bound to say, that the boat was destroyed by negligence, so 
 as to make the party defendant liable for the damage claimed in consequence of such burn- 
 ing. In such a case, from the fact of burning, negligence and misconduct are presumed, 
 and the defendants would be liable for the negligence, unless they proved affirmatively, 
 that the fire was not caused by negligence or misconduct; for from this fact, the law takes 
 it for granted that the defendants are guilty ; and to prevent a verdict against them, they 
 must prove their innocence. This, gentlemen, is the rule in a civil case, where a party 
 brings a suit for the recovery of damages ; but this is not the rule in a criminal case, such 
 as you are now about to determine. In a criminal case there is no such presumption against 
 the defendants which they must remove, but all the legal presumptions are in their favour 
 until the contrary is proved ; and the death claimed to be in consequence of any miscon- 
 duct or negligence, must be proved to be, before a conviction be had, the direct conse- 
 quence of the mismanagement and negligence complained of, and if it is not the direct 
 consequence of the misconduct or negligence complained of, a conviction cannot be had. 
 As in the case cited by the counsel from the books, where an individual placed a loaded 
 gun in the corner of the room, and another person not knowing that it was loaded, takes 
 it up and innocently snaps it, by which it is discharged, and causes the death of some 
 one, there would be a death, and there would be negligence on the part of him who 
 placed the loaded gun in the corner of the room. If there had not been that negligence, 
 there would not have been a loss of Ufe, but that negligence would not be the immediate 
 
STEAMBOAT NEGLIGENCE — THE HENRY CLAY. 507 
 
 cause of the death. The negligence did not directly produce the death. It could not 
 produce it without the act of some other person, and as the death was not intended by 
 the person who was guilty of the negligence in so placing the loaded gun, and as the 
 death was not the immediate consequence of such negligence, and would not have taken 
 place, but for the net of another person, the party guilty of such negligence would not 
 1)0 responsible for that death ; but if the negligence or improper act complained of, be 
 the sole cause of the death — if it causes or produces the burning of the vessel, and such 
 burning of the vessel cause the loss of life, then such loss of life is the direct consequence 
 of such negligence or improper conduct, and the party guilty of the same is liable to 
 the punishment imposed by the act of Congress, upon which this prosecution is founded. 
 An error of judgment merely, gentlemen, is however not suflicient to fix such misconduct 
 or negligence upon the person against whom such error of judgment is proved. The 
 law of Congress did not intend to punish a mere error in judgment. "What was meant 
 by misconduct, negligence and inattention, in the law of Congress upon which this pro- 
 secution is founded, is well expressed by the learned judge, in his charge to the jury, in 
 tlie case of the United States v. Farnham. I, in substance, use his language. By mis- 
 conduct, he says, "negligence, or inattention in the m.inagement of steamboats, is un- 
 doubtedly meant the omission or commission of any act which may naturally load to the 
 consequences made criminal ; and it is no matter what may be the degree of misconduct, 
 whether it is slight or serious, if the proof s.^tisfy you that the setting fire to the boat was 
 the necessary or most probable cause of it." — Bearing these rules of law in mind, you 
 will turn your attention to the issue of the question which must be determined by you, 
 in order that a correct decision maybe had of the issue which has been framed, between 
 the government and the parties now on trial. The first question is, were the lives of any 
 persons on board the Henry Clay, destroyed by the disaster which happened to her on 
 a trip from Albany to New York, in 1852 ? It is admitted, and the proof is full, that 
 there were a number of those who were passengers on board the boat, perished in con- 
 sequence of the sad catastrophe, the details of which have been repeated during the 
 progress of the trial — some were destroyed by the fire, and some, attempting to escape 
 from this devouring element, perished in the water. The next question is, were these 
 defendants persons employed on board the boat, having duties to perform connected 
 with her management and navigation ? For whatever negligence or mismanagement there 
 may have been, and however much the death of the persons destroyed maybe connected 
 with any negligence or misconduct, which may be claimed to be chargeable to the de- 
 fendants, or to any one else, these defendants are not responsible for such misconduct or 
 negligence, unless they were persons employed on board the boat, having duties to per- 
 form connected with the management and navigation of the boat. It is admitted that 
 John F. Tallman was the captain of the boat. The captain h.TS generally the command 
 of the boat. All on board performing duties are under the authority of the captain, who- 
 ever he may be, and they are subject to his orders. It is admitted that James L. Jessup 
 was the captain's clerk, and among his duty or duties, was the collecting of fare and giving 
 tickets, and of acting as the assistant of the captain, under him. John Germain was 
 the engineer of the boat. His duty was confined to attending to the engine, regulating 
 and directing it, and having control of the fireman. Edward Hubbard was the pilot of 
 the boat, and his duty was to direct the course of the boat. James Elmendorf was the 
 assistant pilot, and his duty was to assist the pilot, to act under him, and in his absence 
 to tike his place. But it is claimed that Mr. CoUyer, a part owner of the boat, and on 
 board of her at the time of the disaster, was not a person on board of her having duties 
 to perform, connected with her management and navigation, and if he was not, he cannot, 
 under any circumstances, be liable to this prosecution. It is claimed on the part of the 
 government, 'that he was such person, who at the time of the disaster was on board 
 having such duties to perform, and that he was, for the time being, the captain of the 
 boat. It is unnecessary, by the law upon which this prosecution is founded, to make a 
 penion come within its meaning, that he should be employed under pay to perform any 
 particular duty ; but if any person acts as captain for the voyage, or for any particular 
 time is engaged or act as captain, or for any cause takes the place of the captain, and 
 for the time being acts as such, he is, within the meaning of the law, the captain of the 
 boat, upon whnm is imposed the duties of captain. The question then is, did Mr. CoUyer, 
 on the trip from Albany, on the 28th July, 1852, act for the time being as captain of 
 the boat? Did he take the place of the regular captain? If he did, he was employed 
 within the meaning of the law as captain on board the boat. Proof that certain things 
 were done upon his advice, or upon his suggestion merely, would not be sufficient to es- 
 tablish the fact that he was for the time being acting as captain. Nor is it sufficient that 
 he should have passed an opinion, whether asked or unasked, as to the safety or risk of 
 a particular movement of the boat, or of the danger of the mode by which the boat was 
 managed. He must, at least, assume to exercise the control and the authority of the 
 captain to take the command, and no opinion which he may pass, or suggestion that he 
 
508 APPENBIX. . 
 
 may make, unless he has a duty to perform on board the boat, will make him an officer, 
 or a person on board of the boat having duties to perform -within the meaning of this act 
 of Congress. The government say that they have proved, upon the trip in question, 
 that Collyer was captain of the boat, and they rely upon certain witnesses whom they 
 have called. The principal witnesses are Minturn, Gilson, Gourley, Connor, Hubbard, 
 and awitness from Philadelphia, whose name I do not remember. Most of these witnesses 
 do not speak of any order which Collyer gave. Mr. Minturn speaks of an opinion which 
 he (Collyer) gave as to the danger of the boat; and others speak of suggestions which he 
 may have made as to the bell, and others speak of his being on board the boat, displaying 
 great activity. This, gentlemen, will not amount to much, to prove that he was captain ; 
 and according to my reoollectiou there was only one witness, and that was, I think, the 
 witness from Philadelphia — I may be mistaken, and if I am bear it in mind, (addressing 
 the counsel) who says (turning to the jury) that Mr. Collyer on that occasion, admitted 
 himself to be captain, and it is claimed on the part of the defence, that this individual 
 is not to be credited; but if without particularly pointing out the testimony which is re- 
 lied on upon the one side or the other, you should be of opinion that he was, for the time 
 being, captain of the boat, having control of the same, and having command of the same, 
 he would, if the boat was destroyed by negligence, and those lives were lost, be responsible 
 under this act of Congress. — The next question, and the great question in this case is, was 
 there misconduct, or negligence, or inattention to duty, on the part of those who had the 
 management of the boat? Were the officers justly chargeable with misconduct, negligence 
 or inattention to their duties as such officers, by which the disaster took place, and in 
 consequence of which, the numerous lives were lost, which were destroyed on that occa- 
 sion? To justify a conviction, a neglect of the duty imposed upon the defendants, and 
 which it is incumbent upon them to perform, or some misconduct in the performance of 
 that duty, must be proved, by which, as a consequence, this disaster took place. It must 
 be proved that they have done that which they ought not to have done, or done impro- 
 perly, and in a negligent manner, that which they ought to have done in a proper and 
 careful manner, or that they neglected to do that which they ought to have done, by 
 which the disaster occurred, and which disaster would not have occurred had it not been 
 for such misconduct, or negligence of duty. And if the fire occurred by the neglect of 
 a particular person on board the boat, in the performance of his particular duties, and 
 not by the neglect of duty or misconduct of others, he only by whose misconduct or neg- 
 lect of duty the disaster occurred is responsible for the consequences. The government 
 claim that there was negligence of duty, and misconduct upon the part of each of the defen- 
 dants, by which the disaster took place, and, as a consequence, the loss of life that took place. 
 They claim this misconduct and negligence in two particulars. First, in so conducting, 
 and in so neglecting to conduct before the fire, that the fire on board the Henry Clay took 
 place as a consequence thereof. They claim, in the second place, that there was negligence 
 and misconduct in these defendants, in their so conducting after the fire took place, in 
 running the boat on shore, and in neglecting to attend to the safety of the passengers after 
 the boat was turned to the shore, and after she had already reached the shore, and also by 
 the order that was given to go aft, and that by such latter misconduct and negligence, 
 the loss of life took place. By the testimony of Mr. Belknap, a most intelligent witness 
 — as intelligent as any witness that I have ever seen upon the stand in a court — it ap- 
 pears that the Henry Clay was one of the best boats recently built in the city of New 
 York. By his testimony, it appears that her hull was built in the most substantial man- 
 ner; that she was so constructed that there was as little danger from fire, as there would 
 beon any boat navigating the North river; that she had one of the best engines and 
 boilers ; and, as admitted by the government counsel, she was officered by men whose 
 character and whose skill stood fair in the community, and deservedly high. She had 
 a skilful and prudent captain, it is admitted; she had a skilful and competent engineer; 
 an experienced and competent pilot, and assistant pilot. She was well officered and 
 manned, as it appears, by four firemen, nnd there is no claim, but that that number 
 was her full complement. On her trip from Albany she took fire, as has been stated, 
 near a place thirteen or fourteen miles from tlie city of New York, and the question, 
 gentlemen, is whether that fire was caused by the negligence of those individuals now 
 on trial, or the negligence of any of them. If it was caused by the negligence of one, 
 and him only, he alone is responsible. If it was caused by the negligence of the whole 
 of them, they all are responsible. If it was caused in a manner that is not accounted 
 for, unless it is proved to your satisfaction that it was caused by the misconduct or neg- 
 ligence of these defendants, then it would become your duty to acquit. What is the 
 theory on the part of the government ? The theory is, that from Hudson, on that day the 
 vessel was put under an excessive rate of speed. In other words that she was engaged 
 in a race vrith the Armenia, and to produce that excessive rate of speed, an excessive 
 quantity of fuel was applied to the furnaces, nnd that in consequence of that excessive 
 quantity of fuel thus applied, and the manner that it was applied, by the negligence of 
 
STEAIIBOAT NEGLIGENCE. — THE HENRY CLAY. 509 
 
 these defendants, — as a consequence of that, this boat took fire. Now, gentlemen, when 
 they arrived at Kingston, it is evident that there was a great alarm on hoard this boat 
 in con.sequence of that collision ; but om you trace that collision as a cause fdr the burn- 
 ing of the boat eighty-three miles below ? If you cannot say that anything that took 
 place was the cause of the burning of the boat eighty-three miles below, then, although 
 you should be of the opinion that there was misconduct or negligence, these defendants 
 would not be responsible, unless you can say that the burning of the boat was in con- 
 sequence thereof. But the goTernment go further, and if their theory is right, then it 
 would undoubtedly follow, that the burning was attributable to the causes assigned by 
 them. The government claims, gentlemen, that at Hudson the racing commenced — that 
 this intense fire was then applied ; that it was kept up down to Kingston, and that after 
 the boat left Kingston, it was continued, in order to keep up the race; and that it was 
 so continued up to the time it was discovered that the boat was on fire, and then it had 
 arrived at such a heat that the fire was communicated from the furnaces in some way, 
 to the boat, — by the misconduct or negligence of these men. They claim that there was 
 a race. If there was no race, then the theory of the government fails ; and the question 
 for you to determine is, was there a race at the time that the fire was discovered, or 
 for any considerable porion of the time previous thereto ; if there was a race six or 
 eight hours before, and if you cannot connect the fire with that race six or eight hours 
 before, then you cannot say that these defendants are guilty under this act of Congress. 
 It is not claimed, on the part of the government, that there was any combination before- 
 hand to have this race. Indeed it is affirmed that the understanding between the boats 
 was at the time they went up, that the Clay should take the lead, and that the Armenia 
 should follow, and that no one had any idea of race. If this is the true theoi-y, I do not 
 see what reliance can be placed upon the testimony of one witness examined here — i 
 mean the fireman who left the boat. He purposes showing that it was intended to be a 
 race in coming from Albany to New York, and he testified that Captain Tallman, as he 
 went up from New York to Albany, said when the Armenia came out of the dock, that 
 "he would beat her going up and coming down." There must be some mistake on this 
 subject. If there was an understanding that there should be no race in going up at that 
 time, and no race in coming down; and if the theory of the government is, that the race 
 selected is from Hudson, whiit that witness said as to the fear he had in going up, and 
 as to what he said to Mr. Tallman when the boat was leaving the dock at Albany, would 
 have little weight, because from the theory of the government, at that time the race was 
 not contemplated. 
 
 Was this race continued and the fire kept up, so that it was in an improper manner com- 
 municated to the boat ? We are not able to ascertain exactly how much steam was carried 
 on this occasion down to New York. One witness said he thought he saw forty pounds 
 marked up; one said it was seventeen or twenty pounds, and to my mind it was not 
 very satisfactorily accounted for what it was. If Mr. Belknap, the builder of this boiler, 
 is correct in his statement that the vessel could not carry more than thirty-one pounds 
 of steam, without the steam blowing ofi'; then it follows she could not have had more 
 than that, unless the government make out that the safety-valve was tied down, so that 
 the steam would not blow off. "What is the proof upon the subject that the Clay carried 
 an excess of steam ? The fact is well established, as I understand it, that her ordinary 
 time of arrival was at three o'clock or soon after; this accident happened thirteen, four- 
 teen, or fifteen miles above there, a little after three o'clock ; then, if three o'clock was 
 the ordinary time of her arrival in New York, at her ordinary speed, there could not 
 have been very extraordinary speed in driving her down as far as Yonker'sat the time 
 she ordinarily arrived in New York. What is the evidence upon the subject of this 
 neo'ligence? for there may be negligence even without an extraordinary rate of speed. 
 Th'e fire was discovered in a certain part of the boat that has been pointed out. She had 
 a short time before been inspected. In June previous, the hull inspector declared her 
 to be complete, so far as the hull was concerned, a complete and safe boat for the navi- 
 gation of the Hudson. The inspector also declared her boilers complete and sufficient for 
 the thirty pounds of steam which Mr. Curtis says he allowed her to take. She was then 
 declared by these men as a competent boat. How did this fire originate? You have 
 only the testimony of one of the firemen,, but the other is all surmise. He tells you how 
 it was. You may believe other witnesses rather than the fireman, but you have got to 
 establish the fact that it was in consequence of the misconduct of these defendants, be- 
 fore you can convict them. It was discovered at a particular point; efforts were made 
 to put it out, but these efforts were unavailing, and the result was such as has been tes- 
 tified to I will not occupy more time on the subject whether the negUgence was proved 
 or not- it is emT)hatically a question for your determination. If there was no negU- 
 gence or misconduct, then of course these defendants cannot be guilty of misconduct or 
 negligence. If there was negligence or misconduct by others, and in consequence of that 
 the fire was communicated to the boat, these defendants would not be responsible for that 
 
510 APPENDIX. 
 
 negligence. For instance, to make myself understood, here is a pilot whose duty is to 
 direct the course of the boat; he is a faithful man; he is intrusted with the boat to 
 direct her in her course, but for some reason or other he wilftilly drives her upon a 
 rook and lives are lost; that would be misconduct in him, but it would not be misconduct 
 in the captsin, for the captain has done all that a prudent man could do to employ a 
 competent pilot with a good reputation. So it is in case of a fireman ; if a captain has 
 employed competent and faithful firemen, and if they, by their negligence caused a fire, 
 then, in my judgment, the other ofiicers would not be responsible for it, because the cap- 
 tain has done everything a prudent man can do ; he has appointed faithful and reliable 
 men, and if those men abu.-e their trust without any fault on his part, the captain, in 
 my judgment, would not be liable under this law ; he and every one is responsible for 
 his own negligence. But in the case I put of a pilot, who was employed as a faithful 
 man ; if he abuses the trust confined in him, the captain would not be liable for that 
 abuse, but the pilot himself alone. Was there any further negligence in running this 
 boat a- hore and in so conducting matters after the boat had struck the shore that the 
 lives of these passengers were lost? The proof is abundant that this boat was run 
 ashore in the best posbible manner. All the witnesses agree upon that subject. All 
 the nautical men, — landsmen would not understand it as well, — all the nautical men 
 brought on the part of the government, say that the vessel was run on the shore in 
 the best possible manner. Were these defendants then guilty of negligence or mis- 
 conduct after the Clay got on shore ? There was an order given to go aft, and it 
 has been explained to you by the defendants why such was a reasonable order. She 
 struck the shore, and it seems that those who had presence of mind about them, who 
 were aft at the time she struck the shore, escaped; and I was never more struck in my 
 life with the necessity of presence of mind, than I was when some of these witnesses 
 were testifying, particularly Dr. Wells, who says he was aft in obedience to the order, 
 and that he remained aft until she struck the shore, and the females whom he had under 
 his charge had passed forward and escaped to the bow, and he then passed on. Mr. De 
 Peyster did the same, and probably others. But others were panic-stricken, and most 
 people are so on an occasion when they are every moment in danger of perishing either 
 by the water or flames. Then, gentlemen, it appears that these defendants, when the 
 vessel struck the shore, were in the water endeavouring to save lives. Were these officers 
 guilty of any misconduct or negligence in not saving more lives? Upon this subject I 
 will say, as 1 said in opening my charge, that an error of judgment merely would not 
 make them culpable. The evidence is abundant that they exerted themselves to save 
 those who were in the water. What men generally would have done, under such cir- 
 cumstances, we do not know. Whether they directed their attention to save this class, 
 or that class, we are not certain. If you think that in what they did there existed an 
 error of judgment, then, gentlemen, you cannot convict them. If, however, they were 
 guilty of misconduct or negligence, or inattention to their duties, such as I have described 
 it to you to be, then, gentlemen, you will be authorized to convict. 
 
 With these remarks you will take the case under your consideration, and return such 
 verdict as you, in your proper judgment, may think proper. 
 
 One thing I have omitted to notice : It is admitted, on the part of the prosecution, 
 that these defendants were perfectly skilful in their several professions, and their 
 private character was good. This circumstance, although it will not overcome evidence 
 when it is positive, yet, in balancing the case, it will go a great way to turn the balance 
 in favour of the accused. The case rests with you, gentlemen. 
 
 The learned judge concluded his charge at ten minutes past three o'clock, after which 
 the jury retired to consult. 
 
 At twenty-eight minutes to four the jury returned, when their names were called 
 over by the clerk of the court. 
 
 Tlie Clerk. Have you agreed upon your verdict, gentlemen? 
 
 The Foreman. Yes. 
 
 The Clerk. How do you find? 
 
 The Foreman. Not Guilty. 
 
INDEX. 
 
 Abortion, homicide in commission of, 44. 
 
 see "Infanticide." 
 Accessaries in homicide. See " Principals." 
 Addition. See " Indictment." 
 
 Adultery of wife, how far a provocation. See " Provocation." 
 Affrays, homicide in connexion with. See " Officers of Justice," "Riotous Homicide." 
 Apothecaries, negligence of, causing death. See " Negligent Homicide." 
 Apprentice, neglect of, causing death. See "Negligent Homicide." 
 Arrest, homicide in connexion with. See " Officers of Justice." 
 Arrests, killing of. See " Officers of Justice," '■ Fugitives." 
 Assault and battery, whether defendant may be convicted of, under indictment 
 
 for murder, quare? 284. 
 Assaults, how far a provocation. See " Provocation." 
 
 when sufficient to justify homicide. See "Excusable and Justifiable 
 Homicide." 
 Attack, how far a provocation. See " Provocation." 
 Athletic sports, death in consequence of. See "Negligent Homicide." 
 
 Bailiffs, homicide of and by. See " Officers of Justice." 
 Bastards, killing of. See "Infanticide." 
 
 how to be described. See "Indictment." 
 Blood, on clothes, &c., presumptions to be drawn from, 330-1. 
 Blows, how far a provocation. See "Provocation." 
 Boxing matches. See "Negligent Homicide." 
 Breach of the peace, homicide in connexion with. See " Officers of Justice," 
 
 " Riotous Homicide." 
 Breaking open doors, when allowable, by officers of Justice. See " Officers of 
 Justice." 
 
 Carelessness causing death. See "Negligent Homicide." 
 Character of the defendant. 
 
 Defendant's character can only be drawn in issue by himself, 244. 
 
 Restricted to qualities involved in the prosecution, 244. 
 
 It was for some time doubtful whether the introduction of good character 
 was a right, 244. 
 
 It may now be considered as settled that the defendant is entitled, in all 
 cases, to introduce evidence of good character, so far as relates to the 
 subject-matter of the prosecution, 245. 
 
 Defendant restricted to general evidence, it being reserved for the prosecu- 
 tion to put in evidence particular acts, should the defendant open the way 
 by putting general character in evidence; (though see on this point Wh. 
 Cr. Law, 3d ed. 294,) 245. 
 
 While the general rule is universally acquiesced in, that the prosecution 
 cannot put in issue defendant's character, the same result has been ap- 
 proximated undercover of proof of the quo animo, 246. 
 
 Obnoxious as such evidence is, in one respect, to the common law principle 
 the exception has been too long recognised to be now excluded, 247. 
 
 Thus, on an indictment for murder, former attempts of the defendant to 
 assassinate, are admis.sible in evidence, 247. 
 
 So a single instance of unlawful gaming, on the trial of a common gambler, 
 247. 
 
512 INDEX. 
 
 And prior iiiLlecent~afLacks upon the prosecutrix in a trial for rape, 247. 
 Though such evidence is admissible to prove malice or the scienter, it can- 
 not be received to show a tendency to commit the particular crime of 
 which defendant is accused, 248. 
 It is at this point that the common and the civil law diverge; in the first, the 
 issue is, " Is the defendant guilty of the offence charged V But under the 
 latter, is not so much his particular guilt, as whether his general guilt is 
 such as to make his removal from society a benefit, 248. 
 Case of the Ma;dchen-Schneiders at Leipsic, 248. 
 Similar case in London in 1789, 249. 
 
 It is not a conclusion of law, that an omission to produce evidence of good 
 character, affords the presumption of bad, 349. 
 Character of the deceased. 
 
 It has already been considered how far the character of the deceased may 
 be drawn in question, where the defence is that defendant had reason to 
 be in fear of his life, 249. 
 There have been cases where the courts have been obliged to allow great 
 latitude of evidence ; and it is easy to imagine cases in the future in which 
 it would be impossible to exclude it, 249. 
 As a general principle, the rule continues unbroken, that evidence that the 
 
 deceased was riotous, quarrelsome, and savage, is inadmissible, 249. 
 Even though such knowledge be brought home to the defendant, 249. 
 Chastise, intent to. See '^Provocation." 
 Chaud medley. See "Excusable Homicide." 
 Child, killing of. See " Infanticide. " 
 Children, death of, through negligent management. See "Infanticide," "Negligent 
 
 Homicide." 
 Coercion, when a sufficient provocation. See " Coercion." 
 CompeUing a person to do a fatal act the consequence of which is death, 119. 
 Concurrent causes, death by. See "Death by other Causes." 
 Constables, homicide of and by. See "Officers of Justice." 
 Cooling time. See "Provocation." 
 Corpus delicti. See " EvideiKe." 
 
 Death produced by other causes. 
 
 If death ensues from a wound given in malice, but not in its nature mortal, 
 this will not excuse the party who gave it from murder, unless he can 
 make it certainly appear that the mal-treatment of the wound, or the 
 misconduct of the patient was the sole cause of his death, 241. 
 
 So if deceased were ill of a mortal disease, and his death were hastened by 
 injuries maliciously inflicted by the prisoner, 241. 
 
 If a party wilfully, and without any justifiable cause, inflict a wound which 
 is ultimately the cause of death, the prisoner is guilty of murder;, for this 
 purpose it makes no difference whether the wound was instantly mortal 
 or became so afterward, by deceased not haying adopted the best mode 
 of treatment, 242. 
 
 The question is, whether, in the end, the wound inflicted by the prisoner 
 was the cause of the death, '242. 
 
 If the wound was not mortal, but by ill treatment the party die, and it 
 clearly appears that this treatment, and not the wound, was the cause of 
 the death, the defendant should be acquitted, 242. 
 
 But if the wound was mortal or dangerous, the prisoner cannot shelter him- 
 self under a plea of erroneous treatment, 242. 
 
 On a trial before Lord Lyndhurst, C. B., the latter, in summing up, left to 
 the jury to say, " Whether the death of the deceased had been occasioned 
 or accelerated by the medicines administered by the prisoner," 243. 
 
 If a man be sick of some disease, which, by the course of nature, might 
 possibly end his life in half a year, and another gives him a hurt or 
 wound which hastens his death, this is murder or other homicide, accord- 
 ing to circumstances, for it is not ex visitatione Dei, 243. 
 
 If it appear that the death was accelerated by the violence of the prisoner, 
 his guilt is not extenuated because death might probably have resulted 
 from disease, 243. 
 
INDEX. 513 
 
 Death — {continued. ) 
 
 Where an indictment charged death to have been occasioned by two co- 
 operating causes, and the evidence fails to support one of the causes, it 
 is insvfficientj 244. 
 If the indictment charge the death to have arisen from one cause, and it 
 appears that it was accelerated by that cause, but really arose from 
 another, not being a natural cause, it is not supported, 244. 
 If a person attacked, from a well-grounded apprehension of immediate vio- 
 lence, throw himself, for escape, into a river, and be drowned, the person 
 attacking is guilty of homicide, 244. 
 Declarations, dying. See "Evidence." 
 
 Defendants, death of, through negligent treatment of. See "Negligent Homicide." 
 Dishonour, how far a provocation. See "Provocation." 
 Doors, breaking open, when allowable by officers of justice. See " Officers of 
 
 Justice." 
 Driving, negligence in. See " Negligent Homicide." 
 Drunkenness, how far affecting the degree in homicide, 369. 
 Dying declarations. See " Evidence." 
 Duelling, all concerned in, are principals, 157. 
 
 Homicide in a duel is murder in the guilty party, though he had received 
 
 the provocation of a blow, or been threatened with dishonour, 204. 
 No difference, at common law, whether the intention was to kill or to dis- 
 arm his adversary, 204. 
 If the meeting be intentional, no subsequent hot blood will be a defence, 
 
 204. 
 Agreeing to fight after so considerable a time, that it is to be presumed that 
 
 the blood has cooled, murder, 204. 
 Where, upon sudden quarrel, the parties fight upon the spot, or presently 
 
 fetch their weapons and go into a field to flght, manslaughter, 204. 
 In sudden rencounters, it is supposed the blood grows hottQj: at every blow,, 
 and the voice of reason is not heard, therefore the law has extenuated 
 the offence, 205. 
 But where malice is proved, combat no defence, 205. 
 Major Oneby's case, 206. 
 JNot only the principals, but the seconds, in a deliberate duel, are guilty of 
 
 homicide, S07. 
 With regard to others present, the question is, did they countenance and 
 
 encourage the principals, 207. 
 Mere presence not sufficient, 207. 
 
 But if they sustain the principals by their advice and presence, they are 
 guilty of mui'der, 207. 
 
 Escape, homicide, in prevention of See " Officers of Justice." 
 Evidence, 
 
 dying declarations, 306. 
 
 cross-examination not necessary, 306. 
 
 deceased must be conscious of approaching death, 307. 
 
 constitutional provision does not exclude, 307. 
 
 confined to the fatal blow, and cannot be received as to extraneous 
 
 or prior matters, 307-9, 10. 
 what degree of consciousness of danger is necessary, 308-9, 10. 
 when reduced to writing, the notes are inadmissible, 310. 
 not receivable as to matter of opinion, 310. 
 
 when part of the res gestae admissible, without proof of conscious- 
 ness of death, 311. 
 courts are to decide as to admissibility of, 311. 
 may be contradicted or invalidated by evidence of bad character, 
 311. 
 corpus delicti, proof of, 312. 
 
 fact of death necessary to be established, 313. 
 proof of child's death in infanticide, 315. 
 
 in cases of poisoning, 316. 
 necessity of proof of corpws delicti, 317. 
 33 
 
514 INDEX. 
 
 Evidence — {contimied. ) 
 
 presumptions, 318. 
 
 ■weapon used, how to be shown, 319. 
 
 how far indicated by nature of wound, 320. 
 whether wounds are self-inflicted, or given by another, 320. 
 presumptions as to self-murder, 321. 
 
 whether the wounds were the result of design or passion, 321. 
 what presumptions are to be drawn from the instrument of death, 
 322. 
 poisoning, evidence of, and presumptions concerning, 323, 4. 
 proper steps to be taken in preparing for trial for, 324. 
 examination of dishes, &c., necessary, 325. 
 
 attendants, 325. 
 chemical analysis, 325. 
 veneficial test, 326. 
 pathological observations, 327. 
 materials appropriate to be converted into instruments of crime, 328. 
 marks of grief, hurry, anguish, &c., 328. 
 detached circumjacent bodies, 330. 
 position of deceased, 330. 
 traces of blood, 330. 
 liability to attack, 331. 
 
 possession of money, &c., 331. 
 jealousy, 332. 
 old grudge, 332. 
 infanticide, presumptions and evidence in, 333. 
 condition of body of child, 333. 
 degree of maturity, 334. 
 hydrostatic and hemorrhoidal tests, 334. 
 E^equate vitality, 336. 
 person suspected, 336. 
 cause of death, 337. 
 
 quickness, when essential to constitute abortion a misdemeanor, 
 340, 1, 2, 3. 
 Excusable and justifiable homicide. 
 
 (1.) Repulsion of a felonious assault, on person, 212. 
 (a.) What the nature of the assault must be, 212. 
 
 Sir Wm. Russell's definition of chance medley, 212. 
 •^ Mr. J. Blackstone's definition of chance medley, 212. 
 The danger must have been actual and urgent, 212. 
 When the assault is not felonious, rule changes, 212. 
 Trespass on property no defence in murder, 212. 
 If the killing happen in passion and heat of blood, it is man- 
 slaughter, but cannot be less, 213. 
 Rule does not apply to crimes unaccompanied with force, 213. 
 (b.) How far retreat is necessary, 213. 
 - In personal conflicts, retreat must be made to some impediment, 
 or as far as the fierceness of the assault will permit, 213. 
 There may be cases, though rare and of dangerous application, 
 where a man may kill his assailant without retreating to the 
 wall; the assault may be so fierce as to allow of no retreat, 213. 
 In the case of the assailant there must be an actual unequivocal 
 
 retreat, and quitting of the combat as far as he can, 213. 
 Neglect of opportunity to withdraw from the combat, 214. 
 If the attack of deceased be desisted in, and the prisoner renew 
 
 the conflict, he is no longer excusable, 214. 
 Where prisoner was a lodger at a house to which there was a 
 back way, and some persons split open the door of the house to 
 get at the prisoner, the Judge charged : " If the prisoner had 
 known of the back way, it would have been his duty to have 
 gone out backwards, in order to have avoided the conflict." 214. 
 Whether the protection of the house extends to every one dwell- 
 ing within it, see 214, See " Officers ofjustic'e." 
 
INDEX. 515 
 
 Excusable and justifiable homicide — {coniinued.) 
 
 (c.) What certainty must exist as to felonious intent, 214. 
 
 There must be an intention on the part of the puity killed, to rob 
 or murder, or to do some extreme bodily injury, 214. 
 
 The rule clearly extends only to felonies, 214. 
 
 No assault, without manifest felonious intent, will justify killing 
 the assailant, 215. 
 
 If defendant have reasonable grounds to believe a felony to be in- 
 tended, it makes no matter that such was not really intended, 
 215. 
 
 Whether the test to be applied is the defendant's capacity, or the 
 capacity of the jury trying the case, see 215. 
 
 The question of "a plain manifestation" is to be tested by the de- 
 fendant's disposition and temper, not that of the jury, 216. 
 
 It was said in Selfridge's case, that, where there is reasonable 
 ground to believe a design to destroy life, or commit any felony 
 upon the person, the killing will be excusable, though no felony 
 be intended, 216. 
 
 In Tennessee, it was ruled, that if a man, though in no danger of 
 serious bodily harm, through fear, alarm, or cowardice, kill 
 another, under the impression that great bodily injury is intended, 
 it is self-defence, 216. 
 
 A force which the defendant has a right to resist must itself be 
 within striking distance ; it must be menacing, and apparently 
 able to inflict physical injury, unless prevented by the resistance 
 he opposes, 217. 
 
 It is admissible for the defendant to prove threats, or other circum- 
 stances of a recent character, 217. 
 
 Judge Marvin's construction of the New York statute, 218. 
 
 The grounds for the apprehension of the commission of a felony 
 must be made to appear on the trial, 218. 
 
 It is true the party assailed, must, at the time, judge of the grounds; 
 but lie decides at his peril, so far as the question of justification 
 is concerned, 218. 
 
 But he will not act at the peril of making that guilt, if appearances 
 prove false, which would be innocence had they proved true, 219. 
 
 Roscoe says, "It is not essential that an actual felony should be 
 about to be committed in order to justify the killing," 220. 
 
 The intent to commit a felony must be apparent, although the real 
 intent should afterwards turn out to be less criminal or even 
 innocent, 221. 
 
 There must be a necessity, either actual or apparent, or the killing 
 cannot be justified, 222. 
 
 The unqualified language, that the killing must be necessary, said 
 never to have been used when attention was directed to the 
 question, whether the accused might not safely act upon the facts 
 and circumstances as presented at the time of the killing, 222. 
 
 In Ohio, it seems to be held that if the defendant has reasonable 
 ground to apprehend danger to his life, or great bodily harm, 
 he has the same right to defend himself, whether there be actual 
 danger or not, 225. 
 
 Remarks of Green, J., in a case in Tennessee, 226. 
 
 Conyngham, J., charge in a late Pennsylvania case, 227. 
 
 It is necessity alone which can excuse the homicide, 228. 
 ((/.) By whom the right may be exercieed, 230. 
 
 The right of self-defence founded on the law of nature, 230. 
 
 Party assaulted may repel force by force, 230. 
 
 Servant or anyone present may interpose to prevent mischief, 230. 
 
 Principle applies particularly to parent and child, and husband and 
 wife, 230. 
 
 Party interfering to act with caution, 230. 
 
 If, however, he interfere, not to preserve the peace, but to side 
 
516 
 
 INDEX. 
 
 Excusable and justifiable homicide — {continued.) 
 
 with one of the combatants, he is not justifiable if death ensue 
 230. 
 (c) How far want of premeditation is necessary, 230. 
 
 If the conflict was premeditated by the defendant, the defence 
 
 cannot be set up. 230. 
 Must not retreat fictitiously, or in order to watch his opportunity, 
 
 but from real tenderness or fear, 231. 
 In no case will a retreat avail, if feigned, 231. 
 The party assaulted must, therefore, flee as far as he conveniently 
 can, or as far as the fierceness of the assault will permit him, 23 ] . 
 The defence fails, where defendant, after escaping, arms himself 
 
 and returns and slays his antagonist, 231. 
 Under cover of self-defence, the law will not permit a man to 
 
 screen himself from deliberate murder, 232. 
 Where parties fight upon equal terms, malice apart, it matters not 
 
 who gave the first blow, 232. 
 So in the case of excusable homicide, in a sudden affray, all malice 
 apart, it will make no difference if either party quit the combat, 
 and retreat before a mortal wound be given, 232. 
 But some writers have thought this opinion too favourable, inas- 
 much as the necessity might arise from defendant's own fault, 
 232. 
 (2.) Repulsion of a felonious assault upon property, 232. 
 
 Where arson or burglary is attempted, the assailants may be lawfully 
 
 killed in order to prevent the mischief, 232. 
 Here nature and social duty co-operate, 232. 
 
 But party so assailed is not authorized to kill on every intrusion or in- 
 vasion of his dwelling-house, 232. 
 He ought, if he has a reasonable opportunity, to endeavour to remove 
 
 the trespasser, 232. 
 A mere civil trespass will not excuse the killing in sudden resentment 
 
 or anger, 232. 
 But a forcible possession of another man's close or dwelling is more 
 
 than a trespass, 233. 
 A man has a right to order another to leave his house, but has no right 
 
 to put him out by force until gentle means fail, 233. 
 If he attempt to use violence in the outset, and is slain, it will not be 
 
 murder in the slayer, if there be no previous malice, 233. 
 If A., in defence of his house, kill B., a trespasser, it is at least com- 
 mon manslaughter, 233. 
 Otherwise, if A. is in danger of his life, 233. 
 But if B. enter, and, after a request to depart, assault A.; and A. then 
 
 kill him, it will be se defendendo, 233. 
 And so if B. enter upon A., and immediately assault him, though with- 
 out intent to kill, 233. 
 And in such a case A., being in his own house, need not fly as far as 
 
 he can, 233. 
 Where, however, there is a mere trespass against the property of an- 
 other, the law does not sanction the use of a deadly or dangerous 
 weapon, 234. 
 It is lawful to exert such force against a trespasser, who comes without 
 colour, to take the goods of another, as is necessary to make him 
 desist, 234. 
 In defence of a property not a dwelling-house, where no more force is 
 used than is necessary, and death ensues, the defendant should be 
 acquitted, 234. 
 Even where the trespass is on the dwelling, only so much force as is 
 
 reasonably necessary can be used to turn out the trespasser, 234. 
 A kick is not a justifiable mode of turning a man out of a bouse, though 
 
 he be a trespasser, 234. 
 Where there is a statutory power given to exclude trespassers by the 
 use oi fire-arms, and due caution is used, defendant should be ac- 
 quitted, 234. 
 
INDEX. 517 
 
 Excusable and justifiable homicide — (continued.) 
 
 A person set to watch a yard or garden is not justified in shooting any 
 one who comes into it in the night, unless he believe his life in 
 danger, 235. 
 Excusable homicide, in prosecution of lawful act, 36. 
 se defendendo, 36. 
 chance medley, 36. 
 
 distinction between, and manslaughter, 36. 
 in defence of master and servant, parent and child, husband 
 
 and wife, 36, 230. 
 against trespassers, 36, 232. 
 in the ahernative, 36. 
 See " Jxistijiable Homicide." "Misadventure." 
 Execution of the laws. 
 
 The execution of malefactors is an act of necessity, and where the laws 
 
 require it, will justify the person killing, 235. 
 But it must be in strict execution of the law. Wantonly to kill the greatest 
 malefactor is murder, 235. 
 Exposure, death by. See "Negligent Homicide." 
 
 Felo-de-se. See "Self-murder." 
 
 Felon, homicide of. See " Officers of Jxntice." 
 
 Felony, homicide in commission of, murder, 46. 
 
 homicide of person concerned in. See "Officers of Justice," "Excusable 
 Homicide." 
 Felony, repulsion of, how far a defence. See " Excusable Homicide." 
 Fighting. See "Provocation " "Negligent Homicide." 
 Fceticide. See "Infanticide." 
 
 how far quickening is essential to, 343-4. 
 Force and arras. See "Indictment." 
 Fugitives, killing of fugitives from arrest. See " Officers." 
 
 A person indicted for felony, and who will not suffer himself to be arrested 
 by an officer, having a warrant for that purpose, may be killed by such 
 officer, 235. 
 This must be understood of officers only, 235. 
 As a general principle, where a party, liable to arrest, peaceably endeavours 
 
 to avoid it, he may not be killed, 235. 
 Otherwise, if he endanger the life of the party arresting, 235. 
 Peace officers and their assistants, endeavouring to disperse a mob, are jus- 
 tified in proceeding to the last extremity, 235. 
 The killing of dangerous rioters, even by private persons who cannot other- 
 wise suppress them, is justifiable, 235. 
 In civil cases, and any misdemeanor short of felony, the killing will be 
 murder or manslaughter, according to the circumstances attending such 
 homicide, 235. 
 But if a felony be committed, and the felon fly from justice, or a dangerous 
 wound be given, and the party flying be killed, where he cannot other- 
 wise be taken, such killing will be deemed justifiable homicide, 236. 
 If he surrender himself to his pursuers, it is murder if they kiM him, 236. 
 The same rule holds, if felon, after arrest, break away, 236. 
 Jailers and their officers are under the same special protection as other mi- 
 nisters of justice, 236. 
 They need not retreat as far as they can with safety, but may repel force by 
 
 force, 236. 
 In general, in all oases, whether civil or criminal, where persons having 
 authority to arrest or imprison, are resisted in so doing, they may repel 
 force with force, and if the party resisting is unavoidably killed, this ho- 
 micide is justifiable, 236. 
 
 Gestures. See "Provocation." 
 
 Guardian, neglect of ward, homicide through, 129. 
 
 Homicide, general definition of, 33. 
 at common law, 33. 
 
518 INDEX. 
 
 Homic'de — (ccmtinued.) 
 
 with intent to kill, 39. 
 
 must be murder, 39. 
 
 intermediate provocation no defence, 39. 
 evidence of, may be circumstantial, 41. 
 what facts admissible, 41. 
 where there is a settled purpose of revenge, 41. 
 proved by use of deadly weapon, 41. 
 
 preconcerted hostile meeting, 41. 
 intent to do bodily harm, 41. 
 
 at common law, 41. 
 the law here, 41. 
 nature of distinction, 41. 
 by beating, 41. 
 by throwing a stone, 41. 
 varied by instrument, 42. 
 by manner of use, 42. 
 recklessness of consequences, 42. 
 toward a third party, when the fatal blow falls on the deceased by mis- 
 take, 
 nature of the original intent, 42. 
 
 circumstances of the act, 42. 
 the homicide of a servant aiding master, 42, 230. 
 
 child innocently by third party, 42. 
 by mistake, by party in prosecution of unlawful act, 43. 
 passion, on sudden quarrel, 43. 
 of mother, by abortion, at common law, murder, 44. 
 
 if intent to injure mother, same result, 44. 
 destruction of infant, en ventre sa mere, when felonious, 44, 340-343. 
 general depraved inclination, 45. 
 act done with deliberation, 45. 
 if such original intent do not appear. 45. 
 breaking unruly horse, 45. 
 throwing from a roof into a crowded street a stone likely to do injury, 
 
 45, 150. 
 general malice an aggravation, 45. 
 particular malice has limited bounds, 45. 
 general malice, wider scope, 45. 
 absence of personal malice, aggravates the crime, 46. 
 intent to commit collateral felony, 46. 
 if the act be malum in se, general rule, murder, 46. 
 if intent be to commit felony, it will be murder, 46. 
 if a misdemeanor, it will be manslaughter, 46. 
 intent to commit collateral misd'emeanor, 46. 
 
 if in prosecution of unlawful assemblies the offence manslaughter, 46. 
 intent to resist authority, or to create public disturbance, 46. 
 of one person by mistake for another, 43. 
 See "Murder," "Manslaughter," "Excusable Homicide.'' 
 
 "Justifiable Homicide," "Malice," "Murder in the Second Degree." 
 " Riotous Homicide." 
 by misadventure. See "Misadventure." 
 of and by officers of justice. See " Officers of Justice," 
 per necessitatem. See "Shipwreck." 
 as affected by slavery. See " Slavery." 
 Hot Blood. See "Provocation," "Riotous Homicide." 
 House, how far a protection, in cases of arrest. See " Officers of Justice." 
 Husband, negligent treatment of wife, when causing death, 120. 
 
 Ilt.egitimate child, obligation of father to support, 129. 
 Indictment. 
 
 Name must be set out correctly, 251. 
 
 Except when party is unknown, when it is sufficient to state this, 
 251. 
 
INDEX. 519 
 
 ladictraeni— continued. 
 
 Residence, how to be stated, 251. 
 Addition, how far necessary, 252. 
 
 "yeoman," "widow," "wife of A. B," "spinster," sufficient, 
 
 252. 
 want of, ground for motion to quash, 253. 
 JMystery at finding, 253. 
 
 error in addition or mystery, how to be taken advantage of, 
 254. 
 Time and place, how to be set out, 254-6. 
 Force and arms, not necessary, 256. 
 Party injured, how to be described, 257. 
 
 what particularity is required in setting out name, 257. 
 bastards, how to be described, 257-8. 
 "In the peace of God," how far to be proved, 259. 
 Malice aforethought, necessary to be averred, 260. 
 Means of death, how to be set forth, 260. 
 fatal weapon, &c., 260-3. 
 
 variance between averment of instrument of death and 
 proof, 260-1. 
 Poison, how to be averred, 263. 
 Variation of counts, 265. 
 
 When instrument is unknown, how to be averred, 265. 
 Forcing a person to do a fatal act, 266. 
 Value of instrument of death, 267. 
 How wound is to be described, 267, 272, 273. 
 "Strike," how far necessary to indictment, 269. 
 How method of injury to be set forth, 269. 
 In blows, 269-70. 
 
 gun-shot wounds, 270. 
 suffocation, 270. 
 poison, 263, 264. 
 
 forcing another to do a fatal act, 266. 
 , Variance between description of wound and evidences, how far serious, 
 274. 
 " Languishing did live," nature of averment, 274-5. 
 Statement of time of death, 274-5. 
 How far dates need be proved, 275. 
 Concluding averments, 276. 
 Conclusion, "contrary to the form," &c., 277. 
 Distinction of features of indictment for manslaughter, 282. 
 Pleas, 282. 
 
 Autrefois acquit and convict, 283. 
 
 After conviction for manslaughter, and new trial granted, whether defen- 
 dant is put on trial for murder, 283. 
 Verdict. See ^' Verdict." 
 [For forms, see Wharton's Precedents of Indictments, as follows: — ] 
 Shooting with pistols, 47. 
 Against principal, in first and second degrees, for shooting slave, with 
 
 same, 48. 
 Against principals in first and second degrees, for shooting with gun, 76. 
 Striking on the hip with knife, the death occurring in another state, 74. 
 Cutting throat with knife, 48. 
 Stabbing on belly with same, 76. 
 Striking neck with axe, 73. _ 
 Against slave for murder with axe, 75. 
 Striking with a hatchet on high seas, 95. 
 Against principal, in first and second degrees, for hanging, 49. 
 Second count, beating and hanging, 50. 
 Stamping, kicking, and beating, 67. 
 
 Beating with fists, and kicking, no mortal wound being found, 69. 
 Striking with poker, 51. 
 Striking with a handspike (on the high seas,) 92. 
 
520 INDEX. 
 
 Indictment — forms of, in Wharton's Precedents. — (continued.) 
 
 Homicide, striking with a glass bottle (in a foreign jurisdiction,) 93. 
 
 Drowning, 51, 98. 
 
 Stabbing and drowning on high seas, 69, 87. 
 
 Against a mother for drowning her infant child, 94. 
 
 Strangling, 52. 
 
 Choking, against principals, in first and second degrees, 56. 
 
 Suffocating infant, 67. 
 
 Poisoning with arsenic, 56, 57, 64. 
 
 Placing poison so as to be mistaken for medicine, 61. 
 
 Poisoning child by laudanum, 62. 
 
 Mixing arsenic in wine and sending it to deceased, 63. 
 
 Giving deceased poison and thereby aiding her in suicide, 66. 
 
 Burning a house in which deceased was at the time, 54. 
 
 Giving deceased large quantities of spirituous liquors, &c., 83. 
 
 Starving, 55. 
 
 Forcing sick persons into street, &o., 67. 
 
 Neglecting to supply wife with shelter, 84. 
 
 Neglecting to supply apprentice with food, 79. 
 
 Killing same with overwork, 79. 
 
 Neglecting to supply infant with clothes, 80. 
 
 Striking with stones, 70, 71, 72, 73. 
 
 Manslaughter by same, 83. 
 
 Striking with a cart, 84. 
 
 Striking infant with dray (involuntary manslaughter,) 86. 
 
 Riding over with a horse, 51. 
 
 Murder of bastard child by strangling, 77. 
 
 Murder by throwing in privy, 78. 
 
 By smothering in linen cloth, 78. 
 
 Same in Pennsylvania, by strangling, 79. 
 
 Misdemeanor in concealing death of bastard child, under the Pennsylvania 
 statute, by casting it in well, 99. 
 
 Same where means of concealment are not stated, 100. 
 
 Endeavour to conceal birth of dead child under English statute, 101. 
 
 Against captain and -engineer of steamboat, for meuislaughter in second de- 
 gree, in New York, 85. 
 
 iNrANTICIDE, 93. 
 
 Killing child in its mother's womb, no murder, 93. 
 
 But if child be born alive and die afterward, it is murder, 93. 
 
 Striking child during birth, whereof the child dies, after having been born 
 alive, 93. 
 
 Must be proved that the entire child has been actually born, in a living 
 state, 93. 
 
 If mother wilfully strangle, 93. 
 
 Causing child to be born before its natural time, whereby it dies, 93. 
 
 General principle, 93. 
 
 What constitutes actual birth, 94. 
 
 Killing child after birth, though stiU connected by the umbilical cord, is mur- 
 der, 95, 333-336. 
 
 Having breathed is not sufficiently life to make the killing murder, 95. 
 
 Whole body must be brought into the world, 95, 333-336. 
 
 Not essential that it should have breathed, at the time of killing, 96. 
 
 Evidence of. See " Evidence." 
 
 Corpus delicti in case of, 333-336. See "Evidence." 
 Intoxication, death caused by. See "Negligent Homicide." 
 
 how far affecting the degree in homicide, 369. 
 Involuntary manslaughter. See "Manslaughter." 
 
 Jailors, homicide by. See " Officers of Justice." 
 Jealousy, presumptions arising from. See " Evidence." 
 
 Justifiable homicide, by officer, in executions, 37, 335-336. See "Fugitives" 
 "Officers." 
 in advancement of public justice, 37. 
 
INDEX. 521 
 
 Justifiable Homicide — (continued.) 
 
 in apprehending felon, 37. 
 
 in suppressing riot, 37. 
 
 in resisting rescue of prisoners, 37. See " Officers." 
 
 in prevention of any felony, 37. See "Excusable Homicide." 
 murder, 37. " " 
 
 robbery, 37. 
 
 burglary, 37. " '■' 
 
 rape, 37. " '■' 
 
 mayhem, 37. " '■ 
 
 danger must be imminent, 37. 
 
 force necessary to defeat attempt, 37. 
 See, generally, "Excusable Homicide.'' 
 
 Liquor, over administration of. See '* Negligent Homicide." 
 
 jVIalice, express or implied, 33, 38. >^S- i 
 definition of, 33, 38. 
 evidence of, 33, 38. 
 general, 34, 38. 
 presumed, 34, 38. 
 
 ascertained, presumed to continue, 34. 
 against absent party, 35. ^B> 
 reasonable doubt of, 35. 
 how evidenced, 38. 
 distinction between, and hatred, 38. 
 Lord Coke's comment on, 39. 
 in a legal sense, 39. 
 
 See "Murder," "Manslaughter." 
 Maltreatment, by surgeon, how far a defence. See "Death produced by other 
 
 causes." 
 Manslaughter, difference between, and murder, 35. 
 malice no defence, 35. 
 voluntary, 35. 
 
 upon sudden quarrel, 35. 
 upon gross provocation, 35. 
 involuntary, 35. 
 
 difference between, and homicide per infortuniam, 35. 
 of and by officers of justice. See " Officers of Justice." 
 by negligence. See "Negligent Homicide." 
 after new trial for, whether defendant is put on trial for the offence 
 
 of murder, 282. 
 See, generally, "Excusable Homicide" "Homicide." 
 distinctive features of indictment for. See " Indictment." 
 Manufacturers, negligence by, causing death. See " Negligent Homicide." 
 Master, neglect of apprentice, causing death. See "Negligent Homicide." 
 negligence in attendance of sick slave, 128. 
 
 servant, 128. 
 Medical men, negligence of, causing death. See "Negligent Homicide." 
 Menaces, how far a provocation. See " Provocation." 
 Misadventure, per infortuniam and se et ma defendendo, 208. 
 Excusable homicide implies some fault, 208. 
 No penalty inflicted on excusable homicide in United States, 208. 
 Homicide by misadventure is, where one, without intention of bodily harm, 
 with all proper precaution, doing a lawful act, unfortunately kills another, 
 208. See " Negligent Homicide." 
 (1.) There must have been no intention to do harm, 208. 
 
 If there is any malice, the offence is murder, 208. 
 (2.) Proper precaution must be taken to avoid mischief, 208. 
 
 Where carter left his horse's head, and was sitting inside, and by such 
 neglect Caused the death of a child, it was held to be manslaughter, 
 116, 208. 
 Question is, Was particular care necessary'? 209. 
 
522 INDEX. 
 
 Misadventure — (^continued.) 
 
 Generally speaking, if no want of care can be imputed, the offender is 
 
 excused, 209. See " Negligent Homicide." 
 So, where workmen throw down rubbish from a house, if the place be 
 
 retired, and proper warning be given, 209. 
 Such caution is necessary as is usual and ordinary in similar cases, 210. 
 Extreme and utmost caution cannot be insisted upon, 210. 
 (3.) The act must have been lawful, 210. 
 
 Where deadly weapons are used in lawful games, the act becomes 
 
 unlawful, 147-149, 210. 
 Proper caution and fair play should be observed, 147-149, 211. 
 Where persons shoot at game or butts, and a bystander is killed, 211. 
 With respect to lawfulness of shooting game, it is not such an unlaw- 
 ful act as to enhance the accidental killing to manslaughter, 211. 
 Miscarriage, homicide in procurement of, 44. 
 Mischief, death arising from. See "Negligent Homicide." 
 Murder. See "Homicide,'' "Malice" "Manslaughter " "Excusable Homicide." 
 of and by officers of justice. See " Officers of Justice." 
 in the second degree, 354. 
 
 Origin of statutory distinction, 354. 
 Question one of punishment, 354. 
 To murder in the second degree, malice aforethought is necessary, 
 
 355. 
 If there be no such malice, the Courts will grant a new trial, 335-6. 
 Statutes, Maine, 356. 
 
 New Hampshire, 356. 
 Connecticut, 357. 
 New Jersey, 357. 
 Virgii)ia, 357. 
 Alabama, 357- 
 Tennessee, 358. 
 Michigan, 358. 
 Analysis of statutes, 359. 
 Murder by poison and lying in wait not necessarily murder in the 
 
 first degree, 359, 360, 361. 
 Though the contrary seems to be held in Virginia, 362. 
 When murder is committed in the perpetration of, or the attempt to 
 perpetrate, either of the enumerated felonies, it is necessarily 
 murder in the first degree, 362. 
 Killing an unintended third party, 362, 363. 
 Meaning of word -other" in general definition of murder in the 
 
 second degree, 367. 
 Meaning of "wilful" in same, 368. 
 
 "deliberate" in same, 369. 
 "premeditate" in same, 372. 
 How far degree is affected by drunkenness, 369. 
 Or by excitement and passion, 371. 
 Specific intention to take life the distinguishing feature of murder in 
 
 the first degree, 373-385. 
 General review of cases, 373-385. 
 
 Evidence of premeditation in murder in the first degree, 385. 
 Presumption in Virginia and Ohio is, that all murder is in the second 
 
 degree until the crime shown, 386. 
 Murder in the second degree taken often as a compromise verdict, 
 
 387. 
 Under indictment for murder at common law, jury may convict either 
 
 of the first or second degree, 387. 
 Jury must specify the degree in their verdict, 387. 
 
 Name. See "Indictment." 
 
 Navigation, negligences in. See "Negligent Homicide." 
 
 Necessity, what, to constitute self-delence. See "Excusable Homicide." 
 
 Negligence when misadventure. See "Misadventure." 
 
INDEX. 523 
 
 Neglisenf Homicide, 101. 
 
 Officers of steam and other vessels, 101. 
 
 general doctrine, 101. 
 
 illegal speed, 101. 
 
 positive neglect of care, 101. 
 
 under act of congress, 7th July, 1837, 103, 483. 
 and see case in appendix, 483. 
 
 common law in England, 111. 
 Persons driving or riding, 112. 
 
 an unralyhorse in a crowd, 112. 
 
 intent to frighten the crovrd, 112. 
 as to speed, 112. 
 
 care and caution requisite, 113. 
 
 racing, 113. 
 
 negligence, loss of command of horse, 113. 
 by his ovrn act, 113. 
 
 two persons inciting each other to drive at rapid rate, 113. 
 
 where one, by his negligence has contributed to the death of another, he 
 is responsible, 115. 
 
 rate of fifteen miles an hour, unlawful, 115. 
 
 not bound to keep on the ordinary side of road, 115. 
 
 but more caution required, 115. 
 
 driver not looking before him, 115. 
 
 greatest possible care not required, 116. 
 
 a carter bound to keep at his horse's head, 1 16, 208. 
 
 foot passenger not excluded from carriage way, 1 16. 
 
 same principles apply to persons riding on horseback in a furious man- 
 ner, 117. 
 
 but if two be so riding, and the second strike a third party, it is the 
 second rider alone that is responsible, 117. 
 
 a man breaking an unruly or vicious horse, 117. 
 
 murder, if the intent was to do mischief, or even to frighten the crowd; 
 manslaughter, if done heedlessly and incautiously only, 117. 
 Persons having charge of children or of dependants, 117. 
 
 when child dies after birth from wilful neglect, during parturition or af- 
 terward, it is murder or manslaughter, according to the intention, 117. 
 
 cause of death must be corporal, 117. 
 
 but where an act is done, the probable oonsequence of which may be, 
 and is, death, such killing may be murder, 117. 
 
 although no stroke be given, 117. 
 
 indictment in cases of neglect, &c., 259. 
 
 exposing person in severe weather, 118. 
 
 leaving child in an orchard, 118. 
 
 shifting an infant from parish to parish, 118. 
 
 forcing sick seaman to go aloft, 118. 
 
 dropping naked infant by road-side, 119. 
 and concealing its birth, 119. 
 
 use of authority to compel a party to do a fatal act, involves the guilt 
 of felonious homicide, 119. 
 
 indictment in such case, 296. 
 
 husband bound to afford nurture and comfort to his wife, 120. 
 
 when there is a separation, 120. 
 
 same principle applied to the relations of parent and child, and master 
 and apprentice, 123. 
 
 not providing for sick apprentice, 123. 
 
 not providing apprentice with sufficient food, 123. 
 
 giving child spirituous liquors, 123. 
 
 administering opiate to produce quiet, 124. 
 
 administering laudanum, not per se, unlawful, 124. 
 
 at common law, master not obliged to provide medical attendance for 
 sick servant, 128. 
 
 master is obliged for slave, 128. 
 
 and is commonly responsible for apprentice, 128. 
 
524 INDEX. 
 
 Negligent homicide — (^continried.) 
 
 obligation of father to support illegitimate child, doubtful, 129. 
 
 when party assumes guardianship, he is repponsible, 129. 
 
 if he inflicts cruel punishment, or compels unreasonable work, it will 
 
 be murder, if treatment indicates malice, 129. 
 otherwise manslaughter, 129. 
 same principle applies to school-master, 129. 
 correction must be moderate, 129. 
 letting out insane or infirm paupers, 130. 
 
 party who undertakes to provide for person too aged and infirm to pro- 
 vide for himself, is criminally responsible, 130. 
 if neglect in such case indicate malice, the offence is murder, 130. 
 if only carelessness and negligence, manslaughter, 130. 
 Medical men, apothecaries, &c., 131. 
 
 originally held that physician intending good to patient, was excusable, 
 
 as of misadventure, 131. 
 afterwards if party was not a regular physician, the offence was man- 
 slaughter, 131. 
 the law now is, that want of a degree, adds nothing to the grade of the 
 
 offence, if there be a bona fide attempt to do good, 131. 
 both regular and irregular surgeons may be liable to indictment for man- 
 slaughter; and there may be cases where even malice might be in- 
 ferred against either, 131. 
 parly must be guilty of the grossest ignorance or the most criminal in- 
 attention to make him guilty of manslaughter, 132. 
 the question is the honesty and bona fides of the practitioner, 132. 
 it is otherwise in case of imposture, 132. 
 case of St. John Long, 133. 
 want of due circumspection, 136. 
 
 gross rashness or gross ignorance will constitute felony, 137. 
 willingness of patient cannot take away the, as offence against the pub- 
 lic, 137. 
 the question is, has defendant acted with a due degree of caution, or with 
 
 gross and improper rashness and want of caution, 138. 
 Thompson's case, 138. 
 there is no law which prevents a man from prescribing for another, with 
 
 his consent, with bona fide intent to cure, 141. 
 more recently, there has been a tendency to hold a practitioner respon- 
 sible who acts without competent skill, 142. / 
 bound to have competent skill, and to treat his patients with care and 
 
 attention, 143. 
 no man is justified in using a dangerous instrument, without a proper 
 degree of skill and caution, and if life be lost by the absence thereof, 
 he is criminally responsible, 143. 
 not responsible if attendance was actually necessary, 143. 
 where proper medical assistance can be had, and an ignorant party take 
 on himself to administer a dangerous remedy, if death ensue, he is 
 guilty of manslaughter, 144. 
 an apothecary's apprentice, negligent in delivering medicine, is guilty 
 of manslaughter, 144. 
 Manufacturers and workmen, 144. 
 
 carelessness in ordinary business, resulting in death, constitutes man- 
 slaughter, 144. 
 principle applies to manufacturers supplying material, 144. 
 
 and to workmen, 144. 
 if reasonable care be shown, the jury will be directed to acquit, 145. 
 mere wantonnesss or sport, which results in death, makes the offen- 
 der in like manner guilty, 145. 
 if death ensues, as the consequence of an act which the party can nei- 
 ther justify nor excuse, it is manslaughter, 145. 
 where the act is one of wantonness and sport, but a wrongful act and a 
 trespass, the offence is manslaughter, 145. 
 
INDEX. 525 
 
 Negligent homicide — {continued.) 
 
 a person charged with the ventilation of a mine, will be guilty of man- 
 slaughter, it, through his negligence, death ensue, 146. 
 Prize-fighters; and persons engaged in athletic sports, 147. 
 
 the same principle, that if death ensue in a duel, makes it manslaughter 
 in a prize fight, 147. 
 
 the difference is simply the intent, 147. 
 
 if, however, a party goes out with intent to do grievous bodily harm, 
 the offence is murder at common law, or murder in the second degree, 
 under the American statutes, 147. 
 
 if the intent is to kill, the otfence is murder, 147. 
 
 if, however, the guilty intent arise in hot blood, and without cooling 
 time, it is but manslaughter, 147. 
 
 persons encouraging prize fight, in which death occurs, are accessaries 
 to manslaughter, 147, 211. 
 
 the remaining present, during a fight, is encouraging it by presence, 
 and involves the same responsibility, 147. 
 
 if the death be caused, not by the combatants, but by others breaking 
 into the ring and striking, those merely present are not necessarily 
 guilty of manslaughter, 148, 211. 
 
 the general principle is, that all such sports, which are exhibited for 
 lucre, and tend to encourage idleness and disorder, involve a crimi- 
 nal responsibility, 1 48. 
 
 Death occurring in any unlawful sport, involves those concerned in 
 manslaughter, 148, 211. 
 
 so, throwing stones at another wantonly, being a dangerous sport, and 
 tending to the bodily hurt of some one or other, if death ensue, 
 will be manslaughter, 148. 
 
 though the sport be lawful, yet the manner, and the instrument used, 
 may make the parties causing death guilty of manslaughter, 148, ail. 
 
 all sports productive of mischief, riot, and disorder, are unlawful, 149. 
 
 and if death ensue, the crime is manslaughter, 149. 
 
 on the other hand, all such exercises as tend to give strength, activhy, 
 and skill in use of arms, as private recreations, are lawful, 149. 
 
 inferences of guilt not to be drawn from remote causes, 149. 
 
 how far party is responsible depends upon the degree of negligence at 
 the time, 149. 
 
 where party throws or shoots over a house or wall, the act is unlawful, 
 and the crime, if death ensue, manslaughter, 45, 150. 
 
 if death happen, in prosecution of felonious intent, the crime is murder; 
 if in committing a bare trespass, it is only manslaughter, 150. 
 
 where there is a party combining to resist all opposers in the com- 
 mission of any breach of the peace, if death ensue, through this 
 unlawful purpose, they will be guilty of murder, 151. 
 
 if poison be laid in such manner as naturally to be mistaken for food, 
 it is, perhaps, manslaughter; otherwise, misadventure only, 151. 
 
 where liquor is given for unlawful purposes, and death ensues, it is 
 manslaughter; but if the purpose be great bodily harm, or to commit 
 a felony, the offence is murder, 151. See "Misadventure.'' 
 New trial, whether, when granted on charge of manslaughter, the original charge 
 of murder is opened, 287. 
 
 Officers of Justice, homicide by. 
 
 in obedience to a writ of execution, 47. 
 
 such homicide justifiable, 47. 
 
 sentence to be strictly followed, 47. 
 
 king's prerogative to mitigate, 47. 
 
 rule as to officer, varying punishment, 47. 
 in effecting an arrest, 48. 
 
 general rule, justifiable, 48. 
 
 there must be reasonable necessity. 48. 
 in civil cases, 48. 
 
 officer not to use lethal weapon, 48. 
 
526 INDEX. 
 
 Officers of justice, horaicicle by — (continued.) 
 
 the rule varies, if weapon be not deadly, 48. 
 if there be resistance and affray, only manslaughter, 48. 
 in crinninal cases, 49. 
 
 distinction between misdemeanor and felony, 49. 
 in case of resistance, 49. 
 belief that felony will be committed, 50. 
 where felony has been committed, 50. 
 escape after arrest, 50. 
 question of necessity, 50. 
 peaceably avoiding arrest, 50. 
 in prevention of an escape, 50. 
 duty of officer to prevent, 50. 
 where felony, justifiable, 50. 
 rule as to jailers, 50. 
 in assault upon jailer, 50. 
 if prisoner die, while under care of jailer, 50. 
 the party guilty of duress liable to prosecution, 51. 
 killing of felon flying from justice, justifiable, 51. 
 otherwise, if misdemeanor has been committed, 51. 
 in preservation of the peace, 51. 
 question of necessity, 51. 
 
 not confined to instant officer is on the spot, 51. 
 homicide by subject of Great Britain in the tfnited States, 52. 
 when acting improperly, or with unnecessary severity, 52. 
 due care and caution obligatory on officer, 52. 
 where no resistance is made, and officer kills, murder, 52. 
 so if officer kill, after resistance is over, 52. 
 when acting without authority, 52. 
 out of proper district, 52. 
 
 felony must be actually committed, to justify the homicide, 52. 
 killing by military or naval officers, 52. 
 
 in the case of impressing mariners, 52. * 
 
 when acting in self-defence, 53. 
 
 in an affray, with weapons used in heat, it is manslaughter, 53. 
 the question is the necessity of resort to deadly weapons, 53. 
 See, further, "Fugitives." 
 HoMiaoE OF OFFICERS OF JUSTICE, and others aiding them, 54. 
 killing of officer using proper means to arrest murder, 54. 
 party must give notice of his purpose, 54. 
 where party killing knew the officer, 55. 
 if the arrest is unlawful, the killing is not murder, 55. 
 who have authority to arrest, 56. 
 constables and policemen, 56. 
 
 ministers of justice under the protection of the law, 56. 
 killing officers so employed, murder, 56. 
 protection continues eundo, morando, ei redeundo, 5C. 
 policemen entitled to same protection as constables, 57. 
 bailiffs, or tipstaves, in civil cases, 58. 
 
 in this class of cases, officer has no authority to kill, 58. 
 
 private or special bailiff, 58. 
 
 it must appear that the party knew him to be such, 58. 
 
 with sufficient notice, the killing of such officer is murder, 58. 
 
 private bailiff should show warrant, 58. 
 
 if demanded, bound to show at whose suit, for what cause, out of 
 
 what Court, w^hen and where returnable, 58. 
 authority limited by the writ and district in which he is to act, 58. 
 but if executed within the jurisdiction of the Court or magistrate, it is 
 sufficient, though out of the vill of constable, if directed to him by 
 name, or name of office, 59. 
 officer acting out of jurisdiction, or without warrant, 59. 
 must be legal officer or his assistant, 59. 
 
 killing a bailiff executing writ out of jurisdiction does not amount to 
 murder, 59. 
 
INDEX. 527 
 
 Officers of justice, homicide of — {continued.) 
 
 writ to be executed within jurisdiction of magistrate from whom it 
 
 issues, 59. 
 the law in England altered by 5 Geo. IV., c. 18, 59. 
 warrant directed to several persons, any of them may execute it, 60. 
 notice, what constitutes, and effect of want of it. 
 
 where party is taken in the act, not necessary, 60. 
 
 as in driving off poachers, 60, 61. 
 
 showing staff of office, or any sign of authority , 6 1 . 
 
 if, after such notice, bailiff be killed, it is murder, 61. 
 
 bailiff, jaratus et cognitus, need not show warrant of being bailiff, though 
 
 demanded, 61. 
 if constable command the peace, and show staff of office, this is suffi- 
 cient intimation, 62. 
 where known to defendant as officer, killing is murder, 62. 
 if constable interfere to prevent an affray in his own vill, if he be killed 
 by one who knows him, it will be murder; if by stranger, man- 
 slaughter, 62. 
 by whom a warrant may be executed, 62. 
 by party named in it, 62. 
 
 or by some one assisting, either actually or constructively, 62. 
 how long a warrant continues in force, 63. 
 
 until fully executed, if within seven years, and magistrate be living, 63. 
 when process is illegal, 64. 
 
 when process is illegal, the killing of officer is manslaughter, 64. 
 
 degree of violence, evidence of malice, to make it murder, 64. 
 
 where malice is manifested, they follow general rule, 64. 
 
 Scotch law on this point, 64. 
 
 the distinction stated by Mr. Allison, 64. 
 
 question, whether act was caused by illegal apprehension, 65. 
 
 if arising from other causes, the illegality of the arrest ought not to be 
 
 considered, 65. 
 if officer has two warrants, one legal, the other illegal, and arrest by 
 
 the illegal, he may justify by the legal one, 65. 
 if directed to arrest A. B., and he arrest C. D., it is illegal, 65. 
 legal completeness necessary in warrant, 66. 
 omission of Christian name, 66. 
 falsity of charge, no alleviation for killing officer, 67. 
 if warrant, in name of State, have no seal, it is void, 67. 
 if officer, in executing such warrant, is killed, it will not be murder, 69. 
 blank warrants, 67. 
 
 their illegality settled, in this country, 67. 
 capias ad satisfaciendum, no warrant for breaking, 68. 
 where the arrest is made without any warrant, 68. 
 
 not only officers but private persons, are empowered, under certain cir- 
 cumstances, to make arrests, 68. 
 an officer may, without warrant, arrest on charge of felony, 68. 
 and if the officer be known to the party, his killing would be murder, 
 
 though no felony was committed, 68. 
 how affected by statute, 69. 
 the authority should be strictly pursued, 69. 
 
 where there is reasonable suspicion of felony, and charge made, 69. 
 ship's officers, 71. 
 
 where officer impresses without special warrant, 7 1 . 
 where sentinel shoots a man approaching a ship, though ordered not 
 to do so, 71. 
 • such proper case for pardon, 71. 
 private persons. 
 
 coming to aid of officers, 71. 
 
 assisting to keep the peace, 71. 
 
 aiding officer in taking felon to station-house, 71. 
 
 eundo, morando, et redeundo, 71. 
 
 justified in bringing felons to justice, 72. 
 
528 INDEX. 
 
 OfRcers of justice, homicide of — (^continued.') 
 preventing felonies, 72. 
 must be certain that felony is committed, 72. 
 by the person arrested or pursued, 72. 
 where clear case of attempt to commit felony, 72. 
 indictment found, good cause of arrest by private person, 73. 
 private persons interfering should express their intention, 73. 
 if not, their killing will be but manslaughter, 73. 
 in vchat cases, 74. 
 felonies, 74. 
 if a felony be committed, 74. 
 or dangerous vifound given, 74. 
 felon flying from justice, 74. 
 if hue and cry be made, all vrho join in arresting are under protfc.,aon 
 
 of the law, 74. 
 misdemeanors. 
 
 no power in private person to apprehend, 75. 
 
 where private persons interpose in sudden affray, to part the com- 
 batants, their killing will be murder in the one who kills, but not in 
 
 the other affrayer, unless he strike, 75. 
 the same doctrine applies to officers without warrant, 75. 
 even justice of the peace has no authority to detain a person known to 
 
 him, till some other makes a charge, 76. 
 where life is threatened, a different doctrine, 77. 
 affrays. 
 
 Sissinghurst case, 77. 
 
 constable no right to arrest, after an affray, without warrant, 79. 
 
 yet may interfere on his own view to prevent a breach of the peace, 79. 
 
 small matter will amount to notice, 79. 
 
 especially in daytime, 79. 
 
 at night, further notification necessary, 79. 
 
 important question, if the affray be over, 79. 
 
 no part of policeman's duty to turn a person out of an inn, although 
 
 acting improperly there, unless his conduct tends to a breach of the 
 
 peace, 80. 
 but noise and disturbance, such as would create alarm and disquiet, 
 
 would justify policeman in interfering, provided it took place in his 
 
 presence, 80. 
 street-walkers and vagrants, 82. 
 the arrest of person at night as vagrant, if the person is innocent, is 
 
 illegal, 82. 
 when arrest may be made, 82. 
 
 not on Sunday, unless for treason, felony, or breach of the peace, 82. 
 but process may be executed by night, 88. 
 officers taking opposite parts, 83. 
 
 the killing seems but manslaughter, 83. 
 how arrests may be made, and herein of breaking open doors, 84. 
 
 where doors may be broken open, there must be previous notification, 
 
 what is due notice, 84. 
 
 no precise form of words, 84, 
 
 where party arrested escapes into his own house, if the pursuit is im- 
 mediate, notice is not necessary, 85. 
 
 in case of felony, or where dangerous wound given, the party's house 
 is no sanctuary, and the doors may be forced after notification, de- 
 mand and refusal, 85. 
 
 so, where a minister of justice comes armed with process, founded on 
 breach of peace, 85. 
 
 officer may break open doors to execute process of contempt, 85. 
 
 and so on a capias utlagatum, or capias pro fine, or habere facias possessio- 
 nem, 85. 
 
 so where forcible entry or detainer is found by inquisition, 85. 
 
 and also for levying penalty on statute, going in whole or in part to the 
 king, 85. ^ 
 
INDEX. '529 
 
 Officers of justice, homicide of — (continued.) 
 
 but in latter case, the officer, if demanded, must show warrant, and 
 
 suffer copy to be taken, 85. 
 bare suspicion of felony will not justify this extremity, 85. 
 unless there be warrant grounded on such suspicion, 85. 
 if there be a violent affray in a house, the doors of which are shut, and 
 
 the constable demand admittance, and be refused, he may break 
 
 open doors to keep the peace, 86. 
 also, if there be disorderly noise and drinking in inns, taverns, and 
 
 alehouses, at night, the constable demanding entrance, and being 
 
 refused, may break open doors to see and suppress the disorder, %&, 
 this proceeding is founded upon the necessity of the measure for the 
 
 public weal, 86. 
 in ciml cases the doctrine, that a man's house is his castle, is admitted, 86. 
 if officer find outward door open,' or it be opened from within, he may 
 
 break open any inward door to execute process, 86. 
 if house is the house of a stranger, 87. 
 in case where outer door is in part open, 87. 
 principle only extends to the dwelling-house, 87. 
 this personal privilege is confined to the occupier or any of his family, 
 
 not to a stranger, who can claim in it no benefit of sanctuary, 87. 
 where the doors of stranger are broken open, it must be at the peril of 
 
 finding the person sought there, 88. 
 unless under sanction of warrant, 88. 
 officer cannot even enter, if door be open, into the house of stranger, to 
 
 take goods of a defendant, but at his peril as to goods being found 
 
 there, 88. 
 sheriff cannot break inner doors of house of stranger upon suspicion that 
 
 defendant is there, to arrest him on mesne process, 88. 
 confined to arrests, in the first instance, 88. 
 where officers are locked in, they may justify breaking open the doors 
 
 to regain their liberty, 88. 
 whatever is breaking in burglary, is breaking in the present connexion, 
 
 89. 
 how far third parties may resist, 89. 
 
 persons killed in endeavouring to keep the peace, 91. 
 
 or in preventing treason or felony, 91. 
 
 if party arrested make no resistance, but others attempt a rescue, the 
 
 killing of the officers will be murder in them, but not in the party 
 
 arrested, 91. 
 where constable arrests without warrant, 91. 
 where friend or servant assists the party resisting arrest, 91. 
 stranger interfering, 92. 
 Officers of vessels, negligence by. See " Negligent Homicide," and also U. S. v. 
 
 Collyer, App. 483. 
 Old grudge. See " Provocation.^' 
 
 presumptions arising from. See "Evidence.'" 
 Opiate, death through undue administration of. See "Negligent Homicide." 
 
 Parent, neglect of duties towards child. See "Negligent Homicide," "Infanticide." 
 
 Passion. See " Provocation." 
 
 Peace officers. See " Officers of Justice," "Fugitives." 
 
 Peace, homicide in preservation of. See " Officers of Justice." 
 
 Physicians, negligence of, causing death. See "Negligent Homicide.' 
 
 Place, how to be averred. See "Indictment.'" 
 
 Pleas. See "Indictment." 
 
 Poison, evidence of. See " Evidence." 
 
 how to be set out in indictment. See " Indictment." 
 Policemen, homicide of and by. See " Officers of Justice." 
 Premeditation, evidence of. See " Evidmce." 
 Presumptions. See " Evidence." 
 Principals and accessaries in homicide. 
 Statutes, 153. 
 34 
 
 f>" 
 
530 INDEX. 
 
 Principals and accessaries in homicide. — ^continued.') 
 United States, 153. 
 Massachusetts, 153. 
 New York, 154. 
 Pennsylvania, 154. 
 Virginia, 155. 
 Principals in the first degree, 155. 
 
 Principal in the first degree is the actor or actual perpetrator of the fact, 
 
 155. 
 Not necessary that he be present, 155. 
 As where one lays poison purposely for another, though absent when 
 
 it is taken, he is principal in first degree, 155. 
 Not necessary that the act be done with his own hands, 155. 
 Sir William Courtney's case, 156. 
 
 If a child under age, orany other instrument excused from, responsi- 
 bility, be incited to commission of a felony, the incitor, though absent, 
 
 is principal in the first degree, 156. 
 But if the instrument be aware of the consequences of his act, he is 
 
 principal in the first degree, and the employer an accessary before 
 
 the fact. 
 All who are present, aiding and abetting, in cases of murder, are 
 
 criminals in the highest degree, 156. 
 but it is not every intermeddling that constitutes an aiding and abetting 
 
 to the murder, 156. 
 If several persons are present at the death of a man, they may be 
 
 guilty of different degrees of homicide, 156. 
 One indicted as principal cannot be convicted as an accessary before 
 
 the fact, 157. 
 Principals in the second degree, 157. 
 
 Those who are present aiding and abetting at the commission of the 
 
 fact, 157. 
 There must be participation in the act committed and presence, either 
 
 actual or constructive, at the time of its commission, 157. 
 Although a man be present, if he take no part, and do not act in concert, 
 
 he will not be a principal in second degree merely because he did 
 
 not endeavour to prevent the felony, or apprehend the felon, 157. 
 It is not necessary, however, to prove that he actually aided in the 
 
 commission of the act, 157. 
 If principal be not liable under our laws, another cannot be charged 
 
 merely for aiding and abetting him, unless he do acts himself which 
 
 render him liable as principal, 157. 
 Any participation in felonious plan, if there be constructive presence, 
 
 makes principal in second degree, 157. 
 Act must be the result of the confederacy, 157. 
 On a charge of aiding and abetting, it is necessary to prove knowledge 
 
 of intent of principal, 157. 
 In duelling, in strictness, both the seconds are principals in the second 
 
 degree. 
 But all present at a prize fight are principals in the breach of the peace, 
 
 158. 
 One encouraging another to commit suicide, and present while he does 
 
 so, is principal in (he murder, 158. 
 Whether the advice was the operative cause of the suicide appears to 
 
 be immaterial, 158. 
 There must be presence, either actual or constructive, 158. 
 He need not be actually present; if near enough to afford assistance, 
 
 and intending to do so, he is constructively present, 158. 
 Persons not sufficiently near to give assistance are not principals, 158. 
 Presence during the whole transaction not necessary, 1 59. 
 All who assemble together with intent to commit a trespass, the execu- 
 tion of which involves a felony, and are present at the execution of 
 
 it, and abetting it, are guilty as principals in the felony, 159. 
 ■Whether the deceased fell by the hand of the accused ui particular 
 
 or otherwise is immaterial, 160. 
 
INDEX. 531 
 
 Principals and accessaries in homicide — (continued.) 
 
 Malice in such killing is implied by law, 160. 
 
 The distinction between principals in the first and second degree, has 
 been called a distinction without a difference; this is only so where 
 the punishment is the same for both divisions, 160. 
 
 But where, by statute, the punishment is diflerent, they must be in- 
 dicted specially, 160. 
 
 If the actual perpetrator escape or die, those present and abetting may 
 be indicted as principals, 161. 
 
 By ancient law, principal in second degree could not be tried until the 
 principal had been convicted and oudawed, 161. 
 
 Such no longer the law, 161. 
 
 Principal in second degree may be convicted, though party charged as 
 principal in first degree be acquitted, 161. 
 
 Anciently the person giving the fatal stroke was considered as the 
 principal, and those present assisting only as accessaries, yet it has 
 long been settled that those present aiding and abetting are equally 
 principals, 161. 
 
 It. is competent for prosecution to offer confession of principal in first 
 degree, 162. 
 Accessaries before the fact, 162. 
 
 An accessary before the fact is one who, though absent at the time of 
 the commission of the felony, doth yet procure, counsel, command, 
 or abet another to commit such lelony, 162, 
 
 The word "command" means, where one, having control over another, 
 orders a thing to be done, 162. 
 
 To make a man accessary he must have been absent at time of com- 
 mission of the act, 163. 
 
 If present, either actually or constructively, he is principal, 162. 
 
 Accessary is liable for all that ensues upon his command, counsel, or 
 procurement, 162. 
 
 If different means from those commanded be used, yet is accessary 
 liabl«, 162. 
 
 The procurement may be either direct or indirect, 162. 
 
 Concealment of felony to be committed will not constitute this offence, 
 163. 
 
 Nor will tacit acquiescence or bare permission, 163. 
 
 If procurer repent before the felony be committed, and countermand 
 his order, he will not be accessary, 163. 
 
 So if he advise one crime and principal comrriit another, 163. 
 
 if the' crime committed be not the direct and immediate effect of the 
 act commanded, procurer cannot be deemed accessary to the crime, 
 163. 
 
 But if the crime committed be the same in substance with that com- 
 manded, and vary only in circumstantial matters, procurer is still 
 accessary, 163. 
 
 At common law, conviction of principal must precede that of accessary, 
 163. 
 
 In Massachusetts, an accessary in a capital case cannot be tried at com- 
 mon law without his own consent, even where principcd has died 
 before conviction, 164. 
 
 But where there are two principals, one of whom is convicted and the 
 other dead, he must answer, 164. 
 
 Conviction of principal is prima facie evidence of his guilt, 164. 
 
 The receiver of stolen goods, knowing them to be stolen, can be tried 
 before or without conviction of principal, 164. 
 
 In general, however, the common law remains unchanged, 164. 
 
 Where principal and accessary are tried together, an<l principal pleads 
 otherwise than general issue, accessary not bound to answer until 
 principal's plea be determined, 164. 
 
 An accessary cannot take advantage of an error in the record against 
 the principal, 165. 
 
 In South Carolina, it was held, that it was not necessary at common 
 
532 INDEX. 
 
 Principals and accessaries in homicide — {continued.') 
 
 law, in an indictment against accessary, to set out conviction or exe- 
 cution of principal, 165. 
 
 In Tennessee, held proper to sentence an accessary to same term of 
 years as principal, 1 65. 
 
 The indictment must state the offence committed with as much parti- 
 cularity as in indictment of principal, 165. 
 
 Under the Criminal Code of Illinois, an accessary maybe indicted and 
 convicted as principal, 165. 
 
 If felony is not committed, accessary not liable ; but may be convicted 
 for the attempt as a substantive misdemeanor, 165. 
 
 Not necessary that accessary originate the design, 166. 
 Accessaries after the fact, 166. 
 
 An accessary after the fact is one who, knowing a felony to have been 
 committed, receives, relieves, comforts, or assists the felon, 166. 
 
 The felony must be completed, 166. 
 
 The defendant must know that the felon is guilty, 166. 
 
 Doubtful whether implied notice is sufficient, 167. 
 
 The only relation which excuses harbouring a felon is that of husband 
 and wife, 167. 
 
 Accessary not restricted to proof of facts that were not shown on trial 
 of principal, 167. 
 
 In New York, original minutes of Court are proper evidence against 
 an accessary before the fact, 167. 
 
 But rough minutes not approved by the Court. Note, 167. 
 Private persons aiding or opposing officers of justice, homicide by, 71. 
 Prize-fighters, death caused by. See ^^ Negligent Homicide." 
 Provocation. 
 
 1st. Words, gestures, and other light provocations, 168. 
 (1.) Where the intent is to kill. 
 
 No provocation can excuse or justify; the most it can do, is to render 
 the offence manslaughter, 168. 
 
 Words of reproach will not free from guilt of murder, 169. 
 nor provoking gestures, without an assault, 169. 
 
 Intent to be drawn from weapon used, 169. 
 
 It is proper to instruct the jury, that they must consider the weaporj 
 used, as well as the degree of deliberation in the question how far 
 the provocation sufficed, 169. 
 
 Where an assault is made, the crime will be reduced to manslaughter, 
 if the killing be in the heat of blood, occasioned by the provoca- 
 tion, 170. 
 
 Words of menace of bodily harm, not sufficient, 170. 
 
 If A. give indecent language to B., and B., thereupon, strike A., but not 
 mortally; and then A. strike B. again, and then B. kill A.; it seems that 
 this is manslaughter, 170. 
 
 Selfridge's case, commented on, 171. 
 
 A man attacked by another, under circumstances denoting an intent 
 to kill or do great bodily harm, may lawfully kill assailant, provided 
 he use all the means in his power otherwise to escape, 171. 
 
 Where the attack is so violent and sudden, that he cannot retreat with- 
 out danger, he may instantly kill his adversary without retreating at 
 all, 171. 
 
 Where there is reasonable ground to believe that there is a design to 
 destroy life or commit a felony on the person, killing the assailan~t will 
 be e.\cusable homicide, although it should afterwards appear that no 
 felony was intended, 171. 
 
 Defendant cannot prove threats against himself, without proving know- 
 ledge of them before the killing, 175. 
 Where the intent is only to chastise, 175. 
 
 It must appear that the punishment was not brutally violent, nor greatly 
 disproportionate to the offence, and the instrument not likely to en- 
 danger life, 175. 
 
 Where a deadly weapon is used, the intent to kill is presumed, 176. 
 
INDEX. 633 
 
 Provocation — (continued.') 
 
 Whether the instrument was improper; and the probable intent was to 
 
 kill, is to be gathered from the circumstances of the case, 176. 
 Throwing a stake at deceased, and striking him on the head, 176. 
 Striking person with broomstaff and killing him, 176. 
 Where deceased was tied to horse's tail, and then beaten, upon which 
 
 the horse ran away, 176. 
 Beating trespasser on defendant's land, 176. 
 Where party threw pickpocket into a pond, whereby he was drowned. 
 
 Dishonour, 171. 
 
 Cooling time, 177. 
 
 Whether the homicide be murder or manslaughter, depends upon whe- 
 ther it was committed in the first transport of passion or not, 177. 
 Where a man finds another in the act of adultery with his wife, 177. 
 The killing of adulterer deliberately and upon revenge, is murder, 177. 
 Cooling time, and herein of degree, 179. 
 
 No matter what the provocation, if there have been sufficient time for 
 
 the passions to subside, and reason to interpose, the homicide will 
 
 be murder, 179. 
 If husband kill adulterer deliberately and upon revenge, the provoca- 
 tion will not alleviate the guilt, 179. 
 Where a man killed another, who had beaten his son, the day before, 
 
 179. 
 The provocation must be recent and strong, and the prisoner, at the 
 
 moment, not master of his own understanding, 179. 
 Where parties fight upon sudden quarrel, 179. 
 Where they appoint to fight another day, or even the same day after 
 
 such an interval that the passiojis might have subsided, 179. 
 To mitigate homicide in second combat by what occurred at previous 
 
 one; both must be considered as one combat; or the first, a sufficient 
 
 sudden provocation for the second, 180. 
 Where party has retreated, and is secure, he has no right to return 
 
 armed, and voluntarily engage in a new conflict, 180. 
 If there be sufficient cooling time for passion to subside, and reason to 
 
 interpose, it is deliberate revenge, and not heat of blood, and ac- 
 cordingly amounts to murder, 181. " 
 Law assigns no limit to cooling time; each case must depend on its 
 
 own circumstances, 181. 
 Case of Major Oneby, 181. 
 If, between the provocation and the mortal blow, the prisoner fall into 
 
 other discourse, or pursue any other business not connected with his 
 
 passion, it is reasonably presumed that reason has interposed, and 
 
 such killing will be murder, 182. 
 Thought contrivance and design shown by prisoner, 182. 
 Proper question is not whether the suspension of reason continued 
 
 down to the mortal stroke, but did the prisoner cool, or was there 
 
 time for a reasonable man to have cooled? 185. 
 The supposition in law is, that a state of violent exasperation is caused, 
 
 which produces a temporary suspension of reason, and excludes the 
 
 presumption of malice, 185. 
 Trespass, 185. 
 
 Bare trespass, not against dwelling-house, not sufficient provocation to 
 
 warrant the use of a deadly weapon, 185. 
 And this, though otherwise such trespass could not be prevented, 185. 
 Intent of the party, where instrument is not likely to kill, material, 185. 
 Where death ensues by the act of one in an unlawful design, without 
 
 intent to kill, it is murder or manslaughter, as the intended ofience 
 
 was felony or misdemeanor, 186. 
 Party has no right to put another out of his house by force, till after 
 gentler means fail, 186. 
 Blows, 
 
 (1.) Where the parlies are equal, 186. 
 
534 INDEX. 
 
 Provocation — (^continued.) 
 
 If it be resented immediately in the lieat of blood upon such provoca- 
 tion, it will be manslaughter, 186. 
 
 An unintentional and trivial assault, no palliation, 186. 
 
 In a sudden and equal quarrel, it is immaterial by whom first blow is 
 struck, 188. 
 (2.) Where there is a disparity in strength or weapons, 189. 
 
 Trivial provocation no extenuation, 189. 
 
 Violent acts of resentment bearing no proportion to the provocation, in- 
 dicate malice, 189. 
 
 In killing a woman or child, for a slight blow, the provocation no jus- 
 tification, 190. 
 
 Where disparity exists, as to means of attack and defence, provocation 
 no defence, if undue advantage be taken, 191. 
 
 Where persons fight on fair terms with fists, and blows pass, not likely 
 to cause death, it is manslaughter, 192. 
 
 And where blows pass, and after an interval, a party draws in heat of 
 blood, a deadly weapon, it is manslaughter, 192. 
 
 But if party enter the contest unduly armed, and fight with undue ad- 
 vantage, though blows pass, it is murder, 192. 
 
 If, after an interchange of blows, one of the parties, without such inten- 
 tion at commencement of the affray, kills with a deadly weapon 
 hastily snatched up, it will be only manslaughter, 192. 
 
 But if a party uses from the beginning a deadly weapon, without the 
 knowledge of the other; or if he prepares deadly weapon so as to 
 have the power to use it, the killing will be murder, 192. 
 (3.) Where the intent is to kill, 194. 
 
 The weapon must be taken into consideration, 194. 
 
 If deadly weapon is used, the intent to kill will be inferred, and the 
 provocation must be great, 194. 
 
 There must be a reasonable proportion between the provocation and 
 the weapon used, 195. 
 
 If a strong man attacks a weak one, though no weapon be used, if, 
 after much injury by beating, the violence is still continued, question 
 whether this does not show brutality, and a purpose to kill; and if so, 
 it is murder, 195. 
 
 If persons act together, with common intent, every act done in fur- 
 therance of that intent is, in law, done by all, 195. ^ 
 
 Blow must be struck on immediate provocation to reduce the crime to 
 manslaughter, 196. 
 
 If one seek another, and fight him with intent to stab him, it will be 
 murder, no matter what provocation, 196. 
 
 It'here two persons, who have formerly fought on malice, and are af- 
 terwards apparendy reconciled, fight again on a fresh quarrel, the 
 law will not presume the existence of the old grudge, 196. 
 ( t.) Where the intent is to chastise, to determine the intent, the na- 
 ture of the wound is a proper subject for consideration, 196. 
 
 Where party struck deceased with beer pot, making a wound about a 
 quarter of an inch deep, not apparently dangerous, of which de- 
 ceased died, held manslaughter, 197. 
 
 (5.) Where mortal blow is deliberately given, after deceased is dis- 
 armed or helpless, 197. 
 
 Where a party hold another prostrate and helpless, the killing will be 
 murder, and a prior blow will not mitigate the crime, 197. 
 
 In such case the act is so wilful and deliberate, that nothing will justify 
 it, 197. 
 (6.) Where the attack is sought by the party killing. 
 
 The plea of provocation will not avail in any such case, 197. 
 
 Even where there have been previous struggling and blows, if there is 
 malice, 197. 
 (7.) Where the revenge is cruel and unusual. 
 
 Nature of the instrument to be considered, 197. 
 (8.) Where there was an old grudge, 198. 
 
INDEX. 535 
 
 Provocation — (^continued.) 
 
 Where a deliberate purpose to kill is discovered, the provocation which 
 immediately precedes the act, is to be thrown out of the case, 198. 
 
 If, upon provocation, one deliberately denounce vengeance against an- 
 other, or the like, and afterward carry his threat into execution, he 
 will be guilty of murder, 198. 
 
 And that, although the law, apart from such evidence of express ma- 
 lice, might have imputed it to unadvised passion, 198. 
 
 Where one, who has privately and secretly armed himself, in expecta- 
 tion of an assault, and on such assault being made, kills the as- 
 sailant, though retreating, it is murder, 198. 
 
 Where parties had high words, and a challenge to fight had passed; 
 and three hours afterwards the defendant lenewed the challenge, 
 which was accepted, which resulted in the death of other party, it 
 was held murder, 199. 
 
 Where malice in the slayer is ascertained, its continuance to the fatal 
 act, is presumed; unless repelled by evidence, 199. 
 
 \A'here adversary intercepts one upon his lawful road, and in his law- 
 ful business, and he accept the fight, the law will not presume the 
 killing to have been on the alicient grudge, but upon the insult given 
 by stopping the way, and it will be manslaughter, 199. 
 
 If one seek another, under pretence of fighting, to stab him, if death 
 ensue, it will be murder, no matter what provocation, for the malice 
 is express, 199. 
 
 If the old quarrel be reconciled, and afterwards A. and B. fall out on 
 new cause, and A. kills B., this is not murder, 200. 
 
 Otherwise, if reconciliation be pretended, 200. 
 
 In all cases of slight provocation, if it may be reasonably collected 
 from the weapon or other circumstances, that the intent was to kill 
 or do great bodily harm, it will be murder, 201. 
 (9.) Where a third party interferes in the combat of others, 201. 
 
 "Where such interference is from malice, and not from mere wanton- 
 ness, it will be murder, if death ensue, 201. 
 
 Where third party interferes from hot blood, it is manslaughter, 201. 
 
 If, when party has retreated as far as he can. his servant kill the as- 
 sailant, this is homicide se defendendo, 202. 
 
 But if master had not retreated as far as he could, it would have been 
 manslaughter in the servant, 202. 
 6th. Restraint or coercion. 
 
 Illegal restraint, under colour of process, will reduce the offence to 
 manslaughter, 203. 
 
 This holds where a man is injuriously restrained of his liberty, as stand- 
 ing at debtor's door with drawn sword, till bailiff come to arrest, 203. 
 
 So where sergeant put a common soldier under arrest, and no autho- 
 rity appeared in the sergeant, 203. 
 
 Quickness, evidence of. See '-Evidence.'' 
 
 how far essential to constitute abortion a misdemeanor, 390-39], 
 392-393. 
 
 Racing, death by. See "Negligent Homicide." 
 Recklessness, homicide in consequence of. See "Homicide." 
 Rescue, homicide in prevention of. See " Officers of Justice." 
 Residence of defendant, how to be averred. See "Indictment." 
 Restraint, when a sufficient provocation. See " Provocation." 
 Revenge, homicide from. See "Provocation." 
 Riding, negligence in. See "Negligent Homicide." 
 Riotous homicide. 
 
 General law of riots, 344. 
 
 When riot merges in treason, 344. 
 
 General limits of treason, 344-345. 
 
 Responsibility of parties who, though not engaged in overt act, are yet 
 present in the assembly, 345. 
 
536 INDEX. 
 
 Riotous homicide — (^continued.) 
 
 Joint responsibility of rioters, 345. 
 
 Collisions of two bands of men, 3-17. 
 
 How far provocation affects the degree in riotous homicide, 350. 
 
 Hot blood, 350. 
 
 Cooling time, 351. 
 
 Public wrong, 352. 
 
 Killing third parties, 353. 
 
 Grade of offence when homicide occurs in a riot, 352-353. 
 (See Appendix, 460.) 
 
 Sailor's duty in shipwreck. See "Shipwreck." 
 Schoolmaster, improper correction of child, death through, 129. 
 ■Seditious meetings. See " Riotous Homicide." 
 Self-defence. See " Excusable Homicide." "Provocation." 
 Self-murder, 98. 
 
 accessaries to, 98. 
 advice or assistance in, 98. 
 where two agree to kill themselves, 98. 
 evidence of See " Evidehce." 
 Self-preservation in shipwreck. See " Shipwreck." 
 Selfridge's case. See Appendix, 417. 
 
 commented on, 170-175, 213-214. 
 Servant aiding master, homicide of, 42. 
 
 interfering to resist arrest, 91. 
 Ship's officers, homicide by, 71. See " Officers of Justice." 
 Shipwreck, self-preservation in. 
 
 Upon the authority of Lord Bacon it has been held, that where two persons 
 being shipwrecked, and getting upon one plank, one of them, finding it 
 will not save both, thrust-the other from it, whereby he was drowned, it 
 is excusable homicide, 237. 
 Lord Hale doubts this; since a man cannot excuse the killing of another, 
 who is innocent, under a threat, however urgent, of losing his own life, 
 237. 
 Mr. East supports the opinion of Lord Bacon, 237. 
 
 In this country, the subject has been under the test of a judicial investiga- 
 tion, and definitely settled. (See Alexander W. Holmes' case,) 237. 
 New principle introduced into the case by Baldwin, J., 238. 
 In an emergency, where the life of sailor is of no more value than the life 
 of the passenger, it being the sailor's stipulated duty to save the passen- 
 ger's life at all hazards, the life of the passenger must be preferred, 238. 
 If, on the other hand, the fall crew was necessary for the management of 
 the vessel, the first reduction ought to take place from the ranks of the 
 passengers, 238. 
 The proper mode to determine the victim from the particular class, is by 
 
 ballot, 238. 
 Charge of Baldwin, J., in the Alexander Holmes' case, 238-239. 
 "The sailors and passengers are not in an equal position," 239. 
 "Two sailors may struggle with each other for the plank that can sustain 
 but one; but if the passenger is on it, even the law of necessity justifies 
 not the sailor who takes it from him," 239. 
 "The captain and such of the seamen as are necessary to the preservation 
 of the boat are not bound to draw lots, for unless these abide, all will 
 perish; but this privilege is founded upon reasons which must not be dis- 
 regarded ; the law does not favour him merely because he is a sailor, it 
 is as the instrument of common preservation," 240. 
 "When the reason of the exemption ceases, the supernumerary sailor stands 
 without any privilege," 240. 
 Slave, master obliged to care for, when sick, 128. 
 Slavery, how affecting homicide, 286. 
 
 Homicide of slave by white person, 286. 
 
 The wilful and deliberate killing of a slave, murder, 286. 
 
 Even though by his master, 286, 287. 
 
INDEX. 537 
 
 Slavery, how affecting homicide — (^continued.) 
 
 Difference in rule of provocation between whites and blacks, 288, 289. 
 
 HoKiicide of master, or other free person, by slave, 288. 
 
 For a slave to kill his master when correcting hira is murder at common 
 
 law, 297. 
 Where a white man inflicts severe blows on a slave over whom he has no 
 authority, and the latter at the instant kills the assailant, the offence is 
 only manslaughter, 303. 
 Somnambulism as a defence, 317. 
 Steam vessels, negligence in navigating. See " Negligent Homicide." 
 
 See also U. S. v. CoUyer, Appendix, 483. 
 Street walkers, nomicide of, 82. ry( jf- I 
 
 Strangers, killing by mistake, 42, 353, 362, 363. ^ «'J».^ ,/A j.'2^.i.,,^ Ai,., , ,, , , 
 
 Third Parties, killing by mistake, 42, 353, 362-363. 
 Time and place, how to be averred. See "Indictment." 
 'Tipstaves, homicide of and by. See " Officers of Justice." 
 Treason. See " Riotous Homicide." 
 
 Trespass, how far a defence. See " Excusable Homicide." 
 how far a provocation. See "Provocation." 
 
 Vagrants, homicide of, 82. 
 
 Value of weapons of death, when to be averred. See "Indictment." 
 Variance between pleading and evidence. See "Indictment." 
 Verdict, defendant may be convicted of manslaughter on indictment for murder, 
 284. 
 Whether he may be convicted of assault and battery under same, quare^ 
 284. 
 
 Wantonness causing death. See "Negligent Homicide." 
 Warrant, effect of defects in, or want of, upon arrests, 58-71. 
 
 See " Officers of Justice." 
 Weapon, presumptions to be drawn from. See "Evidence." "Frovocition." 
 
 evidence of. See "Evidence." 
 Wife, death of, by neglect. See "Negligent Homicide." 
 Words, how far a provocation. See " Provocation." 
 Workmen, negligence by, causing death. See "Negligent Homicide." 
 Wounds, presumptions to be drawn from. See "Evidence." 
 
 THE END. 
 
 35