9 G. 4, c. 31, s. 8-Venue]-Enacts, that where any person being feloniously stricken, poisoned, or otherwise hurt upon the sea, or at any place out of England, shall die of such stroke, poisoning, or hurt in England, or being feloniously stricken, poisoned, or otherwise hurt at any place in England, shall die of such stroke, poisoning, or hurt upon the sea, or at any place out of England, every offence committed in respect of any such case, whether the same shall amount to the offence of murder or of manslaughter, or of being accessary before the fact to murder, or after the fact to murder or manslaughter, may be dealt with, inquired of, tried, determined, and punished in the county or place in England in which such death, stroke, poisoning, or hurt shall happen, in the same manner in all respects as if such offence had been wholly committed in that county or place.

Sect. 2-Petit Treason to be treated as Murder]-Enacts, that every offence which before the commencement of this act would have amounted to petit treason, shall be beemed to be murder only, and no greater offence; and all persons guilty in respect thereof, whether as principals or accessaries, shall be dealt with, indicted, tried and punished as principals and accessaries in murder.

Sect. 3--Punishment]—Enacts, that every person convicted of murder, or of being accessary before the fact to murder, shall suffer death as a felon. And every accessary after the fact to murder shall be liable, at the discretion of the court, to be transported beyond the

seas for life, or to be imprisoned, with or without hard labour, [ *404 ] in the common gaol or house of correction, for any term not exceeding four years.

6 & 7 W. 4, c. 30, s. 1-Period of Execution]-Recites and repeals stat. 9 G. 4, c. 31, s. 4, (which enacted that every person convicted of murder should be executed according to law on the next day but one after that on which the sentence should be passed, unless the same should happen to be Sunday, and in that case on the Monday following; and the body of every murderer should, after execution, either be dissected or hung in chains, as to the court should seem meet; and sentence should be pronounced immediately after the conviction of every murderer, unless the court should see reasonable cause for postponing the same; and such sentence should express not only the usual judgment of death, but also the time hereby appointed for the execution thereof, and that the body of the offender should be dissected or hung in chains, whichsoever of the two the court should order: Provided always, that after such sentence shall have been pronounced, it shall be lawful for the court or judge to stay the execution thereof, if such court or judge shall so think fit); and sect. 2enacts, that from and after the passing of this act, sentence of death may be pronounced, after conviction for murder, in the same manner, and the judge shall have the same power in all respects, as after convictions for other capital offences.

2 & 3 W. 4, c. 75, s. 16-Form of Judgment.]—Whereas an act was passed in the ninth year of the reign of his late Majesty, for consolidating and amending the statutes in England, relative to offences against the person, by which act it is enacted, that the body of every person convicted of murder shall, after execution, either. be dissected or hung in chains, as to the court which tried the offender shall seem meet; and that the sentence to be pronounced by the court shall express that the body of the offender shall be dissected or hung in chains, whichsoever of the two the court shall order; be it enacted that so much of the said last recited act as authorizes the court, if it shall see fit, to direct that the body of a person convicted of murder, shall, after execution, be dissected, be and the same is hereby repealed; and that in every case of conviction of any prisoner for murder, the court before which such prisoner shall have been tried shall direct such prisoner either to be hung in chains, or to be buried within the precincts of the prison in which such prisoner shall have been confined after conviction, as to such court shall seem meet; and that the

sentence to be pronounced by the court shall express that the body of such prisoner shall be hung in chains, or buried within the precincts of the prison, whichever of the two the court shall order.

4 & 5 W. 4, c. 26, s. 1—Murderers not to be hung in chains]—Recites stat. 9 G. 4, c. 31, ss. 4, 5; 2 & 3 W. 4, c. 75, s. 15, and enacts, that so much of the said recited act made and passed in the ninth year of the reign of his Majesty King George the Fourth, as authorizes the court to direct that the body of a person convicted of murder should, after execution, be hung in chains, and also so much of the said recited act made and passed in the second and third years of the reign of his present Majesty, as provides, that in every case of conviction of any pri[ *405] soner for murder, the court shall direct such *prisoner to be hung in chains, shall be and the same is hereby repealed.

Indictment for Murder, by Stabbing.

Middlesex, to wit:-The jurors for our lady the Queen upon their oath present, that J. S., late of the parish of B., in the county of M., labourer, not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, on the third day of August, in the ninth year of the reign of our sovereign lady Victoria, with force and arms, at the parish aforesaid, in the county aforesaid, in and upon one J. N., in the peace of God and our said lady the Queen then ard there being, feloniously, wilfully, and of his malice aforethought did make an assault; and that the said J. S., with a certain knife, of the value of sixpence, which he the said J. S. in his right hand then and there had and held, the said J. N., in and upon the left side of the belly, between the short ribs of him the said J. N., then and there feloniously, wilfully, and of his malice aforethought, did strike and thrust, giving to the said J. N., then and there, with the knife aforesaid, in and upon the said left side of the belly, between the short ribs of him the said J. N., one mortal wound of the breadth of three inches, and of the depth of six inches; of which said mortal wound the said J. N., from the said third day of August, in the year aforesaid, until the fifteenth day of the same month of August, in the year aforesaid, at the parish aforesaid, in the county aforesaid, did languish, and languishing did live; on which said fifteenth day of August, in the year aforesaid, the said J. N., at the parish aforesaid, in the county aforesaid, of the said mortal wound died: and so the jurors aforesaid, upon their oath aforesaid, do say, that the said J. S. the said J. N., in manner and form aforesaid, feloniously, wilfully, and of his malice aforethought, did kill and murder; against the peace of our lady the Queen,

her crown and dignity. As to the venue, see ante, p. 403. Upon this indictment the defendant may be acquitted of the murder, and found guilty of manslaughter. A defendant who is indicted for murder, but acquitted of that charge on the ground that he was not present when the fatal blow was given, though he had previously assaulted the deceased, cannot on that indictment be convicted of an assault, under the 7 W. 4 & 1 Vict. c. 85, s. 11, which applies only to assaults which are involved in the felony charged. Reg. v. Phelps, 2 Mood. C. C. 240; C. & Mar. 180: see Reg. v. M'Phane, Id. 212: Reg. v. Crumpton, C. & Mar. 597. But it seems that he may be convicted of an assault committed by him in the course of the transaction which is charged as the murder, although the defendant be acquitted of the murder on the ground that the death is not proved to have been the consequence of the defendant's acts on that occasion. Reg. v. Lewis, 1 C. & K. 419.

Felony, death. 9 G. 4, c. 31, s. 3. By stat. 2 & 3 W. 4, c. 75, s. * 16, the sentence must express that the body of the convict be buried within the precincts of the prison; but by stat. 6 & 7 W. 4, c. 30, s. 2, the sentence may be pronounced in the same manner, and the judge has the same power in all respects, as after conviction for other capital of fences. This latter provision would seem to empower the judge to direct the sentence to be recorded under stat. 4 G. 4, c. 48, s. 1, (ante, p. 251), see Reg. v. Hogg, 2 M. & Rob. 380, and would perhaps be held to repeal the provision applicable to *burying [ *406 ] within the precincts of the prison. Under the old law, where the judge, having mistaken the time of executon, called the defendant again to the bar and rectified it, it was holden by some of the judges that the statute was in this respect merely directory, and that the judge might order the defendant to be executed at any time within forth-eight hours; but all the judges were of opinion that a mistake in this respect might be rectified at any time during the assizes. R. v. Wyatt, R. & R. 230. But where the judge had omitted that part of the sentence which formerly related to dissection, it was doubted whether it was not an essential part of the sentence, and the defendant was pardoned. R. v. Fletcher, R. & R. 58. In R. v. Garside, 2 Ad. & Ell. 266, the sheriff of the city of Chester refused to execute the prisoners, who were removed by habeas corpus in the court of King's Bench, and executed by the marshal of the Marshalsea, assisted by the sheriff of Surrey. See 5 & 6 W. 4, c. 1, s. 1.

The offence of murder is not triable at any quarter sessions. 5 & 6 Vict. c. 38, s. 1, (ante, p. 69).

Evidence for the Prosecution.

In and upon one J. N.]-It must be proved that J. N. was the per

son killed, otherwise the defendant must be acquitted. (Ante, p. 30). If the name of the deceased be unknown, it should be stated so in the indictment.

Ib.

In the Peace of God and our said Lady the Queen]-This does not require proof. If the deceased, however, were an alien enemy, and killed in the actual heat and exercise of war, this is matter of justification, which may be proved on the part of the defendant. See 1 Hale, 433. But it is no matter either of excuse or justification, that the deceased was a Jew, an outlaw, or one attainted of felony or præmunire. Ib.

With a certain Knife, &c.]—It is not necessary to prove this strictly as laid: 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. R. v. Mackally, 9 Co. 67 a; Gilb. Ev. 231. And it may be observed, that, on an indictment for cutting, &c., with intent to murder, under the stat. 9 G. 4, c. 31, s. 12, it has been holden that the instrument or means by which the injury was inflicted need not be stated in the indictment, and if stated, do not confine the prosecutor to prove an injury by such means. R. v. Briggs, 1 Mood. C. C. 318: (see post, Sect. III.) But if 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 would be fatal; Ib.; 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 him divers mortal blows and bruises, of which he died, and it appeared in evidence that the death was caused 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 properly stated. [ *407] R. v. Thompson, 1 Mood. C. C. 139. *And the same where an indictment charged that the defendant struck the deceased with a brick, and it appeared that he knocked the deceased down with his fist, and that the deceased fell upon a brick, which caused his death. R. v. Kelly, 1 Mood. C. C. 113. Upon 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 occasioned by the wadding of the pistol; Bolland, B., Park and Parke, Js., held the indictment not proved. R. v. Hughes, 5 C. & P. 126. But if the indictment allege a death by one kind of poison, proof of a death by another kind of poison will support the indictment. Ib.; and see 2 Hale, 185, 115; 2 Hawk, c. 23, s. 84.