CHAPTER XXXI. HOMICIDE, AS TO THE INDICTMENT FOR MANSLAUGHTER AND THOSE PARTS OF THAT FOR MURDER WHICH ARE THE SAME IN BOTH. $ 195, 496. Introduction. 497-500. Historical and General View, 639. Statutory Changes of Rules. § 495. Divisions of Subject. For the sake of clearness, and for avoiding a chapter inconveniently long, the discussions of the procedure in felonious homicide will here be separated into sev eral chapters. § 496. How this Chapter divided. We shall divide this chapter into, I. Historical and General View; II. The Indictment in Outline ; III. Specific Questions ; IV. Where there is no ; Assault or Battery ; V. Statutory Changes of the Common-law Rules. I. Historical and General View. § 497. Changes in Law - (English). - In order adequately to ( comprehend the form of the indictment for a felonious homicide, we should bear in mind the early as well as the altered law of England, whereof the latter became common law with us. Also, American. — Since what we are inquiring after is the indictment of to-day, in our own country and State, we should not overlook such statutes and judicial decisions of our own as have modified the English forms. As to the § 498. English (23 Hen. 8). — Prior to 1531, when the statute of 23 Hen. 8, c. 1, § 3, was passed, there was in the mother country only one form of felonious homicide ; being that now | For the law of this offence, see Crim. Law, II. § 613 et seq. 212 ។ In a known as manslaughter, and necessarily including the malicious killings which have since been termed murder. All homicides of every sort now punishable subjected the offender nominally to death, but clergy was allowed for all. This statute took away clergy from such as were comunitted“ wilfully and of malice aforethought,” being those to which the name of murder was subsequently given. Upon this statute, the distinction between murder and manslaughter has ever since rested, both in England and this country. § 499. Effect of this Statute on Indictment for Murder. case which was to be excluded from clergy by force of this statute, — that is, in a case of murder, — the rule of pleading that , every fact pertaining to the punishment must appear in allegation + required the indictment to be expanded beyond its prior forms to cover the phrase "wilfully and of malice aforethought; else, says Hawkins, “ the offender shall have his clergy ; "5 in other words, the charge will be only manslaughter. But the conclusion “ against the form of the statute " is not necessary where the statute, instead of creating a new offence, modifies the punishment for an old one ;6 hence, though there are in the books distinctions which might create some doubt if the question were new, it became the established practice not to attach this conclusion to the indictment for murder. $ 500. American Changes. — We shall see, in the chapter after the next, that, precisely as the statute of 23 Hen. 8, c. 1, § 3, . 6 i Crim. Law, II. § 623-628. except.” And see, for explanations, ? I have stated the history thus shortly Crim. Law, II. $ 623-628. that it may be easily understood. The * In explanation of the way in which exact words of this statute are, “that no this statute became common law in our person nor persons which hereafter shall States, consult the second edition of this happen to be guilty after the laws of this volume, $ 500, — the contents of which land for any manner of petit treason, or have given place to other matter in this for any wilful murder (the term murder ellition. denoting, at this period, any felonious · Vol. I. § 77 et seq. bomicide) of malice prepensed, or for, &c. 5 2 Hawk. P. C. c. 33, § 25. (mentioning several other felonies) shall 6 Vol. I. § 595–599 ; Stat. Crimes, from henceforth be admitted to the bene. $ 167; 2 Hawk. P. C. c. 25, $ 4. tit of his or their clergy, but utterly be 7 2 Hawk. P. C. c. 33, § 25. excluded thereof, and suffer death in any person is to be ousted of nis clergy such manner and form as they should by virtue of any act of parliament, two have done for any the causes or offences things are always requisite, 1. That the abovesaid if they were no clerks; such as indictment bring the fact within the statbe within holy orders, that is to say, of ute, but need not conclude contra formum the orders of sub-deacons or above, only statuli," &c. 1 Hale P. C. 635. And see 2 Hale P. C. 190, 19). “ Where created, out of a part of what was punishable as felonious homicide, a higher form of the offence thereafter called murder, and left the rest to the new name of manslaughter, but to remain exactly what it was before ; so, in the greater number of our States, has a statute created out of murder a higher form known as murder in the first degree, comprehending a part of what was murder before, and left the rest to remain exactly what it was before the statute, under the new name of murder of the second degree. But the majority of our courts, less familiar with the principles of criminal pleading, have not seen, as clearly as did the English, how the change should affect the form of the indictment. II. The Indictment in Outline. $ 501. Manslaughter and Murder compared. We see, therefore, that the only difference between the indictments for manslaughter and for murder consists in the added allegations which the statute of 23 Hen. 8, c. 1, § 3, requires to distinguish the latter, to be treated of in the next chapter. Therefore the elucidations which follow in this chapter concern equally the indictment in murder and in manslaughter. $ 502. Form of Indictment. - A good outline of the indictment, omitting what is made necessary by 23 Hen. 8, c. 1, § 3, when the higher punishment for murder is sought, may be obtained by laying before us an old form for manslaughter. The needless parts will be pointed out as we proceed : “That A, late of, &c. (not having the fear of God before his eyes, but being moved and seduced by the instigation of the Devil), on, &c. (with force and arms), at, &c. 1. in and upon one B (in the peace of God and our said lord the king then and there being), in the king's highway there 2 feloniously and wilfully did make an assault, and 3. a certain cart (of the value of five pounds), 4. then and there drawn by two horses (of the value of ten pounds), which he the said A was then and there driving in and along the said highway, 5. in and against the said B feloniously did force and drive, and him the said B did thereby, then and there, throw to and upon the ground, and did then and there feloniously force and drive one of the wheels, to wit, the offwheel of the said cart, against, upon, and over the head of him the said B then lying upon the ground, and 6. thereby did then and there give to the said B, in and upon his head, one mortal fracture and contusion, 7. of which the said B 9. And so the jurors, &c., do say, that the said A him the said B in manner and by means aforesaid feloniously did kill and slay, against the peace, &c." 6 § 503. 'Seduced by Devil". unnecessary. "With Force and Arms" probably unnecessary at this day.3 Hawkins, speaking of the old law, tells us these words were adjudged needless in appeals of murder, “ because they are so fully implied.” 4 They would seem to be equally supplied by the other allegations in indictments for felonious homicide. $ 504. “In Peace,” &c. - not necessary. “Perhaps,” it is said - - "” in Coke's Reports, “ he was not in peace, but fighting and breaking the peace.” Yet to kill him without lawful occasion would be felony.' Still, on an indictment for the murder of a British subject abroad, the judges deemed that, assuming the fact of his being such subject to be required in allegation, the words we are considering sufficed. § 505. Of the Value, &c. The value of the instrument which caused the death, or the fact that it was of no value, used to be averred in the English indictments; because, says Lord Hale, it " is a deodand forfeited to the king, and the township shall be charged for the value, if delivered to them. But this seems not to be essential.” 9 In 1846, parliament abolished together " the forfeiture and the averment, by 9 & 10 Vict. c. 62. With us, deodands being unknown, 10 this allegation is seldom 11 seen, and certainly it is never necessary. 12 III. Specific Questions. $ 506. Substantive Averments. Under this sub-title we shall consider the substantive averments, in a case, like that in the abı ve form, of homicide by violence ; as to, – 1 3 Chit. Crim. Law, 783. 5 See Ib. c. 25, $ 90–93; 2 Hale P. C. 187 ; 3 Chit. Crim. Law, 751, note. 6 Vol. I. 502; ante, $ 57. 7 Hey don's Case, 4 Co. 41 a; Com. monwealth v. Murphy, 11 Cush. 472. 8 Rex v. Sawyer, 2 Car. & K. 101, 113, Russ. & Ry. 294. 9 2 Hale P. C. 185. 6 First. How to describe the Person slain o in and upon one B:" Name. — The name of such person must be given if known. That by which he is commonly known will suffice. In California, an error in the middle name was adjudged immaterial, but this might not be so held everywhere.* Júry. - It is for the jury to decide, under instructions from the court, whether the name averred is the true one.5 Addition Official Character Human Being. The addition, the official character,' or the fact that such person was a human being, 8 need not be averred. $ 507. Name unknown. If the name of the person slain is un known to the grand jury, the indictment may set forth this fact, and then it need not be further alleged. Thus, Bastard Child. Where, on an indictment in this form, the deceased was shown at the trial to have been the prisoner's bastard child, twelve days old, and not baptized, he being a Baptist, a verdict of guilty was sustained though the mother had said she would like its name to be Mary Ann, and she had once or twice called it by this name.10 $ 508. Continued Unnamed. — This case proceeded on the opinion of the jury that the child was unnamed. If its name had been alleged as Mary Ann, and the jury had been of opinion that it had acquired this name by reputation, the verdict would have been equally good. A bastard does not take the surname of its mother or its father, though by reputation it may acquire either. If it is baptized by a particular Christian name, by which afterward it is called and known, an indictment for its murder, describing it by this Christian name, with the mother's surname added, is not good ; unless it has further acquired such surname by actual 1 2 Hawk. P. C. c. 23, $ 78. Alabama court held, that, if the person People v. Freeland, 6 Cal. 96; Vol. slain is described as a free negro, this, I. $ 686. though not required, cannot be rejected, 3 People v. Lockwood, 6 Cal. 205. and it must be proved. Felix v. The 4 Vol. I. $ 683 and note, 685. State, 18 Ala. 720. 5 The State v. Angel, 7 Ire. 27. Boyd v. The State, 17 Ga. 194; 6 Vol. I. $ 671, 672, where it appears Wright v. The State, 18 Ga. 383. that the addition was required, even to 8 The State v. Stanley, 33 Iowa, 526. the name of a party, only by the Statute 9 Vol. I. § 495, 546-562; 2 Hawk. P of Additions, and that this statute did C. c. 23, $ 78; 1 East P. C. 345. not extend to third persons. A needless 10 Rex v. Smith, 1 Moody, 402, 6 Car addition may be rejected as surplusage. & P. 151. Vol. I. 8 687. On the other hand, the |