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LIBRARY OF THE

LELAND STANFORD JR. UNIVERSITY.

a 28,904

Entered according to Act of Congress, in the year one thousand eight hundred and fifty-three,
BY BANKS, GOULD & CO.

In the Clerk's Office of the District Court of the Southern District of New York.

PRINTED BY ELLIS BARNES & CO., LAW PRINTERS,
144 Nassau Street, N. Y.

1

PART II.

INDICTMENTS AND EVIDENCE IN PARTICULAR CASES.

I propose to arrange these indictments under the following heads: CHAPTER I. OFFENCES AGAINST THE PERSONS OF INDIVIDUALS. II. OFFENCES AGAINST THEIR REPUTATION.

III. OEFENCES AGAINST THEIR HABITATIONS.

IV. OFFENCES AGAINST THEIR PROPERTY, BY STEALING,

EMBEZZLING, CHEATING OR RECEIVING.

V. OFFENCES AGAINST THEIR PROPERTY, BY MALICIOUS

INJURIES.

VI. FORGERY.

VII. OFFENCES AGAINST THE QUEEN AND HER GOVERNMENT.

VIII. OFFENCES OF A PUBLIC NATURE.

IX. CONSPIRACY.

X. OFFENCES AFTER A FORMER CONVICTION.

XI. ATTEMPTS TO COMMIT OFFENCES.

CHAPTER I.

OFFENCES AGAINST THE PERSONS OF INDIVIDUALS.

SECTION I. HOMICIDE BY ACCIDENT, p. 216.

(a) The act must be lawful, p. 216.

(b) Without intent to do bodily harm, p. 217.

(c) Done in a proper manner, and with due caution, p. 218.

SECTION II. HOMICIDE IN FURTHERANCE OF JUSTICE, p. 221. (a) Upon arrest, &c. p. 222.

SECTION III. HOMICIDE IN DEFENCE OF SELF, FAMILY, OR PROPERTY, p. 223.

(a) Se defendendo, p. 223.

(b) Se et sua defendendo, p. 225.

SECTION IV. MANSLAUGHTER, p. 226.

(a) On provocation, p. 226.

(b) In case of sudden combat, p. 229.

SECTION V. MURDER, p. 236.

(a) In killing officers of justice, p. 236.

(b) In killing gamekeepers, p. 245.

(c) In impressing seamen, p. 248.

SECTION VI. PRINCIPALS AND ACCESSORIES IN HOMICIDE, p. 249. (a) Principals, p. 249.

(b) Accessories before the fact, p. 253.
(c) Accessories after the fact, p. 254.
(d) Verdict, &c., p. 254.

SECTION VII. ADMINISTERING POISON, p. 255.

VIII. ATTEMPTING TO ADMINISTER POISON, p. 258.

IX. STABBING, CUTTING, OR WOUNDING WITH INTENT TO
MURDER, p. 259.

X. STABBING, CUTTING, OR WOUNDING, WITH INTENT TO

DO GRIEVOUS BODILY HARM, p. 262.

XI. MISDEMEANOR IN STABBING, CUTTING OR WOUNDING, p.

267.

XII. INFLICTING GRIEVOUS BODILY HARM, p. 268.

XIII. DOING BODILY INJURY DANGEROUS TO LIFE, p. 269.
XIV. SHOOTING AT A PERSON WITH INTENT TO MURDER, p.

270.

XV. ATTEMPTING TO SHOOT AT A PERSON WITH INTENT TO

MURDER, p. 272.

XVI. SHOOTING, OR ATTEMPTING TO SHOOT, WITH INTENT TO
DO GRIEVOUS BODILY HARM, p. 274.

SEC. XVII. ATTEMPTING TO DROWN, p. 276.
XVIII. ATTEMPTING TO SUFFOCATE, p. 277.

XIX. ATTEMPTING TO STRANGLE, p. 277.

XX. SENDING ANY EXPLOSIVE SUBSTANCE TO A PERSON WITH
INTENT TO DO GRIEVOUS BODILY INJURY, p. 279.

XXI. THROWING ANY CORROSIVE FLUID AT OR ON A PERSON
WITH INTENT TO DO GRIEVOUS BODILY INJURY, P.
280.

XXII. ASSAULT AND BATTERY, p. 282.

XXIII. ASSAULT AND DOING BODILY HARM, p. 284.

XXIV. ASSAULT WITH INTENT TO COMMIT A FELONY, p. 285.
XXV. ASSAULTING A JUSTICE OF THE PEACE, &C., ON ACCOUNT
OF HIS PRESERVING WRECK, p. 286.

XXVI. ASSAULTING PEACE OFFICERS OR REVENUE OFFICERS, P.
287.

XXVII. ASSAULTING GAMEKEEPERS, p. 288.

XXVIII. ASSAULT TO PREVENT APPREHENSION, p. 290.

XXIX. ASSAULTING APPRENTICES OR SERVANTS, p. 290.

XXX. NOT PROVIDING APPRENTICES OR SERVANTS WITH NECES

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XXXIII. ADMINISTERING DRUGS, &C., TO PROCURE ABORTION, p.

295.

XXXIV. USING INSTRUMENTS TO PROCURE ABORTION, p. 296.
XXXV. CONCEALING THE BIRTH OF A CHILD, p. 297.

XXXVI. CHILD-STEALING, p. 299.

XXXVII. ABDUCTION OF A GIRL AGAINST HER WILL, FROM THE

MOTIVE OF LUCRE, p. 301.

XXXVIII. ABDUCTION OF A GIRL UNDER SIXTEEN YEARS OF AGE, p.

302.

XXXIX. PROCURING THE DEFILEMENT OF A GIRL UNDER AGE, p. 303.

LX. RAPE, p. 304.

(a) Principals in the second degree, p. 307.

XLI. ATTEMPT TO COMMIT A RAPE, p. 308.

XLII. SODOMY, p. 309.

XLIII. ATTEMPT TO COMMIT SODOMY, p. 310.

XLIV. BESTIALITY, p. 311.

XLV. CARNALLY KNOWING A GIRL UNDER TEN YEARS OF AGE, p. 311.

XLVI. CARNALLY KNOWING A GIRL BETWEEN THE AGES OF TEN

AND TWELVE, p. 312.

XLVII. INDECENT ASSAULT, p. 313.

MURDER.[1]

(a) Indictment.

The jurors for our Lady the Queen upon their oath present, in the year of our Lord

to wit. that A. B., on the

day of

Definition of murder.

The term murder or murther, is derived by Mr. Justice Blackstone, from the Teutonic word Moerda, which originally imported a hiding or concealment, and was, therefore, anciently used only for the secret killing of another by the hands of an assassin, 4 Bla. Com. 194, 5. But it seems to be more correctly traced to the Saxon term Morth, synonymous with Mors, to which the barbarous Latin term Murdrum and the French Meurdre, owe their origin, Jac. Dic. Murder. The offence, as it stands at the present day, is concisely defined by Lord Coke to be, "When a man of sound memory, and of the age of discretion, killeth any reasonable creature in verum natura, and under the king's peace, by malice prepense, or aforethought, either expressed by the party, or implied by law." 3 Inst. 47, 51. 1 East, P. C. 214.

To constitute murder: 1 The agent must be of sound memory and discretion-But this is no other than is necessary to constitute an indictable offence. An infant within the age of discretion is incapable of crime, Hawk. b. 1, c. 1, s. 1. But what age shall be regarded as sufficient to render a child responsible to the law, is not ascertained with so direct a precision. Under the age of seven years, indeed, it seems that no circumstances of mischievous discretion can be admitted to overthrow the strong presumption of innocence which is raised by an age so tender. 1 Hale, 27, 8. 4 Bla. Com. 23. During the interval between seven and fourteen, the infant is prima facie supposed to be destitute of criminal design; but this presumption diminishes as the age increases, and even during this interval of youth, may be repelled by positive evidence of vicious intention. 1 Hale, 27. 4 Bla. Com. 23. For a tenderness of years will not excuse a maturity in crime; and the maxim, in these cases, malitia supplet ætatem, is allowed to prevail; since the power of contracting guilt is measured rather by the strength of the delinquent's understanding, than by days and years, 4 Bla. Com. 23. Thus, children of thirteen, eight and ten years of age, have been executed for capital offences, because they respectively manifested a consciousness of guilt, and a mischievous discretion or cunning. 1 Hale, 26, note 26, 27. Fost. 72, and see Dalt. J. ch. 147. After the age of fourteen, an infant is on the same footing with those of the maturest years. 1 Hale, 25. In these cases, however, the evidence that the offender was doli capax, must be strong and clear beyond all doubt and contradiction. 4 Bla. Com. 24. 1 Russel, 1, et seq.; 1 Wheeler Cr. C. 231; Commonwealth v. M'Keager, 1 Ashmead R. 248; State v. Aaron, 1 Southard R. 231; Word v. Commonwealth, 3 Leigh R. 743.

An infant is personally liable to a prosecution for neglect of duty as a member of a company of militia. Winslow v. Anderson, 4 Mass. R. 376. An infant under the age of fourteen years may be indicted for an assault with intent to commit a rape, although the law presumes him incapable of committing a rape. Commonwealth v. Green, 2 Pick. R. 380. Con

tra, Rex v. Eldershaw, 3 Car. & Payne, 396.

Madness is another cause which may render a man incapable of crime, and where it amounts to a total perversion or absence of the intellectual faculties, is an excuse for any enormity which may be committed under its influence. 3 Inst. 6. But where there is only such a partial derangement as leaves the party free to act or to forbear in the particular case in question, or where he is guilty of the crime during a lucid interval, he will be equally liable to punishment with those who are perfectly sane. See Earl Ferret's case, 17 Harg. St. Tr. 478. Where, however, the mind labors under such a delusion, that though it discerns some objects clearly, it is totally deranged as to the objects of its attack, the party will be entitled to an acquittal. See this point, and indeed the whole subject, most ably argued and explained

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