|
302 TRIAL OF JOHN W. WEBSTER.
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 result of both causes combined.
It may- perhaps be supposed, that, in the long and melancholy history of
criminal jurisprudence a precedent can be found for every possible mode in
which a
violent death can be caused: and it is safer to follow
precedents. It is true that these precedents are numerous and various but
it is not
true, that, amidst new discoveries in art and science and the powers of
nature, new
modes of causing death may not continually occur. The powers of ether and
chloroform are of recent discovery. Suppose a person should be forcibly or
clandestinely held, and those agents applied to his mouth till
insensibility and death
ensue. Though no such instance ever occurred before, the guilty agent could
not
escape.
Of course, Gentlemen, I do not mean to intimate that these supposed agencies
were used in the present instance, but allude to them simply by way of
illustration.
But, if such or any similar new modes of occasioning death may have been
adopted,
they are clearly within the law. The rules and principles of the common
law, just as
when applied to steamboats and locomotives, though these have come into
existence long since those principles were established, are broad and
expansive
enough to embrace all new cases as they arise. If, therefore, a homicide be
committed by any mode of death, which though practised for the first time,
falls
within these principles, and it is charged in the indictment with as much
precision
and certainty as the circumstances of the case will allow, it comes within
the scope
of the law and is punishable.
The principle is well stated in East's Pleas of the Crown, chap. 5, § 13:
"The
manner of procuring the death of another with malice is, generally
speaking, no
otherwise material than as the degree of cruelty or deliberation with which
it is
accompanied may in conscience enhance the guilt of the perpetrator; with
this
reservation, however, that malice must be of corporal damage to the party.
And
therefore working upon the fancy of another, or treating him harshly or
unkindly,
by which he dies of fear or grief, is not such a killing as the law takes
notice of. But
he who wilfully and deliberately does any act which apparently endangers
another 's
life and thereby occasions his death, shall, unless he clearly prove the
contrary, be
adjudged to kill him of malice prepense. This the author proceeds to
illustrate by a
number of remarkable and peculiar cases.
In looking at this indictment, we find that the first count, after the usual
preamble, charges an assault and a mortal wound by stabbing with a knife;
the
second, by a blow on the head with a hammer; and the third by striking,
kicking,
beating, and throwing on the ground.
The fourth and last count, which is somewhat new, it will be necessary to
examine more particularly. [Here the Chief Justice read the fourth count,
as in the
indictment, p. 2.]
The Court are all of opinion after some consideration, that this is a good
count
in the indictment. From the necessity of the case, we think it must be so,
because
cases may be imagined where the death is proved, and even were remains of
the
deceased are discovered and identified, and yet they may afford no certain
evidence
of the form in which the death was occasioned; and then we think it is
proper for
the jury to say that it is by means to them unknown.
We have already seen that a death occasioned by grief or terror cannot in
law
be deemed murder. Murder must be committed by an act applied to or
affecting the
person, either directly, as by inflicting a wound or laying poison; or
indirectly, as
by exposing the person to a deadly agency or influence, from which death
ensues.
Here the count charges an assault upon the deceased, (a technical term well
understood
|
