said, in and upon one E. F., feloniously, wilfully and of his malice aforethought, did make an assault; and that the said C. D. then and there feloniously, wilfully and of his malice aforethought, did take the said E. F. into both the hands of him the said C. D., and did then and there feloniously, wilfully and of his malice aforethought, cast, throw and push the said E. F. into a certain pond there situate, wherein there was a great quantity of water; by means of which said casting, throwing and pushing of the said E. F. into the pond aforesaid, by the said C. D., in form aforesaid, he the said E. F., in the pond aforesaid, with the water aforesaid, was then and there choked, suffocated and drowned; of which said choking, suffocation and drowning, he the said E. F. then and there instantly died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said C. D., in manner and form aforesaid, him the said E. F. feloniously, wilfully and of his malice aforethought, did kill and murder.(a) (Conclude as in book 1, chapter 3).

Murder. By strangling.(b)

That E. W. K., late, &c., not having the fear, &c., but being moved, &c., on, &c., in and upon one J. D., in the peace, &c., feloniously, wilfully and of his malice aforethought, did make an assault, and that the said E. W. K. a certain rope about the neck of the said J. D. then and there feloniously and wilfully, and of his malice aforethought, did fix, tie and fasten, and that the said E. W. K. with the rope aforesaid, (him) the said J. D. then and there feloniously and wilfully, and of his malice aforethought, did drag, pull, choke, strangle and dislocate the neck; of which said dragging, pulling, choking, strangling and dislocation of the neck, he the said J. D. then and there instantly died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said E. W. K. in, &c., the said J. D. in manner and form aforesaid, feloniously and wilfully, and of his malice aforethought, did kill and murder, against the peace, &c.

Second count. By strangling and stabbing with unknown persons. And the jurors aforesaid, upon their oath aforesaid, do further pre

(a) 3 Chit. C. L. 768; Davis' Precedents 181.

(b) This indictment, with a little qualification in the first count, is the same with that sanctioned by the Supreme Court of North Carolina in State v. Haney, 2 Dev. 432. "It is lastly urged," said the court, that upon a critical construction of the indictment, it does not more appear, that Kimbrough dragged, pulled and choked Davis, than that Davis dragged, pulled and choked Kimbrough. However this may be upon the first count, I think no such objection as this appears on the second. In that count it is charged that Kimbrough made an assault upon Davis, and that Kimbrough placed a rope around Davis' neck, and that the said Kimbrough, by means of said rope, the said John Davis did choke and strangle; and the said Kimbrough, with a dagger, which he then in his hand held, the said John Davis, in and upon the belly of the said John Davis, did thrust and penetrate, giving to him the said John Davis, with the said dagger, in and upon the belly of him the said John Davis, a mortal wound, of which the said John Davis died on the next day; with a conclusion, that he the said Kimbrough, the said John Davis did kill and murder. Human ingenuity cannot make out of this, that it stands indifferent, whe ther Kimbrough or Davis was the actor in all and every act necessary to constitute mur. der, or which was the agent and which the sufferer, not only in the close of the drama, but in each and every act which led to the catastrophe."

The difficulty raised as to the first count is obviated by the insertion of "him" in the seventh line.

sent, that the said E. W. K. with divers other persons, &c., afterwards, to wit, &c., not having the fear, &c., in and upon the said J. D. in the peace, &c., feloniously, wilfully and of their malice aforethought, did make an assault, and that the said E. W. K. a certain rope about the neck of the said J. D. then and there feloniously, wilfully and of their malice aforethought, did fix, tie and fasten; and that the said E. W. K. by means of said rope, him the said J. D. then and there feloniously, wilfully and of his malice aforethought, did drag, pull, choke and strangle; and that the said E. W. K. with a certain drawn dagger, being part of a walking-cane, &c., which he the said E. W. K. in his right hand then and there had and held, him the said J. D. in and upon the forepart of the belly and divers other parts of the body of the said J. D. then and there feloniously, wilfully and of his malice aforethought, did strike, thrust and penetrate, giving to the said J. D. then and there, with the dagger aforesaid, in and upon the aforesaid forepart of the belly and divers other parts of the body of the said J. D., several mortal wounds of the breadth of one inch, and of the depth of six inches; as well of which pulling, dragging, choking and strangling, as also of the striking, thrusting and penetrating, &c., he the said J. D. from, &c., until, &c., did languish, &c., on which, &c., the said J. D. in, &c., of the pulling, dragging, choking and strangling, as well as of the mortal wounds inflicted as aforesaid, died; and that divers other persons, &c. And so the jurors, &c., do further say, that the said E. W. K. and divers other persons, the said J. D. then and there in manner and form last aforesaid, feloniously, wilfully and of their malice aforethought, did kill and murder, against the peace, &c.

Murder. By poisoning with arsenic.(c)

That Robert Sandys, late of the parish of Stockport in the county of Chester, labourer, and Ann Sandys, otherwise called Ann Devannah, late of the same place, not having the fear of God before their eyes, but being moved and seduced by the instigations of the devil, wickedly contriving and intending one Elizabeth Sandys with poison, wilfully, feloniously and of their malice aforethought to kill and murder, on the twenty-third day of September, in the fourth year of the reign of our sovereign lady Victoria, with force and arms, at the parish aforesaid, in the county aforesaid, feloniously, wilfully and of their malice aforethought, a large quantity of a certain deadly poison called white arsenic, did give and administer unto the said Elizabeth Sandys with intent that she should take and swallow down the same into her body (they then and there well knowing the said white arsenic to be a deadly poison), and the said white arsenic so given and administered unto her by the said Robert Sandys and Ann Sandys, otherwise called Ann Devannah as aforesaid, the said Elizabeth Sandys did then and there take and swallow down into her body;

(c) R. v. Sandys, 1 C. & M. 345. A verdict of guilty was supported on this form, it being held that the allegation "and of the said mortal sickness died," was good without stating that the deceased died of the poisoning. See another form on p. 57.

by reason and by means of which said taking and swallowing down the said white arsenic into her body as aforesaid, the said Elizabeth Sandys became and was mortally sick and distempered in her body, of which said mortal sickness and distemper the said Elizabeth Sandys from the said twenty-third day of September, in the year last aforesaid, until the twenty-fifth day of the same month, in the same year, at the parish aforesaid, in the county aforesaid, did languish and languishing did live, on which said twenty-fifth day of September, in the year aforesaid, at the parish aforesaid, in the county aforesaid, the said Elizabeth Sandys of the said mortal sickness died; and so the jurors aforesaid upon their oath aforesaid, do say that the said Robert Sandys and Ann Sandys, otherwise called Ann Devannah, the said Elizabeth Sandys in manner and form aforesaid, feloniously, wilfully and of their malice aforethought, did kill and murder, against the peace of our lady the queen, her crown and dignity.

Murder. By burning a house where the deceased was at the time.(d)

That S. C. late, &c., not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, on the fifth day of April, one thousand eight hundred and thirty, with force and armis, &c., at the township aforesaid, in the county aforesaid, and within the jurisdiction of this court, did wilfully and maliciously burn a certain dwelling house of one R. S., there situate, and that one J. H., of the township and county aforesaid, within the jurisdiction aforesaid, in the said dwelling house then and there being, before, at and during the said burning, and was then and there, by reason and means of the said burning so committed and done by the said S. C., in manner aforesaid, mortally burned and killed; and so the jurors aforesaid, upon their oaths aforesaid, do say, that the said S. C., him the said J. H., in manner and form aforesaid, feloniously and wilfully, and of his malice aforethought, did kill and murder, against the form of the statute in such case made and provided, and against the peace of this state, the government and dignity of the same.

Second count. Averring a preconceived intention to kill.

And the jurors aforesaid, upon their oaths aforesaid, do further present, that the said S. C., not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, and of his malice aforethought contriving and intending one J. H., there being in a certain dwelling house of one R. S., situate in the township and county aforesaid, feloniously, wilfully and of his malice aforethought, to burn, kill and murder, on the same day and year aforesaid, with force of arms, at the township aforesaid, in the county and within the jurisdiction aforesaid, did wilfully and maliciously set fire to and burn the said dwelling house, the said J. H. then and there, before, at and during the said burning, being in the said dwelling house, he the said S. C., then and there well knowing the said J. H. to be in the said dwelling house, and that he the said S. C., in so setting fire to and burning the said dwelling house as afore

(d) State v. Cooper, 1 Green 362; see postea, book vi.-" Plea of auterfois acquit," for the subsequent action of the court on this indictment.

said, then and there feloniously, wilfully and of his malice aforethought, did mortally burn the body of the said J. H.; by means of which said mortally burning of the body of the said J. H., as aforesaid, he, the said J. H., on the day and year aforesaid, at the township aforesaid, in the county and within the jurisdiction aforesaid, did die; and so the jurors aforesaid, upon their oaths aforesaid, do say that the said S. C., the said J. H., in manner and form aforesaid, feloniously, wilfully and of his malice aforethought, did kill and murder, against the form, &c.

Murder. By starving.(e)

Middlesex, to wit: The jurors for our lady the queen, upon their oaths present, that J. S., late of the parish of B., in the county of M., carpenter, not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, and of his malice aforethought, contriving and intending one J. N., then being an apprentice to him the said J. S., feloniously to starve, kill and murder, on the third day of August, in the ninth year of the reign of our sovereign lady Victoria, and on divers days and times between that day and the twenty-eighth day of the same month, in the same year, with force and arms, at the parish aforesaid, in the county aforesaid, in and upon one J. N., his apprentice as aforesaid, in the peace of God and of our said lady the queen, then and there being, feloniously, wilfully and of his malice aforethought, did make divers assaults; and that the said J. S., on the said third day of August, in the year last aforesaid, at the parish aforesaid, in the county aforesaid, him the said J. N., in a certain room in the dwelling house of him the said J. S. there situate, feloniously, wilfully and of his malice aforethought, did secretly confine and imprison, and that the said J. S., from the said third day of August, in the year last aforesaid, until the twentyeighth day of the same month, in the same year, at the parish aforesaid, in the county aforesaid, feloniously, wilfully and of his malice. aforethought, did neglect, omit and refuse to give and administer, and to permit and suffer to be given and administered to him the said J. N., sufficient meat and drink necessary for the sustenance, support and maintenance of the body of him the said J. N.; by means of which said confinement and imprisonment, and also of such neglecting and refusing to give and administer, and to permit and suffer to be given and administered to the said J. N., such meat and drink as were sufficient and necessary for the sustenance, support and maintenance of the body of him the said J. N., he the said J. N., from the said third day of August, in the year last aforesaid, until the twentyeighth day of the same month, in the same year, at the parish aforesaid, in the county aforesaid, did languish, &c. &c.

(e) Arch. C. P. 405. If the indictment be for refusing to supply the apprentice with necessaries, it must state that the apprentice was of tender years unable to provide for himself; Reg. v. Friend, R. & R. 20; Reg. v. Marriott, 8 C. & P. 425. Where the indictment charges an imprisoning, that sufficiently shows the duty to supply food; but if it do not, then it must allege a duty in the defendant to supply the deceased with food; Reg. v. Edwards, 8 C. & P. 611; see as to evidence, Arch. C. P. 406, et seq. It is necessary, also, to prove that J. N. was the apprentice of J. S., or at least acted as such; Arch. C. P. 513.

Murder. First count, by choking, against two-one as principal in the first degree, and the other in the second degree.(ƒ)

That J. W., late of the county aforesaid, yeoman, and H. N., late of the county aforesaid, widow, not having the fear of God before their eyes, but being moved and seduced by the instigation of the devil, on the tenth day of April, in the year one thousand eight hundred and twenty-five, at the county aforesaid, and within the jurisdiction of this court, with force and arms, in and upon one G. H. W., in the peace of God and of the commonwealth, then and there being, feloniously, wilfully and of their malice aforethought, did make an assault, and that he the said J. W., a certain muslin handkerchief of the value of twelve cents, about the neck of him the said G. H. W., then and there feloniously, wilfully and of his malice aforethought, did fix, tie and fasten, and that the said J. W., with the muslin handkerchief aforesaid, him the said G. H. W., then and there feloniously, wilfully and of his malice aforethought, did choke, suffocate and strangle; of which said choking, suffocating and strangling, he the said G. H. W., then and there instantly died. And that she the said H. N., at the time of the committing of the felony and murder aforesaid, in manner and form aforesaid, feloniously, wilfully and of her malice aforethought, was present aiding, abetting and counseling the said J. W., the felony and murder aforesaid to do and commit; and so the inquest aforesaid, upon their oaths and affirmation aforesaid, do say, that the said J. W. and the said H. N., the said G. H. W., in manner and form aforesaid, feloniously, wilfully and of their malice aforethought, did kill and murder, contrary to the form of the acts of the general assembly in such case made and provided, and against, &c.

Second count, by choking and beating. Against two-one as principal in first degree, the other in second degree.

And the inquest aforesaid, upon their oaths and affirmations aforesaid, do further present, that the said J. W., and the said H. N., not having the fear of God before their eyes, but being moved and seduced by the instigation of the devil, on the said tenth day of April, in the year one thousand eight hundred and twenty-five, at the county aforesaid, and within the jurisdiction of this court, with force and arms, in and upon the said G. H. W., in the peace of God and of the commonwealth then and there being, feloniously, wilfully and of their malice aforethought, did make an assault, and that he the said J. W., a certain muslin handkerchief of the value of twelve cents, about the neck of him the said G. H. W., then and there feloniously, wilfully and of his malice aforethought, did fix, tie and fasten, and that the said J. W. with the muslin handkerchief aforesaid, the neck of him the said G. H. W., then and there feloniously, wilfully and of his malice aforethought, did violently squeeze and press, and that the said J. W., with a certain large stick of the value of one cent, which he the said J. W., then and there in his right hand had and held, him the said G. H. W., in and upon the right side of the

(f) See p. 52, for another form.