Act of March 6, 1819-January 1, 1820. R. C. ch. 171. killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery or burglary, shall henceforth be deemed murder in the first degree.(1) And all other kinds of murder shall be deemed murder of the second degree. [See Acts 1669, act 1, 2 Stat. Larg. 270.] And the jury, before whom any person indicted for murder(b) shall be tried, shall, if they find such person guilty thereof, ascertain in their verdict(c) whether it be murder in the first or second degree; but if such person shall be convicted by confession, the court shall proceed, by examination of witnesses, to determine the degree of the crime, and to give sentence accordingly. Ibid. and Jan. 23, 1803, c. 16, ed. 1808. 3. § 3. Every person liable to be prosecuted for petit treason, shall in future be indicted, proceeded against and punished, as is directed in other kinds of murder. 1796, c. 200, R. C. 4. § 4. Every person duly convicted of murder in the first degree, his or her aiders, abettors and counsellors, shall suffer death by hanging by the neck. Every person duly convicted of the crime of murder in the second degree, shall be sentenced to undergo a confinement in the public jail and penitentiaryhouse, for a period not less than five years, nor more than eighteen years, under the same conditions as are hereinafter directed. Ibid. and Dec. 31, 1819, c. 20. 5. § 8. Whosoever shall be convicted of any voluntary manslaughter,(2) Shippen and Smith, Js. cited from J. Smith's notes by att. gen. Smith's trial, app. 5; The Com. v. Dougherty, Nov. 1807, cor. Rush, J. and Wolbert, J. 1 Brown. app. 18; The Com. v. Smith, May 1816, cor. Rush, J. and Ass. Pamp. p. 240. Indictment for murder charges that the prisoner, of his malice aforethought, did make the assault: but the striking and wounding, and the killing and murder, are respectively charged to have been done" of his inalice aforesaid." Held, a good indictment for murder. Maile v. Commonwealth, 9 Leigh, 661. (1) See Burgess's case, gen'l ct. June T. 1825; and Crane's case, Virg. Cas. 10; King's case, gen'l ct. June T. 1817, 2 Virg. Cas. 78, and the note page 84, in which the cases in note (a) are copied out. To constitute murder in the first degree it is not necessary that the premeditated design to kill should have existed for any particular length of time. If, therefore, the accused, as he approached the deceased, and first came within view of him, at a short distance, then formed the design to kill and walked up with a quick pace and killed him without any provocation then or recently received, it is murder in the first degree. Joseph Whiteford's case, 6 Rand. 721; and see The Comth. v. Jones, 1 Leigh, 598; Rex v. Hayward, 6 Car. & Payne, 157; 25 E. C. L. Repts. 331; Bennett's case, gen'l ct. Dec. T. 1837, 8 Leigh, 745. (b) It has not been the practice since the passing of this law [April 22, 1794] to alter the form of indictments in any respect: it is not necessary so to describe the offence as to shew whether it be murder in the first or second degree; nor is it necessary that the indictment should conclude against the form of the act of assembly. White v. The Com. 6 Binney, 179, 183; 7 S. & R. 423. An indictment for murder need not conclude contra formam statuti, although a pu nishment variant from the common law punishment is prescribed by statute for the second degree of the offence. Vance v. The Commonwealth, gen'l ct. June T. 1819, 2 Virg. Cas. 162. It is not proper or necessary that an indictment for murder should charge it as murder in the first degree, or use that description, which according to the statute constitutes that degree of the offence. An indictment for murder in the technical language of the common law is correct under this act, and under such indictment a prisoner may be convicted of murder in the first degree, for it is the province of the jury to decide whether he be guilty of murder in the first or second degree. Gen'l ct., June T. 1824, Wicks v. Com. 2 Virg. Cas. 387; Com. v. Miller, 1 Virg. Cas. 310; Bennett's case, genl. ct. Dec. T. 1837. (c) If the jury do not ascertain in their verdict whether it be murder in the first or second degree, the verdict will be set aside, and a venire de novo awarded. The Com. v. Williamson, gen. court, June T. 1820, 2 Virg. Cas. 211. (2) The Com. v. Mitchell, 1 Virg. Cas. 116. "I take it that evidence of a positive intent to kill is not necessary in order to constitute the crime of voluntary manslaughter. It is sufficient if there be such acts of violence as may be expected to produce great bodily harm. On the contrary, involuntary manslaughter is where it plainly appears that neither death nor any great bodily harm was Act of March 6, 1819-January 1, 1820. R. C. ch. 171. shall be sentenced to undergo an imprisonment at hard labour and solitary confinement in the said jail and penitentiary-house, for any time not less than two nor more than ten years, and to give security for his or her good behaviour during life, or for any less time, according to the nature and enormity of the offence. 1796, c. 200, R. C. 6. § 9. Whensoever any person shall be charged with involuntary manslaughter, happening in consequence of an unlawful act, it shall and may be lawful for the attorney general, or other person prosecuting the pleas of the commonwealth, with the leave of the court, to waive the felony, and to proceed against and charge such person with a misdemeanour, and to give in evidence any act or acts of manslaughter; and such person or persons on conviction, shall be fined or imprisoned, as in cases of misdemeanour; or the said attorney general, or other person prosecuting the pleas of the commonwealth, may charge both offences in the same indictment; in which case, the jury may acquit the party of one, and find him or her guilty of the other charge.(3) Ibid. 7. In case it be found by the country, that any man by misfortune, or in his own defence,(d) or in other manner without felony, did kill another, he shall be acquitted. Nov. 18, 1789, c. 10, 13 Stat. Larg. 10; 9 Geo. 4, c. 31, $10, acc'd; R. C. 43. Act of February 2, 1838, ch. 101, p. 76. 71. § 1. If any person shall hereafter habitually or generally keep or carry about his person any pistol, dirk, bowie knife, or any other weapon of Concethe like kind, from the use of which the death of any person might probably ensue, and the same be hidden or concealed from common observation, and he be ther-of convicted, he shall, for every such offence, forfeit and pay the sum of not less than fifty dollars nor more than five hundred dollars, or be imprisoned in the common jail for a term not less than one month nor more than six months, and in each instance at the discretion of the jury; and a moiety of the penalty recovered in any prosecution under this act, shall be given to any person who may voluntarily institute the same. 72. § 2. If any person shall hereafter be examined in any county or corporation court, upon a charge of murder or felony, perpetrated by shooting, stabbing, maiming, cutting or wounding, and it shall appear that the offence charged was in fact committed by any such weapon as is above mentioned, intended, but death is accidentally caused (3) See The Com. v. Gable et al. 7 Serg. if it were to remain subject to infamous punishment in a system avowedly introduced for the purpose of softening the rigour of the criminal law?" Per C. J. Tilghman, p. 426. In this case it was further decided, that on an indictment for murder, a verdict of not guilty of murder, but guilty of manslaughter, is good, as it is to be considered as a conviction of voluntary manslaughter. That one who is indicted for murder cannot be convicted of involuntary manslaughter. And that if on such indictment the offence appear to be involuntary manslaughter the prisoner should be acquitted, and proceeded against on another indictment for a misde meanour. (d) See the elaborately argued cases of Thomas O. Selfridge, and Robert M. Goodwin the former reported by Messrs. Lloyd & Caines, the latter by Mr. Sampson. Act of February 2, 1838, ch. 101, p. 76. and that the same was hidden or concealed from or kept out of the view of the person against whom it was used, until within the space of one half hour next preceding the commission of the act, or the infliction of the wound, which shall be charged to have caused the death, or constituted the felony, it shall be the duty of the examining court, to state that the fact did so appear from the evidence; and if the court shall discharge or acquit the accused, such discharge or acquittal shall be no bar to an indictment for the same of fence in the superior court having jurisdiction thereof, provided the same be found within one year thereafter. And whether the accused shall be by such court sent on for further trial or discharged, it shall be lawful to charge in the indictment that the offence was committed in any of the modes herein before described; and upon the trial it shall be the duty of the jury (if they find the accused not guilty of the murder or felony) to find also whether the act charged was in fact committed by the accused, though not feloniously, and whether the same was committed or done with or by means of any pistol, dirk, bowie knife, or other dangerous weapon, which was concealed from or kept out of the view of the person, on or against whom it was used, for the space before mentioned, next preceding such use thereof; and if the jury find that the act was so committed, they shall assess a fine against the accused, and it shall be lawful for the court to pronounce judgment as in cases of misdemeanour. Act of February 26, 1819. R. C. ch. 169. 8. § 58. No forfeiture whatever shall accrue to the commonwealth, in consequence of any suicide; and the estate, whether real or personal, of every person who shall hereafter destroy his or her own life, or who may, heretofore, have destroyed his or her own life, shall pass to the heirs, devisees, legatees or distributees of such person, in the same manner as if he or she had died from any other cause: Provided, That nothing herein contained shall be so construed as to affect any estate whatever, on which an office may have been found, in favour of the commonwealth, before the twentieth day of February, one thousand eight hundred and twelve. Feb. 20, 1812, c. 112, ed. 1812. See act Dec. 13, 1787, 12 Stat. Larg. 598; Dec. 7, 1790, c. 89, 13 Stat. Larg. 224. Act of February 8, 1819-January 1, 1820. R. C. ch. 158. 9. § 1. If any man do ravish a woman, married, maid or other, where she did not consent before nor after, or shall ravish a woman married, maid or other, with force, although she consent after, the person so offending shall' be adjudged a felon; and if the said person be free,(4) shall be sentenced to undergo a confinement in the jail and penitentiary-house, for a period not less than ten nor more than twenty-one years; but, if the said person be a slave, shall suffer death, as in case of felony, without benefit of clergy. Dec. 1792, c. 130; and 1796, c. 200, R. C.; 13 Ed. 1, c. 34; 18 Eliz. c. 7. See post. No. 12.(c) (4) 4 C. C. L. 94, &c., with feloniously assaulting A. B., spinster, in the county aforesaid; and then and there feloniously ravishing her, the said A. B., by force, having carnal knowledge of her body against her will and consent, contrary, &c. (c) In an indictment under statutes which enact a punishment against free persons, different from that of slaves, as in rape, it is not necessary to allege that the prisoner is a free person. The Com. v. Bennett, genl. ct. Nov. T. 1820, 2 Virg. Cas. 235. The first sec. of this act (No. 9,) applies only to a rape on a female over ten years of age; the third sec. (No. 11,) to cases where she is under ten, and applies, whether she consent or not, for by intendment of law she cannot consent. Ib. Therefore, though it Pape Act of February 8, 1819-January 1, 1820. R. C. ch. 158. 10. 2. If any free person shall be accessary to either of the said offences before the fact, the person so offending, being thereof convicted, shall be sentenced to undergo a confinement in the jail and penitentiary-house, for a period not less than ten, nor more than twenty-one years. 1796, c. 200, R. C. 11. § 3. If any person shall unlawfully and carnally know and abuse any woman child, under the age of ten years, every such unlawful and carnal knowledge shall be felony, and the offender being duly convicted thereof, if a free person, shall undergo a confinement in the jail and penitentiary-house, for a period not less than one, nor more than ten years, and, if a slave, shall suffer death as a felon, without the benefit of clergy. Nov. 18, 1789, c. 11, 12 Stat. Larg. 10; 1792, c. 139; and 1796, c. 264, R. C.; 18 Eliz. c. 7, § 4.(b)(c) 12. § 4. If any slave shall attempt to ravish a white(e) woman, and be thereof lawfully convicted, he shall be adjudged a felon, and may be punished with castration. If any slave sentenced to such punishment, shall die through the negligence of any surgeon, or other person undertaking his dismemberment or cure, the owner of such slave shall have the same remedy against such surgeon, or other person, for the loss so sustained, as if this act had never passed. 1769, c. 19, 8 Stat. Larg. 358; 1804, c. 55, ed. 1808. [If any slave, free negro or mulatto, shall attempttt to ravish a white woman,(3) married, maid or other, such offender, his aiders and abettors, shall be adjudged guilty of felony, and suffer death as in other cases of felony, by hanging by the neck; any law, custom or usage, to the contrary notwithstanding. Feb. 14, 1823, c. 34, § 3.* be alleged in an indictment under this sec. If penetration be proved, the offence is On the trial of an indictment for a rape, the prosecutrix may be asked, whether, previously to the commission of the alleged offence, the prisoner has not had intercourse with her by her own consent. Rex v. Martin, 6 Car. & P. 562; and the remarks of Williams, J. on the case of Rex v. Hodgson, R. & R. C. C. R. 211. (b) Violently and feloniously assaulted the said X. Y., a woman child under the age of ten years, to wit, of the age of nine years and upwards, and then and there wickedly, unlawfully and feloniously did carnally know and abuse her, the said X. Y., against, &c. (e) The indictment must aver, that the woman on whom the attempt was made, was a white woman: if this averment be omitted, the judgment will be arrested. The Com. v. Jerry, gen. court, June T. 1820; 2 Virg. Cas. 210. tt Upon an indictment on this statute it is found, that a free negro, not intending to have carnal knowledge of a white woman by force, but intending to have carnal knowledge of her while she was asleep, got into bed with her and pulled up her night garments, which waked her, using no other force: Held, this was not an attempt to ravish, within the meaning of the statute. The Comth. v. Fields, 4 Leigh, 648; see Jackson's case, Rus. & Ry. Crw. Cas. Rep. p. 487. (3) A white girl under twelve years of age, and not having attained to puberty, is a white woman, within the meaning of this act. Watts's case, 4 Leigh, 672. *If any free negro or mulatto do ravish a white woman, married, maid or other, where she did not consent before nor after; or shall ravish a white woman, married, maid or other, with force, although she consent after; the person so offending shall be adjudged a felon, and shall suffer death, as in case of felony, without benefit of clergy; any law, custom or usage, to the contrary notwithstanding. Act January 6, 1825; Ses. Acts 1824-5, c. 23, p. 22; Sup. R. C. c. 180, p. 238. If any slave, free negro or mulatto shall ravish, or attempt to ravish, any white female person, infant or adult, such offender, This aiders and abettors, shall be adjudged Act of March 1, 1819-January 1, 1820. R. C. ch. 106.ttt 121 § 19. If any person or persons within this commonwealth being married, or who shall hereafter marry, do, at any time after the commencement of this act, marry any person or persons, the former husband or wife being alive, every such offence shall be felony; and the person or persons so offending Biga shall undergo imprisonment in the public jail and penitentiary, for a period y not less than one, nor more than ten years; and the party or parties so offend- consent. 122. Act of March 1, 1839, Ses. Acts, ch. 74, p. 46. 123. § 1. If any person or persons within this commonwealth, being mar guilty of felony, and shall suffer death without the benefit of clergy, any law, custom or usage to the contrary notwithstanding. Act of March 29, 1837, c. 71, § 1. Ses. Acts p. 49. § 2, repeal former acts, except as to existing offences against them. ttt See March 1657-8, act 4, 1 Stat. Larg. 438; by which the laws of England respecting bigamy are adopted. (6) The law always presumes against the commission of crime; and, therefore, where a woman, twelve months after her first husband was heard of, married a second husband, it will be taken prima facie, that the first husband was dead at the time of the second marriage. The King v. The Inhab. of Twyning, &c. 2 B. & A. 386. But the second marriage is illegal, if the first wife or husband be alive. Fenton v. Reed, 4 Johns. R. 52. A person who has not been heard of for seven years, is presumed to be dead, but there is no legal presumption as to the time of his death. The fact of his having been alive or dead at any particular period during the seven years, must be proved by the party relying on it. Doe dem. Knight v. Nepean, Bart. 5 Barn. & Adolph. 86, 27 E. C. L. R. 42. (7) See Warner v. The Com., November T. 1817, 2 Virg. Cas. 95. The acknowledgment of the husband that he is married, and the cohabitation with the woman as his wife, are proper evidence of the first marriage, in On a trial for bigamy evidence may be On a trial for bigamy, a certificate, stating that prisoner was married to J. F. by the person whose name is subscribed thereto, and appearing to have been returned by him to the county court, but nowise shewing that he was a person authorized to celebrate marriage, is offered in evidence by the prosecutor, "for the purpose (as a bill of exceptions filed by the prisoner states) of proving, in connexion with other evidence, a marriage between the prisoner and J. F.," and though objected to by the prisoner, is admitted by the court. On this ground, prisoner applies to the general court for a writ of error; which is refused. S. C. . |