
    * Commonwealth versus George Bowen.
    If one counsel another to commit suicide, and the other, by reason of the advice, kill himself, the adviser is guilty of murder, as principal.
    The indictment against the prisoner contained two counts. The first count alleged, that one Jonathan Jewett, in the night time of the 8th of November last, at Northampton, murdered himself by hanging himself; and that the prisoner, Bowen, before the said self-murder, on, &c., at, &c., feloniously, wilfully, and of his malice aforethought. did counsel, hire, persuade, and procure the said Jewett the said felony and murder of himself to do and commit; and so that the said Bowen feloniously, &c, did kill and murder, &c. The second count alleged, that the prisoner murdered the said Jewett by hanging him ; against the form of the statute, &c.
    The evidence was, in substance, that Jewett was convicted, at the last September term in this county, of the wilful murder of his father, and, being sentenced to suffer death, the 9th of November last was appointed, by the supreme executive authority of the Commonwealth, for his execution. The prisoner was confined in an apartment of the prison adjacent to that in which Jewett was, and in such a situation that they could freely converse together. The prisoner repeatedly and frequently advised and urged Jewett to destroy himself, and thus disappoint the sheriff, and the people who might assemble to see him executed; and, in the night preceding the day fixed for his execution, he put an end to his life by suspending himself by a cord from the grate of the cell in which he was imprisoned. An inquisition was-taken by the coroner’s jury, who returned that he was a felon of himself.
    
      Morton (Attorney-General), for the Commonwealth,
    contended, that the prisoner was guilty of murder, as principal; and he cited and relied chiefly on the following authority from Kelyng's Reports, 52. “ Memorandum, that my brother Twisden showed me a report which he had of a charge given by Justice Jones to the grand jury, at the King’s Bench barre, Michaelmas Term, 9 Car, 1, in which *he ^aid, that poisoning another was murder at common law. And the statute of 1 Ed. 6 was but declaratory of the common law, and an affirmation of it. If one drinks poison by the provocation of another, and dieth of it, this is murder in the person that persuaded it. And he took this difference. If A. give poison to J. S., to give to J. D., and J. S., knowing it to be poison, give it to J. D., who taketh it in the absence of J. S., and dieth of it; in this case, J. S., who gave it to J. D., is principal ; and A., who gave the poison to J. S., and was absent when it was taken, is but accessory before the fact. But if A. buyeth poison for J. S., and J. S , in the absence of A., taketh it and dieth of it, in this case A., though he be absent, yet he is principal. So it is, if A. giveth poison to B., to give unto C., and B., not knowing it to be poison, but believing it to be a good medicine, giveth it to C., who dieth of it ; in this case, A., who is absent, is principal, or else a man should be murdered, and there should be no principal. For B., who knoweth nothing of the poison, is in no fault, though he gave it to C. So if A. puts a sword into the hands of a madman, and bids him kill B. with it, and then A. goeth away, and the madman kills B. wi:h the sword, as A. commanded him, this is murder in A., though absent, and he is principal; for it is no crime in the madman who did the fact by reason of his madness.”
    Nor was the murder less atrocious in the case at bar, or the guilt of the prisoner less heinous, because the death of Jewett must inevitably have taken place within a few hours ; for a man is under the protection of the law until he dies by order of law. Indeed, so strict is the law in regard to life, that, if the sheriff is, by his warrant, commanded to hang one, and he beheads him, the sheriff in such case is guilty of felony, if not of murder. 
    
    
      Bates and Lyman, for the prisoner,
    argued, that murder at common law is confined to the taking the life of another, and a felo de se is never called a murderer. Our legislature seem to use the word in the same definite sense. * By the statute of 1804, c. 123, § 1, it is enacted, “that, if any person shall commit the crime of wilful murder, or shall be present, aiding and abetting in the commission of such crime, or, not being present, shall have been accessory thereto before the fact, by counselling, hiring, or otherwise procuring the same to be done, every such offender shall suffer the punishment of death.” It is plain, that suicide is not included in this clause ; for it provides that he who counsels, &c., shall receive the same punishment as the principal offender. The crime, then, which the prisoner is charged with counselling and procuring, was not “ such crime ” as the statute contemplates, namely, murder, but felonía de se. For this latter crime a punishment was provided by a law of the colony, passed in 1660.  That suicide was not intended to be included in the forecited enacting clause, is further evident from the second section of the same statute, which provides, among other things, for the punishment of such as shall knowingly receive, harbour, comfort, &c., any principal offender after a wilful murder done and committed as aforesaid. It seems, then, that no punishment has been provided by statute for him wrho counsels the commission of suicide.
    At the common law, in all cases of suicide, where the subject of the suicide is not a felo de se, those who are counselling, hiring, and procuring the suicide to be committed are principal felons. Because, in such case, the deceased person being innocent of his own destruction, he who would otherwise have been an accessory, from the necessity of the case, is deemed a principal. Such are the examples put by way of a memorandum in the passage cited by the Attorney-General from Kelyng. But in this case Jewett was a felo de se. It is so alleged in the indictment, and the allegation has been proved by the inquisition of the coroner’s jury. The prisoner, then, if indicta* ble at all, was indictable only as an accessory. He cannot be convicted as a principal.
    It was insisted, also, by the counsel for the prisoner, #that it was not sufficient for the government, to produce a conviction, to prove only, that Jewett killed himself, and that Bowen advised and urged him to commit the fact. It must be made to appear, that the advice was the procuring cause of the death. And on this point it was strongly argued that the evidence wholly failed.
    
      The Attorney- General, in reply,
    insisted, that the adviser of one who commits a felony of himself, is a murderer, and this is laid down by Blackstone. 
       The facts in proof abundantly showed the prisoner to have been guilty of this offence ; and that his advice was at least one of the procuring causes of Jewett's death.
    
      
      1 East’s Crown L. 335.
    
    
      
      
        Anc. Charters, &c., 187.
    
    
      
      C3) 4 Black. Comm. 186.
    
   Parker, C. J.,

in charging the jury, stated, that, considering the similarity between the nature of suicide and the murder of another, and the consistency and uniformity of writers and principles on this particular species of murder, if the jury should find the facts as alleged in the indictment, they might safely pronounce the prisoner guilty. The important fact to be inquired into was, whether the prisoner was instrumental in the death of Jewett, by advice or otherwise. (Here his Honor recapitulated the evidence.) The question, then, is, Did this advice procure the death of Jewett ?

The government is not bound to prove that Jewett would not have hung himself, had Bowen's counsel never reached his ear. The very act of advising to the commission of a crime is of itself unlawful. The presumption of law is, that advice has the influence and effect intended by the adviser, unless it is shown to have been otherwise ; as, that the counsel was received with scoff, or was manifestly rejected and ridiculed at the time it was given. It was said in the argument, that Jewett’s abandoned and depraved character furnishes ground to believe that he would have committed the. crime without such advice from Bowen. Without doubt he was a hardened and depraved wretch. But it is in man’s nature to revolt at the idea of self-destruction. Where a person is predetermined upon * the commission of this crime, the seasonable admonitions of a discreet and respected friend would probably tend to overthrow his determination. On the other hand, the counsel of an unprincipled wretch, stating the heroism and courage the self-murderer displays, might induce, encourage, and fix the intention, and ultimately procure the perpetration of the dreadful deed. And, if other men would be influenced by such advice, the presumption is, that Jewett was so influenced. He might have been influenced by many powerful motives to destroy himself. Still, the inducements might have been insufficient to procure the actual commission of the act, and one word of additional advice might have turned the scale.

If you are satisfied that Jewett, previously to any acquaintance or conversation with the prisoner, had determined within himself that his own hand should terminate his existence, and that he esteemed the conversation with the prisoner, so far as it affected himself, as mere idle talk, let your verdict say so. But, if you find the prisoner encouraged and kept alive motives previously existing in Jewett’s mind, and suggested others to augment their influence, you will decide accordingly.

It may be thought singular and unjust, that the life of a man should be forfeited, merely because he has been instrumental in procuring the murder of a culprit within a few hours of death by the sentence of the law. But the community has an interest in the public execution of criminals ; and to take such an one out of the reach of the law is no trivial offence. Further, there is no period of human life which is not precious as a season of repentance. The culprit, though under sentence of death, is cheered by hope to the last moment of his existence. And you are not to consider the atrocity of this of-fence in the least degree diminished by thp consideration that justice was thirsting for its sacrifice ; and that but a small portion of Jewett’s earthly existence could, in any event, remain to him.

The jury found the prisoner not guilty ; probably from * a doubt whether the advice given by him was, in any measure, the procuring cause of Jewett’s death,

JVofe. The Reporter was not present at this trial, and has compiled the foregoing report from a detailed account of the trial, published in a pamphlet, by a gentleman who took notes of it at the bar. 
      
      
        Russell on Crimes, vol. 1, p. 430. — Ed.]
     