
    The State v. John Owen.
    T i- From Wake.
    In an indictment for murder, where the death is occasioned by a wound, bruise* or other assault, the stroke must be expressly laid. But an indictment, charging’ “ that A. B, with a certain stick, &c. in and tipon the head and face of C. B, then and there feloniously, &c. did strike and beat, giving to the said C. D, then and there with the stick aforesaid, in andupon the head and face of the said C. D, several mortal -wounds, of which said several mortal wounds, the said C. D. instantly died,” is good : for there is in the first clause a direct allegation of a stroke, and the participle giving and the words then and there, connect this allegation with the mortal wounds in the second clause.
    In an indictment charging “ that A, feloniously, and of his malice aforethought, assaulted B, and with a sword, &c. then and there struck him, &c.” the first allegation, of feloniously and of his malice aforethought, applied to the assault, runs also to the stroke to which it is essential.
    Where in an indictment for murder, the death is charged to be occa. sioned by a -wound, a description of the wound must be set forth in the indictment, its length, breadth, depth, &c. where they are capable of description; and the omission of such description, is fatal to the indictment.
    Where the death is charged to be occasioned by a bruise, a description of its dimensions, &c. is not necessary.
    The Defendant being found guilty of the offence changed in the following bill of indictment, it was submitted to this Court, whether sentence of death could be pronounced against him on the said bill?
    fc STATE OF NORTH-CAROLTNA,? Superior Court of Law, Octo-Wake County. 5 her Term, 1809.
    
      “ The Jurors for the State upon their oaths present, that John Owen, late of the County and State aforesaid, cabinet-maker, not having the fear of God before his eyes, but being moved and seduced by the in-stigations of the Devil, on the night of the twenty-first day of April, in the year of our Lord one thousand eight hundred and nine, with force and arms, at the city of Raleigh, in the county of Wake aforesaid, in and upon one Patrick Conway, in the peace of God and the State then and there being, feloniously, wilfully, and of his malice aforethought, did make an assault; and that he the said John Owen, with a certain stick, of no value, which he the said John Owen in both his hands then and there had and held, the said Patrick Conway, in and upon the head and face of him the said Patrick Conway, then and there felo-' niously, wilfully, and of his malice aforethought, did strike and heat, giving to the said Patrick Conway, then and there, with the pine stick aforesaid, in and upon the head and face of him the said Patrick Conway, several mortal toounds, of which said several mortal wounds, the said Patrick Conway then and there instantly died: and so the' Jurors aforesaid, upon their oath aforesaid, do say, that the said John Owen, the said Patrick Conway, in manner and form aforesaid, feloniously, wilfully, and of his malice aforethought, did kill and murder, against the peace and dignity of the State.
    « OLIVES FITTS, Attorney-General.”
    
      Seawell, for the prisoner,
    took two exceptions to the indictment. 1. That in that part which states the mortal wounds, the stroke is only laid by implication. 2. That the indictment does not set forth the length and depth of the mortal wounds.
    
    
      Potter, for the Attorney-General,
    argued this case on behalf of the State. — As to the first exception. It is laid down as a general rule, that certainty is requisite in all indictments •, and the reasons given are, 1st. That the prisoner may know against what he has to defend himself : 2d. That it may be a bar to a future prosecution : 3d. That the Court may know the punishment due to the offence : and, by some writers, 4th. That the Court may know what it is that the Grand Jury have found. In Law, there are three kinds of certainty : Certainty to a certain intent in general; certainty to a common intent ; and certainty to a certain intent in every particular. This last is rejected in all cases, as partaking of too much subtilty $ the second is sufficient in defence •, the first is required in a charge or accusation.5’ Is not the present indictment certain to a certain intent in general ? Lord Hale observes, “ that abbreviations, such as are usual, are allowable in bills of indictment, and shall be construed singularly or plurally, as makes best for t|ie maintenance of the indictment.” Hawkins says, ((a d0fect js helped by the apparent sense of the whole;” and, “ that the Law will not suffer a criminal to escape on so trifling an exception as would be ahsurd and ridiculous to take notice offor nimia subtilitas in jure reprobatur.”
      
    
    It is admitted that the manner of giving the mortal wounds, amd the intent with which they were given, must be laid positively, or by way of allegation, and not depend upon argumentative certainty. But what is meant by an allegation of the mortal stroke, is explained in Lad’s case, and is just such an allegation v is made in this bill. Here the charge of giving the mortal stroke, is joined by the copulative and to the preceding sentence where the assault is charged, and unites with the “ malice aforethought” of that sentence •, the words then and there refer the stroke to the time and place of the assault; and the same words following the word giving, refer.the’ mortal wounds to the time and place of the assault and striking; the first allegation of assaulting and striking is carried on throughout the sentence. It would have been useless to repeat the stroke where the mortal wounds are charged, for the sense is the same without the repetition. Language is never rendered more-perspicuous by tautology. As to the-case of poisoning, cited from 2 Hawk. c. 23, s. 82, and 2 Hale 184, the allegation was, that the deceased “ accepit et bibit” omitting the words e<venenum prcediclum” There, it is clear, that the deceased drank the poison aforesaid, only by intendment. The precedents in the Cro. Cir. Comp. 484-5, 491-3, and in the appendix to 4 Black. Com. support the present indictment as to the first exception.
    As to the second exception — Why shall the length and depth of the wounds be set forth in the indictment ? No reason can be given why they . should be described, un~ less it be to inform the Court that they are mortal. And is not the Court as well informed now as if a more particular description had been given ? What additional information could the Court derive as to the mortality of the wounds, from an allegation that they were an inch long and one quarter of an inch in depth ? If the wounds had been thus described, and upon the trial it had appeared that the description were incorrect, that the skin of the head had not been separated, the Jury would have been instructed to disregard this variance between the description and the fact. If one man, with his fists and feet, knock and kick another on the body until he die, the wounds or bruises in such cases are never described $ and can the Court perceive more mortality in wounds thus inflicted, than in those which are inflicted on the head, by a heavy stick ?
    The only reason given for describing the dimensions of the wound is, that the Court may be informed that the wound is mortal. Where the reason fails, the law ceases... Where it is impossible to describe the wound, the description is dispensed with. There are exceptions to the rule requiring the dimensions of the wound to be described. These exceptions are founded upon principle, and those which we meet with in the books are not put as the only exceptions, but as .examples illustrative of the principles on which the exceptions are founded. The . case of bruises is not mentioned in the enumeration of exceptions ; yet because it comes within the reason, it is held to be unnecessary to describe wounds of that nature. So should it be unnecessary in the present case, because this is the case of bruises, and is in fact so charged; for a wound with a stick is a bruise. ‘‘Wound” is a hurt given by violence, no matter with what kind of weapon. “ Bruise” is a hurt with something blunt and heavy. Wound includes a bruise. As therefore the present charge is of wounds with a stick, they must be taken to be such wounds as a stick commonly inflicts. Is it competent for the prisoner to object to the use of a word in one of its proper significations ? It is admitted on his behalf, that if the word “bruises” had been used jn this indictment, instead of the word “ wounds,” no description would be required: but if every wound includes a bruise, why shall that word, in this indictment, be stripped of its ordinary extent of meaning ? The word wound is not a technical word ; it is one of com tnon parlance. If this word, ex vi termini, imported a separation of the skin, and was confined in its signification to injuries of that character, then it might be alleged that it always differed from a bruise, and did not include it. But it is clear, that in common parlance, and also in judicial decisions, wound and bruise are used as synoni-mous. In 4 Com. Dig. 381, it is said that “ plagam seu contusionem is well.” See also 2 Hale, 186. If, then, •wound be not a technical word, (and it is not pretended that bruise was ever considered as a word of art) why restrict the Attorney-General to the use of one of these. words ? The Counsel for the prisoner has shewn, that both plaga and vulnus signify (in Law at least) a wound or bruise. Then, take the present bill, either by sentences or by its context, and it will be found clear, certain and intelligible. There is much good sense in the remarks of Lord Ellenborough upon the case of “ the King v. Stephens and Agnew.” “ Every indictment, (says lie,), ought to contain a complete description of such facts and circumstances as constitute the crime, without inconsistency or repugnancy; and, except in particular cases, where technical expressions are required to be used, there-is no rule that other words shall be employed than such as are in ordinary use; or, that in indictments or other pleadings, a different sense is to be put upon them than what they bear in ordinary acceptation. And if, where the sense may be ambiguous, it is sufficiently marked bv the context, or other means, in what sense they are intended to be used, no objection can be made on, the grouftd of repugnancy, which only exists where a sense is annexed to words, which is either absolutely inconsistent therewith, or, being apparently so, is not accompanied by any thing to explain or define them. If the sense be clear, nice exceptions ought not to be regarded.”
    The case of the pirates tried in the Federal Court, before Judge Patterson, if it be law, is decisive of this question. The indictments are filed away among the records of that Court here, and they have been examined. There the Defendants were convicted on two bills: one charging the death to have been produced by a wound with an axe on the head, and no dimensions of the wound were given; the other, by an axe on the shoulder, and throwing overboard, and no dimensions of the wound by the axe, although the bill did not charge that the death had happened by drowning. As the allegation there was, that the wound was given by an axe, a sharp edged instrument, it was more necessary to describe it, than in the present case, where the wound was inflicted with a stick; yet after argument, the Court held the indictments good, and the convicts were executed.
    The Judges were unanimous in opinion, that the first exception taken to the indictment could not be supported : and upon this point,
    
      
      
         The reporter regrets that he is not able to give the very able argument of Mr. Seawell in support of these objections.
    
    
      
       Co. Lit. 303. a. 4 Com. Dig. 375, 1 Doug. 158. Cowp. 682.
    
    
      
       2 Hale Pl. Cro. 170.
    
    
      
       Id. ch. 25, sec. 61.
    
    
      
       2 Hawk. ch. 23, sec. 89.
    
    
      
       Leach 98.
    
    
      
       2 Hawk. ch. 23, sec. 81.
    
    
      
       5 East Rep. 259, 260.
    
   Tayiok, Judge,

delivered the opinion of the Court:

In endeavoring to form a correct opinion on the points argued in this case, it is the design, not less than the duty of the Court, to conform to the principles of Law, as they are laid down in works of authority. We disclaim all right of giving to them a rigorous construction, to aid the prisoner’s acquittal, or of relaxing their true meaning, to effect his condemnation. Like every other citizen in his situation, he is entitled to the full benefit of the constitutional provisions, devised to promote the security of all: and though the most atrocious criminality may have been proved to the sátisfaction of the Jury#' yet legal condemnation ought never to be separated froiii legal proofs. And we cannot too strongly impress it on our minds, that want of the requisite precision and certainty, which may, at one time, postpone or ward off the punishment of guilt, may, at another, present itself as the last hope and only asylum of persecuted innocence. It must, however, be confessed, that there is, in the ancient reasoning on this branch of the Law, a degree of metaphysical and frivolous subtilty, strongly characteristic of the age in which it was introduced ; when at the revival of letters, the first efforts of learning were laborious and rude, and scarcely a ray of common sense penetrated the clouds of pedantry. Were a system now to be established, it is probable that much of the jargon of the Law would be exploded, and that no objection would prevail against an indictment, or any other instrument, which conveyed to the mind, in an intelligible form, its intended impression. But we must follow in the footsteps of those who have preceded us, until the Legislature think fit to interfere; though we have no wish to extend the particularity further. On this subject, the sentiments of an eminent Judge have been properly read by the Counsel for the State; since, although he was conspicuous for his tenderness to criminals, as well as for every manly and Christian virtue, yet he condemned this nicety as a reproach to the laws. We would also refer to the opinion of another illustrious man delivered a century afterwards; a man who had devoted a long life to the cultivation of the science he so ably dispensed.

The first exception taken to this indictment is, that in that part of it which states the mortal wound, the stroke is only laid by implication.

The rule laid down by the writers is, that where the death is occasioned by a wound, bruise or other assault, the stroke should be expressly laid. In every case, however, where the objection has been heretofore taken, there is an omission of the express charge of the stroke, in that part of the indictment wherein it is charged in this. In Long’s case, the word discharged” is used. There seems to be ho case, where a repetition of tiie stroke is required after the participle giving, if it has been directly charged in the preceding clause.

A critical examination of Long’s case, supposing it to be of good authority, which is by no means certain, will shew that instead of supporting, its tendency is to repel the exception in this case. The material words of the indictment, necessary to be taken into view, in Long’s case, were “ that the aforesaid H. D. a certain pistol, &c. loaded with powder and a leaden bullet, &c. in and" upon the said II, Long discharged, giving to the said H. Long then and there with the leaden bullet aforesaid, so as aforesaid sent forth from the said pistol by the said H. D. one mortal wound, &c.” The Court "in giving judgment, divided the objection into two parts : 1st, the clause before the words “ giving him 2d, the clause containing these words : and they resolved that the first clause was not sufficient of itself j for although H. D. discharged the pistol upon him, it may be that he was not struck by it. Then thd second clause cannot make it good, for the clause of “ giving,” &c. depends on the said first clause, and describes the wound only to shew it to be mortal, which ought to appear by the first ■sentence to be given ; because in that case, the participle determines the verb. But here it did ,not appear by the first clause that a stroke was given, and then ee giving,” &c. cannot supply it; for that is a participle depending upon the verb precedent, and the verb precedent is <6 discharged,” and f< discharged” may be without a stroke. Although the grammar and logic of that case are refined, yet the Court do not in their reasoning intimate the necessity of inserting after the participle “ giving,” the manner, the quo modo of the wound. Their opinion is, that if there had been a direct allegation of a stroke in the first clause, the participle giving” would have connected it with the second clause, and made the indictment good. But the decision was not approved of in after times •, for Lord Ilolt said, that by his consent they would not be so nice again, and that there was not a case in the law like that $ and its authority is admitted to be considerably shaken in a recent case.

To sustain this exception, would be to establish a precedent more-exceptionable than that in Long’s case$ and instead of promoting perspicuity and simplicity of language in indictments, would seem only to introduce tedious and perplexing tautology. Yet this is not required even in the statement of those terms of art so peculiarly appropriated to the description of particular offences, that they cannot be supplied by any circumlocution. For where the indictment charged that A. feloniously and of his malice aforethought assaulted B, and with a sword, &c. then and there struck him, &c. the first allegation of feloniously and of his malice aforethought applied to the assault, ran also to the stroke to which it is essential. An indictment against'Mary Nicholson for poisoning Elizabeth Atkinson, stated that the prisoner did wilfully, feloniously, and of her malice aforethought, mix poison, viz. white arsenic with flour and milk, with the intent that the same should be afterwards taken and eaten by the, deceased, and the said flour and milk so mixed with the poison as aforesaid, then and there delivered to the deceased, &c. This was holden sufficient by all the Judges, without adding the words <s feloniously and of her malice aforethought” ,to the allegation of delivering the poison. For they considered that these words ran by the word “ and,” and the words “ then and there.” But if the sentence had not been so connected, a different construction would have prevailed.

The indictment before us contains a direct allegation of a stroke accompanied with the necessary terms of art, and all the sentences are connected together by the words and anti then and there: so that in all these respects it bears the strict form of carrying forward from one sentence to another the criminal charge. Further repetition might have obscured, but could n.ot have illustrated the charge, nor could it have brought the indictment nearer to the most approved precedents. On this point, therefore, tiie Court are unanimously of opinion against the prisoner.

As to the second exception, the Judges were divided in opinion: Haix, Lowrie and HexdersoN being of opinion that the exception was fatal to the indictment, and that sentence of death could not be pronounced against the prisoner upon the indictment, in consequence thereof; Tayeor and Looice, being of a contrary opinion.

IIendersoN, Judge,

observed, that if the Court, were

now about to decide on the propriety of requiring the dimensions of any wound charged in an indictment to'be mortal, to be set out, he should be clearly of opinion that it was unnecessary. But as immemorial custom, and all the authorities have determined, though not for reasons satisfactory to his mind, that wherever a death is stated to be occasioned by a wound, that the length, breadth and deptli of the wound should be described, whore they are capable of description ; and as the word wounds is used in this indictment, the dimensions of those wounds ought to have been stated. The Judge observed, that a precedent had bqen produced from West’s Symbolcogravlmj, which did not seem to make this necessary : but this was not an authority; it was a mere precedent, upon which no judgment had passed, and the omission might have been made by mistake. On examining all the books, he could find no authority where a death is charged in an indictment to be produced by a wound, that the dimensions of the wound are omitted. It is not for the Court, to determine why this description is required ; it is enough for them to know, that the law does require it $ and believing, both from authority and precedent that this was the law*' he felt it to be his duty so to pronounce it.

Lowrie, Judge,

had but little doubt, if this indictment were submitted to the opinion of men unlearned in the law, it would be their unanimous opinion that the description of the manner in which the deceased came to his death was sufficiently set forth. But if the law has said otherwise, though the Court may not see the reason upon which the law is founded, they must be bound by it. It appears from the books, that wounds capable of description, must be described, that the Court may judge whether it be probable, that death might have been produced by them. It appears probable, that in this case, Conway might have come to his death by the strokes stated to have been given; but the dimensions of the wounds being required, they canriot be.dispensed with. The authorities to this point stand uncontradicted, except by West in his precedents, which, for the reasons stated by his brother Hexdersox, ought not to set aside the others. All the exceptions to this rule, are cases where the wound cannot be described, such as where a limb is cut off, or the body run through. He thought the exception was fatal to the indictment.

Haix, Judge,

said, it was unnecessary for him to add much to what had been said by his brethren, IIejíder-son and Lowrie. But it might be asked what the Common Law of England was, when it was adopted by this country ? for such as it was, it must be observed. It had been very properly remarked, that if the Court were now met to determine in what manner indictments of this kind should be formed, this strictness would not be required. Any one proposing that wounds should be described as laid down in the books, would be considered as evincing but little knowledge of legislation. The reason given by writers for observing this particularity is, that the Court may see that the wound is such as might produce death. The causes of the death appeared to be laid with sufficient certainty in this indictment: but as we find, from all the authorities, from Coke to East, that whenever death is stated to be produced by a wound, the dimensions of the wound must be given, it cannot now be dispensed with. It appears from West, that the law was not formerly so: but this was the law when the Common Law of England was introduced here. All modern writers agree that the dimensions of the wound must be stated,* not for any good reason, he admitted j but it was not for the Court to legislate, but to decide, as they had sworn to do, according to the law. The exceptions stated in the books, prove the rule. When bruises or blows are stated, no dimensions are necessary j but where a wound is laid, it has been an invariable custom to state its dimensions.

Tayi,o:r, Judge,

said, he was sorry that it was not in his power to concur in the opinion delivered by his brethren. He, however, could place but little confidence in his own opinion, since it was different to-day, from what it was yesterday. He then thought the indictment could not be sustained : but upon a more careful examination of authorities, he now thought otherwise. He had looked into West’s Book of Precedents •, and though, as had been stated, precedents only shew the opinions of the writers, yet all precedents which are brought into argument are of the same authority. Their weight depends much upon the age in which they were written, and the character of the writers. Such as they are, they had induced him to change his opinion. (He here read from West the indictment produced by the prisoner’s counsel.) Looking further into the book, he found a precedent, where a person is charged with striking with a club t lie is stated to have struck, wounded, and maltreated the deceased, who languished and died, but there is no des-ciiption of the wound. He found another precedent, where a person is charged with striking, wounding, and. maltreating the deceased, without describing the wound. From these precedents it appeared, that the writer did not consider it necessary, when a wound was inflicted with a club or stick, that it. should be particularly described. These precedents had induced him to look into the English Common Law, by which his opinion was confirmed.

He said he had read what East*says on the subject, where he states that in all cases of doubt, a statement which shews that death might ensue, is sufficient,• and had asked himself, whether the wound given to Conway is so described in the indictment, as probably to occasion death ? The answer was in the affirmative.

This indictment, he observed, is in the same words with the precedents in West, except as to the word Si maltreated,” which is found in the latter, and which is of no consequence.

Finally, he said, lie came to this conclusion, that wherever the death was occasioned by a cut with a sword, dagger, or other edged instrument, it is necessary to state the dimensions of the wound : but when the death is occasioned by a club, cudgel, or stick, it is sufficient to state the wound, without the dimensions. He, therefore, was of opinion, that the exception to the indictment could not be sustained.

Locke, Judge,

agreed entirely with the opinion delivered by bis brother Tayiok, for the same reasons, and from the same authorities quoted by him, and which he deemed it unnecessary to repeat.

The indictment being adjudged insufficient, by a majority of the Court, the prisoner was remanded to jail to answer the same charge upon another bill of indictment to be preferred against him. 
      
       5 Co. Rep.
     