EXPOSITION, &c.

the first legislature of the territory, sensible of the advantages of that change, at least in criminal proceedings, and desirous of preparing the way for the future operation of the ordinance, have in the statute of crimes and punishments enacted that "all the crimes, offences and misdemeanors herein named shall be taken, intended and constructed, according to, and in conformity with the common law of England, and that the forms of indictment (divested however of unnecessary proilxity, the method of trial, the rules of evidence, and all other proceedings whatsoever in the prosecution of the said crimes, offences and misdemeanors, changing what ought to be changed, shall be, exccpt as by this act is otherwise provided for, according to the said common law." 1st Sess. Leg. Coun. Chap. 4 Sec. 3. And by a subsequent statute the same mode of practice is exter ded to all other offences. It is enacted "that all other crimes, offences aud misdemeanors, committed by free persons, and not provided for by this act, or the act to which this is a supplement," (the act already quoted) "shall be punished according to the common law, and shall be prosecuted and tried according to the said law &c." 2d Sess. Leg. Coun. Chap. 4 Sec. 3. These statutes went into immediate operation; and by retrenching some intricacies and superfluities, but without violating any material principle of the common law practice, have happily facilitated its introduction into our criminal courts.

The introduction of Euglish law in this tèrritory is said to have given some offence. The quaintness of its forms, its precision, and perhaps its novelty may have rendered it in some measures objectionable. Exception also may have been taken against it as being foreign law. But the truth is, that the common law as recognized in the United States, is no more the law of England than the civil law can now be deemed the law of Rome, Whatever code be adopted, it must be in some degree foreign. And that preference would be but an idle one which could be given to any, merely from a partiality to the nation from which it was borrowed. The trial by jury, of which the citizens of the United States as a free pec ple are so justly proud and tenacious, is exclusively a creature of the common law, and must therefore almost necessarily be accompanied by many of its forms. Some of these forms may at first sight appear pedantic and obscure, but where is the science whose technicals are less so? By our late statutes also, as well as by the liberal habits of practice, which custom has sanctioned throughout the United States, we fortunately enjoy the substantial benefits of the English system without being exposed to many of its asperities or inconveniences. And it is to be remembered that with all those blemishes, the English judiciary has stood for ages eminently unrivalled in the European world for its purity and wisdom.

However as this new mode of practice is as yet but little known in Louisiana, and this has been one of the reasons urged against its introduction, there is a clause of the same statute of crimes and pun-.

1st

ishments intended to remove that objection. It is enacted that "as soon as may be after the passage of this act the governor shall cause to he drawn up and printed and promulgated in the English and French languages an exposition and explanation of each and every of the crimes and misdemeanors herein before mentioned which are not precisely defined, and of the rules of evidence, the modes of trial; the forms of writs aud indictments, and all other proceedings as they are directed to be had in the thirty-third section of this act." Sess. Leg. Coun. Chap. 50 Sec. 48. In pursuance of this statute I have been appointed by the Governor to prepare the work required.. I purposely refrain from making any remarks on the importance or necessity of such a work, or the difficulty of doing justice to it. In this compilation little else is attempted than brevity and correctness; and should it answer the expectations of the late legislature and the present exigenees of the public, I shall be contented. Thus much only I have to remind the reader that I have been allowed but a very limited time for its completion. I therefore rely with confidence on the justice of the public to pardon at least such inacuracies and omissions as may be fairly attributed to the haste in which the work is composed.

By the extract last given by the statute it appears that the following pages must necessarily be employed in the exposition of such laws and forms of practice only as have been newly introduced.~ Such of the former laws and modes of proceeding therefore as remain in force, and among them of course the laws relating to slaves, I pass over; and shall proceed, first, to an exposition of the several offences recited by the statute; secondly to a sufficient detail of criminal proceedings, and the principal rules of evidence; and shall conclude with some forms of records and other process, adapted to the existing laws of the territory in criminal cases.

The statute is entitled "An act for the punishment of crimes and misdemeanors."* And as that statute may be considered the text on which the principal part of the work is designed as a commentary, I shall endeavor to adhere as nearly as may be convenient to the arrangement there observed. The crime of "Murder" therefore preents itself first to our consideration. But that the reader may be better enabled to understand the precise nature of this offence, contra-distinguished from others of a like nature which fall short of it, it seems necessrry to premise with a short elucidation of Homicide in general.

"In the English law misdemeanor is generally used in contra-distinction to felo ny; and misdemeanors comprehend all indictable offences which do not amount to

felony; as perjury, battery, libels, conspiracies, &c., Christian's notes, 4 Bluc. Com.

r. 5.

4

HOMICIDE IN GENERAL.

OF HOMICIDE IN GENERAL;

AND FIRST OF JUSTIFIABLE AND EXCUSABLE HOMICIDE.

"Homicide," that is to say taking the life of a human being is of various kinds and of different degrees of guilt.

When the proper officer of justice puts an offender to death in pursuance of the lawful sentence of a court, this is called "justifiable homicide," and there is no criminality whatsoever therein. But the manner of the criminal's death must agree exactly with the officer's warraut. For if a sheriff shoot one whom it was his duty to hang,

this is said to amount to murder.

If one be killed in resisting an officer of justice in the execution of his duty; this also is justifiable homicide in him who kills; as also when one is killed in resisting any citizen in an attempt to arrest a felon. But in both these cases the killing must appear to have been done from absolute necessity; for if the officer might have performed his duty, or the felon might have been arrested without bloodshed, it is not justifiable.

It is also justifiable homicide at common law when one kills another to prevent his perpetrating a capital crime which could not otherwise be prevented; as if one see another about to commit a murder and having no other means of preventing it, kill the assassin.— Also if one find another breaking into a house by night to rob it, he may if nccessary slay the offender. 4 Blac.com. 180, 181. But it is laid down that it is not justifiable to prevent the perpetration of a crime by killing him who attempts it unless first, the crime be one accompanied with force, as murder, robbery, &c., and secondly, unless it be a crime by which the offender, if convicted in a court of justice, would forfeit his life. The law in the first case unquestionably extends to this territory; so that poisoning for instance and such of fonces however criminal must not be prevented by the death of those who would perpetrate them, and the crimes themselves are unaccompanied with force. But were the second principle to extend here also, it would seem to forbid a bystander's using force to prevent the perpetration of any crime but that of wilful and deliberate murder; for that alone is punished with death by the laws of the territory.~ And as it would seem unjust to retain any citizen from using, in casc of necessity, every possible means to prevent the highway robber, the house-breaker, the incendiary and other daring villains from effecting their felonious purposes, there is little doubt that however the law may class the killing of such offenders, it cannot make it a crime, when the necessity of the occasion may seem to have required it.

There is another degree of homicide not far removed from that just spoken of. It is distinguished by the name of "excusable homicide," and is committed in two ways, "by misadventure" or "in selfdefence."

If one lawfully employed or engaged, as shooting at a mark, or cutting timber with an axe, accidentally kill another, this is "excusa. ble homicide. If one correct a servant, pupil &c. and the person corrected fall sick and die, this also is excusable homicide by misadventure in the master, teacher &c. provided the correction be lawful, and not unusually severe; in neither of which cases it would amount to murder. If A through wantonness whip the horse or which Brides, so that in consequence thereof B accidentally ride over and kill a child, this is excusable homicide by misadventure in B, in A it is manslaughter, (a species of homicide particularly described hereafter.) 1 Hawkins p. c. 73.

"Such killing as happens in self-defence upon a sudden rencounter" is "excusable homicide in self defence." But it is so only in him who is attacked, not in the first aggressor; unless after the attack is commenced the aggressor retire with an intention to avoid the fray, and be pursued, and compelled in his own defence to renew the strife. And one cannot be said to kill another in self-defence if he might have availed himself of the protection of the law, or if he had any other possible or at least probable means of escaping from the assailant. It also is necessary that the rencounter be sudden and unexpected, and not the effect of an old enmity or any kind of premeditation. An attack on a master or a servant is an attack on both, and may be resisted by either. All the civil and natural relations are included in this principle, as those of parent and child, husband and wife, &c.

This offence, if it may be so considered, is sometimes called "homicide by chance medley," and "chaud medley." I term it an offence because, though there is no criminality in justifiable homicide, yet excusable homicide is not viewed altogether in the same indulgent light at common law. However as the statutes of the territory have not mentioned either, they may I believe both be taken with us as nearly of the same import. Indeed Blackstone observes that "in cases where the death has notoriously happened by misadventure or in self-defence, the judges will usually permit, if not direct, a general verdict of acquital." 4 com. 188.

FELONIOUS HOMICIDE.

OF FELONIOUS HOMICIDE...

It may be as well before we proceed to the two kinds of felonious homicide most material to our present purpose, namely, manslaughter and murder, to say a few words respecting a third kind, which, though perhaps not recognized by the existing laws of the territory, is nevertheless connected with the subject before us as being felony at common law; the crime of suicide, or as the law terms it, 'felo de se.' He who intentionally kills himself, is a felon at common law.The offender, it is true, is beyond the reach of sublunary punishment, but the common law confiscates his property, and condemns his remains to an ignominious interment in the high way where four roads meet, with a stake driven through the body. But as this offence is not recognized by our statutes, and seems rather to have been countenanced by the civil law.* 4 Blac. Com. 189. It is probably not among the crimes which may be committed in this territory; and perhaps it would be wise to suffer it to remain so. For though suicide is very generally esteemed a high offence against morality and religion, yet as we cannot attach to it any punishment which the offender will ever feel, and there is a cruelty as well as an injustice altogether inconsistant with the general tenor of criminal laws throughout the United States, to panish innocent heirs for the errors of their ancestors, by a confiscation of family property, it would seem to be the better way to leave the offence to the tribunal of him who alone can proportion the penalty to the guilt of the of fender. The disgraceful burial of the body of the deceased gives pain only to the living.

At common law there may be accessories to this felony. But if the crime exists not here, it would seem a solecism to say that where there is no principal there may be accessories. Yet if one procure poison or a weapon for another, with the intent and design that be shall kill himself therewith, and he do so, a serious question would in my opinion arise as to the criminality of the surviving party.

*

If any one impatient of grief or weary of life, or disease. or passion, or shame, wishes to die, let it not be deemed wrong in him." F. ƒ. 94. 16. 6.