ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF VIRGINIA.
MR. CHIEF JUSTICE FULLER delivered the opinion of the court.
1. The cause assigned in support of the demurrer to the indictment was that it did "not specify the locality on the
high seas where the alleged offence occurred." The objection was without merit. The indictment alleged the murder to have been committed "on the high seas and within the jurisdiction of this court, and within the admiralty and maritime
jurisdiction of the said United States of America, and out of the jurisdiction of any particular State of the said United States of America, in and on board of a certain American vessel, . . ." Nothing more was required to
show the locality of the offence. St. Clair v. United States, 154 U.S. 134, 144. But the point is now made that the indictment was demurrable because it charged the homicide to have been caused by shooting and drowning, which are means
contended to be inconsistent in themselves and not of the same species. This ground of demurrer was not brought forward in the Circuit Court, although defendant was admonished that he must state all the grounds on which he relied. But, treating
it as open to consideration, we think the indictment was clearly sufficient as ruled in effect in St. Clair's case.
In that case, defendant was charged with the murder of Fitzgerald on board the bark Hesper on the high seas, by
striking and beating him with a weapon unknown, and thereby giving him "several grievous, dangerous and mortal wounds," and then and there casting and throwing him from the vessel into the sea, and drowning him, "of which said
mortal wounds, casting, throwing, plunging, sinking and drowning," Fitzgerald "then and there instantly died." The language used was much the same as that employed in United States v. Holmes, 5 Wheat. 412. The indictment was sustained
though the particular objection under consideration was not commented on. The indictment in this case was evidently drawn from that, and charged that Andersen assaulted Saunders with a pistol with intent to kill him, by the
discharge of which he inflicted on him "several grievous, dangerous and mortal wounds," and that he did "cast and throw from and out of the said vessel into the sea and plunge, sink and drown him, the said William Wallace Saunders, sometimes called William Saunders, in the sea aforesaid, of which said mortal wounds, casting, throwing, plunging, sinking
and drowning" Saunders "then and there instantly died." And it was further said, as in the indictment against St. Clair, that by reason of the casting and throwing of Saunders into the sea as aforesaid, the grand jurors "could not describe the said mortal wounds with greater particularity."
In Commonwealth v. Webster, 5 Cush. 295, the first count charged an assault and a mortal wound by stabbing with a knife; the second, by a blow on the head with a hammer; and the third, by striking, kicking, beating and throwing on the ground. The fourth count charged that the defendant feloniously, wilfully and of his malice aforethought, deprived the deceased of life "in some way and manner, and by some means, instruments and weapons to the jurors unknown." The Supreme Judicial Court of Massachusetts was unanimously of opinion that the latter was a good count. The court, speaking1 through Chief Justice Shaw, said: "From the necessity of the case, we think it must be so, because cases may be imagined where the death is proved, and even where remains of the deceased are discovered and identified, and yet they may afford no certain evidence of the form in which the death was occasioned; and then we think it is proper for the jury to say that it is by means to them unknown. . . . The rules of law require the grand jury to state their charge with as much certainty as the circumstances of the case will permit; and, if the circumstances will not permit a fuller and more precise statement of the mode in which the death is occasioned, this count conforms to the rules of law." In explaining the indictment and the setting out of several modes of death, the Chief Justice also said: "Take the instance of a murder at sea; a man is struck down, lies some time on the deck insensible, and in that condition is thrown overboard. The evidence proves the certainty of a homicide by the blow, or by the drowning, but leaves it uncertain by which. That would be a fit case for several counts, charging a death by a blow, and a death by drowning, and perhaps a third alleging a death by the joint result of both causes combined."
Commonwealth v. Desmarteau, 16 Gray, 1, was an indictment
for murder, containing three counts. The first charged that the murder was committed by casting, throwing and pushing the deceased into the Connecticut River, and so choking, suffocating and drowning her; the second, that the death was caused by the blows of some weapon or instrument to the jurors unknown; the third, that the death was caused by the blows and drowning both. It was held that all the counts were in proper legal form and related to a single offence, and that as a conviction on any one required the same judgment and the same sentence as a conviction on all, the jury were properly instructed that if they found the prisoner guilty of the murder as set forth in either, they might return a verdict of guilty, generally.
So an indictment which alleged that death was caused by a wounding, an exposure and a starving, was held in Commonwealth v. Macloon, 101 Mass. 1, not to be bad for duplicity, and it was ruled that it was sufficient to allege that the death resulted from all these means, and to prove that it resulted from all or any of them.
And see Joy v. State, 14 Indiana, 139; Woodford v. People, 62 N.Y. 117; State v. Fox, 1 Dutcher, (25 N.J.L.) 566, 601; State v. Johnson, 10 La. Ann. 456; People v. Colt, 3 Hill, 432; Jones v. Georgia, 65 Georgia, 621; Rodgers v. State, 50 Alabama, 102; Gonzales v. State, 5 Tex. App. 584.
In our opinion the indictment was not objectionable on the ground of duplicity or uncertainty.
Granting that death could not occur from shooting and drowning at the same identical instant, yet the charge that it ensued from both involved no repugnancy in the pleading. For the indictment charged the transaction as continuous, and that two lethal means were employed cooperatively by the accused to accomplish his murderous intent, and whether the vital spark had fled before the riddled body struck the water, or lingered until extinguished by the waves, was immaterial.
If the mate had been shot in the rigging and fallen thence into the sea, an indictment alleging death by shooting and drowning would have been sustainable.
The Government was not required to make the charge in
the alternative in separate counts. The mate was shot and his body immediately thrown overboard, and there was no doubt that, if not then dead, ...