13 Mass. 356 (Mass. 1816), Commonwealth v. Bowen

• Citation: 13 Mass. 356
• Opinion Judge: Parker, C. J.
• Party Name: Commonwealth v. George Bowen
• Attorney: Morton (Attorney-General), for the Commonwealth, Bates and Lyman, for the prisoner,
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 356

13 Mass. 356 (Mass. 1816)

Commonwealth

v.

George Bowen

Supreme Court of Massachusetts, Hampshire

September, 1816

Page 357

[Syllabus Material]

Page 358

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 said, 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. with 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. ¹

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, ...