Page:Harvard Law Review Volume 10.djvu/132

I06 HARVARD LAW REVIEW. wilfully, and of his malice aforethought, did kill and murder against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided." ^ In England the statutes provide that in indictments for murder it is not necessary to set forth the manner in which or the means by which the death of the deceased was caused, but it is sufficient to charge that the defendant did feloniously, wilfully, and of his malice aforethought kill and murder the deceased. A statute like this, if passed by our Legislature, would probably be declared unconstitutional. The indictment with us must contain some description of the act. An indictment setting forth that the defendant at a time and place stated, feloniously, wilfully, and of his malice aforethought assaulted the deceased and feloniously, wilfully, and of his malice aforethought killed and murdered him by striking him on the head with an axe, would seem to preserve all the con- stitutional rights of the defendant, and ought to be sufficient if authorized by statute. A slight change would suffice to make the charge murder in the second degree. The latter charge cannot be made under our present practice. Information of the charge is what must be given. If this is provided, the constitutional limit i.s not passed. But the essential matters must be stated ; if any of these are omitted, the limit is transgressed. Where the statute provided that a person convicted of drunkenness should be punished by a fine of one dollar, and also that, if the person had been convicted of drunkenness twice within the twelve months next preceding such conviction, he should be punished more severely, and the same statute provided that it should not be necessary to allege in the complaint the previous convictions, it was held that the latter clause was in conflict with the Declaration of Rights, and therefore void.^ The reason for this is obvious. When a statute imposes a higher penalty upon a third conviction, it makes the former convictions a part of the character of the crime intended to be punished. They are essential to the offence, and therefore must be stated.^ It does not follow, however, that the recital must be long. Information of the charge is what must be given, and this is all. In imparting this, simple and direct statement surely ought to be used. This is conveyed by some words which in themselves are descriptive. Words of art like 1 Com. V. Coy, 157 Mass. 200. 2 Com. v. Harrington, 130 Mass. 35. 8 Com. V. Walker, 163 Mass. 226.