is no occasion for an actual stroke; the restraining him by force, and killing him by ill usage, is enough to constitute this offense. All the authors who speak of this species of murder, describe it by a general expression, per dure garde de ses gardens. The duty of a judge is not to punish, but confine the party, for the single purpose of his being forthcoming to answer a legal charge or demand.1 In this case Barnes has certainly exceeded his duty; he has been guilty of a breach of that trust which the law has reposed in him, and is answerable for all the consequences of it.

Another consideration to make it murder, is that it is a deliberate act of long continuance, and of great cruelty. It is likewise accompanied with force, against the consent of the party, on all which accounts the law implies malice. Had he, therefore, been before the court, there would have been no difficulty in adjudging it murder with regard to him.

2. Having thus determined what offense it would be in Barnes, let us now consider how it stands with regard to the prisoner at the bar. And though the indictment has charged him equally with the other, yet we think the verdict has made a wide difference between them. The indictment charges Barnes to be his servant, but the verdict finds he was the servant of Gibbon. The whole charge in the verdict against the prisoner, is that for fifteen days before Arne's death, he knew what sort of room he was in; that he once saw him under the duress of imprisonment that Barnes had put him in; and that during the time Gibbon was deputy, Huggins sometimes acted as deputy. But notwithstanding these circumstances which are found against the prisoner at the bar, we are all of opinion he is not guilty of murder.

It is a point not to be disputed, but that in criminal cases the principal is not answerable for the act of the deputy, as he is in civil cases; they must each answer for their own acts, and stand or fall by their own behavior. All the authors that treat of criminal proceedings, proceed on the foundation of this distinction; that to affect the superior by the act of the deputy, there must be the com mand of the superior which is not found in this case.

The duress in this case consisted in the first taking him against his consent, and putting him in that room, and the keeping him there so long without necessaries, which was the occasion of his death. Now, none of these circumstances are found against the prisoner. The jury does not say he directed his being put into the room; that he knew how long he had been there; that he was without the necessaries in the indictment, or was even kept there after the prisoner saw him, which was

1 Fleta, 38.

fifteen days before his death.

And as these are circumstances found against Barnes, and not against Huggins; and as in these cases the court is never to intend anything, but must found their judgment on the facts stated in the special verdict, and on them only, there can be no color to think one equally guilty with the other. The only circumstance relied upon to supply all this, is the prisoner's being once at the prison when he saw the deceased under the duress, and turned away. But surely the bare being present can never amount to an aiding and abetting. He saw him there, it is true; but does this infer he knew how it was occasioned or consented to the continuance of it; it is very material in this case, that the duress by which this unfortunate man came to his end, could not be known by a bare looking in upon him; he could not know he was there against his consent; he could not, by seeing him, know the length of his confinement, or how long he had been without the decent necessaries of life; and it is likewise material that no application is found to have been made to the defendant, which perhaps might have altered the case.

These circumstances, taking them altogether, are a very slender evidence of a consent in the prisoner to the duress; though this I must say, that were they ever so strong an evidence of consent, they will not be sufficient for us to ground a judgment upon: we are to determine upon facts, and not on evidence of facts. So in Kelyng,1 where it is found that Plummer discharged the fusee, but not that he discharged it against the king's officers; and the court could not take it that he did. It would be the most dangerous thing in the world if we should once give into the doctrine of inferring facts from evidence; which is the proper business of a jury, and not of the court.

But it is objected that, though the prisoner had made a deputy, he had still the inspection of the gaol; and for the time he was there the power of the deputy ceased. To this I answer, that there is no case in law which proves that the accidental presence of the principal amounts to a revocation; and, in reason, it ought to be construed such a coming as shows he intended to take upon himself the execution of the office. If a disseisee comes to dine with the disseisor, that will not amount to an entry. It is likewise insisted on that in many cases a person who is absent when the murder is committed may, nevertheless, be an aider and abettor; and the cases were put of laying poison, putting a child in a hog-sty, covering it with leaves, or leaving a sick man in the cold, by which he dies, which are all to be met with in Kelyng. Now, as to these cases, I must observe that in every one of them the person absent did the act which was the occasion of death, whereas here the act is found to have been done by another.

It was further observed upon this head of absence that in Staunforde1 and Crompton 2 the case is ruled to be murder, of letting a mischievous beast go abroad which happens to kill a man. But surely that is laid down too general in those books; and it would be very hard, if a man takes a reasonable care to keep up the beast, that he should be answerable if the beast should break out without his knowledge or consent.

There was but one thing more that was pressed by the king's counsel, viz. that since it was determined in Oneby's Case that it is not necessary for the jury to find malice, why is it more necessary to find the prisoner's consent? To this I answer, that malice is matter of law arising from a legal construction of the act; and from the act of the party the law has always construed, whether there was malice express or implied; but consent is an act of the mind. A sudden killing is construed to be malicious, though there is no time for any consent. These are the reasons which are to determine that upon this verdict the prisoner at the bar is not guilty of the murder of Edward Arne.

But then upon the argument of this cause a difficulty arose, what the court should do in this case, supposing the verdict to be too uncertain to found any judgment upon. It will, therefore, be necessary further to consider: (1) Whether this is an uncertain verdict; and (2) supposing it is, whether we are to discharge the prisoner, or to award a venire facias de novo.

Now as to the last point it is observable, that no instance could be produced where, in a criminal case, it was never done for a fault in the verdict itself. Arundel's Case 3 was for a fault in the jury process, and in the case cited of Hilton,4 there was no verdict, because it was put into their hands in writing as they stood at the bar; and in the case of Mr. Keate,5 though the verdict was so uncertain, that it was impracticable to determine either way, for want of finding who struck first: Yet HOLT, C. J., was so averse to a venire facias de novo, that he himself took an exception that quashed the indictment, in order to put it in a proper way of being tried over again.

But whatever may be the determination of the court, when that point comes properly before us, it is unnecessary for us now to consider; because as to the other point, we are all of opinion that this verdict is not uncertain.

There is no uncertainty as to the facts that are found: the only fact is, that there are not such facts found as will amount to murder. The consequence of which is, that the defendant is not guilty of murder; and it would be endless to send it back to a jury, till they find facts

enough to make it murder; besides its being contrary to law, in exposing a man to a second hazard of his life. It would have been a circumstance very material in the case of Plummer,1 to have found that the fusee was discharged against the King's officers; but the jury were silent as to that, and the court said they could not take the fact to be so, upon bare evidence of the fact; and proceeded to give judgment, as if the fusee had not been discharged against the King's officers, without sending it back to the jury to find it positively one way or the other.

So in the case of Messenger et al.,2 who were indicted for high treason in assembling and pulling down bawdy-houses. The verdict was silent as to Green and Bedell's, whether they were aiding and assisting; and this (says Kelyng) being a matter of fact which ought to be expressly found by the jury, and not to be left to the court upon any colorable implication from their being present; the two were discharged, without sending it back to the jury for their further opinion as to the fact.

In Kelyng,3 on a special verdict it was found, that Thompson and his wife were fighting, and Dawes endeavoring to part them was killed by Thompson; and it not being found that Thompson knew Dawes intended only to part them, it was held manslaughter, without sending it back to the jury to be certified of his knowledge.

There are cases directly in point as to this head, and I must observe that Plummer's Case was after the case of Keate, wherein Holt, C. J., had had this point under his consideration.

This verdict, therefore, being sufficient to found a judgment upon, our judgment is, that the prisoner is not guilty, and therefore he must be discharged.

SHERIFF NOT LIABLE FOR MALFEASANCE OF DEPUTY.

COMMONWEALTH v. LEWIS.

[4 Leigh., 664.]

In the General Court of Virginia, July, 1833.

A Sheriff is not liable to a criminal prosecution for a malfeasance in office committed by his deputy.

Case adjourned from the Circuit Superior Court for the county of Richmond. That court at October term, 1831, made a rule on Warner Lewis, sheriff of Essex, to show cause, if any he could, why he did not

1 Kelyng, 111.

2 Kelyng, 79.

3 66.

detain in his custody one Abram White, lately confined in the jail of Essex for petty larceny, and who was lately indicted in the Circuit Court of Richmond for forgery, and why he did not secure the person of White, that he might be dealt with according to law, as the sheriff was, by process from the Circuit Court of Richmond, and by his official duty, bound to do. This rule having been served on Lewis, he appeared to show cause; but the matters alleged by him, not being considered satisfactory, another rule was made on him, to show cause, on the first day of the ensuing term, why an information should not be filed against him, for having disobeyed the process of the court, and violated his official duty, in discharging from his custody, the said White, then in confinement in the jail of Essex, under a sentence of the Circuit Court of Essex, for petty larceny, and who had been lately indicted for forgery in the Circuit Court of Richmond. This last rule was not made absolute; nor did it appear that the court in any way, gave him leave to file the information; but an information was filed by the attorney for the commonwealth.

In some of the counts in the information, it was charged, in substance, that White having been indicted for forgery in the Circuit Court of Richmond, a capias was issued against him, and delivered to Lewis, the sheriff of Essex, by virtue of which Lewis arrested White, and had him in his custody, and then permitted him to escape and go at large; and, in other counts, that the capias was delivered to and served by Hill, a deputy of Lewis, and that Hill permitted the prisoner to escape. Lewis demurred generally to the information, and the attorney for the commonwealth joined in the demurrer.

The court ordered the capias, which had been issued against White upon the indictment against him for the forgery, and the return of the deputy sheriff of Essex, thereupon, to be made part of the record. The capias was in the usual form; the return was in the following words: "By virtue of the within, I took the body of the within named Abram White, who is now confined in close jail in the county of Essex under sentence of the Circuit Court of the said county, for petty larceny, as will more fully appear by the order of the said court hereto annexed, and made part of my said return.

"R. HILL,

"D. S. for Warner Lewis, Sheriff.” And then the court, with the defendant's consent, adjourned the following questions to this court:

1. What judgment ought to be given on the demurrer?

2. Taking the whole case into consideration, and having reference, particularly, to the capias which was issued against White, and the return made thereon by the defendant's deputy, and the proceedings