Year: 1860

Legal questions of interest, if not of difficulty.
will doubtless arise upon the trial of johnson,
aLtaS Hicks, now in prison on charge of having
murdered Capt. Burr Mt sea. The idea is very
common, that there can be no conviction for
murder unless the body of the killed be found
1t is true, there is rule that no person should
be convicted in the absence of the body; and
very great English Judge once said: II would
never convict any person Of murder or man.
slaughter. unless the fact was proved to be
done, or the body be found dead" But this
must be taken with qualification; and the cir
cumstances may be sufficiently strong to show
the fact of the murder, though the body has
never been found. Thus, where a prisoner a
mariner named Clark was indicted in England
for the murder of his captain at sea; a witness
stated that the prisoner had proposed to kill
the captain; that the witness being afterwards
alarmed in the night by a violent noise, went
upon deck, and there observed the prisoner
take the captain up and throw him overheard
into the sea. and that he was not seen or heard
of afterwards; that near the place on the deck
where the captain was seen, billet of wood
was found; and that the deck and part of the
prisoners dress were stained with blood-the
Court, though admitting the general rule of
law, left it to the jury to say, upon the evil
dence, whether the deceased was not killed
before his body was thrown into the sea and
the jury being of that opinion, the prisoner was
convicted, and-the conviction being approved
OF by all the judges-was afterwards executed


The prisoners counsel was the well-known
Garrow-afterwards Baron Garrow-who in
sisted that the prisoner was entitled to be ac-
quilted, on the ground that it was not proved
that the captain was dead; and that, as there
were many ships and vessels near the place
where the transaction was alleged to have taken
place, the probability was that he was taken
up b. some of them, and was then alive; and
to strengthen this view the counsel mentioned
the following remarkable case "A mother and
father of a natural child were observed to take
the child to the margin of the dock at Liver
pool, and after stripping it, cast it into the
dock. The body of the infant was not after
wards seen; and as the tide of the sea flowed
and refowed into and out Of the dock, the
Judge upon the trial of the father and mother
for the murder of their child observed that il
was possible the tide might have carried out
the living infant; and upon this ground the
jury by his direction, acquitted the prisoners


1t has been decided in the United States
Court, In Boston, that conviction for murder
may take place when the body is not found
Counsel put forward the proposition that there
ought not to be a conviction for murder unless
the murdered body was actually found; but
Judge Story remarked that such a proposition
certainly could not be admitted as correct in
point of common sense or of law, unless courts
of justice were to establish positive rule to
screen persons from punishment who might be
guilty of the most 1agitious crimes "1n the
cases of murders committed on the high seas"
observed the Judge, 1.-The body is rarely, if
ever, found; and a more complete encourage
ment and protection for the worst offences of
this sort could not be invented than a rule of
this strictness. 1t would amount to a univer-
sal cOndOnaton of all murders committed on
the high seas"


Ii is quite probable that the bodies of the
men murdered on board the sloop f. A. John
son will never be found; and this fact will add
to the difficulties that may oppose the oonvie-
tion Of any one for this crime But, as the
above citations show, these objections will not
in themselves be conclusive. If the evidence
in other respects is satisfactory, the absence of
the body will be no insuperable bar to convic-
ton IN. Y. Times