(after summing up the facts). The first question to be decided is, whether the court has jurisdiction over the offence, as proved in the evidence; or in other words, was the offence committed on the high seas, within the true intent and meaning of the act of the 30th of April, 1790, c. 9, § 87 From the language of the act I am of opinion, that the words, “high seas,” mean any waters on the sea coast, which are without the boundaries of low water mark; although such waters may be in a roadstead or bay with'n the jurisdictional limits of a foreign government. Such is the meaning attached to the phrase by the common law; and supported by the authority of the admiralty, perhaps to a more enlarged extent. 3 Inst 113; 1 Rolle, 250; 4 Inst. 134; 1 Inst 260a; Hale de Port in Harg. 10; 5 Coke, 106; Exton, 80, etc.; Com. Dig. “Admiralty,” E (7); 2 East, P. Cl 803. The additional words of the act, “in any river, haven, basin or bay, out of the jurisdiction of any particular state,” refer to such places without any of the United States, and not without foreign states, as will be very clear on examining the provision as to the place of trial, in the close of the same section.
In the present case, the crime was not completed, until the vessel was standing out at sea under sail. The mortal stabs were given, when the vessel was about a half mile from the shore; but the death did not happen, until the vessel had either drifted or sailed a considerable distance. I do not however deem the difference material. Had the death oc-eurred instanter, I think it would have been a homicide on the high seas.
To constitute the crime of murder, it is not
In-the present case, the prisoner and his associates, if the evidence be believed, had entered into a most atrocious conspiracy, in which they were but too successful. The murder (for there can be no doubt it was such in some one of the party) was committed in • the course of the execution of that conspiracy. It was a natural, though not a necessary consequence, of the attempt to execute it. The conspirators appear to have armed themselves for the purpose of ensuring success at all hazards; and, indeed, so is the confession of the prisoner himself. It is said, that the original intention of the prisoner and his associates was, not to commit murder, but forcibly to seize the vessel; that such an act was not a felony, but a mere marine trespass, - and therefore if death ensued, it- would hot be murder.
Whether the intention was felonious or not, may not be very material to settle. If by a felony be meant an act punishable with death in the United States, or for which the goods and .lands of the party were forfeitable at common law, the conclusion is correct; for the running away with a vessel of the United States is a capital offence only in a captain or mariner of the vessel, and the common law forfeitures do not attach on such an offence. 2 East, P. C. 796. But if by a felony be meant an act punishable by the common law with death, there can be no doubt, that the intention in this case was felonious, for if the evidence be believed, it was a clear case of piracy at the common law. But even supposing the intention was not felonious, still the distinction of the prisoner’s counsel cannot be supported.
If a number, of persons conspire together to do any unlawful act, and death happen from any .thing done in the prosecution of the design, it is murder in all, who take part in the same transaction. Fost ■ Crown Law, 344,350, 351; 1 East, P. C, 259. If the design he to commit a .trespass, the death must ensue in prosecution of. the original design, to make it murder in all. 1 Hale, P. C. 443, 444; J. Kel. 112, &c.; Fost. Crown Law, 351. If to commit a felony, it is murder in all, although the death take place collaterally, or beside the' •principal design. 1 East, P. C. 255, 256, 258; Fost. Crown Law, 258. More especially will .the death be murder,‘if it happen in the exe-. cution of an unlawful design, which, if not a felony, is of so desperate a character, that it must ordinarily be attended with great hazard to life; and, a fortiori, if death be.one of the events, within the obvious expectation of the conspirators. Fost Crown Law, 261, 351-353.
If, therefore, the jury believe the evidence, that the prisoner with his associates did conspire to seize the schooner with force, and run away with her, against the will of the master and crew, and meant in the prosecution of such conspiracy, if necessary, to kill whoever should oppose them in executing their project; that the prisoner was the chieftain and actually present on board, aiding and assisting in accomplishing the project by all the means in his power; and one of the associates did, on that occasion, kill the unhappy passenger, in aid of the general design; I hold, that the homicide so perpetrated was murder, and that the prisoner and all his associates then present were principals in guilt. See Fost. Crown Law, 349, 350.
• The jury found a verdict of not guilty.