An appeal of murder may be prosecuted by the wife for the death of her husband, or by the heir-male for the death of his ancestor • which heirship was resir:ct ed, by an ordinance of kizig Henry I, to the four nearest degrees of blood. Anciently, a female might have an appeal, at common law, as heir to any ancestor, as well as the male ; but by magna charta, "nullus captatur vel imprisonetur propter appellunz fzenzinx de merle alterius gztanz ifirtsui." (3 Salk. 37.) This appeal, then, is given to the wife for the loss of her husband; she must, therefore, be a wile de facto: but if she marries again, either belbre or pending her appeal, it is lost; or if she marries after judgment, she shall not demand execution. The heir who prosecutes an appeal must be immediate heir to the ancestor killed, at the time of committing the murder, otherwise his suit shall not be received. But to this rule there are three exceptions. 1. If the person slain leaves an innocent wife, she only shall have the appeal. 2. If there be no wife, and the heir be ac cused of the murder, the next heir-male shall bring the appeal. 3. If the wife kills her husband, the heir may prosecute the appeal. The appeal must be brought within a year and a clay after the death of the person murdered; and the court must set forth the fact, the length and depth of the wound, the year, day, hour, place, and weapon used, &c., and that the party died within the year and day. Principal and accessaries, both before and after, are to be joined in appeal ; and this is to be observed, although the accessary is guilty in another country. There is but one appeal against the principal and accessary : if the principal be acquitted, it shall acquit the accessary ; and both shall have da mages against the appellant on a false appeal ; or the accessary may bring a writ of conspiracy.
These appeals may be brought previous to any in dictment; and if the appeiler be acquitted thereon, he cannot be afterwards indicted for the same offence. In like manner, as by the old Gothic constitution, if any. offender gained a verdict in his favour, when prosecu ted by the party injured, he was also understood to be acquitted of any crown prosecution for the same offence: but, on the other hand, if he made his peace with the king, he might, notwithstanding, be prosecuted at the suit of the party. And so, in England, if a man be ac quitted on an indictment of murder, or found guilty, and pardoned by the king, he is still liable, by virtue of the statute 3 Hen. VIII. e. 1, to be prosecuted by ap peal for the same felony, not having as yet been punish ed for it; though, if he has been found guilty of man slaughter on an indictment, and has had the benefit of clergy, and suffered the sentence of the law, he cannot be afterwards appealed: for it is a maxim of law, that "nenzo bis punitur pro eodem delicto." If the appellee be found guilty, lie shall suffer the same judgment as if he had been convicted on an indictment, but with this remarkable difference, that on an indictment, which is at the suit of the king, the king may pardon and re mit the execution; whereas, on an appeal, which is at the suit of a private subject, to obtain satisfaction for a private wrong, the king can no more pardon it, than he can remit the damages recovered on an action of battery: In like manner, when the weregilds continued to be paid, as a fine for homicide, they could not be remitted by the king's authority. (LL. Edm. § 3.) And the an
cient usage was, so late as Henry the Fourth's time, that all the relations of the person slain should drag the criminal to the place of execution; a custom founded upon that savage spirit of family resentment which pre vailed universally throughout Europe after the irruption of the northern nations, and is peculiarly attended to in their several codes of law, and which still prevails among the wild and untutored inhabitants of America, as if the finger of nature had pointed it out to mankind in their rude and uncultivated state. (Robertson, Charles V. i. 43.) The punishment of the offender may, how ever, be remitted and discharged by the concurrence of all parties interested ; and as the king, by his pardon, may frustrate an indictment, so the appellant, by his re lease, may discharge an appeal: " /lam quilibet Jzotest renunciare juri, pro sc introducto." With regard to the mode of prosecuting appeals, this may be done in two ways; either by writ or by bill. ?ip peal by writ is when a writ is purchased out of chancery by one for another, for the purpose of appealing a third party of some felony committed by him; finding pledges that he shall prosecute. ApPeal by bill is where a man of himself delivers up his accusation in writing, offering to undergo the burden of appealing the person therein named. This appeal may be brought by bill before the justices in the King's Bench ; before justices of gaol delivery, and commissioners of over any ternziner, &c., or before the sheriff and coroner in the county court. But the sheriff and coroner have only power to enter the appeal ; for it must be removed by certiorari into B. R. If there be an indictment and an appeal depend ing at the same time against the same person, the ap peal shall be tried first, if the apellant be ready ; but if the appellant does not prosecute his appeal, the appel lee may be tried on the indictment.
Appeal is the nicest suit in law ; for any small matter will abate it. In a writ of ajzpeal, the omission of any material word will destroy it. The process must bear date the same day with the return of the writ; if it be a day afterwards, it is a discontinuance: and it differs from all other proceedings; for there can be no amend ment of the writ, nor is the discontinuance of it helped by any statute.