Knowlton, J.
The exception to the admission of the defendant’s confession because it was reduced to writing by another before it was read to the defendant and signed by him, was waived. By adopting the language, the defendant made it his own. Commonwealth v. Hildreth, 11 Gray, 327.
The next exception is founded on the refusal of the court to give to the jury certain instructions requested by the defendant. These all relate to the evidence in regard to the cause of death of the deceased person, as applied to the allegations of the indictment in that particular. There was evidence that the body when found showed a mortal wound upon the skull, apparently made by a blow with an axe or some similar instrument, the head was nearly severed from the body and bent back under the body, the body was substantially emptied of blood, and both legs were cut off. There was evidence that the defendant said that he knocked the deceased down with an axe, and cut his throat about an hour afterwards to make sure that he was dead, and that he subsequently cut off his legs. According to the testimony, he also said that the deceased “did not bleed much when he cut his throat; that he had got through bleeding, bled as much from the head as anywhere.” At the trial the defendant testified, that- he struck the deceased “first one way and then the other with the axe, and the deceased fell on the floor; that he lifted him up and put him on the bed, found that he had cut his throat considerably with one blow of the axe, and that there was a bruise on his head ”; and that after he was dead he cut off the legs close to the body, and when he was about to bury the body he cut the neck with the axe so that he could bend the head back under the body. There was evidence from medical experts that, while the wound on the head was mortal, it would not be likely to cause death instantly, and that the blood which would flow from it would not be a very large proportion of the whole amount in the body, and that the blood would not [214]*214flow after death. It was also testified that a cut in the throat, severing the principal veins and arteries there, would cause death by bleeding very quickly.
The exception taken was to the refusal of the court to give in terms the instructions requested, and not to the instructions given. So far as the requests relate to the first and second counts of the indictment, the instructions given were sufficiently favorable to the defendant. Each of the first two counts alleges that the death was caused by a wound on the head produced by a blow with an axe. If the wound in the throat caused the death, the defendant’s testimony tended to show that it was produced by a blow from the same axe, inflicted at the same time. There is nothing to show that its size and shape differed much from the description in the indictment. This was not a variance. It is not necessary that allegations of this kind should be proved with literal accuracy. It is enough if the death is shown to have been caused in a manner or by means of the same general character as those charged. The fact that the wound which caused death was in the throat instead of on the temple, if the jury so found, or that its size .and shape were not exactly as alleged, is immaterial. It is not as if the proof showed a death by drowning, when the charge was of a death by shooting. The authorities well warrant a conviction under the first or second counts on facts which the jury may have found in this case. Commonwealth v. Woodward, 102 Mass. 155. Commonwealth v. McAfee, 108 Mass. 458. Sanchez v. People, 22 N. Y. 147. Real v. People, 42 N. Y. 270. Bryan v. State, 19 Fla. 864. Rodgers v. State, 50 Ala. 102. State v. Fox, 1 Dutcher, 566. State v. Hoyt, 13 Minn. 132. State v. Lautenschlager, 22 Minn. 514. State v. Gould, 90 N. C. 658.
In regard to the requests which refer to the third count, the jury were correctly instructed. Under the twelfth article of the Declaration of Rights of the Constitution of Massachusetts, “ No subject shall be held to answer for any crimes or offence until the same is fully and plainly, substantially and formally, described to him.” Under this provision, as well as under the rules of the common law, it is the duty of a grand jury in framing an indictment to state their charge with as much certainty as the circumstances of the case will permit. But an indictment is [215]*215merely the charge or accusation of the grand jury, and if the evidence before them points clearly to the commission of a murder by the prisoner in one or two or three modes, but leaves it doubtful in which, it is proper for them to present different counts in their indictment stating the cause of death in different ways, so that the averment may accord with the facts as they finally appear at the trial; and if, upon the evidence before them, they are in doubt as to what was the cause of death, they may properly frame a count alleging that the death was caused in some manner to them unknown. Commonwealth v. Webster, 5 Cush. 295.
The defendant’s proposition, embodied in his requests for instructions, is, in substance, that such a count cannot be availed of to cover a cause of death of which there is any evidence before the grand jury, and that every cause of which there is any suggestion in the evidence must be specially alleged in the indictment, or it will not support the indictment if proved at the trial. The authorities do not sustain this contention. Where the whole evidence goes far enough to produce in the minds of the grand jury such a conviction in regard to the mode of death as may fairly be called knowledge such that ordinary men would be willing to act upon it as true, they are bound to allege the cause particularly in the indictment; but if not, although it is proper to charge specifically in one or more counts such facts in the description of the offence as seem probable on the evidence, they may charge that the death was by means to them unknown. Commonwealth v. Hill, 11 Cush. 187, 141. Commonwealth v. Sawtelle, 11 Cush. 142. Commonwealth v. Martin, 125 Mass. 394. It has also been repeatedly decided in this Commonwealth, that if the grand jury might, by the exercise of reasonable diligence, have ascertained the facts alleged to be unknown, that does not preclude them from making their allegation in this form, nor create a variance under such an allegation. Commonwealth v. Stoddard, 9 Allen, 280. Commonwealth v. Sherman, 13 Allen, 248. Commonwealth v. Pratt, 145 Mass. 248.
The defendant excepted to the following instruction: “ You will understand by the observation that the statement of the grand jury that they did not know the cause of death, or that the death was caused in ways and by means unknown to them, [216]*216is to be taken into account not strictly or technically as evidence, but is to be taken in connection with any evidence on that subject before you, to determine the question as to whether the grand jury did or did not know the cause of the death of Whalen.” This instruction is to be considered in connection with other instructions in reference to the same subject. In reference to this allegation in the third count, the judge said: “ The burden here is still upon the government to make out its averments by satisfactory proof. ...
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Knowlton, J.
The exception to the admission of the defendant’s confession because it was reduced to writing by another before it was read to the defendant and signed by him, was waived. By adopting the language, the defendant made it his own. Commonwealth v. Hildreth, 11 Gray, 327.
The next exception is founded on the refusal of the court to give to the jury certain instructions requested by the defendant. These all relate to the evidence in regard to the cause of death of the deceased person, as applied to the allegations of the indictment in that particular. There was evidence that the body when found showed a mortal wound upon the skull, apparently made by a blow with an axe or some similar instrument, the head was nearly severed from the body and bent back under the body, the body was substantially emptied of blood, and both legs were cut off. There was evidence that the defendant said that he knocked the deceased down with an axe, and cut his throat about an hour afterwards to make sure that he was dead, and that he subsequently cut off his legs. According to the testimony, he also said that the deceased “did not bleed much when he cut his throat; that he had got through bleeding, bled as much from the head as anywhere.” At the trial the defendant testified, that- he struck the deceased “first one way and then the other with the axe, and the deceased fell on the floor; that he lifted him up and put him on the bed, found that he had cut his throat considerably with one blow of the axe, and that there was a bruise on his head ”; and that after he was dead he cut off the legs close to the body, and when he was about to bury the body he cut the neck with the axe so that he could bend the head back under the body. There was evidence from medical experts that, while the wound on the head was mortal, it would not be likely to cause death instantly, and that the blood which would flow from it would not be a very large proportion of the whole amount in the body, and that the blood would not [214]*214flow after death. It was also testified that a cut in the throat, severing the principal veins and arteries there, would cause death by bleeding very quickly.
The exception taken was to the refusal of the court to give in terms the instructions requested, and not to the instructions given. So far as the requests relate to the first and second counts of the indictment, the instructions given were sufficiently favorable to the defendant. Each of the first two counts alleges that the death was caused by a wound on the head produced by a blow with an axe. If the wound in the throat caused the death, the defendant’s testimony tended to show that it was produced by a blow from the same axe, inflicted at the same time. There is nothing to show that its size and shape differed much from the description in the indictment. This was not a variance. It is not necessary that allegations of this kind should be proved with literal accuracy. It is enough if the death is shown to have been caused in a manner or by means of the same general character as those charged. The fact that the wound which caused death was in the throat instead of on the temple, if the jury so found, or that its size .and shape were not exactly as alleged, is immaterial. It is not as if the proof showed a death by drowning, when the charge was of a death by shooting. The authorities well warrant a conviction under the first or second counts on facts which the jury may have found in this case. Commonwealth v. Woodward, 102 Mass. 155. Commonwealth v. McAfee, 108 Mass. 458. Sanchez v. People, 22 N. Y. 147. Real v. People, 42 N. Y. 270. Bryan v. State, 19 Fla. 864. Rodgers v. State, 50 Ala. 102. State v. Fox, 1 Dutcher, 566. State v. Hoyt, 13 Minn. 132. State v. Lautenschlager, 22 Minn. 514. State v. Gould, 90 N. C. 658.
In regard to the requests which refer to the third count, the jury were correctly instructed. Under the twelfth article of the Declaration of Rights of the Constitution of Massachusetts, “ No subject shall be held to answer for any crimes or offence until the same is fully and plainly, substantially and formally, described to him.” Under this provision, as well as under the rules of the common law, it is the duty of a grand jury in framing an indictment to state their charge with as much certainty as the circumstances of the case will permit. But an indictment is [215]*215merely the charge or accusation of the grand jury, and if the evidence before them points clearly to the commission of a murder by the prisoner in one or two or three modes, but leaves it doubtful in which, it is proper for them to present different counts in their indictment stating the cause of death in different ways, so that the averment may accord with the facts as they finally appear at the trial; and if, upon the evidence before them, they are in doubt as to what was the cause of death, they may properly frame a count alleging that the death was caused in some manner to them unknown. Commonwealth v. Webster, 5 Cush. 295.
The defendant’s proposition, embodied in his requests for instructions, is, in substance, that such a count cannot be availed of to cover a cause of death of which there is any evidence before the grand jury, and that every cause of which there is any suggestion in the evidence must be specially alleged in the indictment, or it will not support the indictment if proved at the trial. The authorities do not sustain this contention. Where the whole evidence goes far enough to produce in the minds of the grand jury such a conviction in regard to the mode of death as may fairly be called knowledge such that ordinary men would be willing to act upon it as true, they are bound to allege the cause particularly in the indictment; but if not, although it is proper to charge specifically in one or more counts such facts in the description of the offence as seem probable on the evidence, they may charge that the death was by means to them unknown. Commonwealth v. Hill, 11 Cush. 187, 141. Commonwealth v. Sawtelle, 11 Cush. 142. Commonwealth v. Martin, 125 Mass. 394. It has also been repeatedly decided in this Commonwealth, that if the grand jury might, by the exercise of reasonable diligence, have ascertained the facts alleged to be unknown, that does not preclude them from making their allegation in this form, nor create a variance under such an allegation. Commonwealth v. Stoddard, 9 Allen, 280. Commonwealth v. Sherman, 13 Allen, 248. Commonwealth v. Pratt, 145 Mass. 248.
The defendant excepted to the following instruction: “ You will understand by the observation that the statement of the grand jury that they did not know the cause of death, or that the death was caused in ways and by means unknown to them, [216]*216is to be taken into account not strictly or technically as evidence, but is to be taken in connection with any evidence on that subject before you, to determine the question as to whether the grand jury did or did not know the cause of the death of Whalen.” This instruction is to be considered in connection with other instructions in reference to the same subject. In reference to this allegation in the third count, the judge said: “ The burden here is still upon the government to make out its averments by satisfactory proof. ... If you find that the grand jury did know the cause of death, and that this statement in the third count that they did not know is unfounded has been shown to be so, or is not proved to be true, then you cannot convict the defendant on this third count.”
An allegation that a death was by means to the grand jury unknown may be divided into two parts. So far as it is strictly a description of the offence it is merely an averment that the death was by means not stated; besides that, it gives a reason for not making a more specific charge in this particular, namely, that the grand jury are ignorant in regard to it. This part of the allegation is in no proper sense a description of the offence. It relates to the form of the indictment, and is made solely as a justification of the count which fails to state what ordinarily should be stated. It is a recital of a fact, which, if true, shows that the indictment is in proper form. It has been decided that under a count of this bind, in the absence of evidence tending to show knowledge on the part of the grand jury, the Commonwealth need not prove affirmatively that they were ignorant of that which is alleged to be unknown. Commonwealth v. Thornton., 14 Gray, 41. Commonwealth v. Glover, 111 Mass. 395, 401. In such a case the maxim Omnia rite acta prcesumuntur may well be held applicable. Berlin v. Bolton, 10 Met. 115, 120. Griffin v. Rising, 11 Met. 339, 347. Flagg v. Worcester, 8 Cush. 69, 72. The existence of facts which relate only to the form and not to the substance of proceedings taken by a public officer, or by a legal tribunal, need not be proved in the first instance if they are recited, and if the action taken appears upon the recital to be regular and proper. Thus it will be assumed until the contrary appears that a special justice of a police or district court, who has authority to receive complaints and issue warrants when the [217]*217court is not in session, is acting within his authority when he issues and signs a warrant as special justice. Commonwealth v. Lynn, 154 Mass. 405, and cases cited. If a record of a police court recites facts which authorize a special justice to hold the court, it is not necessary to prove these facts in the first instance, but there is a presumption that his action was regular, and that the facts recited which show proper action are true. Commonwealth v. Fay, 126 Mass. 235. Commonwealth v. Fay, 151 Mass. 380. On the facts stated in this indictment, the action of the grand jury in presenting the third count was regular, and on their recital of a fact which bore only on their right to proceed in that way there was a presumption that proceedings which appeared to be warranted were regular, and that the recital was correct. When the regularity of their action was attacked by the introduction of evidence bearing upon it, the burden was on the Commonwealth to establish it. So far as the allegations of the indictment related to conduct of the defendant, the Commonwealth was bound to prove them by extrinsic evidence beyond a reasonable doubt. But in regard to the alleged ignorance of the grand jury, we are of opinion that the jury should consider the evidence in connection with the fact that the action of such a tribunal, under the official oaths of its members, carries with it a presumption of regularity. We see no error in the instruction.
The final instruction of the judge in regard to the statement of the prisoner in his address to the jury was in accordance with the request of the prisoner’s counsel, and if there was any error in the original reference to the statement it was corrected in such a way that the defendant was not injured by it.
Fxeeptions overruled.
On February 21, 1893, the defendant filed in the Supreme Judicial Court a petition for a writ of error, setting forth that on February 14, 1893, he filed with the Superior Court a motion for a new trial, which was overruled on February 18, 1893, and that this action was erroneous, and the petitioner made the following assignments of error in reference thereto:
“ First. That the court gave no instructions to the jury upon evidence which, if believed, would have reduced the homicide below murder in the first degree.
“ Second. That at the close of the charge the defendant’s counsel were informed by the court that it was too late to ask for instructions (meaning instructions other than those presented in writing before the arguments), [218]*218whereby they were prevented from calling the attention of the judge to his omission to charge the jury upon any issues raised in the trial and not covered by his charge.
“ Third. That it was an error of fact for the justices to believe on the question of bias of a juror the affidavits of the juror as against those offered by the defendant, and if they did not so believe the affidavits of the juror and believed the affidavits offered by the defendant it was error in law for them to overrule the defendant’s motion.
“ Fourth. That it was error of fact for said justices to find that said juror was qualified to act, because such finding was against the evidence and the weight of the evidence ; and it was error in law, because it involved and abridged the rights of the defendant under the Constitution of this Commonwealth and of the United States which he is entitled to have finally passed upon by this court.” ’
Hearing on February 21, 1893, before Field, C. J., Allen, Holmes, Morton, and Lathrop, JJ. The following was the opinion of the court.
Field, C. J, The petition does not show that the justices of the Superior Court who heard the motion for a new trial, being the same justices who presided at the trial, in overruling the motion, made any ruling upon any question of law. We do not know what they found the facts to be with reference to the allegations contained in the motion. Upon the evidence exhibited before them, they in their discretion refused a new trial. We cannot revise the exercise of this discretion on a writ of error.
Petition denied.