reinforced the Statute 25 E. 3. and reduced all new Treasons to the old Standard of 25 E. 3. and so all Treasons declared between 25 E. 3. and 1 Ma. were abrogate 3. All Treason includes Felony therefore if the Indictment want proditoriè a Pardon of all Felonies discharges it Now concerning the kinds of High Treason Compassing and imagining the death of the King Queen or Prince and declaring the same by some open Deed. I. What is a Compassing the death Declaring by an open act a design to Depose or Imprison the King is an Overt act to manifest the compassing of his Death II. What a King 1. A King before his Coronation a King within this Statute when the Crown descends upon him 2. A King de facto and not de jure a King within this Act and a Treason against him is punishable though the right Heir get the Crown 3. A Titular King that is not Regnant as the Husband of the Queen not a King within this Act and the Stat. 1 2. Ph. Ma. c. 10. but the Queen is 4. The right Heir to the Crown yet not in Possession therefore is not a King within this Act. III. What the King's Wife It extends not to the Queen Dowager IV. What the eldest Son and Heir of the King within this Act The second Son after the death of the eldest within the Act. The eldest Son of the Queen Regnant within the Statute The Collateral Heir apparent as Roger Mortimer 11 R. 2. the Duke of York 39 H. 6. not Son and Heir within this Act yet Quaere V. What an Overt act requisite to make such comparing Treason 1. An Overt act must be alledged in every such Indictment proved 2. Compassing by bare words is not an Overt act as appears by many temporary Statutes against it 1 El. c. 6. 13 El. c. 1. but the same set down by him in writing is an Overt act yet now it has been adjudged that words are an Overt act and the Law taken accordingly 3. Conspiring the death of the King and providing weapons to effect it or sending Letters to second it assembling People to take the King into their power Lord Cobham's writing Letters to a Foreign King to invade an Overt act Conspiring to levy War no Overt act unless levied because relates to a distinct Treason II. Treason levying War against the King 1. Conspiring or compassing to levy War without a War de facto no Treason but if a War levied the Conspirators Traytors as well as the Actors This appears by the Stat. 13 El. c. 1. that made such Conspiracy Treason during the Queens life 2. Raising a Force to burn or throw down a particular Inclosure only a Riot but if it had been to have gone from Town to Town and cast in all Inclosures Bradshaw's case or to change Religion or to inhance the Salaries of Labourers a levying of War because the Enemy publique 3. Joyning with Rebels pro timore mortis and recessed quam cito potuerunt ad Castles no Treason 3 Inst 10. 4. Holding a Force or Castle against the King's Force a levying of War III. Treason adhering to the King's Enemies giving them Aid within the Land and without 1. What adhering Giving Aid and Comfort to them surrendring the King's Castle for reward 2. What an Enemy The Subject of the King becoming a Rebel he that out of the Realm succours him this not adhering to an Enemy within the Clause An Enemy coming hostilely into England shall be dealt with as an Enemy executed by Marshal Law or ransomed but a Subject assisting shall be dealt with as a Traytor The Scots invading England in the Queens time adjudged Enemies though Scotland then in Amity Lord Herris Case 3 Inst p. 11. 3. Within the Land or without how that Foreign Treason shall be tried 1. At Common Law for a Foreign Treason the Indictment and Trial must be where the Land lies 2. Per Stat. 35 H. 8. c. 2. yet in Force it may be tried or inquired of in B. R. or by Commissiion in any County where the King appears the King's Signiture may be either to the Commission or Warrant thereof Treason done in Ireland is within that Statute Perrot's Case Per Stat. 28 H. 8. c. 15. Treason upon the Sea inquirable and triable by Commission in any County at Common Law it must be before the Lord Admiral IV. Treason Violation 1. The King's Wife extends not to a Dowager if she consent 't is Treason in her 2. The Prince's Wife same Law as before 3. The King 's eldest Daughter then living Thus far of Treason that relates to the King's Person and nearest Relations wherein generally 1. There must be an Overt act to manifest the Evidence and word of mouth is Overt act as it has been adjudged vide the Statute of 13 Car. 2. cap. 1. 2. That it must be made appear by manifest proof and not by conjectures 3. He must be lawfully attaint thereof either by Confession or by his Peers in his life time And therefore if a Person be slain in open War he forfeits nothing neither can he be attaint in such case but by Parliament Thus far of Treasons relating to the King immediately now follows that which is interpretative Treason Killing the Chancellor Treasurer Justice of one Bench or other Justice in Eyre or of Assise or Oyer and Terminer in their place doing their Offices 1. This extends but to the Persons here named not to the Lord Steward Constable or Marshal or Lords of Parliament 2. It extends to those only during their Office 3. It extends only to killing not wounding without death But by Stat. 3 H. 7. c. 14. compassing to kill the King or any of his Councel made Felony Counterfeiting the Great Seal or Privy Seal 1. It must be an actual counterfeiting thereof compassing to do it no Treason 2. Affixing the Great Seal by Chancellor without Warrant no Treason 3. Fixing a new Great Seal to to another Patent is a great Misprision but no Treason nor a Counterfeiting within this Statute 4. Aiders and Consenters to such Counterfeiting are within this Act. 5. The Counterfeiting of the Privy Sign or Sign Manual no Treason within this Act but made so by the Statute 1 Ma. c. 6. V. Treason concerning the Coyn. 1. Counterfeiting the Kings Coyn this was Treason at Common Law and Judgment only as of Petty Treason But whereas Clipping c. is made Treason by subsequent Statutes the Judgment is to be hang'd drawn and quartered because introductive of a new Law Herein considerable 1. What shall be a Counterfeiting Clipping Washing and Filing of Mony for lucre or gain any of the proper mony of the Realm or of other Realms allowed to be current by Proclamation not within this Statute but made High Treason by Stat. 18 El. c. 1. but without corruption of blood or loss of Dower 2. What is Mony
wage Battel 5. Clerk Convict may 3. In what cases 1. None can approve but a person Indicted therefore if only in Prison upon suspicion he may indeed confess the Felony but such Confession amounteth not to an Attainder or Conviction though it be an Evidence and therefore cannot approve 2. The Appellee in Appeal cannot be an Approver 3. The Appellee of Approver cannot be Approver for that would be infinite 4. Though a person Indicted approve yet if after Appeal be against him Approver ceaseth 5. He that hath once pleaded to the Felony cannot be an Approver but shall be hanged for he is found false 4. Of what Offences It must be only of the Offences contained in the Indictment be it Felony or Treason and therefore not of another Offence nor of an Accessary before or after to the same yet his Oath general therefore as to other Offences it is but a Detection not an Approvement 5. Before whom Before such Judges only as can assign as Kings Bench Goal Delivery Oyer and Terminer High Steward but not before Justices of Court Baron or County Court. But it is in the discretion of the Court to suffer him to be Approver or to respite Judgment and Execution till he hath Convicted all his Partners 6. How Demeasned after Appeal 1. After Felony confessed upon Arraignment a Coroner assigned and sworn in Court to discover Offenders 2. A day prefixt within which he is to perfect his Appeal before the Coroner and in every of these days he must Appeal for if he fail and Court record it to be hanged The limit to perfect his Appeal by 5 E. 3. c. 34. 183 days but that Repealed 15 El. 3. During time limited for his Appeal he shall be at large and have 1 d. per diem till Appeal perfected 4. If he Appeal persons beyond Sea or if Appeal such as are not in rerum natura and that appear by Testimony of County or by Retorn of Sheriff quod non fuit invent ' he shall be hanged 5. After his Appeal formed before Coroner he must repeat it verbatim to Court and if he fail thereof and Court Record it he shall be hanged 7. Process in Appeal 1. In the same County Coroner may award Process to Sheriff till Exigent 2. If Appellee be in a foreign County yet the Judges before whom the Appeal is may grant Process viz. B. R. or Itinerant by Common Law And by Stat. 28 E. 3.1 de Appellis the Justices of Goal Delivery may send Process into a foreign County as well to apprehend the Appellee as a Venire Facias to try the Issue 8. Proceedings upon Trial. The Appellee may put himself upon County or wage Battel If five Appellees and they wage Battel he must fight them all If two approve against one Appellee if the Appellee vanquish the first he is acquitted against the rest though Appellor retract his Appeal or be vanquished yet if Offence be within Clergy he shall have it and so of Appellee 9. Proceedings after Trial. If Appellor convict Appellee either by Battel or Verdict the King ex merito justitiae is to pardon him and from the time of his Appeal till his Pardon or Conviction ought to have wages Indictments THESE things considerable 1. Where an Indictment requisite in cases Capital where not 2. What the quality of the Indicator 3. Of what matters they may Enquire 4. Before whom found 5. What requisite in the manner of them 1. Where an Indictment requisite for party to be Arraigned at King's Suit 1. By ancient Common Law if a man was taken in Larceny with the manner and that brought into Court with Prisoner Prisoner shall be Arraigned thereupon without Indictment St. P.C.f. 148. And such was the use of the Manner that had infang Thief Ibid. f. 29. v. 1 E. 3.17.17 Ass 99. but this disused 2. If Trespass be brought de muliere abductâ cum bonis viri and the Defendant found Guilty or if in Trespass for Goods the Defendant be found that he stole them this in the King's Bench equivalent to an Indictment and the Defendant be put to answer Felony 3. In some Cases upon Appeals by Appellors or Approvers not prosecuting c. Defendant Arraigned at King's Suit because it carries a presumption of truth and therefore if Defendant be both Appealed and Indicted upon a non prosecution of the Appeal the party shall be Arraigned upon the Appeal not the Indictment 4 E. 4.10 Wherein 1. If Plaintiff in Appeal by Writ be Nonsuit before Declaration he shall not be Arraigned at King's Suit 1. Because not certainty 2. Writ may be at anothers Suit but if it be by Bill either by Appellor or Approver it seems he shall because the certainty appears therefore in the former Case if there be no Indictment against him he is dismissed 2. If Plaintiff release his Appeal after he hath commenced it party shall be Arraigned at Kings Suit But if before it was commenced then not 3. If Plaintiff or Approver after Appeal commenced confess it false Appellor hang'd and Appelle discharged because amounts to a vanquishment 4. If Appeal abate by Act of Plaintiff as taking Husband or act in Law as death Appellee Arraigned at King's Suit but if it abate by insufficiency in the Appeal as by false Latin Misnomer or because Plaintiff disabled to commence Appeal as Utlary of Felony or Trespass or the year or day past or Plaintiff not Wife or Heir of Defendant not Arraigned upon Appeal but may be Indicted 5. If King pardon after Battel joined in Appeal by Approver no Arraignment at King's Suit but Appellee discharged And note where Prisoner Arraigned upon the Appeal a Cesset Process is entred upon the Indictment The return of the Sheriff of Rescue or Escape of a Felon not sufficient to put the party to answer the Felony 2. The second considerable is the quality of the Indictor Concerning Indictments in Leets and Turns v. ante upon Stat. W. 2. c. 13. 1 E. 3. c. 17. 1 R. 3. c. 4. 1 E. 4. c. 3. There is a general Statute that refers all Indictments as well in case of Felony as Treason 11 H. 4. c. 9. which requires 1. Indictors not to be 1. Persons fled to Sanctuary for Felony or Treason 2. Not outlawed 3. Not Indicted or Attainted 4. Not by Conspiracy 2. That Indictors be the King's Liege people 3. Returned by the Sheriff as Bailiff of Franchises 4. Not at the Denomination of any person And all Indictments taken contrary are void Hence it follows 1. That Prisoner upon Arraignment may plead this matter or any point of it and may plead over to the Felony Vide Scarle's Case 2. Though there be twenty of the grand Jury yet if one was outlawed or taken at the Denomination of another it voids the whole Indictment By Stat. 3 H. 8. c. 12. Justices of Goal Delivery or of Peace whereof one of the Quorum in open Sessions may reform the Pannel
This extends only to proper Mony of this Realm But now 1 Ma. c. 6. Forging or Counterfeiting Mony made currant by Proclamation is High Treason 14 El. c. 3. Forging of Forreign Coin not current here Misprision of Treason in the Forgers their Aiders and Abettors And Note the bare forging of the King's Coin without uttering is Treason The second Offence concerning Mony declared Treason is if any Person bring into this Realm counterfeit Mony 1. It must be Counterfeit 2. Counterfeited to the similitude of English Mony 3. Brought from a Forreign Realm and therefore not from Ireland barely 4. Brought knowingly 5. Brought and not barely uttered here But if false or clip't Mony be found in his hands by the Statute De Moneta if he be suspicious he may be arrested till he have found his Warrant 6. He must merchandize therewith or make payment thereof Concerning High Treason made by the subsequent Statutes in force 5 El. c. 1. Refusing Oath of Supremacy upon second tender Treason without corruption of Blood Extolling power of Bishop of Rome Premunire by bringing in Bulls or putting in execution or reconciling to the See of Rome thereby Treason Bringing in Agnus Dei Premunire 23 El. c. 1. Absolving Subjects from Obedience or reconciling them to Obedience of Rome Treason in 27 El. 2. Priest coming into England not submitting in two days Treason The like for English men in Forreign Seminaries Petty Treason IS confined by Stat. 25 E. 3. to three Particulars 1. Where a Servant kills his Master This extends to some other Cases 1. Servant kills his Mistress 2. Servant kills his Master's Wife 3. Where a Servant upon Malice taken during his Service kills his Master after departure from his Service 2. Wife killing her Husband If Wife and a Stranger kill the Husband petty Treason in the Wife Murder in the Stranger If the Wife or Servant procure a Stranger to kill her Husband or Master the Procurer accessary only to Murder But if she procure a Servant to do it Treason in both 3. Ecclesiastical Secular or Regular kills Superior Note Aiders Abetters and Procurers to Petty Treason are within this Act. This Act not taken by Equity Son kills Father or Mother 't is Petty Treason receiving Meat Drink or Wages The Judgment in Petty Treason for a Man to be hang'd and drawn A Woman to be burnt Whatsoever will make a Man guilty or principal in Murder will make him guilty or principal in Petty Treason But if the Servant kill the Master upon a sudden falling out this is not Petty Treason but Manslaughter If the Servant or Wife be of Confederacy to kill the Husband or Master and be in the same House though not in the same Room they are principal and guilty of Petty Treason for 't is a presence Of Felonies AND first of Felonies of death of a Man Now for Felonies they are either by Common Law or Statute Law Felonies by Common Law of four kinds 1. Such as are committed against the Life 2. Such as are against the Goods of a Man 3. Such as are against the Habitation of a Man 4. Such as are against the Process of Publique Justice Felonies committed against Life of two Natures 1. That which is committed against his own Life Felo de se 2. Committed against another Man's Life involuntarily 1. Per infortunium and therein of Deodands 2. Per necessitatem in Defence of Justice in defence of self 3. Voluntary without Malice with Malice Felo de se 1. The Person 1. As in other Felonies so in this the Person that commits it must be of years of discretion Compos mentis otherwise there is no Forfeiture Therefore if a Lunatick during his Lunacy a Man distract by force of Disease or Non compos mentis kill himself no Felony 2. As in other Felonies the death must ensue within a year and day after stroke 2. The act may be voluntary involuntary in some Cases If A. assault B. and B. falling down with his knife drawn A. in pursuit to kill B. by haste falls down upon the knife A. is Felo de se and forfeits Goods But if B. was standing on his Defence with his knife drawn A. runs upon the Weapon and kills himself not Felo de se 3. Conviction 1. If the Body can be seen then the Conviction before Coroner super visum Corporis not traversable 2. If not seen then before Justice of Peace and then traversable by the Executor or Administrator In the same manner if enquired in B. R. in same County traversable 4. Forfeiture relates to stroke Villain strikes himself Lord seizes his Goods Villain dies King shall have them Of what Joint things in Action all forfeited unless in case of Merchants Joint things several Moieties forfeited But Joint Chattels in Husband and Wife all Forfeit for Offence of Husband Chancemedley Felony of death of another either involuntary or voluntary Involuntary per infortunium ex necessitate Involuntary per infortunium Chancemedley where a Man doing a lawful act without intent of hurt to another and death casually ensues As shooting at Rovers or at a Bird or hewing a Tree and the Hatchet-head flies off or a Schoolmaster in reasonable manner beating a Scholer or a Father his Son or a Master his Servant Doing a lawful thing that may breed danger and giving warning Justing by command of the Prince But if the act be unlawful then death ensuing Manslaughter or Murder Shooting at a Deer in anothers Park the Arrow glanceth and killeth a stander by Manslaughter Throwing stones or shooting in the High-way and death ensuing Manslaughter But if a man knowing people passing by in the street throw a stone over the wall Murder Playing at Hand-sword without command of Prince death ensuing Manslaughter So that an unlawful act without an ill intent makes it Manslaughter with an ill intent Murder And where it is found involuntary per infortunium causeth forfeiture of Goods but a Pardon of Course upon Special matter found Deodand But there is a death per infortunium without the default or procurement of another fall from a Tree or by a Horse or Cart and the thing that occasions the death is Forfeited and Deodand wherein considerable 1. What forfeited as a Deodand If a man fall from a Cart or Ship in Freshwater 't is a Deodand otherwise in Saltwater 2. If an Infant under fourteen be slain by fall from Cart Horse or Mill no Deodand but if slain by a Horse Ox or Mill then a Deodand If a man kill another with any Sword a Deodand 2. When forfeited When found by Inquisition therefore the Jury ought to find the price this is before the Coroner Homicide ex necessitate This of several sorts 1. In reference to Justice 2. In defence of his Person House Goods c. Homicide ex necessitate in reference to Justice of several kinds 1. In execution of Justice 2. In advancement of
Justice Homicide in Execution of Justice requires certain prescripts 1. That the Judgment given be by one that hath Jurisdiction in the Cause If a Justice of Peace give Judgment in Treason the Execution thereof Murder in Judge and Officer But if he give Judgment of Felony in Treason Felony in the Judge but not in him that executes it 2. That it be done by a lawful Officer Therefore if a Stranger of his own head or the Judge that gives the Sentence Executes when it is to be done by Sheriff Felony 3. That it be done pursuant to Judgment Judgment to be hang'd Sheriff beheads him Felony Homicide in advancement of Justice in Causes Criminal Civil 1. In Causes Criminal If a Sheriff or Bailiff having warrant to arrest a Person indicted of Felony and he will not obey and suffer himself to be arrested the Bailiff kills him no Felony The same if any Person pursues upon Hue and Cry or otherwise to arrest a Felon that flies If a Felon arrested break away from his Conductors to Goal they may kill if they cannot otherwise take him But in this latter Case there must be a Felony done If a Prisoner assault his Goaler and he kill his Prisoner no Felony Rioters or forcible Enterers or Deteinors standing in opposition to the Justice's lawful warrant and one of them slain no Felony Keeper or Parker may kill hunter if they fly or defend themselves 2. In Civil Causes Though Sheriff cannot kill a man who flies from the execution of a Civil Process yet if he resist the arrest the Sheriff or his Officers need not give back but may kill the Assailant so if in the arrest and striving together Officer kill him no Felony Now touching all the former Homicides these things observable 1. There must be no malice coloured under pretence of necessity for if it be it alters the Case and makes it Murder 2. The Party that did the Fact must be arreigned and upon Not Guilty pleaded the Special Matter must be found 3. Upon this Special Matter thus found the Party is to be dismist without any forfeiture or pardon purchased Thus of Homicide ex necessitate in reference to Publique Justice Others there are that are grounded upon Private Interest and they are of two kinds 1. Justifiable and consequently inducing no forfeiture at all nor needing pardon 2. Excusable and yet inducing forfeiture 1. Justifiable and inducing no forfeiture where a Person comes to commit a known Felony 1. If a man come to burn my House and I shoot out of my House and kill him no Felony 2. If a Woman kill him that assaulteth her to ravish her no Felony 3. If Thieves assault me in the Highway or in my House to rob me I or any of my Servants kill them no Felony or Forfeiture But if the assault in my House were not to rob but to beat me c. there 't would be only se defendendo and Goods forfeited and a Pardon of course to be granted because they came not to commit a known Felony for it cannot be judged whether he meant to kill me If one come to enter into my house claiming Title and I kill him Manslaughter Homicide excusable se defendendo where though it save the Life yet the Goods are forfeited this requires these things 1. It must be inevitable necessity yet in case of justifiable Homicide as of a Thief that comes to rob me or by an Officer resisted in the Execution of an Arrest the Party need not give back to the Wall But in this Homicide se defendendo the Party that is assaulted not excusable unless he give back to the Wall But if the assault be so furious and in such a place that giving back would endanger his life he need not give back A man fights and then falls to the ground then flying not necessary 2. It must be done in his own defence If A. be assaulted by B. before a mortal wound given A. gives back until he come to the wall and then in his defence kills B. this is se defendendo But if mortal wound first given then Manslaughter If A. upon malice praepense strike B. and then fly to the wall there in his own defence kills B. this is Murder But if there be malice between A. and B. A. strikes first B. retreats to the wall and in his own defence kills A. this is se defendendo If malice be betwixt A. and B. A. assaults B. B. retreats to the wall and then kills A. in his own defence if it be in the Highway he shall be discharged if not se defendendo Copston's Case Thus far of Homicides involuntary Homicide voluntary is either ex malitia praecogitata or sine malitia the former Murder the latter Manslaughter 1. Who shall be said a person killing A man that is Non compos mentis kills another this is no Felony the same for a Lunatick during his Lunacy But he that incites a madman to kill another is a principal Murderer A man dumb kills another Felony An Infant within years of discretion kills another no Felony as if he be nine or ten years old But if by circumstance it appeareth he could distinguish between Good and Evil it is Felony as if he hide the body make excuses c. But in such Case Execution in prudence respited to get a Pardon 2. What said Malice It is either implied or expressed Implied malice is collected either from the manner of doing or from the person slain or from the person killing 1. Malice implied in the manner of doing Poisoning wilfully any man implied malice If a man do an act that must apparently introduce harm and death ensue as to run among a multitude with a Horse used to strike But note If it were with an intention to do harm then Murder if without such intention Manslaughter The like of throwing a stone over a house among many people the intention of doing harm makes it Murder want of such intention Manslaughter because an unlawful act For an intention of evil though not against a particular person makes malice Killing any person without provocation Murder A. comes to B. who resists and strikes A. kills him Murder A. Distorts his mouth and laughs at B. who thereupon kills him Murder 2. Malice implied in respect of the person killed If a Watchman or Constable or any that comes on his assistance doing their Office be killed it is Murder though Killer knew him not to be such If any Magistrate or Minister of Justice having a lawful Warrant be killed 't is Murder As where a Serjeant comes to Arrest 1. Though in the Night 2. Though on Sunday 3. Though upon Arrest he shew not out of what Court or whose Suit 4. Though Process Erroneous 5. Though he shew not his Warrant or Mace where 't is not demanded But if Officer do what is not warrantable as break open a window to arrest
there if slain Manslaughter Malefactors come into a Park Parker shoots they fly he pursues they kill him Murder in all for their first entry was with malitious intent 3. Malice implied in respect of person killing A. assaults B. to rob B. who resists A. kills him Murder Prisoner by Duress of Goaler comes to an untimely end Murder Executing Martial Law in time of Peace Murder Malice express considerable 1. In the principal in the first degree that doth the act 2. In the principal in the second degree that is aiding abetting c. 3. In Accessaries before Fact 1. Principal in first degree If a person have no particular malice against any particular person but comes with general resolution against all Opposers if act unlawful and death ensue it is Murder As if it be to commit Riot enter into a Park 2. If there be malice between A. and B. and they meet and fight although A. gives first blow yet if B. kill him Murder If there be malice between A. and B. A. assaults B. and flies to wall there in his own defence kills B. by some Murder but Quaere If there be a quarrel between A. B. A. challenges B. who declines it but at length upon importunity and to vindicate his Reputation meets and fights and kills A. Murder 14 Jac. Taverner's Case If A. and B. fall out upon a sudden and they agree presently to fight and each fetches a Weapon go into field and one kills the other this only Manslaughter because the blood never cooled but otherwise if they had appointed to fight next day A. and B. fall out A. saith he will not strike but will give B. a pot of Ale to touch him B. strikes A. kills him Murder If A. and B. are in malice A. challenges the field B. refuses to meet but saith he shall go to morrow to such a Town A. meets him and assaults him B. kills him Manslaughter and no Murder The Child of A. beats the Child of B. who runs home to his Father and he runs three quarters of a mile beats the other Child and he dies Manslaughter 3. If malice be not continuing to death no Murder A. and B. combat upon malice and are parted and after they meet and combat upon the sudden and one kills the other by some not Murder because the first Malice satisfied If the party killed had wounded at first combat the party slaying Quaere A. and B. are at malice and reconciled and after upon a new occasion fall out and kill no Murder 4. Tho malice did not rise so high as death but intended only to beat the party yet if malice it is Murder if death ensue A Keeper of Esterly Park finds a Boy stealing wood and binds him to his Horse tail Horse runs away and kills Child Murder for it was a deliberate act Cr. Car. 131. Holloway's Case 5. The malice intended to one egreditur persona and makes death of another this act makes it Murder and qualifies it in same manner as if it had had its due effects A. having malice at B. strikes at him and misses him and kills C. this is murder in A. and if it had been without malice Manslaughter A. having malice at B. assaults him and kills his Servant Murder A. lays poison to kill B. and C. by misadventure takes it and dies Murder in A. contrary if it had been laid to kill Rats then per infortunium A. and B. combat upon malice C. comes to part them A. kills C. per ascuns Murder in both and if the falling out were sudden then only Manslaughter in him that kills him Quaere 6. Malice must be of Corporal danger to the party 2. Principal in second degree that are aiding and abetting 1. If two or more come together to kill rob or beat a man or to commit a Riot and one of them kills a man this is murder in all them of that party that are present aiding or abetting him thereunto or that were ready to aid him though but lookers on otherwise if they came there by chance 2. All are said to be present that are in the same House though in another Room or in the same Park though half a mile distant and out of view therefore if they come to commit a Felony such persons aiding and abetting shall be said to be present 3. A. and B. fall out and appoint field A. takes C. his Second B. takes D. his Second A. kills B. this is doubtless Murder in C. and it hath been held Murder in D. also for it is a compact but it seems otherwise 4. If A. and B. having malice praepense meet and fight and C. the Servant of A. not acquainted therewith takes part with A. his Master and kills B. this is Murder in A. and only Manslaughter in C. the same Law if C. came in suddenly and took part with A. and kill B. 3. What malice in Accessary before Fact A. commands B. to kill C. with a Gun he kills him with a Sword A. is accessary to this Murder because killing is the substance But if he command B. to kill C. and he by mistake kill D. this is Murder in B. but A. is not accessary thereunto A. commands B. to beat C. who beats him whereof he dies this is Murder in B. and A. is accessary because death ensued upon the act commanded 4. What is killing Poison Weapon Gun Bow Crushing Bruising Smothering Strangling Famishing inciting Dogs laying a Sick man in the cold Laying an Infant in an Orchard under Leaves and he is stricken with a Kite A man keeps a Beast used to strike knowingly and ties it not up the Beast kills a man Felony by some by others not but a gross misdemeanour 3 E. 3. Cor. 311. 5. What person killed It must be a person in rerum natura If a Woman quick with Child take a potion to kill it and accordingly it is destroyed without being born alive a great misprision but no Felony but if born alive and after dies of that potion it is Murder The like if dies of a stroke given by another in like manner counsel before birth to destroy it and after the Child is born destroyed accordingly the counsellor is accessary 6. What a place within the Realm Stroke and death in partibus transmarinis not punishable at Common Law but before Constable and Marshal Stroke and death upon Sea inquirable before Admiral according to Stat. 28 H. 8. c. 13. But stroke upon the Sea and death upon the Body of the County not punishable at all If stroke in one County and death in another the party shall be indicted where death hapned An accessary in County of A. to a Felony committed in County of B. the accessary after Certificate of the Conviction and Attainder of the principal may be Arreigned in the said County of A. where he was accessary 7. The party must die within year and day of stroke
poison c. Manslaughter KILLING another upon a sudden falling out or provocation or unjustifiable act Manslaughter 1. What a sudden falling out Two combat and part and presently come together and fight or one presently fetcheth a Weapon and killeth the other or they presently fetch them weapons and go into the field and one kills the other Manslaughter Diverse Rioters enter into anothers house forcibly and eject the people afterwards they being in possession the party ejected with twenty more comes in the night to the house endeavours to fire it one within shoots and kills one of the assailants and ruled to be Manslaughter because their entry and holding with force illegal and not Murder because sudden provocation So A. claims title to a house of B. A. attempts to enter and shoots at the house B. shoots and kills A. adjudged Manslaughter Two fall out and fight one breaks his Sword a stranger standing by sends him another and he kills therewith Manslaughter in both 2. What a sudden provocation Two strives for the wall and one kills the other Manslaughter 3. What unlawful act whereupon death ensuing will make Manslaughter If the unlawful act be deliberate and tend to the personal hurt of any immediately or by way of necessary consequence death ensuing Murder But if either such deliberation or intent of personal hurt be wanting Manslaughter Two play at Foils and one kills the other Manslaughter Sir John Chicester's Case A man throws a stone at another which glanceth and killeth another Manslaughter and not Murder because no malitious intention to hurt not per infortunium because doing an unlawful act There is a particular Manslaughter wherein Clergy is oust per Stat. 1 Jac. 8. wherein 1. He that is ousted of Clergy by that Statute must be especially Indicted pursuant to that Statute 2. It extends to him that actually gave stroke not to those that are present 3. Need not Conclude contra formam Statuti 4. Although the Indictment be special upon that Statute yet the Jury may find general Manslaughter 23 Car. B. R. Page's Case Larceny WE come to Offences Capital which refer to the Goods of any Person viz. Larceny which is of two kinds Simple Larceny Mixt and complexed Larceny Simple Larceny of two kinds Grand Larceny of value of 12 pence Petit Larceny under that value Simple Larceny a felonious and fraudulent taking away by any person of the meer personal goods of another not from the person nor out of his house to the value of 12 pence I. What shall be said a Felonious taking Imports two things 1. A taking necessarily the Indictment must be Cepit if it be Felony abduxit Equum not sufficient If a person finds goods lost and converts them though it was animo furandi yet no Felony If a man hath a bare charge of goods Felony may be by him committed As a Butler that hath a Charge of Plate Shepheard of sheep the like of him that hath a bare special use as the guest that hath Plate set before him But he that hath a possession by delivery cannot thereof commit Felony A Carrier hath goods delivered to him and carries them away no Felony A Clothier delivers Yarn to a Weaver to weave he carries or imbezels it no Felony But this hath two Exceptions 1. If the privity be determin'd then it may be Felony A. delivers a Pack or Tun of Wine to a Carrier he opens it and takes out Goods or Wine animo furandi Felony So if A. delivers goods to B. to carry to a certain place appointed and after takes it animo furandi Felony 2. By Stat. 21 H. 8. c. 7. whereby if a Servant goes away with goods of his Masters delivered to him above value of 40 shillings herein 1. Extends not to Apprentice or Servant within eighteen years 2. Requires a Delivery If one Servant deliver goods to the other this is a delivery by Master If the Master deliver an Obligation or deliver Cattel to sell and Servant receives money and departs with it no Felony like if he had gone away with Obligation 3. He must go away with it Wastfully consuming thereof no Felony 4. Now by Stat. 1 E. 6. c. 12. he may have his Clergy 5. He must be a Servant at time of delivery and going away therefore for imbezelling after Master's death Stat. 3◠H. 6. c. 1. is provided 6. If a Servant receive his Masters Rents and go away with them not within the Statute If a man seeing a Horse in the Pasture of the Owner having a mind to steal him obtains a Replevin and thereby hath the Horse delivered this a Felonious taking If A. feloniously take my Horse and B. feloniously takes him from him B. may be appealed or indicted as of a felonious taking from me Stat. 33 H. 8. c. 1. II. What a carrying away A Guest takes sheets out of the bed brings them into Hall with an intent to carry them away but is apprehended before this a taking away A. takes horse of B. with an intent to steal him but is apprehended before he can get out of Pasture this a taking away A. kills sheep strips them carries away their skins Felony so if he pull of the wooll III. By whom and who such a person as may commit Larceny An Infant under fourteen years may commit Larceny but prudence to respite Judgment yet under fourteen burnt in the hand Presidents A Feme covert may by her own act commit Larceny and in such case the husband may be Accessary to the wife but not è converso in receiving her But she cannot feloniously take her husband's goods and though she take and deliver them to a stranger yet no felony in the stranger If husband and wife do both a felony this is a felony in both and both shall be arreigned for it though some Opinions to the contrary which Opinions are now Law If wife commits murder by coercion of her husband murder in both but if theft no Felony in her but a bare Command excuseth her not But if a servant commit theft by coercion of his master it is no Felony IV. What meer personal Goods 1. If they are in the realty or annexed thereunto no Larceny As Corn or Grass growing Apples on Trees stealing a Chest of Charters no Felony though Chest above value Taking Lead off a Church no Felony otherwise if he leave it a while and then come and take it Taking an Infant Ward no Felony 2. If they are of a base Nature as Mastiffs Dogs Bears Foxes Monkeys Ferrets or their Whelps no Felony of them but of Hawks reclaimed Felony may be V. What said the Goods of another 1. He that hath a special property as Bailiff c. they are his goods pro tempore 2. He that takes the goods of a Chappel in time of vacation indictable pro bonis Capellae so bona Parochianorum bona mortuorum bona ignoti c.
Examine Offenders and Informers 2. The Examination of the Offender not upon Oath but Subscribed by him 3. Examination of others must be upon Oath 4. This must be certified by Justices 1. If it be a small Felony to Sessions 2. If it be a great Felony c. to next Goal Delivery 5. These Examinations if persons dead or absent may be given in Evidence But Prudence to have the Justice or his Clerk sworn to truth of Examinations 6. But Examinations taken upon Cause of Divorce for a forcible Marriage not allowed to be read upon an Indictment upon 3 H. 7. for same Marriage 2. By whom 1. Wife or her Examination not to be used for or against her Husband 2. The Examination of an Infant of Thirteen nay of Nine allowed in some Cases 3. One Attaint of Conspiracy Forgery or Perjury not allowed a Witness 4. One duly set on Pillory 3. In what manner 1. Evidence for King always upon Oath but Evidence for Prisoner not upon Oath yet no known Law that restrains it But by some Statutes in some Cases Evidence for Prisoner upon Oath as 31 El. c. 4. 4 Jac. c. 2. The Confession of the Offender taken upon Examination Evidence with Oath not of the Informer 4. Where Evidence maintains the Indictment 1. If the Indictment be of a Felony at one day though the Evidence be of another day the Jury may find generally against Prisoner and leave the person that is interessed in point of time to falsifie or the Jury may find the true day upon their Verdict and then the forfeiture shall relate thither 2. If the Indictment lay the Felony at one place the Evidence proving the Fact at another place in the same County maintains the Indictment 3. If the Indictment and Evidence differ in specie mortis then it maintains it not as Indictment of Poisoning Evidence of stabbing maintains it not But if the Indictment be of poisoning with one kind of Poison and the Evidence of another or if the killing with a Dagger and the Evidence is of killing with a Staff there it maintains the Indictment for it agrees in substance and kind The like of Accessary before though Poison or Weapon differ 4. Indictment that A. gave a mortal blow and B. C. and D. were presentes abettantes Evidence that B. gave the blow and A. C. and D. presentes abettantes yet it maintains the Indictment 5. Indictment of A. as Accessary to B. and C. Evidence proves him only Accessary to B. maintains the Indictment 6. Indictment of Murder ex malitia praecogit ' Evidence of malice in Law as killing an Officer without provocation yet maintains the Indictment 7. Evidence upon Statute of stabbing 21 Jac. Evidence that the dead stroke first yet Evidence to mantain Indictment 23 Car ' Howards 8. Two Indicted as Principals Evidence proves one as Accessary before he shall be discharged of that Indictment 28 H. 8.5 9. Vid. Stat. 21 Jac. c. 27. Mother endeavouring to conceal the death of her Bastard-child shall suffer death as in case of Murder unless she prove by one Witness that Child was born dead Vide Act. 17 Car. infine for the further Relief of his Majesties Army in the Northern parts Act continued till end of next Sessions continued over till some Act of Parliament for their continuance or discontinuance Verdict VERDICT in Cases Capital 1. It must be given and Jury cannot be discharged till it be given 2. It must be given openly in Court and no privy Verdict 3. It may be found Specially as an Indictment of Murder the Jury may find him Guilty 1. Of Manslaughter 2. Per Infortunium 3. Se Defendendo But then it must find the manner of it that Court may Judge thereof so to the value or manner of the Larceny Now we should come to Trial By Battel Process Vide the whole Process there of C.P.C. 27. Judgment in several Cases I. IN High Treason In all Cases except Counterfeiting Coin Drawn Hang'd Entrals taken out and burnt Head cut off Body quartered and Quarters hang'd up 2. In Counterfeiting Coin Drawn and Hang'd but the Judgment of Women in those Cases is Drawn and Burnt II. In Petty Treason 1. For a Man Drawn and Hang'd 2. For a Woman Drawn and Burnt III. In Felony Hang'd till Dead and this cannot be altered by King to Beheading IV. In Petty Larceny To be Whipt Forfeits Goods V. Death per Infortunium No express Judgment yet Forfeits Goods VI. Death se defendendo No express Judgment yet Forfeits Goods Misprision of Treason Forfeits Goods Forfeits Profits of Land during Life perpetual Imprisonment Vide for Seisure of Goods 1. Not before Indictment 2. Not removed before Attainder 1 R. 3. c. 3. Falsifying of Attainders 1. BY the Party by Writ of Error 2. What others may falsifie it 1. A Purchaser may falsifie an Attainder of the Felon by Outlary or Confession in this point if he Purchase before Attainder and after time of Felony supposed 2. A Purchaser mesne between the time of Felony committed and the Attainder by Verdict cannot falsifie in point of Offence but he may for the times 3. If Attainder was by such as had no good Commission the Party himself may falsifie Attainder Cas Com. Leicest 4. If the Principal Attainted and then Accessary and Principal reverse the Attainder the Attainder of the Accessary is eo ipso avoided and his Heirs may have Mortdanc ' against Lord per Escheat 5. Attaint of Treason and then the Treason is pardoned by Act of Parliament the Party or his Heir shall falsifie Attainder 6. In Case of Goods 1. Fugam fecit found by Coroner cannot be falsified though upon his Arraignment it be found he did not fly but if Indictment be void or insufficient no Forfeiture 2. A man Indicted before Justices of Oyer and Terminer acquit by Verdict and found he fled and the particulars of his Goods found they may be Traversed 3. Default till Exigent though after acquitted Goods Forfeited for it is a fugam fecit in Law But if the Indictment Appeal or Process insufficient their Forfeiture saved so if it be reversed by Errour or pardoned before Exigent Memorandum Flight or Exigent in case of Petty Larceny Forfeits Goods Execution and Reprieve 1. EXECUTION must be pursuant to Judgment and cannot be altered by King as from Beheading to Hanging 2. But King may pardon part of the Execution as in Treason he may pardon all but Beheading 3. It must be done by proper Officer 4. If a Woman Convict of Treason and Felony be quick with Child she shall have one Reprieve but not second time Vn est trove culp ' de Treason Felony c. Reprieve devant Judgment Roy Mort ' uncore Judgment poit FINIS Books printed for Richard Tonson THE Courtiers Calling shewing the ways of making a Fortune and the Art of Living at Court By a Person of Honour Price 1 s. 6 d. Don Carlos