3 Inst. 160. 1 Hale, 473. Keilw. 108. 136. riers or tilting by the king's command, which, by the better opinion, secures him from being guilty of felony, by reason of any such unfortunate accident. Dalt. c. 96. Hob. 134. Crom. 29. B. Cor. 22. Foster, 261. (a) 9 St. Tr. 315. Hob. 134. Dalt. c. 98. 1 Hale, 472, Kely. 117. So under the 22 & 23 Car. 2. c. 25. and the 4 & 5 Will. and Mary, c. 23. made for the preservation of game, where a stranger assisting a gamekeeper to seize nets even upon the ground of a third person, and, during the transaction, the gun of the stranger accidentally goes off, by which one of the poachers is killed, this is only chance-medley, for the duty of the gamekeeper will authorize the trespass of the stranger. (a) Sect. 9. But if a person kill another by shooting at a deer, &c. in a third person's park, in the doing whereof he is a trespasser; or by shooting off a gun, (3) or throwing stones, in a city or highway, or other place where men usually resort, or by throwing stones at another wantonly in play, which is a dangerous sport, and has not the least appearance of any good intent, or by doing any other such idle action as cannot but endanger the bodily hurt of some one or other; or by tilting or playing at handsword without the king's command, or by parrying with naked swords covered with buttons at the points, or with swords in the scabbards, or such like rash sports, which cannot be used without the manifest hazard of life, he is guilty of manslaughter. Sect. 10. And if a man happen to kill another in the execu1 Hale, 39. 475. tion of a malicious and deliberate purpose to do him a personal hurt, by wounding or beating him; or in the wilful commission of any unlawful act, which necessarily tends to raise tumults and quarrels, and consequently cannot but be attended with the danger of personal hurt to some one or other; as by committing a riot, robbing a park, &c. he shall be adjudged guilty of murder. 3 Inst. 56. Kely. 117. Sect. 11. And à fortiori he shall come under the same construction, who in the pursuance of a deliberate intention to commit a felony, chances to kill a man, as by shooting at tame fowl, Prin. P. L. 226. with an intent to steal them, &c. for such persons are by no 1 Hale, 475. 6 St. Tr. 222. 1 Hale, 476. 3 Inst. 57. means favoured, and they must at their peril take care of the consequence of their actions; and it is a general rule, that wherever a man intending to commit one felony, happens to commit another, he is as much guilty as if he had intended the felony which he actually commits. Sect. 12. Neither shall he be adjudged guilty of a less crime who kills another in doing such a wilful act as shews him to be as dangerous as a wild beast, and an enemy to mankind in gene11 H. 7. 23. a. ral; as by going deliberately with a horse used to strike, or Dalt. c. 93. Foster, 262. B. Cor. 229. Dalt. c. 97. discharging a gun among a multitude of people, or throwing a great stone or piece of timber from a house into a street, through which he knows that many are passing; and it is no excuse that he intended no harm to any one in particular, or that he meant to do it only for sport, or to frighten the people, &c. (3) Therefore where the defendant came to town in a chaise, and before he got out of it he fired his Sect. pistols, which by accident killed a woman, King C. J. ruled it to be but manslaughter. Str. 481. Sect. 13. And now I am to consider HOMICIDE se defendendo, 8. P. C. 15. which seems to be where one, who has no other possible means 4 Comm. 184. of preserving his life from one who combats with him on a sudden quarrel, or of defending his person from one who attempts to beat him (especially if such attempt be made upon him in his own house), kills the persons by whom he is reduced to such an inevitable necessity. Sect. 14. And not only he who on an assault retreats to a wall, or some such streight, beyond which he can go no farther, before he kills the other, is judged by the law to act upon unavoidable necessity; but also he who being assaulted in such a manner, and such a place, that he cannot go back without manifestly endangering his life, kills the other without retreating at all. Sect. 15. And notwithstanding a person who retreats from an assault to the wall, give the other wounds in his retreat, yet if he give him no mortal one till he get thither, and then kill him, he is guilty of homicide se defendendo only. Sect. 16. And an officer who kills one that resists him in the execution of his office, and even a private person, that kills one who feloniously assaults him in the highway, may justify the fact without ever giving back at all. B. Cor. 125. Inst. 56. Kely. 128. Foster, 273. 43 Ass. 31. Sum. 41. Crom. 28. S. P. C. 15. Inst. 56. 9 St. Tr. 335. Str. 499. Crom. 28. 6 St. Tr. 195. Foster, 292. Sect. 17. According to some good opinions, even he who S. P. C. 15. gives another the first blow on a sudden quarrel, if he afterwards Crom. 28. do what he can to avoid killing him, is not guilty of felony. Yet Dalt. c. 98. such a person seems to be too much favoured by this opinion, Kely. 58. inasmuch as the necessity to which he is at last reduced, was at Foster, 276. the first so much owing to his own fault. Sect. 18. And it is now agreed, that if a man strike another upon malice prepense, and then fly to the wall, and there kill him in his own defence, he is guilty of murder. Thus far of each kind of EXCUSABLE HOMICIDE distinctly 4 Comm. 186. considered. And now I am to consider those properties wherein 188. they both agree. a Sect. 19. AND FIRST, it seems clear, that neither of these 2 Inst. 149. homicides are felonies, because they are not accompanied with 3 Inst. 56. felonious intent, which is necessary in every felony. F. Cor. 116. 4 Comm. 182. Post, s. 24. Fos. 284, 285. Sect. 20. And from hence it seems plainly to follow, that they 11 H. 4.95. were never punishable with loss of life; and the same also far- B. Cor. 80. ther appears from the writ de odio et atiâ, by virtue whereof, if 15 Ass. 7. any person committed for killing another were found guilty of either of these homicides, and no other crime, he might be bailed; and indeed it seems to be against natural justice to condemn a man to death for what is owing rather to his misfortune than his fault. 1 Hale, 447. Sect. 21. It is true indeed that some of our best authors have 2 Inst. 56. argued from the statute of Marlebridge, 52 Hen. 3. c. 26. which S. P. C. 16. enacts, that "Murdrum de cætero non adjudicetur, ubi infortu“nium tantummodo adjudicatum est, &c." that before this statute homicides 1 Bract. 134. Kely. 121. 448. homicides by misadventure, or se defendendo, were adjudged murder, and consequently punished by death. Sect. 22. But to this it may be answered, that murder in those See 1 Hale, 425. days signified only the private killing of a man by one who was neither seen nor heard by any witness, for which the offender, if found, was to be tried by ordeal, and if he could not be found, the town in which the fact was done was to be amerced sixty-six marks, unless it could be proved that the person killed was an Englishman; for otherwise it was presumed that he was a Dane or a Norman, who in those days were often privately made away with by the English. And it being a doubt whether homicide by misadventure, &c. were to be esteemed murder in this sense, it seems to have been the chief intent of the makers of this statute to settle this question. Bract. 135. Sum. 98, 99. 2 Inst. 315. Dalt. c. 98. Sect. 23. SECONDLY, It is certain, however, that notwithstanding neither of these offences be felonies, yet a person guilty of them is not bailable by justices of peace, but must be comOr they may be mitted till the next coming of the justices of eyre or gaol-deli 1 Hale, 477. brought up by habeas corpus, and bailed. Reg. 133. 9 Co. 56. Inst. 182. Bract. 123. S. P. C. 77. 2 Inst. 43. 315. very. Sect. 24. Indeed anciently a person committed for the death 2 Inst. 42. 315. of a man might sue out the writ de odio et atiâ, which by Magna Charta, c. 26. is grantable without fee; and if thereon, by an inquest taken by the sheriff, he were found to have done the fact Fleta, b.1. c.25. by misadventure, or se defendendo, he might be mainprized by twelve men, upon the writ de ponendo in ballium. But such writs and enquiries were taken away by the statute of Gloucester, c. 9. and the statute 28 Edw. 3. c. 9. And though perhaps they were again revived by the 42 Edw. 3. c. 1. which makes all statutes contrary to Magna Charta void; yet at this day they seem to be obsolete, and indeed useless, inasmuch as the party may probably be sooner delivered in the usual course, by the coming of the justices of gaol-delivery. 9 Co. 56. Mainp. c. 10. Car. 2. c. 2. Ante, c. 10. s. 3. Keilw. 53. 108. 2 Inst. 316. F. Cor. 297. 354.361. Sect. 25. THIRDLY, It is also agreed, that no one can excuse the killing another, by setting forth in a special plea, that he did it by misadventure, or se defendendo, but that he must plead not guilty, and give the special matter in evidence. And that whereS. P. C. 15, 16. ever a person is found guilty of such homicide, either upon a special indictment for the same, or by a verdict setting forth the circumstances of the case on a general indictment of murder or homicide, he shall be discharged out of prison upon bail, and forfeit his goods; but that upon removing the record by certiorari into chancery, he shall have his pardon of course, without staying for any warrant from the king to that purpose, as shall be more fully shewn in the second book, ch. 37. sect. 1. Dalt. c. 96. 98. Foster, ch. 4. CHAP. CHAP. XII. OF MANSLAUGHTER. HOMICIDE against the life of another, amounting to felony, Foster, c. 5. is either with or without malice. Dis. 2d. Prin. P. L. 215. Sect. 1. That which is without malice is called manslaughter, 4 Comm. 186. or sometimes chance-medley, by which we understand such kill- 191. ing as happens either on a sudden quarrel, or in the commission 219. 224. of an unlawful act, without any deliberate intention of doing any 3 Inst. 55, 57. mischief at all. Sect. 2. And from hence it follows, that there can be no accessaries to this offence before the fact, because it must be done without premeditation. Dalt. c. 94. B. 2. c.29. s. 24. 1 Hale, 456. Sect. 3. But the learning relating to this head being for the Co. Lit. 127. most part co-incident with that of others, it will be superfluous Kely. 55. 135. to enlarge on it here; and therefore I shall refer the reader to other chapters for the particular case; as to the following chapter of murder, for those concerning duelling; (a) and for such as (a) Ch. 13. happen in a riot, &c. ; (b) and to the chapter on excusable homi- s. 21 to 32. cide, (c) for such as fall out in the execution of a rash unlawful) Ch. 13. action. s. 47 to 49. (c) Ch. 11. s. 6 to 13. Ld. Ray. 140. Sect. 4. But there is a particular kind of manslaughter proper to be considered here, from which the benefit of the clergy is taken away by 1 Jac. 1. c. 8. (d) which enacts, that "where any (d) See Skinn. "person shall stab or thrust any person or persons that hath not 668. "then any weapon drawn, or that hath not then first stricken, "the party which shall so stab or thrust, so as the person or persons so stabbed or thrust shall thereof die within the space of Foster, 297. and "six months then next following, although it cannot be proved "that the same was done of malice forethought." 66 7 Mod. 133. for the reason 4 Bl. Com.193. of passing this act, which is continued by the 17 Car. 1. c. 4. “till some other act shall be made touching the continuance or dis"continuance thereof." Sect. 5. It is generally holden, that this statute is but declarative of the common law, and in the construction thereof the following points have been resolved. the 1 Bulst. 87. Kely. 55. 1 Hale, 456. Fos. 298. Bryant's Case, 1Jon. 340. 668. where But see Skin. Lord Holt questions this case. Sect. 6. First, That wherever a person who happens to kill another was struck by him in the quarrel before he gave mortal wound, he is out of the statute though he himself gave the first blow. Sect. 7. Secondly, That he only who actually gives the stroke, 1 Hale, 468. and not any of those who may be said to do it by construction of law, as being present, and aiding and abetting the fact, are within the statute; from whence it follows, that if it cannot be proved by whom the stroke was given, none can be found guilty within the statute. Sect. 2 Hale, 344. Alleyn, 44. See b. 2. c. 33. s. 98. Styles, 86. Salk. 542, 543. 1 Jones, 452. confirmed by Holt in Maw gridge's case, Kely. 131. Skin. 668. 3 Lev. 266. 255. s. 117. Sum. 58. 266. Sect. 8. Thirdly, That the killing of a man with a hammer, or such like instrument, which cannot come properly under the words" thrust" t" or "stab" is not a killing within the statute.But it seems, that the discharging a pistol, or throwing a pot, or other dangerous weapon at the party, is within the equity of the words, "having a weapon drawn;" for penal statutes are construed strictly against the subject, and favourably and equitably for him. Sect. 9. Fourthly, That there is no need to lay the conclusion of the indictment contra formam statuti, because the statute makes no new offence, but only takes away the privilege of the clergy from an old one, and leaves it to the judgment of the common law; from whence it follows, that a person indicted on See b. 2. c. 25. the statute may be found guilty of manslaughter generally. Also from the same ground it hath been resolved, that if both an indictment lay, and a verdict also find, a fact to be contra formam statuti, which cannot possibly be so, as that A. and B. aided and abetted C. contra formam statuti, yet neither such indictment nor verdict are void, but A. and B. shall be dealt with in the same manner as they should have been, if those words contra formam statuti had been wholly omitted, because the substance of the indictment being found, they may be reCro. Jac. 282. jected as surplusage and senseless: and, à fortiori, therefore it is certain, that they shall do no hurt to an indictment or verdict containing a fact which may be within the statute. See 1 Hale, 467 to 470. Sect. 10. Fifthly, How far the words contra formam statuti supply a defect in an indictment which does not specially pursue the statute, see the second book, chap. 25. sect. 116. (1) (1) A prisoner whose case may be brought within this statute is commonly arraigned upon two indictments, one at common law for murder, and the other upon the statute. Fos. 299. But the same circumstances which at common law will serve to justify, excuse, or alleviate in a charge of murder, have always had their due weight in prosecutions grounded upon this statute. Fos. 298. As where a husband stabs an adulterer whom he seizes in the act. 1 Vent. 158. Raym. 212. Or where a man is assaulted by thieves in his house, the thieves having no weapon drawn, nor having 136. struck him, and he stabs one of them. Stra. 469. Or where an officer entering violently into the chamber of a gentleman to arrest him, but without announcing the purpose for which he came, is stabbed by the gentleman with his sword. Kely. 1 Hale, 470. Styles, 467. Or where upon an out-cry of thieves, a person who had innocently hidden himself in a closet, was mistaken for the thief and stabbed in the dark. 1 Hale, 42.474. C. Car. 538. W. Jones, 429. Kely. 136. And many other instances of these kinds which have been held not within the statute. CHAP. XIII. OF MURDER.(1) HOMICIDE against the life of another, amounting to FELO- (1) The crime of murder is defined by Sir Edward Coke (3 Ins. sub tit. Murder,) to be, "Where a man of sound memory, and of the age of discretion, unlawfully killeth any reasonable creature in rerum naturæ, under the king's peace, with malice forethought, either express or implied by law, so as the party wounded or hurt, &c. die of the wound or hurt, &c, within a year and day af And ter the same." And it is of the essence of the crime that it be committed with "malice forethought," either express or implied by law. But what is the legal meaning of the term "malice" we shall hereafter state, only observing for the present, that it is not confined to mean premeditated mischief against the party murdered. But though the term "murder" is now the description of this |