fected and dies? whether this be not murder by the common law might be a queftion, bur if no fuch intention evidently appears, tho de facto by his converfation another be infected, it is no felony by the common law, tho it be a great misdemeanor, and the reafons are, 1. Because it is hard to difcern, whether the infection arife from the party, or from the contagion of the air, it is God's arrow, and 2. Nature prompts every man, in what condition foever, to preferve himself, which cannot be well without mutual converfation. 3. Contagious difeafes, as plague, peftilential fevers, small pox, &c. are common among mankind by the vifitation, and the extenfion of capital punishments in cafes of this nature would multiply fevere punishments too far, and give too great latitude and loose to fevere punifaments. II. the fecond confideration, that is common both to murder and manflaughter, is, who fhall be faid a perfon, the killing of whom fhall be faid murder or manflaughter. [433] If a woman be quick or great with child, if she takes, or another gives her any potion to make an abortion, or if a man strike her, whereby the child within her is killed, it is not murder nor manflaughter by the law of England, because it is not yet in rerum natura, tho it be a great crime, and by the judicial law of Mofes (g) was punishable with death, nor can it legally be made known, whether it were killed or not, 22 E. 3. Coron. 263. fo it is, if after fuch child were born alive, and baptized, and after die of the ftroke given to the mother, this is not homicide. 1. E. 3. 23. b. Coron. 146. But if a man procure a woman with child to deftroy her infant, when born, and the child is born, and the woman in purfuance of that procurement kill the infant, this is murder in the mother, and the procurer is acceffary to murder, if abfent, and this, whether the child were baptized or not. 7 Co. Rep. 9. Dyer 186. The killing of a man attaint of felony, otherwife than in execution of the fentence by a lawful officer lawfully appointed, is murder or manflaughter, as the cafe happens, and tho there was fome doubt, whether the killing of a perfon outlawed of felony were homicide or no, 2 E. 3. 6. yet it is homicide in both cafes. 27 Aiz. 4t. Coron. 203. (g) Exod. xxi, 22. If a perfon be condemned to be hanged, and the fheriff behead him, this is murder, and the wife may have an appeal. 35 H. 6. 58. (h) If a man be attaint in a præmunire whereby he is put out of the king's protection, the killing of him was held not homicide, 24 H. 8. B. Coron. 197. But the ftatute of 5 Eliz. cap. 1 (i) hath now put that out of queftion, declaring it to be unlawful. (k) If a man kills an alien enemy within this kingdom, yet it is felony, unless it be in the heat of war, and in the actual exercise thereof. III. The third inquiry is, who fhall be faid a person killing. [434] An infant under the age of fourteen, years in prefumption of law is fuppofed without difcretion, and therefore prima facie he cannot commit murder or manslaughter, but being indicted thereof, upon not guilty pleaded he ought to be found not guilty. But if he be above that age, in prefumption of law he is of difcretion, and may be guilty. But if he be under the age of fourteen, yet if upon circumftances it can appear, that he hath difcretion, he may be convict of fe¬ lony. 3 H. 7. 1. b. 12. a. (1) If a man be non compos mentis, and kill a man, he is to plead not guilty, and fhall be acquitted, and is not driven to purchase a pardon, tho antiently it was fo ufed. Stamford's P, C. 16. b. & libros ibi. And the fame law it is of a lunatic, that kills a man in the time of his lunacy; but if it be in thofe intervals, when he hath his un derstanding, then he is a felon, fed de his fupra. p. 31. If there be an actual forcing of a man, as if A. by force take the arm of B. and the weapon in his hand, and therewith stabs C. whereof he dies, this is murder in A. but B. is not guilty. Dalt. cap. 93. p. 242. (m). Plowd. Com, 19. a. But if it be only a moral force, as by threatning, duress, or imprifonment, &c. this execufeth not. A feme covert is in law under the coercion of her husband, and therefore, if the commit larciny of burglary together with her hus (b) See alfo Co. P. C. p. 52. quære, in cafe of treafon, (where the fentence is, that the party fhall be hanged, but not till he be dead, &c.) if the king remit all, but the hanging, whether it be not murder in the Theriff to hang him till he be dead ? (i) In fine. (k) See Coron. 203. where it is declared felony to kill one outlawed for felony. (1) Vide fupra, p. 27. (my New Edit, cap. 145. p. 473• band, band, the husband is in law guilty, but regularly the wife is not guilty. Stamf. 26. a. Coron. 160. Dalt. cap. 104. p. 267 (n) But if the commit murder, or treafon, or manslaughter, it is no plea to fay the did it by coercion of her husband, but he is guilty, tho committed with her husband. Dalt. Ibid. See Foster's Difcourfe II. of homicide per tot. 255. &c. &c. Black. Com. Lib. iv, ch. iv. p. 6o. ch. xiv. p. 188, 189. &c. 1 Hawk. P. C. ch. 28, 29, 30, 31, 32. Willon. 405, &c. Foster. 70. The cafe of William York. 3 [435] CHA P. XXXIV. Concerning commanding, counfelling, or abetting of murder er A manflaughter. LTHO this title may feem more proper under the title of princi pal and acceffaries, yet because it relates to the inquiry, who fhall be faid a murderer or manflayer, and is common in fome refpects to both crimes, I fhall take up the confideration thereof here. He that counfels, commands, or directs the killing of any perfon, if he be abfent, is an acceffary to murder before the fact. In cafe of poifoning, he that counfels another to give poison, if that other doth it, the counfeller, if abfent, is but acceffary before Coke P. C. p. 49. Sir Thomas Overbury's cafe. (a) But he that actually gives or lays the poifon to the intent to poison, tho he be abfent, when it is taken by the party, yet he is principal, and this was Wefton's cafe (b), Co. P. C. p. 49. in Sir Thomas Overbury's cafe, and 4 Co. Rep. 44. b. Vaux's cafe. In cafe of murder, he that counfelled or commanded before the fact, if he be abfent at the time of the fact committed, is acceffary before the fact, and tho he be in justice equally guilty with him that commits it, yet in law he is but acceffary before the fact, and not principal. If A. commands B. to beat C. and he beats him fo that he dies thereof, it is murder in B. and A. if prefent, is alfo guilty of the offense, if abfent, he is acceffary to murder. Dalt. cap. 93. (c). Plowd. Com. 475. b. Co. P. C. p. 51. 3 E. 3. Coron. 314. (n) New Edit. cap. 137. p. 503. (b) State Tr. Vol. 1. p. 313. If A. counsel B. to poifon his wife, B. accordingly obtains poifon from A. and gives it his wife in a roafted apple, the wife gives it to a child of B. not knowing it was poifon, who eats it and dies, this is murder in B. tho he intended nothing to the child. Plowd. Com. 474. Saunder's cafe: and fo it is, if an apothecary fends a potion to the wife, and the hufband mingle poifon with it, and upon fome diflike of the phyfic the apothecary is fent for, who to juftify it to be wholefome voluntarily eats part of it, and is poifoned and dies, this is murder in B. tho the apothecary was never intended to be hurt, but voluntarily took it. 9 Co. Rep. 81. Agnes Gore's cafe. But in this cafe, he who was abfent, and counfelled the poifoning of the wife, is not acceffary to the murder, becaufe as to him the command fhall not be conftrued further, than as to the perfon intened by him. Plowd. Com. 474. Saunder's cafe. (d) If A. counfel or commands B. to beat C. with a small wand or rod, which could not, in all human reafon, caufe death, if B. bats C. with a great club, or wound him with a fword, whereof he dies, it feems, that A. is not accessary, because there was no command of death, nor of any thing, that could probably cause death, and B. hath varied from the command in substance, and not in circumstance. If A. command or counfel B. to kill C. and before the fact done A. repents, and comes to B. and exprefly discharges him from the fact, and countermands it, if after this countermand B doth it, it is murder in B. but A. is not acceffary, but if A. repent of it, but before any discharge or counterinand given to B. B. kills C. yet A. remains acceffary notwithstanding his private repentance, for in as much as his exprefs counsel or command occafions the fact, he must at his peril fee, that he countermand B. and fo remedy as much as in him lies the mischief, that his former command occafioned. Ca. P. C. p. 51. Plowd. Com. 476. a. Saunder's cafe. [437] In manflaughter there can be no acceffaries before the fact, for it is prefumed to be fudden, for if it were with advice, command, or deliberation, it is murder and not manslaughter, and the like of se defendendo. (d) But tho the judges were of opinion in this cafe, that he was not acceffary, yet they thought it propereft that he should be delivered rather by a pardon, than other wife, and accordingly they kept him in prifon from one feffion till another, till he procured a pardon; and master Plowden, the reporter, fays, it was his opinion, that whoever counfels or commands an evil thing should be adjudged acceffary to all, which follows from that evil action, but not from any other diftin&t thing. And And therefore in an indictment of manflaughter only, if others be indicted as acceffaries before the fact, the indictment is void against them. And if A. be indicted of murder, and B. as acceffary before by procurement, &c. and A. is found guilty only of manslaughter, B. thall be discharged. 4 Co. Rep. 43. b. Goffe verfus Bibithe and Hoell David. And anciently, he that firuck the ftroke, whereof the party died was only the principal, and thofe, that were present, aiding, and affifting, were but in the nature of acceffaries, and should not be put upon their trial, till he that gave the ftroke were attaint by outlawry or judgment. 40 40. 25. 40 E. 2. 42. a. But at this day, and long fince, the law hath been taken otherwise, and namely, that all that are present, aiding, and affifting, are equally principal with him that gave the ftroke, whereof the party died. 4 H. 7. 18. a. per omnes jufticiarios utriufque banci, for tho one gave the froke, yet in interpretation of law it is the ftroke of every perfon, that was prefent, aiding, and affifting, and tho they are called principals in the fecond degree, yet they are principals, and the law was altered herein, in tempore H. 4. Plowd. Com. 100. a. and therefore, if there be an indictment of murder or manslaughter against A. that A. felonicè, &c. percuffit B. whereof he died, and that C. and D. were prefent, abetting, aiding, and affisting to A. ad feloniam & murdrum &c. modo & formâ prædiétâ faciend', and A. appears not, but B. and C. appear, they fhall be arraigned, and receive their judgment if convict, tho . neither appears, nor be outlawed. Plowd, Com. 97 and 100. Gyttin's cafe. If A. be indicted as having given the mortal stroke, and B. and C, as prefent, aiding, and affifting, and upon the evidence it [438] appear, that B. gave the ftroke, and A. and C. were only aiding and affifting, it maintains the indictment, and judgment shall be given against them all, for it is only a circumftantial variance, for in law it is the ftroke of all that were prefent, aiding, and abetting. Plowd. Com. 98. a. 9 Co. Rep. 67. b. Mackally's cafe. Yet the circumstances of the cafe may vary the degree of the offense in thofe that are in this kind parties to the homicide. If A. have malice against B. and lies in wait to kill him, and C. the fervant of A. being prefent, but not privy to the intent of his mafter, finds his mafter fighting with B. takes part with his mafter, and the fervant |