manslaughter; yet in an appeal of murder, tho the jury may, if they please, find him guilty of manslaughter, if the fact be fuch, yet they may find generally, that he is not guilty, because it is the fuit of the party, and he should lay his cafe according to the truth.

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With this agrees H. 38 Eliz. B. R. Penryn and Corbett (e), H. 38 Eliz. B. R. B. 183. (f), M. 22 Jac. B. R. L. 278. Blount's cafe (g), but it was held P. 2 Car. 1. in Baffage's cafe (h), that they may not in such a case find a general verdict of not guilty, but must find him guilty of manslaughter, because included in murder, as well in cafe of an appeal, as in cafe of an indictment, and fo it feems the law is.

The difference between the offenses of murder and manslaughter feems to reft in thefe particulars.

1. In the degree and quality of the offenfe, for murder, as hath been faid, is accompanied with malice forethought, either exprefs or prefumed; but bare homicide is upon a fudden provocation or falling out.

2. And therefore in murder there may be acceffaries before, as well as after, because ordinarily it is an act of deliberation, and not merely of fudden paffion; but in bare homicide or manslaughter there can be no acceffaries before, tho there may be acceffaries after, and therefore, if an indictment be of murder against A. and that B. and C. were counselling and abetting as acceffaries before only, (and not as present, aiding and abetting, for fuch are principals, as hath been faid) if A, be found guilty only of homicide, and acquit of the murder, the acceffaries before are hereby discharged.

3. The indictment of murder effentially requires thefe words, felonicè ex malitiâ fuâ præcogitatá interfecit & murdravit, but the indictment of fimple homicide is only felonicè interfecit.

4. Altho at common law, and by the statute of 25 E. 3. cap. 4. clergy was promifcuously allowed, as well in cafe of murder, as of homicide and manflaughter, yet by the statute of 23 H. 8. cap. 1. 25 H. 8. cap. 3. 1 E. 6. cap. 12. 5 & 6 E. 6. cap. 10. clergy is taken away from murder ex malitiâ præcogitatâ.

Now having before, cap. 33. declared those things, that are common to the offenfes of murder and manflaughter, it re

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(g) 2 Roll. Rep. 460.
(b) Latch 126.

Cc4

mains,

mains, that I confider thofe things, that are specificial and peculiar to murder, which is what fhall be faid a killing ex malitiâ præcogitaté, or what in law is faid fuch a malice, as makes the offenfe of killing a perfon thereby to be murder.

Such a malice therefore, that makes the killing of a man to be murder, is of two kinds, 1. Malice in fact, or 2. Malice in law, or ex præfumptione legis.

Malice in fact is a deliberate intention of doing fomne corporal harm to the perfon of another.

Malice in law, or prefumed malice, is of feveral kinds, viz. 1. In refpect of the manner of the homicide, when without provocation. 2. In refpect of the perfon kild, viz. a minister of justice in execution of his office. 3. In refpect of the perfon killing.

Touching the first of these in this chapter, viz. malice in fact. Malice in fact is a deliberate intention of doing any bodily harm to another, whereunto by law he is not authorized.

The evidences of fuch a malice muft arise from external circumftances difcovering that inward intention, as lying in wait, menacings antecedent, former grudges, deliberate compaffings, and the like, which are various according to variety of circumftances.

It must be a compaffing or defigning to do fome bodily harm.

If there have been a long fuit in law between A. and B. either touching intereft or wrong done, ás if A. fues B. or threaten to fue him, this alone is not a fufficient evidence of malice prepense, tho poffibly they meet and fall out, and fight, and one kills the other, if it happen upon fudden provocation; but this may by circumstances be heightened into a malice prepenfe, as if A. without any new pro vocation ftrike B. upon the account of that difference in law, whereof B. dies, or è converfo, or if he lie in wait to kill him, or comes with a refolution to strike or kill him, for in fuch a cafe the difference in the law-fuit, (which alone makes not malice) is coupled and joined with circumftances, that prove the purpose of the party was more, than the law allows in a legal vindication of wrong

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Jone.

If there be an old quarrel betwixt A. and B. and they are reconciled again, and then upon a new and fudden falling out A. kilis B. this is not muider, but i upon circumftances it appears, that the reconciliation was but pretended or counterfeit, and that the hurt done was upon the score of the old malice, then it is murder.

If there be malice by A. against B. and by B. against A. and they meet, and upon the account of that malice A. ftrikes B. and B. thereupon kills A. (otherwise than in his own neceffary defenfe) it is murder in B. but if they meet accidently, and A. affaults B. firft, and B. merely in his own defenfe, without any other malicious defign kills A. this is not murder in B. for it was not upon the account of the former malice, but upon a new and fudden emergency for the safeguard of his life; but if A. and B. had met deliberately to fight, and A. ftrikes B. and purfues B fo closely, that B. in fafeguard of his own life kills 4. this is murder in B. because their meeting was a compact, and an act of deliberation, and therefore all, that follows thereupon, is prefumed to be done in purfuance thereof, and thus is Mr. Dalton, cap. 93. p. 241. (i) to be understood.

But yet quære, whether if B. had really and truly declined the fight, ran away as far as he could, (fuppofe it half a mile,) offerd to yield, and yet A. refusing to decline it had attempted his death, and B. after all this kills A. in his own defenfe, whether it excufeth him from murder; but if the running away were only a pretenfe to fave his own life, but was really defigned to draw out A. to kill him, it were murder.

A. commands B. to kills C. and before the act done repents, and countermands B. and charges him not to do it, yet B. doth it, A. is not guilty. Coke P. C. p. 51.

A. challenges C. to meet in the field to fight, C. declines it as much as he can, but is threatened by A. to be pofted for a coward, &c. if he meet not, and thereupon A. and B. his fecond, and C. and D. his fecond, meet and fight, and C. kills A. this is [453] murder in C. and D. his fecond, and fo ruled in P. 14 Jac. in Ta. verner's cafe (k), tho C. unwillingly accepted the challenge.

But if it feems not to be murder in B. because tho he had malice against C. and D, his opponents, yet he had none against A. tho fome have thought it to be murder alfo in B. because done by compact and agreement. 22 Eliz. 3. 262. fed quære de hoc.

If A. challenge B. to fight, B. declines the challenge, but lets A. know, that he will not be beaten, but will defend himself; if B. going about his occafions wears his fword, is affaulted by A. and kild, this is murder in A. but if B. had kild A. upon that affault, it had

(i) New Edit. cap. 145. R. 471.

(k) 1 Roll. Rep. 360. 3 Bul. 171.

been

been fe defendendo, if he could not otherwife efcape, or bare homicide, if he could efcape, and did not.

But if B. had only made this as a difguife to fecure himself from the danger of the law, and purpofely went to the place, where probably he might meet A. and there they fight, and he kills 4. then it had been murder in B. but herein circumstances of the fact must guide the jury.

If A. and B. fall fuddenly out, and they presently agree to fight in the field, and run and fetch their weapons, and go into the field and fight, and A. kills B. this is not murder but homicide, for it is but a continuance of the fudden falling out, and the blood was never cooled; but if there were deliberation, as that they meet the next day, nay, tho it were the fame day, if there were fuch a competent diftance of time, that in common prefumption they had time of deliberation, then it is murder. Co. P. C. p. 51. Jac. B. R. Ferrer's cafe, M. 8 Jac. B. R. Morgan's cafe.

A. the fon of B. and C. the fon of D. fall out in the field and fight, A. is beaten, and runs home to his father all bloody, B. presently takes a staff, runs into the field, being three quarters of a mile diftant, and strikes C. that he dies, this is not murder in B. because done in fudden heat and paffion. T. 9 Jac. B. R. 12 Co. Rep. p. 87. (1). A boy came into Ofterly park to fteal wood, and seeing [454] the woodward climbs up a tree to hide himself, the woodward bids him come down, he comes down, and the woodward ftruck him twice, and then bound him to his horfe-tail, and dragged him till his fhoulder was broke, whereof he died; it was ruled murder, because, 1. The correction was exceffive, and 2. It was an act of deliberate cruelty. M. 4 Car. B. R. Holloway's case. (m).

If the mafter defigneth moderate correction to his fervant, and accordingly useth it, and the fervant by fome misfortune dieth thereof, this is not murder, but per infortunium. Crompt. 136. b. Dalt. cap. 96. p. 245. (n), because the law alloweth him to use moderate correction, and therefore the deliberate purpose thereof is not ex malitia præcogitata.

But if the mafter defigneth an immoderate or unreasonable correction, either in refpect of the measure, or manner, or inftrument there. of, and the fervant die thereof, I fee not how this can be excufed from

(1) Cro. Fac. 296. Royley's cafe, W.

(m) Gro. Car. 131. 11. Jones 198. Kelyng127) cap. 148. p. 478.

murder,

murder, if done with deliberation and defign, nor from manslaughter, if done haftily, paffionately, and without deliberation; and herein confideration must be had of the manner of the provocation, the danger of the inftrument, which the mafter useth, and the age or condition of the fervant that is ftricken, and the like of a school-master towards his fcholar. (•).

The fheriff hath a warrant to hang a man for felony, and he beheads him, this is held murder, for it is an act of deliberation. Co. P. C. p. 52.

A man hath the liberty of Infangthiefe (p), the steward of the court gives judgment of death against a prifoner against law, this was a cause of seizure of the liberty, but was not murder in the judge, quia factum judicialiter, licet ignoranter. 2 R. 3. 10. a. the cafe of the Steward of the liberty of the abbot of Crowland.

Blacks. Com. lib. iv. cap. 14. p. 194. See Fofter, Difc. II. ch. 8. per tot. 1 Hawk, P. C. ch. 31.

(o) See Kelyng 64, 65.

(p) See Spelman's Glossary, p. 313.

CHAP. XXXVII.

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Concerning murder by malice implied prefumptive, or malice in law. HAVE before distinguished malice implied into these kinds: 1. When the homicide is voluntarily committed without provocation. 2. When done upon an officer or minister of justice. 3. When done by a person, that intends a theft or burglary, &c.

I. Therefore touching the former of these.

When one voluntarily kills another without any provocation, it is murder, for the law prefumes it to be malicious, and that he is hoftis humani generis; it remains therefore to be inquired, what is such a provocation, as will take off the prefumption of malice in him, that kills another.

He that wilfully gives poison to another, that hath provoked him or not, is guilty of wilful murder, the reafon is, because it is an act of deliberation odious in law, and prefumes malice.

If A. comes to B. and demands a debt of him, or comes to ferve him with a Subpæna ad refpondendum or ad teftificandum, and B. there. upon kills A. this is murder, because it is no provocation.

Watts