Watts came along by the fhop of Brains, and diftorted his mouth, and finiled at him, Brains kills him, it is murder, for it was no fuch provocation, as would abate the presumption of malice in the party killing. M. 42 & 43 Eliz. B. R. Brain's cafe. (a)

If A. be paffing the street, and B. meeting him, (there being convenient distance between A. and the wall,) takes the wall of A. and thereupon A. kills him, this is murder; but if B. had juftled A. this

[456] juftling had been a provocation, and would have made it man

flaughter, and fo it would be, if A. riding on the road, B. had whipt the horse of A. out of the track, and then A. had alighted, and killed B. it had been manslaughter. 17 Car. 1. Lanure's cafe.

In the cafe of the lord Morley, 18 Car. 2. (b) all the judges met, and it was agreed by all judges except one, that if A. gives flighting words to B, and thereupon B immediately kills him, this is murder in B. and that fuch words are not in law fuch a provocation, as will extenuate the offense into manflaughter, and the ftatute of 1 Jac. cap. 8. of ftabbing in fuch a cafe was but provifional, because the juries were apt upon any verbal provocation to find the fact to be manflaughter; but yet it was there held, that words of menace of bodily harm would come within the reason of such a provocation, as would make the offenfe to be but manslaughter.

And many, who were of opinion, that bare words of flighting, difdain, or contumely, would not of themselves make fuch a provocation, as to leffen the crime into manslaughter, yet were of this opinion, that if A. gives indecent language to B. and B. thereupon strikes A. but not mortally, and then A. ftrikes B. again, and then B. kills A. that this is but manflaughter, for the fecond ftroke made a new provocation, and fo it was but a sudden falling out, and tho B. gave the firft ftroke, and after a blow received from A. B. gives him a mortal stroke, this is but manflaughter according to the proverb the fecond blow makes the affray; and this was the opinion of myself and fome

others.

There was a fpecial verdict found at Newgate, viz. A. fitting drinking in an alehouse, B. a woman called him a fon of a whore, A. takes up a broomstaff, and at a distance throws it at her, which hitting her upon the head kild her, whether this was murder or manslaughter was the question in P. 26 Car. 2. it was propounded to all the judges at Serjeants-Inn, two questions were named, 1. Whether bare words, (b) Kelyng 55.

(a) Cro. Elix. 778. Kel. 131.

or

or words of this nature, would amount to fuch a provocation, as would extenuate the fact into manslaughter? (c)

[457]

2. Admitting it would not in case there had been a striking with fuch an inftrument, as neceffarily would have caused death, as stabbing with a fword, or piftolling, yet whether this ftriking, that was fo improbable to caufe death, will not alter the cafe; the judges were not unanimous in it; and in respect, that the confequence of a refolution on either fide was great, it was advised the king should be moved to pardon him; which was accordingly done.

A. and B. are at fome difference, A. bids B. take a pin out of the sleeve of A. intending thereby to take an occasion to strike or wound B. which B. doth accordingly, and then A. ftrikes B. whereof he died; this was ruled murder, 1. Because it was no provocation, when he did it by the confent of A. 2. Because it appeared to be a malicious and deliberate artifice thereby to take occafion to kill B.

If there be chiding between husband and wife, and the husband strikes his wife thereupon with a peftle, that fhe dies presently, it is murder, and the chiding will not be a provocation to extenuate it to manflaughter. 43 Eliz. Crompt. fol. 120. a. (d)

II. The fecond kind of malice implied is, when a minister of jus tice, as a bailiff, conftable, or watchman, &c. is killed in the exe. cution of his office, in fuch a cafe it is murder.

If the theriff's bailiff comes to execute a process, but hath not a lawful warrant, as if the name of the bailiff, plaintiff, or defendant be interlined or inferted after the fealing thereof by the bailiff himself, or any other, if fuch bailiff be killed, it is but manflaughter, and not murder.

But if a process iffuing out of a court of record to a ferjeant at mace, sheriff, or other minister, be erroneous, as if a Capias iffue, when a Diftringas fhould iffue, yet the killing of fuch a minister in the exe cution of that process is murder, altho he executes the process in the night (e), or upon a Sunday (f). Mackally's cafe, 9 Co. Rep. 68. a.

(c) See Kel. 131.
(d) See alfo Kel. 64.
(e) 9 Co. 66. a.

(f) 9 Co. 66. b. for minifterial acts might lawfully be executed upon a Sunday, but fince our author wrote, the law is altered in this respect; for by 29 Car. 2. cap.

7. all procefs, warrants, &c. ferved or executed on a Sunday are void. except in cafes of treafon, felony, or breach of the peace, fo that now,, an officer arrefting a man upon a warrant on a Sunday is, as if he had him arrested without any warrant at all.

But

But if the process be executed out of the jurifdiction of the court, the killing of the minifter is only manslaughter, and fo it is, if the iffuing of the process were void, and coram non judice.

A bailiff or officer jurus & conus may arrest a man without fhewing his warrant (g), and a private bailiff need not show his warrant upon the arreft, till the party arrested demand it, and therefore, if the party arrested kills a bailiff upon the arreft without fuch a warrant fhewn, it is murder, and so it is, if a ferjeant at mace makes the arrest without fhewing his mace, ibidem Mackally's cafe. (h)

A bailiff jurus & conus had a warrant to arrest Pew upon a Capias, and came to arreft him, not using any words of arrest, Pew said, Stand off, I know you well enough, come at your peril, the bailiff takes hold of him, Pew thrufts him through; it was ruled murder, tho he ufed no words of arreft, nor fhewed his warrant, for poffibly he had not time. P. 6 Car. I. B. R. (i)

A bailiff having a warrant to arrest Cook upon a Capias ad fatisfaciendum came to Cook's houfe, and gave him notice, Cook menaceth to shoot him if he depart not, yet the bailiff departs not, but breaks open the window to make the arreft, Cook fhoots him, and kills him; it was ruled, 1. That it is not murder, because he cannot break the houfe (k), otherwife it had been, if it had been upon an Habere facias poffeffionem (1). 2. But it was manflaughter, because he

knew him to be a bailiff.

But 3. Had he not known him to be a bailiff, or one that came upon that business, it had been no felony, because done in defense of his house. P. 15. Car. B. R. (m) But if a fheriff enter the house by the outward door open, he or his bailiff may break open the inward doors, tho the process be [459] without a Non omittas, and therefore the killing of him in fuch cafe is murder. M. 17 Jac. B. R. White and Wiltshire. (n) If the sheriff or bailiff have once laid hands upon the prifoner, and fo began his execution, he may break open the outward doors to take him, Sir William Fifhe's cafe (o), and if the warrant be directed to

(g) Tho the party do demand it; this is intended of the warrant conftituting him bailift; but as to the writ or process against the party, there is no difference between a public or a private bailiff, for in either cafe, if the party fubmit to the arreft, and do demand it, he is bound to fhew at whofe fuit, for what caufe, out of what court the procefs iffues, and when and where return

able. 5 Co. 54. a. 9 Co. 69. as
(b) 9 Co. 69 a.
(i) Cro. Car. 183.

(k) 5 Co. 92. b. Semayne's cafe.
(1) 5 Co. 91. b.

(m) Cro. Car. 537. W. Jones 429.
(n) Palmer 52.

(0) Cited in White's casa, Palmer 534

five bailiffs, two or three may make execution; refolved in White's cafe, ubi fupra.

Upon a warrant against a felon, or one that hath dangerously wounded another, or for furety of the peace, or good behaviour, the conftable may break open the door where the offender is, Dalt. cap. 78. (p), and fo may the fheriff or his bailiff upon a Capias utlegatum, Capias pro fine, or other process for the king, if not opened upon demand.

The constable of the vill of A. comes into the vill of B. to fupprefs fome disorder, and in the tumult the conftable is kild in the vill of B. this is only manflaughter, because he had no authority in B. as conftable.

But it feems, that if the constable of the vill of A. had a particular precept from a juftice of peace directed to him by name, or by the name of the conftable of A to fupprefs a riot in the vill of B. or to apprehend a perfon in the vill of B. for fome mifdemeanor, and within the jurifdiction and conufance of the juftice of peace, and in purfuance of that warrant he go to arreft the party in B. and in execution of his warrant is killed in B. this is murder; for tho, in fuch case, it feems the constable was not bound to execute the warrant out of his jurisdiction, neither could he do it fingly virtute officii, as constable of A. yet he may do it as bailiff or minifter by virtue of the warrant, and the killing of him is murder, as well as if he had been conftable of the hundred wherein A. and B. lie, or fheriff of the county; for a juftice of peace may for a matter within his jurifdiction iffue his warrant to a private perfon, as fervant; but then fuch perfon must shew his warrant, or fignify the contents of it. 14 H. 8. 16. a. And atho the warrant of the juftice be not in strictness lawful, is if it exprefs not the caufe particularly enough, yet if the matter be within his jurifdiction as juftice of peace, the killing of fuch officer in execution of his warrant is murder; for in fuch cafe the officer cannot difpute the validity of the warrant, if it be under feal of the juftice. 14 H. 8. 16.

[460]

If A. and B. are conftables of the vill of C. and there happens a riot or quarrel between feveral perfons, A. joins with one party, and commands the adverfe party to keep the peace, B. joins with the other party, and in like manner commands the adverfe party to keep the peae, and the affiftants and party of A. in the tumult kill B. it

feems that this is but manslaughter, and not murder, in as much as the officers and their affiftants were one engaged against the other, and each had as much authority as the other.

But if the fheriff having a writ of Habere facias possessionem against the house and lands of A. and A. pretending it to be a riot upon him, gain the conftable of the vill to affift him, and to fuppress the sheriff or his bailiffs, and in the conflict the conftable is killed, this is not fo much as manflaughter; but if any of the fheriff's officers were killed, it is murder, because the constable had no authority to encounter the fheriff's proceeding or acting by virtue of the king's writ.

If a conftable, or tithing-man, or watchman be in execution of his office, and be killed, it is murder; and in all cafes of implied malice, or malice in law, the indictment need not be special, but general ex malitia fuâ præcogitatâ interfecit & murdravit, and the malice in law maintains the indictment. 9 Co. Rep. 63. Mackally's cafe.

But now touching the point of notice.

1. It is not neceffary to make it murder, that the party killing know the perfon of the bailiff, conftable, or watchman.

2. If he be a bailiff jurus & conus, it seems there is no neceffity for him to notify himself to be fuch by exprefs words, but it shall be prefumed that the offender knew him, as it feems by the book 9 Co. Rep. 69. b. Mackally's cafe; quære.

3. But if it be a private bailiff, either the party must know

[461] that he is fo, as in Pew's cafe before, or there must be fome fuch notification thereof, whereby the party may know it, as by fay, ing, I arreft you, which is of itself fufficient notice, and it s at the peril of the party, if he kills him after thefe words, or words to that effect pronounced, for it is murder, if de facto it falls out, that he were a bailiff, and had a warrant. 9 Co. Rep. ubi fupra.

4. A constable coming to appease a sudden affray in the dy time in the village, whereof he is conftable, it seems every man e: officio is bound to take notice that he is the conftable, because he s to be chofen and fworn in the leet, where all refiants are to attend 4 Co. Rep. 40. b. Young's cafe (q); but it is not so in the night-time, unless there be fome notification, that he is the constable.

5. But whether it be in the day or night, it is fufficient noice, if he declares himself to be the conftable, or commands the peace in the

(2) The reafon here given by our author is not mentioned in this cafe, but it is there held, that a perfon's acting as conftable is a

fufficient notification, altho the prty do not otherwife know him to be so.