king's name, and the like for any that come in his affiftance, or for a watchman, &c. and therefore, if any of them are killed after fuch a notification, it is murder in them that kill him. 9 Co. Rep. 68. b. Mackally's cafe.

And thefe differences may be collected out of the books, 4 Co. Rep 40. Young's cafe. "Et en ceft cafe fuit tenus per totam curiam, que fi fur affray fait le conftable & autres en fon affiftance veignont a fuppreffer le affray & a preserver le peace, & en fefant lour office "le constable ou ascun de ses affsistants foit tue, ceo eft murder en ley, "coment que le murderer ne scavoit le party, que fuit tue, & coment

que le affray fuit fodein, pur ceo que le conftable & fes affiftants "veigne per authoritie del ley pur le garder del peace & a preventer "le danger, que poit enfuer per le infreinder de ceo, & pur ceo le ley

adjudgera ceo murder, & que le murderer avoit malice prepense, "pur ceo, que il oppofe luy mefme enconter le juftice del realme, & "iffint de le vifcont, ou fon bailiff, ou watchman en fefant

"fon office." And 9 Co. Rep. 69. Mackally's cafe, where [462]

it was objected, that the ferjeant at mace did not fhew his mace, whereby the offender might know him to be an officer; yet it was ruled, that the killing of him was murder, 1. Because it was found, that he was ferviens ad clavam, juratus & cognitus, and a bailiff jurus & conus need not fhew his warrant, tho demanded, nor another bailiff without demand; and when the books fpeak of a bailiff jurus & conus, it is not neceffary that he be known to the party arrested, but it is fufficient if he be commonly known. 2. "Si notice fuit requifite il "done fufficient notice, quant il dit jeo toy arreft in le nofme le roy, &c. "Et le party a fon peril doit luy obeyer, & fil nad loyall garrant, il poit aver fon action de faux imprisonment, iffint que in ceft cafe "fans queftion le ferjant ne befoigne a monftre fon mace, car fils "ferra chase a monftre lour mace, ceo ferra warning al party deftre "arreft a fuer.

66

H. 24 & 25 Car. 2. A great number of perfons affembled in a houfe called Siffinghurst in Kent, iffued out and committed a great riot and battery upon the poffeffors of a wood adjacent. One of their names, viz. A. was known, the reft were not known; a warrant was obtain❜d from a juftice of peace to apprehend the faid A. and divers other perfons unknown, which were all together in Siffinghursthoufe. The conftable, with about fixteen or twenty called to his affiftance. came with the warrant to the house, and demanded enVOL. I.

Dd

trance,

trance, and acquainted fome of the perfons within, that he was the conftable, and came with the juftice's warrant. and demanded A. with the reft of the offenders, that were then in the houfe, and one of the perfons within came and read the warrant, but denied admiffion to the conflable, or to deliver A. or any of the malefactors, but going in commanded the reft of the company to ftand to their ftaves: the conftable and his affiftants fearing mifchief went away, and being about five rod from the door, B. C. D. E. F. &c. about fourteen in number, iffued out and purfued the conftable and his affiftants; the conftable commanded the peace, yet they fell on and killed one of the affiftants of the conftable, and wounded others, and then re.

[463] tired into the house to the reft of their company, which

were in the house, whereof the faid A. and one G. that read the warrant, were two, for which the faid A. B. C. D. E. F. G. and divers others were indicted of murder, and tried at the king's bench bar, wherein thefe points were unanimoufly agreed.

1. That altho the indictment were, that B. gave the stroke, and the reft were prefent, aiding, and affifting, tho in truth C. gave the ftroke, or that it did not appear upon the evidence, which of them gave the ftroke, but only that it was given by one of the rioters, yet that evidence was fufficient to maintain the indictment, for in law it was the stroke of all that party, according to the resolution in Mackally's cafe, 9 Co. Rep. 67. b.

2. That in this cafe all, that were prefent and affifting to the riot ers, were guilty of the death of the party flain, tho they did not all actually ftrike him, or any of the constable's company.

3. That those within the house, if they abetted or counfelled this. riot, were in law prefent, aiding, and affifting, and principals as well as thofe that iffued out and actually committed the affault, for it was but within five rod of the house, and in view thereof, and all done as it were in the fame inftant; vide lord Dacre's cafe before.

4. That here was fufficient notice, that it was the conftable before the man was killed, 1. Because he was conftable of the fame vill. 2. Because he notified his bufinefs at the door before the affault, viz. that he came with the justice's warrant. 3. Because after his retreat, and before the man flain, the conftable commanded the peace, and notwithstanding it, the rioters fell on, and killed the party.

5. It was refolved, that the killing of the affiftant of the constable was murder, as well as the killing of the constable himself.

6. That

6. That thofe, that came in the affiftance of the conftable, tho not fpecially called thereunto, are under the fame protection as they that are called to his affiftance by name.

7. That altho the conftable retired with his company upon the not delivering up of A. yet the killing of the affiftant of the con[464] ftable in that retreat was murder. 1. Because it was one continued act in the pursuance of his office, his retiring was as neceffary, when he could not attain the effect of his warrant, and was in effect a continuation of the execution of his office, and under the fame protection of the law, as his coming was. 2. Principally, because the conftable in the beginning of the affault, and before the man was ftricken, commanded the peace, and is all one with Yonge's cafe.

8. It seems, that tho the conftable had not commanded the peace, yet when he and his company came about what the law allow'd them, and, when they could not effect it fairly, were going their way, that the rioters pursuing them, and killing one, was murder in them all, because it was done without provocation, for they were peaceably retiring; but this point was not stood upon, because there was enough upon the former point to convict the offenders, and in the conclufion the jury found nine of them guilty, and acquitted those within, not because they were abfent, but because there was no clear evidence, that they confented to the affault, as the jury thought, and thereupon judgment was given against the nine to be hanged: and note, that the award was for the marshal to do execution, because they were remanded to the custody of the marshal, and he is the immediate officer of the court, and precedents in cafes of judgment given in the king's bench have commonly run, Et dictum eft marescallo, &c. quod faciat executionem periculo incumbente. (r)

At Newgate in Lent vacation, 26 Car. 2. the cafe was thus: five perfons committed a robbery about Hounslow-heath in Middlesex, viz. Jackson and four others, the party robbed raised hue and cry, the country purfued them, and at Hampstead Jackfon one of the five

(r) And thus it was in the cafe of the Altboes, T. 9 Geo. I. B. R. who were convicted of a barbarous murder in Pembrokefire at Hereford affizes, being the next English county; the indictment was removed by Certiorari into the king's bench, in order to argue fome exceptions, which were over-ruled; and after fome queftion made, whether they ought not to be fent

back to Herefordshire to receive fentence there, the court was of opinion, that they had the fame jurifdiction over facts committed in Wales, as if committed in the next adjacent county in England, and fo they were fentenced at the king's bench, and were executed by rhe marshal at Ken nington gallows near Southwark.

Dd2

turned

turned upon his purfuers, the reft being in the fame field, and having often refifted the purfuers, and refufing to yield, killed one of the purfuers, by five judges then prefent it was ruled. 1. That this was murder, becaufe the country, upon hue and cry levied, are authorized by law to purfue and apprchend the malefactors; and in this cafe here was a felony done, and a felony done by those perfons, that were thus purfued. 2. That altho there was no warrant of a justice of peace to raise hue and cry, and tho there was no conftable in the purfuit, yet the hue and cry was a good warrant in law for them to apprehend the offenders, and the killing of any of the purfuants by Jackfen was murder. 3. In as much as all of the robbers were of a company, and made a common refiftance, and so one animated the other, all thofe of the company of the robbers that were in the fame field, the at a distance from Jackson, were all principals, viz. prefent, aiding, and abetting. 4. That when one of the malefactors was apprehended a little before the party was hurt, that perfon being in cuftody when the ftroke was given was not guilty, unless it could be proved, that after he was apprehended he had animated Jackfon to kill the party: they had all judgment of death for the robbery, and four of them for the murder.

A prefs-mafter feifed B. for a foldier, and with the affiftance of C laid hold on him. D. finding fault with the rudenefs of C. there grew a quarrel between them, and D. killed C. By the advice of all the judges, except very few, it was ruled, that this was but manlaughter, 17 Car, 2. (f)

III. The third kind of malice implied is in relation to the perfon killing.

If A. comes to rob B. in his houfe, or upon the highway, or otherwife, without any precedent intention of killing him, yet if in the attempt, either without or upon the refiftance of B. A. kills B. this is murder. Co. P. C. p. 52.

So if men come to fteal deer in a park or foreft, or to rob a warren of conies, and the parker, forefter, or warrener refifts and is killed, this is murder; the lord Dacre's cafe.

If a prifoner dies by reafon of durefs [466] the goaler, it is murder in the gaoler.

and hard ufage by Co. P. C. p. 52.

So if a fheriff have a precept to hang a man for felony, and he beheads him, it is murder. Co. P. C. Ibidem.

(ƒ) Hugget's cafe, 25 April 1666. at Nerugate, Kel. 59, 137.

To

To these may be added the cafes abovementioned, viz. if A. by malice forethought strikes at B. and miffing him ftrikes C. whereof he dies, tho he never bore any malice to C. yet it is murder, and the law transfers the malice to the party flain; the like of poisoning, fed de his fupra cap.

See Fofter. 138, 291, 292, 256, 257, 261, 262, 297, 298, 299, 300, 309, 310, 311, 314, 352, 371. See Index to 1 Hawk. P. C. Tit. Malice and Murder. Blackf, Com. lib. iv. chap. 14. p. 198, 199, 200, 206.

CHA P. XXXVIII.

Of manflaughter, and particularly of manslaughter exempt from clergy, by the ftatute of 1 Jac. 8.

MA

ANSLAUGHTER, or fimple homicide, is the voluntary killing of another without malice exprefs or implied, and differs not in fubftance of the fact from murder, but only differs in these enfuing circumstances.

1. In the degree of the offenfe, murder being aggravated with malice prefumed or implied, but manslaughter not, and therefore in manflaughter there can be no acceffaries before. 2. In the form of the indictment, the former being always felonicè ex malitiâ præcogitatâ interfecit & murdravit, the latter only felonicè interfecit. 3. In the point of clergy, murder being by the ftatute of 23 H. 8. cap. 1. exempt from the benefit of clergy, but not manflaughter. 4. In the form of the pardon of murder, for tho at common law a pardon of all felonies had pardoned murder; yet by the ftatute of 13 R. 2. cap. 1. the pardon of murder must either be by the exprefs word of murder, or else it must be a pardon of felonica interfectio with a special non obftante of the ftatutes of 13 R. 2. H. Jac. Lucas's cafe. (a)

[467]

But the pardon of manslaughter may be general by the words of felonia or felonica interfectio, and hence it is, that if a man indicted of murder obtains a pardon of felony, or felonica interfectio only, and be afterwards arraigned upon an indictment of murder, he muft plead quoad murdrum & interfectionem ex malitiâ præcogitatâ not guilty, and

(a) Moor, n. 1033. p. 752.