as to the felony and interfection must plead his pardon; and then it the jury being charged to inquire of the plea of not guilty, find it to be only a fimple felony and interfection without malice forethought, his pardon is to be allowd; and thus upon good deliberation it was done in the year 1668. at Norwich, Sir Thomas Potte's cafe, and is purfuant to the statute of 13 R. 2. which faith, "That before a pardon of felonies "shall be allowed as to murder, it shall be inquired by good inquest, "if he were flain by await or malice prepenfed." And I remember very well in the cafe of Rutaby, T. 1653. who was indicted of murder in Durham, the defendant pleaded a pardon of felonica interfectio, and a general non obftante of all statutes; and the attorney general demurred; it was ruled, 1. That the pardon was infufficient with only a general non obftante, unless murder had been containd in the body of the pardon by exprefs words. 2. But tho the party was fo ditallowd as to murder, yet the prifoner was remitted into Durham to be tried, whether guilty of murder, and being fo found was executed; but had it been found only manslaughter, he should have been discharged, and altho his plea of the pardon to the indictment of murder was difallowd, yet it had stood good, if the conviction were of manslaughter: by the ftatute of 1 Jac. cap. 8. "Any perfon that shall stab or thrust any ❝ person, that hath not any weapon drawn, or hath not first stricken "the party, that shall so stab or thruft, if the party die within fix "months, the offender is oufted of clergy, provided it shall not extend to him, that kills fe defendendo, or by misfortune, or in preferving "the peace, or chaftizing his child or fervant.

This act, tho but temporary, is continued till fome other [468] act of parliament fhall be made touching the continuance or difcontinuance thereof. 17 Car. I. cap. 4.

The use hath been in cafes of this nature to prefer two indictments againft offenders in this kind, viz. one of murder, another upon this ftatute, and put the prifoner to plead to both, and to charge the jury first with the indictments of murder, and if they find it not to be murder, then to charge them to inquire upon the other bill, because, if convict upon either, the offender is oufted of clergy.

The indictment to put the prifoner from his cle: gy must be fpecially formed pursuant to the ftatute, viz. that he did with a fword, &c. ftab the party dead, he having no weapon drawn, nor having ftruck firft, otherwife it will be but a common manflaughter, and the party will have his clergy.

The

The indictment need not conclude contra formam ftatuti, no more than in burglary or robbery, for the ftatute doth not make the offenfe to be felony, but oufts the prifoner of his clergy, where the crime is fo circumftantiated as the ftatute expreffeth; this was agreed in the cafe of Page and Harwood. H. 23 Car. 1. B. R. (b)

But yet it doth not vitiate the indictment, tho it do conclude, Et fic interfecit contra formam ftatuti, as was adjudged Trin. 9 Jac. B. R. Bradley and Banks (c); and accordingly for the moft part to this day the indictments upon this ftatute do conclude contra formam ftatuti, fo it is good with or without fuch conclufion, but it is beft to follow the common ufage, because every man doth not readily obferve the reafon of the omiffion of that conclufion.

In the cafe of Page and Harwood, H. 23 Car. 1. before cited, these points were refolved in the king's bench, viz.

1. That no man is oufted of his clergy by this ftatute, but he that actually stabs, and therefore thofe, that are laid in the indictment to be prefent, aiding, and abetting in fuch a cafe, fhall be admitted to the benefit of clergy; and therefore, tho the indictment of fuch [469] a manflaughter be fpecially formed upon the ftatute, and concludes contra formam ftatuti, yet it is a good indictment of manflaughter against them that were prefent, aiding, and abetting, and therefore upon fuch a special indictment of manslaughter upon the ftatute, the prifoner may be convict of fimple manflaughter, and acquitted of manflaughter upon the statute, and the indictment ferves for a common manflaughter, as well as a man upon an indictment of murder may be acquitted of murder, and convict of mantlaughter. 22 Martii, 14 Car. 1. At Newgate feffions David Williams was indicted fpecially upon this ftatute for the death of Francis Marbury (d), viz. Quod felonicè &c. unum malleum de ferro & ligno, anglice an hammer of wood and iron, è manu fuâ dextrâ erga ☞ ad anteriorem partem capitis ipfius Francifci felonicè violenter & in furore fu♦ projecit, & cum malleo prædicto ipfum Francifcum in & fuper anteri orem partem capitis &c. percuffit & pupugit, anglice did ftab and thrust the faid Marbury having no weapon drawn, nor ftruck firft, whereof he presently died, & fic modo & formá prædictâ interfecit &c. contra formam ftatuti &c. The prifoner pleaded not guilty, and a special verdict was found, viz. that upon St. David's day the prisoner being

(b) In this cafe, as reported in Styles per Bacon. 86. it is not agreed to be fo, on the con

trary

it was denied per Roll, and doubted

(c) Cro. Fac. 283.
(d) W. Jones 432.

Dd

4

a Welsh

3

a Welshman had a leek in his hat, and there was at the fame time in waggery a Jack-a-lent in the fireet put up with a leek, and one Nicholas Redman, a porter, fpake to the prifoner, and pointing to the Jack-a-lent faid, Look at your countryman, and the prifoner being therewith enraged, threw an hammer at Redman to the intent felonioufly to hit him, but miffing him, the hammer did hit Francis Marbury, whereof he died, & fic prædi&tus David præfatum Francifcum cum malleo prædicto pupugit & percuffit, anglice did ftab and thruft, the faid Francis then not having any weapon drawn, nor then having firft ftricken the faid David; and it was judged by Bramfton, Jones, and the recorder Gardiner, that Williams was guilty of manslaughter at the common law, fed non contra formam ftatuti, so that it feems they thought not this to be a stabbing within the statute, being done with the throwing of the hammer, or at least they took this [470] killing of Marbury, which was not at all intended by Williams, to be out of the statute, tho it excused him not for manslaughter at common law. (e)

The words of the ftatute are stab or thrust, if the stabbing or thrusting were with a fword, or with a pikeftaff, it is within the ftatute, fo it seems, if it be a fhot with a piftol, or a blow with a fword or staff, yet quære, for Jones justice denied it.

In M. 5 Jack. it was ruled, that if the party flain had a cudgel in his hand, it is a weapon drawn within this statute, and the prifoner was admitted to his clergy at Newgate; but it seems it must be intended of fuch a cudgel, as might probably do hurt, not a small ridingrod or cane.

In the year 1657. (ƒ) at Newgate before Glynn, who then fat as chief justice, a man was indicted upon this ftatute, and a special verdict found, that a bailiff having a warrant to arrest a man, preffed early into his chamber with violence, but not mentioning his bufinefs, nor the man knowing him to be a bailiff, nor that he came to make an an arreft, fnatched down a sword, that hanged in his chamber, and stabbed the bailiff, whereof he prefently died: there was fome diverfity

(e) Lord chief juftice Holt in Margridge's cafe, Kel. 131. coucurs with this judgment, for that it was not fuch a weapon or act, as is within the ftatute of ftabbing, but he is of opinion, that Williams ought to have been found guilty of murder, if the indictment had been fo laid, for that there was not a fufficient provocation to laffen the offenfe to manslaughter.

(f) Quars, whether the cafe here meant be not Buckner's cafe, M. 1655. reported in Styles 467. but that, as it is there reported, was not the cafe of a bailiff, but of a creditor, who flood at the door with a fword undrawn to keep the debtor in, till they could fend for a bailiff, and was killed by the debtor.

of

of opinion among the judges, whether this were within the ftatute, but at length the prifoner was admitted to his clergy, for tho this cafe was within the words of the ftatute, and not within the particular exceptions, yet it was held, that this cafe was never intended in the ftatute, for the prifoner did not know, but that the party came in to rob or kill him, when he thus violently brake into his chamber with out declaring his bufinefs. (g)

(g) See Kel. 135.

CHAP. XXXIX.

[471]

Touching involuntary homicide, and first of chance-medley or killing

INV

per infortunium.

NVOLUNTARY homicide is the death or hurt of the perfon of a man against or befides the will of him that kills him.

OR is death or hurt of

And in these cafes, to speak once for all, the indictment itself must find the fpecial matter, or in cafe the indictment be of murder or manflaughter, and upon the trial it appears to the jury it was involuntary, (as by misfortune, or in his own defenfe) the jury ought to find the fpecial matter, and fo conclude, Et fic per infortunium, or fe defendendo, and not generally, that it was per infortunium, or fe defendendo, because the court muft judge upon the special matter, whether it be murder, homicide, or per infortunium, or fe defendendo,` and and the jury is only to find the fact, and leave the judgment thereupon to the court; and in such case the prisoner must not plead the fpecial matter, and so justify, but must plead not guilty, and the special matter must be found by the jury, Stamf. P. C. Lib. I. cap. 7. fol. 15. a. Lib. III. cap. 9. fol. 165. a. for upon the special matter found, the court may give judgment against the conclufion of the verdict, as that the fact is manflaughter, tho the conclufion of the verdict be fortunium, or fe defendendo. 44 E. 3. Coron. 94.

per

in

This involuntary homicide is of two kinds, viz. either 1. When it is purely involuntary or cafual, as the killing of a man per infortunium, or 2. When it is partly involuntary, and partly voluntary, but occafiond by a neceffity, that the law allows, which is commonly called homicide ex neceffitate, as killing a man in his own defense, or the like; de quilus poftea.

Homicide

Homicide per infortunium is, where a man is doing a lawful act, and without intention of bodily harm to any person, and by that a& death of another enfues, as if a man be fhooting at buts or pricks, and by cafualty his hand fhakes, and the arrow kills a by-stander. 21 H. 7. 28. a. 6 E. 4. 7. b.

Or if a carpenter or mafon in building cafually let fall a piece of timber or stone, and kills another. 21 H. 7. B. Coron. 59.

But if he voluntarily let it fall, whereby it kills another, if he gives not due warning to thofe that are under, it will be at least manflaughter; quia debitam diligentiam non adhibuit.

So if a man be felling a tree in his own ground, and it fall and kill a perfon, it is chance-medley. 6 E. 4. 7.

But in all these cafes, if it doth only hurt a man by such an accident, it is nevertheless a trespass, and the perfon hurt fhall recover his damages, for tho the chance excufe from felony, yet it excufeth not from trefpafs. 6 E. 4. 7.

Regularly he that voluntarily and knowingly intends hurt to the perfon of a man, tho he intend not death, yet if death enfues, it excufeth not from the guilt of murder, or manflaughter at leaft; as if A. intends to beat B. but not to kill him, yet if death enfues, this is not per infortunium, but murder or manflaughter, as the circumstances of the cafe happen.

And therefore I have known it ruled, that if two men are playing at cudgels together, or wrestling by confent, if one with a blow or fall kill the other, it is manflaughter, and not per infortunium, tho Mr. Dalton, cap. 96. (a) feems to doubt it; and accordingly it was refolved P. 2 Car. 2. by all the judges upon a special verdict from Newgate, where two friends were playing at foils at a fencing school, one cafually kild the other; refolved to be manslaughter.

Sir John Chichester, and his man-fervant, whom he very well loved, were playing together, the man had a bedftaff in his hand, and Sir John had his rapier in the fcabbard, Sir John, according to the usual sport between them, bids his man guard his thruft or pass, which he was making at him with his rapier in the scabbard, the fer[473] vant with the bedstaff brake the thruft, but withal struck off the chape of the fcabbard, whereby the end of the rapier came out of the fcabbard, but the thruft was not fo effectually broken, but the end of the rapier prickt the fervant in the groin, whereof he died:

(a) New Edit. cap. 148. p. 479.