MURDER AND MANSLAUGHTER.—Continued. ib. crime from murder to manslaughter, except words of menace of bodily harm. Page 456 If A. give indecent language to B. and B. thereon strikes A. but not mortally, and then A. strikes B. again, and then B. kills A. by many only manslaughter. A. sitting in an ale-house, a woman calls him a Son of a whore, A. at a distance throws a broomstaff at her, and kills her; quære, whether murder or manslaughter. ib. The nature of the weapon, wherewith party is killed, considered. 457 A. and B. at difference, A. bids B. take a pin out of his sleeve to take occasion to strike B. B. doth accordingly, A. strikes B. whereof he dies, murder. ib. A chiding between husband and wife, thereon he strikes her with a pestle, and kills her, murder. ib. A bailiff comes to execute a process, but hath not a lawful warrant, if such bailiff be killed, only manslaughter. ib. If any minister of justice be killed doing his office, it is murder, tho in the night, or on a Sunday. 457. ii. 85 But if the process be executed out of jurisdiction of the court, only manslaughter; so it is, if court had no jurisdiction of process. 458 Murder to kill an officer, tho he shew not his warrant or mace, where it is not demanded. 458, 462 Tho bailiff use no words of arrest nor shews his warrant, murder to kill him doing his duty. ib. But if officer doth what is not warrantable, as break open window to arrest, there, if slain, manslaughter only. 458, 474 If he enter by an outward door, he may break open inner door, killing him in such case, murder. 458, 459 Where officers may justify breaking open doors to arrest, and consequently murder to kill them so doing. 459. ii. 94 Where constable acts out of his vill without a special warrant, killing him only manslaughter; but killing a private man in execution of a particular precept from a justice of peace directed to him by name to suppress a riot in the vill of B. or to arrest one for some misdemeanor, and within the jurisdiction of the justice, murder; such private man must shew his warrant, or signify the contents. If justices warrant express not the cause sufficiently enough, yet if he had jurisdiction, killing officer in execution of it, murder. 459 460 Where two constables and their assistants are engaged one MURDER AND MANSLAUGHTER.—Continued. against another, and party of one constable kills one of the other party, but manslaughter. Page 460 Sheriff having a writ of possession against house of A. A. gains constable of vill to oppose sheriff, and in conflict constable is killed, not so much as manslaughter; but if any of sheriff's officers are killed, murder. Killing bailiff, constable or watchman doing his duty; murder. 457, 460, 463. ii. 90, 98 What sufficient notice that a man is a bailiff, constable or watchman, to make it murder. 460 to 464. ii. 90 What a necessary notification of a man's being a private bailiff. ib. 461 Rioters assembled in a house, some issue out and kill a constable's assistant within view, murder in those in the house, who abetted the assault. 463, 464 Killing those, that come voluntarily to a constable's assistance, as well as those that are called, murder. Killing assisting during necessary retreat of constable, murder. ib. ib. On hue and cry, tho without justice's warrant, or constable a pursuant is killed by a malefactor, murder; all malefactors in the same field principals; one taken before party hurt, not guilty, unless after taken he had animated malefactor to kill the party. 465. ii. 100 A press-master impressed B. and with assistance of C. laid hold on him, D. finding fault with C.'s rudeness a quarrel arose, D. killed C. but manslaughter. ib. A. comes to rob B. and either without, or on resistance, A. kills him, murder. 465, 474 So if men come to steal deer in a park, or rob a warren, and parker or warrener resists, and is killed, murder. ib. 466 If prisoner die by duress of gaoler, murder. What the form of pardon of murder, what of manslaughter: Where a special non obstante of 13 R. 2. necessary. 466, 467 How one indicted of murder having a pardon of felony, or felonica interfectio must plead. 467 1 Jac. of stabbing, tho temporary, by 17 Car. 1. continued till some other act should be made to continue, or discontinue it. 468 Usual to prefer two indictments, one of murder, another on this act, and to try that of murder first, convict on either, ousted of clergy. ib. How indictment on this act must be to oust clergy; need not conclude contra formam stat. good with, or without it. ib. MURDER AND MANSLAUGHTER.-Continued. Throwing a hammer and killing a man, not a stabbing or thrusting within this act. Pages 469, 470 Stabbing, or thrusting with a sword or pike-staff within it: whether a shot with a pistol, or blow with a sword or staff be within it, quære. 470 A cudgel in the deceased's hands, a weapon drawn within it, viz. such as might do hurt. One within words of the act, not within the reason. ib. ib. If a mason in building voluntarily let fall a stone, and kill another, without due warning, at least manslaughter. 472, 475 Two playing at cudgels, or wrestling by consent, or playing at foils, one casually kills the other, manslaughter. 472, 473 If A. cut the hedges of B. and B. beat him, whereof he dies; manslaughter. Several come to enter A's house as trespassers, A. kills one of them, manslaughter. 473 474 If one throws a stone over an house amongst people to do hurt, the intention makes it murder or manslaughter. 475 Shooting at deer in another's park, sans licence, the arrow glanceth and kills, manslaughter. ib. Throwing a stone with intent to kill another's poultry, and it kills a by-stander, manslaughter. ib. A. drives his cart carelessly, and it runs over a child in the street, and yet drives on, and kills the child, murder; but if he saw it not, manslaughter. 476 One riding in the street whips his horse, and runs over a child and kills him, manslaughter. ib. But if he rid so in a press of people to do hurt, and horse had killed another, murder. ib. If there be malice between A. and B. and they meet and fight upon it, tho A. gives first blow, and B. retreats as far as he can with safety, yet if B. kill him, murder. 479 A. assaults B. B. thereon strikes A. without flight, and kills him, manslaughter. ib. If A. upon malice prepense strikes B. and then flies to the wall, and there in his own defense kills B. under what circumstances murder, or se defendendo. 480 If a prisoner resists not, but flies, yet officer for fear of a rescue strikes him, whereof he dies, murder. 481 Bailiff killing a man flying to avoid arrest in a civil action, murder. · ib. If A. assaults B. first, and B. re-assaults A. and so fiercely, that A. cannot retreat to the wall without danger; nay, tho he fall on the ground upon B.'s assault, and then kills B. MURDER AND MANSLAUGHTER.-Continued. Page 482 it is not se defendendo, but murder or homicide according to the case. Necessity of flying shall not be taken as a flight, in favour of assailant. 482 483 ib. A. assaults B. B. by his own courage and'address precludes flight of A. then A. kills him, manslaughter. Killing on a sudden falling out, manslaughter. A. assaults the master, and servant in defense of him kills A. if master not driven to extremity manslaughter in servant. 484 Like law of a master killing in defense of his servant; husband of the wife, the child of the parent, and è converso. ib. If husband or father kill one that attempts to ravish the wife or daughter, if it might have been otherwise prevented, manslaughter. 485 Killing one, who pretending title takes goods as a trespasser, manslaughter. 485, 486 Killing a trespasser in defense of a man's house, manslaugh ter. 485, 487 490 Killing adulterer in the act with the wife, manslaughter. ib. A. is suspected by B. of felony, tho no felony committed, neither is A. indicted, nor probable cause of suspicion, if on offer to arrest him by B. he resists or flies, whereby B. cannot take him without killing, and B. kills him, at least manslaughter; but if a felony committed, and there be cause to suspect A. tho innocent, if B. kill A. in this pursuit, whether it excuse him from manslaughter. If a man have a park within a forest, where he may hunt, and forester kills purloin-man, or his servant hunting in his purloin, murder or manslaughter according to the case. 491 What authority homicide in execution of justice requires in the judge that gives, and officer that executes judgment. 497,498, 499 Giving judgment of death without jurisdiction, if executed, murder. 497 Justice of peace gives judgment in treason, whether murder or misprision only. 497, 498 Where proceeding of judges in capitals without strict extent of their commission, or where their proceeding after their commission is determined, is not murder, but a great misprision. Executing martial law in time of peace, murder. 499, 500 Where the judge hath jurisdiction of the cause, officer executing sentence not guilty, tho the judge err; but otherwise, if he hath no jurisdiction. 498, 499 501 MURDER AND MANSLAUGHTER.-Continued. If a stranger of his own head execute criminal, murder. Page 501 If a private kills one suspected on his flight, and refusing to submit, if innocent, at least manslaughter, because innocent man not bound to take notice of private man, as authorized to arrest him. ii. 82, 83 If one arresting on suspicion break open doors, if party a felon, justifiable; contra, if innocent. ii. 82 If before or after arrest, B. an innocent man suspected, draws his sword and assaults A. the party suspecting, and A. presses upon him to take or detain him, and in conflict B. kills A. it is murder, or if A. kills B. it is justifiable. ii. 84 ii. 83 If one arrested on suspicion kills party arresting, (always supposing party arrested innocent,) only manslaughter. Bailiff about to take a prisoner, before arrest prisoner draws his sword, and kills him, murder. ii. 83 If there be a felony done, 1. suspects B. on probable grounds, and acquaints constable with it, and desires his aid to take him, if constable on such arrest or attempt thereof be killed, it is murder. ii. 92 If there be a warrant against one for trespass, or breach of the peace, and he flies, and will not yield to the arrest, or being taken makes his escape, and officer kills him, murder. ii. 117 Vide ARREST, CLERGY, HOMICIDE PER TOUT, INDICTMENT. MUTE. If prisoner prosecuted on 28 H. 8. for trial of treason, &c. on the high sea stand mute, he shall have peine fort & dure. ii. 17, 318, 319 Whether peine fort & dure be pardoned by general words of all contempts. In case of demurrer no such judgment can be given. ii. 252 ii. 257, 315 Where defendant fails in pleading not guilty, or putting himself on his country, it is in law a standing mute. ii. 258 ii. 268 Antiently, if felon peremptorily challenged above thirty-five, he was put to peine fort & dure. If before 22 H. 8. felon had pleaded not guilty, and put himself on the country, and challenged peremptorily under three juries, whereby jury remained, and a tales was granted, and he then stood mute, yet jury past on him on his plea not guilty. ii. 269, 316 |