her, and B., ignorant of it, give it to a child, who took it and died; this is murder in A., but no offence in B.; and this, though A., who was present at the time, endeavoured to dissuade B. from giving it to the child. 2 Plowden Com. 474. So where Plummer and seven others, opposed the king's officers in the act of seizing wool. One of those persons shot off a fusee and killed one of his own party. The court held, in giving judg ment upon a special verdict, that as the prisoner was upon an unlawful design, if he had in pursuance thereof discharged the fusee against any of the king's officers that came to resist him, in the prosecution of that design, and by accident had killed one of his own accomplices, it would have been murder in him. As if a man out of malice to A. shoot at him, but miss him and kill B., it is no less a murder than if he had killed the person intended. Kelyng, 111; Lord Raym. 1581; 9 St. Tr. 112; Hig. gins's case; Dyer, 128; Pl. 60; Cromp. 101; 9 Co. 81, Agnes Gore's case; D. Wil liams's case, cited in the Queen v. Mawgridge; Kelyng, 131, 132; 9 St. Tr. 61. In another case, the prisoner mixed poison in an electuary, of which her husband, and her father, and another, took part and fell sick. Martin, the apothecary, who had made the electuary, on being questioned about it, to clear himself, took part of it and died. On this evidence a question arose, whether Agnes Gore, the defendant, had committed murder; and the doubt was, because Martin, of his own will, without invitation or procurement of any, had not only eaten of the electuary, but had by stirring it so incorporated the poison with the electuary, that it was the occasion of his death. The judges resolved, that the prisoner was guilty of the murder of Martin, for the law conjoins the murderous intention of Agnes in putting the poison into the electuary to kill her husband, with the event which thence ensued; quia eventus est qui ex causâ sequitur, et dicuntur eventus quia ex causis eveniunt, and the stirring of the electuary by Martin, without putting in the poison by Agnes, could not have been the cause of his death. 9 Co. 11; Jenk. Cent. 220; 3 Inst. 51; Plowd. Com.574; 1 Hawk. P. C. & C. 31, s. 3. Under the same head may be classed the case of one who gave medicine to a woman; and that of another who put skewers in her womb, with a view in each case to procure an abortion; whereby the women were killed. The case, at common law, was murder; though the original intent, had it succeeded, would not have been so, but only a great misdemeanor; for the acts were in their nature malicious and delibe. rate, and necessarily attended with great danger to the person on whom they were practised. Com. v. Chauncey, 2 Ashmead, 227. ante, 90.

If a man have a sudden quarrel, and fight with A., by which his passions are strongly excited, and while his passions are thus excited, he without any real or supposed provocation kill B., who is an utter stranger to the whole affair, and has not interfered in the quarrel, nor been in any way connected therewith, even in the party's own supposition, it will be murder. U. S. v. Travers, 2 Wheeler's C. C. 508, per Story, J. But, where the prisoner, having had a quarrel with his wife, pursued her, and aimed a blow at her with an axe, which fell on the head of his infant son, then in her arms, by which he was instantly killed, it being shown that the prisoner was ignorant of his child's posi tion, and was at the time in the heat of blood, seeking to avenge himself on his wife for a supposed injury, it was held, that as the case was to be considered as if the wife had been the victim, the same grade of homicide would attach to the killing of the child as it would have done to that of the wife, if she had been killed. Commonwealth v. Dough. erty, 7 Smith's Laws, 296. But in this, as in cases of malice prepense and express, if the blow intended for one would in law only have amounted to manslaughter, it will still be the same, though by mistake or accident it kill another. Thus, in an old case, a quarrel arising between some soldiers and a number of keelmen at Sandgate, a violent affray ensued, and one of the soldiers was very much beaten. The prisoner, a soldier who had before driven part of the mob down the street with his sword in the scabbard, on his return, seeing his comrade thus used, drew his sword, and bid the mob stand clear, saying he would sweep the street; and on their pressing on him he struck at them with the flat-side, and as they fled pursued them. The other soldier in the mean time had got away, and when the prisoner returned he asked whether they had murdered his comrade; and being several times again assaulted by the mob, he brandished his sword, and bid them keep off. At this time the deceased, who from his dress might be mistaken for a keelman, was going along about five yards from the prisoner; but before he passed the prisoner went up to him and struck him on the head with the sword, of which he presently died. This was holden manslaughter: it was not murder, because there was a previous provocation, and the blood was heated in the contest: nor was it in self-defence, because there was no inevitable necessity to excuse the killing in that

manner. Foster, 262; 1 Hawk. c. 31, s. 44; Leach, C. C. R. 151, S. C.; Wharton's Am. Cr. L. 231-3.

At the Old Bailey, in 1690, the prisoners with twenty more were hired by J. S. to remove his goods, in order to prevent a distress. The landlord with some assistants endeavoured to prevent them, and an affray happened. The constable ordered them to disperse, but could not prevail; as they were fighting, one of the company, to the jurors unknown, killed a boy who had no concern in the quarrel, as he was standing at his father's door.

These facts being found in a special verdict, Holt and Pollerfen were of opinion that it was murder in all the party. For though the removing of the goods might be lawful, yet the continuing of the party together after the constable had ordered them to be dispersed was unlawful; and besides, the great numbers that were thus assembled, and the unusual weapons they were armed with, did also make the assembly unlawful. But the majority of the judges held, that as the boy was totally unconcerned in the affray, the killing of him could not be imputed to the rest who were merely engaged in the general affray. That the boy could not be deemed an opposer of the party, so as to make him an object of their contention; and that they could no more be said to have abetted the killing of him, than if one of the company had killed a person looking out of a window. The King against Hubson and others, Chappets, M. S. 1. M. S. Sum. 187. Title, Accomplices and Accessaries in Murder.

CHAPTER XXXVIII.

OF MANSLAUGHTER, AND PARTICULARLY OF MANSLAUGHTER EXEMPT FROM CLERGY, BY THE STATUTE OF 1 JAC. 8.

MANSLAUGHTER, or simple homicide, is the voluntary killing of another without malice express or implied, and differs not in substance of the fact from murder, but only differs in these ensuing circum

stances.

1. In the degree of the offense, murder being aggravated with malice presumed or implied, but manslaughter not, and therefore in manslaughter there can be no accessaries before. 2. In the form of the indictment, the former being always felonicè ex malitia præcogitata interfecit & murdravit, the latter only felonicè interfecit. 3. In the point of clergy, murder being by the statute of 23 H. cap. 1. exempt from the benefit of clergy, but not manslaughter. 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 statute of 13 R. 2. cap. 1. the pardon of murder must either be by the express word of murder, or else it must be a pardon of felonica interfectio with a special non obstante of the statutes of 13 R. 2. H. 1. Jac. [467] Lucas's case.(a)

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 must plead quoad murdrum & interfectionem ex malitia precogitatâ not guilty, and as to the felony and interfection must plead his pardon;

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

and then if the jury being charged to inquire of the plea of not guilty, find it to be only a simple felony and interfection without malice forethought, his pardou is to be allowd; and thus upon good deliberation it was done in the year 1668, at Norwich, Sir Thomas Potte's case, and is pursuant to the statute of 13 R. 2. which saith, "That before a pardon of felonies shall be allowed as to murder, it shall be inquired by good inquest, if he were slain by await or malice prepensed." And I remember very well in the case of Rutaby T. 1653, who was indicted of murder in Durham, the defendant pleaded a pardon of felonica interfectio, and a general non obstante of all statutes; and the attorney general demurred; it was ruled, 1. That the pardon was insufficient with only a general non obstante, unless murder had been containd in the body of the pardon by express words. 2. But tho the pardon was disallowed as to murder, yet the prisoner was remitted into Durham to be tried, whether guilty of murder, and being so 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 disallowd, yet it had stood good, if the conviction were of manslaughter: by the statute of 1 Jac. cap. 8. "Any person 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 thrust, if the party die within six months, the offender is ousted of clergy, provided it shall not extend to him, that kills se defendendo, or by misfortune, or in preserving the peace, or chastizing his child or servant.

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

The use hath been in cases of this nature to prefer two indictments against offenders in this kind, viz. one of murder, another upon this statute, and put the prisoner 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 ousted of clergy.

The indictment to put the prisoner from his clergy must be specially formed pursuant to the statute, viz. that he did with a sword, &c. stab the party dead, he having no weapon drawn, nor having struck first, otherwise it will be but a common manslaughter, and the party will have his clergy.

The indictment need not conclude contra formam statuti, no more than in burglary or robbery, for the statute doth not make the offense to be felony, but ousts the prisoner of his clergy, where the crime is so circumstantiated as the statute expresseth; this was agreed in the case of Page and Harwood. H. 23 Car. 1 B. R.(b)

But yet it doth not vitiate the indictment, tho it do conclude, Et sic interfecit contra formam statuti, as was adjudged Trin. 9 Jac.

(b) In this case, as reported in Styles 86. it is not agreed to be so, on the contrary it was denied per Roll, and doubted per Bacon.

B. R. Bradley and Banks; (c) and accordingly for the most part to this day the indictments upon this statute do conclude contra formam statuti, so it is good with or without such conclusion, but it is best to follow the common usage, because every man doth not readily observe the reason of the omission of that conclusion.

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

1. That no man is ousted of his clergy by this statute, but he that actually stabs, and therefore those, that are laid in the indictment to be present, aiding, and abetting in such a case, shall be admitted to the benefit of clergy; and therefore, tho the indictment of such a manslaughter be specially formed upon the sta- [469] tute, and conclude contra formam statuti, yet it is a good indictment of manslaughter against them that were present, aiding, and abetting, and therefore upon such a special indictment of manslaughter upon the statute, the prisoner may be convict of simple manslaughter, and acquitted of manslaughter upon the statute, and the indictment serves for a common manslaughter, as well as a man upon an indictment of murder may be acquit of murder, and convict of manslaughter.

22 Martii, 14 Car. 1. At Newgate sessions David Williams was indicted specially upon this statute 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 sua dextrâ erga & ad anteriorem partem capitis ipsius Francisci felonicè violenter & in furore suo projecit, & cum malleo prædicto ipsum Franciscum in & super anteriorem partem capitis &c. percussit & pupugit, anglice did stab and thrust the said Marbury having no weapon drawn, nor struck first, whereof he presently died, & sic modo & formá prædictá interfecit &c. contra formam statuti &c. The prisoner pleaded not guilty, and a special verdict was found, viz. that upon St. David's day the prisoner being a Welshman had a leek in his hat, and there was at the same time in waggery a Jack-a-lent in the street put up with a leek, and one Nicholas Redman, a porter, spake to the prisoner, and pointing to the Jack-alent said, Look at your countryman, and the prisoner being therewith enraged, threw an hammer at Redman to the intent feloniously to hit him, but missing him, the hammer did hit Francis Marbury, whereof he died, & sic prædictus David præfatum Franciscum cum malleo prædicto pupugit & percussit, anglice did stab and thrust, the said Francis then not having any weapon drawn, nor then having first stricken the said David; and it was judged by Bramston, Jones, and the recorder Gardiner, that Williams was guilty of manslaughter at the common law, sed non contra formam statuli, so that it seems 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 killing of Marbury, which was [470]

(c) Cro. Jac, 283.

VOL. I.-42

(d) W. Jones, 432.

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 statute are stab or thrust, if the stabbing or thrusting were with a sword, or with a pikestaff, it is within the statute, so it seems, if it be a shot with a pistol, or a blow with a sword or staff, yet quære, for Jones justice denied it.

In M. 5 Jac. it was ruled, that if the party slain had a cudgel in his hand, it is a weapon drawn within this statute, and the prisoner was admitted to his clergy at Newgate; but it seems it must be intended of such a cudgel, as might probably do hurt, not a small riding-rod or cane.

In the year 1657.(ƒ) at Newgate before Glynn, who then sat as chief-justice, a man was indicted upon this statute, and a special verdict found, that a bailiff having a warrant to arrest a man, pressed early into his chamber with violence, but not mentioning his business, nor the man knowing him to be a bailiff, nor that he came to make an arrest, snatched down a sword, that hanged in his chamber, and stabbed the bailiff, whereof he presently died: there was some diversity of opinion among the judges, whether this were within the statute, but at length the prisoner was admitted to his clergy, for tho this case was within the words of the statute, and not within the particular exceptions, yet it was held, that this case was never intended in the statute, for the prisoner did not know, but that the party came into rob or kill him, when he thus violently brake into his chamber without declaring his business.(g) [1]

(e) Lord chief justice Holt in Mawgridge's case, Kel. 131. concurs with this judg ment, for that it was not such a weapon or act, as is within the statute of stabbing, but he is of opinion, that Williams ought to have been found guilty of murder, if the indictment had been so laid, for that there was not a sufficient provocation to lessen the offense to manslaughter.

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

(g) See Kel. 136.

[1] There is no difference between murder and voluntary manslaughter, but that murder is upon malice aforethought, and manslaughter is upon a sudden occasion. 4 Bl. Com. 191. 1 Hawk. c. 31. s. 1. 1 East, P. C. 218.

The following are some of the more usual modes in which manslaughter occurs: I fighting. The character of the combat, the nature of the weapon used, if any, the relative strength and positions of the parties, and all the attendant and preceding circumstances must be considered in order to determine whether a killing in combat be mur. der, manslaughter, or no felony whatever. 3 Inst. 55. Rex v. Kessell, 1 C. & P. 437. 1 East, P. C. 243. Rex v. Taylor, 5 Burr. 2793. Rex v. Anderson, I Russell, 447. Rex v. Ayers, R. & R. 166. Rex v. Rankin, R. & R. 443. R. v. Smith, 8 C. & P. 160. R. v. Lynch, 5 C. & P. 324. R. v. Kirkham, 8 C. & P. 115. State v. Scott, 4 Iredell, 109. State v. Rutherwood, 1 Hawks. 349. Com. v. Daily, 4 Penna. L. J. 158. State v. McCants, 1 Spear, 484.

When a third party interferes, and kills one of the combatants. 1 Hawk. c. 31. s. 35, 36. 55. 1 East, P. C. 291, 292. 12 Co. 87. Kel. 59. Conner v. The State, 4 Yer. ger, 137.