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Murther.
A. do strike B. to the ground, and
then draweth his Knife to kill B. and
B. lying upon the ground draweth his Knife to defend himself,
and A. is so
hasty to kill B. that he falleth upon B. his Knife, and so
A. is slain; here A.
in a manner is Felo de se, and yet shall not A. forfeit
his Goods in this case,
Br. Co. L. 12. See 44 Ass. p. 17. Br. Cor.
12 & 14. that A. was adjudged
not to be Fela de se, in this case. |
Chap. 145.
44 E. 3. 44.
Fit. Cor.
64. |
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' If A. of malice prepensed dischargeth a
Pistol at B. and misseth him,
' and throws down his Pistol and flyeth, and B. pursueth him to
kill him,
' whereupon A. turning, falleth down, his Dagger drawn, and B.
through
' hast falleth upon the Dagger, here B. is Felo de se, and
A. shall go quit,
' 44 E. 3. Sir Fr. Bacon 4, 5. |
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' If a Caliver be discharged with a Murtherous intent
at J. S. and the
' piece breaks, and strikes into the eye of him that dischargeth it, and
' killeth him, he is Felo de se; and yet his intention was not
to hurt himself:
' For Feloniade se, and Murther, are Crimina paris gradus.
See ibid. p. 65. |
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' And in such case he shall forfeit his Lands, quia
convincitur, Bract. lib.
' 13. cap. 31. |
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§. 3.
Who may be
Felo de se. |
If one that wanteth discretion, killeth himself,
(as an Infant, or a Man
non compos mentis) he shall not forfeit his Goods, &c.
Bract. Ibid. |
Stamf. 19. |
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If a Lunatick Person killeth himself, he shall forfeit
his Goods, (Fitz.
Coron. 324) but this must be understood when he killeth himself out
of
his Lunacy: otherwise it is if he killeth himself during his Lunacy,
for
then he shall neither forfeit his Goods, not be counted Felo de
se. |
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If one being of Non sanæ memoriæ,
or a Lunatick, giveth himself a mortal
wound, and after he becometh of sound Memory, and then dyeth of
the same wound, in this case, although he dyeth by reason of his own proper
stroke, yet for that the original cause was committed when he was de
non sana memoria, he shall not be accounted Felo de se, neither
shall he forfeit
any thing, for that the death hath relation to the original Act, the which
was the stroke or wound given when he was de non sana memoria, Co. 1.
99.
b. & 4. 42. a. Fitz. Coron. 244. Pl. 260. |
Co. 4. 129. |
§. 1.
Who shall
inquire of
it. |
The Inquiry of such a Felony belongeth to the Coroner:
And yet if
Felo de se be cast into the Sea, or secretly buried, that the Coroner
cannot
have the fight of his Body, and so cannot inquire thereof; then the
Justices
of Peace, or any other having authority to inquire of Felonies, may inquire
thereof, (for that it is Felony:) and a presentment thereof found
before them, intituleth the King to his Goods.
|
Co. 5. 110. |
§. 1.
Exod. 21.
13.
Numb. 35.
20.
Deut. 19.
11. |
Murther. CHAP. CXLV.
V. 93.
OF old time every killing of one Man by another,
was called Murther,
(of the effect) because death ensued of it. Afterwards Murther was
restrained to a secret killing only; and therefore Bracton and Britton
in
their definition of Murther, calleth it Occulta occisio nullo præsente
præter interfectorem
& suos coadjutores, &c. But since Murther hath been,
and is taken
in a middle degree, neither so largely as it first was, nor so narrowly
as
Master Bracton and Britton speaketh of it. For Murther
is now construed
to be when one Man upon malice prepensed, (sc. forethought)
or precedent
and with his Will, doth kill another Feloniously, viz. with a premeditate
and malicious Mind, whether it be openly or privily done, this is
Felony of Death, without any benefit of Clergy, 23 H. 8. cap.
1. & 1 Ed. |
Stamf. 18.
Plow. 261. |
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