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Murther.
And in these cases, the killing of such an Officer,
or any of their Company,
is in Law intended to be by malice prepensed, sc. that the Murtherer
had a malicious resolution in him, to oppose himself against the Law, the
Officers thereof, and the Justices of the Realm. |
Chap. 145.
Co. 9. 67,
68. |
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Also a Thief that offereth to rob a true man, killing
the true man in
resisting him, it is Murther of malice prepensed, Plow. 474.
Co. 9. 67. |
Plo. 174. |
| §. 4. |
A man carried his Father (being sick, and against
his Will) in a frosty
and cold time, from one Town to another, and the Father dyed thereof;
this was adjudged Murther in the Son. |
2 E. 3. 18. |
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An Harlot delivered of a Child, hid it in an Orchard
(it being alive)
and covered it with leaves, and a Kite struck at it, and the Child dyed
thereof, and the Mother was arraigned and executed for Murther. |
2 Eliz.
Cromp. 24. |
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A man hath a Beast that is accustomed to do hurt,
and the Owner
knowing thereof, doth not tye him or otherwise keep him fast shut up,
but suffereth him to go at liberty, and after the Beast killeth a man;
this
is Felony in the Owner of the Beast: for by such sufferance the Owner
seemeth to have a Will to kill, Exod. 21.29. |
Fit. Co.
311.
Stamf. 17.
Exod. 21.
29. |
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So if a man hath an Horse of that property, that
he will strike such as
come near him, and his Master knowing this, rideth upon the same Horse
amongst a multitude of People, &c. and the Horse killeth a man;
this
is Felony in the Master, Lect. M. Cook. |
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And in these four last cases, voluntas reputabitur
pro facto, death ensuing
thereupon: For it may plainly appear, that they had a will and meaning
of that harm which followed, which Will in them, doth amount to malice,
and so makes their offences to be Murther, and in such cases where
death ensueth, Nihil interest, utrum quis occidat, an causam mortis
præbeat. |
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' The same Law seems of an Officer, who being appointed
and authorized
' to whip, or with an hot Iron to burn or brand, or otherwise to
' punish an Offender, shall do it with such rigour, or in such extream
manner,
' as that the Offender by reason and means thereof dyeth. |
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' If a man perswades another to kill himself, and
be present when he
' doth it, he is a Murther, Ba. 65. |
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§. 5.
Four ways
committed. |
The Book called Speculum Justiciar, speaking
of homicida voluntate, saith,
it may be, either by striking, imprisonment, famin or other pain.
1. By striking or stabbing, &c. as you may
see by that already said. |
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2. By imprisonment; as if a man by imprisonment
shall detain the Body
of another (under colour of Law or right) unto death, or so as he dyeth
thereby. See hic verbo, Gaoler. |
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3. By Famine; as if a man shall cast, or leave
an Infant, or other person
which cannot go, in a Desert or such other place, where no person
usually resorts, by reason whereof such Infant, or other impotent person
dyeth for want of succor, &c. |
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4. By pain; as if a man by torture (or Dures)
causeth another to
accuse himself mortally, where in truth he did not the thing, but to be
rid
of the pain (rather desiring death) he confesseth himself guilty of the
Felony,
when he is not guilty. |
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If a man dyeth in the hand of a Physician or Chyrurgion
authorized to
practise, this is no Felony in the Physician or Chyrurgion. And yet
if a
Physician bearing malice to one who is under his Cure, shall give him a
Medicine contrary to his Disease, whereof the Patient dyeth; this is Felony
in the Physician. Lectur. M. Cooke. |
P. Cor.
163.
Stamf. 16. |
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If a Chyrurgion authorized, do through negligence
in his Cure, cause
the Party to dye, the Chyrurgion shall not be brought in question of his |
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