| Chap. 145. |
Murther.
life; and yet if he do only hurt the wound, whereby the Cure is cast
back, and death ensues not, he is subject to an action upon the Case for
his misfeisance, Sir Fr. Ba. 37. |
345 |
34 E. 2. 33.
Lamb. 236.
34 H. 8. 8.
P. Chair. 2. |
And if one which is no Physician or Chyrurgion (or
which is not allowed
to use or practise such faculty) will take a Cure upon him, and his Patient
dyeth under his hand; this hath been holden to be Felony: but
quære of this last case, for it cannot be discerned whether
the Patients
death cometh by any lawful default, in the party taking such Cure upon
him, or by the Patients infirmity; again, there appeareth in them no
will
to do harm, but rather to do good; and then the Stat. of 54 H. 8.
8.
leaveth so great a liberty of such practise to unskilful persons, that
it will
be hard now to make it Felony. But if a Smith, or other person (having
skill only in dressing or curing the Diseases of Horses or other Cattel)
shall take upon him the cutting or letting Blood, or such like Cure of
a
Man, who dyeth thereof, this seemeth to be Felony; for the rule is, Quod
quisque norit, in hoc se exerceat. |
|
Cromp. 23. |
Two playing at Tables, fall out in their Game, and
the one killeth
the other with a Dagger suddenly; this was holden Murther, in one Emeries,
Case before Bromley, at the Assizes in Cheshire, about
27 El. as
Master Crompton reporteth. |
|
| Cromp. 25. |
The Husband, upon words between him and his Wife,
suddenly struck
his Wife with a Pestle, whereof she dyed, and it was adjudged Murther
at the Assizes at Strafford, before Walmesley, 43 Eliz. |
§. 6.
Provocation. |
|
Quære the reason why it should be Murther
in these last two cases, considering
there appeareth no precedent malice, and that it was done upon
the sudden, and upon provocation. |
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" The reason seemeth to be, for that in these two
cases was no sufficient
" provocation to take off the imputation of malice; for it was resolved
" in my Lord Morleys Case (as I heard Mr. Justice Wild say
in the Common
" Pleas) that words were no sufficient provocation to excuse the
" malice intended. |
|
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" Bird challenges Tiverner to Fight,
and appoints a time and place, for
" that T. paid him some Mony he owed him, T. paid the Mony
duely, and
" then for the preservation of his Reputation, meets at the place appointed
" and B. kills T. and this was adjudged Murther; for hte
Law respects not
" who gave the first occasion, if the other accept and undertake hte Quarrel;
" and such Fights grew from setled determinations and purposes to
" kill, and all Deaths happening of Fights upon Challenges are Murther.
" P. 14 Jac. Rolls Rep. part 2. p. 260. |
§. 7.
Challenges. |
| Lamb. 247. |
A. hath wounded B. in Fight, and after
they meet suddenly, and fight
again, and B. killeth A. this seemeth Murther, and malice
shall be intended
in B. upon the former hurt; but now if A. had killed B.
this seemeth
but Man-slaughter in A. for his former malice shall be thought to
be appeased
by the hurt he first did to B. |
|
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Two were in Suit, and they meet suddenly, and quarrel
about the Suit,
and the Defendant killeth the Plaintiff; this seemeth Murther Tame quære. |
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' If A. of malice prepensed, discharge a
Pistol at B. and misseth him,
' and throws down his Pistol and flies, and B. pursueth him to kill
him,
' whereupon A. turneth, and killeth B. with a Dagger:
if the Law should
' consider the last impulsive cause, it should say, that it was in his
own defence:
' But the Law is otherwise, for it is but a pursuance and execution
' of the first murtherous intent: and the first motive will be principally
' regarded, and not the last impulsion. Otherwise, if there had been
a
' full interruption, Sir. Fr. Bacon 4. |
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