| Chap. 145.
Plo. 435.
F. Cor.
314. |
Murther.
Also where a man commandeth another to beat A.
and he beateth him;
so as A. dieth thereof; this is Murther in him to do an unlawful
Act, by
reason whereof the killing of a man ensued. |
347 |
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' For (as that late Reverend and Learned Judge Sir
John Dodderidge,
' pag. 138. sheweth) there is an efficient cause Casual; as
if a man intend
' to do any unlawful act; and in doing thereof, another hurt ensueth, not
' intended, but by chance, clean beyond all expectation or desire, yet
' shall he be said the author of that act not intended, (and so hapning
by
' chance) that did intend the first act. |
|
Br. Cor.
172.
F. Cor.
350.
Co. 11. 5. |
3. Note also that if divers persons come in
one Company (and as Confederates
in the fact, Stamf. 40.) to do any unlawful thing, as to kill, rob,
or beat a Man, or to commit any Riot or Affray, or to do any other
Trespass, and one of them in doing thereof, killeth a man; this shall
be
adjudged Murther in them all that are present of that Party abetting him,
and consenting to the Act or ready to aid him, although they did but
look on, &c. See Stamf. 40. Fitz. Indictment 22
Plo. 98. |
§. 10.
Principal. |
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Nay, if they be not present, yet if they be in the
same house, or upon
the same ground, it is Murther in them all. See the Lord Dacres
Case,
Cromp. 25. |
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' Mr. Bracton, fol. 121. saith further, Si
plures rixuti fuerint inter se in
' aliquo conflictu & aliquis sit interfectus, nex appareat ex
quo, nex ex enjus
' vulnere, omnes dici possint homicidæ, &c. quære,
if their meeting were
' upon a lawful occasion, and if they suddenly fall out, and no former
' malice may appear. |
|
Plow. 100.
See here. |
4. Note also, that all that are present, and
aiding, abetting or comforting
to another to do Murther, are principal Murthers, although they
shall give never a stroke. See more, 4 H. 7. 18. 13
H. 7. 1o. Fitz. Coron.
309. Co. 9. 67. 112 & 11. 5. |
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As if A. and B. fall out, and appoint
the Field, and they meet accordingly,
each of them bringing Company with them, A. killeth B. this
is
Murther in all those that came with A. as his second, or abetting,
comforting,
or ready to assist or aid him, for that the presence of these other
that came with A. is a terror to B. and an incouragement
to A. Vide ibid.
& Plo. 98. |
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And yet if B. cometh in the Company of C.
who of his malice prepensed,
doth go to kill D. and then B. seeth them fighting together,
he taketh
part with C. suddenly (not having any former malice to D.)
and striketh
at D. with the other, and D. is thus slain amongst them;
this is but Man-slaughter
in B. for that he had no malice precedent, Plo. 100.
See the
Case of the Master and his Servants here before. But note, that
the cause
of the coming of B. be unknown to D. his presence might,
and in likelyhood
did strike terror in D. and so the presence of the Servants
did or
might strike terror in the party murthered, and gave incouragement to
the Master. |
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" If any shall stab or thrust another, that hath
not any Weapon drawn,
" or hath not first strucken the party; if the party so stabbed or thrust
" dye within six months, although malice forethought cannot be proved;
" the party offending shall not have benefit of Clergy, but shall suffer
" death, as in case of wilful Murther. 1 Jac. 8. |
Stabbing. |
|
5. Note also, That in case of Murther, it
is not material who giveth the
first blow; for if he that is slain gave the first blow, yet if there were
malice
prepensed in the other, it is Murther in him that killeth him. |
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