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§. 11.
Death. |
Murther.
6. Also in case of poysoning, the party poysoned
must dye thereof,
within a year and a day, after the poyson received. |
Chap. 145. |
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Also if a man do beat or hurt another, whereof he
dyeth, to make it
Murther or other homicide, the party hurt must dye within a year and
a
day next after the hurt done or stroke given. But to have an appeal,
it
shall have relation to the death, and not the the stroke, so as the appeal
must
be brought within the year after the death, and not after the stroke. |
Cor. 303.
Co. 4. 42.
Co. 4. 42. |
§. 12.
In esse. |
7. Note also; In Murther, or other Homicide,
the party killed must be
in esse, sc. in rerum natura, and born into the World: For
if a man hurteth
a Woman with Child, whereby he killeth the Infant in its Mothers
Womb, by our Law (at this day) this is no Felony, neither shall he
forfeit
any thing for such offence: and whether (upon a blow or hurt given
to a Woman with Child) the Child dye within her Body, or shortly after
her delivery, it maketh no difference: yet in ancient time it
was holden
to be Felony; and M. Bracton took it to be homicide, if the blow
were
given postquam puerperim animatum fuerit: But if the Mother
of the Child
dye within a year and a day after such hurt done to her, and upon that
hurt, this is Felony. |
F. Co. 146.
263.
Stamf. 21.
c.
See Exod.
21, 22, 23.
It was
death by
the Law
of God.
Lamb. 229.
Br. Cor. 68.
91. |
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So if the Adulterer, &c. counselleth the Woman
to murther the Child
when it shall be born, and she doth accordingly, the Adulterer is accessary
to this Felony, by this his counsel given before the birth, Co. 7.
9. |
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Also if a man killeth a man unknown, yet it is Felony,
Abr. d' Ass. 76. |
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8. Compulsion also is a good excuse in out
Law in some cases, as if
any mans Arms be drawn by compulsion, and the Weapon in his hand by
means thereof doth kill another, this is not Felony in him whose Arms
were so drawn, &c. Plo. 19. a. |
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9. Involuntary ignorance excuseth also with
us: so as if an Infant not
having Intelligence, or a man of non sanæ memoriæ, shall
kill another, this
is not Felony in them. See hereof hic postea. |
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10. Intent to do a Felony or Murther, is not
punishable by the Common
Law of this Realm, until the act be done: But in Treason and
in
some other particular cases by Statute, the intent may be punished.
Doct.
& Stud. 132. hic. |
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In cases of Murther or Poisoning, the offenders
shall not have the benefit
of Clergy, 1 E. 6. c. 12. 23 H. 8. 1. &
26 H. 8. 12. |
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Note also, That by the Law of God no recompence
was to be taken
for the life of a Murtherer, ' who purposely hath committed Murther,
' but he shall not be put to death: for Murther defieth the Land;
and the
' Land cannot be cleansed of the blood that is shed therein (by wilful
' Murther) but by the blood of him that shed it, Numb. 35. 31,
33'. |
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§. 13.
Pardon. |
And by divers old Statutes, no Charter of Pardon
ought to be granted
to any person in case of Murther or other Homicide, save only where the
King may do it by his Oath, that is to say, where a man killeth another
in his own defence, or by misfortune. See P. Pardon 1.
Also the Statute
of 6 Edw. 1. cap. 9. 2 Edw. 3. cap. 2.
4 Edw. 3. cap. 13. & 14 Ed. 3.
cap. 15. |
13 R. 2. c. 1.
P. Pardon
3.
Plow. 502. |
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And by our Law at this day, a Pardon of all Felonies
will not discharge
Murther, except the Pardon be with a Non obstante, &c. or that
Murther
be expressly mentioned in the Pardon. See Co. 6. 13. b. |
See the
Stat. 2.
13 R. 2. c. |
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Neither will a Pardon of all Felonies discharge
a man that is attainted
of Felony, except also the Attainder and the execution be pardoned.
See
9 E. 4. 29. Co. 6. 13. b. |
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