| 352 |
Misadventure.
from a Cart, &c. (and giveth warning thereof) and another is killed
thereby against his will, 21 H. 7. Coron. 59. Bract.
121. |
Chap. 148. |
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So if a Labourer that is selling or cropping a Tree,
and the same, or
part thereof, falleth and killeth a Man. |
6 Ed. 4. 7.
F. Cor. 398.
Plo. 19. |
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So if the Head of his Hatchet or other Tool falleth
from him, and
happeneth to kill one standing by. Deut. 19.5, 6 & 10.
accordeth, ' sc.
' That he is not worthy of death, but innocent. |
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So if a Man be (in due and convenient time) doing
any other lawful
thing, that may breed danger to such as pass by, and shall give warning
thereof, so that such as pass by, may hear and flie the peril, and yet
another
passing that way shall be killed therewith. |
11 H. 7. 23.
See Br.
Cor. 129.
contra. |
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And so if Men shall run at Tilt, Just or fight at
Barriers together by
the Kings Commandment, and one of them doth kill another: In these
former Cases and the like, it is Misdaventure, and no Felony of Death. |
Hob. 134. |
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And yet in such Cases of Misadventure, as also where
one killeth another
Se Defendendo, by the Common Law these offences were Felony of
Death, and the Offender should have died for the same; but now by the
Statute, such Offenders are to have Pardon for their Life and Lands,
yet their Goods shall remain forfeit as before (at the Common Law.)
See these Statutes, 6 Ed. 1. c. 9. & 2 Ed. 3.
c. 2. 21 Ed. 3. fol. 17. Br.
Cor. 40. & Forf. 9, 13, 15. |
Co. 5. 62. |
§. 2.
Se Defendendo. |
Also in these Cases of Misadventure, and in the
former Cases of Homicide
committed by Infants, and other Persons being Non compos mentis,
as also where one killeth another in defence of his person; they shall
be
discharged in this manner, sc. If they desire to purchase
their pardon, they
must upon their Trial, plead Not Guilty (and shall give in Evidence)
the
special matter) and then this special matter being found by Verdict, they
shall be bailed, and then they must sue forth a Cerciorari, to have
this Record
certified to the Lord Chancellor of England, who thereupon shall
make them a Charter or Pardon of Course under the Great Seal, without
speaking or suing to the King for it. See Stamf. 15. |
Fitz. 246
& 248. b.
Br. Cor. 1.
See Stat.
9 E. 1. 9.
4 H. 7. f. 22.
Reg. f. 309. |
Unlawful
Act. |
But if a Man be doing of an unlawful Act, though
without any evil
intent, and he happeneth by chance to kill a Man; this is Felony, viz.
Manslaughter at the least, if not Murther, in regard the thing he was
doing
was unlawful. Finch. fol. 75. |
Stamf. 162. |
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As shooting of Arrows or casting of Stones into
the High-way, or other
place, whither Men do usually resort. |
Stamf. 120. |
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So of fighting at Barriers or running at Tilt or
Justs, without the Kings
commandment, whereby a Man is slain; and although it were by the Kings
commandment, yet it was holden Felony by the Justices, tempore H. 8.
" Hob. p. 134. contra. |
11 H. 7.
Br. Cer.
229. |
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Playing at Hand-Sword, Bucklers, Footbal, Wrestling
and the like
whereby one of them receiveth an hurt, and dyeth thereof within a year
and a day. In these Cases, some are of opinion, that this is Felony
of
Death; some others are of opinion, that this is no Felony of Death, but
that they shall have their Pardon of Course, as for Misadventure, for that
such their play was by consent: And again there was no former intent
to
do hurt, or any former Malice, but done only for Disport, and Tryal of
Manhood. |
11 H. 7. 23.
Cromp. 26.
& 29. a.
Cor. 118.
136.
P. R. 12. |
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A Man casting a Stone at a Bird or Beast, and another
Man passing by
is slain therewith, quære, whether this be Man-slaughter,
or but Misdaventure.
The opinion of Fineux Chief Justice in 11 H. 7. fol. 23.
is, That if
a Man cast a Stone over an House, and killeth a Man, this is no Felony,
but
Misadventure. But Mr. Brook abridging this Case, It seemeth
to |
Fitz. Cor.
304. & 354.
See Num,
35.13.
Br. Cro.
125.
Cor. 128,
136. |
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