| Chap. 150. |
Homicide se Defendendo.
' to that they did, in their own defence, the other so assaulting them,
' &c. |
357 |
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' If divers be in danger of Drowning, by the casting
away of a Boat or
' Barge, and one of them gets to a Plank or on the Boats side, to keep
' himself above the Water, and another to save his life, thrust him from
it,
' whereby he is drowned. This is neither Se Defendendo, nor
by misadventure,
' yet justifiable. Idem 30. |
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' And for this inevitable necessity Bracton
giveth this Rule, St autem inevitabilis,
' quia occidit hominem sine odii meditatione, in metu & dolore
animi
' se & sua liberando, cum aliter evadere non posset, non tenetur
ad pœnam
' homicidii, f. 1230. |
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" If an Man imprisoned for Felony escape, and the
Gaoler pursues him,
" but he resisteth and refuseth to yield himself, and thereby the Gaoler
kills
" him; this is justifiable and not Man-slaughter. But otherwise it
is in case
" the Imprisonment were for Debt. Per Rolls Rep. part., 2.
p. 187. |
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But if a Man shall forcibly get, and keep possession
of a House, and
the other shall come in the night and fire this House, they within cannot
justifie to shoot and kill him, or any of his company, for that they
in the
House were there unlawfully. See Cromp. 26. |
§. 7.
Prohibited. |
F. Cor.
305.
Co. 5. 91. |
If one cometh (in the day time) to my House, to
beat me, and doth
make an assault upon me in my House, and fighteth with me, and I kill
him in defence of my person; yet in this case I shall forfeit my Goods,
and
must have the Kings Pardon, except it be found, that the Assailant came
with a Felonious intent to kill or rob me. |
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And if one cometh (in the day time or in the night)
to enter into my
House, pretending title thereto, and to put me out of my possession, and
I kill him: This seemeth to be Man-slaughter in me. |
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Stamf. 15.
a.
Speculum
Justic. |
Note, if one kill a true Man, in defence of his
person, there ought to
be so great a necessity, that it must be esteemed to be inevitable, or
otherwise
it will not excuse, but that it is Felony, although that the other
pursues
him; and therefore he that shall be assaulted by a true Man, must first
flie as far as he can, and till he be letted by some Wall, Hedge, Ditch,
press
of People, or other Impediment; so as he can flie no further without danger
of his life, or of being wounded or maimed; and yet in such case, if
he kill the other, he shall be committed till the time of his Tryal, and
must then get his pardon for his Life and his Lands, (which pardon notwithstanding
he shall have of course) but he shall lose and forfeit his
Goods and Chattels; for the great regard which the Law hath of a Mans
Life, Fitz. Coron. 116. Co. 5. 91. b. See
hereof Paulo antea, tit. Felony by
Misadventure. |
The Penalty. |
Co. 5. 91.
4 H. 7. 2.
6 E. 1. c. 9.
P. Pardon
1.
Stamf. 15. |
A. maketh an affray upon B. and striketh
B. and B. flieth so far as he
can for saving his life, before any stroke given by B. and A.
continueth
his Assault; whereupon B. doth also strike A. and killeth
him. This is
Homicide in his own defence; otherwise it seemeth to some, if B. had
struck the first blow, or had struck before he had fled; and yet by
other good opinions, the first stroke or who began the affray, is not
material; but the whole matter will consist upon the inevitable necessity
(sc. whether the said B. who killeth A. could
not have escaped
with his life, &c. without killing A. for otherwise it will
not excuse B.
for Cuncta prius tentanda: And as it is a charitable,
so it is a safe principle
(in these cases) not to use an extremity, till thou hast tryed all
means. |
§. 8.
Se Defendendo. |
F. Cor.
284 & 286
Stamf. 15. |
Also it is holden in the former case, if B.
(before he had fled) had
striken A. and given him divers wounds, that yet if he flie
to a strait before |
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