| Chap. 166. |
Examination.
de familia qui tuno intersuerint, pœnam capitalem subibunt, nisi
forte per patriam
fuerint liberati.
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415. |
Stamf. 97.
& 179.
Co. L. 6. |
Sunt etiam quædam presumptiones ita violentæ,
ut probationem non admittunt
in contrarium; ut si quis cum cultello cruentato capius si super
mortuum,
vel fugiendo a murtuo, vel mortem confitetur: quibus non admittitur
mortem dedicere, nec alia opus est probatione. |
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Sir Ed. Coke, 1. 6. maketh three sorts of
Presumption: viz. |
§. 3.
Presumption. |
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1. Violenta, (as in this last former
case) which he saith is plena
probatio.
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2. Probabilis, which (saith he) moveth
little.
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3. Præsumptio levis, seu temeraria,
which moveth not at all.
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* Co. 11.
302. vide. |
And yet in cases of felony, &c. the Confession
of the Offender,
upon his Examination before the Justice of Peace, shall be no Conviction
of the Offender, except he shall after * confess the same again
upon his Trial or Arraignment, or be found guilty by Verdict of twelve
Men, &c. |
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To the like purpose also is the Rule of the Civil
Law, Si quis in Judicio
sponte de seipso confiteatur, & postea maneat in Confessione,
satis est: If any
Man in Judgment do confess of himself, of his own accord, and doth persevere
in his Confession, it is enough, and such Confession shall be taken
for
an Evidence of the Crime. |
Confession. |
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But yet at Lent Assizes at Cambridge, Anno quarto
Caroli Regis, before
Sir Francis Harvey, upon the Arraignment of a Prisoner for felony,
his Examination,
which was taken before the Justice of Peace, wherein he had
confessed the felony, was only given in Evidence, no other Evidence then
coming in upon his Trial; and the Prisoner upon that his own Confession
before the Justice of Peace was found guilty by the Jury of Life and Death,
and had Judgment, &c. |
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Also in cases of secret Murthers, and in cases of
Poysoning, Witchcraft,
and the like secret Offences, where open and evident Proofs are seldom
to
be had, there (it seemeth) half proofs or probable presumptions are to
be
allowed, and are good causes of suspition, ' and are sufficient for the
Justice
' of Peace to commit the party so suspected. |
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8 E. 4. 4.
5 H. 7. 4.
Br. F. Imp.
4. 10.
17 E. 4. 5.
22 H. 7. 29. |
But note, (by the Common Law) That in an Action
of False Imprisonment
brought against the Constable (or other Person that shall
arrest another upon suspition of felony) it is no Plea for them to say,
that
the Plaintiff was suspected of felony: But they must alledge, That
there
was such a felony committed, and that the Plaintiff was suspected for the
same: for suspition only, without a felony committed, is no cause
to
arrest another. Yet see the Statute of 5 E. 3. cap. 14.
' that if any Man
' have any evil suspition of any Person for felony, &c. be it by day
or
' night, they shall be incontinently arrested by the Constables of the
' Towns, &c. and kept in Prison till they be delivered by the Justices,
&c.
' Hic. cap. 129. |
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Also the Defendant must alledge some special matter
(in Fact) to prove
that he, who was arrested, was suspected of felony, (as to say, that the
party
arrested is a Man of an evil Fame, or a vagrant Person, &c.) otherwise
one |
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