HOMICIDE. 



sault to the wall should give the other 

 wounds in his retreat, yet, if he give him 

 no mortal wound till he get thither, and 

 then kill him, he is guilty of homicide se 

 defendendo only. But if the mortal wound 

 were given first, then it is manslaughter. 



Homicide by misadventurefls where a 

 man is doing a lawful act, without any in- 

 tent of hurt, unfortunately chances to kill 

 another ; as where a labourer being at 

 work with an hatchet, the bead thereof 

 flies off, and kills one who stands by. It 

 seems clear, that neitherhomicide by mis- 

 adventure, nor homicide se defendendo, are 

 felonious, because they are not accompa- 

 nied with a felonious intent, which is ne- 

 cessary in every felony. 



HOMICIDE, justifiable. To make homi- 

 cide justifiable, it must be owing to some 

 unavoidable necessity, to which a person 

 who kills another must be reduced, with- 

 out any manner of fault in himself. And 

 there must be no malice coloured under 

 pretence of necessity; for wherever a 

 person who kills another acts in truth 

 upon malice, and takes occasion upon the 

 appearance of necessity to execute his 

 own private revenge, he is guilty of mur- 

 der. But if a woman kill him who as- 

 saulteth to ravish her, it is no felony : or 

 if a man come to burn my house, and 1 go 

 out and kill him, it is no felony. So " if 

 any evil disposed person shall attempt fe- 

 loniously to rob or murder any person in 

 any dwelling house, or highway, or felo- 

 niously attempt to break any dwelling- 

 house in the night-time, and shall happen 

 to be slain in such felonious attempt, the 

 slayer shall be discharged, and shall for- 

 feit no lands nor goods." 24 Hen. VIII. c. 

 5. Justifiable homicide of a public nature 

 is such as is occasioned by the due exe- 

 cution or advancement of public justice ; 

 with regard to which it must be observed, 

 1. That the judgment, by virtue whereof 

 any person is put to death, must be given 

 by one who has jurisdiction in the cause ; 

 for otherwise both judge and officer may 

 be guilty of felony. 2 The execution 

 must be pursuant to, and warranted by, 

 the judgment, otherwise it is without au- 

 thority ; and consequently, if a sheriff 

 shall behead a man, when it is no part of 

 the sentence to cut off the head, he is 

 guilty of felony. 



HOMICIDE, manslaugliter, against the life 

 of another, is either with or without ma- 

 lice; that which is without malice is call- 

 ed manslaughter, or sometimes chance- 

 medley, or chaud-medly, by which is un- 

 derstood such killing as happens either on 

 a siuiden quarrel; or in the commission of 



an unlawful act, without any deliberate 

 intention of doing any mischief at all. 

 Hence it follows, that there can be no ac- 

 cessaries to this oltence before the fact, 

 because it must be done without preme- 

 ditation ; but there may be accessaries af- 

 ter the fact. The only difference between 

 murder and manslaughter is, that murder 

 is upon malice aforethought, and man- 

 slaughter upon a sudden occasion, as if 

 two meet together, and striving for the 

 wall, the one kills the other, this is man- 

 slaughter and felony. And if they had, 

 on that sudden occasion, gone into the 

 field and fought, and the one had killed 

 the other, this had been but manslaugh- 

 ter, and no murder; because all that fol- 

 lowed was but a continuance of the first 

 sudden occasion, and the blood was never 

 cooled til) the blow was given. 



Chance, or chaud-medley. Authors of 

 the first authority disagree about the ap- 

 plication of this word. By some it is ap- 

 plied to homicide by misadventure, by 

 others to manslaughter. The original 

 meaning of the word seems to favour the 

 former opinion, as it signifies a sudden or 

 casual meddling or contention ; bat ho- 

 micide by misadventnre supposes no pre- 

 vious meddling or falling out. 



Murder is the highest crime against 

 the law of nature that a man is capable of 

 committing. It is when a man of sound 

 memory, and at the age of discretion, un- 

 lawfully kills another person under the. 

 king's peace with malice aforethought, 

 either expressed by the party,or implied 

 by the law, so as the party wounded or 

 hurt die of the wound or hurt within a 

 year and a day, the whole day on which 

 the hurt was done being reckoned the 

 first. 



By malice express, is meant a deliber- 

 ate intention of doing any bodily harm to 

 another, to do which, by law. a person is 

 not authorized. And the evidences of such 

 malice must arise from external circum- 

 stances discovering that inward intention; 

 as lying in wait, menacings antecedent, 

 former grudges, deliberate compassings, 

 and the like, which are various, according 

 to the variety of circumstances. Malice 

 implied, is where a person voluntarily 

 kills another without any provocation. 

 For in this case the law presumes the act I 

 to be malicious. 



If a man kill another, it should be in- 

 tended, prima fade, that he did it mali- 

 ciously, unless he can make the contrary 

 appear, by shewing that he did it on a 

 sudden provocation, or the like. And 

 when the law makes use of the term man- 



