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riot continue, and an officer be killed, he that began the riot would, if he remained present at it, be a principal murderer, though he did not commit the fact. (s)

A great number of persons, assembled in a house called Sissing. Şissinghursthurst, in Kent, issued out and committed a great riot and battery

house case. upon the possessors of a wood adjacent. One of their names, viz. A., was known, the rest were not known; and a warrant was ob. tained from a justice of peace to apprehend the said A., and divers other persons unknown, who were altogether in Sissinghursthouse. The constable, with about sixteen or twenty called to his assistance, came with the warrant to the house, and demanded entrance, and acquainted some of the persons within that he was the constable, and came with the justice's warrant, and demanded A. with the rest of the offenders that were then in the house; and one of the persons within came, and read the warrant, but denied admission to the constable, or to deliver A. or any of the malefactors; but, going in, commanded the rest of the company to stand to their staves. The constable and his assistants, fearing mischief, went away; and being about five rod from the door, B., C., D., E., F., &c. about fourteen in number, issued out and pursued the constable and his assistants. The constable commanded the peace, yet they fell on, and killed one of the assistants of the constable, and wounded others, and then retired into the house to the rest of their company which were in the house, whereof the said A. and one G. that read the warrant were two. For this A., B., C., D., E., F.,G., and divers others, were indicted of murder, and tried at the King's Bench bar, when these points were unanimously determined ;

1. That although the indictment were, that B. gave the stroke, and the rest were present aiding and assisting, though in truth C. gave the stroke, or that it did not appear upon the evidence which of them gave the stroke, but only that it was given by one of the rioters, yet that such evidence was sufficient to maintain the indictment; for in law it was the stroke of all that party, according to the resolution in Mackally's case. (t)

2. That in this case all that were present and assisting to the rioters were guilty of the death of the party slain, though they did not all actually strike him, or any of the constable's company.

3. That those within the house, if they abetted or counselled the riot, were in law present aiding and assisting, and principals, as well as those that issued out and actually committed the assault; for it was but within five rod of the house, and in view thereof, and all done as it were in the same instant. (u)

4. That here was sufficient notice that was the constable, before the man was killed. 1. Because he was the constable of the

Hertford, temp. Will. 3. ad incipium Mayden, one of the company, killed MS. Tracey 53. 1 East. P. C. c. 5. s. the keeper in the Park, the Lord Dacre 63. p. 296.; and see also Fost. 353. and the rest of the company being in

(s) Rex v.Wallis and Others, 1 Salk. other parts of the park; and it was 334.

ruled that it was murder in them all, (1) 9 Co. 67. b.

and they died for it. Crompt. 25, a. (u) Vide Lord Dacre's case. The Dalt. c. 145. p. 472. 34 Hen. 8. B. Lord Dacre and divers others came to Coron. 172. See also Moor 86. Kelw. shoot deer in the park of one Pelham. 56. Hale 439.

same vill. 2. Because he notified his business at the door before the assault, viz. that he came with the justice's warrant. 3. Because, after his retreat, and before the man was slain, the constable commanded the peace; and, notwithstanding, the rioters fell on and killed the party.

5. It was resolved, that the killing of the assistant of the constable was murder, as well as the killing of the constable himself.

6. That those who come in to the assistance of the constable, though not -specially called thereunto, are under the same protection as they that are called to his assistance by name.

7. That although the constable retired with his company upon the not delivering up of A., yet the killing of the assistant of the constable in that retreat was murder. 1. Because the retreat was one continued act in pursuance of his office; being necessary, when he could not attain the object of his warrant, and being in effect a continuation of the execution of his office, and under the same protection of the law as his coming was. 2. Principally because the constable, in the beginning of the assault, and before the man was stricken, commanded the peace.

8. It seems that even if the constable had not commanded the peace, yet as he and his company came about what the law allowed them, and, when they could not effect it fairly, were going their way, the rioters pursuing them and killing one made the offence murder in them all; for the act was done without provocation, and the constable and his company were peaceably retiring : but this point was not relied upon because there was enough upon the former point to convict the offenders. In the conclusion, the jury found nine of them guilty, and acquitted those within ; not because they were absent, but because there was no clear evidence that they consented to the assault as the jury thought;

and therefore judgment was given against the nine to be hanged. (w)

SECT. IV.

Cases where the Killing takes place in the Prosecution of some

other Criminal, Unlawful, or Wanton Act.

If an action, unlawful in itself, be done deliberately and with intention of mischief or great bodily harm to particular individuals, or of mischief indiscriminately, fall where it may, and death ensue

(w) Sissinghurst-house case, 1 Hale cer of the court, and precedents in 461, 2, 3. "The award was for the cases of judgments given in the King's marshal to do execution, because they Bench have commonly been, Et dictum were remanded to the custody of the marescallo, &c. quod faciat execumarshal, and be is the immediate offi- tionem periculo incumbente.

against or beside the original intention of the party, it will be murder. (.x)

Under this head may be mentioned the cases of particular malice Particular ma

one individual falling by mistake or accident upon another, lice to one inwhich, by the ignorance or lenity of juries, have been sometimes ing upon anbrought within the rule of accidental death. But though, in a other. loose way of speaking, it may be called accidental death when a person dies by a blow not intended against him, the case is considered by the law in a very different light. Thus, if it appears from circumstances that the injury intended to A., whether by poison, blow, or any other means of death, would have amounted to murder if he had been killed by it, it will amount to the same offence if B. happen to fall by the same means :(y) so that if C., having malice against A., strikes at and misses him, buč kills B., this is murder in C.: (-) and upon the same principle, if A. and B. engage in a deliberate duel, and a stranger coming between them to part them is killed by one of them, it is murder in the party killing. (a) And it has also been resolved, that where A. had malice against D., the master of B., and assaulted him, and upon B. the servant coming to the aid of his master, A. killed B., it was murder in A. as much as if he had killed the master.(b) So, where A. gave a poisoned apple to his wife intending to poison her, and the wife, ignorant of the matter, gave it to a child who took it and died; this was held murder in A., though he, being present at the time, endeavoured to dissuade his wife from giving the apple to the child. (c) And, upon the same principle, it was held to be murder where A. mixed poison in an electuary sent by an apothecary to her husband, which did not kill him, but afterwards killed the apothecary, who, to vindicate his reputation, tasted it himself, having first stirred it about. (d) Doubt was entertained, because the apothecary, of his own hand, without incitement from any one, not only partook of the electuary, but mingled it together, so as to incorporate the poison, and make its operation more forcible than the mixture as made by the wife of A. . but the Judges resolved that she was guilty of murder; for the putting the poison into the electuary was the cause of the death : and if a person prepares poison with intent to kill any reasonable creature, such person is guilty of the murder of whatever reasonable creature

(0) Fost. 261.

unless both struck him who came to part (y) Id. ibid. 1 Hale 441. Williams's them; and says that by the book of 22 case, 1 Hale 469. which Holt, C. J. Ass. 71. Coron. 180. (which seems to thought would have been a case of be the same case more at large) he murder, if the indictment had been so only that gave the stroke had judg-laid. See Mawgridge's case, Kel. 131. ment, and was executed. .1 Hale 441.

(2) 1 East. P. C. c. 5. §. 17. p. 230. to which this note is subjoined ; “ the

(a) I Hale 441. Dalt. c. 145. p. other does not appear to have been 472. It appears to have been holden before the court: but, upon putting in such a case, where the combating the case, the court said, he that struck was by malice prepense, that the kill- is guilty of felony, but said nothing as ing of the person who came to part to him who did not strike." them was murder in both the com- (6) i Hale 438. batants, 22 Edw. 3. Coron. 262. Lam- (c) Sanders' case, Plowd. 474. 1 bard out of Dallison's Report, p. 217. Hawk. P. C. c.-31. S. 45. 1 Hale 436. But Lord Hale thinks tbai this is mis- (d) Gore's case, 9 Co. 81. I Hawk. taken, and that it is not murder in both, P. C. c. 31. S. 45. i Hale 436.

abortion.

is killed thereby. (s) So if A. put poison into wine, with intent to kill B., and C. drinks thereof and dies, A. is guilty of the murder of C.; and it makes no difference that the wine, unless stirred up, would not have killed C., and that C., thinking there was

sugar in it, stirred it up.(r) Murder in at- So, where a person gave medicine to a woman to procure an tempting to abortion, (e) and where a person put skewers into the womb of a procure an

woman for the same purpose, (f) by which in both cases the women were killed, these acts were held clearly to be murder; for, though the death of the women was not intended, the acts were of a nature deliberate and malicious, and necessarily attended with

great danger to the persons on whom they were practised. General ma- There are also other cases where no mischief is intended to any lice or de

particular individual, but where there is a general malice or depraved inclination to mis- praved inclination to mischief, fall where it may; and in these chief. cases the act itself being unlawful, attended with probable serious

danger, and done with a mischievous intent to hurt people, the killing will amount to murder. (8) Thus, if a man go deliberately, and with an intent to do mischief, upon a horse used to strike, or coolly discharge a gun amongst a multitude of people, and death be the consequence of such acts, it will be murder. (h) So, if a man resolves to kill the next man he meets, and does kill him, it is murder, although he knew him not; for this is universal malice.(i) And upon the same principle, if a man, knowing that people are passing along the street, throw a stone likely to do injury, or shoot over a house or wall with intent to do hurt to people, and one is thereby slain, it is murder on account of the previous malice, though not directed against any particular individual : for it is no excuse that the party was bent upon

mischief generally. (K) Death from an Whenever an unlawful act, an act malum in se, is done in prounlawful act secution of a felonious intention, and death ensues, it will be done with felonious in murder : as if A. shoot at the poultry of B. intending to steal the

poultry, and by accident kill a man, this will be murder by reason of the felonious intention of stealing.(1) And it has been holden, that if such offenders as are mentioned in the statute De malefactoribus in parcis, (m) kill the keeper, &c. it is murder in all, although it appear that the keeper ordering them to stand, assaulted them first, and that they fled, and did not turn till one of the keepers' men had fired and hurt one of their companions.(n)

tent.

(z) Ante, note (d).

(k) i Hale 475. 3 Inst. 57. 1 East. (r) 9 Co. 81 b.

P. C. c. 5. s. 18. p. 231. (e) i Hale 429.

(l) Fost. 258, 259. (f) Tinckler's case, 1 East. P. C. (m) 21 Edw. 1. st. 2. 1 Hale 491. c. 5. s. 17. p. 230. and s. 124. p. 354. The statute 3 and 4 W. and M. c. 10.

(g) i Hale 475. 1 East. P. C. c. 5. s. 5. empowers owners of deer in any s. 18. p. 231.

inclosed land, or any persons under (h) | Hale 475. 4 Blac. Com. 200. them, to resist offenders in like man1 Hawk. P. C. c. 29. s. 12. 1 East. per as in ancient parks. And by stat. P. C. c. 5. s. 18. p. 23). Hawkins, 4 and 5 W. and M. c. 23. s. 4. lords of speaking of the instance of the person manors, or any others authorized by riding a horse used to kick amongst a them as gamekeepers, may resist ofcrowd, says, it would be murder fenders in the night within their rethough the rider intended no more spective manors or royalties, in the than to divert himself by putting the same manner and with equal indempeople into a fright. 1 Hawk. P. C. nity, as if the fact had been committed c. 31. s. 68. and sec ante, 427.

in any ancient chase, &c. (i) 4 Blac. Com. 200.

Also, where the intent is to do some great bodily harm to Death from another, and death ensues, it will be murder; as if A. intend only an act intendto beat B. in anger, or from preconceived malice, and happen to ing bodily kill him, it will be no excuse that he did not intend all the mischief that followed; for what he did was malum in se, and he must be answerable for its consequence.

He beat B. with an intention of doing him some bodily harm, and is therefore answerable for all the harm he did.(o) So, if a large stone be thrown at one with a deliberate intent to hurt, though not to kill him, and by accident it kill him, or any other, this is murder.(p) But the nature of the instrument, and the manner of using it, as calculated to produce great bodily harm or not, will vary the offence, in all such cases.(9)

Where divers persons resolve generally to resist all opposers in Where several the commission of any breach of the peace, and to execute it in join to do an such a manner as naturally tends to raise tumults and affrays, as

unlawful act. by committing a violent disseisin with great numbers of people, or going to beat a man, or rob a park, or standing in opposition to the sheriff's posse, they must, when they engage in such bold disturbances of the public peace, at their peril, abide the event of their actions. And therefore if in doing any of these acts they happen to kill a man, they are all guilty of murder.(r) But it should be observed, that in order to make the killing by any njurder in all of those who are confederated together for an unlawful purpose, merely on account of the unlawful act done or in contemplation, it must happen during the actual strife or endeavour, or at least within such a reasonable time afterwards as may leave it probable that no fresh provocation intervened.(s)

And it should also be observed, that the fact must appear to The fact must have been committed strictly in prosecution of the purpose for appear to have which the party was assembled; and therefore, if divers persons be been commitengaged in an unlawful act, and one of them, with malice pre- prosecution pense against one of his companions, finding an opportunity, kill of the purpose him, the rest are not concerned in the guilt of that act, because it for which the had no connection with the crime in contemplation. (t) So, where sembled. two men were beating another man in the street, and a stranger made some observation upon the cruelty of the act, upon which one of the two men gave him a mortal stab with a knife; and both the men were indicted as principals in the murder; although both were doing an unlawful act in beating the man, yet as the death of the stranger did not ensue upon that act, and as it appeared that only one of them intended any injury to the person

(n) I East. P. C. c. 5. s. 31. p. 256. 17. I Hale 439, et sequ. 4 Blac. Com. citing 1 MS. Sum. 145, 175. Sum, 37, 200. 1 East. P. C. c. 55. 8. 33. p. 257. 46. Palm. 546. 2 Roll. Rep. 120. (s) i East. P. C. c. 5. s. 34. p. 259. (0) Fost. 259.

(1) I Hawk. P. C. c. 31. s. 52. Fost. (p) i Hale 440, 441.

351. And see the charge of Foster, J. (9) Kel. 127. 1 East. P.C. c. 5. s. 32. on a special commission for the trial

of Jackson and Others, at Chichester, (r) i Hawk. P.C. c. 31. s.51. Staundf. 9 St. Tri. (ed. by Hargr.) 715, et sequ.

p. 257.

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