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who lived in either of these parishes were allowed to give evidence for the prosecution. R. v. Buckeridge, 4 Mod. 48.
[*527] *By the general rule of law, the inhabitants of a parish are not competent witnesses for the defendants, for they are themselves in effect defendants in the proceeding. R. v. Wandsworth, 1 B. and A. 66; and see R. v. Wheaton Aston, ante, p. 134. Upon an indictment against a parish for not repairing, Bayley, J., held that a rated inhabitant of another parish, in which it was contended by the defendant, that the highway in question lay, was an incompetent witness to disprove that fact. Anon. cited 15 East, 474. But upon an indictment charging the inhabitants of the township of P. with a liability to repair all roads within their township, it was held that an inhabitant of an adjoining township, within the same parish, was a competent witness to prove that the place in question was a common highway, because, though a conviction would discharge the parish, yet there would be this evidence to show that the road was public, whereby the latter township, from whence the witness came would be charged. R. v. Pelling, Appx. Stark. Ev. 385, 2d ed.
Now by the 54 Geo. 3, c. 107, s. 9, rated inhabitants are rendered competent witnesses "in any matter relating to such rates or cesses." It has been held by Tindal, C. J., that rated inhabitants of a parish are rendered competent witnesses by the above statute, on an indictment against an individual for the non-repair of a bridge, ratione tenura. Hayman's case, M. and M. 401 (a). See a recent decision on this statute, Doe v. Adderley, p. 134.
For the clause in the recent highway act, rendering inhabitants, &c. competent witnesses in any proceedings under it, see ante, p. 134.
The inhabitant of a hundred also cannot be called to prove any fact in favor of the hundred, though so poor, as upon that account to be excused from the payment of taxes, "for though," says Chief Justice Parker, "poor at present, he may become rich." R. v. Hornsey, 10 Mod. 150. Woolrych on Ways, 265. By the 7 & 8 Geo. 4, c. 31, s. 5, inhabitants are made competent witnesses in any action brought by under that act against any hundred, or other like district.
Particulars of the highways obstructed, &c.] On an indictment for obstructing divers horse and carriage ways, and footpaths, Parke, B., upon the production of an affidavit from the attorney for the defendant, that he was unable to understand all the precise tracks indicted, made an order for the delivery of particulars of the ways in question, which were nine in numbers, seven described, generally, as highways, and two described as footways. R. v. Marquis of Downshire, 4 A. and E. 699 (b).
Costs, &c.] By the 5 & 6 Wm. 4, c. 50, s. 98, the court before whom any indictment for not repairing highways is preferred may award costs to the prosecutor, to be paid by the person so indicted, if it shall appear to the said court that the defence made to such indictment was frivolous and vexatious. By s. 99, presentments on account of highways or turnpike roads, being out of repair, are abolished. See further, ante, p. 134, and title, Bridges.
(a) Eng. Com. L. Rep. xxii. 341. (b) Id. xxxi. 169.
Those homicides which are felonies, viz., murder and manslaughter, will, for the convenience of reference, be treated of under separate heads; but as the shades between the various kinds of homicide, are in many cases very faint, and require the circumstances to be stated at large, it has been thought better to collect all the decisions under one head, viz., that of murder, in order to avoid repetition, and to this part of the work, therefore, the reader is referred on the subject of homicide in general. It will be useful, however, in this place, to distinguish the nature of the different kinds of homicide, not amounting to felony.
Homicides not felonious, may be divided into three classes, justifiable homicide, excusable homicide, and homicide by misadventure.
Justifiable homicide is where the killing is in consequence of an imperious duty prescribed by law, or is owing to some unavoidable necessity induced by the act of the party killed, without any manner of fault in the party killing. 1 East, P. C. 219; Hawk. P. C. b. 1, c. 28, s. 1, 22.
Excusable homicide is where the party killing is not altogether free from blame, but the necessity which renders it excusable, may be said to be partly induced by his own act. Formerly in this case, it was the practice for the jury to find the fact specially, and upon certifying the record into Chancery, a pardon issued, of course, under the statute of Gloucester, c. 9, and the forfeiture was thereby saved. But latterly it was usual for the jury to find the prisoner not guilty. 1 East, P. C. 220. And now by the 9 Geo. 4, c. 31, s. 10, no punishment or forfeiture shall be incurred by any person who shall kill another by misfortune or in self-defence, or in any other manner without felony.
Homicide, by misadventure, is where a man doing a lawful act, without any intention of bodily harm, and after using proper precaution to prevent danger, unfortunately kills another person. The act upon which the death ensues, must be lawful in itself, for if it be malum in se, the case will amount to felony, either murder or manslaughter, according to the circumstances. If it be merely malum prohibitum, as (formerly) the shooting at game by an unqualified person, that will not vary the degree of the offence. The usual examples under this head are-1, where death ensues from innocent recreations; 2, from moderate and lawful correction in foro domestico; and 3, from acts lawful or indifferent in themselves, done with proper and ordinary caution. Homicide by chance-medley is, strictly, where death ensues from a combat between the parties upon a sudden quarrel; but it is frequently confounded with misadventure or accident. 1 East, P. C. 221.
*INCITING TO MUTINY.
By the 37 Geo. 3, c. 70, s. 1, after reciting that divers wicked and evil disposed persons, by the publication of written or printed papers, and by malicious and advised speaking, had of late industriously endeavored to seduce persons serving in his Majesty's forces by sea and land, from their duty and allegiance to his Majesty, and to incite them to mutiny and disobedience; it is enacted, "that any person who shall maliciously and advisedly endeavor to seduce any person or persons serving in his Majesty's forces, by sea or land, from his or their duty and allegiance to his Majesty, or to incite or stir up any such person, or persons to commit any act of mutiny, or to make or endeavor to make any mutinous assembly, or to commit any traitorous or mutinous practice whatsoever, shall, on being legally convicted of such offence, be adjudged guilty of felony [and shall suffer death, as in cases of felony, without benefit of clergy."]
S. 2, provides and enacts, "that any offence committed against this act, whether committed on the high seas, or within that part of Great Britain called England, shall and may be prosecuted and tried before any court of oyer and terminer, or gaol delivery for any county of that part of Great Britain called England, in such manner and form as if the said offence had been therein committed."
By the 7 Wm. 4 and 1 Vict. c. 91, s. 1, after reciting (inter alia) the above statute, it is enacted, "that if any person shall, after the commenceinent of this act, be convicted of any of the offences hereinbefore mentioned, such person shall not suffer death, or have sentence of death awarded against him or her for the same, but shall be liable, at the discretion of the court, to be transported beyond the seas for the term of the natural life of such person, or for any term not less than fifteen years, or to be imprisoned for any term not exceeding three years."
By s. 2, hard labor and solitary confinement may be awarded in cases of imprisonment; see a similar provision, ante, p. 333.
Kidnapping, which is an aggravated species of false imprisonment, is the stealing and carrying away or secreting of any person, and is an offence at common law, punishable by fine and imprisonment. 1 East, P. [*530] C. 429. By the habeas corpus act, 31 Car. 2, *c. 2, s. 12, the sending prisoners out of England, is made punishable as a præmunire, and by the 11 & 12 Wm. 3, c. 7, masters of vessels forcing their men on shore or leaving them behind, were subjected to three months' imprison
This statute is repealed by the 9 Geo. 4, c. 31, which enacts, s. 30, "that if any master of a merchant vessel shall, during his being abroad, force any man on shore, or wilfully leave him behind in any of his Maj
esty's colonies or elsewhere, or shall refuse to bring home with him again all such of the men whom he carried out with him, as are in a condition to return when he shall be ready to proceed on his homeward-bound voyage, every such master shall be guilty of a misdemeanor, and being lawfully convicted thereof, shall be imprisoned for such term as the court shall award; and all such offences may be prosecuted by indictment or by information, at the suit of his Majesty's attorney-general, in the court of King's Bench, and may be alleged in the indictment or information to have been committed at Westminster in the county of Middlesex; and the said court is hereby authorized to issue one or more commissions, if necessary, for the examination of witnesses abroad; and the depositions taken under the same shall be received in evidence on the trial of every such information."
[ *532] *Definition, &c.] Larceny has been defined to be wrongful or fraudulent taking and carrying away, by one person, of the mere personal goods of another, from any place, with a felonious intent to convert them to his (the taker's) own use, and make them his own property, without the consent of the owner.". 2 East, P. C. 553; 2 Russell, 93 (1). See the definitions collected, 1st Rep. on Crim. Law, p. 9. Larceny was formerly divided into grand larceny, where the value of the property was above twelve pence, and petty larceny where the value was twelve pence or under, but now by the 7 and 8 Geo. 4, c. 29, s. 2, it is enacted," that the distinction between grand larceny and petty larceny shall be abolished, and every larceny, whatever be the value of the property stolen, shall be deemed to be of the same nature, and shall be subject to the same incidents in every respect, as grand larceny, before the commencement of the act; and every court whose power as to the trial of larceny was, before the commencement of the act, limited to petty larceny, shall have power to try every case of larceny, the punishment of which cannot exceed the punishment in the act after mentioned for simple larceny, and also to try all accessaries to such larceny."
By s. 3, of the above statute "every person convicted of simple larceny, or of any felony made punishable like simple larceny, shall (except in the cases hereinafter otherwise provided for) be liable, at the discretion of the court, to be transported beyond the seas for the term of seven years, or to be imprisoned for any term not exceeding two years, and if a male, to be once, twice, or thrice, publicly or privately whipped (if the court shall so think fit) in addition to such imprisonment."
By s. 4, hard labor and solitary confinement may be awarded in cases of imprisonment, but by the 7 Wm. 4 and 1 Vict. c. 90, s. 5, no offender shall be kept in solitary confinement for any longer period than one month at a time, or than three months in the space of one year; see ante, p. 348.
Proof of the lucri causa.] Larceny is defined by Eyre, B., to be "the wrongful taking of goods, with intent to spoil the owner of them, lucri [ *533 ] causa.” Pear's case, 2 East, P. C. 685. And in the *same manner Mr. Justice Blackstone says, that "the taking must be felonious, that is, done animo furandi, or as the civil law expresses it, lucri causa,” 4 Com. 232. The expression, lucri causa, must not, as it seems, be understood to convey any further meaning, than that expressed in Mr. East's definition, "a felonious intent, to convert the goods to the taker's own use, and make them his own property," vide supra. It is not necessary that the offender should contemplate any thing in the nature of a pecu
(1) 1 Wheeler's C. C. 166, 536. 3 Id. 511.