withstanding, a person who retreats from an assault to the wall, give the other wounds in his retreat, yet, if he give him no mortal one till he get thither, and then kill him, he is guilty of homicide se defendendo only.-1 Haw. 74. 4. But if the mortal wound was first given, then it is manslaughter.-Hale's Pl. 42. 5. And an officer who kills one who resists him in the execution of his office (a); and even a private person that kills one who feloniously assaults him in the highway, may justify the fact, without ever giving back at all.-1 Haw. 75. 6. But if a person upon malice prepense strike another, and then fly to the wall, and there in his own defence kills the other, this is murder.-Hale's Pl. 42. A person guilty of this offence cannot be bailed by justices of the peace.-1 Haw. 76. But otherwise, if taken only on a slight suspicion.-2 Haw. 105.

4. Manslaughter.

By manslaughter is to be understood-1. Such killing of a man as happens on a sudden quarrel, or in the commission of an unlawful act, without any deliberate intention of doing any mischief at all.-1 Haw. 76. 2. The difference between murder and manslaughter is, that murder is committed upon malice aforethought, and manslaughter without malice aforethought, upon a sudden occasion only: as, if two meet together, and striving for the wall the one kill the other, this is manslaughter and felony; and so it is if they had upon a sudden occasion gone into a field and fought, and the one had killed the other, this had been but manslaughter, and no murder; because all that followed was but a continuance of the first sudden occasion, and the blood was never cooled till the blow was given.-3 Inst. 55. There can be no accessories to this offence, before the fact, because it must be done without premeditation.-1 Haw. 76. But there may be accessories after the fact.-3 Inst. 55.

The punishment for this offence, formerly, was burning in the hand and forfeiture of goods and chattels, for which punishment, that of imprisonment for a year and the imposition of a fine was afterwards substituted by the 19 G. III., c. 74.

But now, by 4 & 5 V., c. 27, 7, it is punishable at the discretion of the court with imprisonment at hard labour in the provincial penitentiary for life, or for any term not less than seven years; or imprisonment in any other prison or place of confinement for any term not exceeding two years, or to pay such fine as the court shall award.

*By 3 W. IV., c. 3, the offence is bailable by two justices.

(a) See note at the foot of page 355.

5. Murder.

Murder, is when a man of sound memory and of the age of discretion unlawfully killeth another under the king's peace, with malice aforethought, either expressed by the party or implied by law, so as the party wounded or hurt die of the wound or hurt within a year and a day.-3 Inst. 47.

By malice expressed, is meant a deliberate intention of doing any bodily harm to another, whereunto by law a person is not authorised-1 H. H. 451, the evidences of which are-1. Lying in wait. 2. Menacings antecedent. 3. Former grudges. 4. Deliberate compassings and the like.-1 H. H. 45Ĭ.

Malice implied is in several cases, as where one voluntarily kills another without any provocation; for in this case the law presumes it to be malicious, and that he is a public enemy of mankind. 2. Poisoning also implies malice, because it is an act of deliberation. 3. Also, when an officer is killed in the execution of his duty, it is murder, and the law implies malice. -1 H. H. 455, 456, 457. 4. Also where a prisoner dieth by duress of the gaoler, the law implies malice, by reason of the cruelty.-3 Inst. 52. 5. And in general, any formed design of doing mischief may be called malice; and therefore not such killing only as proceeds from premeditated hatred or revenge, but also such as is accompanied with those circumstances that shew the heart to be perversely wicked, is adjudged to be of malice prepense, and consequently murder.-2 Haw. 80; Strange, 766. No breach of a man's word or promise, no trespass either to lands or goods, no affront by bare words or gestures, however false or malicious and aggravating, will excuse him from being guilty of murder, who is so far transported thereby, as immediately to attack the person who offends him in such a manner as manifestly endangers his life, without giving him time to put himself upon his guard, if he kills him in pursuance of such an assault, whether the person slain did at all fight in his defence or not.-1 Haw. 82.

If two fall out upon a sudden occasion, and agree to fight in such a field, and each of them go and fetch his weapon, and the one killeth the other-this is no malice prepense; for the fetching of the weapon and going out into the field is but a continuance of the sudden falling out, and the blood was never cooled; but if there were deliberation-as, where they meet the next day-nay, though it were the same day, if there were such a competent distance of time that in common presumption they had time to deliberate-then it is murder.-3 Inst. 51; 1 H. H. 453. And the law so far abhors all duelling in cold blood, that not only the principal who actually kills the other, but also his seconds, are guilty of murder, whether they fought

or not; and the seconds of the party slain are likewise guilty, as accessories.-1 Haw. 82.

If a physician or surgeon give a person medicine with intent to cure or prevent a disease, and contrary to his expectation it kill the person-this is no homicide.-1 H. H. 429. But if a woman be with child, and any one give her a potion to destroy the child within her, and it work, and so strongly that it kills the woman-this is murder.-1 H. H. 430. But if a woman, quick with child, by a potion or otherwise killeth it in her womb; or if a man beat her, whereby the child dieth in her body, and she is delivered of a dead child-this is not murder, but a great misprision. If the child be born alive, and then die of the potion, battery, or other cause-this is murder.-3 Inst. 50. Lord Hale says, that in this case it cannot be legally. known whether the child were killed or not; and that if the child die after it is born and baptised, of the stroke given to. the mother, yet it is not homicide.-1 H. H. 433. And Mr. Dalton says, whether it die within her body, or shortly after. her delivery, it maketh no difference.-Dalt. 330. But Mr. Hawkins says, that (in the latter case) it seems clearly to be murder, notwithstanding some opinions to the contrary.-1 Haw. 80. And if a person counsel or advise a woman to kill her child when it shall be born, and she afterwards kill it in pursuance of such advice, he is an accessory to the murder.1 Haw. 80. And by 3 W. IV. c. 4, § 12, accessories before the fact to any capital offence shall suffer death.

They that are present when any man is slain, and do not their best endeavour to apprehend the murderer or manslayer, shall be fined and imprisoned.-3 Inst. 53.

By 4 & 5 V. c. 27, § 4, sentence of death may be pronounced after conviction for murder in the same manner, and the court before which the conviction may be had shall have the same power, in all respects, as after convictions for other capital offences. § 6. And where any person being feloniously stricken, poisoned or otherwise hurt, upon the sea, or at any place out of this province, shall die thereof in this province, or being feloniously stricken, &c. in this province, shall die thereof out of this province, every such offence, whether murder or manslaughter, or being accessory before or after the fact, may be tried and punished in the district, county or place in this province in which such death, stroke, poisoning or hurt shall happen.

See also title "Execution."
6. Self-murder.

A felo-de-se, or felon of himself, is a person who, being of sound mind, and of the age of discretion, voluntarily killeth

himself.-3 Inst. 54; 1 H. H. 411. The offender herein incurs a forfeiture of goods and chattels, but not of lands; for no man can forfeit his land without an attainder by course of law.3 Inst. 54. He shall also be buried ignominiously in the highway, with a stake driven through his body.-4 Bl. 190.

County of to wit.

Commitment for Murder. (Archbold.)

in the said county, the said county:

J. P. Esquire, one of her Majesty's justices of the
peace for the said county, to the constable of
and to the keeper of the common gaol at

in

These are to command you, the said constable, in her Majesty's name, forthwith to convey and deliver into the custody of the said keeper of the said common gaol, the body of A. B., charged this day before me, the said justice, on the oath of C. D. of -, and others, for that he the said A. B., on the day of ―, in the year of our Lord at in the said county, feloniously, wilfully, and of his malice aforethought, did kill and murder one E. F. by stabbing him the said E. F. with a knife, in and upon the left side of the belly, and on other parts of the body of him the said E. F., thereby giving him divers mortal wounds, of which said mortal wounds the said E. F. instantly died: And you the said keeper are hereby required to receive the said A. B. into your custody in the same common gaol, and him there safely to keep, until he shall be thence delivered by due course of law. Given under my hand and seal, the day of

18

J. P.

Of a Woman, for the Murder of her Bastard Child. [Commencement as before] on the day of, in the year of our Lord, at the township of in the said county, feloniously, wilfully, and of her malice aforethought, did kill and murder a certain male bastard child, which she had then lately before brought forth, by choking and strangling the same; of which said choking and strangling he the said male bastard child instantly died: And you the keeper, &c. [as before.]

HORSES.

The stealing of a horse is felony at common law, and by the 4 & 5 V., c. 25, § 29, is punishable at the discretion of the court by imprisonment at hard labour in the provincial penitentiary for any term not exceeding fourteen years nor less than (a) seven years, or to be imprisoned in any other prison or place of confinement for any term not exceeding two years.

By 2 & 3 P. & M., c. 7, and 31 E., c. 12, the keeper of every fair and market shall yearly appoint a certain special and open place where horses shall be sold in any fair or market overt; § 2, and shall appoint one or more persons to take toll there, and to keep the same place from ten in the forenoon till sunset. § 3. And the sale or exchange, in any fair or market overt, of (a) Reduced to three years by the 6 V., c. 5, § 2.

any stolen horse shall not alter the property, unless the same shall be in the time of the said fair or market openly ridden, led, walked, driven, or kept standing, for one hour together at least, between ten of the clock and sunset, in the open place of the fair or market wherein horses are commonly used to be sold, and not within any house, backside, or other privy or secret place. § 4. Nor unless all the parties to the bargain shall come together, and bring the horse to the open place appointed for the toll-taker, or for the book-keeper, where no toll is due. 5. Nor unless such toll-taker, or (where no toll is paid) the book-keeper, or chief officer of the fair or market, shall take upon him perfect knowledge of the seller, and of his true christian name and surname and place of abode, and shall enter all the same down in a book to be kept for that purpose, or else that the seller shall bring to the toll-taker, or other officer aforesaid, one credible person that shall testify that he knoweth the seller, and his true name, surname, mystery and dwelling place, of him that so avoucheth his knowledge. § 6. Nor unless he also cause to be entered the true price. 7. And also the colour, and one special mark at least. § 8. And the buyer shall pay the toll, if any is due, if not, then Id. for the entry. § 9. Which done, the person entering the same shall give to the buyer, requiring, and paying 2d. for the same, a note in writing of all the contents of such entry, subscribed with his hand. § 10. Every person offending in any othe premises shall forfeit £5; half to the king and half to him that shall sue before the justices in sessions, or in any ordinary court of record; and the sale shall be void; and the owner may seize and take his horse again, or have an action.

And if any horse shall be stolen, and shall afterwards be sold in open market, and the sale shall be in conformity with the above provisions, yet, nevertheless, such sale, in six months after the felony done, shall not take away the owner's property, so as claim be made in six months, where the horse shall be found, before the mayor, if in a town corporate, or else before a justice near the place where found, and so that proof be made before such magistrate in forty days next ensuing, by two witnesses, that the property in such horse was in the party claiming, and was stolen from him within six months next before such claim; but the party from whom the same was stolen may at all times after, notwithstanding such sale, take again the said horse, on payment, or readiness to offer, to the party who hath possession, so much as he shall swear, before such magistrate, that he paid for the same.

Where a horse was stolen from the plaintiff and bought by the defendant at public auction, but not in market overt, and