Novemb. 8. 1677. I do allow the Printing and Publishing of this Book. Ri. Raynsford. PLEAS OF THE CROWN. Or a Brief, but Full ACCOUNT OF Whatsoever can be found Relating to that Subject. LONDON, Printed for Richard Tonson under Grays-Inn Gate next Grays-Inn Lane; and Jacob Tonson, at the Judge's Head in Chancery Lane near Fleetstreet. 1678. THE TABLE. A. APPEAL p. 146 The kinds of it. p. 148 How prosecuted. Ibid. Appeal per uxor. and requisites. p. 149 By the Heir. p. 150 Of Robbery. p. 152 Of Rape. p. 153 The Process. p. 154 The Count. ibid. Abatement of the Writ. p. 155 Pleas in Barr. p. 156 Approver What. p. 158 Who may be. ibid. In what Cases. p. 159 Of what Offences. p. 160 Appeal. 191, p. 192 Approver and Appeller. p. 161 Proceedings upon Trial. p. 162 After Trial. p. 163 Plaintiff in Appeal Nonsuit. p. 165 Time limited to perfect Appeal. p. 161 Process in Appeal and Indictment. p. 175 Where into County Palatine. p. 176 Arraignment. p. 134 Accessary who. p. 135 B. BURGLARY. What a Mansion-house in Case of Burglary. p. 70 Where without actual breaking. p. 68 Where opening an inner door. p. 70 With what intent. p. 71 The Indictment. ibid. Where triable. p. 72 Burning of a House Felony. p. 75 Burning ones own house with intent to burn another's, no Felony, but a great Misdemeanour. p. 74 Clergy not ousted except it be a part of a Mansion-house, or Barn with Corn. ibid. Burning a stack of Corn where Felony. ibid. Indictment. ibid. Bail. Difference between Bail and Mainprise. p. 83 In what cases Bail to be accepted. p. 84 After Judgement. p. 86 After Examination. ibid. Accessaries no Bail. p. 88 Bail virtute brevis & ex officio. p. 90 Breaking of Prison. p. 94 What Prison. p. 93 Breach of Peace. Affray. p. 113 What to be done thereupon, and by whom. p. 114 Bridges. p. 119 C. Offence wherein is no Corruption of Blood. p. 8 Counterfeiting Coin Treason. p. 18 Clipping. ibid. Conviction of Felo de se where Traversable. p. 25 Chance-Medley what. p. 26 Commitment of a Justice of Peace, how to be done. p. 81 Common Inns. What persons may Erect. p. 121 Refusing to entertain Indictable. ib. Champerty. p. 123 Coroner. His power. p. 141 Whether he may inquire of Rapes or breach of Prison. p. 142 Where the Body cannot be seen, who shall inquire. ibid. His power concerning Appeals. ibid. To take abjuration. ibid. Clergy, who shall have it, who not. 182, etc. Where Accessary and not Principal, p. 188 Concealment by Inquest. p. 171 Clergy in Robbery, where. p. 197 No Clergy in Rape. p. 200 When Clergy allowable. p. 201 Challenge. p. 219 D. DEodand. 27, p. 28 Demurrer. E. ESCAPES, Voluntary, Involuntary. p. 75 Prison, and breaking Prison, what. p. 76 Who may Arrest or Imprison. ibid. Per private Prison, who. p. 78 Per public Officer, without Process of Law. p. 79 Justice of Peace, where. p. 80 Escape per Officer. p. 97 Evidence to petty Jury. p. 222 The manner. p. 224 What Evidence maintains Indictment. p. 225 Execution and Reprieve. p. 237 F. PVnishment in Forgery. p. 8 Compassing to kill the King, or any of his Privy Council. p. 17 Felony the kinds thereof. p. 23 Felo de se. p. 24 Per Infortunium. p. 24 Per necessitatem. ibid. Who shall not be said Felo de se. p. 25 Conviction of Felo de se, traversable, ibid. Felony in servants the Stat. 21 H. 8. cap. 7. To whom it extends. ibid. Felonious taking quid. p. 57 Felonious carrying away quid. p. 52 What the Goods of another. p. 55 Forfeiture in petty Larceny. p. 58 Manslaughter. Murder. Felony. Treason. ibid. Felony per Stat. 100 to p. 105 Forcible Entry, p. 116 Forcible Detainer. ibid. Restitution, where, and by whom. p. 117 Forgery. p. 123 Falsifying Attainder. p. 234 Forfeiture saved. p. 236 G. GOal Delivery. Their Power. p. 130 H. Heresy what. p. 3 The way to convict of Heresy. p. 4 Homicide ex necessitate. p. 28 Per Infortunium. p. 26 Things observable in Homicide ex necessitate. p. 31 Homicide se defendendo. p. 33 Homicide voluntary. p. 35 The kinds of it. ibid. Highways. I. INdictment of Murder, where. p. 45 Indictment of Robbery, the form. p. 61 Engrossing, Forestall, Regrating. p. 123 Malt not Corn or Grain. p. 123 Justices of Peace. Their Power. p. 136 Where no Jurisdiction. p. 137 Where they must certify Indictment in B.R. ibid. Where they may inquire of a Felony within the Verge. p. 140 Indictments. 164 Requisites. ibid. Indictments in Leets and Turns. p. 167 Indictments quashed. p. 172 Proof upon Indictments. p. 175 Judgement in several cases. p. 231 K. KING what, and where. p. 11 Killing what. p. 45 Kings Bench Court. It's Jurisdiction. p. 128 L. LARCENY. p. 49 Simple and mixed. ibid. By whom it may be committed. p. 53 Larceny complicate. p. 64 M. MAnslaughter to kill a man who enters into my house claiming Title. p. 33 Manslaughter. 34, p. 46 Malice implied. p. 47 Or expressed. 36, p. 38 Murder. p. 37 Executing Martial Law in time of Peace, Murder. p. 38 Malice continuing. p. 40 Misprision of Treason. p. 107 Matters of Religion. Reviling Sacrament. p. 125 Not coming to Church. ibid. Common Prayer. ibid. Consecration of Bishops. p. 126 Dissuading from Church. ibid. Nonconformity. p. 127 Sending Children into Seminaries, Poenam. ibid. N. NVsances. p. 119 O. OYer and Terminer. p. 133 The Power. ibid. P. PRovocation, what not. p. 37 Who shall be said present and abetting a Murder. p. 42 Piracy. p. 65 How Triable. ibid. Perjury. p. 125 Principal and Accessary. 177 Accessary before. p. 178 In Manslaughter no Accessary. ibid. Accessaries after. p. 180 Things observable in their Arraignment. p. 181 Pain fort & dure. 184 Standing mute, two kinds. ibid. The Consequence. p. 185 Pleas. 186 Process upon Appeals and Indictments. p. 175 Where into County Palatine. p. 176 Pleas to Felony. 205 In Barr. p. 205 In Abatement. p. 204 Auterfoits acquit or attaint. p. 208 Pardons. p. 211 Pleading the Pardon. p. 213 Process vers. Jury. p. 216 R. RIOT. p. 115 Robbery. 95, p. 197 Robbery in Booths. p. 199 Robbery in Dwellinghouse to the value of 5 s. ibid. S. SHERIFF. p. 144 His Power and Office. ibid. T. PVnishment in Transportation of Sheep. p. 8 High Treason. 9 & p. 16 Who are capable of being Guilty of High Treason. p. 10 Eldest Son of the King within the Act of Treason, 25 Ed. 3. ibid. Overt act in Treason. p. 12 Adhering to the King's Enemies, what. p. 14 Foreign Treason how triable. p. 15 Treason done in Ireland. ibid. Treason upon the Sea. ibid. Interpretative Treason what. p. 17 Killing the Chancellor, etc. ibid. Counterfeiting Coin and Clipping. p. 18 Refusing Oath of Allegiance upon second tender. p. 20 Who shall be said Queen within the Act, 25 Ed. 3. p. 12 Who eldest Son. ibid. Petty Treason what. The Act against it not taken by Equity. p. 22 Misprision of Treason. 107 Positive and Negative. ibid. Treason out of the Land, where triable. p. 170 Trespass de muliere abducta cum bonis viri. p. 165 Trial quotuplex. p. 215 Tales. p. 217 Process vers. Jury. p. 216 Trial per medietat' linguae. p. 220 Per Battle. p. 230 V. VERDICT. p. 229 No privy Verdict in Cases Capital. ibid. W. WITCHCRAFT. p. 6 Two Degrees. 7 Punishment of the first. ibid. Of the second. p. 8 Marks for the Authors cited in this Book. C.P.C. Coke's Pleas of the Crown. S. T. C. Samford's Pleas of the Crown. Crom. Crompton's Justice. Dal. Dalton's Justice. Co. Lib. 4. Coke's Fourth Report. 9 R. Coke's Ninth Report, etc. PLEAS OF THE CROWN. THIS Treatise is divided under these Considerations; 1. Of the kinds of Offences. 2. Of the Incidents to those Offences. The kinds of the Offences are distinguished according to the diversity of Laws by which they are introduced, viz. Offences By the Common Law. By Statute Law. Offences by the Common Law distinguished according to the degrees of Offence, Capital, Not Capital. Of Capital Offences, they are such 1. As are immediately against God. 2. Immediately against Man. Those that are Offences not Capital by Common Law or Misprisions, may be in breach of Peace, etc. Offences by the Stat. Capital. Not Capital. The latter are many, and not here to be treated of. Now 1. concerning Offences Capital, that are immediately against Divine Majesty, which are Heresy, and Witchcraft. Concerning Heresy, wherein considerable, I. What is Heresy? 3 Inst. p. 39, 40, 41, etc. At this day all those former Acts which determined certain Points to be Heresy stand repealed; and though there be no express Act determining what shall be said Heresy, yet the Statute of 1 El. c. 1. directing the High Commission, restraining, 1. To what formerly determined Heresy, by the Canonical Scriptures. 2. To what adjudged so by the four first General Counsels. 3. To what expressly adjudged Heresy by any General Council by express words of Canonical Scriptures. 4. To what so determined. II. Who to judge of Heresy? 1. The Temporal Judge cannot punish any Person for Heresy by Indictment or otherwise; but yet he may take knowledge whether a Tenent be Heresy, or no? tAs where by the Statute of 2 Hen. 4. now repealed, Caesar was committed for saying, Although he was Excommunicated by the Archbishop, he was not so before God: and Warner committed for saying, Non Tenetur solvere decimas, and thereupon imprisoned. In a Habeas Corpus by the former, and special Justification in an Action brought by the latter, adjudged neither Heresy. 2. All those Statutes that gave power to Arrest or Imprison for Heresy, viz. 2 Hen. 4.15. 2 H. 5.17. 5 R. 2. c. 5. 1 & 2 Ph. & Mar. c. 6. are repealed by 1 Eliz. III. The way to Convict of Heresy. 1. By the Common Law. 1. By the Archbishops and Bishops in a General Synod. 2. By the Bishop of the Diocese. 2. By Stat. 23 H. 8. c. 9 By the Archbishop in case of assent or neglect of his Suffragan. The punishment of the party convict of Heresy. Upon Certificate of such Conviction, a Writ De Haeretico Comburendo granted, without which they cannot proceed to any temporal punishment. But if after Conviction he abjure his Opinion, his life is saved. But if he relapse after Abjuration, then irrecoverable: But by the Statute 2 H. 5. c. 7. all Statutes which introduced any Forfeiture stand repealed: Neither did the Common Law inflict any Forfeiture, because the proceedings were only pro salute animae, and now by the Statute of 29 C. 2. the Writ De Haeretico Comburendo is taken away. Witchcraft. WItchcraft at Common Law punished with death, as Heresy, by Writ De Haeretico Comburendo. The Statute of 1 Jac. 12. the only Law now in force against it, and divides it into two Degrees. I. Witchcraft in the first Degree made Felony without Clergy, divided into four Species. 1. Invocation or Conjuration of an Evil Spirit, 2. Consult, covenant with, entertain, employ, feed, or reward any Evil Spirit to any intent, although no act done thereupon. 3. Take up any dead Person, or any part thereof, to be employed or used in Witchcraft Charm, although not actually used or employed. 4. Exercise any Witchcraft, Enchantment, Charm, or Sorcery, whereby any Person shall be killed, destroyed, consumed, or lamed in his or her Body, or any part thereof (which requires the act to be done, viz. laming, consuming.) These and all Accessary before to suffer as Felons without Clergy, because not specially excepted. II. Witchcraft in the second Degree. 1. To take upon them by Witchcraft, Enchantment, Charm, or Sorcery to tell where Treasure is to be found: They that take upon them to do it, though they cannot, yet within this Law. 2. Or where Goods lost or stolen may be found. 3. Or to the intent to provoke any Person to unlawful Love; these Clauses come under the word [take upon]. 4. Whereby Goods or Chattels shall be destroyed (which requires an actual destroying, and not a bare taking upon them). 5. Or shall use Witchcraft to hurt any Person, though the same be not effected. The punishment of these, 1. The first Offence a years Imprisonment and Pillory. 2. The second Offence Felony: but this requires 1. An actual conviction and Judgement for the first. 2. The second Offence must be committed after Judgement for the first. The like in Forgery, Transportation of Sheep, etc. But the Consequence upon Attainder, viz. Corruption of Blood, and loss of Dower and the Lands Forfeiture, saved. 3 Inst. p. 47. And Note, a Saving against Corruption of Blood saves the Descent; and saving the Land to the Heir prevents corruption of Blood as to that. Concerning Offences against men immediately distinguished in the Judgement or Event, Capital, or not Capital. Capital, either by Common Law or Statute, and these either Treason or Felonies. Treason, either High Treason, or Petty Treason. High Treason. AND this is thought an Offence at Common Law; yet because there be some mixture of Introductions of new Treasons by Statutes, would be considered together. 1. Considering High Treason, it is distinguished into four kinds. 1. That which concerns immediately the King, his Wife, or Children. 2. That which concerns his Office in the Administration of Justice. 3. That which concerns his Seal. 4. That which concerns his Coyn. Before we come to these Particulars, some things to be generally premised. 1. That those that have such disability upon them that disables them to act reasonably, cannot commit Treason, viz. Non compos mentis, and Infants within Age of discretion; yet Quaere 3 H. 7. 3 Inst. p. 4, 6. And therefore if a Traitor becomes Non compos mentis before Conviction, he shall not be arraigned; if after Conviction, he shall not be executed. 3 Inst. p. 4, 5. An Alien Enemy, committing an hostile act, dealt with as an Enemy. An Alien Army committing any Treason are Traitors within the Law. 2. The Statute of 25 E. 3. reduced and settled all Treasons, and by that means all Treasons that were before are reduced, and the 1 Ma. reinforced the Statute 25 E. 3. and reduced all new Treasons to the old Standard of 25 E. 3. and so all Treasons declared between 25 E. 3. and 1 Ma. were abrogate. 3. All Treason includes Felony, therefore if the Indictment want proditoriè, a Pardon of all Felonies discharges it. Now concerning the kinds of High Treason. Compassing and imagining the death of the King, Queen, or Prince, and declaring the same by some open Deed. I. What is a Compassing the death? Declaring by an open act a design to Depose or Imprison the King, 3 Inst. p. 6, 12, 38. is an Overt act to manifest the compass of his Death. II. What a King? 1. A King before his Coronation, 3 Inst. p. 7. a King within this Statute when the Crown descends upon him. 2. A King de facto, Ibid. and not the jure, a King within this Act, and a Treason against him is punishable, though the right Heir get the Crown. 3. A Titular King, that is not Regnant; as the Husband of the Queen not a King within this Act, and the Stat. 1 & 2. Ph. & Ma. c. 10. but the Queen is. 4. The right Heir to the Crown, yet not in Possession, therefore is not a King within this Act. III. What the King's Wife? 3 Inst. p. 9 It extends not to the Queen Dowager. IU. What the eldest Son and Heir of the King within this Act? The second Son, after the death of the eldest, within the Act. The eldest Son of the Queen Regnant within the Statute. Ibid. The Collateral Heir apparent, as Roger Mortimer 11 R. 2. the Duke of York 39 H. 6. not Son and Heir within this Act, yet Quaere. V. What an Overt act requisite to make such comparing Treason? 3 Inst. p. 12. 1. An Overt act must be alleged in every such Indictment, & proved. 2. Compassing by bare words is not an Overt act, as appears by many temporary Statutes against it, 1 El. c. 6. 13 El. c. 1. but the same set down by him in writing is an Overt act; yet now it has been adjudged that words are an Overt act, and the Law taken accordingly. 3. Conspiring the death of the King, and providing weapons to effect it, or sending Letters to second it; assembling People to take the King into their power; Lord Cobham's writing Letters to a Foreign King to invade, an Overt act. Conspiring to levy War no Overt act unless levied, 3 Inst. p. 14. because relates to a distinct Treason. II. Treason levying War against the King. 1. 3 Car. 2. c. 1. Conspiring or compassing to levy War, without a War de facto, no Treason; but if a War levied, the Conspirators Traitors as well as the Actors: This appears by the Stat. 13 El. c. 1. that made such Conspiracy Treason during the Queen's life. 2. Raising a Force to burn or throw down a particular Enclosure only a Riot; but if it had been to have gone from Town to Town, and cast in all Enclosures, Bradshaw's case; 2 And. p. 4, 5. or to change Religion, or to enhance the Salaries of Labourers, a levying of War, because the Enemy public. 3. Joining with Rebels pro timore mortis, and recessed quam cito potuerunt ad Castles no Treason, 3 Inst. 10. 4. Holding a Force or Castle against the King's Force a levying of War. III. Treason adhering to the King's Enemies, giving them Aid within the Land and without. 1. What adhering? Giving Aid and Comfort to them; surrendering the King's Castle for reward? 2. What an Enemy? The Subject of the King becoming a Rebel, he that out of the Realm succours him, this not adhering to an Enemy within the Clause. 3 Inst. p. 11. An Enemy coming hostilely into England, shall be dealt with as an Enemy executed by Marshal Law, or ransomed; but a Subject assisting shall be dealt with as a Traitor. The Scots invading England in the Queen's time adjudged Enemies, though Scotland then in Amity. Lord Herris Case, 3 Inst. p. 11. 3. Within the Land or without, how that Foreign Treason shall be tried. 1. At Common Law for a Foreign Treason the Indictment and Trial must be where the Land lies. 2. Per Stat. 35 H. 8. c. 2. yet in Force it may be tried or inquired of in B. R. or by Commissiion in any County where the King appears; the King's Signiture may be either to the Commission or Warrant thereof. Treason done in Ireland is within that Statute, Perrot's Case. 1 And. p. 262. Per Stat. 28 H. 8. c. 15. Trot. Ab. p. 382. Treason upon the Sea inquirable and triable by Commission in any County; at Common Law it must be before the Lord Admiral. IV. Treason, Violation. 1. The King's Wife extends not to a Dowager, if she consent 'tis Treason in her. 2. The Prince's Wife, same Law as before. 3. The King's eldest Daughter than living. Thus far of Treason that relates to the King's Person and nearest Relations, wherein generally 1. There must be an Overt act to manifest the Evidence, and word of mouth is Overt act, as it has been adjudged, vide the Statute of 13 Car. 2. cap. 1. 2. That it must be made appear by manifest proof, and not by conjectures. 3. He must be lawfully attaint thereof, either by Confession or by his Peers in his life time. And therefore if a Person be slain in open War he forfeits nothing, neither can he be attaint in such case, but by Parliament. Thus far of Treasons relating to the King immediately; now follows that which is interpretative Treason; Killing the Chancellor, Treasurer, Justice of one Bench or other, Justice in Eyre, or of Assize, or Oyer and Terminer in their place, doing their Offices. 1. This extends but to the Persons here named, not to the Lord Steward, Constable, or Marshal, or Lords of Parliament. 2. It extends to those only during their Office. 3. It extends only to killing, not wounding without death. But by Stat. 3 H. 7. c. 14. compass to kill the King, or any of his Council made Felony. Counterfeiting the Great Seal or Privy Seal. 1. It must be an actual counterfeiting thereof, compassing to do it no Treason. 2. Affixing the Great Seal by Chancellor without Warrant no Treason. 3. Fixing a new Great Seal to to another Patent is a great Misprision, but no Treason; nor a Counterfeiting within this Statute. 4. Aiders and Consenters to such Counterfeiting are within this Act. 5. The Counterfeiting of the Privy Sign or Sign Manual no Treason within this Act, but made so by the Statute 1 Ma. c. 6. V. Treason concerning the Coyn. 1. Counterfeiting the King's Coin, this was Treason at Common Law, and Judgement only as of Petty Treason. But whereas Clipping, etc. is made Treason by subsequent Statutes, the Judgement is to be hanged, drawn, and quartered, because introductive of a new Law. Herein considerable, 1. What shall be a Counterfeiting, Clipping, Washing, and Filing of Money for lucre or gain, any of the proper money of the Realm, or of other Realms, allowed to be current by Proclamation, not within this Statute, but made High Treason by Stat. 18 El. c. 1. but without corruption of blood or loss of Dower. 2. What is Money? This extends only to proper Money of this Realm. But now, 1 Ma. c. 6. Forging or Counterfeiting Money made currant by Proclamation, is High Treason. 14 El. c. 3. Forging of Foreign Coin not current here; Misprision of Treason in the Forgers, their Aiders and Abettors. And Note, the bare forging of the King's Coin, without uttering, is Treason. The second Offence concerning Money declared Treason is, if any Person bring into this Realm counterfeit Mony. 1. It must be Counterfeit. 2. Counterfeited to the similitude of English Mony. 3. Brought from a Foreign Realm, and therefore not from Ireland barely. 4. Brought knowingly. 5. Brought, and not barely uttered here: But if false or clipped Money be found in his hands, by the Statute De Moneta if he be suspicious, he may be arrested till he have found his Warrant. 6. He must merchandise therewith, or make payment thereof. Concerning High Treason made by the subsequent Statutes in force. 5 El. c. 1. Refusing Oath of Supremacy upon second tender Treason, without corruption of Blood. Per 5 El. c. 1. Extolling power of Bishop of Rome Praemunire, by bringing in Bulls, or putting in execution, or reconciling to the See of Rome thereby, Treason. Bringing in Agnus Dei Praemunire, 23 El. c. 1. Absolving Subjects from Obedience, or reconciling them to Obedience of Rome, Treason in 27 El. 2. Priest coming into England, not submitting in two days, Treason. The like for English men in Foreign Seminaries. Petty Treason. IS confined by Stat. 25 E. 3. to three Particulars. 1. Where a Servant kills his Master. This extends to some other Cases: 1. Servant kills his Mistress. 2. Servant kills his Master's Wife. 3. Where a Servant upon Malice taken, during his Service, kills his Master after departure from his Service. 2. Wife killing her Husband. If Wife and a Stranger kill the Husband, petty Treason in the Wife, Murder in the Stranger. If the Wife or Servant procure a Stranger to kill her Husband or Master, the Procurer accessary only to Murder: But if she procure a Servant to do it, Treason in both. 3. Ecclesiastical, Secular or Regular, kills Superior. Note, Aiders, Abetters and Procurers to Petty Treason are within this Act. This Act not taken by Equity. C.P.C. f. 20. Son kills Father or Mother, 'tis Petty Treason, receiving Meat, Drink, or Wages. The Judgement in Petty Treason for a Man to be hanged and drawn. A Woman to be burnt. Crom. 18. Whatsoever will make a Man guilty or principal in Murder, will make him guilty or principal in Petty Treason. But if the Servant kill the Master upon a sudden falling out, this is not Petty Treason, but Manslaughter. If the Servant or Wife be of Confederacy to kill the Husband or Master, and be in the same House, though not in the same Room, they are principal, and guilty of Petty Treason, for 'tis a presence. Of Felonies. AND first of Felonies of death of a Man. Now for Felonies, they are either by Common Law or Statute Law. Felonies by Common Law of four kinds: 1. Such as are committed against the Life. 2. Such as are against the Goods of a Man. 3. Such as are against the Habitation of a Man. 4. Such as are against the Process of Public Justice. Felonies committed against Life of two Natures. 1. That which is committed against his own Life, Felo de se. 2. Committed against another Man's Life involuntarily. 1. Per infortunium, and therein of Deodands. 2. Per necessitatem, in Defence of Justice, in defence of self. 3. Voluntary, without Malice, with Malice. Felo de se. 1. The Person. 1. As in other Felonies, so in this, the Person that commits it must be of years of discretion, Compos mentis, otherwise there is no Forfeiture: Therefore if a Lunatic, during his Lunacy, a Man distract by force of Disease, or Non compos mentis, kill himself, no Felony. 2. As in other Felonies the death must ensue within a year and day after stroke. 2. The act may be voluntary, involuntary in some Cases. If A. assault B. and B. falling down with his knife drawn, A. in pursuit to kill B. by haste falls down upon the knife, A. is Felo de se, and forfeits Goods. But if B. was standing on his Defence with his knife drawn, Stam. P.C. 16. C.P.C. p. 54. A. runs upon the Weapon and kills himself, not Felo de se. 3. Conviction. 1. If the Body can be seen, than the Conviction before Coroner, super visum Corporis, not traversable. 2. If not seen, C.P.C. p. 55. then before Justice of Peace, and then traversable by the Executor or Administrator. In the same manner, if enquired in B. R. in same County, traversable. 4. Forfeiture relates to stroke. Villain strikes himself, Lord seizes his Goods, Villain dies, King shall have them. Of what? Joint things in Action, all forfeited, unless in case of Merchants; Joint things several Moieties forfeited: But Joint Chattels in Husband and Wife, all Forfeit for Offence of Husband. Chancemedley Felony of death of another, either involuntary, or voluntary. Involuntary per infortunium, ex necessitate. Involuntary per infortunium. Chancemedley, where a Man doing a lawful act, without intent of hurt to another, and death casually ensues. As shooting at Rovers, or at a Bird, or hewing a Tree and the Hatchet-head flies off, or a Schoolmaster in reasonable manner beating a Scholar, or a Father his Son, or a Master his Servant. Doing a lawful thing that may breed danger, and giving warning; just by command of the Prince. Crom. 28. C.P.C. 56. But if the act be unlawful, than death ensuing Manslaughter or Murder. Shooting at a Deer in another's Park, the Arrow glanceth and killeth a slander by, Manslaughter. Throwing stones or shooting in the Highway, and death ensuing, C.P.C. 56. Manslaughter. But if a man, C. P. C. 57 knowing people passing by in the street, throw a stone over the wall, Murder. Playing at Hand-sword without command of Prince, death ensuing, Manslaughter. So that an unlawful act, without an ill intent, makes it Manslaughter; with an ill intent, Murder. And where it is found involuntary per infortunium, causeth forfeiture of Goods; but a Pardon of Course upon Special matter found. Deodand. But there is a death per infortunium without the default or procurement of another; fall from a Tree, or by a Horse or Cart; and the thing that occasions the death is Forfeited and Deodand; wherein considerable, 1. What forfeited as a Deodand. C.P.C. 58. If a man fall from a Cart or Ship in Freshwater, 'tis a Deodand; otherwise in Salt-water. 2. If an Infant under fourteen be slain by fall from Cart, Horse, or Mill, no Deodand; but if slain by a Horse, Ox, or Mill, than a Deodand. Dalt. Inst. c. 97. If a man kill another with any Sword, a Deodand. 2. When forfeited, When found by Inquisition, therefore the Jury ought to find the price; this is before the Coroner. Homicide ex necessitate. This of several sorts: 1. In reference to Justice. 2. In defence of his Person, House, Goods, etc. Homicide ex necessitate in reference to Justice, of several kinds: 1. In execution of Justice. 2. In advancement of Justice. Homicide in Execution of Justice requires certain prescripts. 1. That the Judgement given be by one that hath Jurisdiction in the Cause. If a Justice of Peace give Judgement in Treason, the Execution thereof Murder in Judge and Officer. But if he give Judgement of Felony in Treason, Felony in the Judge, but not in him that executes it. 2. That it be done by a lawful Officer. Therefore if a Stranger of his own head, or the Judge that gives the Sentence, Executes, when it is to be done by Sheriff, Felony. 3. That it be done pursuant to Judgement. Judgement to be hanged, Sheriff beheads him, Felony. Homicide in advancement of Justice in Causes Criminal, Civil. 1. In Causes Criminal. If a Sheriff or Bailiff, having warrant to arrest a Person indicted of Felony, and he will not obey, and suffer himself to be arrested, the Bailiff kills him, no Felony. The same if any Person pursues upon Hue and Cry, or otherwise to arrest a Felon that flies. If a Felon arrested break away from his Conductors to Goal, they may kill if they cannot otherwise take him. But in this latter Case there must be a Felony done. If a Prisoner assault his Gaoler, and he kill his Prisoner, no Felony. Rioters or forcible Enterers or Deteinors, standing in opposition to the Justice's lawful warrant, and one of them slain, no Felony. Keeper or Parker may kill hunter, if they fly or defend themselves. 2. In Civil Causes. Though Sheriff cannot kill a man who flies from the execution of a Civil Process, yet if he resist the arrest, the Sheriff or his Officers need not give back, but may kill the Assailant; so if in the arrest and striving together, Officer kill him, no Felony. Now touching all the former Homicides these things observable. 1. There must be no malice coloured under pretence of necessity; for if it be, it altars the Case, and makes it Murder. 2. The Party that did the Fact must be arraigned, and upon Not Guilty pleaded the Special Matter must be found. 3. Upon this Special Matter thus found, the Party is to be dismissed without any forfeiture or pardon purchased. Thus of Homicide ex necessitate in reference to Public Justice: Others there are that are grounded upon Private Interest, and they are of two kinds. 1. Justifiable, and consequently inducing no forfeiture at all, nor needing pardon. 2. Excusable, and yet inducing forfeiture. 1. Justifiable and inducing no forfeiture, where a Person comes to commit a known Felony. 1. If a man come to burn my House, and I shoot out of my House and kill him, no Felony. 2. If a Woman kill him that assaulteth her to ravish her, no Felony. 3. If Thiefs assault me in the Highway, or in my House to rob me, ay, or any of my Servants kill them, no Felony or Forfeiture. But if the assault in my House were not to rob, but to beat me, etc. there 'twould be only se defendendo, and Goods forfeited, and a Pardon of course to be granted, because they came not to commit a known Felony; for it cannot be judged whether he meant to kill me. If one come to enter into my house, claiming Title, Dal. c. 98. and I kill him, Manslaughter. Homicide excusable se defendendo, where though it save the Life, yet the Goods are forfeited; this requires these things. 1. It must be inevitable necessity, yet in case of justifiable Homicide, as of a Thief that comes to rob me, or by an Officer resisted in the Execution of an Arrest, C.P.C. f. 56. the Party need not give back to the Wall. But in this Homicide se defendendo, C.P.C. 57 the Party that is assaulted not excusable, unless he give back to the Wall. But if the assault be so furious, Dalt. c. 48. C.P.C. 56. and in such a place that giving back would endanger his life, he need not give back. A man fights, and then falls to the ground, then flying not necessary. 2. It must be done in his own defence. C.P.C. 56. If A. be assaulted by B. before a mortal wound given A. gives back until he come to the wall, and then in his defence kills B. this is se defendendo. But if mortal wound first given, than Manslaughter. Dal. c. 98. Crom. 26. If A. upon malice praepense strike B. and then fly to the wall, there in his own defence kills B. this is Murder. But if there be malice between A. and B. A. strikes first, B. retreats to the wall, and in his own defence kills A. this is se defendendo. If malice be betwixt A. and B. A. assaults B. B. retreats to the wall, and then kills A. in his own defence; if it be in the Highway he shall be discharged, if not, se defendendo. Copston's Case. Thus far of Homicides involuntary. Homicide voluntary is either ex malitia praecogitata, or sine malitia, the former Murder, the latter Manslaughter. 1. Who shall be said a person killing? A man that is Non compos mentis kills another, this is no Felony; the same for a Lunatic during his Lunacy. But he that incites a madman to kill another is a principal Murderer. A man dumb kills another, Felony. An Infant within years of discretion kills another, no Felony; as if he be nine or ten years old. But if by circumstance it appeareth he could distinguish between Good and Evil, it is Felony: Crom. 27. as if he hide the body, make excuses, etc. But in such Case Execution in prudence respited to get a Pardon. 2. What said Malice? It is either implied or expressed. C.P.C. 52. Implied malice is collected either from the manner of doing, or from the person slain, or from the person killing. 1. Malice implied in the manner of doing. Poisoning wilfully any man, implied malice. If a man do an act that must apparently introduce harm, and death ensue; as to run among a multitude with a Horse used to strike. But note, If it were with an intention to do harm, than Murder; if without such intention, Manslaughter. The like of throwing a stone over a house among many people, the intention of doing harm makes it Murder; want of such intention, Manslaughter, because an unlawful act. For an intention of evil, though not against a particular person, makes malice. Killing any person without provocation, Murder. A. comes to B. who resists and strikes A. kills him, Murder. A. Distorts his mouth, 42 El. Brames Case. and laughs at B. who thereupon kills him, Murder. 2. Malice implied in respect of the person killed. If a Watchman or Constable, or any that comes on his assistance, doing their Office, be killed, it is Murder, 4 R. Hamdens' Case. though Killer knew him not to be such. If any Magistrate or Minister of Justice, having a lawful Warrant, be killed, 'tis Murder: As where a Sergeant comes to Arrest, 1. Though in the Night. 2. Though on Sunday. 3. Though upon Arrest he show not out of what Court, or whose Suit. 4. Though Process Erroneous. 5. Though he show not his Warrant or Mace where 'tis not demanded. 9 R. Mackleys Case. But if Officer do what is not warrantable, as break open a window to arrest, there if slain, Manslaughter. Malefactors come into a Park, Parker shoots, they fly, he pursues, they kill him, Murder in all; for their first entry was with malicious intent. 3. Malice implied in respect of person killing. A. assaults B. to rob B. who resists, A. kills him, Murder. Prisoner by Duress of Goaler comes to an untimely end, Murder. Executing Martial Law in time of Peace, Murder. Malice express considerable, 1. In the principal in the first degree that doth the act. 2. In the principal in the second degree, that is aiding, abetting, etc. 3. In Accessaries before Fact. 1. Principal in first degree. If a person have no particular malice against any particular person, but comes with general resolution against all Opposers, Crom. 20. if act unlawful, and death ensue, it is Murder: As if it be to commit Riot, enter into a Park. 2. If there be malice between A. and B. and they meet and fight, although A. gives first blow, yet if B. kill him, Murder. If there be malice between A. and B. A. assaults B. and flies to wall, there in his own defence kills B. by some Murder, but Quaere. If there be a quarrel between A. B. A. challenges B. who declines it, but at length upon importunity, and to vindicate his Reputation, meets and fights, and kills A. Murder. 14 Jac. Taverner's Case. If A. and B. fall out upon a sudden, and they agree presently to fight, and each fetches a Weapon & go into field, and one kills the other, this only Manslaughter, because the blood never cooled: but otherwise if they had appointed to fight next day. A. and B. fall out, A. saith he will not strike, but will give B. a pot of Ale to touch him, B. strikes, A. kills him, Murder. If A. and B. are in malice, A. challenges the field, B. refuses to meet, but saith he shall go to morrow to such a Town, A. meets him and assaults him, B. kills him, Manslaughter, and no Murder. The Child of A. beats the Child of B. who runs home to his Father, and he runs three quarters of a mile, beats the other Child, and he dies, Manslaughter. 3. If malice be not continuing to death, no Murder. A. and B. combat upon malice, and are parted, and after they meet and combat upon the sudden, and one kills the other, by some not Murder, because the first Malice satisfied. If the party killed had wounded at first combat the party slaying, Quaere. A. and B. are at malice, and reconciled, and after upon a new occasion fall out and kill, no Murder. 4. Tho malice did not rise so high as death, but intended only to beat the party, yet if malice, it is Murder if death ensue. A Keeper of Esterly Park finds a Boy stealing wood, and binds him to his Horse tail; Horse runs away and kills Child, Murder, for it was a deliberate act. Cr. Car. 131. Holloway's Case. 5. The malice intended to one, egreditur persona, and makes death of another, this act makes it Murder, and qualifies it in same manner, as if it had had its due effects. A. having malice at B. strikes at him, and misses him, Dy. 128. and kills C. this is murder in A. and if it had been without malice, Manslaughter. A. having malice at B. assaults him, and kills his Servant, Murder. A. lays poison to kill B. and C. by misadventure takes it and dies, Murder in A. contrary if it had been laid to kill Rats, then per infortunium. A. and B. combat upon malice, C. comes to part them, A. kills C. per ascuns, Murder in both; and if the falling out were sudden, then only Manslaughter in him that kills him Quaere. 6. Malice must be of Corporal danger to the party. 2. Principal in second degree, that are aiding and abetting. 1. If two or more come together to kill, rob, or beat a man, or to commit a Riot, and one of them kills a man, this is murder in all them of that party that are present aiding or abetting him thereunto, St. P.C. c. 40. or that were ready to aid him, though but lookers on; otherwise if they came there by chance. 2. All are said to be present that are in the same House, though in another Room, or in the same Park, though half a mile distant, and out of view; therefore if they come to commit a Felony, such persons aiding and abetting shall be said to be present. 3. A. and B. fall out, and appoint field, A. takes C. his Second, B. takes D. his Second, A. kills B. this is doubtless Murder in C. Crom. 19 Dal. c. 93. and it hath been held Murder in D. also, for it is a compact; but it seems otherwise. 4. If A. and B. having malice praepense meet and fight, and C. the Servant of A. not acquainted therewith, takes part with A. his Master, and kills B. Del. c. 93. Dy. 128. Crom. 100 this is Murder in A. and only Manslaughter in C. the same Law if C. came in suddenly and took part with A. and kill B. 3. What malice in Accessary before Fact. A. commands B. to kill C. with a Gun, he kills him with a Sword, A. is accessary to this Murder, because killing is the substance. But if he command B. to kill C. and he by mistake kill D. this is Murder in B. but A. is not accessary thereunto. A. commands B. to beat C. who beats him, whereof he dies, this is Murder in B. and A. is accessary, because death ensued upon the act commanded. 4. What is killing? Poison, Weapon, Gun, Bow, Crushing, Bruising, Smothering, Strangling, Famishing, inciting Dogs, laying a Sick man in the cold. Laying an Infant in an Orchard under Leaves, and he is stricken with a Kite. St. Dal. c. 93. A man keeps a Beast used to strike knowingly, and ties it not up, the Beast kills a man, Felony by some, by others not, but a gross misdemeanour. 3 E. 3. Cor. 311. 5. What person killed? It must be a person in rerum natura. Dal. c. 93. If a Woman quick with Child take a potion to kill it, and accordingly it is destroyed without being born alive, a great misprision, but no Felony; but if born alive, and after dies of that potion, it is Murder. Ibid. The like if dies of a stroke given by another in like manner, counsel before birth to destroy it, and after the Child is born destroyed accordingly, the counsellor is accessary. 6. What a place within the Realm? Stroke and death in partibus transmarinis not punishable at Common Law, but before Constable and Marshal. Stroke and death upon Sea inquirable before Admiral, according to Stat. 28 H. 8. c. 13. But stroke upon the Sea, and death upon the Body of the County, not punishable at all. If stroke in one County, and death in another, the party shall be indicted where death happened. An accessary in County of A. to a Felony committed in County of B. the accessary after Certificate of the Conviction and Attainder of the principal, may be arraigned in the said County of A. where he was accessary. 7. The party must die within year and day of stroke, poison, etc. Manslaughter. KILLING another upon a sudden falling out, or provocation, or unjustifiable act, Manslaughter. 1. What a sudden falling out? Two combat and part, and presently come together and fight, C.P.C. 18. or one presently fetcheth a Weapon and killeth the other, or they presently fetch them weapons, and go into the field, and one kills the other, Manslaughter. Divers Rioters enter into another's house forcibly, and eject the people; afterwards they being in possession, the party ejected, with twenty more, comes in the night to the house, endeavours to fire it, one within shoots and kills one of the assailants, and ruled to be Manslaughter, because their entry and holding with force illegal, and not Murder, because sudden provocation. So A. claims title to a house of B. A. attempts to enter and shoots at the house, B. shoots and kills A. adjudged Manslaughter. Two fall out and fight, Dal. c. 94. one breaks his Sword, a stranger standing by sends him another, and he kills therewith, Manslaughter in both. 2. What a sudden provocation? Two strives for the wall, and one kills the other, Manslaughter. 3. What unlawful act, whereupon death ensuing will make Manslaughter? If the unlawful act be deliberate, and tend to the personal hurt of any immediately, or by way of necessary consequence, death ensuing, Murder. But if either such deliberation or intent of personal hurt be wanting, Manslaughter. Two play at Foils, and one kills the other, Manslaughter. Sir John Chicester's Case. A man throws a stone at another, which glanceth and killeth another, Manslaughter and not Murder, because no malicious intention to hurt; not per infortunium, because doing an unlawful act. There is a particular Manslaughter wherein Clergy is oust, per Stat. 1 Jac. 8. wherein, 1. He that is ousted of Clergy by that Statute, must be especially Indicted pursuant to that Statute. 2. It extends to him that actually gave stroke, not to those that are present. 3. Need not Conclude contra formam Statuti. 4. Although the Indictment be special upon that Statute, yet the Jury may find general Manslaughter. 23 Car. B. R. Page's Case. Larceny. WE come to Offences Capital, which refer to the Goods of any Person, viz. Larceny, which is of two kinds; Simple Larceny, Mixed and complexed Larceny. Simple Larceny of two kinds: Grand Larceny, of value of 12 pence. Petit Larceny, under that value. Simple Larceny; a felonious and fraudulent taking away by any person of the mere personal goods of another, not from the person, nor out of his house, to the value of 12 pence. I. What shall be said a Felonious taking, Imports two things: 1. A taking necessarily, the Indictment must be Cepit; if it be Felony, abduxit Equum not sufficient. If a person finds goods lost, and converts them, C.P.C. 108. though it was animo furandi, yet no Felony. If a man hath a bare charge of goods, Felony may be by him committed: As a Butler that hath a Charge of Plate, Shepherd of sheep; the like of him that hath a bare special use, as the guest that hath Plate set before him. But he that hath a possession by delivery cannot thereof commit Felony. A Carrier hath goods delivered to him, and carries them away, no Felony. A Clothier delivers Yarn to a Weaver to wove, he carries or imbezels it, no Felony. But this hath two Exceptions. 1. If the privity be determined, than it may be Felony. A. delivers a Pack or Tun of Wine to a Carrier, he opens it, and takes out Goods or Wine, animo furandi, Felony. So if A. delivers goods to B. to carry to a certain place appointed, and after takes it animo furandi, Felony. 2. By Stat. 21 H. 8. c. 7. whereby if a Servant goes away with goods of his Masters delivered to him above value of 40 shillings, herein 1. Extends not to Apprentice or Servant within eighteen years. 2. Requires a Delivery. If one Servant deliver goods to the other, this is a delivery by Master. If the Master deliver an Obligation, or deliver cattle to sell, and Servant receives money and departs with it, no Felony; like if he had gone away with Obligation. 3. He must go away with it. Wastefully consuming thereof, no Felony. 4. Now by Stat. 1 E. 6. c. 12. he may have his Clergy. 5. He must be a Servant at time of delivery, and going away; therefore for imbezelling after Master's death, Stat. 3● H. 6. c. 1. is provided. 6. If a Servant receive his Master's Rents, and go away with them, not within the Statute. C.P.C. 47. If a man, seeing a Horse in the Pasture of the Owner, having a mind to steal him, obtains a Replevin, and thereby hath the Horse delivered, this a Felonious taking. If A. feloniously take my Horse, and B. feloniously takes him from him, Crom. 34. B. may be appealed or indicted as of a felonious taking from me. Stat. 33 H. 8. c. 1. II. What a carrying away? C.P.C. c. 47. A Guest takes sheets out of the bed, brings them into Hall with an intent to carry them away, but is apprehended before this, a taking away. A. takes horse of B. with an intent to steal him, but is apprehended before he can get out of Pasture, this a taking away. A. kills sheep, strips them, Crom. 33. carries away their skins, Felony; so if he pull of the wool. III. By whom, and who such a person as may commit Larceny? An Infant under fourteen years may commit Larceny, Dal. 104. but prudence to respite Judgement; yet under fourteen burnt in the hand. Precedents. A Feme covert may by her own act commit Larceny, and in such case the husband may be Accessary to the wife (but not è converso) in receiving her. But she cannot feloniously take her husband's goods; and though she take and deliver them to a stranger, yet no felony in the stranger. If husband and wife do both a felony, this is a felony in both, Dal. 104. and both shall be arraigned for it, though some Opinions to the contrary, which Opinions are now Law. If wife commits murder by coercion of her husband, murder in both; but if theft, no Felony in her; but a bare Command excuseth her not. But if a servant commit theft by coercion of his master, it is no Felony. IU. What mere personal Goods? 1. If they are in the realty, or annexed thereunto, no Larceny: As Corn or Grass growing, Apples on Trees, stealing a Chest of Charters, no Felony, though Chest above value. Taking Led off a Church no Felony; otherwise if he leave it a while and then come and take it. Taking an Infant Ward no Felony. 2. If they are of a base Nature, as Mastiffs, Dogs, Bears, Foxes, Monkeys, Ferrets, or their Whelps, no Felony of them; but of Hawks reclaimed Felony may be. V. What said the Goods of another? 1. He that hath a special property, as Bailiff, etc. they are his goods pro tempore. 2. He that takes the goods of a Chapel in time of vacation, Dal. 103. indictable pro bonis Capellae, so bona Parochianorum, bona mortuorum, bona ignoti, etc. So to take the shroud off a person buried, C.P.C. c. 47. and it shall be bona executorum. But taking of Treasure trove, Wrecks, Waifs and Strays before seizure, no Felony. Taking an Obligation Felony, because in action. Taking fish in a River no Felony, but in a Net, Trunk, or Pond, Felony, because not at their natural liberty: So of old Pigeons out of the house. Where a man hath property only ratione loci, or privilegii, in things ferae naturae, Coneys, Dear in my Ground, or Park, or Warren, no Felony. But if reduced to tameness, and fit for food, as Deer, Coneys, Cranes, Partridge, Pheasants, he that stealeth them, knowing them tame, committeth Felony. So of Swans marked or pinioned or Swans unmarked if tame, kept in a Mote, Pond, or private River. Where a man hath a property ratione impotentiae in things wild by nature, as young Hawks in the nest, young Pigeons in the nest, Felony thereof. Taking of Eggs of Hawks or Swans out of the ground of another, no Felony, but punishable by Statute. But taking any thing domitae naturae, as Ducks, Hens, Geese, Turkeys, Peacocks, or their Eggs; or Domestic beasts, as Horses, Mares, Colts, etc. or their young, Felony. VI When this shall be said a felonious taking. If A. Crom. 34. steal goods in the County of B. and carry them into the County of C. he may be appealed or indicted in the County of C. for Larceny, but can be indicted for Robbery only in the County of B. VII. Of value of twelve pence or above. Nota, West. 1. c. 15. That in a Grand Larceny it must be above value of twelve pence, if under it Petty Larceny. If two steal goods to the value of thirteen pence, grand Larceny in both. If one person at several times, or at one time steal four pence, Dal. c. 101. Crom. 30. St. P.C. 24. at another six pence, at another three pence, in all amounting to above twelve pence, from the same person, all these put together in one Indictment, amount to grand Larceny. If a man be indicted for stealing goods to the value of ten pence, and the Jurors find specially, as they may, the value but ten pence, 'tis but petty Larceny. And note petty Larceny is Felony, though not of death, and for this he shall forfeit Goods, or be subject to some Corporal punishment. Robbery. COmplicate or mixed Larceny which hath another degree of guilt in it. 1. For that it is a taking from the person. 2. For that it is a taking out of the house. 1. Taking from the person. 1. Where the person is put in fear, and then 'tis Robbery. 2. When not put in fear, and then 'tis Larceny from the person. Robbery is a felonious and violent taking away from the person of another goods or money to any value, putting him in fear. 1. Violent and putting him in fear; the words of the Indictment run, violenter & felonice, and that distinguishes him from a Cutpurse. 2. Taking away. 1. An assault to rob without taking away any thing, no Felony. If a thief, with or without weapon drawn, bid the party deliver his Purse, and he doth it, this is a taking to make it Robbery. If a thief command to deliver his purse, and he deliver, and then the thief finding little in it, deliver it back, this is Robbery. If a thief compel the true man by fear to swear to fetch him a sum of money, which he doth accordingly, and thief receives it, Robbery. If true man's purse be fastened to his girdle, thief cuts girdle, purse falls to the ground, no Robbery; but if thief take up purse, though he let it fall again, Robbery, though he never take it up more. All that come in company to rob Principals, though one actually do it. A. B. and C. assault D. to rob him in the Highway, but rob him not, for he escaped A. rides from the rest in the same Highway, and robs E. Crom. 34. out of view of the rest, and for this B. and C. arreigned and hanged, Pudseys' Case. though assented not, because they all came to the end to rob. 3. Taking from the person. If the true man, seeking to escape, cast his Purse into a Bush, or let fall his Hat, if the thief take it, it is Robbery. Taking a thing in the presence, is in law taking it from the person. If one take or drive my cattle out of my Pasture in my presence, Dal. c. 101. this is Robbery, if he make an assault upon me, or put me in fear. But if he take away any thing from my person without putting me in fear by assault or violence, no Robbery, and the Indictment runs that he took it from the person violently and feloniously, Dal. ibid. putting him in fear. 4. Of what value soever under twelve pence. Now though Robbery and simple Larceny are both Felony, yet they differ in these Respects. Principal and Accessary before are ousted of Clergy, but not in simple Larceny. Stat. 23 H. 8. c. 1.1 E. 6.12. 25 H. 8.3.4 & 5 Phil. & Ma. c. 4. Nota, speaks of Robbery in or near the Highway. 2. The form of the Indictment. An Indictment of Robbery supposeth an assault, beating and wounding, and taking from the person felonice, or at least assault and putting him in fear felonice & violenter cepit à persona. Other Indictments, though of a taking from the person, yet not violenter. 3. In case of other thefts, though from person, not felony of death, unless exceed twelve pence: But here 'tis Felony of death if never so small. Nota, Taking a man's goods out of his shop before his face is Robbery, as if he had taken it from the person; and it is nothing to the purpose though the thief say, I have right to this, or this is mine, if he have no colour. Larceny from the person, from the House. Larceny from the person without putting in fear, which may be either by picking the pocket, or cutting the Purse, which is supposed to be done clam & secret à persona. In this Case 8 El. c. 4. if the Indictment pursue the Statute, which is secretly without the knowledge of the party, clam & secret, he is ousted of his Clergy. But if it be under value of twelve pence, C.P.C. c. 16. than it remains petty Larceny, as before; for the Statute did not alter the Offence, though it took a Privilege. Larceny from the person which is neither clam & secret à persona, nor with putting in terror, nor so laid in the Indictment, nor so found by the Jury. Dyer. 224.17 Jac. Harman's Case. Larceny receives another aggravation when it is taken from the person of a man. Per Stat. 23 H. 8. c. 1. Robbing any person in the dwelling house of the owner, his wife, children, and servants being within, and put in fear, oust of Clergy in case of Conviction and Accessary before. Felonious taking of goods to the value of five shillings in the day time, out of any dwelling house or outhouse, though no person within, oust of Clergy per Stat. 39 El. c. 15. These have a mark upon them as Larceny complicate, and therefore oust of Clergy. Piracy. TO this we add Piracy and Depredation on Sea. This at Common Law conceived petty Treason, C.P.C. c. 49. if done by a Subject: but this altered by Stat. 25 Ed. 3. since that Statute an offence triable by Civil Law till 28 H. 8.15. The Stat. 28 H. 8. altars not the offence, but it removes only an offence by Civil Law (and therefore a pardon of all Felonies did not discharge it) and gives a trial per course of Common Law. 1. It extends not to Accessary: but if Accessary were at Sea, triable per Civil Law; if at Land, by no Law: for Stat. 2, 3 E. 6. extends not to it. It extends not to Offences in Creeks or Ports within the Body of a County, because punishable by Common Law. 3. Though it give forfeiture of Life, Lands, and Goods, yet no Corruption of Blood. 4. Pain fort & dure in cases of standing mute. Note, Clergy est oust per cest Stat. en Felonies, and so in Manslaughters. Quaere super Lord Co. si ascun offence super altum mare soit felony. 3 Ins. 111. Burglary. WE come to offences against the dwelling or habitation; those of two kinds: 1. Burglary. 2. Arson, or burning of Houses. Burglary by the Common Law is, when a person in the night time breaketh or entereth into the Mansion House of another, to the intent to commit some Felony within the same, whether the felonious intent be executed or not. I. What shall be said in the Night? By some after Sun set and before Sun rising it is night. Dal. c. 99 But it seems so long as the Countenance of a man may be discovered it is day. C.P.C. c. 14. Coron. 293. II. What Breaking or Entering? The entering into a house with the doors open is a breaking in Law, but here not sufficient without an actual breaking: Therefore if door be open, or window open; and the Thief draw out the Goods thereby, no Burglary. But if the Thief break the window, draw the latch, unlock the door, break a hole in the wall, these are breaking. And as there must be a breaking, so there must be an entering. Setting the foot over the threshold, putting the hand, or hook, or pistol within the window, door. Turning the key where the door is locked on the inside, an Entry. In some cases Burglary without actual breaking. Divers come to commit Burglary, one does it, the rest watch at the Lanes end, Burglary in all. A Thief goes down a Chimney to rob, Burglary. Dal. c. 99 Thiefs having an intent to rob, Ibid. raise Hue and Cry, and bring Constable, to whom the owner opens door, and when they come in, they bind Constable and rob the owner, Burglary. The Thief assaults the house, the owner for fear throws out his money, it seems not Burglary, but Robbery. A Thief gets into the house on day time by doors open, Ibid. lies there till night, then robs and goes away, no Burglary. But if he break open the door to go out, Burglary: The Servant opens the window to let in a Thief, who comes in and steals, Burglary in the Stranger, but Robbery in the Servant. If A. enter into the Hall by door open, the owner retires into a Chamber, and there A. breaks in, this a Breaking and Entering. If Thiefs enter 〈…〉 through a hole 〈…〉 no Burglary. A. lies in one part of the House, B. his servant in another, between them a Stair-foot-door latched, Trin. 16 Jac. edmond's C. the servant in the night draws the latch, and enters his Master's Chamber to murder him, Burglary. III. What a Mansion House within the Law? The Church a Mansion house within the Law. The Outbuildings, as Barn, Stable, are part of the Mansion house, and Burglary may be committed in them. Burglary may be committed in a man's Mansion house, though all persons be out upon occasion. So if a man hath two houses, sometimes lives in one, sometimes in another. A shop parcel of a Mansion house. A Chamber in an Inns of Court, where a person usually lodges, a Mansion house. But a Booth is not, therefore remedy specially provided per Stat. 5 E. 6. c. 9 But an Indictment quod fregit clausum ad ipsum interficiendum, no Felony, for no Mansion house. A. leases to B. a shop, parcel of his Mansion house, to work in, where B. works in the day, which is broken, ruled not Burglary, because severed per Lease. IV. With an intent to commit some Felony. If the house be broken and entered with an intent to commit a Trespass, as to beat the owner, no Felony. If with an intent to commit a Rape, by some no Burglary, because no Felony at Common Law; but this seems otherwise, though the Felony be not done. The Indictment runs, Burglariter & felonice domum etc. fregerunt vel intraverunt ad ipsum etc. interficiendum, & per Stat. 18 El. c. 7. Clergy taken away in all Burglaries. Memorandum, If a Burglary be committed in Middlesex, and the Felon carries the Goods into Dorsetshire, if Goods be of value of twelve pence it is Felony, and the benefit of Clergy taken away by 25 H. 8. so that they may try him where he is taken, and they usually write upon the Margin of the Indictment, that it is for Burglary in another County. Arson. BUrning is a Felony at Common Law by any that shall maliciously burn the house of another. Burning, Setting fire to a house, without burning it, or any part of it, no Felony; but if part of the house be burnt thereby, 'tis Felony by Common Law. Maliciously. A. intending to burn the house of B. thereby burns the house of C. this is Felony; and he may be Indicted, That ex malitia praecogit ' he burned the house of C. A. maliciously burnt his own house, to the intent to burn others, but burned none else but his own, ruled no Felony, but a great misdemeanour; upon which set in Pillory, and bound perpetually to good behaviour. 9 Car. B.R. Hains' Case. The House, Inset house, or Outset house. If parcel of Mansion house, as Stable, Mill-house, Sheep-house, Barn, no Clergy: But burning of a Barn, not parcel of a Mansion house, if it hath Corn or Hay in it, Felony, otherwise not. But Felony not oust of Clergy, unless part of a Mansion house or Barn with Corn. Burning the frame of an house by 37 H. 8. attempting to burn a stack of Corn by 3 & 4 E. 6. made Felony, both Repealed 1 Ma. But in Northumberland, Cumberland, Westmoreland, and Durham, Felony to burn a stack of Corn by 43 El. c. 3. Nota, The Indictment of Burglary Domum Mansionalem; of Arson only Domum. Escapes. NOW we come to those Felonies that are the hindrance of bringing a Felon to public Justice; they are of three kinds in reference to persons that cause it. 1. In the party himself. Breach of Prison. Escape. 2. In the Officer that permits it, Voluntary, Involuntary. 3. In a Stranger, that is Rescue. 1. Breach of Prison. At Common Law it seems all breach of Prison Felony; but by Stat. 1 E. 2. nullus de caetero, qui prisonam fregerit, subeat Judicium vitae vel membrorum pro fractione prisonae, nisi causa, pro qua capt' & imprisonat' fuit, tale Judicium requirit. And herein these things are inquirable: 1. Who may Arrest or Imprison? 2. What a Prison? 3. What breaking a Prison? 4. What cause that requires a Judgement to make this Felony? 1. Who may Arrest or Imprison? 1. Why a private person? 2. Why a public Officer? 1. Arrests by a private person, and that of two kinds: 1. Either commanded or enjoined by Law. 2. Or permitted or allowed by Law. C.P.C. 55. Arrests commanded by Law. 1. Persons present at the committing of a Felony must use their endeavours to apprehend the Offender, otherwise they are to be fined and imprisoned. St. P.C. 29. Hence it is that if a Murder be committed in the day in a Town not enclosed, the Town shall be amerced; and if in a walled Town, be it night or day, the Town shall be amerced if Offender escape. Stat. 3 H. 7.1. So it seems if one strike another dangerously, though death hath not yet happened. Upon Hue and Cry well levied, C.P.C. 52. every man may and must arrest the Offender upon whom it is levied, by Stat. Winchester: and want of pursuit thereof is punishable by Fine and Imprisonment. The manner of levying Hue and Cry where a Felony is committed, or a dangerous stroke given, is this: Resort to the Constable, declare the Fact, describe the Party and the way he is gone, who thereupon is to raise the Town, be it by night or by day, and to give the next Constable warning, and he the rest. I aid an Officer that has a lawful warrant in fait, or in Law, Dal. 249. to arrest a Malefactor. And in these cases it seems it is in the power of such private person to break the house, if upon demand he cannot be admitted to take the Offender. 4 Ins. 177. Videtur sur felony fait & just suspicion ascun puit arrester. 3. N'est punishable licet Constable suffer luy d'escape. A permissive Arrest per private person. If a Felony in fact be committed, and a private person suspect another upon probable cause, he may be arrested, though in truth innocent. And these probable causes, Hue and Cry levied, Company with the Offender, Goods in his Custody, Living vagrantly, Common Fame. But upon such suspicion he cannot break open the door of a house, but may enter the door being open. 4 Ins. 179. The person arrested by either of these means must be brought to the Constable, and if Constable be not to be found to a Justice, and in case of a Felon known, put into Stocks or Common Goal till he be brought to a Constable. Arrest per a public Officer without Process of Law. Nota, Whatsoever a private person may do in this case, a Officer as a private person may do. Now these Officers, 1. Constable. If complaint be made to a Constable of Felony committed, or of a dangerous blow given, though the party not dead, in case there be an assault upon the Constable, or in case there be any other breach of the Peace, the Constable may imprison the party in the Stocks, in the Goal, or in his House, till he can bring him before a Justice of Peace. But if it be a bare breach of the Peace, unless it be in his view, he cannot arrest the party, but complaint must be made to a Justice of Peace, for the Constable is but Conservator, not Justice of Peace, unless a Felony be done. If the Constable see an Affray, and the Malefactor fly into another County before arrest, he may pursue him and arrest him there, and must bring him before Justice of the County where arrested. But if the Escape was after arrest, than he may retake him in another County, and bring him to the first County. He may break a door open to take an Offender, where Felony committed, or dangerous wound given. 2. A Justice of Peace upon complaint may issue out his Warrant to arrest the party. 1. A general Warrant to search for Felony or stolen Goods, not good. 2. If a Justice hath cause of suspicion, he may arrest a common person not as a Justice. 3. Upon complaint of a Felony committed, and when doubt may be of apprehending the Offender in assistance of the party suspecting, he may grant his Warrant to the Constable to apprehend the party, but the party suspecting aught to be present, because 'tis his arrest. But by virtue of such Warrant doors cannot be broke open. 4. But at Sessions the Justices may award a Capias against the person indicted, and by virtue thereof the Sheriff may break open a door. A party being apprehended by such Warrant, is either to be Committed, Bailed, or Discharged. The Commitment by a Justice ought to be to Common Goal by Stat. 13 H. 6.12. and the Mittimus ought to be, 1. Under Seal. 2. To contain the Cause. 3. To have an apt Conclusion, viz. and there to stay till delivered by Law, otherwise Warrant void. And note, That a person committed for Treason, Felony, or otherwise, cannot be discharged till indicted and acquitted, or Ignoramus found, or discharged by Proclamation by King's Bench upon Habeas Corpus. In order to the consideration of Arrests and Escapes, here fit to consider of Bail and Mainprize in cases of Felony. 1. What Bail is? 2. In what cases? 3. By whom? Bail. 1. BAIL are Sureties taken by a person authorized, to appear at a day, and to answer and be justified by Law. The difference between Bail and Mainprize is, That Mainprize are only Surety, but Bail is a Custody; and therefore the Bail may reseize the Prisoner if they doubt he will fly, or detain him and bring him before a Justice, and the Justice ought to commit the Prisoner in discharge of the Bail, or put him to find new Sureties: The like may be done by the Justices in case of inefficient Bail. If a Justice of Peace take inefficient Bail, and the party appear not, the Justice finable by Justices of Goal Delivery. The sufficiency of Bail in respect of number two at least, and those Subsidy men in case of Felony. And in respect of the sum, forty pounds at least. Bail is either a certain sum, or corpus pro corpore, in which case the Offender not appearing, the Surety shall not be Executed, but Fined. 29 Assis. 44. 2. In what Cases? 1. Generally; To refuse Bail where the party ought to be bailed, the party refusing the same is finable as a Misdemeanour; and admitting Bail when it ought not punishable by Justices of Goal Delivery, or punished as a negligent Escape at Common Law, de quo infra. 2. Particularly; At Common Law Bail in all Cases but Homicide; But now the Stat. Westm. 1. c. 15. directs what Cases bailable, what not? At this day in all Offences below Felony, the party accused is bailable, unless 1. Ousted by that Statute, or some other Statute. 2. After Judgement be given. If a person be brought before a Justice, if it appears no Felony committed, he may discharge him; but if Felony be committed, though it appears not that the party accused is guilty, yet he cannot discharge him, but must commit or bail him. The cases wherein parties not bailable, are 1. In respect of the heinousness of the Offence. 1. In Charge of Treason against the King's Person, counterfeiting the Seal, Falsifying Money. 2. Arson, or burning Houses. Dal. c. 114. v. rep. sup. 3. In a Charge of Homicide. 1. In case of a Charge of Murder Justices of Peace cannot bail, but King's Bench may, and do it at discretion, for the Stat. West. 1. extends not to that Court. 2. In case of Manslaughter, tho' it be se defendendo, and appear so to Justice of Peace, they cannot bail the party accused. If he confess the Fact upon examination, if taken with the manner, if apparently known or manifested that he killed another. But if it be a non liquet, and the Charge but Manslaughter, there it seems they may bail. Or if he had given a dangerous stroke, till party dead he may be bailed. But such bailment where Manslaughter or other Felony is committed, must be 1. By two Justices of the Quorum. 3 H. 7. c. 9 2. After Examination. St. 1 & 2 Ph. & Ma. c. 13. And these be all the persons excluded from bail simply, in respect of the nature of the offence. 1. All Accessaries before or after any Offence bailable; but if Principal be attainted, and Accessary indicted, he shall not be bailed until he hath pleaded to the Indictment. 2. Persons indicted of Larceny before Sheriff, if of good name. 3. Imprisonment for a light suspicion, if of good name. 4. Indicted or accused of petty Larceny only. 5. Appeal of Approver after death of Approver. 6. Accused for Trespass, for which a man ought not to lose life or member, and if bail not taken away by a subsequent Stat. hence also a party indicted for Burglary or Robbery may be bailed. 2. As bail is ousted in some cases, in respect of the greatness and consequence of the Offence charged, so it is in respect of the notoriety of the Offence For bail is, when indifferenter, whether guilty or no. But when that indifferency is removed, the Offender otherwise bailable is become not bailable. 1. If a Person be Attaint by Outlary of any Felony, yet if Defendant comes in and pleads in avoidance of the Outlary, be it in Appeal or Indictment, the King's Bench may bail him. 2. If he be convict by Verdict or Confession of any Felony, not bailable. But if a man be convict of Manslaughter se defendendo, the Justices of B. R. or Goal Delivery, or special Writ may bail him, but not Justices of Peace: So if he have a Charter of Pardon. 3. He that becomes an Approver cannot be bailed. 4. He that Abjures cannot be bailed. 5. He that's taken with the manner not bailable, and consequently he that's taken freshly upon Hue and Cry, Bridges' Case. Justice of Peace fined 40 l. for bailing such. 6. He that breaks Prison not bailable. 7. Open and notorious thievery not bailable. But he that is taken for a light suspicion bailable. But if Presumption strong, or Defamation great, he may refuse to bail him: This lies in discretion. 8. Those that are appealed by Approvers, unless 1. Approver die. 2. Approver wave his Appeal. 3. Unless he be of good name. And the reason hereof, because when the Appealer accuses another, he confesses himself Guilty, and therefore induceth a presumption of guilt in another. But this concerns not Justices of Peace, because no man can become Approver before them, because they cannot assign a Coroner; but they may take a Confession by way of Evidence. But a bare Indictment or Appeal did not induce such presumption that may hinder the bailing of a Person otherwise bailable. Westm. 1. c. 25. But in Appeals of Death the Court in discretion admit not Defendant to bail but upon weighty cause. If the party be acquitted within the year upon Indictment, he is not to be discharged, but remanded or bailed at discretion, that an Appeal may be prosecuted against him. 3 H. 7. c. 1. 3. Who may take bail, or bail Offenders? Bail was taken either virtute brevis, or ex officio. 1. Bail taken virtute brevis, that was either General or Special. General Writs. Homine replegiando. Habeas Corpus. Writ of Mainprize; this was directed to Sheriff, commanding him to deliver by the Mainprize of it the party indicted before him. St. P. C. 77. But now by Stat. 28 E. 3. c. 9 these Inquests before Sheriff are taken away, and consequently the Writ of Mainprize. Special Writ, as where party is convict of Manslaughter se defendendo, Special Writ to certify. 2. Bail ex officio. 1. The King's Bench, who have a higher Power than any other Power. 1. They may either in case of an Original Suit, by Indictment or Appeal before them; or upon an Indictment or Commitment returned to them, by Habeas Corpus or Certiorari, bail where another Court cannot. In cases prohihited by Stat. West. 1. c. 15. v. 2. Inst. parol viscount & autres, & parol ne soient replevisable. 2. Justices of Goal Delivery, who may bail in cases where Justices of Peace cannot, if it be a thing within their cognizance: As a man convict of Manslaughter se defendendo, or a person convict of Manslaughter that hath a Pardon to plead. 1. Justices of Peace they cannot bail in any case, but where they have cognizance of the cause; therefore if taken with Process of Rebellion out of Chancery they cannot bail. 2. The Statutes that give power to Justices of Peace to bail in case of Felony, are 3 H. 7. c. 3. 1 & 2 Ph. & Ma. c. 13. upon which two kinds of bailment. 1. Upon the first Accusation, and that doubtless must be done. 1. By two Justices of Peace, whereof one of Quorum. 2. After Examination taken concerning the Offence. ●r. 150. 2. After commitment: And though some Opinions be that he may be bailed by one Justice, yet it seems otherwise; for the Stat. of 1 R. 1. 3. that gave power to one, stands repealed by 3 H. 7. 3. After Indictment and Process thereupon issued in case of Trespass or Misdemeanour, or Penal Statute, not prohibiting bail, he may be bailed by two Justices, whereof one of the Quorum; and by some by one Justice, but this holds not in case of Felony. 4. The Sheriffs, Baily, or Officers of Indictment before them. But these are removed from that power, as it seems by the Stat. 28 E. 3. c. 9 1 E. 3. c. 3. whereby they are not to make Process, but to remove them to the Sessions of the Peace. Having considered the person that may arrest and bail, it makes way to consider the Offences against such Arrest or Imprisonment, by breaking such Prison, etc. And herein ensues the second Consideration. 2. What Prison within this Act? 1. Stocks. 2. Prison of the Lord of Franchises. 3. The Custody of any that lawfully arrests, or the house of the Constable, or other Prison where detained. 4. The Church, where a person abjuring is. 5. The Prison of the Ordinary, which is ousted by 23 H. 8. c. 11. What a breaking? If Prison be fired without privity of Prisoner, he may lawfully break it to save himself. 2. If Goaler do voluntarily permit him to escape, Felony in the Gaoler, not in the Prisoner; but if negligent, Felony in the Prisoner, and Misdemeanour in the Gaoler. 3. If Prisoner under Custody be rescued, or Prison broke by strangers without procurement of the Prisoner, no Felony in Prisoner. 4. Going out doors open, no Felony; for that requires an actual breaking. 4. Nisi con' tale judicium. 1. If A. mortally wound B. and is committed, and he break Prison, and B. then die, no Felony. 2. If a Felony made by subsequent Statutes, and an Offender therefore break Prison, Felony. 3. Committed for suspicion of Felony, yet if Felony done, breaking Prison Felony. 4. If the Offence for which the party was committed appear not by matter of Record, necessary a Felony be done, else breach of Prison no Felony. But if it appears by matter of Record, and the party taken by Capias, if he break Prison, Felony, though no Felony done. 5. If Felony was done, yet breach of Prison no Felony, unless committed by lawful Mittimus, de quo supra. 6. The Indictment for the breach must be Special, that it may appear he was committed for Felony. 5. Tale Judicium requirit. 1. Breach of Prison turns into Felony only, though party committed for Treason. If a Prisoner break Prison wherein Traitors are, to let out Traitors, this is Treason. 2. If a Prisoner break Prison he may be arraigned of that before he be convict of first Felony. But a Gaoler permitting a voluntary Escape shall not be arraigned till Prisoner first attaint; for if Prisoner acquit, Escape dispunishable. Nota, If a person escapes before arrest, not punishable in him as Felony, but forfeits Goods when flight proved. In case a man slain in the day, Offender Escape, Township amerced. Escape in the Officer, or him that makes the Arrest. This either in case of Arrest, 1. By a Stranger. 2. By an Officer. If a stranger arrest a man for Felony, or suspicion thereof, and deliver him over to four others, they receive him and let him go at large, this an Escape in both; for the first man should have delivered him to the Constable, and the latter should not have let him go at large. And the same Law seems to be for a stranger that hath a Prisoner in his Custody, as for an Officer in case of Escape voluntary, or negligent. Escape by the Officer. 1. Negligent. 1. Bailing a person not bailable, though ignorant, by one that hath power to bail, a negligent Escape. But it seems if done by a Gaoler a voluntary Escape, because he hath no such power. 2. The ordinary punishment of such negligent Escape. 1. Of the party attaint 100 l. 2. Of the party indict 5 l. 3. Of a party not indicted at discretion. 3. For insufficiency of Gaoler, Sheriff must answer for negligent Escapes. 4. A Gaoler de facto, though not de jure, must answer for Escapes. 5. If after a negligent Escape the Gaoler return him upon fresh Suit before he be punished, it excused. 2. Voluntary Escape. St. 14. E. 3. c. 10 Hath the same Crime that the person permitted to Escape stood committed for, viz. Treason or Felony. But this is in the immediate person that permits it; and therefore though Sheriff must answer for offences of Gaoler civilly, yet he shall not criminally. 3. There must be a Felony really done, and a Commitment by a lawful Warrant. Dal. 336. Dy. 99 4. If within year Prisoner be acquitted upon Indictment, yet a voluntary Escape is punishable as Felony, because wife to her Appeal. 5. The Escape voluntary punishable ut supra, though Prisoner not indicted. 1. An hindrance of a person to be arrested that has committed Felony is Misdemeanour, but no Felony. 2. But if party be arrested, and then rescued, if arrest was for Felony, Rescuer Felon; if for Treason, Traitor; because they are all Principals. But he shall not be arraigned until Principal be attainted; and if Principal die before attainder, Rescuer shall be fined and imprisoned. 3. There must be a Felony really done, and a lawful Commitment. Felonies by the Statute. C.P.C. c. 14. 3 H. 7. c. 13. IMagining or conspiring to kill the King, or any of his Council, by any of the King's Servants, Clergy not taken away. 1 Jac. c. 12. Witchcraft, de quo supra. St. 25 H. 8. c. 6. revived by 5 El. c. 17. Buggery with man or beast, without benefit of Clergy. There aught to be Penetratio as well as Emissio in this. A Rape. 13 E. 1. c. 34. This was Felony at Common Law, then by Stat. Westm. 1. c. 13. made but Misdemeanour; then by this Statute restored to Felony again. And hence it is that it is not inquirable in Leet, because though Felony, yet it lost its nature by W. 1. c. 13. If a woman be under 10 years, then though she consent, yet by St. 18 El. c. 7. it is a Rape; if above 10 years, if she consent not, a Rape, though she consent after. But in such case of a subsequent consent, the Stat. 6 R. 2. c. 6. gives the Appeal to the Husband, if not to Father, etc. Clergy taken away by Stat. 18 El. c. 7. upon Conviction by verdict, or Confession, or Outlawed. Taking a woman against her will and marrying her, Felony. 3 H. 7. c. 2. 1. Such Maid, Widow, or Wife must have Lands, Tenements or Goods, or be Heir Apparent. 2. She must be taken against her will. 3. Extends not to taking a Ward or Bond woman. Nota, The taking away in one County, and marrying in another, Indicted where married; and they must Inquire of forcible taking away. 2. Privy to the marriage, but not to the force, not Guilty. 3. Marrying with consent not excusing so long as she is under the force, 13 Car. Fulwood's Case. All Accessaries before and after made Principals by this Act. Clergy taken away by Stat. 39 El. c. 9 5 H. 4. c. 5. Vide 22 & 23 Car. 2. cap. 1. Clergy taken away. Malicious cutting Tongues or putting out Eyes, Felony. Clergy not taken away. Extends not to cutting off Ears. 8 H. 6. c. 12. Stealing, carrying away of Records, Felony. And The Judges of either Bench enabled to determine the same. Accessaries before made Principals. 5 H. 4. c. 4. Multiplication of Gold or Silver, Felony. 1 H. 7. c. 7. Hunting unlawfully in Forests, Chases, or Warrens with painted faces by night, and rescue, viz. by other their party arrested, Felony. 31 El. c. 4. Imbezelling the King's Armour, etc. Felony. Qualifications. 1. Ought to be impeached within a year. 2. Offender loseth Lands but during life. 3. No Corruption of blood. 4. Wife loseth not Dower. Subjects passing Sea to serve foreign Prince, 3 Jac. c. 4. not having taken Oath of Allegiance. No Corruption of blood: Offender may have Clergy. Articuli super Cartas c. 2. Purveyors Felony in certain cases, they may have Clergy. Wand'ring Soldiers Felony in certain cases; 39 El. c. 17. excluded of Clergy. Soldiers retained, 18 H. 6. c. 19 as is prescribed in the Act, departing from their Captains without licence, 2 E. 6. c. 2. idem Clergy excluded. Marrying a second husband or wife, the former living, 1 Jac. 11. except 1. The man under fourteen, or the wife under twelve at time of first marriage, and not agreeing after first Espousals, may marry a second husband or wife. 2. A man or wife absent above seven years' second, marriage no Felony: If beyond Sea, than notice of life; if in England, 1 Jac. 11. then without notice. 3. After a Divorce, though à mensa & thoro only. 4. After annullity declared of second marriage by Spiritual Court, Offenders have Clergy. 1 Jac. c. 31. for going with a Plague sore, but this discontinued. 14 E. 3.10. Goaler compelling Prisoner, through Duress, to become Appelor, Felony, whether Appellant be acquitted or not. 3 H. 5. c. 1. obsolete. Coining, or bringing in and uttering Scotch money; and 2 H. 6. c. 9 payment of blanks, Offender hath Clergy. 17 E. 3. St. 16. incerti temporis. Transportation of Silver, or Importation of false money made Felony, Offender hath Clergy. Exportation of Wool or Woolfells, 18 H. 6. c. 15. other than to the Staple at Calais. Stealing Falcons, 37 E. 3.19. or concealing the same after Proclamation, Felony, Offender hath Clergy. Congregations of Masons to prevent Statutes of Labourers; 3 H. 6. c. 1. but this Obsolete because of the Statute 5 El. the Acts to which it relates are repealed. Receiving, retaining, 27 El. c. 2. or maintaining a Jesuit or Popish Priest knowingly, Clergy excluded. Egyptians above fourteen years remaining here a month, 1 & 2 Ph. & M. c. 4. and 5 El. c. 20. takes away Clergy. Felony refusing to make Abjuration, 35 El. c. 2. and after Abjuration not to depart, in some case Clergy excluded. Dangerous Rogues adjudged to the Galleys, 39 El. c. 4. 1 Jac. c. 7. and returning without licence, Felony, but Offender hath Clergy: but branded Rogue Felony, and no Clergy. 5 El. c. 14. Forging a Deed after former Conviction. If a man be convict or condemned of publishing a forged Deed, and after he forge a Deed, this is Felony. C.P.C. p. 172. If the offence were after a former, but before conviction thereof, no Felony, Clergy ousted. 8 El. c. 3. Sending sheep beyond Sea after former conviction, Clergy allowed. 33 H. 6. c. 1. Servants, after decease of Master, riotously spoiling Goods, etc. Offender shall have Clergy. 21 H. 8.7. Servants imbezelling Goods of Master, delivered to them, Felony; but the Statute that took away Clergy being Repealed by 1 E. 6. c. 12. they may now have Clergy. 22 H. 8. c. 11.2 & 3 Ph. & Ma. c. 19 43 El. c. 13. Cutting Powdike, Felony, Offender hath Clergy. Detaining persons in Cumberland against their will, and giving or receiving blackmail, etc. Felony without Clergy. Misprision of Treason. NOW we come to Offences Criminal, but not Capital; and those of two kinds: 1. Offences by Common Law. 2. Offences against Statutes. Offences against Common Law not Capital, are either greater Offences or lesser. Greater; and those come under name of Misprision; and those again of two sorts: Negative, in not doing that they ought, or of Omission. Positive, in doing some great Misdemeanour they ought not. The Negative Misprision. 1. Misprision of Treason. All Treason includes Misprision and Concealing of any Treason, is declared Misprision only by Statute 1 & 2 P. & M. c. 10. C.P.C. c. 3. But this in case of bare knowledge and assent it is Treason, and though Treason by Statute, yet the concealing thereof is Misprision of Treason. Every man therefore that knoweth Treason, must with all speed reveal it to King, his Privy Council, or Magistrate. He that receives and comforts a Traitor knowingly, be it a counterfeiter of Coin or other, is a Principal Traitor, and not only guilty of Misprision. Abingdon's Case against Opinion in Dyer 296. Conier's Case. The Judgement in case of Misprision of Treason is Imprisonment during life, forfeiture of Goods, forfeiture of profits of Land during life. 2. Misprision of Felony is either by Common Law or by Statute. By the Common Law a concealment of Felony, or procurement of the concealing thereof. The Punishment. 1. A common Person Fine and Imprisonment. 2. An Officer, as Sheriff, Coroner, Imprisonment for a year, and Ransom at King's pleasure by Stat. W. 1. c. 9 By the Stat. 3 H. 7. c. 1. 33 H. 8. c. 6. one knowing of an unlawful Assembly, and not discovering it within 24 hours. Concealment of Jurors, v. Stat. 5 Ed. 3. c. 10. 3. Theft-boot, which is more than a bare Misprision of Felony, and is where the Owner doth not only know the Felony, but takes his Goods again, or other Amends, not to Prosecute. But taking the Goods barely no-offence, unless he favour the Thief. The punishment hereof is Ransom and Imprisonment. Misprision Positive, or of Commission. 1. Discovery by one of the grand Inquest of the person Indicted, or by Evidence against them, Misprision, punishable by Fine and Imprisonment, but no Felony. 2. A person dissuading Witnesses from bringing in Evidence against a person is no Accessary, but a great Misprision, punishable by Fine and Imprisonment. 3. Rescuing a Prisoner from Bar of B. R. Canc. B. C. or Exchequer, a Misprision for which a party shall lose his Hand, Goods, Profits of Lands, during Life perpetual Imprisonment. 4. If a man strike sitting the Courts at Westminster, in presence of Courts, like Judgement. 5. If in presence of those Courts, or before Justices of Assize or Oyer & Terminer, a person draws his Sword upon any Judge or Justice, though he strikes not, or strike another, like Judgement. 6. Per Stat. 33 H. 8. c. 12. striking in the King's presence, drawing blood, loss of hand, perpetual Imprisonment, Fine and Ransom. 7. By St. 14 El. c. 3. forging of Money not current Misprision of Treason. 8. Stranger uttering false Money made within this Realm, known to be Counterfeit, 3 H. 7.10. 9 A Lord of Parliament departing from Parliament, 3 E. 3. And hither we may refer Maihem, which though it be a particular Crime for which Appeal lieth, yet it is not Felony of death. Cutting off the hand, C.P.C. c. 40. or striking out a tooth, Maihem, but not cutting off the ear. The Judgement is only Fine, Damages; and therefore if recovery in Trespass, it is a good bar in Appeal of Mayhem. Offences of an Inferior nature are either such as are committed by an Officers neglect of duty, as Bribery, Extorsion. Or such as refer to a common person, without relation to Officers, and those reducible to three kinds. 1. Breaches of public Peace, and therein 1. Of Affrays. 2. Of Riots. 3. Of Forcible Entries. 4. Barretries. 5. Riding armed. 2. Deceits and Cozenage. 3. Nuisances. Decay of Bridges. Decay of Highways. Inns and Alehouses. Breach of the Peace. AFFRAY, If weapon drawn, or struck given or offered; but words no Affray: menace to kill or beat, no Affrays but yet for safeguard of Peace, Constable may bring them before Justice. In Affrays considerable, 1. What a private man may do? Private persons may stay Affrayers till heat over, and deliver them to Constable. If a person hurt another dangerously, Dal. c. 8. private person may arrest the Offender, and bring him to Goal or next Justice. 2. What by a Constable. 1. Affray in presence of a Constable, he ought to do his endeavour to suppress it, otherwise finable. 2. If an Affrayer fly to a house, or if made in a house, Constable may break open house to preserve peace, or take the Offender. 3. If in Affray assault be made upon Constable, he may strike again, or imprison Offender. 4. Constable may in such cases imprison till he find surety of Peace. 5. It seems if Affray pass, and not in view of Constable, he cannot imprison without warrant of Justice unless Felony done, or like to be done. 3. What by a Justice? 1. In his presence, the same power that a private person or Constable, and may imprison till surety of Peace found; the like upon Complaint. 2. If dangerous hurt, Justice may imprison till it appear whether the party die or live, or bail the party. The former the better discretion. Riot. When above the number of two meet to do some unlawful act, and do act it; but if they meet and act it not, an unlawful Assembly, in power of Justices to suppress them, 13 H. 4. c. 7. A man for safeguard of his house against Malefactors or Trespassers, may assemble his Friends for his Defence. But he cannot assemble to prevent a beating threatened in his presence, Riot recorded by one Justice traversable. Forcible Entry. Forcible Entry must be either manifest, furnished with unusual weapons, menace of life or limb, breaking open doors; contrary it seems of doors only hatched, Ejecting forcibly the Possessor. Cum multitudine gentium, one may commit a Force, three at least a Riot. Forcible Detainer. Menacing Possessor to go out upon pain of loss of life or member. Unusual Weapons or Company, refusing to admit the Justice to come in to view the Force. Detainer with Force justifiable where party in possession three years; but though his Possession be lawful, yet within three years actually removed, though restored by Justices, enables not a Detainer with Force. But if three years' Possession hath been by Force, than the last forcible Detainer punishable, and hinders not Restitution. If Disseisee within three years make lawful Claim, this an Interruption of his Possession. Restitution. 1. Justice's B. R. may restore upon Indictment before them. 2. One Justice of Peace cannot restore upon an Indictment before him, nor Sessions of Peace, unless upon an Indictment found at Sessions. 3. It seems Justice of Oyer and Terminer, or Goal Delivery, cannot Restore. 2. How? Upon view. Upon Indictment must be sufficient, adhuc extra tenet. If Erroneous, may be superseed by same Justice before Executed. After it is Executed, than Restitution in B. R. upon Indictment quashed. Restitution stayed By Certiorari. By quashing Indictment. By pleading thereunto, which is nevertheless Indiscretion. Barratry. Riding Armed. Going Armed. V. St. 2 R. 2. c. 1. 7 R. 2. c. 13. 2 E. 2. c. 3. Stat. Northampton. Nuisances. Bridge's Public Are not chargeable upon a particular person, but ratione ten '. But Common Right repairable by whole Country. The manner of Repairing directed by Stat. 2 H. 8. c. 3. Highways. Highways Provisions. 1. For their enlarging and removing Trees within 200 foot of either side. 5 El. c. 13. 29 El. c. 5. 2 & 3 Ph. & Ma. c. 8. The charge of repairing Highways lies on common right upon the Parish wherein they are, unless 1. A Special Prescription cast it on another. 2. Unless the Owner of the Land, in which they are, enclose it, than it must be cast upon the Owner. But they that have Ditches on either side ought to scour them, 8 H. 7.5. Inns, Alehouses, Bawdy-houses, Gaming-houses, Nuisances. Common Inns. 1. ANY person may erect a Common Inn, so it be not ad nocumentum. 1. In respect of their multitude, when there are enough ancient Inns before. 2. In respect of the inconvenience of the place or situation. 3. In respect of Disorders there committed. All which are common Nuisances, and may be fined and presented. 2. He that erects a Common Inn and refuses to entertain Guests, may be Indicted for the same. 3. If Common Inns, contrary to Statute, suffer persons to tipple there as Alehouses, he may be compelled to be bound, or may be suppressed as Alehouse, or may be Indicted at Sessions. See for Alehouses, the suppressing of them, and the punishment for tippling in them, 5 E. 6. c. 25. Jac. c. 9 4 Jac. c. 5. 7 Jac. c. 10.21 Jac. c. 7. 1 Car. c. 4. An Alehousekeeper suppressed for the Offence, 7 Jac. c. 18. 21 Jac. c. 7. for suffering tippling, or 7 Jac. c. 10. for selling less than is there directed, or 21 Jac. c. 7. for continuing drinking in another Alehouse, or 21 Jac. for being drunk, cannot be licenced in three years, and if it be, such Licence void. Forgery, Perjury, Champerty. Offence not Capital more particularly by Statute. Forgery by Stat. 5 El. c. 14. Perjury and Subornation, 5 El. c. 9 Champerty, Embraceries and Maintenance, 32 H. 8. c. 9 Engrossing, Forestall, and Regrating, 5 E. 6. c. 14. Salt Victual within Statute. Apples and Cherries no Victual. Malt seems not Corn and Grain expressly by 5 E. 6. A Stranger, not Subject, bringing Victual into Realm, may sell them in gross, but Vendee cannot; neither may any Merchant buy within the Realm, and sell in gross. Attempting to enhance the price of Merchandise a kind of forestall. Selling Corn in the Sheaf unlawful. Matters of Religion. 1. REviling Sacrament Imprisonment, Fine, and Ransom. 1 E. 6. c. 1. Rep. 1. Ma. c. 2. revived 1 El. c. 7. 2. Not coming to Church to hear Common Prayer, by 5 E. 6. c. 1. subject to Church Censures. Nota, 3 E. 6. c. 1. settled a Book of Common Prayer, Enjoined the use. Refusing to use, using other, or disproving it, Imprisonment for six months for first, for second a year, life for third. 5 E. 6. c. 1. altars Prayers, but applies Penalties to new Book. Nota, Rep. 1 Ma. that Rep. 1 Jac. c. 25. 1 El. c. 1. Enacts the use of the Book of 5 E. 6. with some Alterations. 1. Any that refuse it. 2. Use another form. 3. Deprave it, if Spiritual, six months' Imprisonment first offence, one years' Imprisonment second Offence, Deprivation third Offence. If Lay, first Offence twelve months' Imprisonment, second offence during life. Depraving Book of Common-Prayer, first offence 100 Marks, second offence 400 Marks, third offence Goods, and Imprisonment during life. 3 El. c. 1. concerning Consecrating Bishops. Concerning rejecting Church. 1 El. 2. Every Sunday and Holiday super 12 per diem, 23 El. c. 3. 10 l. per mensem for absenting; and if absent 12 months upon Certificate, bound to good behaviour. 29 El. c. 2. Conviction of Recusancy. 35 El. c. 1. Penalty of dissuading from Church, holding of Conventicles. Convict to Prison without bail until Conformity. Nonconformity within 3 months after Conviction, shall abjure the Realm. Not departing or returning, Felony without benefit of Clergy. Submitting discharged of the Penalty by this Act. Relapsing loseth benefit of Submission. Ten pounds per mensem for every person retaining or relieving Recusant after notice. C. 2. Recusants not to remove, unless from dwelling. 1 Jac. c. 4. the heir of a Recusant conformable, discharged third part forfeiture. Penalty of sending Children into Seminaries. 3 Jac. c. 4 & 5. Penalty for refusing Oath of Supremacy. 1 El. c. 1. 5 El. c. 1. Of Obedience, 3 Jac. 14. 7 Jac. c. 6. King's Bench. Third Part. NOW we come to consider of the proceeding against a party for Felony, and therein 1. Concerning the Jurisdiction of Court wherein Proceedings are to be had in Capital Causes, and those are principally, 1. King's Bench. 2. Justices of Goal Delivery. 3. Justices of Oyer and Terminer and Assizes. 4. Sheriffs and Coroners. 5. Lord Steward of the Household. The King's Bench the Supreme Court of Criminal Jurisdiction. It is a Court of Oyer and Terminer, Goal Delivery, and Eyre, in that County where it sits. By the coming of the King's Bench into any County, 9 R. Sanchars. during the sitting thereof in that County, all power and proceedings of Oyer and Terminer is suspended. But a Special Commission of Oyer and Terminer may be granted, C.P.C. p. 27. bearing Test in the Term, and King's Bench may adjourn, and then they may sit. Where the King's Bench proceeds upon an Offence committed in the same County, there need not fifteen days between Teste and Return of Venire facias; but if they proceed upon a Cause removed by Certiorari, they must have fifteen days. Goal Delivery. 9 R. Sanchars. 1. Justice's of Peace ought to deliver the Indictments not determined unto those Justices, and they may Arreign any person in Prison upon them. 2. They may take Indictments against any person in Prison, and so may Justices of Oyer and Terminer, and herein they have a concurrent Justice. 3. They may take a Panel returned by Sheriff without Precept. 4. They may deliver by Proclamation persons suspected, when there is no Evidence to Indict them. 5. May award Execution of persons in Prison Outlawed before Justices of Peace. 6. May assign Coroner to Appeal and make Process against Appellors in Foreign County. 7. May punish those that unduly bail Prisoners, 1 & 2 Ph. & Ma. c. 13. 8. May deliver the Goal of persons committed for High Treason. 9 May Receive Appeals by Bill against persons in Prison. 10. By Stat. 10 E. 3. must deliver their Records into Treasury at Michaelmas. 11. Others may be added to the former Commission by Commission of Association, or their power committed to fewer by Si non Omnes. 12. By St. 2 & 3 Ph. & Ma. c. 18. a General Commission of Goal Delivery through the County not be a Supersedeas to a Special Commission granted in a Corporation, parcel thereof. 13. By St. 1 E. 6. c. 7. subsequent Commissioners of Goal Delivery, power to give Judgement upon such as were Repreived by former Commissioners of Peace, Goal Delivery, Oyer and Terminer, and others not continued by granting new Commissions. If a Prisoner be bailed, he is yet in Prison to be arraigned before those Justices, for he is a Prisoner; contrary in case of Mainprize. 21 H. 7.33. 9 E. 4.2. 39 H. 6.27. 4. Ins. 206. Although their Commission determine with their Session after they are gone, they may command a Reprieve or Execution. Dyer 205. Licet soit ad Gaolum deliberandum hac vice uncore poit adjourner lour Commission. Bro. Jur. 226. Commission d'Oyer & Terminer, & Goal Deliberand, poit Estoyer ensemble. Ibid. Bro. Commission 24. Justice's d'Oyer & Terminer, & Goal Delivery, poit enquirer per ambideux powers, and make up their Records accordingly. 9 H. 7.9. Bro. Jud. 226. Oyer and Terminer. 1. Justice's Authority must be by Commission, not by Writ, otherwise their Proceeding void. 2. They cannot proceed but by Indictment taken before themselves. 3. Nota, By good Opinion they may proceed the same day or Session against a party Indicted. Nota le contrar' ad estre adjudge. 4. Where Offences are limited to be heard and determined in any Court of Record, generally it may be heard or determined before them. Quaere for Gregory's Case contra Dy. 236. 5. Others may be added, or their power contracted by Association, or Si non omnes. 6. One sitting without Adjournment determines the Commission. 7. Justices of Oyer and Terminer, or of Peace, cannot assign a Coroner as Justices of Goal Delivery may. 8. By St. 9 E. 3. they are also to send their Records determined into the Exchequer. 9 A Supersedeas suspends their power, a Procedendo revives it; the like of Commission of Nisi prius, etc. 12 Ass. 21. But it determines not without notice. 1. By showing the new Commission. 2. Proclaiming it in the County. 3. Or Sessions held by new Commission. 10. An Award on the Roll not sufficient to return a Jury, but a Precept under Seal of Commissioners. C.P.C. p. 27. 11. And Nota, That a Special Commission of Oyer and Terminer may be granted to sit in one County to hear and determine Treason, etc. in another, but then the Indictment must be found in proper County, and the Trial by Jurors of proper County. By Stat. 27 E. 1. de finibus Justices of Assize have power to deliver Goals of Felons and Murderers. And in case of Counterfeiting Coin, etc. upon Stat. 3 H. 7. St. 2. c. 7. they may have a Special Commission. Justices of Peace. THE Stat. of 18. E. 3. c. 2. gives them power by Commission to hear and determine Felonies and Trespasses against the Peace. S.P.C.L. 2. c. 5. But then there must be a special Clause in their Commission, Necnon ad aud' & terminand' felonias, etc. Otherwise they cannot do it. Yet that Clause doth not improperly make Justices of Peace Justices of Oyer and Terminer, because that it is a distinct Commission; therefore a Statute, C.P.C. c. 14. Dal. c. 20. 118. as that of 5 El. c. 14. limiting Forgery to be heard and determined before Justices of Oyer and Terminer, gives not the power therein to Justices of Peace, but Justices of King's Bench are Justices of Oyer and Terminer within this Statute. By force of general words of their Commissions they may inquire of Murder at their Sessions; for though by Stat. 6 E. 1. c. 9 and 4 E. 3. Murder and other Homicides must stay till Goal Delivery; yet the Stat. of 18 E. 3. c. 2. 34 E. 3. c. 1. 17 R. 2. c. 10. hath enlarged their Commission and Power. Yet in respect of Stat. 1 & 2 Ph. & Ma. c. 19 directs Justices of Peace to take Examinations in Cases of Homicides and other Felonies, and to certify them to Justices of Goal Delivery: in point of Discretion they do forbear to proceed to determine Felonies. But for Petty Larceny, and other small Felonies, they use to bind over Prosecutor to Sessions. Justices of Peace may proceed upon Indictment taken before themselves, or some Justice of Peace: but cannot proceed upon Indictment before Coroner, By St. 4 E. 3. c. 2. or Oyer and Terminer; but Justices of Goal Delivery may; and Justices of Peace are to deliver Indictments taken before them to Justices of Goal Delivery. Cr. f. 9 They cannot deliver persons suspect by Proclamation, as Justices of Goal Delivery may. In Cases of Felony by Statute limited to be heard before Justices of the Peace, they may proceed at Sessions, and consequently may bind over Informers, and certify Examinations at Sessions. But such Felonies by Statute as are specially limited to Justices of Oyer and Terminer, or other Justices, and not to them, the Justices of Peace cannot proceed to take Indictments, as upon Stat. 3 H. 7. c. 18. for contriving to destroy the King, etc. upon Stat. 33 H. 8. 12. Murderers in King's Palace upon Stat. 18 H. 6. c. 12. of razing or imbezelling Records upon Stat. 13 H. 6. c. 1. secret imbezelling goods upon St. 2 & 3 Ed. 6. c. 24. striking in one City, Dal. c. 20. and dying in another City. But in former cases it seems they may take Examinations, and commit the Offenders, and bind over Prosecutors. If any Indictment be taken before Justices of Oyer and Terminer, Goal Delivery, or Coroner, they cannot proceed upon them; but upon Indictments taken before Sheriff in his Turn, they may proceed by St. 1 E. 4. c. 2. In cases of Treason, Misprision of Treason, Praemunire, regularly Justices of Peace have no Jurisdiction; yet two things may be done: 1. In any case of Treason, because 'tis a breach of the Peace, they may upon complaint imprison Offenders, take Examinations, bind Prosecutors over, and certify their proceedings into King's Bench or Goal Delivery. 2. In some cases they are enabled to take Indictments, but not hear and determine the same, but certify the same into King's Bench upon Stat. of 5 & 23 El. c. 1. & 1. 1. The Maintainer of the Authority of the Sea of Rome. 2. Obtaining Bulls, etc. 3. Withdrawing from Allegiance. 4. Bringing in Agnus Dei. A person brings one before Justice suspected of Felony, and refuses to be bound to prosecute, may be committed, if it appear he can testify materially. They may Inquire of any Felony within the County, though within the Verge. Co. lib. 4. 4 R. Wigg's Case. Coroner. CORONER Hath power in three Cases: 1. To take Indictment of Death; but this he can only do super visum corporis, otherwise void. Hence 1. If Body be interred before he comes, the Township amerced, and he must dig up the Body; so if Township suffer Body to lie long to Putrefaction without sending for Coroner: The like of one lying in Prison. 2. If Coroner be remiss, and comes not when sent for, he shall be fined and imprisoned. 3. He may inquire of flight, and such Presentment not Traversable. 4. If Body cannot be seen, Justice of Peace may inquire thereof. Nota, The Record of the Coroner of great Authority; if he Record a Confession of a Felony by Approver, or a Confession of breach of Prison, or an Abjuration, it shall not be Traversed. And it seems by some he hath power to inquire of Rapes, breach of Prison. He hath Jurisdiction upon Arms of the Sea, where a man may see from side to side. 2. Concerning Appeals. Coroner, together with Sheriff, hath power in County Court to receive Appeals of Robberies and other Felonies, but than it must be of a Felony in the same County: Upon this Appeal they may grant Process till Outlary; St. P.C. 82. but it seems they cannot send an Exigent, because prohibited by St. 6 M. c. 17. St. P.G. f. 68 Such Appeal may be by Bill, and it may be removed into King's Bench by Certiorari, but it must issue both to Sheriff and Coroner. It appears By St. 3 H. 7. c. 1. That an Appeal of Murder by Bill lies before Sheriff and Coroner. 3. The Coroner alone may take the Appeal of an Approver of a Felony in any County. But then he cannot make Process thereupon, but enter it in his Roll, St. P.C. f. 59 and send it to the Justices of Goal Delivery, who thereupon may issue their Process to the Sheriff of the foreign County to take the Appellor. 4. To take the Abjuration of him that acknowledges a Felony done in the same County, or any other. And note, That though more Coroners than one in any County, yet any one may execute any of the powers before. But the Presentment of him that is first taken stands. Abjuration dit esse toll one Sanctuary per 21 Jac. 2 Ins. 629. Sheriff. THE power of the Sheriff to take Indictments, was either Virtute Commissionis, or Officii, which are taken away per Stat. 28 E. 3. c. 9 His Power and Office in the Turns. St. P.C. f. 84. 1. His Turn must be held infra mensem Paschae & Michaelis, otherwise the Indictments there are void per St. 31 E. 3. c. 15. 2. Indictments must be under Seal of the Jury by Stat. of West. 2. c. 13. indented per Stat. 1 E. 3. c. 17. and the same for Lord of Franchises. 3. Indictors must be of good name, having 20 s. Freehold, or 26 s. 8 d. Copyhold, otherwise Sheriff punishable by Stat. 1 R. 3. c. 4. 4. The Turn can take no Indictment but of that which is Felony by Common Law, or of such matters as are particularly by Act of Parliament limited to them, and therefore an Indictment of Escape void there. 5. Upon any Indictment of Felony before Sheriff in his Turn, they can make out no Process, but must remand them to Justices of Peace, who have power to proceed thereupon as if taken before themselves, by St. 1 E. 4. c. 2 The Court-Leet in effect hath the same Jurisdiction with the Turn; but Presentments of Felony before them are to be sent before Justices of Goal Delivery, 3 H. 4.18. Appeal. HAving considered the Courts of Justice, now we come to consider the way of bringing Capital Offenders to Trial, and that is Regularly by one of these 3 ways, Appeal. Approver. Indictment. And herein some things are proper to each proceeding, some things are common to them all, which come to be considered after particulars proper to either dispatched, viz. Process. Arraignment; and therein of Principal and Accessary. Demeanour of the Party Arraigned; Standing Mute. Confessing. Pleading and Pleas. Declinatory, Sanctuary. Clergy. In Bar, Pardon. Auterfoits Acquit. Anterfoits Convict. To the Felony. Trial per Battle. per Jury. And therein, Process against Jury. Challenge. Verdict. Per Peers in case of Nobility. Judgement in the several Cases Capital. Execution. Reprieve. Falsifier, Per Error. Per Plea. Appeal. Appeals in respect of the manner of proceeding, are of two kinds; By Writ. By Bill. Touching Appeals by Bill, they may be prosecuted, 1. In the King's Bench against any that is in custod' Marr ', or let to Bail. They are Sovereign Coroners. 2. In the Court before Commissioners of Goal Delivery against a Prisoner, or one let to Bail, but not to one let to Mainprize. But if one of Appellees absent, remove in B. R. by Certiorari. 3. By some before Justices of Peace, quod Quaere 44 E. 3. Coron. 95. 4. Before Sheriff and Coroner, as before; and it may be removed by Certiorari in B. R. 3 H. 7. c. 1. 5. Before Constable and Marshal, of a Felony done out of the Realm, 1 H. 4. c. 14. Appeals are in matter 1. Not Capital, as an Appeal of Maihem, which may be commenced in K. B. Goal Delivery, or before Coroner and Sheriff. This, though it be Felony, yet 'tis but a Trespass in Nature and Judgement. 2. Capital; and that either 1. Of Treason, but this ousted per Stat. 1 H. 4. c. 14. 2. Of Felony; and these of three kinds, Death. Larceny. Rape. An Appeal of Death is either by Wife or Heir. 1. Of an Appeal of Death by Wife, and therein these requisites; 1. She ought to be a wife de jure, and not the facto only; and therefore ne onc' accouple a good Plea. 2. But she need not be dowable; for if she had Eloped, or the Husband been Attaint; yet she may have an Appeal of his death. 3. She ought to continue his Widow; for if she marry before, or pending the Appeal, the Appeal fails for ever; or if she marry after Judgement she cannot have Execution. 2. Appeal of Death by Heir. 1. If the dead have a wife, the heir shall not have Appeal though she die; but if Wife kill Husband, there the Heir shall have an Appeal. 2. He must be Heir by course of Common Law; this hath these Exceptions: 1. Where Heir is disabled through Attainder. 2. Where the Appeal is against the Heir, there the Appeal goes to the next Heir. 3. It must be Heir that was Heir at time of death of Ancestor; for if he die within the year before, or after Appeal commenced, it is lost. But it seems if the Heir having Judgement die, next Heir may have Execution. 4. It must be an Heir Male; Nullus capiatur propter Appellum feminae alterius quam viri sui: But if be Heir, and Male, though he derive through Females, he may have an Appeal. 5. A man above Seventy, or an Infant, may have an Appeal; but as Battle waged and adjudged of late times the Paroll shall not Demur. But an Idiot, Monk, Man mute, shall have no Appeal of death nor otherwise. And Nota, C.P.C. 53. the Appeal must be within year and day after death by Stat. 3 E. 6. c. 24. stricken in one County, and dies in another, or Accessary in one County, to death in another, Appeal brought where party died Appeal Robbery. Servant robbed Master or Servant may have Appeal. But Testator robbed, Executor shall not have Appeal. Villain shall not have Appeal of Robbery against his Lord, contra of death. Two joint Owners robbed, Survivor shall have Appeal. A Woman or Infant shall have an Appeal of Robbery. If a man be robbed at several times, he must put all into one Appeal. What omitted is Confiscate. The Appeal affirms the continuation of the property thereof. If A. rob B. in the County of S. and go with the Goods in the County of D. an Appeal of Larceny lies in that County of D. but not of robbery, for that is upon the taking from the person. If A. be robbed by B. who is robbed by C. A. may have an Appeal of Larceny against C. This Appeal may be prosecuted in a year, two, or three, if there was fresh suit; and the judging of fresh suit lies in discretion of Court. And Nota, This, or any other Appeal lies against an Infant, against a Monk, without naming his Sovereign, against a Feme convert without naming her Husband. Appeal of Rape. 1. Lies for party ravished. 2. But if she consented to Rape afterwards, then by Stat. 6 R. 2. c. 6. it is given to the Husband; if none, to the Father; if none, to the Heir, whether Male or Female. If she be taken in one County, and ravished in another, the Appeal of Rape lies in County where ravished. Although by Stat. W. 1. c. 13. whereby Rape was turned into Trespass, forty days were limited for her Suit; yet it being again made Felony by Stat. W. 2. c. and no time limited, it may be brought in any reasonable time. Process. Count and Plea to the Writ. Concerning Process in Appeals, v. infra Process in general, because many things therein common to Appeals and Indictments. The Count in Appeals. 1. The Plaintiff in his Appeal must mention the place and day, need not mention the hour; and though day be mistaken, not material upon Evidence. 2. It sufficeth for Plaintiff to count against Defendant, according to the construction that the Law maketh upon the Fact. If A. B. and C. present, B. only strike the mortal stroke, he may count against them all, that they struck: So in Rapes. 3. An Appeal by Heir ought to show Comment. 4. In Appeals of Rape, felonice rapuit is sufficient with carnaliter cognovit, vid. 11 H. 4. 1. 5. In Appeals against A. B. and C. A. only appears, he must count against all per better Opinion. 6. At this day one Appeal against all Perils and Accessaries, and if an Attaint be against A. and he is attaint or acquit, or Plaintiff nonsuited, he cannot have another Appeal against B. But if Accessaries in one County to Felony in another, their several Appeals against Principal and Accessaries. Writ of Appeal abate. 1. For insufficiency in the Writ, as wanting rapuit, false Latin. 2. Multiplicity of Action, second Writ of Appeal purchased, pending a former Bill in the County, abates not. But if first Appeal by Bill was removed into B. by Certiorari, and the Plaintiff had appeared thereupon, and counted, abates the second. Nul tiel in rerum natura, as one of the Defendants abates. Pleas in Barr. Vid. infra un general Title as to Autrefoits, Convict or Acquit. 1. He may plead any thing whereby it appears the Plaintiff is not entitled to Appeal de quo v. supra. 2. Nonsuit in a former Appeal after Declaration, so of a Retraxit of the same, the Plaintiff brought an Appeal. 3. Felony against another, who was Attaint or Convict at his Suit. 4. Plaintiff hath released to Defendant, but if Appeal against Divorce, a Release or Retraxit as to one no benefit to the other. 5. If Defendant plead in Bar, he may also plead over to Felony, and it shall not be double. 1. But in case of Release pleaded, he shall not plead over to Felony, because repugnant. 2. In case of Villeinage pleaded he shall not plead to the Felony, because Enfranchisement; yet if that bar found against him, he may plead not Guilty; and so in any other case where he pleads in Bar without pleading over, except in Release. Approver. 1. WHAT it is to be an Approver? A person Indicted of Treason or Felony not disabled to accuse before competent Judges, confessing the Indictment, and sworn to reveal all Treasons and Felonies he knows, and then before a Coroner entering his Appeal against participes Criminis in the Indictment within the Realm. St. P.C. 142. 2. Who may be an Approver? 1. A Peer of the Realm cannot be an Approver. 2. A person Attaint cannot be an Approver. 3. A Woman, Infant, Idiot, Non compos, etc. Clerk, cannot be an Approver. 4. But a man above seventy, or maimed may, but he cannot wage Battle. 5. Clerk Convict may. 3. In what cases? 1. None can approve but a person Indicted, & therefore if only in Prison upon suspicion, he may indeed confess the Felony, but such Confession amounteth not to an Attainder or Conviction, though it be an Evidence, and therefore cannot approve. 2. The Appellee in Appeal cannot be an Approver. 3. The Appellee of Approver cannot be Approver, for that would be infinite. 4. Though a person Indicted approve, yet if after Appeal be against him, Approver ceaseth. 5. He that hath once pleaded to the Felony cannot be an Approver, but shall be hanged, for he is found false. 4. Of what Offences? It must be only of the Offences contained in the Indictment, be it Felony or Treason, and therefore not of another Offence, nor of an Accessary before or after to the same, yet his Oath general, therefore as to other Offences, it is but a Detection, not an Approvement. 5. Before whom? Before such Judges only as can assign, as King's Bench, Goal Delivery, Oyer and Terminer, High Steward; but not before Justices of Court Baron or County Court. But it is in the discretion of the Court to suffer him to be Approver, or to respite Judgement and Execution, till he hath Convicted all his Partners. 6. How Demeasned after Appeal? 1. After Felony confessed upon Arraignment, a Coroner assigned and sworn in Court to discover Offenders. 2. A day prefixed, within which he is to perfect his Appeal before the Coroner, and in every of these days he must Appeal; for if he fail, and Court record it, to be hanged. The limit to perfect his Appeal by 5 E. 3. c. 34. 183 days, but that Repealed 15 El. 3. During time limited for his Appeal, he shall be at large, and have 1 d. per diem till Appeal perfected. 4. If he Appeal persons beyond Sea, or if Appeal such as are not in rerum natura, and that appear by Testimony of County, or by return of Sheriff, quod non fuit invent ', he shall be hanged. 5. After his Appeal form before Coroner, he must repeat it verbatim to Court; and if he fail thereof, and Court Record it, he shall be hanged. 7. Process in Appeal. 1. In the same County Coroner may award Process to Sheriff till Exigent. 2. If Appellee be in a foreign County, yet the Judges before whom the Appeal is, may grant Process, viz. B. R. or Itinerant by Common Law. And by Stat. 28 E. 3.1. de Appellis, the Justices of Goal Delivery may send Process into a foreign County, as well to apprehend the Appellee, as a Venire Facias to try the Issue. 8. Proceedings upon Trial. The Appellee may put himself upon County, or wage Battle. If five Appellees, and they wage Battle, he must fight them all. If two approve against one Appellee, if the Appellee vanquish the first, he is acquitted against the rest: though Appellor retract his Appeal, or be vanquished; yet if Offence be within Clergy he shall have it; and so of Appellee. 9 Proceedings after Trial. If Appellor convict Appellee, either by Battle or Verdict, the King ex merito justitiae is to pardon him; and from the time of his Appeal till his Pardon or Conviction, aught to have wages. Indictments. THESE things considerable: 1. Where an Indictment requisite in cases Capital, where not. 2. What the quality of the Indicator. 3. Of what matters they may Inquire. 4. Before whom found. 5. What requisite in the manner of them. 1. Where an Indictment requisite for party to be Arraigned at King's Suit. 1. By ancient Common Law, if a man was taken in Larceny with the manner, and that brought into Court with Prisoner, Prisoner shall be Arraigned thereupon without Indictment St. P.C.f. 148. And such was the use of the Manner that had infang Thief, Ibid. f. 29. v. 1 E. 3.17.17 Ass. 99 but this disused. 2. If Trespass be brought de muliere abductâ cum bonis viri, and the Defendant found Guilty: or if in Trespass for Goods the Defendant be found that he stole them, S.P.C. f. 94. this in the King's Bench equivalent to an Indictment, and the Defendant be put to answer Felony. 3. In some Cases upon Appeals by Appellors or Approvers not prosecuting, etc. Defendant Arraigned at King's Suit, because it carries a presumption of truth; and therefore if Defendant be both Appealed and Indicted upon a non prosecution of the Appeal, the party shall be Arraigned upon the Appeal, not the Indictment. 4 E. 4.10. Wherein. 1. If Plaintiff in Appeal by Writ be Nonsuit before Declaration, he shall not be Arraigned at King's Suit. 1. Because not certainty. 2. Writ may be at another's Suit, but if it be by Bill, either by Appellor or Approver, it seems he shall, because the certainty appears; therefore in the former Case, if there be no Indictment against him he is dismissed. 2. If Plaintiff release his Appeal after he hath commenced it, party shall be Arraigned at Kings Suit. But if before it was commenced, than not. 3. If Plaintiff or Approver after Appeal commenced, confess it false, Appellor hanged, and Appelle discharged, because amounts to a vanquishment. 4. If Appeal abate by Act of Plaintiff, as taking Husband, or act in Law, as death, Appellee Arraigned at King's Suit; but if it abate by insufficiency in the Appeal, as by false Latin, Misnomer, or because Plaintiff disabled to commence Appeal, as Utlary of Felony, or Trespass, or the year or day past, or Plaintiff not Wife or Heir of Defendant, not Arraigned upon Appeal, but may be Indicted. 5. If King pardon after Battle joined in Appeal by Approver, no Arraignment at King's Suit, but Appellee discharged. And note where Prisoner Arraigned upon the Appeal, C.P.C. 184. a Cesset Process is entered upon the Indictment. The return of the Sheriff of Rescue or Escape of a Felon, not sufficient to put the party to answer the Felony. 2. The second considerable is the quality of the Indictor. Concerning Indictments in Leets and Turns, v. ante upon Stat. W. 2. c. 13. 1 E. 3. c. 17. 1 R. 3. c. 4. 1 E. 4. c. 3. There is a general Statute that refers all Indictments, as well in case of Felony as Treason, 11 H. 4. c. 9 which requires 1. Indictors not to be 1. Persons fled to Sanctuary for Felony or Treason. 2. Not outlawed. 3. Not Indicted or Attainted. 4. Not by Conspiracy. 2. That Indictors be the King's Liege people. 3. Returned by the Sheriff, as Bailiff of Franchises. 4. Not at the Denomination of any person. And all Indictments taken contrary are void. Hence it follows 1. That Prisoner upon Arraignment may plead this matter, or any point of it, and may plead over to the Felony. Vide Scarle's Case. 2. Though there be twenty of the grand Jury, yet if one was outlawed or taken at the Denomination of another, it voids the whole Indictment. By Stat. 3 H. 8. c. 12. Justices of Goal Delivery, or of Peace, whereof one of the Quorum, in open Sessions may reform the Panel of the Grand Jury, by putting and taking out Names, and the Sheriff is to return the Panel so reform. But this takes not away former Statute of 11 H. 4. nor altars it. By Stat. 33 H. 6. c. 2. Special provision is made for quality of Indictor in Lancashire. 3. Of which things they can Inquire. Regularly they can Inquire of nothing but what ariseth within the Body of the County for which they are returned. And therefore if an Indictment for scandalous words, or other matter transitory be found upon not Guilty pleaded thereunto, if upon Evidence it appear to be spoken in another County, Defendant is not Guilty. And therefore where stroke was in one County, and death in another, he could not be Indicted where party died. But for a Nuisance in one County to another, a Jury in County where Nuisance is committed may Indict. But divers Statutes have introduced alteration of the Law in some Capital Cases, 28 H. 8. c. 15. Treasons, Felonies, Robberies, Murders and Confederacies upon the Stat. may be enquired, tried, heard, determined, and judged in such places as shall be limited by King's Commission to be directed for the same. A Treason done out of the Land, it hath been held that it may be enquired of and tried where Offender landed; but to amove the Question by Stat. 35 H. 8. c. 2. all Treasons and Misprisions, or concealments of Treasons done out of England, may be enquired, heard, or determined by Justices of King's Bench, by persons of the County where Bench sits, or before Commissioners, and in such Shires as shall be appointed by King's Commission, and by good men of the same Shires, as if the Treasons, etc. had been done in the same Shires where enquired. C.P.C. f. 7. Upon this Statute. 1. If Bench remove after Indictment into another County, Trial shall be by persons of first County. 2. The King writing his name to Commission, or putting his sign to the Warrant sufficient. 3. Ireland is out of the Realm to this purpose. The Statutes stand unrepealed by Stat. of 1 Ma. c. but the Stat. of 32 H. 8. c. 4. for trial of Treason in Wales repealed by 1 Ma. Again, by Stat. 2 & 3 El. c. 24. a man stricken in the County of D. dies in the County of S. or Accessary in one County to Felony in another County, may be indicted and tried in County where death was, for Felony committed per Principal, but it must be laid according to truth. If Enquest conceal any matter presentable before Justice of Peace, they may Impannel Inquest to inquire of such concealment, and amerce Concealers by Stat. 3 H. 7. c. 1. 4. Before whom found. Of this before. 5. The form of Indictments. 1. By Statute. 4 H. 4. c. 2. Insidiatores viarum & depopulatores to be omitted in Indictments; and if inserted, yet Clergy not thereby taken away. 37 H. 8. c. 8. Indictment what, to be quashed for want of words, viz. gladiis, baculis, & cultellis. 2. At Common Law: Want of certainty vitiates, want of year, day, and place. Indictment for Escape of one taken on suspicion of Felony, without showing what Felony Mal. Indictment for receipt of a Felon without showing who secured, Mal. Indictment for making Alchemy ad instar pecuniae Regis, without showing what money, Mal. Indictment quod cepit, or furatus est, without saying felonice abduxit equum, without saying cepit or carnaliter cognovit, without saying Rapuit, or Bulglariter, when it should be for Burglariter; or if Felony before Justice of Peace, without saying necnon ad diversas felonias; if in murder with a Gun, without saying percussit, Mal. Indictment supposing the stroke 1. Augusti, death 2. Augusti, & sic felonice murdravit 1. Augusti, Mal. but sic murdravit modo & forma praed', or praed ' 1. Augusti, Bon. Indictment quod dedit mortalem plagam circa pectus, Mal. but in sinistram partem ventris circa, Bon. Indictment de morte cujusdam ignoti, or felonice cepit bona, C.P.C. c. 62. etc. cujusdam ignoti, or domus Ecclesiae, Bon. 1. Proof upon Indictments. In case of Treason or Misprision by the Stat. 1 E. 6. c. 12. 5 E. 6. c. 7. there ought to be lawful Accusers. 1. Eye witnesses upon every Indictment. An Accuser by hearsay is no lawful Accuser within this Statute. C.P.C. 24. The necessity of such proof upon Indictment of Treason is not taken away by Stat. 1 & 2 Ph. & Ma. c. 11. but only in the case of counterfeiting Coin. St. P.C. 154. But these Witnesses need not be present with the Indictor, but they may send to them in writing. Process. NOW we come to those Proceedings that are common for most part both to Appeals and Indictments. And 1. Of Process. 1. Upon an Indictment or Appeal of death but one Cap. and then Exigent: but in case of Robbery, then by Stat. 25 E. 3. c. 14. two Capias', than Exigent; but this Stat. extends not to death. 2. Indictments or Appeals of Trespass, or any Felony and Trespass against a person of another County after one Cap. a second Cap. with Proclamations, shall be granted to the Sheriff of that County wherein he is supposed to be conversant before an Exigent shall issue per Stat. 8 H. 6. c. 10. And upon this Statute Process shall go to a County Palatine; and if in the Indictment he be styled nuper de, and so in several Counties, then second Cap. shall go to every County. Principal and Accessary. IF one present did nothing, but yet came to assist party if need; or if one hold the party while Felon strike him; or if one present his weapon to the other that strikes, for they are praesentes, auxiliantes, or confortantes. But if one come casually, S.P.C. f. 40. not of the Confederacy, though he hinder not the Felony, he is neither Principal nor Accessary, although he apprehend not the Felon. In some cases a person absent may be Principal. 1. He that puts poison into any thing to poison another, though not present when taken; and so it seems are all those that are present when the poison is so infused; and consenting thereto. 2. If upon the same Ground, or in the same House, though not within view of Fact, when many come to do an unlawful act: See before Lord Dacres and Budsey's Case in Murder and Robbery. 3. By special Act of Parliament, or upon the Stat. 3 H. 7. c. 2. 8 H. 6.12. Accessary before, he that commandeth or assenteth to the committing of a Felony, and is absent when done. 4 R. Blyths C. 1. In Manslaughter there can be no Accessary before, because done without premeditation. 2. Where Receipt to make an Accessary, must be knowing him to be such. But if a man be Attaint of Felony in the County of A. the Law presumes notice thereof in the same County, therefore the receipt of him in the same County seems Accessary; contrary if in another. Videtur cognitio requisite in utraque. 3. Receipt of a Felon that hath given Bond to appear at next Session, etc. not Accessary. 4. Relieving a Felon with Money, Victuals, Horse for his Journey knowing, Accessary; but if he be in Prison, then lawful. 5. A brother receiving a brother may be Accessary, or a Husband his Wife, but not Wife of her Husband. 2. Where Execution varies from Command. In person slain; as a command to kill A. and he kills B. or in the nature of the Offence; as Command to rob as he goes to Marker, and he breaks open House and robs it, the Commandant is no Accessary. 3. But a command to poison J. S. and he shoots him; a command to rob or beat J. S. he beats him to death, the Commander Accessary. 4. If A. command B. to kill C. and before Fact A. reputes, and countermands his command, yet B. kill him, A. is not Accessary. 5. If A. poison an Apple, and deliver it to C. to deliver to D. C. not knowing delivers it, Murder in A. but no Offence in C. Accessaries after St. P.C. 41. 1. A receipt of stolen Goods makes not Accessary, unless he receive Thief. A man may be Accessary to an Accessary: And The same man may be Principal and Accessary where Felony done by divers. 6. But sending a Letter in favour of a Felon, instructing him to read, advising to labour witnesses, not revealing a Felony intended, permitting a Felon to escape without Arrest, makes no Accessary. 7. Accessary cannot be unless a Felony committed; therefore A. wounds B. dangerously, C. receives A. B. dies, C. not Accessary. Arraignment of Principal and Accessary, and things Observable therein. 1. IF Principal be acquitted, C.P.C. 47.139. 4 R. Seyers C. or be convict only of Manslaughter, or se Defendendo, or before his Attainder hath his Clergy, or be pardoned, or die, the Accessary shall not be Arraigned; otherwise if after Attainder. 2. If Principal be attaint at Suit of the King, the Accessary shall not be Arraigned at Suit of party. 3. If Principal stand mute, Accessary not Arraigned. 4. Exigent shall not go out against Accessary till Principal attaint per Stat. W. 1. c. 14. 5. Where Principal appears not, Accessary shall be put to answer: but he shall not be tried till Principal attaint or appear, unless he will, for he may wave the benefit of the Law. 6. If he be Indicted as Accessary to two, and one of Principals appears and is convict, the Court may, if they please, try the Accessary; and if he be found Accessary to him that is attaint, he shall be condemned; St. P.C. 47. if not found Accessary to him, yet he may be afterwards Arraigned as Accessary to the other when he appears. 7. If Principal and Accessary appear and plead a Felony, they may be tried by same Inquest; but the Princlpal must be first Convict, and have Judgement, before Judgement against Accessary, and the Jury shall be in Charge, that if they find principal not guilty, they shall find the Accessary non Cul. 8. If Principal be Erroneously attainted, yet Accessary shall not take advantage thereof, but be Arraigned. 9 If Murder or other Offence were in one County, and Accessary in another per Stat. 2 E. 6. c. 24. C.P.C. p. 44 1. If Accessary be in Middlesex, and where the King's Bench sits, and Principal in another County, King's Bench may try Accessary. 2. Certificate in such case shall be upon a Certiorari or Special Writ, if need be, form upon the Matter, and not by Precept, Ibid. under their Seals, and in their own Names. High Steward within the Act. Mute, pain fort & dure. NOW we come to the Demeanour of the Prisoner upon his appearance. And thereupon either, 1. He that stands mute. 2. He that pleads. 3. Or confesseth the Fact. What is said standing mute? This of two kinds. 1. When he answers nothing at all, and it shall be enquired whether he stand mute per malice or per act of God. If it be by act of God, than Felony shall be enquired of, and whether he be the same person as if he pleaded not guilty. 1. If by malice, or if Prisoner hath cut out his own tongue, De pain fort & dure. than Prisonner shall have Penance. 2. When he pleads, but not effectually; as when he answers not directly to the Fact, or concludes not upon the Country, then if the cause be probable, De pain fort & dure. he shall be put to his Penance. C.P.C. p. 227. 2. What the consequent of standing mute? 1. In Treason 'tis a Conviction. 2. After Attainder and asked what he can say why no execution, standing mute he shall be Executed. 2. In Appeal standing mute, Judgement against him to be hanged. 4. Upon Stat. 33 H. 8. c. 2. of Felony within Verge, Offender standing mute Judgement against him. 5. But in other cases of Felony, pain fort & dure, and forfeits Goods. 1. Remanded to Prison. 2. Lie naked in some dark Room with hands and legs extended. 3. Weights increased. Pleas. IF Prisoner plead, it is either Declinatory, 1. Sanctuary, Clergy. 2. Or to the Felony: 1. Demurring. 2. Pleading in Barr. 3. Pleading general Issue. Declinatory Exceptions. 1. Sanctuary and the Consequents abjuratio ousted by Stat. 21 Jac. c. 28. 2. Clergy wherein 1. Who shall have benefit of Clergy? 2. In what Cases? 3. At what time? 4. Who the Judge? 5. What the Consequent? 1. Who shall have Clergy, and who not? 1. A blind man shall not have his Clergy. 2. A woman Covert shall not have benefit of Clergy. Provision by Stat. 21 Jac. c. 6. C.P.C. c. 124. that for stealing Goods under 10 s. without Burglary or Robbery, etc. he shall be burnt in the hand for the first Offence. 3. Bigamy ousted of Clergy per Stat. de Bigamis 4 E. 1. but restored to it per Stat. 1 E. 6. c. 12. 2. In what cases some things permitted in general. 1. Per Stat. 25 E. 3. c. 4. per Cler. Clergy allowed in all Treasons and Felonies, except Treasons against King; so that after that Statute, there was Clergy in all Cases except Treason and Sacrilege. 2. Consequently wheresoever Clergy is not allowable, it is taken away by some Act of Parliament. 3. Consequently where any Felony is made by a new Stat. Clergy is to be allowed, unless expressly taken away. 4. Consequently whereby any new Act of Parl. Clergy is taken away in any Offence, the Indictment ought to bring the Case within the Act. As upon the Stat. 3 & 4 Ph. & Ma. c. 4. the Indictment ought to run Malitiose; so upon Stat. 8 El. c. 9 it must clam & secret; in case of Murder, ex malitia praecogit ', otherwise Clergy allowable. 5. Consequently a Statute taking away Clergy from Principal, doth not thereby take it from the Accessary before, unless specially provided for. 6. Where Clergy allowable, it is to be allowed though the party be Convict by Confession, Verdict, or stands Mute, or challenges peremptorily above 35. 3. Particular Offences where Clergy, and where not. 1. High Treason. 2. Petty Treason. Principal oust of Clergy if convict by Verdict or Confession per Stat. 23 H. 8. c. 1. revived per 5 & 6 E. 6. c. 10. and per Stat. 25 H. 8. c. 3. the standing Mute not directly answering, or challenging above twenty. Not oust of Clergy in Appeals, unless Convict by Verdict or Confession. Accessary before Fact maliciously, oust of Clergy in all cases per 4 & 5 Ph. & Ma. c. 4. 3. Wilful Murder of Malice prepense, oust of Clergy in all cases per Stat. 23 H. 8. c. 1. 25 H. 8. c. 3. Accessary before maliciously, ousted in all cases per 4 & 5 Ph. & Ma. c. 4. 4. Arson of Houses, or Barns full of Corn, Principal oust of Clergy in all cases, viz. sur Conviction upon Verdict, or Confession per 23 H. 8. c. 1. upon standing Mute, not direct answering, challenge above twenty; per Stat. 25 H. 8. c. 3. Accessary ousted of Clergy in all cases per 4 & 5 Phil. & Ma. 5. Simple Burglary. Principal ousted of Clergy if Outlawed, Convict by Verdict, or Confession. Not ousted if stand Mute, challenge above twenty, or not answering. Accessary before or after not ousted of Clergy. 6. Burglary, any person being in the House, or put in fear or dread. Principal oust of Clergy in all cases, viz. per Stat. 1 E. 6. 12. in case of any Conviction or Attainder; and per 25 H. 8. c. 3. revived per 5 & 6 E. 6. c. 10. it takes away Clergy where above twenty challenged. But Accessary not ousted of Clergy for Accessaries before, vide 4 & 5 Ph. & Ma. 4. 7. Robbery, which hath several qualifications with these considerations. 1. In or near the Highway. 2. In the Dwellinghouse. 1. Putting party, his wife, or servants in fear. 2. Party, his wife, or servants in house, but not in fear. 3. Neither party, his wife, nor servants in the house, nor put in fear, where it extends to the value of five shillings. In Appeals or Indictments against Principal and Accessary, per Stat. W. 1. c. 14. Process of Outlary must stay against Accessary till Principal attaint. But if it be an Appeal by Writ which is general till Declaration, the Plaintiff must at his peril distinguish the Process; for if he take his Exigent against all, he must Count against all as Principals. An Appeal against divers, one appears and pleads to the Writ, or in Bar, which goes to all, Process of Outlary shall stay against rest till Plea determined. An Indictment or Appeal may be removed in B. R. by Certiorari, but it must accord with the Appeal. Upon an Appeal moved per Certiorari, the Plaintiff is without day; and to compel Plaintiff to proceed, Defendant may take out a Scire Facias, and upon 2 Nisies or a Scire Feci, and default, Plaintiff discharged. But the Plaintiff upon such Appeal removed, may have Capias & Exigent. If Defendant comes in by Capias, and after, appearance make default, a new Capias; if upon Exigent, a new Exigent; and upon second appearance shall plead de novo, for the first Issue is sine die. Arraignment. 1. IN what manner a Person is to be Arraigned? The Prisoner, all the time of his Arraignment ought to be in Iron. 2. Where Arraignment upon several Appeals or Indictments. If a man be appealed of Robbery or Death at the Suit of one, he shall be Arraigned and Tried at Suit of another, because they have several in the Judgements. And now the same Law is of an Indictment of Robbery, because by Stat. 21 H. 8. c. 11. the party is to have Restitution. But if Appeal by one be not commenced till after Attainder at Suit of another, he shall not be Arraigned upon the other Suit; but if the first Attainder be pardoned, he shall be Arraigned upon the second Appeal commenced after Attainder. But after Attainder of Felony, he may be Arraigned of Treason for King's Interest. By the Common Law, a Clerk convict should have answered all Felonies, and were acquit or convict at Suit of others. But this was remedied per Stat. 25 E. 3. c. 4. per Clero, and therefore after that Stat. the Clerk convict and delivered to the Ordinary, was discharged of all former Felonies whereof he was not Arraigned before Clergy, and that those, though other Offences were not, within Clergy. Dyer 214. But now by Stat. 8 El. c. 4. after Purgation, and 18 El. c. 7. after burning in the hand, he shall be put to answer former Felonies upon Appeal or Indictment. 3. Concerning Arraignment of Principal and Accessary. 1. Who shall be said an Accessary? 1. Who an Accessary Before. After. 1. In Treason no Accessaries, but all Principals; a Procurer before, or a Receiver knowingly after, C.P.C. p. 138. is guilty as Principal in High Treason. 2. Where an Act of Parliament makes a Felony, it doth incidently make such Accessary as would be Accessary before or after to a Felony at Common Law, as in Case of Buggery, Rape, etc. 3. Accessary cannot be guilty of Petty Treason where Principal but Murder. 4. If divers come to commit an unlawful act, and be present at time of Felony committed, though one of them only doth it, they are all Principals. So if one present move the other to strike. And now to pursue the point where Clergy allowable in Robbery. 1. From the Person Without putting in fear, but clam & secret: by Stat. 8 El. c. 4. Principal in all cases oust of Clergy, Accessary not oust. With putting in fear Robbery in or near the Highway. 1. Principal in all cases oust of Clergy, viz. Appeal or Indictment by 23 H. 8. c. 7. Convict 23 H. 8. c. 1. Attaint 1 E. 6. c. 12. Challenge above twenty by Stat. 25 H. 8. c. 3.5 & 6 E. 6. c. 14. 2. Accessary before oust of Clergy in all cases by 4 & 5 Ph. & Ma. c. 4. 2. From Dwellinghouse; and this of three kinds: 1. Owner, wife, or servants being in the house, or put in fear, here Clergy taken away. 1. As to Principal, taken away per 23 H. 8. c. 1. in case of Conviction by Verdict, or Confession, and per 25 H. 8. c. 3. revived, and per 5 & 6 E. 6. c. 10. In cases of standing mute, challenge ultra twenty, not directly answering: Also to a Conviction in foreign County, if it appear by Examination not to be within Clergy in the same County. 2. Accessaries before in all cases ousted of Clergy per Stat. 4 & 5 Ph. & Ma. c. 4. Note, A Stranger in the house brings it not within Statute. 2. Robbing any person by day or night, any person being in the same house, and put in fear. Principals oust of Clergy per 1 E. 6. c. 12. in all cases but challenging twenty; and by it 5 & 6 E. 6. in a foreign County Clergy upon Examination taken away. Accessaries, Clergy taken away per 4 & 5 Ph. & Ma. c. 4. in all cases. 3. Robbing any person in his Dwellinghouse, the owner, his wife, or children being in any part of the house, or within the precincts thereof, though they be not put in fear, and this extends to Booths in Fairs. Principal oust of Clergy per 5 & 6 E. 6. c. 9 in cases where Offenders found guilty: Principals therefore in other cases shall have Clergy; as standing mute, challenge ultra twenty. Accessaries oust per Stat. 4 & 5 Ph. & Ma. c. 4. 4. Robbery to the value of 5 s. out of any Dwellinghouse or Outhouse thereunto belonging, though none in the house, per Stat. 39 El. Principal oust of Clergy in case of Conviction, not of standing Mute. Accessaries shall have Clergy. 5. Larceny without any of these Circumstances. Horse-stealing oust of Clergy, per 1 E. 6. c. 12.2 & 3 E. 6. c. 32. Principal oust of Clergy. Accessaries ousted in no cases. 31 El. 12. oust Clergy d'Accessary. But other Larceny, not being Robbery or Cutpurse, have Clergy. 6. In Rape, Clergy oust per St. 18 El. c. 7. 7. Though the Offence were within Clergy, yet if he had formerly been Convict and burnt in the Hand, the Stat. of 4 H. 7. c. 13. ousts of Clergy, unless he were a person in Orders, and then he must produce his Certificate presently, or by a time prefixed. And see the Stat. 34 & 35 H. 8. c. 14. for the manner of the Certificate of such Conviction and Attainder. And though Stat. of 32 H. 8. c. hath put men in Orders in the same condition with others, in reference to Clergy; yet as to this point the Stat. 4 H. 7. the clause of the Statute 1 E. 6. c. 12. doth give a person in Orders his Clergy the second time in all cases, but 1. challenge above twenty; 2. Outlary. 3. When Clergy shall be allowed. Now the use is not to put party to challenge Clergy till he hath pleaded, and Inquest thereupon taken. 1. For advantage of party if acquitted. 2. For advantage to King; for forfeiture if Convict. 2. It may be allowed in Discretion, though party challenge not. Allowed under Gallows, or where Judgement pain fort & dure given, or where challenge above twenty, vid. Cr. Jur ' 12 pag. Allow south Gallows per Just B. R. mesne Goal Delivery mes puit apres Judgment devant adjournment, Dy. 205. 4. The Judge. The Ordinary is but Minister, the Judge at Common Law is the Judge when and where to allow of Reading. In ancient time the Consequent was delivery to Ordinary, either to make Purgation, or absque Purgatione, as case required. But by Stat. 18 El. c. 7. now only burnt in the Hand, which hath these effects; 1. Enables Judge to deliver him out of Prison; but yet if he see cause, he may detain him till he find Sureties of good behaviour, per Stat. 3 H. 5. c. 1. If Clergy within year, he is to be bailed or committed at discretion, till year be past. 2. It gives him a Capacity to purchase Goods, and retain the profits of his Lands. But the Goods he had at time of Conviction are forfeit. 3. It restores him to his Credit. Hob. Rep. Searle's Case. Pleas to Felony. DEMURRER. 2. Pleas in Abatement and Barnes 3. General Issue. 1. For Demurrers. It amounts to a Confession of th● Indictment, as laid; therefore if Indictment good, Judgement against Prisoner, and Execution. 2. For Pleas in Abatement. St. P.C. 181. If Prisoner plead Misnomer of his Surname unto an Appeal, it goes in Abatement; but in case of Indictment he shall be put to answer the Treason or Felony. 1 H. 5.5. But Misnosmer of the Christian Name goes in Abatement; and if it be confessed by King's Attorney, as found, Indictment falls. 11 H. 4. Coron. 88 But then he must give his true Name, and by that Name he may be forthwith Indicted. Pleas in Barr. Auterfoits Acquit. If a person be acquit upon an insufficient Indictment or Appeal, yet upon a new Indictment he may be Arraigned upon the same Felony. 4 R. Vauxes Case. St.. P.C. 106. 2. Auterfoits acquit for the same Felony, no Bar to an Indictment or Appeal of another Felony, etc. though committed before Acquittal. 3. Auterfoits acquit as Principal, no Bar to an Indictment against, him as Accessary to the same Felony after; but it seems he cannot be Indicted as Accessary before. 4. In an Appeal of Death or other Felony, Auterfoits acquit, upon an Indictment for the same Felony, was a good Bar in all Cases; therefore if an Appeal was pending, Court would cease Arraignment of Prisoner upon an Indictment till it was determined: Or though no Appeal pending, yet in case of death, would surcease till year past. But at this day Auterfoits acquit in an Indictment of Death no Bar to an Appeal, per Stat. 3. H. 7. c. 1. for the Prisoner notwithstanding the Acquittal; but in other Appeals that stands Bar to an Appeal. 5. But Auterfoits acquit in an Appeal, Barr to an Indictment of same Felony. 1. Unless Appeal be Erroneous in Substance. 2. Unless Appeal be by a wrong Person. 3. Appeal be by Battle, and in these cases he may be Indicted again. 6. He that pleads this Plea, need not have Record in poigne, because it goes in Barr. 7. Though there be variance between Indictment, etc. if it be such as may admit of an Averment, there it may be pleaded. Variance in the Name if Conus per un name & altar, variance in day of Felony supposed to be committed. Variance in the place, but by Opinion 4 H. 5. acquit of Larceny in one County no Bar in another. Auterfoits Convict or Attaint. 1. Where a Bar to the same Felony. 1. Auterfoits attaint a Bar to an Indictment, for the Effect is to obtain the death of the party; but vid. no Bar in Appeals. C.P.C. 213. 2. Auterfoits convict by Verdict or Confession of Manslaughter in an Indictment, and had Clergy, Barr in Appeal, though it be of Murder, 4 E. 45. ●igg's Case. forfeit the same in both, though differ in degree. 2. Where a Bar to an Arraignment for another Offence. C.P.C. 107. 1. Auterfoits attaint of Felony no Bar to Arraign him of Treason committed before Felony for King's Interest. And it seems if Treason was committed after Felony, C.P.C. 213. than he shall be Arraigned of the Treason, for the Offence is different. 2. Auterfoits attaint of one Felony bar to an Arraignment of Felony: but this hath these Exceptions: 1. Where the first Attainder is pardoned, S.P.C. 66.107. there he must be Arraigned of the former Felony, though omitted before. 2. In case of Appeal he shall be Arraigned at every one of their Suits, notwithstanding he be Attainted at one Suit. The like it seems upon Indictment of Robbery, because per Stat. party is to have restitution. 3. Auterfoits convict, and had Clergy after Stat. 25 E. 3. c. 5. had been a bar to an Arraignment of another Felony, though not within Clergy. Dy. 214. But now per Stat. 8 El. c. 4. after Purgation, and 18 El. c. 7. burning in the Hand, he shall be put to answer former Felonies not within Clergy. And note, he that pleads a Plea in bar to an Indictment or Appeal that confesseth not the Felony, shall plead over to the Felony; otherwise if it confesseth Felony, as Pardon or Release. Pardons. ARE either of Course or Right, such are 1. For a person Convict of Manslaughter, or se defendendo. 2. An Approver that vanquisheth Appellee. Pardons of Grace, some things requisite to their allowance per Stat. 1. Per Stat. 13 R. 2. c. 1. Pardon of Murder, Rape, or Treason must be especially expressed in the Pardon, otherwise it ought not to be allowed in such cases. 2. Per Stat. 10 E. 3. c. 2. there must be Surety of good bearing, otherwise Charter void; but special Non obstante may prevent it. Matter at Common Law considerable. 1. Charter of Pardon no bar of an Appeal; and if party be Outlawed in Appeal, and King pardon, he shall have a Scire Facias against Appellor, who may pray Execution notwithstanding such Pardon; but if ret' feci, and appears not, that Appellee shall upon Pardon be discharged. 2. Pardon of all Felonies is no bar to Exceptions, if the Felon be Attaint; yet an Exception of all Burglaries, except the Burglary for which the party is Attainted. 3. Pardon of all Attainders not good with a Pardon of the Felony. 4. The Pardon of Felony reciting in the Pardon that the party is Indicted, and he is not, this is void. 5. King may pardon the burning in the hand in Appeal. Pleading the Pardon. HE that pleads a General Pardon by Parliament, wherein are Exceptions, must aver that he is none of the persons excepted. But of General Pardon by Parliament without Exception Court ex Officio must take notice. He that pleads a Particular Pardon, 1. Must show it under Seal. 2. Must have a Writ of Allowance. 3. If vary, must aver that the same person. Thus far of Pleas in Bar upon Indictments or Appeals; now we come to Pleas to the Fact, Not Guilty. 1. Regularly he that pleads any special matter in Bar in Cases Capital, that confesseth not the Felony, notwithstanding the Plea found against him, the Felony shall be enquired of, and therefore he shall plead over to the Felony. 2. The immediate consequent to this Plea is Trial, and that is either By Country. Peers. Battle. 1. Concerning Trial per patriam; and therein, 1. Where Issues tried. 2. What Process against Jury. 3. Before whom. 4. Challenge. 5. Evidence to be given. 6. Verdict. Trial. 1. WHERE Tried. 1. For Trial of foreign Treasons and foreign Accessaries, or strokes in one County, and death in another, v. supra in Indictments. For Trial foreign Pleas per Stat. 20 H. 8. c. 14. made proper to all, 32 H. 8. c. 3. Foreign Pleas pleaded by a person Indicted of Felony, and Triable per County, shall be tried where party is Arraigned; but it is now in Treason triable in foreign County by vertute of Stat. 1 & 2 Ph. & Ma. Process against Jury. 1. Justices of Goal Delivery have their Panel returned by Sheriff, without any Precept, by a bare Award; but Justices of Oyer and Terminer not. 2. Per bon Opinion, Justices of Peace, and Oyer and Terminer, cannot make their Venire Facias to try any Issue retornable the same Sessions; but Justices of Goal Delivery clearly may. 3. If several persons Arraigned upon an Indictment or Appeal, and they severally plead Not Guilty, Plaintiff may take out one Venire Facias, or several. 4. If Venire Facias be joint, and Challenge by one drawn against all. 5. Though Panel be joint, and Tales awarded, yet Court of Goal Delivery may after send the Panel to prevent that Encumbrance. 6. In Appeals, if after Issue, Plaintiff tries it not, a Venire Facias by Proviso may be for Defendant; yet upon a Venire Plaintiff may have a Tales. Tales. 1. If a full Jury appear not, or be Challenged in Indictment or Appeal, Plaintiff may have a Tales. 2. Upon Indictment or Appeal, because Defendant may challenge peremptorily, Tales may be granted larger than principal Panel, as forty Tales, 14 H. 7.7. 3. But succeeding Tales must be less than former, unless the former be quashed, and then the same number with that which is quashed. 4. If any of Jury die before sworn, a new Tales grantable. Before whom. 1. A Nisi prius not grantable where King Party, unless prayed by Attorney. 2. Per Stat. 14. H. 6. c. power to Justices of Nisi prius to give Judgement in Felony and Treason tried before them. 3. Per Stat. 42 E. 3. c. 7. Enquest in Assize and Goal Delivery may be taken before the Panel returned in that Court, but not in other Cases. Challenge of Array or Polls. 1. EX parte Regis per Stat. 33 E. 1. c. King shall not Challenge without Cause; but yet he is not compellable to show cause till Panel perused. 2. Ex parte prisonarii, the Challenge is either Peremptory, or upon Cause. I. Peremptory Challenge. 1. Peremptory Challenge not allowable, but when life of Prisoner comes in question, and therefore not upon Collateral Issues. 2. At Common Law he might have challenged peremptorily 35 under three full Juries; and if he challenged above, he should have Judgement to be hanged, 3 H. 7. 12. But per Stat. 22 H. 8. c. 4. made perpetual, S.P.C. 227. by 32 H. 8. c. it is reduced to 20; and now if he Challenge above 20, he shall not be hanged, but his Challenge overruled, and he put upon his Trial; yet vid. Statham Coron' contr'. 3. In Cases of Treason and petty Treason, the Challenge of 35 restored per Stat. 1 & 2 P. & M. c. 10. II. Challenge for Cause, we mention but 1. 'Cause of insufficiency per St. 2 H. 5. c. 3. 40 s. per Ann. required in County; but this, as to Aliens, corrected by 8 H. 6. and ultra in Cities by Stat. 23 H. 8. c. 13. Goods to value of 40 l. 2. Unindifferency. Indictors not to be of Jury per Stat. 25 E. 3. c. 3. 3. In reference to an Alien, & medietat' linguae, where 1. In no Case Indicator ought to be de medietat' linguae. 2. In Treason trial per medietat' linguae rep. per St. 1 & 2 Ph. & Ma. quaere ad Appeal 28 E. 3. in that Case. 3. In Appeal an Alien against an Alien no medietat' linguae. 4. Scot no Alien, to have medietat' linguae. 5. Jurors need not be of same Nation, but any Aliens. 6. He that will have advantage of Trial per medietat' linguae must pray it, otherwise he cannot have benefit by way of Challenge. Dy. 304.357. 7. Egyptians excluded from the Trial per 1 & 2 Ph. & Ma. c. 4. Evidence to petty Jury. 1. IN Case of Treason There must be two Accusers or Witnesses per Stat. 1 E. 6. c. 12. & 5 E 6. c. 7. and this stands notwithstanding Stat. 1 & 2 Ph. & Ma. c. 11. but only in Case of Treason for Counterfeiting Coin. Those Witnesses must be only by hearsay. 2. In Case of Felony. 1. What allowed as Evidence. per Stat. 1 & 2 Ph. & Ma. c. 13. & 2 & 3 Ph. & Ma. c. 10. the Justices have power to Examine Offenders and Informers. 2. The Examination of the Offender not upon Oath, but Subscribed by him. 3. Examination of others must be upon Oath. 4. This must be certified by Justices. 1. If it be a small Felony, to Sessions. 2. If it be a great Felony, etc. to next Goal Delivery. 5. These Examinations, if persons dead or absent, may be given in Evidence. But Prudence to have the Justice or his Clerk sworn to truth of Examinations. 6. But Examinations taken upon Cause of Divorce for a forcible Marriage, not allowed to be read upon an Indictment upon 3 H. 7. for same Marriage. 2. By whom. 1. Wife, or her Examination, not to be used for or against her Husband. 2. The Examination of an Infant of Thirteen, nay of Nine, allowed in some Cases. 3. One Attaint of Conspiracy, Forgery, or Perjury not allowed a Witness. C.P.C. 219. 4. One duly set on Pillory. 3. In what manner. 1. Evidence for King always upon Oath, but Evidence for Prisoner not upon Oath; yet no known Law that restrains it: But by some Statutes in some Cases, Evidence for Prisoner upon Oath, as 31 El. c. 4. 4 Jac. c. 2. The Confession of the Offender taken upon Examination, Evidence with Oath not of the Informer. 4. Where Evidence maintains the Indictment. 1. If the Indictment be of a Felony at one day, though the Evidence be of another day, the Jury may find generally against Prisoner, and leave the person that is interessed in point of time to falsify; or the Jury may find the true day upon their Verdict, and then the forfeiture shall relate thither. 2. If the Indictment lay the Felony at one place, the Evidence proving the Fact at another place in the same County, maintains the Indictment. 3. If the Indictment and Evidence differ in specie mortis, than it maintains it not as Indictment of Poisoning, Evidence of stabbing maintains it not. C.P.C. 135. But if the Indictment be of poisoning with one kind of Poison, and the Evidence of another; or if the kill with a Dagger, and the Evidence is of killing with a Staff, 9 R. Macks C. there it maintains the Indictment, for it agrees in substance and kind. The like of Accessary before, though Poison or Weapon differ. 4. Indictment that A. gave a mortal blow, and B. C. and D. were presents abettantes, Evidence that B. gave the blow, and A. C. and D. presents & abettantes, yet it maintains the Indictment. 5. Indictment of A. as Accessary to B. and C. Evidence proves him only Accessary to B. maintains the Indictment. 9 R. Sanchers. 6. Indictment of Murder, ex malitia praecogit ', Evidence of malice in Law, as killing an Officer without provocation, yet maintains the Indictment. 7. Evidence upon Statute of stabbing, 21 Jac. Evidence that the dead stroke first, yet Evidence to mantain Indictment, 23 Car' howard's. 8. Two Indicted as Principals, Evidence proves one as Accessary before, he shall be discharged of that Indictment. 28 H. 8.5. 9 Vid. Stat. 21 Jac. c. 27. Mother endeavouring to conceal the death of her Bastard-child, shall suffer death as in case of Murder, unless she prove by one Witness that Child was born dead. Vide Act. 17 Car. infine, for the further Relief of his Majesty's Army in the Northern parts, Act continued till end of next Sessions, continued over till some Act of Parliament for their continuance or discontinuance. Verdict. VERDICT in Cases Capital. 1. It must be given, St.. P. C. 165. and Jury cannot be discharged till it be given. 2. It must be given openly in Court, and no privy Verdict. 3. It may be found Specially, as an Indictment of Murder, the Jury may find him Guilty 1. Of Manslaughter. 2. Per Infortunium. 3. Se Defendendo. But than it must find the manner of it, that Court may Judge thereof; so to the value or manner of the Larceny. Now we should come to Trial By Battle. Process. Vide the whole Process there of, C.P.C. 27. Judgement in several Cases. I. IN High Treason. In all Cases, C.P.C. 218, 219. except Counterfeiting Coin, Drawn, Hanged, Entrails taken out and burnt, Head cut off, Body quartered, and Quarters hanged up. 2. In Counterfeiting Coin. Drawn and Hanged; but the Judgement of Women in those Cases is Drawn and Burnt. II. In Petty Treason. 1. For a Man, Drawn and Hanged. 2. For a Woman, Drawn and Burnt. III. In Felony. Hanged till Dead, and this cannot be altered by King to Beheading. IV. In Petty Larceny. To be Whipped, Forfeits Goods. V. Death per Infortunium. No express Judgement, yet Forfeits Goods. VI Death se defendendo. No express Judgement, yet Forfeits Goods. Misprision of Treason. Forfeits Goods, Forfeits Profits of Land, during Life perpetual Imprisonment. Vide for Seizure of Goods. 1. Not before Indictment. 2. Not removed before Attainder. 1 R. 3. c. 3. Falsifying of Attainders. 1. BY the Party, by Writ of Error. 2. What others may falsify it? 1. A Purchaser may falsify an Attainder of the Felon by Outlary or Confession in this point, if he Purchase before Attainder, and after time of Felony supposed. 2. A Purchaser mesne between the time of Felony committed and the Attainder, by Verdict cannot falsify in point of Offence, but he may for the times. 3. If Attainder was by such as had no good Commission, the Party; himself may falsify Attainder, Cas. Com. Leicest. 4. If the Principal Attainted, and then Accessary and Principal reverse the Attainder, the Attainder of the Accessary is eo ipso avoided, and his Heirs may have Mortdanc ' against Lord per Escheat. 5. Attaint of Treason, and then the Treason is pardoned by Act of Parliament, the Party or his Heir shall falsify Attainder. 6. In Case of Goods 1. Fugam fecit found by Coroner cannot be falsified, though upon his Arraignment it be found he did not fly; but if Indictment be void or insufficient, no Forfeiture. 2. A man Indicted before Justices of Oyer and Terminer acquit by Verdict, St. P.C. 148. and found he fled, and the particulars of his Goods found, they may be Traversed. 3. Default till Exigent, though after acquitted, Goods Forfeited; for it is a fugam fecit in Law. But if the Indictment, Appeal, or Process insufficient, their Forfeiture saved; so if it be reversed by Error, or pardoned before Exigent. Memorandum, Flight or Exigent in case of Petty Larceny, Forfeits Goods. Execution and Reprieve. 1. EXECUTION must be pursuant to Judgement, C.P.C. 212.217. and cannot be altered by King, as from Beheading to Hanging. 2. 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