with one E. F. and a certain man yet unknown, in and upon the said E. F. violently, feloniously, and of his malice aforethought, did make an assault; and that the said A. B. with the help and assistance of the said man unknown, with a pocket handkerchief, with a coal in the same being put, of the value of twopence, about the neck of him the said E. F. then and there feloniously, voluntarily, and of his malice aforethought, did put, fasten, and bind, and that the said A. B. with the help and assistance of the said man unknown, with the said handkerkerchief, with the coal aforesaid in it, about the neck of the aforesaid E. F. then as aforesaid put, fastened, and bound him the said E. F. then and there with force and arms, feloniously and of his malice aforethought, did choak and strangle, of which choaking and strangling of the said E. F. he the said E. F. then and there instantly died. (Conclusion as in pr. 13.) 27. Indictment for murder, where the death was occasioned by wilfully riding over a person with a horse. (Commencement as in pr. 13.) And that the said A. B. then and there riding upon a certain horse, of the price of twenty pounds, the said horse in and upon the said E. F. then and there feloniously, wilfully, and of his malice aforethought, did ride and force, and him the said E. F. with the horse aforesaid, then and there, by such riding and forcing, did throw to the ground; by means whereof the said horse, with his hinder feet, him the said E. F. so thrown to and upon the ground as aforesaid, in and upon the hinder part of the head of him the said E. F. did then and there strike and kick, thereby then and there giving unto him the said E. F. in and upon the said hinder part of the head of him the said M. B. one mortal fracture and contusion; of which said mortal fracture and contusion he the said E. F. then and there instantly died. (Conclude as in preced. 13.) 28. By casting a stone. (Commencement as in pr. 13.) And that the said A. B. a certain stone, of no value, which he the said A. B. in his right hand then and there had and held, in and upon the right side of the head, near the right temple, of her the said M. then and there feloniously, wilfully, and of his malice aforethought did cast and throw; and that the said A. B. with the stone aforesaid, so as aforesaid cast and thrown, the aforesaid M. in and upon the right side of the head, near the right temple, of her the said M. then and there feloniously, wilfully, and of his malice aforethought did strike, penetrate, and wound; giving to the said M. by the casting and throwing of the stone aforesaid, in and upon the right side of the head, near the right temple, of her the said M. one mortal wound, of the length of one inch, and of the depth of one inch, of which said mortal wound she the said M. (state the languishing, and conclude as in pr. 13.) 29. Indictment for felony and murder by stabbing with a knife. (Commencement as in pr. 13.) And that he the said. A. B. with a certain knife, of the value of sixpence, which he the said A. B. in his right hand then and there had and held, the said J. M. in and upon the left side of the belly, between the short ribs, of him the said J. M. then and there feloniously, wilfully, and of his malice aforethought, did strike and thrust, giving to the said J. M. then and there, with the knife aforesaid, in and upon the aforesaid left side of the belly, between the short ribs of him the said J. M. one mortal wound, of the breadth of three inches, and of the depth of six inches, of which said mortal wound (state the languishing or immediate death, according to the fact, and conclude as in pr. 13.) 30. Indictment against the driver of a cart for manslaughter. (Commence as in pr. 13. to *.) In the king's highway there, in and upon one E. F. feloniously and wilfully did make an assault, and a certain cart, of the value of five pounds, then and there drawn by two horses, of the value of ten pounds, which he the said A. B. was then and there driving in and along the said highway, in and against the said E. F. feloniously did force and drive, and him the said E. F. did thereby then and there throw to and upon the ground, and did then and there feloniously force and drive one of the wheels, to wit, the off wheel of the said cart, against, upon, and over the head of him the said E. F. then lying upon the ground; and thereby did then and there give to the said E. F. in and upon his head, one mortal fracture and contusion, of which the said E. F. then and there instantly died. (Conclude as in pr. 14.) 31. Indictment under the statute 1 J. 1. c. 8. s. 2. for felony by stabbing (a). (Commence as in pr. 13.) And that the said A. B. with a certain drawn sword, of the value of five shillings, which he the said A. B. in his right hand then and there had and held, the said E. F. in and upon the left side of the neck of him the said E. F. the said E. F. then and there not having any weapon drawn, and (b) not having then first stricken the said A. B. then and there feloniously did strike, stab, and thrust; and that the said A. B. with the sword aforesaid, to the said E. F. in and upon the left side of the neck of him the said E. F. one mortal wound, of the breadth of three inches, and of the depth of six inches, then and there feloniously did give; of which said mortal wound the said E. F. then and there instantly died. (Conclude as in pr. 14 (c).) (a) The enacting words are, "shall stab or thrust any person that hath not then any weapon drawn, or that hath not then first stricken the party, which shall so stab or thrust." The offender is ousted of clergy upon conviction, if the party stabbed die within six months after the stroke, although malice prepense be not proved. But this stat. has been holden to be but declaratory of the common law. Kel. 55.1 Hale, 456. Fost. 298.; and therefore the same circumstances, which will justify, excuse, or alleviate at common law, will have their weight in prosecutions grounded on the statute. (b) It seems that both these allegations are necessary, 1 Hale, 68.; for though the exceptions are disjunctively stated, this is plainly contrary to the sense of the statute. (c) It is unnecessary to conclude against the form of the statute, since the offence is felony at common law. See 1 Hale, 468.; but the conclu sion would not be improper. As to the intention of the legislature in making this statute, see p. 80. 32. Indictment for the murder of a bastard child (e.) That A. B. late of, &c. spinster, on, &c. being big with a male (f) child, the same day and year, at, &c. by the providence of God, did bring forth the said child alive (g), of the body of her the said M. alone (h) and in secret; which said male child, so being born alive, by the laws of this realm was a bastard; and that the said A. B. afterwards, to wit, on, &c. as soon as the said male bas (e) By the stat. 43 G. 3. c. 58. repealing the stat. 21 J. 1. c. 27. from and after the said first day of July, in the said year of our Lord one thousand eight hundred and three, the trials in England and freland respectively of women charged with the murder of any issue of their bodies, male or female, which being born alive would by law be bastard, shall proceed and be governed by such and the like rules of evidence and of presumption, as are by law used and allowed to take place in respect to other trials for murder. § 4. Provided always, and be it enacted, That it shal! and may be lawful for the jury, by whose verdict any prisoner, charged with such murder as aforesaid, shall be acquitted, to find, in case it shall so appear in evidence, that the prisoner was delivered of issue of her body, male or female,which, if born alive, would have been bastard, and that she did, by secret burying, or otherwise, endeavour to conceal the birth thereof; and thereupon it shall be lawful for the court, before which such prisoner shall have been tried, to adjudge that such prisoner shall be committed to the common gaol or house of correction for any time not exceeding two years. (f) The sex is material. (g) If upon view of the child it be testified by one witness, by apparent probabilities, that the child was not come to its debitum partûs tempus, as if it have no hair or nails, or other circumstances, this (says Lord Hale) I have always taken to be a proof by one witness, that the child was born dead, so as to leave it nevertheless to the jury, as upon a common law evidence, whether she were guilty of the death or not. (h) These words do not appear to be necessary. In order to warrant the confinement under this section, it seems to be necessary to charge, that the child was born a bastard, but that the concealment need not be averred. tard child was born, with force and arms, at, &c. in and upon the said child, feloniously, wilfully, and of her malice aforethought did make an assault; and that she the said M. with both her hands about the neck of him the said child then and there fixed, him the said child then and there feloniously, wilfully, and of her malice aforethought did choak and strangle, of which said choaking and strangling the said child then and there instantly died and so the jurors aforesaid, upon their oath aforesaid, do say, That the said A. B. him the said male bastard child, in form aforesaid, feloniously, wilfully, and of her malice aforethought, did kill and murder, against the peace, &c. ASSAULTS. 33. Common commencement. Lancashire, to wit. The jurors for our lord the king upon their oath present, that A. B. late of C. in the county of L. labourer, on the in the day of year of the reign of our sovereign lord George the third, by the grace of God, of the united kingdom of Great Britain and Ireland, king, defender of the faith, with force and arms, at the parish of D. in the county aforesaid,* in and upon one E. F. did make an assault. Commencement of a subsequent count. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said A. B. on, &c. with force and arms, at, &c. in and upon the said E. F. did make an assault, &c. Conclusion. And other wrongs to the said E. F. then and there did, to the great damage of the said E. F. against the peace of our said lord the king, his crown and dignity. |