Dom: Rex vs. Richardson and Wilmot Upon an Indictment for Murder
1st. To open the Defence with a proper Address to the Jury to remove all popular Prejudices and Passions and engage them to make a fair, candid and impartial Enquiry and to give their Verdict agreeable to Law and the Evidence, uninfluenc'd by any other Motive; to mention the manner of my becoming engaged as Council for the Prisoners, explain my Duty and the Part I ought and am determin'd to act.
2d. The Witnesses for the Crown having been carefully and thoroughly cross-examined, to produce those for the Prisoners, and endeavour to find out what the Nature and Degree of Provocation offered; how far the Attack upon the house was carried; Whether and to what Degree the Windows were demolished before the firing, and whether the Door was broke open, and any Attempt made upon it; whether any actual Attempt was made to enter; or any Evidence of such Design from threatning Words; Whether Men as well as Boys were not concerned in that Attack; What Weapons were used or thrown into the house; and whether any One within was wounded; and upon the whole whether this is not to be consider'd as an Attack upon the Persons of the Prisoners.
3d. To sum up the Evidence and state the Facts as they shall appear upon Evidence.
4thly. To explain the Nature of the Crime of Murder and the different Kinds of Homicide, as justifiable, excusable (as se defendendo) and felonious: and to shew the Distinction between felonious Homicide of Malice prepense, which is properly Murder, and without
such Malice, which is Manslaughter. Foster 273. 4. 7.2
1. H.H.P.C. 449.3
4 Black. Com: 18.104.22.168
The Crime in the present Case cannot at most amount to more than Manslaughter,
as he was in his house peceably and there assaulted, by breaking his Windows and throwing Stones at him. And if an Intent to enter and commit a Felony appear, whether from threatening Words, or an Attempt to break the Door or the manner and Degree of the Attack, it is excusable Homicide Se defendendo, at least, if not justifiable. A Man's house is his Castle and he may defend it by himself alone or with such as he calls to assist him. 1 H.H.P.C. 445. 487.5
5 Coke Repts. 91b. Semane's Case.6
11 Coke Repts. 82b. Lewis Bowles Case.7
A Man is not obliged to retire from his house. 1 H.H.P.C. 486.8
So he may justify killing one that attempts to break open his house in the Day time
with an attempt to Rob or commit other Felony. 4 Black: Com. 180. 3. 182.9
1 H.P.C. Page 71 Chap. 28 Sect. 21 and by Sect. 23 of this and Sect. 13 of the next Chap. it appears that ware
one kills another who assaults him in his house in the Day Time with
Intent to beat him
only is guilty of Homicide Se defendendo
and if he appears to have a Design of killing him it is justifiable Homicide. Vid. Sect. 124.10
Vide also Hales P.C. 40 the reason why it is not justifiable but excusable only is that “they came not to commit a known Felony,” and “it cannot be judged whether he meant to kill me.”
But if a man in the Daytime
breaks the Windows of the house of another and endeavours to enter in order to execute a civil Process,
and he within kills him this is Manslaughter and no more.
Cooks Case in Cro. Car.
: 537. 8.12
And it appears by Lord Hales brief State of this Case 1 H.H.P.C. 458 that had Cook not known the other to be a Bailiff, it had been no Felony because done in Defence of his house.
So if A endeavours to enter a house and shoots an arrow at those within and B shoots another out at those who wou'd enter and kills one of the Company. This is ruled not to be se defendendo,
because there was no Danger of their Lives
by the Arrow so shot into the house upon them. Harcourts Case 1 H.H.P.C. 485. 6.14
Vid. also the Case of Dra[y]
ton Basset in 1 H.H.P.C. 440. 1 and also in Page 444. 5 which shews who shall be said to be present, aiding, abetting &c.15
If upon angry Words one man assault another either by pulling him by the Nose or even filliping him upon the Forehead, and he who is so assaulted immediately runs the other through, it is but Manslaughter,
for the Peace is broken by him that is killed; and he that receives such Indignity may reasonably apprehend a further Design upon him; Maugridges Case, in Keyling's Repts. 135 adjudged and reported by Lord Holt.16
D. Williams on a sudden and slight Provocation only of Words kills Marbury, ruled to be only Manslaughter, 1 H.H.P.C. 469 and in 470,17
another Case mentioned also by Foster 298. 299 where no
given but an Officer had violently entered a Room to make an arrest.19
Two Boys fight, one is beat and runs home blody and complains to his Father who goes three quarters of a mile and kills the other Boy ruled to be Manslaughter by Reason of the sudden heat &c. 1 H.H.P.C. 453 Rowley's Case taken from 12 Coke Repts. 87.20
Vide also a Case in Strange Repts. 499 &c. ruled to be manslaughter only a strong Case.
On a sudden Affray or Quarrel if the Party has declined the Combat and retreated as far as he Can with Safety and kills his Adversary thro' Necessity and to avoid immediate Death, it is Se defendendo;
but if the Combat on both sides is kept up to the time the mortal Stroke is given, and he who gave it was not at that Time in emminent Danger of Death it is Manslaughter, Foster 277.22
A Woman strikes Stedman a Soldier who returns the Blow with the pummel of his Sword. She fled he pursued and stabbed her in the back this ruled to be no more than Manslaughter: by Holt. Foster 292.23
Vide the general Observation by the same author Page 296 which
If A shoots at B misses him and kills C, if it wou'd have been Murder supposing he had killed B; it will amount to the same Offence, tho' C is killed, whom he did not intend to hurt. On the other hand if the Blow intended against B arose from a sudden Transport of Passion which if B had died by it wou'd have reduced the Offence to Manslaughter, the Fact will admit of the same Alleviation
if C shou'd happen to fall by it. Foster 261. 2.25
1 H.H.P.C. 442.26
By Foster 295 Sect. 3d. it is apparent that tho' base Words of Reproach or Gestures are not such Provocation as to lessen the Crime to Manslaughter. Yet when there is any assault on the Person arising from thence, it is otherwise: This Distinction appears from Maugridges Case:27
Whenever the Assault is very slight, as two persons justling against a Wall A kills B who had justled him, or if B had
whipt A's horse out of the Path and A had alighted and killed B, it had been only Manslaughter, 1 H.H.P.C. 455. 456.28
Where it also appears that Words of Menace of Bodily harm
wou'd reduce the Crime to Manslaughter, though Words of Reproach only, woud not.29
Vid. these Distinctions 1 Hawkins P.C. Page 82 and 83 Sect. 34. 35. 36. 37.30