Jurisdictions, Part 34
The ſecond branch in the Charge is Felony, and for that ſomthing is to be ſaide, what are Felonies by the common Law and what not.
IF one ſhoote at Butts, and kill a man by ſwarving of his hand, it is no Felony for which he ſhall dye, the ſame Law of tiling a Houſe and a ſtone fall and killeth one, but if he hurt one, treſpaſſe lieth, 22. H. 7.29.
If one ſhoot at Pricks, and his hand ſwarve, and he kill one, it is no Felony for which he ſhall dye, and for that which is not voluntary he ſhall have a pardon of courſe, but if he hurt one it is a treſpaſs, though it be againſt his will, and ſo it is where one cuts a Tree upon his own Land, and that falleth upon anothers Land againſt his will, it is a Treſpaſs, 6. Ed. 4. fol. 7.
One cuts a Purſe with three ſhillings in the ſame, and looſeth his right Thombe, and ſo it is inquirable in Leet as Treſpaſs, and not as Felony now by the Statute, 10. H. 3. tit. 434.
If one feloniouſly in the night burne a Barne adjoyning to a Houſe, it is Felony, 11. H. 7. fol. 1.
To play at Sword and Buckler together, and one killeth the other, it is Felony, otherwiſe it is if they play together by the Commandement of the King, and one kill the other, 11. H. 7. fol. 23.
If one reſiſt a Felon which would rob him, and kill the Felon in reſiſting him, it is no Felony, and he need no Charter of pardon, 22. Aſſiſe 55.
If a Theife kill a Merchant, and his Servant in purſuing haſtily the Theife kill him, it is no Felony in the Servant, 21. H. 7. fol. 26. Aſſiſe. 33.
If one be preſent when one is murdered, if he do not ſtrike nor aid him, nor conſent, nor cauſe him to do it, he ſhall not be indicted, contrary if he be any of thoſe, 14. H. 7. fol. 3.
If diverſe are preſent when a man is kill'd, and one of them kill'd him, the others are principalls, if they come for the ſame cauſe, 21. Ed. 4. fol. 84. In the time of H. 8. tit. 351. A man bound to keepe the Peace, procures another to breake it, this is the forfeiture of his recognifance.
If one be preſent and move one to kill another, which is done, it is Felony in him though he ſtrike not, 13 H. 7. fol. 10. the ſame, 4 H. 7. fol. 18.
An Infant within the age of ten and twelve yeares killeth one and was hanged, 3. H. 7. fol. 13.
Felony is not but where a thing is taken with a Felonious intent, that is, That is ſo privily, that he intends that he from whom it is taken, ſhall not know, 21 H 7. fol. 15.
If one take his own goods from him that hath the keeping of them privily, and charge his Bailiff, that is Felony in taking his own goods, 5 H. 7. fol. 17.
Taking of Treaſure trove or wreck with a Felonious intent is no Felony, 2… booke of Aſſiſes 99.
Taking of Charters feloniouſly in a box concerning Land is no Felony, 10 Ed. 4. fol. 16.
If my Butler ſteale my plate in my Houſe, it is in my poſſeſſion and it ſeems is Felony, 3 H. 7. fol. 12. The ſame Law where my Shepheard ſteales my Sheep, 22 H. 7. fol. 15. 12 H. 8. fol 3. If I deliver my Butler my Plate, it is ſaid it is no Felony, and taking of that is no Felony, this is where they are not delivered.
It was held by all beſides Nedham, that if a Carrier hath a Baile, &c. or a Pack to carry and breakes that and takes the Goods out, it is Felony, Taverne.for the Goods were not delivered but the Pack. The ſame Law if a Taverne Cup be delivered to drink and be taken away, is Felony, for it is in the poſſeſſion of the maſter, and ſo it is of a Horſe in the ſtable of his Maſter, and a Horſe-keeper taketh him, but otherwiſe it is where he delivers him to ride, or Plate delivered to your Butler, for this taking is not by force and armes, 13 Ed. 4. fol. 9.
A Woman ſhall not be arraigned for ſtealing her huſbands Goods, abridged booke of Aſſiſes fol. 71.
Taking of Pigeons, or Fiſh in their ſavings is no Felony, otherwiſe it is out of a Houſe or a Trunck, for there it is Felony, 22. booke of Aſſiſes 98.
Taking of Pigeons or other Beaſts wilde in their wildneſſe is no Felony, 12 H. 8. fol. 4. by Br. 22. Booke of Aſſiſes 95.
Taking of young Doves in their neſts in a Houſe is Felony, and ſo it is of Pikes out of a Trunck, contrary out of a River, taking young Goſhaukes in a Park is Felony, otherwiſe it is where they are old Goſhaukes, 18 Ed, 4. fol. 8.
Cutting of Trees is no Felony, otherwiſe it is if they were falled, and after are carried away with felonious intent, 22 booke of Aſſiſes 22. and 12 Ed. 3. Coron. 119.
Taking of Apples out of an Orchard growing upon the Tree, or cutting Trees, or Corne growing, though they be taken with a Felonious intent, is not Felony, for that they are parcell of the Freehold, but common breakers of Orchards, and common Treſpaſſours are inquirable in Leet as I intend, 18 H. 8. fol. 2.
Robbery is but from the perſon of one, 31 H. 6. fol. 16.
Robbery if it do not amount to two pence is Felony, for which he ſhall be hanged, 22. booke of Aſſiſes 55.
Burglary of a Houſe is, though he carry away nothing, the ſame Law of Robbery which is of his perſon though it be to the value of a peny, but it is no Felony that one ſhall be hanged, unleſſe to the value of twelve pence, 22. booke of Aſſiſes 39.
It is Burglary, that he broke his Houſe to kill him though he did not kill him, 13 H. 4. fol 20.
One intended to commit Burglary and was hindred yet hanged, 27 Aſſiſe 38.
It is no Felony if one intend to rob one, and doth not but is hindred, but it is Treaſon if he intend that to the King and do not the act; 13 H. 8. fol. 13.
A Boy would have carried out the Goods of his Maſter, and comming to the bed of his Maſter ſleeping and cut his throate, and he cried out and his Neighbours came in and tooke the Boy and he was hanged, 15 Ed. 2. Coroner 383.
Burglers are thoſe which breake Houſes or Churches, and though that they carry out nothing they ſhall be hanged, Abridgment of the book of Aſſiſes 75.
Note that preſentments of Felonies at the Common Law, are preſentable before the Steward in Leet, as appeares by, 22. Ed. 4. fol. 19. and petty Treaſon is Felony as it appeares by Stam. fol 2.
Appeale of Robbery, the Defendant tenders to wage battaile, and was afterward outed of that, for that, that he was indicted before John Verney Steward in Leet; and for that hee did not ſhew to whom he was Steward, and in what place, it was nought, otherwife it had been good. By this it appeares that preſentment of that may be before the Steward, Stamford fol. 2. Charter of pardon of all Felonies ſerves in petty Treaſon, for it is Felony, and for that alſo inquirable in Leet as Felony 22 Ed, 4. fol. 19.
1 H. 7. fol. 23. Sir Humfery Stafford ſhewed that he had matter in Law, to plead to an indictment, as ſanctuary and prayed Councell, and had Councell upon that ſhewed in Felony or Treaſon.
3 H. 7. fol. 1. Infant of tender age, or one out of his wits killeth one he ſhall not be hanged, 21 H. 7. fol. 31.
3 H. 7. fol. 1. If the principall take Clergy, being arraigned or indicted, it ſeemeth that the acceſſary ſhall go quit and cleer if he have pardon, contrary 13 Ed. 4. fol. 3. upon acknowledging of Felony.
3 H. 7. fol. 1. One of the age of nine yeares which had diſcretion, to excuſe himſelfe, was hanged for murdering of an other Infant.
3 H. 7. fol. 2. It ſeemeth where one challengeth above the number of thirty ſix upon one Indictment, he ſhall be put to Pennance, and where it is in Appeale hanged.
22 H. 8. chap. 14. No perſon arraigned for petty Treaſon, Murder, or Felony, ſhall not be admitted to any peremptory challenge above the number of twenty.
4 H. 7. fol. 2. One arraigned and found it was in defending himſelfe, and had a pardon of grace.
14 H. 7. fol. 2. Where one indicted before a Coroner is afterwards acquit, it ſhall be inquired who killed him, 11 H. 4. fol. 91. the ſame:
11 H. 7. fol. 19. If a married woman make Felony, her Land is forfeited forthwith, unleſſe that her Husband be intituled to be Tenant by the curteſie.
21 H. 7. fol. 30. Clerkes convict or attaint are not out of the ſame Law as Aliens are.
1 H. 7. fol. 6. Reſcuing a Felon is Felony, by the Common Law, of Breakers of Priſon by the Statute.
4 Ed. 4. fol. 10. One indicted of Murder ſuch a day, and an Appeale ſued ſuppoſing the Murder another day, yet good, and ſhall be all one, for the day is not matteriall and after the parties in the Appeale agreed, and the Playntiff is nonſuted, he ſhall be arraigned at the Kings Suit.
21 H. 7. fol. 29. Where one ſhootes at Pricks and killeth a man by the ſwarving of his hand, it is no Felony that he ought to dye.
9 Ed. 4. fol. 2. Defendant in Appeal of Felony ſhall have Councell but not in an Indictment, unleſs he have matter in Law to plead.
6. Ed. 4. fol. 27. Indictment, That Alice S. he tooke feloniouſly, and knew her carnally againſt her will, but feloniouſly raviſhed her and Indictment of Murder, that of malice pretended he killed him is not good, but Murdravit, vid. 1. H. 4.1.
Bracton ſaith, If there be any that ſtriketh a Woman being with child, or gives her poyſon by which he maketh an abortive or a child now formed or having life he committeth man-ſlaughter, 3. book of Aſ. 4. or where one beateth a Woman with childe which indeed was borne dead it is no Felony 22. booke of Aſſiſes 94.
Stamford 22. It is requiſite that the thing ſlaine be in Rerum natura, and for that to kill an Infant in his mothers belly is no Felony, Stamford 16.
22. booke of Aſſiſes 71. Two fight together and one commeth to part them and is ſlaine, is Felony.
26. booke of Aſſiſes 22. A Felon in robbing of a Houſe is ſlaine, it is no Felony in killing.
Stam: fol. 25. That cannot be Felony to ſteale wild beaſts found in their wilderneſſe, nor for Doves being out of their Dove-coat, nor Fiſhes taken in the River, for ſuch ſtealing is not the taking of anothers Goods, but of a thing, which none hath property in.
But otherwiſe it is if he breake the Pigeon-Houſe and ſteale the young Pigeons which cannot go nor fly for that is Felony. The ſame Law of taking of young Goſhaukes bred in my Parke
18. H. 8. fol. 2. By Fitzh. and Englefeild, taking of young Pigeons in a Dovehouſe is not Felony. Quere for they are of a wilde nature.
22. booke of Aſſiſes 3. One killeth one outlawed of Felony, by Scroope it is no Felony, but by Stamf. Otherwiſe it is where he is attaint by verdict.
35. H. 6. fol. 68. A husband attaint of Felony is ſlaine, his Wife ſhall have an appeale, but not his Heire, for there is no corruption of blood between the Husband and his Wife.
34. H. 6. fol. 53. If a Felon read, and the Ordinary refuſe him, the Priſoner ſhall be ſpared and the Ordinary ſhall be fined, and if a Felon once faile to read, yet the Juſtices may ſpare him and make him try to read again, and ſaid there that he ſhall have his Clergy under the Gallows, but inquire that: Stamford ſaith, Burglary may be in the day as well as the night, but all Indictments are (by night) and for that quere, Title Clergy plac. 12. He which breaketh a Houſe by day or night, any perſon being in that, and by that put in feare, or rob'd of any thing, he ſhall not have his Clergy, Stamford 129.