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![handle is hein.slavery/ssactsengr0985 and id is 1 raw text is: LIL. TEini, 8 AND 9 NILL. 3
afterwards would not make i't manslaugh tor. For (a) if A. of malice prepense assaults
B. B. draws his sword, A. Ifies to a wall awl there kills 13. yet it is murder. In
Rencer's rase Cihubal struck first. Il T'oaver's case the event was extraordinary, for he
could not intend to kill the boy with the clog. But if A. kills B. with all instrument
of iron, &c. which might kill in probability, without any provocation, this will be
murdler. But the other jistices did not give their opinlio. Anid this case being
argled now the last ,lay of the turwi, the Cuiit lid not give their opilliolls to the
matter in law. But Ilolt Chief h1 istice took exceptioni to the idictinctt upolt the
Statute of Stabbing, that it was only said [uot [145] having first struck] but it is
not said [not having a weapon drawrt] for it the prisotier had killed Wells, after that
he had a weapon drawn, lie would be out of the intent of the statute ; and therefore
all the Court held this a fatal exception. Then to the indictment for murder, Holt
Chief Justice took several exceptions. 1. Because it is said, prodictus J. Kcite the
prisoner in ipsum Jacobum Wells insultum, &c. fecit, ipsum Jacobum Wells cur
quodam gladio, &c. quem ill manu dextra, &c. ipsum Jacobum Wells in et super, &c.
pupugit, &c. and so there is one Jacobum Wells more than there ought to be. 2. It
is said that Keite gave to Wells a wound of the breadth of one inch, et. profunditatus
totally through the body ; which (by him) is uncertain. In 5 Co. 120 a. Long's case,
totaliter penetrans in et per corpus was held well enough ; but there was no pro-
funditatis mentioned, and there are no precedents which warrant this case; and he
said, that he had caused several indictments at the Old Bailey to be searched. 3. It
is percussit et dedit, where it should have been percussit dans, for the former is not
so certain, because it might be by another stroke ; but the precedents are both the
one way atd the other. He didi not say absolutely, that these exceptions to the
indictment of murder are fatal ; but he said, that if the King's Counsel did not insist
to demand their judgment upon the verdict, he should make Ito scruple to quash it.
And the King's Counsel not opposing it, both the indictments were quashed. And
Holt Chief Justice gave order to the clerk to make att entry, quia indietament' minus
sufficieti' &c. ideo, &e. And Mr. Keite was bailed, to be tried at the next assizes,
where he was found guilty of manslaughter, and had his clergy, &c. and died of the
small pox 1697 in Wiltshire, his own country.
(a) I A prisoner whose case can be brought within the Statute of Stabbing, is
usually arraigned, upon two indictments, one for murder at common law, the other
on the statute. Fost. Disc. 2, c. 6, s. 2.-1 H. P, C. c. 38, !st ed. p. 468.
(b)I 1 Jac. 1, c. 8.
(a) 2 Vide Fost. Disc. 2, c. 6, s. 1. 7 Mod. 133.
(a)3 Vide 1 H. P. C. c. 38, 1st ed. p. 470. 4 Bl. Com. 194.
(a) I This Act is in general considered as beitig merely declaratory of the common
law; D. ace. 1 Bulst. 87. J. Kel. 55. Fost. 2 Disc. c. 6, s. 1. Hawk. c. 30, s. 5, and
several cases, though within the strict letter, and not saved by any of the exceptions,
have under circumstances which would have justified, excused, or alleviated a charge
of murder at common law, been held not to be within it. See several instances
collected, Fost. 2 Disc. c. 6, s. 1.
(a) 5 Vide J. Kel. 40, 41. 1 Hawk. c. 29, s. 4, 9, 12. Fost. Disc. 2, c. 1, s. 4.
(b)2 Vide 1 Hawk. c. 29, s. 6, 7, 8. 4 Bl. Com. 192.
(a)6 D. ace. 1 Hawk. c. 29, s. 17, c. 31, s. 26. 1 H. P. C. c. 40, 1st ed. p. 482.
ROE vers. GArEtOUSE.
S. C. Salk. 663. Carth. 379. Comb. 404. 5 Mod. 305.
In a declaration consisting of several counts upon indebitatus assumpsit, if there is a
nominative case to the assumpsit in the first count, it shall, after verdict at least,
if necessary, be extended to the assumpsit in the rest.
Assumpsit in which the plaintiff declares, that inasmuch as the defendant being
indebted to the plaintiff in - for goods sold, such a day super se assumpsit to
pay the plaintiff the said sum ; cumque etiam the plaintiff had found meat, &c. for
K. B. xx.-32
I LD. RAYM. 145.](ViewImageLocal?handle=hein.slavery/ssactsengr0985&div=1&collection=&method=preview&ext=.png&size=3)