case HALLOWAYS case a boy trespass into a park with intent to steal wood but  on perceive the parkkeeper climb up a tree to hide himself on his come down  the parker strike he twice with a cudgel and then bind he to his horse tail  and drag he till his shoulder be break whereof he die this be adjudge murder  for the correction be excessive and a act of deliberate cruelty W Jones Kely  Crompt Dalton hale p c palm foster hawk p c Bac Abr Cowp Halloway be indict  and arraign at Newgate for murder one pain the indictment be that be ex ill  will svan praecogitata tie the say pain at a horse tail and strike he two  stroke with a cudgel be tie to the say horse whereupon the horse run away with  he and draw he upon the ground three furlong and thereby break his shoulder  whereof he instant die and so murder he upon this indictment he be arraign  plead not guilty and thereupon a special verdict find that the earl of Denbigh  be possess of a park call Austerli park and that the say Halloway be uvoodward  of his wood in the say park and that the say pain with other unknown enter the  say park to cut wood there and that the say pain climb up a tree and with a  hatchet cut down some bough thereof and that the say Halloway come ride into  the park and see the say pain on the tree command he to descend and he descend  from thence the say Halloway strike he two blow upon the back with his cudgel  and the say pain have a rope tie about his middle and one end of the rope hang  down the say Halloway tie the end of that rope to his horse tail and strike  tile say pain two blow upon his back whereupon the say pain be tie to the  horse tail and the horse run away with he draw he upon the around three  furlong and by this mean break his shoulder whereof be instant die and the say  hallow cast he over the pale into certain bush and whether upon all this  matter find the say Halloway be guilty of the murder prout they pray the  discretion of the court and if the court shall adjudge he guilty of the murder  they find he guilty of the murder if otherwise they find he guilty of  manslaughter this special verdict be remove by certiorari into the king bench  and depend three term and the opinion of all the judge and baron be demand and  they all except Hutton who doubt thereof hold clear that it be murder for when  the boy who be cut on the tree come down from thence upon his command and make  no resistance and he then strike he two blow and tie he to the croak car er p  horse tail and then strike he again whereupon the horse run away and he by  that mean be slay the law imply malice and it shall be say in law to be  prepense malice he do it to one who make no resistance and so this term all  the justice deliver the reason of their opinion whereupon judgement be give  and he be adjudge to be hang and be bang accord