case the king against keat counsel assign on the prayer of a prisoner to argue  a special verdict on a indictment for murder at commonlaw and on the statute  James c S c salk S c comb S c skin S c Mod S c holt S c salk S c comb the  defendant be indict at the last assize both at commonlaw and upon the statute  of stab James c a for the murder of one James well which indictment be try  before holt chief justice the jury give a special verdict to this effect  before the say fact commit videlicet the fifteen of June the defendant retain  the say James well to modern serve he as a gardener and be in a little room  near the kitchen he send to the say well to deliver the key of the garden to  the defendant which he refuse to send one Henry Phillips who be the person  send to demand the key return and tell the defendant that well refuse to  deliver it the defendant immediate go into another room and fetch his sword  and come to well and expostulate with he about the delivery of the key well  tell the defendant that he may have it if he will thereupon the defendant  strike he on the head with his sword and well have a snead of a scythe in his  hand strike at the defendant but the force of the intend blow be prevent by  the rack in the kitchen in which the scythe stick afterward well thrust at the  defendant several time and thereupon the defendant kill he with the sword the  question be whether this be murder or not the defendant be at bar desire that  sir Bartholomew shower and Mr Eyre may be his counsel which be grant and Mr  Cowper be assign by the court to be of counsel for the king then they move  that he may be bail be a gentleman of quality which be deny by the court as it  be in Buckners case style a holt chief justice affirm that the court can not  bail in manslaughter till after the party have his clergy allow in the Hilary  term ensue it be argue for the king that this be murder and that for two  reason though there be no express malice find first because the defendant be  do a unlawful act when the death of the party ensue second the decease be kill  without any provocation and in both these case the law imply malice first  point the defendant be do a unlawful act which be in correct his servant with  a sword draw a very improper instrument for that purpose and death thereupon  ensue the law will imply malice from the nature and manner of do it to make  the act murder Inst hale p c b modern my Lord coke Inst c mention several case  which have be adjudge murder where death immediate follow the do a unlawful  act as in steal deer in a park and the thief shoot at the deer and kill a boy  in a bush so the shoot at a cock or hen or any other tame thing in which one  have a property and a man be kill this be murder because the act be unlawful  there can be no malice in those case either against the man or the boy for the  defendant be not acquaint with they but the fact be unlawful the law couple  the event to the cause and so imply malice to make it murder nay Lord coke  Inst f go a little far for he tell we that if death ensue a act do with a ill  ill tent though that intent extend not to death and though the criminal do not  know the party slay yet it be murder and he give a instance of a man throw a  stone over a wall among a multitude of people which he know be come from  church with a intention only to fright they and one be modern er p kill this  be murder this be applicable to the case at bar for the defendant may not  intend to kill his servant when he first correct he with a sword but that be a  very improper instrument for correction show that he have some ill intent and  death ensue it be murder agreeable to this be the resolution former in the  king bench in the case of king v Wormall and other roll Rep S c palm b in the  eighteenth year of James the first they enter hide park and one Hillock and  other who be servant to the keeper command they to stand which they refuse but  flee thereupon one of the servant shoot at they and wound one then they all  turn back and one of they kill Hillock for which they be all indict for murder  ex ill will praecogitata and be convict for though there be no malice to the  party slay yet they all come into the park with a ill intent and to do some  unlawful act and death ensue the law imply malice the like indictment be  against my Lord Dacres and other more c for the like offence for which they be  convict and execute now all these case extend to make that murder by  implication of malice prepense where death ensue by the mean of do some  unlawful act by the person kill though death be not at first intend by he hawk  p c ch sect d but there be yet a strong case where by the opinion of all the  judge of England it be rule murder in the keeper of a park for kill another  though the person kill be at modern that time do a unlawful act himself and  this be Holloways case cro car S c palm S c Jones see foster hale p c Bl Com e  which be thus a boy climb a tree in Austerley park to cut bough and Holloway  the uvoodward command he to come down which he do he then tie he with a rope  to a horse tail and strike both the boy and the horse which run away with the  boy thus tie break his shoulder and thereupon he immediate die and this be  adjudge murder though Holloway have no intention to kill the boy but be kill  without make any resistance by one who have no authority to correct he in that  manner and though the person thus kill be do a unlawful act in cut the bough  the law imply that malice be prepense which be the reason of that judgement  now the most favourable thing which can be say for the defendant keat be that  his servant send he a saucy answer for which he may have correct he but then  it must be do with a fit and proper instrument and not with a sword it be not  a material objection to say that because he have no intention to kill his  servant therefore it can be murder for in Holloways case beforementioned he  have no intention to kill the boy yet that be hold murder the law be the same  in the eleven year of Henry the Seventhyearbook h Henry pl f when Fineux chief  justice give the rule that if two be play at sword and buckler by consent and  one kill the other it be felony because such play be unlawful and yet there be  no intention of kill so in this case the first act of beat the servant with a  sword be unlawful and it have be constant rule that where death ensue a  unlawful act it be murder for it can be intend in this case that the master  thrust at his servant with a sword mind to make straight so it be where a meet  b in the street and cudgel he and b draw his sword and then a kill he it be  murder b roll Rep S c palm c more d hawk p c ch sect side a for the first act  of beat he be unlawful and the ill event shall be couple to the first act  second point the decease be kill without any provocation and in such case  likewise the law supply malice prepense the push the prisoner with the snead  of the scythe can be a provocation to justify this fact because it be in  defence of his person it be subsequent to the fact begin by the master which  be unlawful videlicet the strike the servant with a sword for which reason  this must be murder modern those who argue for the defendant begin with the  definition of murder which in the old book be define to be secrecy man murder  and the reason of it be because in former age when the Dane and the Norman  inhabit here the malice between they and the englishmen be so great that if  any person be kill and modern er p it be not know by who the murderer be take  to be either a Dane or a Norman unless there be plain proof that it be do by a  Englishman it have now another definition for murder be where a man of sound  mind and memory unlawful kill a reasonable creature in a thing naturan under  the king peace with malice forethink either express by the party or imply by  the law so as he die within a year and a day after the fact Inst b malice must  therefore be the foundation of murder both at commonlaw and upon the statute  of stab and such malice my Lord coke Inst c tell we be the compass to kill  will or beat another to bring to rest mind so that if there be any sudden  occasion of heat or quarrel among man and they immediate fetch their sword and  go into the field to fight and one be kill this be not murder because it be  not to bring to rest mind without which there can be no malice and consequent  no murder the law of God admit of this distinction and have in some measure  dispense with the six commandment by which we be forbid to kill for God  command the child of Israel when they divide the land of Canaan to give the  Levite six city of refuge and to appoint some such city for themselves that  the slaver may fly thither who kill another unaware the book of number chap  xxxv d that be without malice and this be to preserve himself from the next  kinsman who have power to put he to death but his power do not extend to take  vengeance on he who kill another without any malice and therefore this remedy  be provide lest he shall destroy he in his rage but if he smite the decease  with a instrument of iron that be purposely or wilful to kill he or with throw  a stone which may probable kill he or with a hard weapon of wood or if he  thrust he out of hatred which must be malice forethink or smite he in enmity  so that he die in all these case it be murder so that if the manslayer be not  in enmity with the person slay or do not seek his harm then the magistrate of  the city be to give judgement between he and the next kinsman modern and to  deliver he to the city of refuge whither he flee where he be to be confine  till the come of the high priest it be plain therefore that if there be no  malice in the slayer against the person slay he be not to be punish as a  murderer by the law of God sanctuary be also allow here in England former but  they be take away by the statute Henry c which likewise take away the benefit  of clergy from those who shall commit wilful murder of malice prepense and  another statute I Edward c provide that in other case that be to say if there  be no malice prepense the part shall have the benefit of clergy and the  privilege of sanctuary to apply this to the present case there be no express  malice find so that if there be any it must be imply by law either for kill  the servant in pursuance of a unlawful act begin by the master or by kill he  without any manner of provocation as it have be argue against the prisoner the  malice can be imply in this case for kill the servant in pursuance of a  unlawful act my Lord coke Inst a have put the case so general as to the  unlawfulness of the act that little can be collect from it he tell we that if  the first act be unlawful and death ensue it be murder it be true he instance  in a man intend to steal a deer in a park and shoot at the deer he kill a boy  hide in a bush this he say be murder though he have no intent to hurt the boy  because the first act be unlawful so likewise in the case of throw a stone  over a wall and kill another which have be observe on the other side this be  murder because the law imply malice but my Lord hale hale Yelv b be of another  opinion for he tell we that if the unlawful act want deliberation or if no  personal hurt be intend to another it be no more than manslaughter beside that  intent must extend to death for if it be only to commit a trespass or to beat  a man and death ensue that will not make it murder therefore my Lord coke  distinguish with too much nicety upon the life of a man and direct contrary to  the levitical law and it be not warrant by the authority which he have cite in  the margin of his three institute which be these modern the first be in the  reign of Henry the Fourthyearbook Henry pl c which be no more than the opinion  of the court that if a man kill another by misfortune he shall forfeit his  good but shall have his pardon ex agreeableness now this be rather a modern er  p authority for the prisoner than against he the other case be in the reign of  Henry the seven yearbook Henry pl a a where by the opinion of Fineux chief  justice it be hold that if two play at sword and buckler by the command of the  king and one be kill it be not felony but if the king have not command it it  be otherwise for though such game be suffer they be not lawful which be as  much as to say that the king may tolerate what be unlawful and that be not to  be presume the same chief justice be of opinion that if a man throw a stone  over a house and kill another it be not felony which be deny by brook in  abridge the case bro Abr coroner pl b so that it be but one judge opinion  against another beside Fineux do not say it be murder but only felony neither  do he mention whether that felony be without the benefit of clergy and my Lord  coke Inst c himself give some instance where death ensue a unlawful act and  yet it be not murder as if two man fall out and present fetch their sword and  go into the field and fight a duel and one be kill it be not murder because  there be no malice prepense now it can be deny but that it be a unlawful act  to fight a duel hawk p c e and yet he be of opinion that this be not murder  those case of shoot at a deer and kill a man be not applicable to this fact  for the act of shoot be not only unlawful but it be voluntary and the  immediate cause of death so likewise be the throw a stone for though no malice  be intend to the person slay yet it be plain that the slayer do not value who  be kill therefore great care ought to be take to distinguish right in such  case where the life of a man be concern for my Lord coke distinction be too  narrow in say that it be murder if death ensue a unlawful act because the act  must not be only unlawful but voluntary if a man shall climb a appletree to  steal the fruit and fall down by misfortune upon the bead of another under the  tree and kill he without hurt himself this be not murder and yet no man will  deny but steal the apple be a unlawful act and death do ensue that act but the  fall which be the cause of it be involuntary and therefore it be not murder  modern it be likewise to be consider whether the act be do to bring to rest  mind or in passion for if in passion it be not material who be the aggressor  as for instance if there be malice between a and b and they fight and a be  kill it be murder in b though a give the first blow so if he have assault b  and then flee to a wall and in his own defence have kill he though it be  question by my Lord hale hale summary hale p c f whether this be murder or not  but both these case be put where the malice be prepense for it be that which  be the material matter to make it murder and not by who the first stroke be  give the case in croak cro James a be much strong than this now at bar two boy  be fight in a field one beat the other so that his nose bleed the boy go home  to his father be a mile distant from the place where they fight and complain  to he who immediate come into the field where the other boy be and after some  foul language strike he with a cudgel of which stroke he die this be adjudge  manslaughter only because it be upon a sudden occasion the father be provoke  by see his son blood and no precedent malice in he and though it be at the  distance of a mile yet it be but one continue passion and the first heat of  blood not cool this be a case which my Lord hale hale summary b put for law  and yet it be as unlawful for the father upon such a provocation to correct  that boy as it be for the prisoner to beat his servant the case of king v  Wormall mention on the other side be not like this because be and his  companion come with a malicious intent to rob the park and either to maintain  their purpose or kill the opposer and as for Holloways case the act be so  barbarous that it can not be find otherwise than murder for the boy who be  kill give the keeper no mariner of provocation but submit himself to his mercy  and he turn he over to the mercy of his horse second point malice can be imply  in this case by kill the servant without any provocation because there be  undutiful and irreverent language give by he to his master it be true this be  not such a provocation which will justify the master modern er p in cut his  servant on the head with a sword much less for kill he but still it be a  provocation and the book mention modern that the law imply malice where a man  be kill without any provocation which be not this case for there be a  provocation   e a butcher and other quarrel and in the affray the butcher be  hurt one of the person in that former quarrel come by his shop three day  afterward and make a wry mouth at he upon which he come out of his shop and  cut he on the calf of his leg with a sword whereof he instant die cro  Elizabeth Noy f now here be a former quarrel which have continue three day the  court upon the whole matter direct this to be find murder but if there have be  no precedent quarrel and the will have be give upon a sudden provocation by  make a wry mouth without any intention of kill at that time it have be  otherwise curian it be justifiable in the servant to use the snead of the  scythe after a cut make on his head by his master the provocation give to he  be very slender and may be esteem as none at all because after the answer send  by the servant the prisoner expostulate with he for some time say adjournatur  holt chief justice be clear of opinion that this be murder at the commonlaw  the refuse to send the key not be a sufficient provocation to extenuate the  act to manslaughter and cite the case of king v grey Kely see also ld ray  foster hawk p c ch S but he think that it be not within the James c for the  snead be clear a weapon draw within the meaning of the statute S c skin but  because Rokeby justice conceive that it be not clear find by the verdict that  the stroke with the sword by the prisoner be give before the thrust with the  snead by the decease S c comb the matter be adjourn S c holt and afterward  both the indictment be quash for defect of form and the prisoner discharge on  bail S c Mod S c salk a