case the king vers keate in b r homicide when it be murder holt SC skin SC Mod  SC ld raym SC comb SC salk SC Mod salk black Com the defendant be indict for  murder a prisoner who case may be bring within the letter of the Act I James c  common be arraign upon two indictment one at commonlaw for murder the other  upon the statute Fost hale p c this Act be continue by car c S car c for the  reason and occasion upon which it be pass see ld raym Fost and also upon the  statute I James c that take away the clergy from he who shall stab or thrust  any person that have not then any weapon draw or that have not then first  strike the party who shall so stab or thrust c the jury upon comens both  indictment find special that keate the defendant have hire one well to serve  he as his gardener and be mind to turn he out of his service send another of  his servant to well to bid he deliver up the key of the garden who bring back  answer to his master that well will not deliver up the key keate go out of his  parlour fetch his sword and go into the kitchen where well be and interrogate  he why he will not deliver up the key well reply that he may have it if he  will then keate draw his sword and cut well on the head with it well with a  slead videlicet the handle of a scythe which he hold in his hand strike at his  master but by the rack in the chimney the blow be prevent well punch his  master several time with the slead on his belly who retire back to the middle  of the kitchen towards the door then keate run well into the leave pap with  the sword whereof he die and if the court adjudge this to be murder or within  the statute they find keate guilty c and it be argue by Cowper king counsel  that this be murder and he principal insist that where a man kill another  without sufficient provocation it be murder for every provocation do not  suffice to make it manslaughter hale plea of the crown as to the indictment  upon the statute this statute be declaratory of the commonlaw c I Kely Fost  hawk p c hale p c a James c he say that if the offence be only manslaughter it  shall nevertheless be within the statute of James the intent of which statute  be to take away the benefit of the clergy from he who shall kill another who  have not any sword or other arm for his defence at the time of the assault for  if he be assault and afterward strike with a candlestick book or other such  thing which be in his hand at the time of the assault this shall not be a  weapon draw within the Act so the slead which well have in his hand shall not  be say to be a weapon and the stroke which he give to his master after the  stroke give by his master with the sword shall not be within these word not  have then first strike for it be natural for any person in the apprehension of  death to take any thing near at hand to defend himself comens from the stroke  of another then it be not to be distinguish from the case of Vincent byard  report by sir William Jones sir Barth shower contra by this verdict it do not  appear who strike the first stroke for it be not say that keate have strike  his servant before the servant have punch his master but if the verdict be  certain this can be within the statute for the slead in the hand of the  gardener be a weapon draw within the statute so comens er p a cudgel style  Allen goldb and upon the other indictment it shall not be murder true it be  that at commonlaw all homicide or kill be capital until the statute of Marlb  which say murdrum de for the rest non adjudice in person justice where  misfortune only adjudge be send locum to have murdrum de kill per felon so  much non aliter Inst there it appear that homicide per misfortune be murder so  see to ward off Edward Inst but at this time that alone be murder which be  commit ex ill will praecogitata Inst Yelv for homicide without malice be no  more than manslaughter and it seem to I that where there be a quarrel there  kill shall not be construe to be murder if it be a sudden quarrel and  thereupon the party contend and one of they be kill but only manslaughter The  law in this case extend still far for it be decide that if two happen to fall  out upon a sudden and present agree to fight and each of they fetch a weapon  and go into the field and there one kill the other he be guilty of  manslaughter only because he do it in the heat of blood I hawk p c hale p c  Inst Fost Blackst Com ld raym but if a challenge be send there it shall be say  to be murder black Com hawk p c d edit Fost a I Bulst Bulst if a quarrel arise  at play and one kill another it be but manslaughter   so where a man upon the  complaint of his son go and give the person who strike his son a mortal stroke  it be hold to be only manslaughter I hawk p c Fost hale p c   ld ray vent b  cro holt c j whether it be murder or not depend upon this question videlicet  whether here be a sufficient provocation or not and I be of opinion that the  refusal to deliver the key to the servant send by keate be not a sufficient  provocation word be not a provocation there be a case try at the old Bailey  Oct Blackst Com I Kelynge c grey a blacksmith command his apprentice to work  in his shop and make such a thing in his the master absence at the return of  his master be and comens his apprentice go to work together at their trade and  be at work grey ask his servant whether he have make the thing order to be  make by he in his absence who answer that he have not the master say that he  will send he to Bridewell the servant reply that he choose to be in Bridewell  rather than in his service and upon this the master take a bar of iron and  with it give the apprentice a mortal stroke and this be adjudge to be murder I  have a manuscript write by Kelynge c j of a special verdict give by the jury  in this case videlicet a man pretend to be a prestmaster come up to two man  and press one of they for the Marine service he who be press go quiet with the  prestmaster the other conceive that the prestmaster have not any lawful  authority follow he and demand his warrant which the prestmaster show he but  this be not satisfactory upon which he strike the prestmaster a d give he a  mortal stroke and by hale chief baron and seven other judge this be adjudge in  the exchequer to be but manslaughter for the liberty of a Englishman concern  every Englishman and the restraint of such liberty be a provocation to any one  that shall see such illegal restraint but they agree that if there have not be  a provocation it will have be murder but Kelynge Twisden Windham and Morton  hold that there be not a sufficient provocation and for that reason that the  crime be murder as to what have be urge in the present case that keate be  punch with a slead and retire before such time as he kill his servant it be to  be understand that if a man assault another with malice and afterward be  distress and fly to a wall and then kill the other this be murder palm roll  Rep hawk p c a several person go into HydePark with a resolution to bunt the  deer and to kill all opponent the keeper see the action and command they to  stand thereupon they flee and the keeper shoot after they upon which they  return shoot the keeper and kill he and this be adjudge murder for by the  statute de malefactor in to act sparingly Edward stat b if a person refuse to  stand upon the demand of the keeper he may shoot at he in the present case  keate be the master of well and it be object that where a master give comens a  mortal stroke to his servant in the correction of he it shall not be murder as  it be hold in turner case but that be where a man proper correct a servant and  give he by accident a mortal stroke for so be turner case the servant of  turner have refuse to do something his master have order he the master take up  his wife clog and strike the servant on the head of which stroke he die this  be accidental and it can be imagine that be intend to kill he but a sword be a  improper instrument for correction in Holloways case cro car a parkkeeper find  a person in the park with a hatchet in order to cut wood he take he and tie he  to the tail of his horse and give the horse two stroke the horse run away and  kill the person this be murder although the keeper intend only to give he  correction for his misdemeanour comens er p but be do it in a unreasonable way  but if the verdict be uncertain then there ought to go a venire facias de to  make new but to I it seem certain enough I have beard that the fact be more  foul than it be find and be not for have it try over again Rokeby and the  other justice give no opinion for as Rokeby say de death man no one be delay  longan therefore adjornatur some exception be take to the form of the  indictment they be both quash and Mr keate be bail to be try at the next  assize where he be find guilty of manslaughter and have his clergy and die of  the smallpox in in Wiltshire his own count ld raym p the defendant in this  instance appear to have be guilty of murder and shall as be Lord holt opinion  have be convict upon that indictment the authority all strong confirm this  idea Kelynge Ch just in his report p say No word of reproach or infamy be  sufficient to provoke another to such a degree of anger as to strike or  assault the provoke party with a sword or to throw a bottle at he or strike he  with any other weapon that may kill he but if the person provoke be thereby  kill it be murder in the assembly of the judge car this be a point positive  resolve and afterward the chief justice state this very case and determine it  to be murder ld raym upon this point consult Fost p hawk p c p S and the case  there cite upon the second indictment the defendant appear to have be proper  acquit as it seem now to be the better opinion that if the decease have strike  at all before the mortal blow give this take it out of the statute though in  the precede quarrel the stabber have give the first blow Fost p hawk p c p S  Bl Com p