Raven's Case
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1708 |
| Date | 01 January 1708 |
| Court | Court of the King's Bench |
English Reports Citation: 84 E.R. 1065
COURTS OF KINGS BENCH
newgate sessions, 14 october, 14 car. 2. Raven's case, 1 Hawk. 142, 146, 153. Mary Raven, alias Aston, was indicted for stealing two blankets, three pair of sheets, three pillow-biers, and other goods of William Cannon. And upon the evidence it appeared, that she had hired lodgings and furniture with them for three months, and during that time, conveyed away the goods which she had hired with her lodgings, and she herself ran away at the same time.(l) And it was agreed by my Lord Bridgeman, myself, and my brother Wylde, Recorder of London, then present, that this was no felony, because she had a special property in them by her contract, and so there could be no trespass ; and tnere can be no felony where there is no trespass, as it was resolved in the case of Holmes, who set fire on his own house in London, which was quenched before it went further. Fide the end of this book, Kelyng contra 81, 82. At the same sessions one was indicted for murder, and upon his tryal was found guilty of manslaughter, and then offered to plead the King's pardon, which upon sight of it pardon' feloniam & felonicam interfeccon' of the man slain, non obatanf the stat. of 10 E. 3, stat. 1, c. 2, & 13 R. 2, stat. 2, cap. 1, which [25] was agreed by us all to be a pardon of murder, notwithstanding the proceedings in liickabee's case by Rolls during the late troubles, and then the question was, if now the party had not lost the benefit of his pardon; for he that pleads a pardon confesseth the fact, and relyeth upon the King's mercy : and therefore, if after his pardon, he plead not guilty, he waveth his pardon, which ia clear law.(2) But here the question was, because this pardon here by the express words pardons man-slaughter only, and then by reason of the non obstant it extends to pardon murder, whether tho' he waved it as to murder, he might not make use of it as to man-slaughter. And as to that, there being some difference in opinion, the party was bailed, and had a certificate from us of the nature of the ease, and thereupon obtained a new pardon. But it was agreed by us all, if the pardon had not extended to pardon murder, he could not possibly make uae of it. And therefore, upon this tryal, he was only found guilty of manslaughter, he might plead that pardon, and it should have been allowed: and after, when he came to plead his new pardon, and that was allowed, he paid gloves to the Judges, which is a due fee for that, vide 4 E. 4, 10 B. Pulton de Pace 88 a.(3) Memorandum, In the aforesaid case it waa moved, that the Court should not absolutely discharge the person, but ought to commit him or bayl him, until the year and a day after the fact committed, by the statute of 3 H. 7, c. 1, s. 3. But upon sight of that statute it appeared that that statute extends only where persons are indicted for murder, and are acquitted, there they are to be committed or bailed till the year and a day past, that if any one will bring an appeal, he may be forth- (1) Altered by stat. 3, W. & M. cap. 9, s. 5. Fide postea 81. Denied to be law, and found felony. (2) But see The King and Haines, Wils. 214, where the benefit of an act of grace was allowed after the general issue pleaded. (3) In some editions page 90. K. B. xiii.-34* 1066 MURDER AND OTHER OFFENCES KELYNO, J. 26. coming: but extends not to persons who being indicted for murder are found guilty of man-slaughter, or se defendendo, or by mischance. At the same sessions, one John Roberts was indicted as a principal in a burglary, and upon the evidence it appeared, that he was only accessary after the [26] fact, by receiving those who did it, and the goods, and thereupon it was doubted, that if the jury should acquit him, as they must upon this indictment, whether he might afterwards be indicted as accessary. And therefore to avoid all doubt, the Court discharged the jury of him, and ordered another indictment to be against him as accessary. But afterwards, upon consideration of the books, we did agree, that the law was, if one was indicted as principal and acquitted, he cannot after be indicted as accessary before the fact: but notwithstanding such acquittal, he may be indicted as accessary after the fact, and the reason is, because he that commands or advises a robbery, burglary, or murder to be committed is quodam modo guilty of the fact; and therefore if he be found not guilty of the fact, being indicted as principal, he cannot afterwards be tried as accessary before the fact, because by the former verdict, he is found not to be guilty of the fact, which extends to all guilt before the principal fact committed. But an accessary after is not guilty in any sort of committing the fact, for it was done before he knew any thing of it; therefore if he be tried as principal, and found not guilty, he may be after indicted as accessary after; for that is an offence subsequent to the committing of the fact, and is for receiving the felons, or after the fact done, which is an offence of another nature ; so are the books, 27 Ass. pi. 10. 8 H. 5, 6, 7. And so have the presidents upon examination always been at Newgate Sessions. At the same sessions, Edward Bew was indicted for killing Nathaniel Eew his brother, and upon the evidence, it was resolved, that if one gives wounds to another, who neglects the cure of them, or is disorderly, and doth not keep that rule which a person wounded should do; yet if he die it is murder or man-slaughter, according as the case is in the person who gave the wounds, because if the wounds had not been, the man had not died; and therefore neglect or disorder in the person who received the wounds, shall not excuse the person who gave them. [27] At the same sessions, Thomas Middleton, tooth-drawer on Ludgate-hill, was indicted for marrying two wives, and upon his tryal, he produced a sentence of divorce from his first wife under seal causa adulterii, of her part, and agreed that he was not within that statute, for Rooke's case was stronger, which see,(l) 1 Cro. 461, where the divorce was causa sevitice, and that adjudged to excuse from the statute. At the same sessions, one Henry Burgess was indicted for breaking up a chamber in Somerset-house, and the indictment layd it tp be dom' manconal' of the person who lodged in it. And it was agreed, that the indictment was not good, because all Somerset-house is one intire house of the Queen-mother, and all who lodge in it are her servants; and therefore it ought to be dotn' manconal' of the Queen-mother. So for White-hall, which is the King's house; and it differs from the case of an inns of Court, where every gentleman hath a several interest, and therefore there every several chamber is domus manconal' of the person who hath the interest. _jj/fk& the same sessions, one John Legg, being indicted for the murder of Mr. Robert Wise. It was upon the evidence agreed, thafc if one man kill another, and no sudden quarrel appeareth, this is murder, as Co. 9 Rep. fol. 67 b Makelly's case, And it lyeth upon the party indicted to prove the suddain quarrel. And in this case it was also agreed, that if two men fall out in the morning, and meet and fight in the afternoon, and one of them is slain, this is murder, for there was time to allay the heat, and their after-meeting is of malice. At the same sessions, George Thorley, being indicted for robbery, refused to plead, and his two thumbs were tyed together with whipcord, that the pain of that might compel him to plead, and he was sent away so tyed, and a minister perswaded to go to him to perswade him; and an [28] hour after he was brought again and pleaded. And this was said to be the constant practice at Newgate.(2) Note, that although if an officer or other person kill another in preserving the (1) Cro. Car. 461. (2) This practice is rendered unnecessary by 12 Geo. 3, c. 20. KELYNG.J. 28. MURDER AND OTHER OFFENCES 1067 peace, or a parent, master, or schoolmaster kills his child, servant or scholar in chastizing or correcting him, this shall be said to be per infortunium, yet vide stat. 1 Jac. cap. 8, for stabbing, there at the end of it, there is a proviso, that the statute shall not extend to any person who shall kill in keeping and preserving the peace, so as the manslaughter be not committed wilfully and of purpose, under pretext of keeping the peace ; nor to a master or parent in chastizing his child or servant, besides his or their intent or purpose, so that those circumstances are inquirable in those cases. Vide 9 E. 4, 28. One demands his clergy, and the Court took the book and turned him to a verse, and he could not read well, but read one word in one place and another word in another place. And the Judges asked the Ordinary if he would have him; and he answered yea. The Judges bid him consider, and told him the Court was judge of his reading, and if the Court should judge he did not read, the Ordinary should be fined, and the prisoner hanged, notwithstanding his demanding of him, and he was hanged, vide Fitz. Abridgment, titulo Corone 32. And vide at the end of the case in the book at large, viz. 9 E. 4, 28, several books are cited where, in the absence of the Ordinary, the Court delivered the book to the prisoner, vide the same book. A man who had abjured the realm for the death of a man, was brought to the Bar, and being demanded what he could say, why execution should not be awarded, he pleaded the King's pardon, which was disallowed, because there was no mention in it, that he had abjured; and after he prayed his clergy, which was disallowed ut supra; and after he pleaded, he was taken out of a sanctuary, and desired to be restored, which the Court refused, and said he should not have that plea, because being asked what he could say, why judgment and execution [29] should not be given and awarded against him, he had pleaded his pardon, and that being disallowed, he should not be received to plead any...
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