corporis, where it is found, that a murder was committed, and the murderer fled; and yet the offender himself shall be received to plead not guilty to the indictment or inquisition before the coroner, as by daily experience it appears, tho Stamford makes it there a question whether the fugam fecit be traversable. And therefore I remember in the king's bench in the case of Barclay it was ruled, that in case of an inquest before the coroner super visum corporis, wherein the party was found felo de se, the inquisition was quashed in the king's bench, because upon examination it appeared, that the coroner refused to let the jury hear witness on the part of him that was dead, to prove that he was not felo de se, for the coroner ought to hear evidence on both sides, partly because it was doubted, that the inquisition in this case was conclusive, and a conviction, and not traversable, and the court of king's bench, who are the sovereign coroner, did set aside that inquisition, and order the coroner to inquire de novo super visum corporis, because the body was yet to be viewed. H. 1658. B. R. Barclay's case. (c) If an inquisition be taken before the coroner super visum corporis," whereby the party dead is found to have died per infortunium, if it is suggested on the part of the king or almoner, that he was felo de se, and in the king's bench a writ of melius inquirendum is prayed to the sheriff, it seems it ought not to be granted, because the coroner is the proper officer, and accordingly it was denied in Pasch. 24 Car. 2. and if granted, and an inquisition taken, it hath been held void(d) by the statute of 28 E. 3. cap 9. tho many precedents of such writs are extant. H. 37 Eliz. B. R. Croke, n. 13. Hurleston's case, F. N. B. 144, 250.(e) But it seems, if the coroner's inquisition omit the finding of the goods of the felo de se, that may be supplied by a writ of melius inquirendum directed to the sheriff, for that is not within the statute of 28 E. 3. But whensoever any inquisition is taken by the sheriff by 416] a writ or commission of melius inquirendum, without question that inquisition is traversable. If an inquisition be taken before the coroner super visum corporis de villis A. B. C. and D. and says not de quatuor villatis proximè adjacent', according to the statute of 4 E. 1. de coronatoribus,(ƒ) yet it hath been held the inquisition is good, because the statute is only directory. H. 1658. B. R. Barclay's case.(g) But altho an inquisition taken before the coroner super visum corporis in the point of felo de se is of great authority and a sufficient record, whereupon process may be made against those that detain the goods found in the inquisition, yet it seems to me, that it is traversable in the very point so found, for it is but an inquest of office, and whereupon the party grieved thereby can have no attaint, but (c) 2 Sid. 90. 101. (e) Edit. 1718. p. 322, 554. (d) 2 Ander. 204. (f) This statute was but an affirmance of the common law, Brit. 7. a. otherwise it is of a presentment of a fugam fecit before the coroner. 8 E. 4. 4. The coroner hath power super visum corporis to inquire touching the murder or interfection of the party that is dead, and also of all accessaries before, and of their flight, but not of accessaries after the fact. 4 H. 7. 18. b.(h), yet the party presented before the coroner to be principal or accessary before is not convict by such presentment, but shall be arraigned and plead to the felony, and I know no difference between that and this; and it seems unreasonable, that by an inquest taken against a dead person, whereby he is found felo de se, that the executors, administrators, legatees, and children of the deceased should be concluded, and lose the goods of the deceased without an answer, by an inqusition which may be taken by the coroner behind their backs, and I find no book express [417] in it, but the opinion of my lord Coke, P. C. 55.,(i) for the doubt of Mr. Stamford, P. C. 183. is only upon a fugam fecit, and in the case of Barclay 1658, the Court of King's Bench were not satisfied, that it was conclusive. P. 45 E. 3. inter communia scaccarii there was a presentment (before the coroner, as it seems, but it is not so expressed in the record) that Waller Page felonicè se submersit, & sic felo de se devenit, and thereupon a writ issued out of the Exchequer to inquire what debts were due to Walter Page; the sheriffs of London took an inquisition, whereby it was found that Simon Long of Essex was indebted to Walter Page at the time of his death in 407. by bill, thereupon process issued against Simon Long to answer the debt, who came in and confessed he owed the debt to Walter Page, dicit tamen, quod domino regi reddere non debet, quia qualitercunque præsentatum fuit, quod dictus Walterus Page nequiter and felonicè se submersit, ut prædicitur, idem Walterus Page interfectus fuit per emulos suos, & per ipsos in quodam fossato in loco vocato the wilds in com. Surrey projectus, absque hoc, quod ipse aliqualiter se submersit; and thereupon isssue was joined, and by a jury of Surrey found, quod dictus Walterus Page fuit interfectus per emulos suos, & in fossato projectus, absque hoc, quod ipse aliqualiter se submersit. There a traverse was taken to the presentment, which must needs be before the coroner by the whole circumstance of the case, tho the coroner be not mentioned in the record. And with this agrees the book of 8 E. 4. 4. that the finding of one to be felo de se is traversable, tho found before the coroner; but (h) This case says nothing directly of the coroner's power to inquire of accessaries, yet by resolving, that in case of an accessary before the fact presented before the coroner, if it was found he fled, he should forfeit his goods, but not so in case of an accessary after the fact, it seems strongly to imply, that the coroner had jurisdiction in the one case, but not in the other; and Stamford says, that the judges in that case of 4 H. 7. abridged the coroner of a power, which he would have usurped in inquiring of those, who were accessaries after the murder. See to this purpose Dalison 32. (i) See also to the same purpose Hob. 317. indeed it holds, that a fugam fecit presented before the coroner is not traversable, quia auntient ley de corone.(k) If there be two coroners in a county, the outlawry must be given by both, utlagatus est per judicium coronatorum, yet one of them may take an inquisition super visum corporis, M. 6 & 7 Eliz.C. B.(I) By the statute of 3 H. 7. cap. 1. the coroner ought to re[418] turn and certify the inquisition taken by him to the next goal-delivery, or into the king's bench. And thus far touching felo de se and his forfeiture. There is another kind of death of a man, which may be considerable in this place, namely the death of a man per infortunium, and this is of two kinds, viz. 1. Where one man is the cause of another man's death without any ill-intent, and by misfortune: of this I shall treat under the distribution of homicide. 2. When a man comes to an untimely end, where no other reasonable creature concurs to it, and this is properly per infortunium. As where a man falls from an horse, or house, or boat, or into a pit, or a tree or tile fall upon him and kill him, or is killed by a beast, in this case the coroner ought to take an inquiry super visum corporis, and also of the manner and means, how he came by his death, and of the thing, whereby it happened, and of the value thereof, because in many cases there is a forfeit belonging to the king as a deodand, whereof in the next chapter.[1] (k) See Stamf. Prerog. 46. b. (1) See Hob. 70. [1] By 4 Geo. IV. c. 52, 8. 1, it shall not be lawful for any coroner, or other officer having authority to hold inquests, to issue any warrant or other process directing the interment of the remains of persons against whom a finding of felo de se shall be had, in any public highway; but such coroner or other officer shall give directions for the private interment of the remains of such person felo de se, without any stake being driven through the body of such person, in the church-yard, or other burial-ground of the parish or place in which the remains of such person might, by the laws or customs of England, be interred, if the verdict of felo de se had not been found against such person, such interment to be made within twenty-four hours from the finding of the inquisition, and to take place between the hours of nine and twelve at night. Proviso not to authorize the performing of any of the rites of Christian burial on the interment of the remains of any such person, nor to alter the laws or usages relating to the burial of such person, except so far as relates to the interment of such remains in such church-yard or burial-ground at such time and in such manner. By self-murder all the chattels, real and personal, which the felo de se has in his own right are forfeited, and also all chattels real whereof he is possessed either jointly with his wife or in her right, and also all bonds and other personal things in action belonging solely to himself, and also all personal things in action, and, as some say, entire chattels in possession to which he was entitled jointly with another, on any account except that of merchandise. But it is said that he shall forfeit a moiety only of such joint chattels as may be severed, and nothing at all of what he was possessed of as executor or administrator. His lands of inheritance are not forfeited, nor his wife barred of dower. No part of his personal estate vests in the king before the self-murder is found by some inquisition. But after inquisition it is forfeited from the time the act done. 4 Bl. Com. 190. n. 22. Stephens, C. L. 145-7. See post, ch. 32, note. Suicide consists in a man's deliberately putting an end to his own existence, or committing any unlawful malicious act, the consequence of which is his own death—as if attempting to kill another he runs upon his antagonist's sword, or shooting at another the gun bursts and kills himself. 4 Bl. Com. 189. But the act must be strictly his own, for if a man desire another to kill him, who complies, the person killed is not felo de se, though the killer is a murderer. 1 Hawk. c. 27, 8. 6. 1 Russell, 424, 426. So he must be of years of discretion, and in his senses. 4 Bl. C. 189. There may be an accessary before the fact to self-murder, for if a man persuades another to kill himself, and he does so, the adviser is guilty of murder, as an accessary before the fact. 4 Bl. C. 189. Keilw. 136. Rex v. Russell, R. & M. C. C. R. 356. Vaux's Case, 4 Rep. 44. b. Where two persons agree to die together, and one of them, at the persuasion of the other, buys poison and mixes it in a potion, and both drink of it, and he who bought and made the potion survives by using proper remedies, and the other dies; it is said to be the better opinion, that he who dies shall be adjudged a felo de se, because all that happened was originally owing to his own wicked purpose, and the other only put it in his power to execute it in that particular manner. 1 Hawk. P. C. c. 27, s. 6. Keilw. 136. Moor, 754. If a man, intending to shoot at another, mortally wound himself by the bursting of the gun, he is felo de se; his own death being the consequence of an unlawful, malicious act towards another. It has also been said, that if A. strike B. to the ground, and B. draw a knife and hold it up for his own defence, and A. in haste falling upon B. to kill him, fall upon the knife and be thereby killed, A. is felo de se; 3 Inst. 54. Dalt. c. 144; but this has been doubted. 1 Hawkins, P. C. c. 27, s 4. A husband and wife being in extreme poverty and great distress of mind, the husband said, "I am weary of life, and will destroy myself;" upon which the wife replied, " If you do, I will too." The man bought some poison, mixed it with some drink, and they both partook of it. The husband died; but the wife, by drinking salad-oil, which caused sickness, recovered, and was tried for the murder of her husband, and acquitted; but solely on the ground that, being the wife of the deceased, she was under his control; and inasmuch as the proposal to commit suicide had been first suggested by him, it was considered that she was not a free agent, and therefore the jury, under the direc tion of the judge who tried the case, pronounced a verdict of not guilty. Anonymous referred to in Reg. v. Allison, 8 C. & P. 418. Moore, 754. 1 Russ. on C. 508. Hawkins speaks with some warmth against an unaccountable notion, which he says prevailed even in his time, that every one who kills himself must be non compos of course; because it is said to be impossible that a man in his senses should do a thing so contrary to nature and all sense and reason. But he argues, that if this doctrine were allowable, it might be applied in excuse of many other crimes as well as this; as, for instance, that of a mother murdering her child, which is also against nature and reason; and this consideration, instead of being the highest aggravation of a crime, would make it no crime at all; for it is certain a person non compos mentis can be guilty of no crime. 1 Hawk. c. 27, 8. 3. If one encourages another to commit suicide, and is present abetting him while he does so, such person is guilty of murder as a principal; and if two encourage each other to murder themselves, and one does so, the other being present, but failing in the attempt on himself, the latter is a principal in the murder of the first; but if it be uncertain whether the deceased really killed himself, or whether he came to his death by accident before the moment when he meant to destroy himself, it will not be murder in either. R. v. Dyson, R. & R. C. C. 523. R. v. Allison, 8 C. & P. 418. See Post, Chap. 34, Note. CHAPTER XXXII. OF DEODANDS. REGULARLY that moveable good, that brings a man to an untimely death, is forfeit to the king, and it is usually granted by the king to his almoner to distribute in charitable uses. But they are not forfeit till the death be found, which is regularly by the coroner, and may be before the commissioners of goal-delivery, oyer and terminer, or of the peace, if omitted by the coroner, and hence it is, that these goods, as neither the goods of felons of themselves, felons and other outlawed persons, cannot be claimed by prescription, because there must appear a title to them by matter of record, before they are forfeited. Upon the death of a man by misadventure, &c. the inquisition ought to inquire of the goods, that occasioned the death, and the value of them, and the Villata, where the mischance happened, shall be charged with process for the said goods or their value, tho they were not delivered to them,(a) 3 E. 3. Cor. 298. And this is the reason, that in every indictment of murder, manslaughter, &c. the indictment finding, that he was killed with a sword, staff, &c. ought to find also the price, viz. 5 solidorum, because the king is entitled to that instrument, whereby the party was killed, or the value thereof, and that altho it were the sword of another man, and not his, that gave the stroke, Co. P. C. 57, 58. tho this doth not vitiate the indictment as to the offense itself, tho the price be omitted. Deodands are of two natures: 1. Such as do movere ad 420] mortem. 2. Such as, tho they are quiescentia, yet occasion the party's death: vide statute 4 E. 1. de officio coronatoris. 1. Things moving to death: as if a beast kill a man, 8 E. 2. Coron. 403. if a man be cutting of a tree, and the tree fall upon another tree and break down a limb, which falls upon a man and kills him, both the limb, and the tree that fell, are deodands. 8 E. 2. Coron. 398. If a man be driving of a cart, and the cart fall and kill a man, the cart and horses are a deodand. 8 E. 2. Coron. 388. and so if a cart run over a man and kill him, the cart and horses are forfeit, 8 E. 2. Coron. 403. 3 E. 3. Coron. 326, 342.(b) so if the timber that hangs a bell, fall and kill a man, the timber and bell are both forfeit. (c) (a) This case is cited from an Iter. by Fitzherbert, who adds at the end of it, quod mirum. (b) A cart met a waggon loaded upon the road, and the cart endeavouring to pass by the waggon, was driven upon an high bank and over-turned, and threw a person, that was in the cart, just before the wheels of the waggon, and the waggon ran over him and kild him; it was resolved in this case in the home circuit by Pollexfen and Gregory, that the cart, waggon, loading, and all the horses were deodands, because they all moved ad mortem. 1 Salk. 220. (c) 8 E. 2. Corone 405. vide contra Rex versus Crosse, &c. 1 Sid. 207. |