statute, namely, the offence of mortally stabbing another, though done upon sudden provocation. For by statute 1 Jac. 1, c. 8, when one thrusts or stabs another, not then having a weapon drawn, or who hath not then stricken the party stabbing, so that he dies thereof within six months after, the offender shall not have the benefit of clergy, though he did it not of malice aforethought. But the benignity of the law hath construed the statute so favourably in behalf of the citizen, and so strictly when against him, that the offence of stabbing stands almost upon the same footing as it did at the common law. Thus (not to repeat the cases beforementioned, of stabbing an adulteress, &c. which are barely manslaughter as at common law) in the construction of this statute, it hath been doubted, whether, if the deceased had struck at all before the mortal blow was given, this takes it out of the statute, though in the preceding quarrel the stabber had given the first blow. And it seems to be the better opinion that this is not within the statute. Also it hath been resolved, that the killing a man by throwing a hammer or other weapon, is not within the statute; and whether a shot with a pistol be so or not, is doubted. But if the party slain had a cudgel in his hand, or had thrown a pot or bottle, or discharged a pistol, at the party stabbing, this is a sufficient having a weapon drawn on his side, within the words of the statute.

MURDER.

Murder is where a homicide is committed under such cir cumstances as makes the killing to be neither justifiable, nor excusable, nor manslaughter. Being neither of these, it is necessarily murder; and this is enough to say here. But for further satisfaction, I will give the definition of murder; which is, when a person of sound memory and discretion, unlawfully kills any reasonable creature in being, and under the public protection, with malice aforethought, either express or implied.

Malice aforethought, fignifies wickedness of the heart more than is ordinarily found amongst mankind, or the sign of a diabolical temper and disposition, or the doing the fact under circumstances which do to adinit of any justification, excuse, or alleviation.

When you wish to know in what class to place a homicide, compare the circumstances thereof with those in justifiable ho micide, excusable homicide, and manslaughter; and if it agree with none of these, it is murder.

HORSE-STEALING...........HUE AND CRY.

153

Murder is a capital felony, or a felony without benefit of clergy.—Hayw.

HORSES-See Cattle, Horses, and Hogs!

HORSE-STEALING.

If any person or persons within the limits of this state, shall feloniously steal any horse, mare, or gelding, upon due conviction thereof, such felon or felons shall suffer death without benefit of clergy.

See Larceny:

HUE AND CRY.

Hue and Cry is the old common law process of pursuing with horn and with voice after felons, and such as have dangerously wounded another.

It may be raised two ways, either by precept or warrantfrom a justice of the peace; or without such precept by a peace officer, or by any private man that knows of a felony.

The party raising it, must acquaint the constable of the place with all the circumstances which he knows of the felony and the person of the felon; and thereupon the constable is to search his own district or town, and raise the neighbourhood, and make pursuit with horse and foot. And in the prosecution of such hue and cry, the constable and his attendants, have the same powers, protection, and indemnification, as if acting under the warrant of a justice of the peace.

But if a man wantonly or maliciously raises a hue and cry without cause, he shall be severely punished as a disturber of the public peace.

If the offender be not found in the constablewick, then the constable shall give notice to the next constable, and he to the next, until the offender be found.

Those who will not pursue upon hue and cry, may be indicted, fined, and imprisoned.

The constable may search suspected places or houses, but he must enter by the doors open; for he cannot break them barely to search, unless the person against whom the hue and cry is levied be there, and then he may. Therefore, in case of such a search, the breaking of the door is at his peril; justifiable if the guilty person be there, otherwise not.

U

But

*he must give notice of his business, and demand entrance, ar first have a refusal, before the doors can be broken.

The constitution of this state declares "that general warrants whereby any officer or messenger may be commanded to search suspected places, without evidence of the fact committed, or to seize any person or persons not named, whose of fence is not particularly described and supported by evidence, are dangerous to liberty, and ought not to be granted."

Form of a Warrant for Hue and Cry.

State of North-Carolina, Wake County.

To all Sheriffs and Constables of the aforesaid County, to whom
these Presents shall come.

Whereas A B of the county aforesaid, hath this day made oath before me, C D, esq. one of the justices of the peace for the said county, that he was last night robbed of [Here describe the goods stolen], at

in the county of Wake and state aforesaid, by one EF, late of the same County, planter, who is since fled for the same, and not yet apprehended. Therefore in the name of the state, I charge and command you, and every of you, in your several precincts and districts, to search diligently for the said EF, and to make hue and cry after him, from neighbourhood to neighbourhood, as well by horsemen as by footmen. And if you shall find him, that then you apprehend and bring him before a justice of the peace of said county, to be dealt with as the law directs. Given under my hand and seal the

See Arrest, Bail

day of

C. D..........(seal.)

HUNTING.

If any person summoned as an evidence against a fire-hunter, shall refuse or neglect to give evidence, he shall be commited to the county jail until he shall.

Any person or persons discovered hunting in the woods, with a gun, in the night time, by fire light, shall, upon conviction, by indictment or presentment in any court of record, be. find twenty pounds; to be applied to the use of the county. where the offence was committed; and on failure or refusal to pay the fine, shall receive thirty-nine lashes on his bare back, well laid on, in open view, by the sheriff; and stand committed until costs be paid.

If any slave or slaves be discovered hunting as before mentioned, the owner, or persón in whose service he or they may be, shall, upon due conviction of such slave or slaves before. any justice of the peace of the county wherein such offence

may be committed, forfeit five pounds; to be levied by a warrant immediately to be issued by such justice for that purpose. And if any person shall be duly convicted as aforesaid, of sending his slave to hunt with a gun, in the night by fire light, he shall be subject to the same pains as are inflicted on firehunters.

Any person convicted by indictment or presentment in any court of record, of killing any deer and leaving the carcasses in the woods, shall for every offence pay twenty shillings.

It shall not be lawful for any person on the east side of the Apalachian mountains to kill or destroy any deer running wild in the woods or unfenced grounds in this state, by gun or otherwise, between the twentieth day of February and the fifteenth day of August then next succeeding, in each year, unless on his own lands; and if any person on the east side of the said mountains, shall kill or otherwise destroy any deer within the time before described, and contrary to the meaning and intent of the act of assembly, every such person shall forfeit and pay for each and every deer so unlawfully killed or destroyed, the sum of forty shillings; to be recovered before any justice of the peace, and applied as by law directed. And in case any servant or slave shall on the east side of the said mountains kill or destroy any deer between the twentieth day of February and the fifteenth day of August in any year, the owner of such slave shall be liable to pay the sum of forty shillings for each deer so unlawfully killed or destroyed; to be recovered and applied as by law directed.

It shall not be lawful for any person on the east side of the Apalachian mountains, to hunt with a gun or with dogs on the lands of any other person, without leave obtained from the owner of the said land, under the penalty of forfeiting five pounds for every offence, to be recovered by the owner before any justice of the peace of the county where such offence is committed or the offender resides, and applied one-half to his own use, the other half to the use of the county. But no such recovery shall be had for the offence above mentioned, unless the owner of the land shall, by advertisement posted up in two or more public' places, have forbid the persons so hunting by name, or all persons generally, to hunt on his land previ ous to the offence. And recovery shall not be had in any case whatever, unless the prosecution is commenced within one month after the offence is committed.

All the aforesaid fines and penalties shall be one-half to the se of the informer, the other half to the use of the poor of

the county wherein the offence shall be committed, except such as are otherwise directed.

Upon any conviction for the offence of fire-hunting, and the person failing to pay the fine prescribed by law, the court in which the conviction is made, is authorised to sentence the offender to such term of imprisonment as may be judged adequate to the punishment of the offence, not exceeding two months.

IDIOTS AND LUNATICS.

An idiot, or natural fool, is one that hath had no uderstanding from his nativity; and therefore is by law presumed never likely to attain any.

A lunatic, or non compos mentis, is one who hath had understanding, but by disease, grief, or other accident, hath lost the use of his reason. A lunatic is indeed properly one that has lucid intervals; sometimes enjoying his senses, and sometimes not, and that frequentiy depending upon the change of the moon. But under the general name of non compos mentis are comprised not only lunatics, but persons under frenzies, or who lose their intellects by disease; those that grow deaf, dumb, and blind, not being born so; or such, in short, as are judged by the court of chancery incapable of conducting their own affairs.

But a person ought not to be found a lunatic or non compos, for being of a disturbed mind, or of a weak one, if he has reason enough to manage his affairs.

In criminal cases, idiots and lunatics are not chargeable for their own acts, when under these incapacities ;-no, not even for treason itself. Also, if a man in his sound memory commits a capital offence, and before arraignment for it, he be comes mad, he ought not to be arraigned for it, because he is not able to plead to it with that advice and caution that he ought. And if after he has pleaded, the prisoner becomes mad, he shall not be tried; for how can he make his defence? If after he be tried and found guilty, he loses his senses before judgment, judgment shall not be pronounced. And if after judgment he becomes of non sane memory, execution shall be stayed; for peradventure, says the humanity of the law, had the prisoner been of sound memory, he might have alleged something in stay of judgment or execution. But if there be any doubt whether the party be non compos or not, this shali be tried by a jury; and if he be so found, a total idiocy,