Defense Counsel’s Notes: Suffolk Superior Court, Boston, April 1770
Defense Counsel’s Notes1
Suffolk Superior Court, Boston, April 1770
Dom: Rex vs. Richardson and Wilmot Upon an Indictment for Murder
1st. To open the Defence with a proper Address to the Jury to remove all popular Prejudices and Passions and engage them to make a fair, candid and impartial Enquiry and to give their Verdict agreeable to Law and the Evidence, uninfluenc’d by any other Motive; to mention the manner of my becoming engaged as Council for the Prisoners, explain my Duty and the Part I ought and am determin’d to act.
2d. The Witnesses for the Crown having been carefully and thoroughly cross-examined, to produce those for the Prisoners, and endeavour to find out what the Nature and Degree of Provocation offered; how far the Attack upon the house was carried; Whether and to what Degree the Windows were demolished before the firing, and whether the Door was broke open, and any Attempt made upon it; whether any actual Attempt was made to enter; or any Evidence of such Design from threatning Words; Whether Men as well as Boys were not concerned in that Attack; What Weapons were used or thrown into the house; and whether any One within was wounded; and upon the whole whether this is not to be consider’d as an Attack upon the Persons of the Prisoners.
3d. To sum up the Evidence and state the Facts as they shall appear upon Evidence.
4thly. To explain the Nature of the Crime of Murder and the different Kinds of Homicide, as justifiable, excusable (as se defendendo) and felonious: and to shew the Distinction between felonious Homicide of Malice prepense, which is properly Murder, and without such Malice, which is Manslaughter. Foster 273. 4. 7.2 1. H.H.P.C. 449.3 4 Black. Com: 190.1.2.4
The Crime in the present Case cannot at most amount to more than Manslaughter, as he was in his house peceably and there assaulted, by breaking his Windows and throwing Stones at him. And if an Intent to enter and commit a Felony appear, whether from threatening Words, or an Attempt to break the Door or the manner and Degree of the Attack, it is excusable Homicide Se defendendo, at least, if not justifiable. A Man’s house is his Castle and he may defend it by himself alone or with such as he calls to assist him. 1 H.H.P.C. 445. 487.5 5 Coke Repts. 91b. Semane’s Case.6 11 Coke Repts. 82b. Lewis Bowles Case.7
A Man is not obliged to retire from his house. 1 H.H.P.C. 486.8
So he may justify killing one that attempts to break open his house in the Day time with an attempt to Rob or commit other Felony. 4 Black: Com. 180. 3. 182.9 1 H.P.C. Page 71 Chap. 28 Sect. 21 and by Sect. 23 of this and Sect. 13 of the next Chap. it appears that ware one kills another who assaults him in his house in the Day Time with Intent to beat him only is guilty of Homicide Se defendendo and if he appears to have a Design of killing him it is justifiable Homicide. Vid. Sect. 124.10 Vide also Hales P.C. 40 the reason why it is not justifiable but excusable only is that “they came not to commit a known Felony,” and “it cannot be judged whether he meant to kill me.”11 But if a man in the Daytime breaks the Windows of the house of another and endeavours to enter in order to execute a civil Process, and he within kills him this is Manslaughter and no more. Cooks Case in : 537. 8.12 And it appears by Lord Hales brief State of this Case 1 H.H.P.C. 458 that had Cook not known the other to be a Bailiff, it had been no Felony because done in Defence of his house.13 So if A endeavours to enter a house and shoots an arrow at those within and B shoots another out at those who wou’d enter and kills one of the Company. This is ruled not to be se defendendo, but Manslaughter because there was no Danger of their Lives by the Arrow so shot into the house upon them. Harcourts Case 1 H.H.P.C. 485. 6.14 Vid. also the Case of Dra[y]ton Basset in 1 H.H.P.C. 440. 1 and also in Page 444. 5 which shews who shall be said to be present, aiding, abetting &c.15
If upon angry Words one man assault another either by pulling him by the Nose or even filliping him upon the Forehead, and he who is so assaulted immediately runs the other through, it is but Manslaughter, for the Peace is broken by him that is killed; and he that receives such Indignity may reasonably apprehend a further Design upon him; Maugridges Case, in Keyling’s Repts. 135 adjudged and reported by Lord Holt.16
D. Williams on a sudden and slight Provocation only of Words kills Marbury, ruled to be only Manslaughter, 1 H.H.P.C. 469 and in 470,17 another Case mentioned also by Foster 298. 299 where no 18 given but an Officer had violently entered a Room to make an arrest.19
Two Boys fight, one is beat and runs home blody and complains to his Father who goes three quarters of a mile and kills the other Boy ruled to be Manslaughter by Reason of the sudden heat &c. 1 H.H.P.C. 453 Rowley’s Case taken from 12 Coke Repts. 87.20 Vide also a Case in Strange Repts. 499 &c. ruled to be manslaughter only a strong Case.21
On a sudden Affray or Quarrel if the Party has declined the Combat and retreated as far as he Can with Safety and kills his Adversary thro’ Necessity and to avoid immediate Death, it is Se defendendo;but if the Combat on both sides is kept up to the time the mortal Stroke is given, and he who gave it was not at that Time in emminent Danger of Death it is Manslaughter, Foster 277.22
A Woman strikes Stedman a Soldier who returns the Blow with the pummel of his Sword. She fled he pursued and stabbed her in the back this ruled to be no more than Manslaughter: by Holt. Foster 292.23 Vide the general Observation by the same author Page 296 which Note.24
If A shoots at B misses him and kills C, if it wou’d have been Murder supposing he had killed B; it will amount to the same Offence, tho’ C is killed, whom he did not intend to hurt. On the other hand if the Blow intended against B arose from a sudden Transport of Passion which if B had died by it wou’d have reduced the Offence to Manslaughter, the Fact will admit of the same Alleviation if C shou’d happen to fall by it. Foster 261. 2.25 1 H.H.P.C. 442.26
By Foster 295 Sect. 3d. it is apparent that tho’ base Words of Reproach or Gestures are not such Provocation as to lessen the Crime to Manslaughter. Yet when there is any assault on the Person arising from thence, it is otherwise: This Distinction appears from Maugridges Case:27 Whenever the Assault is very slight, as two persons justling against a Wall A kills B who had justled him, or if B had whipt A’s horse out of the Path and A had alighted and killed B, it had been only Manslaughter, 1 H.H.P.C. 455. 456.28 Where it also appears that Words of Menace of Bodily harm wou’d reduce the Crime to Manslaughter, though Words of Reproach only, woud not.29 Vid. these Distinctions 1 Hawkins P.C. Page 82 and 83 Sect. 34. 35. 36. 37.30
1. In an unidentified hand, probably Josiah Quincy’s; docketed by JA: “Rex v. Richardson.” Adams Papers, Microfilms, Reel No. 185.
2. The references are to 273, 274, and 277, all of which are within Chapter III, entitled “Homicide founded in Necessity.”
3. 1 449: “Chapter XXXVI: Touching murder, what it is, and the kinds thereof.”
4. 4 *190–192 distinguishes murder and manslaughter.
5. 1 445: “But if A. comes to enter with force, and in order thereunto shoots at his house, and B. the possessor, having other company in his house, shoots and kills A. this is manslaughter in B.” 1 id. at 487: “[H]is house is his castle of defense, and therefore he may justify assembling of persons for the safeguard of his house.”
6. Semayne v. Gresham, 5 91, 77 194 (K.B. 1605).
“[T]he house of every one is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose; and altho’ the life of man is a thing precious and favoured in law . . . if thieves come to a man’s house to rob him, or murder, and the owner or his servants kill any of the thieves in defence of himself and his house, it is not felony, and he shall lose nothing. . . . [E]very one may assemble his friends and neighbours to defend his house against violence.”
7. Bowles v. Bury, 11 79, 82, 77 1252, 1258 (K.B. 1616): “If a Man is in his House, and hears that others will come to his House to beat him, he may call together his Friends, &c. into his House to aid him in Safety of his Person; for as it has been said, A Man’s House is his Castle and his Defense, and where he properly ought to remain.”
8. 1 486: “[A man] being in his own house need not fly, as far as he can, as in other cases of se defendendo, for he hath the protection of his house to excuse him from flying, for that would be to give up the possession of his house to his adversary by his flight.”
9. 4 *180:
“If any person attempts a robbery or murder of another, or attempts to break open a house in the night time . . . and shall be killed in such attempt, the slayer shall be acquitted and discharged. This reaches not to any crime unaccompanied with force, as picking of pockets; or to the breaking open of any house in the day time, unless it carries with it an attempt of robbery also.”
10. 1 71, §21 lists various justifiable killings of wrongdoers. Id. at 72, §23:
“[H]e who in his own Defence kills another that assaults him in his House in the Day-Time, and plainly appears to intend to beat him only, is guilty of Homicide se defendendo, for which he forfeits his Goods, but is pardoned of Course; yet it seems that a private Person . . . who happens unavoidably to kill another in endeavouring to defend himself from, or suppress dangerous Rioters, may justify the Fact, inasmuch as he only does his Duty in Aid of the publick Justice.”
“where one, who has no other possible Means of preserving his Life from one who combats with him on a sudden Quarrel, or of defending his Person from one who attempts to beat him (especially if such Attempt be made upon him in his own House,) kills the Person by whom he is reduced to such an inevitable Necessity.”
“And I can see no Reason why a Person, who without Provocation is assaulted by another in any Place whatsoever, in such a Manner as plainly shews an Intent to murder him, as by discharging a Pistol, or pushing at him with a drawn Sword, &c. may not justify killing such an Assailant, as much as if he had attempted to rob him.”
11. 40: “But if the assault in my House were not to rob me, but to beat me, &c. there would be only se defendendo and Goods forfeited, and a Pardon of course to be granted,” and so as in the text. Quotation marks have been supplied in text.
12. Rex v. Cook, 537, 79 1063 (K.B. 1639). The text states the case.
13. 1 458. Hale does not mention that the breaking took place in the daytime, which, according to the report, it did. It seems likely, therefore, that whoever wrote the instant note had examined the original report in Croke.
14. 1 485–486. The text states the case.
15. The Drayton Basset Case, 1 440–441, and the discussion in id. at 444–445, concern liability of each member of an unlawful gathering for death caused by any one of them.
16. Reg. v. Mawgridge, 119, 135, 84 1107, 1114, 484, 90 1167 (Q.B. 1707). JA had dealt with this case recently when arguing Rex v. Corbet, No. 56. His notes for that argument, together with the footnotes thereto, fairly state the case.
17. Rex v. Williams, 432, 82 227 (K.B. 1640). Williams, a Welshman, on being taunted by R., threw a hammer at him, but missed, striking and killing M. Held: Manslaughter and, because not within the Statute of Stabbing, 1 Jac. 1, c. 8 (1604), clergy allowed, 1 470 note, notes the view of Holt, C.J. in Reg. v. Mawgridge, 119, 131–132, 84 1107, 1113 (Q’B. 1707), that if the indictment had been for murder Williams ought to have been found guilty for lack of sufficient provocation.
18. Blank in MS.
19. 298–299, in a discussion of the Statute of Stabbing, recites the anonymous case here stated, 1 470, to which Foster cites, attributes the case to the 1657 Newgate sittings before Glynn, C.J. Held: The killing was not within the Statute, and so clergy allowed.
20. Rex v. Royley, 296, 79 254 (K.B. 1612), reported anonymously 12 87, 77 1364, and set out substantially as in the text, 1 453.
21. Rex v. Reason & Tranter, 1 499, 93 659 (K.B. 1722), discussed at length, 292–294. Held: where two against one, deceased stabbed nine times, then shot as he lay on the floor, defendants guilty only of manslaughter, because the evidence supported a finding that the deceased struck the first blow and threatened the defendants.
22. 277:
“He therefore who in the Case of a mutual Conflict would excuse Himself upon the Foot of Self-Defence must shew, that before a Mortal Stroke given He had declined any further Combat and retreated as far as He could with Safety: and also that He Killed his Adversary through meer Necessity, and to avoid immediate Death. If He faileth in Either of these Circumstances He will incur the Penalties of Manslaughter.”
23. Reg. v. Stedman, 292 (Old Bailey, 1704):
“Holt was at first of Opinion that this was Murder, a single Box on the Ear from a Woman not being a sufficient Provocation to Kill in this Manner, after He had given Her a Blow in return for the Box on the Ear. And it was proposed to have the Matter found Special. But it afterwards appearing in the Progress of the Trial, that the Woman struck the Soldier in the Face with an Iron Patten, and drew a great Deal of Blood, it was held clearly to be no more than Manslaughter.”
24. 296:
“To what I have offered with regard to sudden Rencounters let Me add, that the Blood, already too much Heated, kindleth afresh at every Pass or Blow. And in the Tumult of the Passions in which meer Instinct Self-Preservation, hath no inconsiderable Share, the Voice of Reason is not heard. And therefore the Law in Condescension to the Infirmities of Flesh and Blood hath extenuated the Offence.”
25. 261–262, sets out substantially the point here summarized.
26. 1 442, supports this point.
27. 295:
“A. useth provoking Language or Behaviour towards B. B. striketh Him, upon which a Combat ensueth, in which A. is Killed. This is held to be Manslaughter, for it was a sudden Affray and They fought upon equal Terms. And in such Combats upon sudden Quarrels it mattereth not Who gave the first Blow.”
28. 1 455–456, sets out these examples.
29. 1 456: “[W]ords of menace of bodily harm would come within the reason of such a provocation, as would make the offense to be but manslaughter.”
30. 1 82–83, discusses the various provocations and excuses, and collects the applicable cases.