The reading of M. Robert Brook ... upon the stat. of Magna Charta, chap. 16

The reading of M. Robert Brook ... upon the stat. of Magna Charta, chap. 16

Table of contents

Title page

The Contents.

The Reading of Mr. ROBERT BROOKE, Serjeant of the Law, and Recorder of London, upon the Stat. of Magna Charta, the seventeenth Chapter.

CHAP. I. of high Treason.

CHAP. II Of petie Treason.

CHAP. III. Of Murder, Manslaughter, and what not.

CHAP. IIII. What acts and misdemeanors may be called Robbery, and what not, and what Felony, and what Burglary.

CHAP. V. Accessaries and good Indictments. What persons may bee called accessaries to the felons, and what not; and where the accessaries shall bee put to answer, and where not; and which shall bee said good indictments of felony, and which not.

CHAP. VI. Arraignment of felons, and what pleas they shall have, and what not; and where they shall bee put to penance, and where not; and where a man shall bee twice arraigned for one felony, and where his life shall bee put twice in jeopardy for one felony.

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THE READING OF M. ROBERT BROOK, SERIEANT of the Law, and RECORDER of LONDON, Upon the Stat. of MAGNA CHARTA, CHAP. 16.

[printer's or publisher's device]

LONDON, Printed by M. FLESHER, and R. YOUNG, and are sold by Laurence Chapman, and William Coke. Anno 1641.

The Contents.

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Chap. I. OF high Treason. pag. 1

Chap. II. of petie Treason. pag. 3

Chap. III. of Murder, Manslaughter, and what not. pag. 4

Chap. IIII. What acts and misdemeanours may bee called Robbery, and what not; and what Felony, and what Burglary. pag. 9

Chap. V. Accessaries, and good Indictments, &c. pag. 14

Chap. VI. Arraignment of Felons, and what pleas they shall have, and what not; and where they shall bee put to penance, and where not; and where a man shall bee arraigned twice for one Felony; and where ones life shall be put twice in jeopardy for one felony. pag. 19.

The Reading of Mr. ROBERT BROOKE, Serjeant of the Law, and Recorder of London, upon the Stat. of Magna Charta, the seventeenth Chapter.

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CHAP. I.
of high Treason.

INprimis, If any man imagine the death of the King, or of the Prince, or Princesse, or of any that is Heire apparent to the Crowne, it is high Treason.

If any keep warre against the King in his Realme,25. E. 3. it is high Treason by the Stat. of 25. E. 3.

If any bee ayders or assistants to the Kings enemies,23. E. 3. & either within the Realme, or elsewhere, it is high Treason.

If any affirme by writing, or other act, that the [Page] King is not supreme Head of the Church of England; or if any imagine to deprive the King of his estate Royall, or of the titles of his Realme, it is high Treason.

If any to whom the Crowne is committed by Act of Parliament,35. H. 8. cap. 1. usurpe it, or demeane it in other manner then is expressed in the Act, or will keepe the King from it, it is high Treason by Stat.

If any man kill the Chancellor, or Treasurer, or any of the Justices of one Bench or other, Justices of Oyer, Justices of Assize, or of Oyer and Terminer, sitting in their Offices, it is high Treason.

If any counterfeit the Kings Seale manuall, Privy Seale, or his Signet, it is high Treason.

If any countefeit the Kings coyne of this Realm, or of any other coyne currant in England, or clip, wash, file, round, or diminish the said coyne, it is high Treason.

If any man bring false money or counterfeit into England, having knowledge of that money to bee counterfeit, it is high Treason.

If any man kill the Kings Messenger in his message, it is high Treason.

If any man kill one that rideth with men to aide the King, it is high Treason.

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CHAP. II
Of petie Treason.

IF the Wife kill the Husband, or the Husband the Wife; or the Servant his Master or Mistris, this is petie Treason.12. E. 3.

A woman of the age of thirteene yeeres killeth her Mistris,19. H. 6. this is petie Treason; but shee shall not bee hanged and drawne,40. R. 2. but burnt.

The Servant procureth another to kill his Master,25. E. 3. which killeth him, it is not petie Treason in the Servant; for the principall is no Traytor, and the accessary is no ways cast, and so they be both Felons.

A man beateth his servant, which departeth from him, and after the end of his terme hee killeth him that was his Master in revenging his old quarrell,30. E. 3. sol this is petie Treason; for the murder cometh of the malice that began in his service.

A man marryeth his cousin, and she killeth him, this is not petie Treason, for they were never lawfully marryed.

A man retaineth J. at S. to bee his Steward of his Courts,25. E. 3. and hee killeth his Master, this is not Treason; for hee is no servant that oweth to his Master obedience, as is contained in the Statute of 25. E. 3.

If an infant of the age of ten yeares marry a wife of the age of nine yeeres,3. H. 7. and shee killeth her husband, this is petie Treason, for at that age shee shall bee endowed.

[Page] A man retaining a woman for 40. s. a yeere to bee his Concubine, and shee kill him, this is no Treason, for the retaining was not lawfull, and therefore shee was not his servant.

The Husband and the Wife bee divorced (causâ frigiditatis) and after shee killeth her Husband, this is petie Treason, for that is but a divorce from table and bed, and matrimony doth continue, and therefore shee ought to bee faithfull and obedient.

The Husband and the Wife bee divorced (causâ consanguinitatis) and after shee killeth her Husband, this is no Treason; for the marriage was against the Law.

A man marryeth with a Turke or a Jew, and shee kils him, this is no Treason: for the marriage was unlawfull.

A Villein killeth his Master, this is no Treason.

The Tenant doth homage unto his Lord, and after killeth him, this is no Treason.

A man hireth an infant of the age of 10. yeeres,28. E. 3. and hee killeth his Master,& 2. H. 4. this is not Treason; for the retaining was voyd.

CHAP. III.
Of Murder, Manslaughter, and what not.

WHat shall bee said Murder, and what Manslaughter, and where a man may justifie the killing of a man.

[Page] A man is indicted of felony,22. E. 3. and a Cap' is awarded to take him, and hee resisteth; if the Officer kill him, hee may justifie it, if he could not otherwise take him.

The Gaoler cometh into the prison, and findeth his prisoners at large,22. E. 3. and breaking their fetters; if hee kill them, hee may justifie that act, if hee could not otherwise take them.

A prisoner in ward for felony breaketh the prison,22. E. 3. and escapes, and I. S. cometh to him, and cannot take him but by killing of him, and so doth kill him, this is justifiable.

Two women fight,22. E. 3. and I. S. cometh to part them,Manslaug [...] and one of them striketh I. S. and killeth him without malice, this is manslaughter and felony, and shee shall die for it, for shee seeth I. S. But quere if shee had stroke him behinde his back, if it had been felony or not.

A thiefe cometh to the house of I. S. and setteth fire on it,25. E. 3. fol [...] and I. S. shooteth at him and killeth him, this is neither felony, murder, nor manslaughter.

The Master and the Servant riding by the way,25. E. 3. fol [...] a thiefe assaulteth the Master, and striketh the Master to death; the servant hastily to rescue his Master, killeth the thiefe, this is neither murder nor manslaughter.

A thiefe assaulteth I. S. to rob him,25. E. 3. fol [...] v [...]l. 22. and I. S. killeth him, this is neither murder nor manslaughter.

[Page] A man goeth in an high way within a Parke, and the Keeper hath malice towards him, and cryeth to yeeld, and hee will not, but standeth at defence, and the Keeper killeth him, this is felony of his death.

An Infant within the age of discretion, (that is, nine yeeres) killeth his companion, and after excuseth himselfe,12. E. 3. fol. 30. this is felony of death; for by the excusing of himselfe it doth appeare that hee hath discretion to know good from evill.

A man non sanae memoriae killeth a man, this is no felony,21. H. 7. neither shall he die for it; for others of discretion cannot take example at him.

A man killeth one that is outlawed of felony, this is not felony of death.

A man that is deafe,2. E. 3. fol. 3. dumbe, and blinde, killeth a man,2. E. 3. fol. 3. this is neither felony, manslaughter, nor murder, causa qua supra.

A man beateth a woman that is with childe, and shee laboureth, and the childe is dead borne, this is neither murder nor manslaughter.23. E. 3. fol. 2.

A man cutteth a tree, and the branches of the tree fall upon I. S. 6. E. 4. fol. 8. and kill him, unknowne to him that cutteth the tree, this is not felony, for it is not done with a felonious intent.

A man shooteth at the pricks, and killeth a man, this is not felony; for the marks bee certaine, every man ought to keep himselfe off: but otherwise it is where the pricks bee not certaine, for then hee that shooteth must take heede where hee shootes.

[Page] Two men fight,6. E. 4. and one of them killeth I. S. being behinde him as hee striketh at his adversary, this is not felony, because he doth not see him: but otherwise it had been if he had seen him.

A man hath judgement to bee hanged,3. H. 5. and the Sheriffe doth behead him, this is murder.

A man striketh another downe to the ground, and holding his dagger in his hand, the other, for haste to arise to strike him againe, runneth upon his dagger and is killed, this is neither murder nor manslaughter in him that held the dagger.

A man striketh another,30. E. 3. fol. 3 [...] which dyeth without a yeer and a day, it is neither murder nor manslaughter; for if hee dyed out of the yeere, it shall bee intended hee dyed of the visitation of God, and not of the stroke.

A man impaleth his ground, and putteth in his Deere, and hath a Keeper to keep them, and I. S. commeth through the Parke,23. and hunteth, and the Keeper cryeth unto him to yeeld him to the Keeper, and hee will not, and the Keeper killeth him, this is murder per Statutum de malefactoribus in Parcis, and it is not materiall, be it by day or by night, for it is no Park if the Lord have not the Kings Leters Patents.

A man perceiveth his Father to be sick,2. E. 3. and under pretence of amity hee carryeth him from Towne to seek Physick, and killeth him by importunate carriage, this is murder.

A Physician or Surgeon taketh a man in cure,3. E. 3. [Page] which doth kill him by the insufficient medicine, this is not murder nor manslaughter.

A man that is neither Physician nor Surgeon taketh upon him to know Physick and Surgery,3. E. 3. and taketh upon him the cure of men, and one dyeth for the insufficiency of medicine, this is murder.

A man abjur'd going to his Port or Sanctuary,10. H. 4. meeteth a man in the high way, and killeth him, this is murder, but hee shall not bee arraigned for it, for hee had judgement of death before, and hee shall not have another judgement of death before that he have avoyded the first judgement.

The Prince striketh a man of malice, which dyeth of the stroke, and the King dyeth, this is not felony, for by the death of the King the Prince is King, and cannot be a felon.

A Turke or a Jew cometh into England without the Kings licence, and I. S. killeth him, this is not felony; for hee is neither or the faith of Christ, nor under the Kings protection.

I. S. [...]1. E. 3. Deane of Pauls, and fourteene of the Chapiter steale sheep, this is not felony in the Body politick, but in their materiall bodies.

A man cometh to a Park, and findeth the Keeper, and bindeth him to a tree, and gaggs him, this is murder if he dye.

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CHAP. IIII.
What acts and misdemeanors may be called Robbery, and what not, and what Felony, and what Burglary.

A Man assaulteth another to rob him, and taketh from him but one penny, this is robbery, and felony for the feare hee putteth the other in.

A man assaulteth another to rob him, and snatcheth at his purse, and taketh hold of his girdle, and the true man escapeth away with his purse, and the thiefe hath but the girdle, this is felony.

A thiefe goeth by the high way, and findeth I. S. Nul Ley per Stat. de 4. E sleeping, and the thiefe taketh out of I. S. his purse 12. d. and leaves him sleeping, this is not felony; for I. S. was never put in feare of his life.

A man meeteth his Villein in the night, and taketh from him his horse, this is no felony; for hee may take any thing away from him by way of seisure.

Lord and Tenant: The Lord cometh to the house of the Tenant in the night, and taketh from him his bacon or his beefe for rent, or service in arrere, this was not felony, for it was not with a felonious intent.

A Writ is directed to the Sheriffe, to attach I. S. in a personall action, and comming in the night, findeth I. S. leading his horse in his hand, and tacheth I. S. by his horse, this is not felony, for hee [Page] hath colour to take his horse by precept.

A Tailor receiveth of I. S. cloth to make for him a coat, and the Tailor putteth in other lining then I. S. his lining; I. S. taketh the coat and lining from the Tailor, this is not felony; for the lining and the thred bee of the same nature as the principall is, which is the coat.

A man claymeth as heire lowmes after the death of his Father more stuffe then hee ought to have, and cometh in the night, and taketh them from the Executors by force, this is not felony; for hee maketh title unto the goods.

A man meeteth another in the night with a greyhound in his slip,12. [...]. 8. and assaulteth him to rob him of his dog, this is felony; although the taking of the dog without feare is not felony, yet because the party was put in feare of his life, it is felony.

A man cometh into a wood,32. E. 3. fol. 32. and cutteth and taketh away trees to the value of 20. s. it is not felony; for they bee parcell of the Franktenement; but otherwise it is if a man steale away trees that bee felled.

If a man ravish a woman it is felony.

A man cometh into an house to rob a man, and sudden feare taketh him, and he departeth without doing any harme, this is felony.

A man cometh to the house of I. S. 1. H. 7. to arrest one S. for felony, and I. S. doth resist him, this is felony in I. S.

A man is robbed, [...]7. E. 3. and pursueth the felon, and arresteth him, and taketh his goods, and suffereth [Page] the felon to goe, this is felony in him that was robbed.

A man entreth into an house to rob, and no body lyeth in the house,31. E. 3. and hee retireth againe, and taketh nothing; yet this is burglary and felony.

A man taketh a flight of Doves in the field, this is no felony.

A man stealeth fish out of my severall ponds to the value of 13.22. H. 8. d. this is felony; for the Stat. of 22.Auterment [...] per 5. El. ca. H. 8. which is revived, maketh mention, where a man hunteth with a visard, or disguised.

A man entreth into the Church in the night to rob it,22. E. 3. and findeth nothing, this is burglary.

A man that is Lord claymeth the best beast that his Tenant hath for herriot custome, and the Lord taketh his herriot in the night,S. H. 7. fol. 1. this is no felony, for the property of the beast is in the Lord by the death of his Tenant.

A thiefe stealeth my horse, and I pursue him, and for feare he delivereth me my horse, and I take him, I am neither felon nor accessary; for it is at mine election to make the taking of my horse felony or trespasse: but otherwise it is if I arrest him by an Officer.

A man stealeth goods that bee wrecked up in the sea,22. E. 3. fol. it is not felony, for the propertie of the goods is in no man.

A man lyeth in an Inne,fol. 32. and in the night taketh his sheets and coverlets and hideth them,5. H. 4. and goeth for his horse, and before hee can escape away, hee is taken, this is felony by Statute.

[Page] A man commandeth his Wife to steale money from I. S. 27. E. 3. fol. 16. shee doth, it is not felony in the Wife, for by the compulsion of her husband shee is obedient.

A woman that is heire apparant unto her Father,5. H. 7. is taken away against her will by I. S. and after is by him marryed by cohercion, this is felony by Statute.

A man stealeth I. S. and putteth out one of his eyes, this is not felony; for the Statute speaketh of putting out both the eyes, and a penall Statute shall bee taken strictly, for hee hath put out but one eye.

A man stealeth a box of evidence,10. E. 4. this is not felony, for the box is of the same nature as the Charters are, and the Charters concerne the Franktenement.

A man delivereth his beasts for another to sell for him,15. E. 4. which flyeth with them, this is not felony, because hee came lawfully by them.

A man delivereth his plate to his Butler to keepe, and hee flyeth with it,13. E. 4. & 21. H. 7. this is felony, for so long as the plate remaineth within his house, it is in his possession.

The Wife taketh the goods of her Husband,13. E. 4. and carryeth them away secretly, this is not felony; Quaere the Receiver.

A man stealeth young Doves out of their nests,16. E. 4. this is felony.

Hawkes taken out of their nests is felony:18. E. 4. but if they be taken with nets when they are branchers, it [Page] is not felony, for they bee out of every mans possession.

A man stealeth fish out of my trunk in the day,18. E. 4. this is felony.

A man stealeth Faulcons eggs out of the nests,3. & 4. H. [...] this is felony by Statute.

If a man burn another mans house,1. E. 4. 3. H 13. E. 4. it is felony.

A woman that is marryed and I. S. bee confederated to rob the Husband, and the Wife stealeth the goods, and delivereth them to I. S. this is felony in I. S. but not in the Wife.

A man stealeth my Popingay or Linet,12. H. 8. or other such bird of pleasure, it is not felony.

The same law for stealing of Hounds;12. H. 8. but if a man steale a Mastiffe, it is felony; for Hounds be but things of pleasure, and not of profit; but the Mastiffe is contrary.

A man entreth into my house in the day to rob, and taketh nothing, it is felony.

A Gaoler compelleth a prisoner to approve or appeale others that are not guilty,14. E. 3. it is felony in the Gaoler by Statute.

If a man steale at twenty times twenty pence, it is felony; yet if hee had stollen twenty pence at one time, it had been but pety larceny.

A man stealeth a seat out of the Church,9. H. 7. this is not felony; for it is parcell of the Franktenement.

A man maketh a grant of the next voydance of a Benefice, and I. S. stealeth it, this is felony; for the Charter is of the nature of a Charter royall.

[Page] A man stealeth milstones off a mill,14. H. 8. it is no felony.

A man is outlawed in the common law by the name of I. S. 9. H. 6. for debt, and one raseth the record, and putteth in T. D. this is felony by Statute.

A man baileth goods to I. S. to keepe, and after the bailor stealeth the goods from the bailee,7. H. 7. it is not felony, for the property is in himselfe; but it is adjudged contrary.

A man stealeth glasse out of windowes which be made fast with sprignailes,27. H. 7. it is felony.

But contrary, if they be fastned with great nailes, for then they be parcell of the Franktenement.

Felons doe breake my doores, towers, or ports, to the intent to rob, kill, or feare any man; this is felony, though they take nothing.

CHAP. V.
Accessaries and good Indictments. What persons may bee called accessaries to the felons, and what not; and where the accessaries shall bee put to answer, and where not; and which shall bee said good indictments of felony, and which not.

NOte,Accessary before. Accessary after. That there bee two kindes or manners of Accessaries, one before the felony, and another after the felony. Accessary before the felony is hee that moveth the felon to doe the felony: Accessary after, is hee that receiveth, or doth aide or help the felon in any manner after the felony done, to his knowledge.7. H. 4.

[Page] Principall and Accessary;7. H. 7. 3. [...] fol. 1. 11. [...] 9. E. 4. the principall not being arraigned, the accessary shall not bee put to answer.

The principall is taken and put in prison, and dyeth in prison,7. H. 4. the accessary shall not bee put to answer; for by the death of the principall, the accessary is discharged.

Two men are indicted for killing of a man, the one as accessary, the other as principall; and it is found the principall killed him se defendendo, the accessary shall not bee put to answer: for when the principall is acquit of the felony, the accessary shall not be in worse case.

A man committeth felony,fol. 34. 25. E. 3. fol & 5. and I. S. saith for his deliverance according to the Law, hee is not accessary to his felony.

I. S. is accessary to a felony, and W. S. knowing of it, receiveth or comforteth I. S. hee is accessary, and it is felony in him; for hee that is accessary is a felon, and the first accessary is a felon, and therefore hee is accessary to the felony.

A man procureth I. S. that he should procure I. K. to kill W. D. the first procurer is accessary.

A man stealeth goods, and I. S. is indicted, quòd ipse felonicè recepit, 27. E. 3. knowing that the goods were stollen, I. S. is attainted, and there is another accessary to I. S. he shall never be put to answer; for hee is accessary to the goods, and not to the man.

If an infant, or a man that is mad receive goods that be stollen, it is not felony nor accessary.

If the principall pleade the Kings pardon, the [Page] accessary shall not bee put to answer.

If a woman covert baron receive a felon, or goods at his hands, knowing that they bee stollen, shee is accessary.

If the principall plead not guilty,7. H. 4. & 15. and bee found guilty, and pray his clergy, and hath it, the accessary shall not bee put to answer, for the principall may make his purgation, and goe at large.

A man committeth felony, and his wife knowing of it, bringeth to her husband meat and apparell, and other necessaries, she is not accessary.

Principall and accessary bee,22. E. 3, 4, & 6. the principall is hanged for another cause, the accessary shall not be put to answer.

If the principall confesse the felony,13. E. 4. fol. 7. and upon his arraignment he pray his book, the accessary shall be put to answer, for by the confession the principall is concluded to make his purgation: but upon a verdict, if the principall pray his Clergy, the accessary shall bee discharged; for it were against reason to hang the accessary, and suffer the principall to goe at large.

A woman that is married doth felony, and cometh to her husband, and hee knowing receiveth her, is accessary to the felony.

Note, The indictment of felony may bee taken before the Justices of the Kings Bench, or before Justices of Oyer and Terminer, or Justices of peace in letters.Fol. 35. 9. E. 4. fol. 4.

A man is indicted for that he such a day and yeer did feloniously steale the gowne of a certaine man [Page] unknowne; this is a good indictment, but this word unknowne is not a good word in an appeale.

A man was indicted of a rape, eo quòd ipse tali die an.1. E. 6. & hora à se, & eam tunc & ibidem carnaliter cognovit, contra voluntatem suam: this indictment is naught, for it lacketh felonicè, and by the Stat. it shall be rapuit, & cepit, & carnaliter congnovit.

In an indictment for breaking of the prison,9. E. 4. the indictment shall make mention, that the prisoner was in prison for felony.

A man may be indicted by the name of I. S. 21. H. 6. hostler, for that is a good addition.

It is not a good indictment of murder to say,9. E. 4. felonicè interfecit, for it should be, felonicè murderavit.

A man may bee indicted by the name of I. S. 22. E. 4. parish Clarke, and it is a good addition.

Widow,10. H. 6. or single woman is a good addition.

I. S. is indicted eo quòd ipse est communis latro; 22. E. 3. this is not a good indictment, for it is not certaine what felony hee hath done, so that hee cannot tell how to have traverse to it.

A man is indicted in the Sheriffes turne the fourth day of Novem. 31. E. 3. it is as coram non Judice, for the Sheriffe ought to hold his turne in the moneth of Easter or Michaelmas, by the Stat. 31. E. 3. as it doth appeare 6. H. 7. fol. 1. 38. H. 6. fol. 7.

A man is indicted of felony at the great Leete of I. N. holden,10. E. 3. &c. this indictment is not good, for the Lord cannot award processe for the party in that Court.

If a man bee indicted of rape by formall indictment [Page] in a Leet or Sheriffes turne, the indictment is void; for by the Statute rape is not inquirable in a Leet or Sheriffes turne, but as trespasse, as it was before the Statute; the same Law of the Decrees tantum, though that a man have congnisance of plea by the Kings grant.

If a man bee indicted for felony done upon Saint John's day,3. H. 4. the indictment is void, for there are two S. John's dayes, and the indictment ought to shew which.

A man is struck in one County,2. E. 6. and dyeth in another County, hee that stroke him is indicted in the County where hee dyed, this is a good indictment by the Stat. of 2. E. 6.

If a man be indicted for counterfeiting the Kings coyne before the Justices of peace,2. R. 3. it is voyd, for they have not authority to doe that.

If a man be indicted for felony, for stealing of an horse, if the indictment want any of these words, that is to say,2. E. 3. felonicè cepit & abduxit, the indictment is voyd, for these words shall not bee taken by implication, if they lack.

If a man and two women be indicted for ravishing one A. S. 44. E. 3. fol. 15. & 13. this is not a good indictment, as well against the two women as the man, quare cognovit quod unum feme poet foultra ovesque un auter uncore el poet estre al home coadjutor.

A man is indicted for that hee was privie unto a murder done by I. S. 14. H. 4. this is not a good indictment, for the indictment doth not shew that he did strike, and counsell or consent unto the felony.

[Page] A man indicted of felony in the time of H. Fol. 36. 1. E. 8. that indictment will serve well in the time of E. 6. per Statut. I. E. 3.

Commissioners of Oyer and Terminer, of felons by Commission in the time of H. 8. take indictments in the time of E. 6. the parties indicted shall not bee arraigned upon the said indictments, for by the death of the King, their Commission is determined.

Crowners made in the time of H. 4. E. 4. fol. [...]. 8. may take indictments super visum corporis in the time of E. 6. for they be made by Writ, and not by Commission, and they shall endure untill they shall be discharged by Writ: but otherwise of Commissioners.

CHAP. VI.
Arraignment of felons, and what pleas they shall have, and what not; and where they shall bee put to penance, and where not; and where a man shall bee twice arraigned for one felony, and where his life shall bee put twice in jeopardy for one felony.

A Man is arraigned of the death of I. S. 16. E. 3. fol. which was killed at B. hee saith hee was another time arraigned, indicted, and acquitted of the death of the same I. S. at B. interfect. in another place, and sheweth the Record under seale, and averreth that he is the same person that is I. S. this is a good plea.

A man is outlawed of felony,7. H. 6. and is led unto the Barre, and demanded of him what hee hath to say wherefore he should not die; and hee saith that in the time of the outlawry hee was in prison in the [Page] Castle of B. sub custod' &c. this is a good plea.

A woman is arraigned of felony, and is convict by verdict, and is demanded what shee can say why shee should not dye, which saith she is with childe; this is a good plea: it was holden contra 12. E. 3, fol. 11.

A man is indicted as accessary unto a felony committed by I. S. 8. [...]. 4. sol. 4. which was arraigned and attainted: the defendant saith that there is no such record, and prayes allowance, and pleads over to the felony, not guilty; this is a good plea.

Two bee arraigned, and one pleadeth the Kings pardon, and a release to his companion, and sheweth that it is no plea,21. E. 4. 21. E. 4. for felony cannot be joynt; but otherwise it is of trespasse.

A man arraigned of felony, saith that another time hee was arraigned of another felony committed since that felony was done, and acquit where his life was in danger, and demands judgement: If for any other felony committed before hee shall be arraigned, this is no plea; but if hee had pleaded hee had been condemned, and had the Kings pardon after, and so delivered, it had beene good plea; for judgement of death is a discharge of all felons done before.

A man committeth murder,2. H. 7. and the King pardons him the murder, and the next day hee beateth and maymeth I. S. and hee is arraigned of the murder, & pleadeth the Kings pardon, by the beating of I. S. the pardon is become not good, 2. H. 7. for by the Stat.10. E. 3. of 10. E. 3. hee shall finde surety of his [Page] good behaviour for 3. moneths after the pardon.

A man stealeth goods in the County of A.4. H. 7. and bringeth them in the County of N. and after is indicted and arraigned in the County of A. and hee saith hee carryed the goods into the County of N.fol. 37. and there hee was indicted and acquitted for the same goods, and prayes allowance, and to the felony not guilty, this is good plea; for though hee commit felony in two Counties, his life shall not be in jeopardy twice for one felony.

A man arraigned of felony pleades not guilty unto the issue,11. H. 4. and when the Jury appeares hee pleades the Kings pardon, and shewes it, that is no plea, except the pardon beare date after the issue joyned.

A man arraigned of felony pleades the Kings generall pardon by Act of Parliament, although hee hath pleaded not guilty before, that pardon shall bee allowed, for every man is bound to take notice of that pardon.

A man is indicted by the name of I. S. of B. and upon the arraignment,1. H. 5. he saith his name is I. Roe of B. and not I. S. and prayes allowance, and pleades over to the felony not guilty, this is no plea, for he ought to give it in evidence if he be mis-named. for if he be the same person, he shall answer to the felony: but otherwise it is in appeale.

A man arraigned of felony saith, that another time I. S. appealed him of the same felony, unto that which hee pleaded not guilty by battell, and hath vanquished the appeale, and went quit: [Page] this is no good plea, for his life shall not bee put in jeopardy twice for one felony.

A man is arraigned of felony upon an indictment,7. H. 7. fol. 5. and saith, that another time he was outlawed upon the same felony, and reversed the outlawry by errour, this is no good plea; for though hee reversed the outlawry, yet if the indictment bee good, he shall answer unto the felony: but otherwise it is upon outlawry of debt or trespasse, for the plaintiffe shall have a new Originall.

A man is arraigned at the Kings suit for killing I. S. which saith, that at another time hee was arraigned for the killing of the said I. S. in an appeale at the suit of K. daughter and heire of the same I. S. this is no plea, but hee shall be at another time arraigned;Magna Charta, cap. 3. 4. for by the Stat. of Magna Charta cap. 3. & 4. no man shall bee appealed of the death of a man at the suit of a woman, except it bee of the death of her husband.

A man is arraigned upon an indictment for killing I. S. 21. H. 6. which saith, at another time hee was arraigned at the suit of I. S. son and heire of the same I. S. this is no good plea, if the wife of I. S. was alive at the time of the appeale brought; but he shall be another time arraigned.

A man is arraigned of the death of I. S. 21. H. 8. which saith, at another time he was arraigned of the same felony, and acquit at the suit of R. S. son and heire of the said I. S. this is no plea, if the party that maketh the same be not the eldest son of I. S. at the time of the appeal, or if he have an elder son alive.

[Page] Two men commit a felony,fol. 38. and one of them is arraigned and acquit, and after the acquittall hee receiveth his companion, which is attainted after of the same felony; this receiver which was acquit before,17. E. 3. & 10. shall now bee arraigned as accessary to the same felony of which he was acquit before as principall: and if he plead this matter, it shall bee no sufficient plea for him, for that hee was accessary after the acquittall.

A man arraigned of felony pleadeth not guilty, and the Jury is deferred for default of Jurors, and a talis is awarded, and at the day given by the talis, he pleads the Kings pardon bearing date after the day of default, this is no good plea.

Note, that when a man pleadeth a barre in matter in fact, he may pray allowance, and plead over to the felony; but when hee pleadeth a matter of record in barre, hee shall not plead over to the felony as a formall acquittall, the Kings pardon, and such like.

FINIS.

Information about this book

Title statement

The reading of M. Robert Brook ... upon the stat. of Magna Charta, chap. 16

Brooke, Robert, Sir, d. 1558.

Edition statement

1641

Publication

Publisher

Text Creation Partnership,

Place of publication

Ann Arbor, MI ; Oxford (UK) :

Date

2008-09 (EEBO-TCP Phase 1).

ID [DLPS]

A29654

ID [STC]

Wing B4896

ID [STC]

ESTC R19696

ID [EEBO-CITATION]

12258695

ID [OCLC]

ocm 12258695

ID [VID]

57692

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This keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the Early English Books Online Text Creation Partnership. This Phase I text is available for reuse, according to the terms of Creative Commons 0 1.0 Universal. The text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission.

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Early English books online.

Notes

(EEBO-TCP ; phase 1, no. A29654)

Transcribed from: (Early English Books Online ; image set 57692)

Images scanned from microfilm: (Early English books, 1641-1700 ; 172:15)

Source

— The reading of M. Robert Brook ... upon the stat. of Magna Charta, chap. 16, Brooke, Robert, Sir, d. 1558..

Extent

[4], 23 p.

Printed by M. Flesher and R. Young and are sold by Laurence Chapman and William Coke,. London :: 1641.. (Reproduction of original in Huntington Library.)

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