Ch. 14. WRONGS. 201 civil or criminal, in the execution of his duty, or any of his afTiftants endeavouring to conferve the peace, or any private perfon endeavouring to lupprefs an affray or apprehend a felon, knowing his authority or the intention with which he inter- pofes, the law will imply malice, and the killer mall be guilty of murder f . And if one intends to do another felony, and un- defignedly kills a man, this is alib murder 6 . Thus if one moots at A and mifles him, but kills B, this is murder ; becaufe of the previous felonious intent, which the law transfers from one to the other. The lame is the cafe, where one lays poifon for A -, and B, againft whom the prifoner had no malicious intent, takes it, and it kills him ; this is likewife murder h . It were endlefs to go through all the cafes of homicide, which have been adjudged either expreflly, or impliedly, malicious : thefe therefore may fuffice as a fpecimen ; and we may take it for a general rule, that all homicide is malicious, and of courfe amounts to murder, unlefs where juftrfied by the command or permiiTion of the law ; excujed on a principle of accident or felf-prefervation ; or alleviated into manflaughter, by being either the involuntary confequence of fome acl, not ftriclly lawful, or (if voluntary) occafioned by fome fudden and fuf- ficiently violent provocation. And all thefe circumftances of justification, excufe, or alleviation, it is incumbent upon the prifoner to make out, to the fatisfadlion of the court and jury : the latter of whom are to decide whether the circumftances al- leged be proved to have actually exifted ; the former, how far they extend to take away or mitigate the guilt. For all homi- cide is prefumed to be malicious, until the contrary appeareth upon evidence '.
THE puniſhment of murder, and that of manflaughter, were formerly one and the fame; both having the benefit of clergy: fo that none but unlearned perfons, who leaft knew the guilt of
f i Hal. P. C. 457. Fofter. 308, fjV. k i Hal. P. C. 466. e i Hal. P. C. 465. < Foft. 2js-
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