SEC. II. Of Excusable Homicide in Self-Defence. 1 Homicide in self-defence is a sort of homicide committed se et sua defendendo, in defence of a man's person or property, upon some sudden affray, considered by the law as in some measure blamable, and barely excusable. (1) When a man is assaulted in the course of a sudden brawl or quarrel, he may, in some cases, protect himself by killing the person who assaults him, and excuse himself on the ground of self-defence. But, in order to entitle himself to this plea, he must make it appear, first, that before a mortal stroke given he had declined any further combat; secondly, that he then killed his adversary through mere necessity, in order to avoid immediate death. (m) Under such circumstances, the killing will be excusable self-defence, sometimes expressed in the law by the word chance medley, or (as it has been written by some) chaud medley, the former of which, in its etymology, signifies a casual affray; the latter an affray in the heat of blood, or passion. Both of them are pretty much of the same import: but the former has, in common speech, been often erroneously applied to any manner of homicide by misadventure; whereas it appears by one of the statutes, (n) and the ancient books, (o) that it is properly applied to such killing as happens in self-defence upon a sudden rencounter. (p) Homicide upon chance medley borders very nearly upon manslaughter; and, in fact and experience, the boundaries are in some instances scarcely perceivable, though in consideration of law they have been fixed. (q) In both cases it is supposed that passion has kindled on each side, and blows have passed between the parties; but in the case of manslaughter, it is either presumed that the combat on both sides had continued to the time the mortal stroke was given, or that the party giving such stroke was not at that time. in imminent danger of death. (r) And the true criterion between them is stated to be this: when both parties are actually combating, at the time the mortal stroke was given, the slayer is guilty of man slaughter; but if the slayer has not begun to fight, or, having begun, endeavours to decline any further struggle, and afterwards, being closely pressed by his antagonist, kills him to avoid his own destruction, this is homicide excusable by self-defence. (8) In all cases of homicide excusable by self-defence, it must be taken that the attack was made upon a sudden occasion, and not premeditated, or with malice; and, from the doctrine which has been above laid down, it appears that the law requires that the person who kills another in his own defence should have retreated as far as he conveniently or safely could, to avoid the violence of the assault, before he turned upon his assailant; and that not fictitiously, or in order to watch his opportunity, but from a real tenderness of shedding his brother's blood. For in no case will a retreat avail, if it be feigned, in order to get an opportunity or interval to enable the party to renew the fight with advantage. (t) The party assaulted must therefore flee, as far as he conveniently can, either by reason of some wall, ditch, or other impediment, or as far as the fierceness of the assault will permit him; for it may be so fierce as not to allow him to yield a step without manifest danger of his life, or great bodily harm, and then, in his defence, he may kill his assailant instantly. (u) Before a person can avail himself of the defence, that he used a weapon in defence of his life, he must satisfy the jury that that defence was necessary; that he did all he could to avoid it; and that it was necessary, to protect his own life, or to protect himself from such serious bodily harm, as would give him a reasonable apprehension that his life was in immediate danger. If he used the weapon, having no other means of resistance, and no means of escape, in such case, if he retreated as far as he could, he would be justified. (v) Where the prisoner levelled a gun at the deceased, and it was a question whether the gun went off accidentally or not, Cockburn, C. J., left the following questions to the jury-1. Was the discharge of the gun intentional or accidental. (a) If intentional, was it from ill feeling to the deceased, or desire to get rid of him? in which case it would be murder. (b) If it was not so done, was it done by the prisoner in self-defence, and to protect himself from death or serious bodily harm intended towards him by the deceased? or (c) from the reasonable apprehension of it induced by the words and conduct of the deceased, though the latter may not, in fact, have intended death or serious injury? (d) If not so, was it done after an assault made by the deceased on the prisoner, though short of an assault calculated to kill or cause serious bodily injury? or (e) was it done under such a degree of alarm and bewilderment of mind, caused by the conduct of the deceased, as to deprive the prisoner, for the time, of his reason and power of self-control? or (f) was the effect of the language and conduct of the deceased such as to provoke the angry passions of the prisoner so as to deprive him of his reason. and power of self-control? 2. If the discharge of the gun was accidental, in which case the prisoner cannot be convicted of murder, but may be of manslaughter. (a) Was the gun levelled by the prisoner at the deceased in self-defence against an attack of the deceased endangering life or limb, or reasonably apprehended by the prisoner as likely to do so, in either of which cases the prisoner would be entitled to an acquittal, or (b) was the gun levelled by the prisoner at the deceased unnecessarily under the circumstances, but without the intention of discharging it, in which case it would be manslaughter. (vv) If A. challenges B. to fight, and B. declines the challenge, but lets A. know that he will not be beaten, but will defend himself; and then B., going about his business and wearing his sword, is assaulted by A., and killed; this is murder in A. But if B. had killed A. upon that assault, it had been se defendendo, if he could not otherwise have escaped; or bare manslaughter, if he could have escaped and did not. (w) The law appears to be that if the blow, from the effect of which the deceased died, was given purely in self-defence, as distinguished from a desire to fight, it is excusable, and it is a question for the jury whether the prisoner struck the blow in self-defence, or whether he really desired to fight. (ww) As in the case of manslaughter upon sudden provocation, where the parties fight upon equal terms, all malice apart, it matters not who gave the first blow: so in the case of excusable self-defence, it seems that the first assault in a sudden affray, all malice apart, will make no difference, if either party quit the combat and retreat, before a mortal wound be given. (x) According to this doctrine, if A., upon a sudden quarrel, assaults B. first, and upon B.'s returning the assault, A. really and bona fide flies, and being driven to the wall, turns again upon B. and kills him, this will be se defendendo : (y) but some writers have thought this opinion too favourable, inasmuch as the necessity to which A. is at last reduced, originally arose from his own fault. (2) With regard to the nature of the necessity, it may be observed, that the party killing cannot, in any case, substantiate his excuse, if he kill his adversary even after a retreat, unless there were reasonable ground to apprehend that he would otherwise have been killed himself. (a) Under the excuse of self-defence, the principal civil and natural relations are comprehended: therefore, master and servant, parent and child, husband and wife, killing an assailant in the necessary defence of each other, respectively, are excused; the act of the relation assisting being construed the same as the act of the party himself. (b) So where a son shot and killed his father, who was assaulting his mother, Lopes, J., told the jury that if the accused had reasonable grounds for believing, and honestly believed that his mother's life. was in imminent peril, and that the shot which he fired was absolutely necessary for the preservation of her life, then he ought to be excused from the consequences of the homicide. (bb) If A., in defence of his house, kill B., a trespasser, who endeavours to make an entry upon it, it is at least common manslaughter; unless, indeed, there were danger of his life. But if B. enter into the house, and A., having first requested him to depart, gently lay his hands upon him to turn him out, and then B. turn upon him and assault him, and A. then kill him, it will be se defendendo, supposing that he was not able by any other means to avoid the assault, or retain his lawful possession. (e) And it seems, that in such a case A., being in his own house, need not fly as far as he can, as in other cases of se defendendo; for he has the protection of his house to excuse him from flying, as that would be to give up the protection of his house to his adversary by his flight. (d) See further as to this, ante, p. 48. There is one species of homicide se defendendo where the party slain is equally innocent as the person who occasions his death: and yet this homicide is also excusable, from the great universal principle of self-preservation, which prompts every man to save his own life, in preference to that of another, where one of them must inevitably perish. Of this kind is the case mentioned by Lord Bacon, where upon two persons being shipwrecked, and getting on the same plank, one of them, finding it not able to save them both, (b) 1 Hale, 484. 4 Blac. Com. 186. (bb) R. v. Rose, 15 Cox, C. C. 540.1 (c) 3 Edw. 3. Coron. 35. Crompt. 27 b. 1 Hale, 486. (d) 1 Hale, 485. In Dakin's case, 1 Lew. 166, where the prisoner was a lodger at a house, to which there was a back-way, of which the prisoner was ignorant, it being the first night he had lodged at the house, and some persons split open the door of the house in order to get the prisoner out and ill-treat him; Bayley, J., is reported to have said, If the prisoner had known of the back-way, it would have been his duty to AMERICAN NOTES. 1 In an American case the judge charged the jury that if they thought the prisoner really believed that the deceased had power to kill his wife by supernatural means, and that such belief was reasonable in him under the circumstances, he might be acquitted. T. v. Fisk, cited in Bishop, i. s. 305, note 3, ii. s. 645 (3). 2 In America, it has been held that seamen have no right to sacrifice the lives of passengers to preserve their own, and if it is necessary for the preservation of the remainder that part should be sacrificed, a decision by lot should be resorted to. U. S. v. Holmes, 1 Wallace, Jr. 1. thrust the other from it, whereby he was drowned. (e) But it has now been held that a man who in order to escape death from hunger kills another for the purpose of eating his flesh, is guilty of murder; although at the time of the act he is in such circumstances that he believes, and has reasonable ground for believing, that it affords the only chance of preserving his life. At the trial of an indictment for murder it appeared, upon a special verdict, that the prisoners, D. and S., seamen, and the deceased, a boy between seventeen and eighteen, were cast away in a storm on the high seas, and compelled to put into an open boat, that the boat was drifting on the ocean, and was probably more than a thousand miles from land; that on the eighteenth day, when they had been seven days without food, and five without water, D. proposed to S. that lots should be cast who should be put to death to save the rest, and they afterwards thought it would be better to kill the boy that their lives should be saved; that on the twentieth day D., with the assent of S., killed the boy, and both D. and S. fed on his flesh for four days; that at the time of the act there was no sail in sight, nor any reasonable prospect of relief; that under these circumstances there appeared to the prisoners every probability that unless they then, or very soon, fed upon the boy, or one of themselves, they would die of starvation:-Held that upon these facts, there was no proof of any such necessity as could justify the prisoners in killing the boy, and that they were guilty of murder. (ee) But, according to Lord Hale, a man cannot even excuse the killing of another who is innocent, under a threat, however urgent, of losing his own life, if he do not comply; so that if one man should assault another so fiercely as to endanger his life, in order to compel him to kill a third person, this would give no legal excuse for his compliance. (f) But upon this it has been observed, that if the commission of treason may be extenuated by the fear of present death, and while the party is under actual compulsion, (g) there seems to be no reason why homicide may not also be mitigated upon the like consideration, of human infirmity: though, in case the party might have recourse to the law for his protection from the threats used against him, his fears will certainly furnish no excuse for committing the murder. (h) It should further be observed that, as the excuse of self-defence is (e) 4 Blac. Com. 186. Bac. Elem. c. 5. 1 Hawk. P. C. c. 28, s. 26. (ee) R. v. Dudley and Stephens, 14 Q. B. D. 273.1 The case was tried at the Exeter Assizes, and a special verdict returned. The Assizes were then adjourned to the Royal Courts of Justice. The record was brought into court, and filed, and the arguments were heard by the judges not as commissioners of assize but as judges of the High Court. The prisoners were sentenced to death by the Court, but the sentence was commuted by the Crown to six months imprisonment. See an interesting note on this case by Sir J. F. Stephen, Digest of Criminal Law, 4th ed. p. 24. (f) 1 Hale, 51, 434. (g) 1 East, P. C. c. 2, s. 15, p. 70, and the authorities there cited. (h) 1 East, P. C. c. 5, s. 61, p. 294. Lord Hale says that in the most extreme case, where there could be no recourse to law, the person assailed ought rather to die himself than kill an innocent person. AMERICAN NOTE. This case, in the opinion of Mr. Bishop, should have ended in a verdict of manslaughter. Bishop, i. 348 (~). |