founded on necessity, it can in no case extend beyond the actual continuance of that necessity, by which alone it is warranted: (¿) for if a person assaulted does not fall upon the aggressor, till the affray is over, or when he is running away, this is revenge, and not defence. (j) SEC. III. Of Justifiable Homicide. It has been already stated that justifiable homicide is of several kinds, as it may be occasioned by the performance of acts of unavoidable necessity, or by acts done by the permission of the law. (k) Amongst the acts of unavoidable necessity may be classed the execution of malefactors, by the person whose office obliges him, in the performance of public justice, to put those to death who have forfeited their lives by the laws and verdict of their country. These are acts of necessity, and even of civil duty: and, therefore, not only justifiable, but commendable, where the law requires them. (1) But the law must require them, otherwise they are not justifiable; and, therefore, wantonly to kill the greatest of malefactors, would be murder; and we have seen that all acts of official duty should, in the nature of their execution, be conformable to the judgment by which they are directed. (m) Amongst the acts done by the permission of the law, for the advancement of public justice, may be reckoned those of the officer, who, in the execution of his office, either in a civil or criminal case, kills a person who assaults and resists him. The resistance will justify the officer in proceeding to the last extremity. So that in all cases, whether civil or criminal, where persons having authority to arrest or imprison, and using the proper means for that purpose, are resisted in so doing, they may repel force with force, and need not give back; and if the party making resistance is unavoidably killed in the struggle, this homicide is justifiable. (n) A rule founded in reason and public utility; for few men would quietly submit to an arrest, if, in every case of resistance, the party empowered to arrest were obliged to desist, and leave the business undone; and a case in which the officer was holden guilty of manslaughter, because he had not first given back, as far as he could, before he killed the party who had escaped out of custody, in execution for a debt, and resisted being retaken, (o) seems to stand alone, and has been mentioned with disapprobation. (p) As to the authority of constables and other persons to arrest, see ante, p. 70. As to an officer killing a person flying from arrest, see ante, pp. 71, 129. In the case of a riot or rebellious assembly, the peace officers and their assistants, endeavouring to disperse the mob, are justified, both at common law and by the Riot Act, in proceeding to the last extremity, in case the riot cannot otherwise be suppressed. (q) And it has been said, that perhaps the killing of dangerous rioters may be justified by any private persons who cannot otherwise suppress them, or defend themselves from them, inasmuch as every private person seems to be authorised by the law to arm himself for the preservation of the peace. (r) Gaolers and their officers are under the same special protection. as other ministers of justice; and, therefore, if in the necessary discharge of their duty they meet with resistance, whether from prisoners in civil or criminal suits, or from others, in behalf of such prisoners, they are not obliged to retreat as far as they can with safety, but may freely, and without retreating, repel force by force; and if the party so resisting happen to be killed, this, on the part of the gaoler, or his officer, or any person coming in aid of him, will be justifiable homicide. (8) Sir William Hawkesworth, being weary of life, and willing to be rid of it by the hand of another, having first blamed his keeper for suffering his deer to be destroyed, and commanded him to execute the law, came himself into his park at night as if with intent to steal the deer; and being questioned by the keeper, who knew him not, and refusing to stand or answer, he was shot by the keeper. This was decided to be excusable homicide by the statute De malefactoribus in parcis. (t) A man may repel force by force in defence of his person, habitation, or property, against one who manifestly intends and endeavours, by violence or surprise, to commit a known felony upon either. 1 In these cases he is not obliged to retreat, but may pursue his (q) 1 Hale, 53, 494, 495, MS. Tracy, 36, cited 1 East, P. C. c. 5, s. 71, p. 304. Riot Act, 1 Geo. 1, st. 2, c. 5, where persons continue together an hour after proclamation. And see vol. i. p. 553, et seq. (r) 1 Hawk. P. C. c. 28, s. 14, and see Fost. 272; Poph. 121. It was so resolved by all the judges in Easter Term, 39 Eliz., though they thought it more discreet for every one in such a case to attend and assist the King's officers in preserving the peace. And certainly, if private persons interfere to suppress a riot, they must give notice of their intention. (s) Fost. 321. 1 Hale, 481, 496. (t) 1 Hale, 40. By the 21 Edw. 1, st. 2, if a forester, parker, or warrener, found any trespassers wandering within his liberty, intending to do damage therein, who would AMERICAN NOTE. 1 See S. v. Harris, 1 Jones (Law), 190. Dill v. S., 25 Ala. 15. Dyson v. S., 26 Miss. 362. M'Pherson v. S., 22 Ga. 478. Mitchell v. S., ibid. 211. As to intervention to pre vent a breach of the peace, see P. v. Cob, 4 Parker, C. R. 35. Pond v. P., 8 Mich. 150. Johnston's case, 5 Gratt. 660. A person assaulted by another who has threatened adversary till he finds himself out of danger; and if, in a conflict between them, he happens to kill, such killing is justifiable. (u) But it has been holden, that this rule does not apply to any crime unaccompanied with force, as picking of pockets. (v) It seems, therefore, that the intent to murder, ravish, or commit other felonies. attended with force or surprise, should be apparent, and not be left in doubt; so that if A. make an attack upon B., it must plainly appear by the circumstances of the case (as the manner of the assault, the weapon, &c.) that the life of B. is in imminent danger; otherwise his killing the assailant will not be justifiable selfdefence. (w) There must be an intention on the part of the person killed to rob, or murder, or to do some dreadful bodily injury to the person killing; or the conduct of the party must be such as to render it necessary on the part of the party killing to do the act in selfdefence. (x) And the rule clearly extends only to cases of felony; for if one come to beat another, or to take his goods merely as a trespasser, though the owner may justify the beating of him, so far as to make him desist, yet if he kill him, it is manslaughter. (y) But if a house be broken open, though in the day-time, with a felonious intent, it will be within the rule. (2) A person who is set to watch a yard or garden by his master, is not justified in shooting any one who comes into it in the night, even if he see him go into his master's hen-roost, and some dead fowls and a crow-bar be found near him; but if from his conduct he has fair ground to believe his own life in actual danger, he is justified in shooting him. (a) Important considerations will arise in cases of this kind, as to the grounds which the party killing had for supposing that the person slain had a felonious design against him; more especially where it afterwards appears that no such design existed. One Levet was indicted for killing F. F., under the following circumstances :-Levet (u) Fost. 273. Kel. 128, 129. 1 Hale, 445, 481, 484, et seq. 1 Hawk. P. C. c. 28, ss. 21, 24. R. v. Bull, 9 C. & P. 22. (v) 1 Hale, 488. 4 Blac. Com. 180. But if one pick my pocket, and I cannot otherwise take him than by killing him, this falls under the general rule concerning the arresting of felons.' 1 East, P. C. c. 5, s. 45, p. 273. (w) 1 Hale, 484. (x) R. v. Bull, 9 C. & P. 22, Vaughan and Williams, JJ. (y) 1 Hale, 485, 486. c. 28, s. 23. Kel. 132. s. 44, p. 272. 1 1 Hawk. P. C. East, P. C. c. 5, (z) 1 East, P. C. c. 5, s. 44, p. 273. In to kill him is not as of course required to run away, thus increasing his danger by encouraging his assailant to repeat the attempt when he cannot so well resist. Bohannon v. C., 8 Bush, 481; 8 Am. R. 474. Phipps v. C., 2 Duv. 328; 87 Am. D. 499. Tweedy v. S., 5 Iowa, 433. Dolan v. S., 81 Ala. 11. P. v. Gonzales, 71 Cal. 569. West v. S., 2 Tex. Ap. 460. See also S. v. 4 Blac. Com. 180, it is said that the rule reaches not to the breaking open of any house in the day-time, unless it carries with it an attempt of robbery also. But it will apply where the breaking is such as imports an apparent robbery, or an intention or attempt of robbery. 1 Hale, 488. (a) R. v. Scully, 1 C. & P. 319, Garrow, B. The 24 Hen. 8, c. 5, by which persons killing those who were attempting to rob or murder, or commit burglary, were not to suffer any forfeiture of goods, &c., but to be fully acquitted, and which was here referred to in the second edition, was repealed by the 9 Geo. 4, c.. 31. C. S. G. Mullen, 14 La. An. 570. Pfomer v. P., 4 Par. Cr. 558. Aaron v. S., 31 Ga. 167. C. v. Carey, 2 Brews. 404. Lingo v. S., 29 Ga. 470. S. v. Kennedy, 91 N. C. 572. Jones v. S., 76 Ala. 8. Duncan v. S., 49 Ark. 543. S. v. Dixon, 75 N. C. 275. Erwin e. S., 29 Ohio St. 186; 23 Am. R. 733. Stoffer v. S., 15 Ohio St. 47; 86 Am. D. 470. Ingram v. S., 67 Ala. 67. being in bed and asleep, his servant, who had procured F. F. to help her about the work of the house, and went to the door about twelve o'clock at night to let her out, conceived that she heard thieves about to break into the house: upon which she ran to him, and told him of what she apprehended. Levet arose immediately, took a drawn sword, and, with his wife, went down stairs; when the servant, fearing that her master and mistress should see F. F., hid her in the buttery. Levet with his sword searched the entry for thieves, when his wife, spying F. F. in the buttery, and not knowing her, conceived her to be a thief, and cried out to her husband in great fear,' Here they be that would undo us;' when Levet, not knowing that it was F. F. in the buttery, hastily entered with his drawn sword, and being in the dark, and thrusting before him with his sword, thrust F. F. under the left breast, and gave her a mortal wound, of which she instantly died. (b) This was ruled to be misadventure; but a great judge appears to have thought the decision too lenient, and that it would have been better ruled manslaughter; due circumspection not having been used. (c) Upon this opinion, however, some observations have been made; and it has been ably argued, upon the peculiar facts and circumstances of the transaction, that the case seems more properly to be one of those mentioned by Lord Hale, (d) where the ignorance of the fact excuses the party from all sort of blame. (e) And in another book of great authority, the case is mentioned as one in which the defendant might have justified the fact under the circumstances, on the ground that it had not the appearance even of a fault. (f) Questions will also sometimes arise as to the apparency of the intent in one of the parties to commit such felony as will justify the other in killing him. Mawgridge, on words of anger, threw a bottle with great force at the head of Mr. Cope, and immediately drew his sword, upon which Mr. Cope returned a bottle with equal violence; (g) and it was held that this was lawful and justifiable on the part of Mr. Cope, on the ground that he that has manifested malice against another, is not fit to be trusted with a dangerous weapon in his hand. (h) There seems to have been good reason for Mr. Cope to have supposed that his life was in danger and it was probably on the same ground that the judgment on Ford's case proceeded. Mr. Ford being in possession of a room at a tavern, several persons insisted upon having it, and turning him out, which he refused to submit to; thereupon they drew their swords upon Mr. Ford and his company, and Mr. Ford drew his sword, and killed one of them: and this was adjudged justifiable homicide. (i) For if several attack a person at once with deadly weapons, as may be supposed to have happened in this case, though they wait till he be upon his guard, yet it seems (there being no compact to fight) that he would be justified in killing any of the assailants in his own defence; because so unequal an attack resembles more a desire of assassina (b) Levet's case, Cro. Car. 538. 1 Hale, 42, 474. Jones (W.) 429. (e) Fost. 299. (d) 1 Hale, 42. (e) 1 East, P. C. c. 5, s. 46, pp. 274, 275. (f) 1 Hawk. P. C. c. 28, s. 27. (9) Mawgridge's case, Kel. 128, 192, ante, p. 61. (h) By Lord Holt, Kel. 128, 129. (i) Ford's case, Kel. 51. tion than of combat. (j) But no assault, however violent, will justify killing the assailant under the plea of necessity, unless there be a plain manifestation of a felonious intent. (k) And it may be further observed, that a man cannot, in any case, justify killing another by a pretence of necessity, unless he were wholly without fault in bring ing that necessity upon himself; for, if he kill any person in defence of an injury done by himself, he is guilty of manslaughter at least; as in the case where a body of people wrongfully detained a house by force, and killed one of those who attacked it, and endeavoured to set it on fire. (1) Foster, J., was of opinion, that, upon the same principle upon which Mawgridge's case was decided, and possibly upon the rule touching the arrest of a person who has given a dangerous wound, the legislature, in the case of the Marquis de Guiscard, who stabbed Mr. Harley sitting in Council, discharged the parties who were supposed to have given the Marquis the mortal wound from all manner of prosecution on that account, and declared the killing to be a lawful and necessary action. (m) Where a known felony is attempted upon any one, not only the party assaulted may repel force by force, but his servant attending him, or any other person present, may interpose to prevent the mischief; and if death ensue, the party so interposing will be justified. (n) But, in cases of mutual combats or sudden affrays, a person interfering should act with much caution. Where, indeed, a person interferes between two combatants with a view to preserve the peace, and not to take part with either, giving due notice of his intention, and is under the necessity of killing one of them in order to preserve his own life or that of the other combatant, it being impossible to preserve them by other means, such killing will be justifiable; (0) but, in general, if there be an affray and an actual fighting and striving between persons, and another run in, and take part with one party, and kill the other, it will not be justifiable homicide, but manslaughter. (p) It should be observed, that as homicide committed in the prevention of forcible and atrocious crimes is justifiable only upon the plea of necessity, it cannot be justified, unless the necessity continue to the time when the party is killed. Thus, though the person upon whom a felonious attack is first made be not obliged to retreat, but (j) 1 East, P. C. c. 5, s. 47, p. 276; and see 1 East, P. C. c. 5, s. 25, p. 243, where Ford's case is observed upon; and it is said that the memorandum in the margin of Kelyng to inquire of this case, and the quare used by Foster, J., in citing it, were probably made on the ground of the reason suggested in the margin of Kelyng for the judgment, namely, that the killing by Mr. Ford in defence of his own possession of the room was justifiable, which, under those circumstances, might be fairly questioned: as, on that ground, it might have been better ruled to be manslaughter. (k) 1 East, P. C. c. 5, s. 47, P. 277. (7) 1 Hawk. P. C. c. 28, s. 22. 1 Hale, 405, 440, 441. (m) 9 Ann c. 16, which was repealed by the 9 Geo. 4, c. 31. Fost. 275. And (n) 1 Hale, 481, 484. Fost. 274. in Handcock v. Baker and others, 2 Bos. & Pul. 265. Chambre, J., said, 'It is lawful for a private person to do anything to prevent the perpetration of a felony.' (0) 1 Hale, 484. 1 East, P. C. c. 5, s. 58, p. 290. (p) 1 East, P. C. c. 5, s. 58, p. 291. Ante, p. 674; and see also vol. i. p. 587, et seq. |