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tion, (a) namely, that he had before deliberately resolved upon
shooting Welch in case he offered to arrest him again, which in
all probability it might be his duty to do. It certainly resembles
a former case, where, upon some officers breaking open a shop-
door to execute an escape warrant, the prisoner, who had pre-
viously sworn that the first man that entered should be a dead
man, killed one of them immediately by a blow with an axe. A
few of the Judges to whom this case was referred, were of opinion
that this would have been murder, though the warrant had not
been legal, and though the officers could not have justified the
breaking open the door, upon the grounds of the brutal cruelty
of the act, and of the deliberation manifested by the prisoner,
who, looking out of a window with the axe in his hand, had
sworn, before any attempt to enter the shop, that the first man
that did enter should be a dead man. (b) But in another case,
prior to either of these, where the cruelty and the deliberation
were of a similar kind, the crime was considered as extenuated by
the illegality of the officer's proceeding. A bailiff having a war-
rant to arrest a person upon a capias ad satisfaciendum, came to
his house, and gave him notice; upon which the person menaced
to shoot him if he did not depart: the bailiff did not depart, but
broke open the window to make the arrest; and the person shot
him, and killed him. It was holden that this was not murder,
because the officer had no right to break the house ; but that it
was manslaughter, because the party knew the officer to be a

bailiff. (c)
As to notice The parties whose liberty is interfered with must have due
of the autho- notice of the officer's business ; or their resistance and killing of
rity to arrest. such officer will amount only to manslaughter. (d) Thus, where

a bailiff pushed abruptly and violently into a gentleman's chamber
early in the morning, in order to arrest him, but did not tell his
business, nor use words of arrest, and the party not knowing that
the other was an officer, in the first surprise, snatched down a
sword, which hung in his room, and killed the bailiff; it was ruled
to be manslaughter. (e) But it will be otherwise, if the officer
and his business be known; (f) as where a man said to a bailiff
who came to arrest him, “ Stand off, I know you well enough,
come at your peril,” and, upon the bailiff taking hold of him, ran
the bailiff through the body and killed him, it was held to be
murder. (g) This will apply as well to a special bailiff as to a
known officer : but where the party does not shew by his conduct
that he is acquainted with the officer and his business, material
distinctions arise as to notice of a known officer, and one whose
authority is only special. With regard to private persons inter.
fering, as they may do, in case of sudden affrays, in order to part
the combatants, and prevent bloodshed, it is quite necessary that
they should give express notice of their friendly intent; other-

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(a) i East. P. C. c. 5. s. 78. p. 311. (e) i Hale 470, case at Newgate,
(6) Curtis's case, 1756. Fost. 135. 1657. And see Kel. 136.

(c) Cook's case, 1 Hale 458. Cro. (f ) Mackally's case, 9 Co. 69. Car. 537. W. Jones 429.

(g) Pew's case, Cro. Car. 183. I (d) I Hale 458, et sequ.

1 Hawk. Hale 458. P. C. c. 31. S. 49, 50. Fost. 310.

of 1 hed

wise the persons engaged may, in the heat and bustle of the
affray, imagine that they come to act as parties. (1)

With regard to such ministers of justice as, in right of their As to notice
offices, are conservators of the peace, and in that right alone in- by officers in-
terpose in the case of riots and affrays, it is necessary, in order terposing in
to make the offence of killing them amount to murder, that the riots and af-
parties engaged should have some notice of the intent with which frays.
they interpose; for the reason which was mentioned in relation to
private persons ; lest the parties engaged should, in the heat and
bustle of an affray, imagine that they come to take a part in it. (i)
But, in these cases, a small matter will amount to a due notifica-
tion. It is sufficient if the peace be commanded, or the officer,
in any other manner, declare with what intent he interposes. Or
if the officer be within his proper district, and known, or but
generally acknowledged, to bear the office he assumes, the law
will presume that the party killing had due notice of his intent;
especially, if it be in the daytime. (k) In the night some fur-
ther notification is necessary; and commanding the peace, or
using words of the like import, notifying his business, will be
sufficient. (1) Killing a watchman in the execution of his office
is not the less murder for being done in the night; and the kill-
ing of an officer who arrests on civil process may be murder,
though the arrest be made in the night; and in the case of an
affray in the night where the constable, or any other person who
comes to aid him to keep the peace, is killed, after the constable
has commanded in the King's name to the keeping of the peace,
such killing will be murder; for though the parties could not dis-
cern or know him to be a constable, yet if it were said at the time
that he was such officer, resistance was at their peril. (a) There-
fore though the saying of a learned Judge, “ that a constable's
staff will not make a constable,” is admitted to be true; yet if a
minister of justice be present at a riot or affray within his dis-
trict, and in order to keep the peace produce his staff of office, or
any other known ensign of authority, in the daytime when it can
be seen, it is conceived that this will be a sufficient notification
of the intent with which he interposes; and that, if resistance be
made after this notification, and he or any of his assistants killed,
it will be murder in every one who joined in such resistance. (m)
For it seems, that in the case of a public bailiff

, a bailiff juratus et cognitus, acting in his own district, his authority is considered as a matter of notoriety; and, upon this ground, though the warrant by which he was constituted bailiff be demanded, he need not shew it; (n) and it is sufficient if he notify that he is the

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(h) Fost. 310, 311.

justice's warrant. 3. Because, after
(1) Fost. 310. Kel. 66, 115.

his retreat, and before the man slain,
(K) 1 Hale 460, 461. Fost. 310, 311. he commanded the peace; and, not-
So in the case of Sissinghurst-house, withstanding, the rioters fell on and
1 Hale 462, 463, it was resolved, that killed the party. See the case fully
there was sufficient notice that it was stated, ante, 451, et sequ.
the constable before the man

(1) i Hale 46). Fost. 311.
killed :-). Because he was constable (a) 9 Co. 66.a.
of the same vill. 2. Because he noti- (m) Fost, 311.
fied his business at the door before the (n) i Hale 458, 461, 583. Mack-
assault, viz. that he came with the ally's case, 9 Co. 69 a. But it is


constable, and arrest in the King's name. (0) And this kind of notification by implication of law will hold also in cases where public officers, having warrants, directed to them as such, to execute, are resisted, and killed in the attempt. (p) Thus, where a warrant had been granted against the prisoner by a justice of peace for an assault, and directed to the constable of Pattiskal, and delivered by the person who had obtained it to the deceased, to execute, as constable of the parish, and it appeared that the deceased went to the prisoner's house in the daytime to execute the warrant, had his constable's staff with him, and gave notice of his business, and further, that he had before acted as constable of the parish, and was generally known as such; it was determined that this was sufficient evidence and notification of the deceased being constable, although there were no proof of his

appointment, or of his being sworn into the office. (9) To what per

It is laid down in one case, that if, upon an affray, the constable, sons in an af

or others in his assistance, come to suppress it, and preserve the fray notice shall be held peace, and be killed in executing their office, it is murder in law, to extend; and although the murderer knew not the party killed, and though the of notice in the case of

affray were sudden; because he set himself against the justice of third persons

the realm. (r) It is said, however, that in order to reconcile this interposing with other authorities, it seems that the party killing must have

had implied notice of the character in which the peace officer and his assistants interfered, though not a personal knowledge of them. (s) For it is elsewhere laid down, that if there be a sudden affray, and the constable come in, and, endeavouring to appease it, be killed by one of the company who knew him, it is murder in the party killing, and in such of the others as knew the constable, and abetted the party in the fact; but only manslaughter in those who knew not the constable :(() and that others continuing in the affray, neither knowing the constable, nor abetting to his death, would not be guilty even of manslaughter. (u) But these positions do not apply to an affray deliberately engaged in by parties determined to make common cause, and to maintain it by force. (W)

It is however agreed, that if a bailiff or other officer be resisted otherwise as to the writ or process arrested. 9 Co. 69 b. against the party. Both a public and (0) 1 Hale 383. private bailiff, where the party sub- (p) 1 East. P. C. c. 5. s. 81. p. 315. mits to the arrest and demands it, are (q) Rex v. Gordon, Northamplon bound to shew at whose suit, for what Spr. Ass. 1789, cor. Thomson, B. afcause, and out of what court the pro- terwards considered at a conference of cess issues, and where returnable. 5 all the Judges, 26th June, 1789. See Co. 54 a. 9 Co. 69 a.: but it will be 1 East. P. C. c. 5. s. 81. p. 315. no excuse that he did not tell the party (r) Young's case, 4 Co. 40 b. 3 if the party resisted so as not to give Inst. 52. time for telling, 9 Co. 69 a. And in (8) I East. P. C. c. 5. s. 82. p. 316. no case is the bailiff required to part (1) i Hale 438, 446, 461. Kel. 115, with the possession of the warrant; 116. neither is a constable, whether acting (u) i Hale 446. Lord Hale adds, within or without his jurisdiction. I quod tamen quære, but (as it is said MS. Sum. 250. 1 East. P. C. c. 5. S. i East. P. C. c. 5. s. 82. p. 316.) per84. p. 319. By a known bailiff is baps over cautiously, if in truth there meant one who is commonly known were no abetment. to be so: it is not necessary that he (w) See as to the cases of that kind, should be known to the party to be ante, p. 24, 25.

in the regular discharge of his duty in executing process against a
party, and a third person, even the servant or friend of the party
resisting, come in and take part against the officer, and kill him, it
will be murder, though he knew him not.(x) But it is suggested,
that, in this case, in order to make it murder in the servant or
friend, the party whom they came in to assist must have had due
notice of the officer's authority: and that if the offence would not
have been murder in the party himself resisting for want of such
notice, neither would it in the servant or friend under the like ig-
norance.(y) The law upon this point may, perhaps, hardly seem
to be reconcileable with that above-mentioned, of a person not
knowing the constable, and killing him in an affray; but it is de
fended on the principle, that every person wilfully engaging, in
cool blood, in a breach of the peace, by assaulting another instead
of endeavouring to assuage the dispute, is bound first to satisfy
himself of the justice of the cause he espouses at his peril. (3)
And, upon this principle, if a stranger seeing two persons engaged,
one of them a bailiff, attacking the other with a sword, and the
other resisting an arrest by such bailiff, interfere between them
without knowing the bailiff, for the express purpose of defending
the party attacked against the bailiff he must abide the conse-
quences at his peril; but if he interfere, not for the purpose of
aiding one party against the other, but with intent only to pre-
serve the peace, and prevent mischief, and in so doing happen to-
kill the bailiff, the case would possibly fall under a different con-

In all cases, whether criminal or civil, where doors may be Notice before *
in order to make an arrest, there must be a previous doors are

broken open. notification of the business, and a demand to enter on the one hand, and a refusal on the other, before the parties proceed to that extremity.(b) In a case where an outer door had been broken open by two constables and a gamekeeper, to execute a warrant granted by 22 and 23 Car. 2. c. 25. s. 2. to search for, and seize any guns, &c. for destroying game : and it appeared, that the door was broken open without the party having been previously requested to open it; the court held, that, in a case of misdemeanor, a previous demand of admittance was clearly necessary, before an outer door was broken open. Abbott, C. J. said, “it is not at present necessary to decide how far in the case of a

person charged with felony it would be necessary to make a pre“ vious demand of admittance, before you could justify breaking,

open the outer door of the house; because I am clearly of opi

(-2) 1 Hawk. P. C. c. 31. s. 57. Keb. under similar circumstances,washolden 87. 4 Co. 40 b. 1 East. P. C. c. 5. S. not to be guilty of murder. This case 82. p. 316.

is differently reported by Kelyng; and (y) 1 East. P. C. c. 5. s. 82. p. 316. Keble, reporting the same case very

(2)' I Hawk. P. C. c. 31. s. 59. 1 shortly, says,- it was adjudged, that East. P. C. c. 5. s. 82. p. 316, 317, if any casually assist against the law, where the grounds upon which the law and kill the bailiff, it is murder, espein each of these cases may be sup- cially if he knew the cause. 1 Keb. ported, and considered as reconcile. 584.; and see i East. P. C. c. 5. s. 83. able, are more fully stated.

(a) See the case of Sir C. Standlie (6) Fost. 320. 2 Hawk. P. C. c. 14. and Andrews, Sid. 159, where Andrews, $. 1. 1 East. P. C. c. 5. 5. 87. p. 324..

p. 318,

جمعه , ۲۹

“nion, that, in the case of a misdemeanor, such previous demand “ is requisite.” Bayley, J. said, generally,“ even in the execu“ tion of criminal process, you must demand admittance, before

you can justify breaking open the outer door. That point “ was mentioned in the judgment of the Court in Burdett v. “ Abbott.”(6) The question as to what should be considered as due notice was much considered in a case where two officers went to the workshop of a person, against whom they had an escape warrant; and, finding the shop door shut, called out to the person, and informed him that they had an escape warrant against him, and required him to surrender, otherwise they said they would break open the door ; and, upon the person's refusing to surrender, they broke open the door, and one of their assistants was immediately killed. Nine of the Judges were of opinion, that no precise form of words was required in a case of this kind; and that it is sufficient if the party has notice that the officer comes not as a mere trespasser, but claiming to act under a proper anthority. The Judges who differed, thought that the officers ought to have declared, in an explicit manner, what sort of warrant they had; and that an escape does not, ex vi termini, nor in the notion of law, imply any degree of force, or breach of the peace; and, consequently, that the prisoner had not due notice that they came under the authority of a warrant grounded on a breach of the peace; and that, for want of this due notice, the officers were not to be considered as acting in discharge of their duty, but as mere

trespassers. (c) Notice by pri- In the case of a private or special bailiff, either it must appear vate bailiff.

that the party knew that he was such officer, as where the party said, “ Stand off, I know you well enough; come at your peril; or, that there was some such notification thereof that the party might have known it, as by saying, “ I arrest you.” These words, or words to the like effect, give sufficient notice; and if the person using them be a bailiff, and have a warrant, the killing of such officer will be murder. (d) A private bailiff ought also to shew the warrant upon which he acts, if it is demanded : (e) and with respect to the writ or process against the party, both the public and private bailiff, in case the party submit to the arrest and make the demand, are bound to shew at whose suit, and for what cause the arrest is made, out of what court the process issues, and when and where returnable. (f) In no case, however, is he required to part with the warrant out of his own possession : for that is his

justification. (8) As to the re- It may be observed generally, that where an officer, in executing gularity of the his office, proceeds irregularly, and exceeds the limits of his auproceeding.

thority, the law gives him no protection in that excess : and if he () Launock v. Brown, 2 B. & A. rest, 1 Hale 458. And see 1 Hale 459,

where it is said that a justice of peace (c) Rex v. Curtis, Fost. 136, 137.

may issue his warrant to a private d) i Hale 461. Rex v. Mackally, person; but then such person must 9 Co. 69 b.

shew his warrant, or signify the con(e) 1 Hale 583. That is, the warrant tents of it. by which he is constituted bailiff ;

(f) i Hale 458, note (8). 5 Co. 54 which a bailiff or officer, juratus et a. 9 Co. 69 a. cognitus, need not shew upon the (8) i East. P. C. c. 5. s. 83. p. 319.


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