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was not loaded, having tried it with the rammer: he carried it home, and shewed it to his wife ; and she standing before him, he pulled up the cock, and touched the trigger; and the pistol went off, and killed the woman. This was ruled manslaughter. (u) But the legality of the decision has been doubted, on the ground that the man examined the pistol in the common way, and used the ordinary caution deemed to be effectual in similar cases. (w) And Mr. Justice Foster, after stating his reasons for disapproving of the judgment, says, that he had been the longer upon the case, because accidents of this lamentable kind may be the lot of the wisest and best of mankind, and most commonly fall amongst the nearest friends and relations; and then proceeds to state a case of a similar accident, in which the trial was had before himself. Upon a Sunday morning, a man and his wife went a mile or two from home with some neighbours, to take a dinner at the house of their common friend. He carried his gun with him, hoping to meet with some diversion by the way: but before he went to dinner he discharged it, and set it up in a private place in his friend's house. After dinner he went to church; and in the evening, returned home with his wife and neighbours, bringing his gun with him, which was carried into the room where his wife was, she having brought it part of the way. He, taking it up, touched the trigger; and the gun went off and killed his wife, whom he dearly loved. It came out in evidence, that, while the man was at church, a person belonging to the family privately took the gun, charged it, and went after some game; but, before the service at church was ended, returned it, loaded, to the place whence he took it, and where the defendant, who was ignorant of all that had passed, found it, to all appearance, as he had left it. “ I did not enquire,” says Mr. Justice Foster, “ whether the poor “ man had examined the gun before he carried it home; but being 66 of opinion, upon the whole evidence, that he had reasonable “ grounds to believe that it was not loaded, I directed the jury, that “ if they were of the same opinion, they should acquit him: and he 66 was acquitted.” (x)

It has been shewn, that where parents, masters, and other per- Correction in sons, having authority in foro domestico, give correction to those foro domestico. under their care, and such correction exceeds the bounds of due moderation, so that death ensues, the offence will be either murder or manslaughter, according to the circumstances : (y) but if the

(u) Rampton's case, Kel. 41. could receive from the rammer, unless it

(W) Fost. 264. where it is said, that were passed so smartly down the barrel perhaps the raminer, which the man as clearly to give the sound of the mehad not tried before, was too short, talat the bottom. However, there is a and deceived him. But, quære, whe- quære to the case in the margin of the ther the ordinary and proper precau- report; and it appears that the learned tion would not have been to have exa- editor (Holt, C. J.) was not satisfied mined the pan, which in all proba with the judgment; and that it is one bility must have been primed. The of the points which, in the Preface, rammer of a pistol, or gun, is so fre- he recommends for further consideraquently too short, from having been tion. accidentally broken, that it would be (x) Fost. 265. very incautious in a person previously (y) Ante, 460, Chap. on Murder; unacquainted with the state of the in- 532, Chap. on Manslaughter. strument to rely upon such proof as he

correction be reasonable and moderate, and by the struggling of the party corrected, or by some other misfortune, death ensue, the

killing will be only misadventure. (2) Death hap Such sports and exercises as tend to give strength, activity, pening from and skill in the use of arms, and are entered into as private lawful sports.

recreations amongst friends, such as playing at cudgels, or foils, or wrestling by consent, are deemed lawful sports; and if either party happen to be killed in such sports, it is excusable homicide by misadventure. (a) A different doctrine, indeed, appears to have been laid down by a very learned Judge: (b) but the grounds of that doctrine have been ably combated by Mr. Justice Foster, who gives this good reason for considering such sports as lawful, that bodily harm is not the motive on either side. (C) And certainly, though it cannot be said that they are altogether free from danger, yet they are very rarely attended with fatal consequences, and each party has friendly warning to be on his guard. Proper caution and fair play should, however, be observed; and, though the weapons used be not of a deadly nature, yet, if they may breed danger, there should be due warning given, that each party may start upon equal terms. For, if two be engaged to play at cudgels, and the one make a blow at the other, likely to hurt, before he is upon his guard, and without warning, from whence death ensues, the want of due and friendly caution will make such act amount to manslaughter, but not to murder, the

intent not being malicious. (d) Sports where Ordinarily the weapons made use of upon such occasions are deadly wea-, not deadly in their nature: but, in some sports, the instruments pons are used.

used are of a deadly nature; yet, in such cases, if they be not directed by the persons using them against each other, and therefore no danger be reasonably to be apprehended, the killing which may casually ensue will be only homicide by misadventure. Such will be the case, therefore, where persons shoot at game, or butts, or any other lawful object, and a bystander is killed : (e) and with respect to the lawfulness of shooting at game, it may be observed, that though the party be not qualified, the act will not be so unlawful as to enhance the accidental killing of a bystander to manslaughter. (f)

(z) 1 Hale 454, 473, 474. 4 Blac. (c) Fost. 260. Com. 182.

id) i East. P.C. c. c. 5. S. 41. p. 269. (a) Fost. 259, 260. 1 East. P. C. c. (e) I Hale 38, 472, 475. i Hawk. • 5. S. 41. p. 268. But there are other P. C. c. 29. s. 6. 1 East. P. C. c. 5. sports which come under a different S. 41. consideration. See ante, 527.

(f) i Hale 475. Post. 259. (6) i Hale 472.

Whence udea act amalicious. (d)de use of upports, the inbey be not

SECT. II.

Of Excusable Homicide in Self-Defence.

person,

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 blameable, and barely excusable. (g)

When a man is assaulted in the course of a sudden brawl or Defence of quarrel, he may, in some cases, protect himself by killing the per per son who assaults him, and excuse himself on the ground of self- ley. 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.(h) Under such circumstances, the killing will be excusable selfdefence, 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, (i) and the ancient books,(k) that it is properly applied to such killing as happens in self-defence upon a sudden rencounter. (1)

Homicide upon chance medley borders very nearly upon man. Homicide slaughter; and, in fact and experience, the boundaries are in some upon chance

medley borinstances scarcely perceivable, though in consideration of law they ders nearly have been fixed. (m) In both cases it is supposed that passion upon manhas kindled on each side, and blows have passed between the par- slaught ties : 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. (n) And the true criterion between them is stated to be this: when both parties are actually combating at the time the mortal stroke is given, the slayer is guilty of manslaughter; 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 selfdefence. (c)

(g) Fost. 273. “Self-defence cul- Kel. 67. “ pable, but througl: the benignity of (1) 4 Blac. Com. 184. Fost. 275. • the law excusable.”

Skene De verborum significatione, Verb. (h) 1 East. P. C. c. 5. s. 51. p. 280. Chaudmelle. Fost. 273.

(m) Fost. 276. (1) 24 Hen. 8. c. 5.

(n) Fost. 277. . (k) Staund. P. C. 16. 3 Inst. 55, 57. ) 4 Blac. Com. 184.

The party

In all cases of homicide excusable by self-defence, it must be killing must not act with

taken that the attack was made upon a sudden occasion, and not premedita- premeditated, or with malice: and, from the doctrine which has tion, and must been above laid down, it appears that the law requires, that the forbear as much as the person who kills another in his own defence should have retreated can with safe- as far as he conveniently or safely could, to avoid the violence of ty lo himself. the assault, before he turned upon his assailant; and that not fic

titiously, 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. (p) 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. (9)

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. (r)

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. (s) 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 : (t) 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. (u) 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 bave been killed himself. (w)

(p) i Hale 481, 483. Fost. 277. 4 “any rate I think there is great diffiBlac. Com. 185.

“culty in applying the distinction () i Hale 483. 4 Bl. Com. 185. “taken by Lord Bale and Hawkins () i Hale 453.

"against him who makes the first as(8) Post. 277.

"sault, to the case of inutual combat (0) 1 Hale 482.

“by consent, though upon a sudden (u) i Hawk. P.C. c 29. s. 17. Lord “occasion, where neither of the parHale seems also to distinguish the case “ties makes an attack till the other is of him who is first attacked from the “prepared ; because in these cases it assailant, with respect to the point of “maiters not who gives the first blow; retreating, 1 Hale 482. Upon ibis sub- “it forms no ingredient in the merits ject some remarks are offered by Mr. “ of the question.” East, (1 East. P. C. c. 5. s. 53. p. 281, (w) Fost. 273, 275, 289. Blac. 282.) and he concludes by saying, “At Com. 184.

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. (x)

If A. in defence of his house kill B., a trespasser, who endea- Defence of vours to make an entry upon it, it is at least common manslaughter; property

against tresunless, indeed, there were danger of his life. But if B. enter into passers. 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. And so it will be, if B. enter upon A., and assault him first, though not intending to kill him, but only as a trespasser to gain the possession : for, in such case, if A. thereupon kill B., it will be only se defendendo, and not manslaughter. (y) 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. (z) But where the trespass is barely against the property of another, the law does not admit the force of the provocation as sufficient to warrant the owner in making use of any deadly or dangerous weapon; more particularly if such violence is used after the party has desisted from the trespass. But if the beating be with an instrument or in a manner not likely to kill, it will only amount to manslaughter : and it is even lawful to exert such force against a trespasser, who comes, without any colour, to take the goods of another, as is necessary to make him desist. (a)

There is one species of homicide se defendendo where the party Homicide slain is equally innocent as the person who occasions his death : upon unfortuand yet this homicide is also excusable, from the great universal nate 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, thrust the other from it, whereby he was drowned. (b) 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. (c) But upon this it has been observed that if the commission of treason may be extenuated by the fear of present

(st) i Hale 484. · 4 Blac. Com. 186. c. 5. s. 56. p. 289.

(y) 3 Edw. 3. Coron. 35. Crompt. (6) 4 Blac. Com. 186. Bac. Elem. 27 b. i Hale 486.

c. 5. i Hawk. P. C. c. 28. s. 26. (z) i Hale 485.

(c) i Hale 51, 434. (a) i Hale 473, 486. 1 East. P. C. VOL, I,

2 N

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