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CHAP. IV. §3.] In Preventing Crimes.

the case seems more properly to be one of those mentioned by Lord Hale, (n) where the ignorance of the fact excuses the party from all sort of blame.(0) 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. (p)

:

intent.

Questions will also sometimes arise as to the apparency of the Apparency of 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 Mawgridge's bottle with great force at the head of Mr. Cope, and immediately case. drew his sword, upon which Mr. Cope returned a bottle with equal violence: q) 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. (r) 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 Ford's case. 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. (s) 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 assassination than of combat. (t) But no assault, however violent, will justify killing Unless a felothe assailant under the plea of necessity, unless there be a plain nious intent manifestation of a felonious intent. (u) And it may be further be manifested, observed, that a man cannot, in any case, justify killing another by a pretence of necessity, unless he were wholly without fault in bringing 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. (w)

Mr. Justice Foster 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

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275.

(p) 1 Hawk. P. C. c. 28. s. 27.
(q) Mawgridge's case, Kel. 128, 129,
Ante, 445.

(r) By Lord Holt, Kel. 128, 129.
(8) Ford's case, Kel. 51.

(t) 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 memo.
randum, in the margin of Kelyng to
inquire of this case, and the quare

used by Mr. Justice Foster 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.

(u) 1 East. P. C. c. 5. s. 47. p. 277. (w) 1 Hawk. P. C. c. 28. s. 22. 1 Hale 405, 440, 441.

an assault,

however violent, will not the party. And justify killing the necessity brought upon must not be himself by the

party killing.

Interference

by third pervent felonies.

sons to pre

Interference

sons in cases of mutual

combats and affrays.

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. (x)

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. (y) So, where an attempt is made to commit arson, or burglary, in the habitation, any part of the owner's family, or even a lodger, may lawfully kill the assailants, in order to prevent the mischief intended. (*)

But, in cases of mutual combats or sudden affrays, a person in. by third per- terfering 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: (a) 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. (b)

Time within which homicide will be justifiable.

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 may pursue the felon till he finds himself out of danger; yet if the felon be killed after he has been properly secured, and when the apprehension of danger has ceased, such killing will be murder: though perhaps, if the blood were still hot from the contest or pursuit, it might be held to be only manslaughter, on account of the high provocation. (c)

(x) 9 Ann. c. 16. Fost. 275.

(y) 1 Hale 481, 484. Fost. 274. And in Handcock v. Baker and others, 2 Bos. & Pul. 265. Chambre, J. said, "It is lawful for a private person to "do any thing to prevent the perpe“tration of a felony."

(z) Fost. 274.

(a) 1 Hale 484. s. 58. p. 290.

East. P. C. c. 5.

(b) i East. P. C. c. 5. s. 58. p. 291. Ante, 499; and see also ante, Book II. Chap. xxvi. Of Affrays, p. 270.

(c) 1 East. P. C. c. 5. s. 60. p. 293. 4 Blac. Com. 185. 1 Hale 485.

CHAPTER THE FIFTH.

OF DESTROYING INFANTS IN THE MOTHER'S WOMB.

We have already seen, that an infant in its mother's womb, not Common law being in rerum naturá, is not considered as a person who can be offence. killed within the description of murder. (a) An attempt, however, to effect the destruction of such an infant, though unsuccessful, appears to have been treated as a misdemeanour at common law: (b) and a statute has lately been passed, by which certain acts, intended to procure the miscarriage of a woman with child, are made highly penal.

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&c. with in

The 43 Geo. 3. c. 58. s. 1., after reciting that certain heinous 43 G. 3. c. 58. offences, with intent to procure the miscarriage of women, had s. 1. adminisbeen of late frequently committed, and that no adequate means tering poison, had been provided for their prevention and punishment, enacts, tent to cause that if any person or persons shall, either in England or Ireland, the miscarman quick with "wilfully, maliciously, and unlawfully, administer to, or cause to riage of a wo"be administered to, or taken by any of his majesty's subjects, child, felony any deadly poison, or other noxious and destructive substance withoutclergy. "or thing, with intent such his majesty's subject or subjects "thereby to murder, or thereby to cause and procure the mis"carriage of any woman then being quick with child," the person or persons so offending, their counsellors, aiders, and abettors, knowing of and privy to such offence, shall be felons, and shall suffer death, as in cases of felony, without benefit of clergy.

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Upon an indictment on this section of the statute, the woman, pregnancy: but in point of fact, was in the fourth month of her she swore that she had not felt the child move within her before taking the medicine, and that she was not then quick with child. The medical men, in their examinations, differed as to the time when the fœtus may be stated to be quick, and to have a distinct existence but they all agreed, that, in common understanding, a woman is not considered to be quick with child till she has felt the child alive and quick within her, which happens with different women in different stages of pregnancy, although most usually

(a) Ante, 424. (b) See a precedent of an indictment for this offence as a misde

meanor at common law in 3 Chit.
Crim. Law, 798. procured from the
Crown Office, Mich. T. 42 Geo. 3.

The words

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quick with child" are to according to the common und

be construed

ing, in which they signify that the wo

man has felt the child move

within her.

43 Geo. 3. c. 58. s. 2. Administeriug medicines, &c. to women not quick with child, with in

tent to procure miscar

or transportation for four

teen years.

about the fifteenth or sixteenth week after conception. And Lawrence, J. said, that this was the interpretation that must be put upon the words, "quick with child," in the statute; and, as the woman had not felt the child alive within her before taking the medicine, he directed the jury to acquit the prisoner. (c)

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The second section of the statute recites that it might sometimes happen that poison or some other noxious and destructive substance or thing might be given, or other means used, with intent to procure miscarriage or abortion, where the woman might not be quick with child at the time, or it might not be proved that she was quick with child: and enacts, "that if any person or per"sons shall wilfully and maliciously administer to, or cause to be riage, felony, "administered to, or taken by any woman, any medicines, drug, punishable by imprisonment, or other substance or thing whatsoever, or shall use or employ, &c. whipping" or cause or procure to be used or employed, any instrument or "other means whatsoever, with intent thereby to cause or procure "the miscarriage of any woman not being, or not being proved to 66 be, quick with child at the time of administering such things, or "using such means, that then and in every such case, the person or persons so offending, their counsellors, aiders, and abettors, "knowing of and privy to such offence, shall be and are hereby "declared to be guilty of felony, and shall be liable to be fined, imprisoned, set in and upon the pillory, publicly or privately 66 whipped, or to suffer one or more of the said punishments, or to "be transported beyond the seas, for any term not exceeding "fourteen years, at the discretion of the court, before which such "offender shall be tried and convicted." (d) It is observable, that the using an instrument, &c. with intent to procure a miscarriage, thus made a felony within clergy, is not noticed in the former section of the statute, which relates to the procuring the miscarriage of a woman being quick with child.

An infusion or decoction

of a shrub are

second section

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An indictment upon this section of the statute charged the prisoner with having administered to a woman a decoction of a certain ejusdem gene- shrub called savin; and it appeared upon the evidence that the ris. The ques- prisoner prepared the medicine which he administered, by pouring tion upon the boiling water on the leaves of a shrub. The medical men who of the statute were examined stated, that such a preparation is called an infusion, is whether any and not a decoction, (which is made by boiling the substance in matter or thing the water) upon which the prisoner's counsel insisted that he was entitled to an acquittal, on the ground that the medicine was miscure abortion. described. But Lawrence, J. overruled the objection, and said that infusion and decoction are ejusdem generis, and that the variance was immaterial: that the question was, whether the prisoner administered any matter or thing to the woman to procure abortion. (e)

was adminis

tered to pro

And it is not necessary, upon an in

In the same case, witnesses having been called on behalf of the prisoner to prove that the shrub he used was not savin, the counsel (c) Rex v. Phillips, Monmouth Sum. Ass. 1812. cor. Lawrence, J. 3 Campb.

77.

(d) The punishment of the pillory is now taken away, by the 56 Geo. 3.

c. 138.

(e) Rex v. Phillips, 3 Campb. 74,

75.

And upon an indictment for murder, if the death be laid to have been by one sort of poison, and it turn out to have been by another, the difference will not be material. Ante, 467.

66

ministered

for the prosecution insisted that he might, notwithstanding, be dictment on found guilty upon the last count of the indictment, which charged this section of that he administered a large quantity" of a certain mixture, to the charging the "jurors unknown, then and there being a noxious and destructive prisoner with thing." The prisoner's counsel objected that, unless the shrub having adwas savin, there was no evidence that the mixture was "noxious "a certain "and destructive." Lawrence, J. held, that in an indictment on "mixture, "to the jurors this clause of the statute, it was improper to introduce these "unknown, words; and that though they had been introduced, it was not ne- "then and "there being cessary to prove them. And he further said, "it is immaterial "there "whether the shrub was savin or not, or whether or not it was capable of procuring abortion, or even whether the woman was "actually with child. If the prisoner believed, at the time, that "it would procure abortion, and administered it with that intent, "the case is within the statute, and he is guilty of the offence "laid to his charge." (f)

(f) Rex v. Phillips, 3 Campb. 76. The prisoner had previously been tried upon the first section of the statute, for the capital charge, and acquitted. See ante, 553. Upon this second indictment he urged that he had given

66 a noxious

"and de

"structive "thing," to

"

prove that the

mixture was noxious or

destructive, or even that the woman

the young woman an innocent draught was with child.
for the purpose of amusing her, as she
had threatened to destroy herself, un-
less enabled to conceal her shame;
and the jury returned a verdict of
Not guilty.

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