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them as gamekeepers, may resist offenders in the night, within their respective manors or royalties, in the same manner and with equal indemnity as if the fact had been committed in any ancient chase.(b)

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.(c)

A man may repel force by force in defence of his person, habi- Homicide in tation, or property, against one who manifestly intends and en- the prevendeavours, by violence or surprise, to commit a known felony upon forcible and either. In these cases he is not obliged to retreat, but may pursue atrocious his adversary till he finds himself out of danger; and if, in a con- crime. flict between them, he happens to kill, such killing is justifiable.(d) But it has been holden, that this rule does not apply to any crime unaccompanied with force, as picking of pockets.(e) 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 self-defence. (f) 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.(g) But if a house be broken open, though in the daytime, with a felonious intent, it will be within the rule.(h)

A statute made(i) in affirmance of the common law, after recit- 24 Hen. 8. ing, that it had been doubted whether, if any person should c:5: Persons attempt feloniously to rob or murder any persons, in or near any who are at

(6) 4 and 5 W. & M. c. 23. s. 4. It But if one pick my pocket, and I canhas been doubted whether an assistant not otherwise take him than by killto a legal gamekeeper could justifying bim, this falls under the general seizing a fishing net, ander this statute, rule conce

cerning the arresting of felons. s. 5. and whether the authority were 1 East. P. C. c. 5. s. 45. p. 273. not personal. Rex v. Annesley and (f) i Hale 484. Redding, 9 St. Tri. 329, 330. But it (g) 1 Hale 485, 486. 1 Hawk. P. C. is said, that, without considering that c. 28. s. 23. Kel. 132. 1 East. P. C. question, it is sufficient to observe, C. 5. s. 44. p. 272. that the case did not turn upon this (h) i East. P. C. c. 5. S. 44.

p.

273. clause of the act, which has express In 4 Blac. Com. 180. it is said, that reference to the powers given by the the rule reaches not to the breaking stat. 21 Ed. I. and that statute ex- open of any house in the day-time, tends in terms to assistants. 1 East. unless it carries with it an attempt of P. C. c. 5. s. 31. p. 256.

robbery also. But it will apply where (c) i Hale 40.

the breaking is such as imports an (d) Fost. 273. Kel. 128, 129. 1 Hale apparent robbery, or an intention or 445, 481, 484. et sequ. 1 Hawk. P.C. attempt of robbery. I Hale 488. c. 28. s. 21, 24.

(i) 24 Hen, 8. c. 5. (e) i Hale 488. 4 Blac. Com. 180.

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tempting to common highway, cart-way, horse-way, or footway, or in their rob or murder, mansions, messuages, or dwelling places, or attempt to break any or commit burglary, are dwelling-house in the night-time, and should happen in such felo

nious intent to be slain by those whom they should so attempt to of goods, &c. rob or murder, or by any person being in their dwelling-house, but to be fully attempted to be broken open, the person so happening to slay the acquitted. person so attempting to commit murder or burglary, should forfeit

goods and chattels, enacts“ that if any person or persons be in“ dicted or appealed of or for the death of any such evil-disposed

person or persons attempting to murder, rob, or burglarily to “ break mansion-houses, as is abovesaid, the person or persons so “ indicted or appealed thereof and of the same by verdict so found “ and tried shall not forfeit or lose any lands, tenements, goods, “ or chattels, for the death of any such evil-disposed person in “ such manner slain, but shall be thereof and for the same fully

acquitted and discharged,” in like manner as if lawfully acquitted of the death of such person. But though the statute only mentions certain cases, it must not be taken to imply an exclusion of any other instances of justifiable homicide which stand upon the same grounds of reason and justice. So that the killing of one who attempts the wilful burning of a house is free from for

feiture without the aid of this statute.(k) Grounds of Important considerations will arise in cases of this kind, as to suspicion of a the grounds which the party killing had for supposing that the sign.

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 Frances Freeman, under the following cirLevet's case.

cumstances. Levet being in bed and asleep, his servant who had procured Frances Freeman 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 Frances Freeman, hid her in the buttery. Levet with his sword_searched the entry for thieves, when his wife, spying Frances Freeman 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 Frances Freeman in the buttery, hastily entered with his drawn sword, and being

in the dark, and thrusting before him with his sword, thrust Frances under the left breast and gave her a mortal wound, of which she . instantly died.(1) 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. (m) 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

(k) I Hale 488. 1 East. P. C. c, 5. Hale 42, 474. Jones (W.) 429. S. 44. p. 272.

(m) Fost. 999. (1) Levet's case, Cro. Car. 538. 1

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)

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 intent.
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:9) and it was held that this was lawful and justifi-
able 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 judg-
ment 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 ad-
judged 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 felo-
the 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 however vio-
a pretence of necessity, unless he were wholly without fault in lent, will not
bringing that necessity upon himself; for, if he kill any person in justify killing
defence of an injury done by himself, he is guilty of manslaughter the necessity
at least: as in the case where a body of people wrongfully detained must not be
a house by force, and killed one of those who attacked it, and en- himself by the
deavoured to set it on fire. (w)

party killing. 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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(1) I Hale 42,

used by Mr. Justice Foster in citing (0) 1 East. P. C. c. 5. s. 46. p. 274, it, were probably made on the ground 275.

of the reason suggested in the margin (p) i Hawk. P. C. c. 28. s. 27. of Kelyng for the judgment, namely,

(9) Mawgridge's case, Kel. 128, 129, that the killing by Mr. Ford in deAnte, 445.

fence of his own possession of the room (r) By Lord Holt, Kel. 128, 129. was justifiable, which, under those cir(8) Ford's case, Kel. 51.

cumstances, might be fairly question(1) 1 East. P. C. c. 5. s. 47. p. 276.; ed: as, on that ground, it might and see 1 East. P. C. c. 5. s. 25. p. have been better ruled to be man243. where Ford's case is observed slaughter. upon; and it is said that the memo. (u) i East. P. C. c. 5. s. 47. randum, in the margin of Kelyng to (W) 1 Hawk. P. C. c. 28. s. 22. 1 inquire of this case, and the quære Hale 405, 440, 441.

p. 277.

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.(r) Interference

Where a known felony is attempted upon any one, not only the by third per- party assaulted may repel force by force, but his servant attending vent felonies. 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. (s) Interference

But, in cases of mutual combats or sudden affrays, a person inby third per- terfering should act with much caution. Where, indeed, a person sons in cases interferes between two combatants with a view to preserve the of mutual combats and peace, and not to take part with either, giving due notice of his affrays. 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 jus

tifiable homicide, but manslaughter. (6) Time withi It should be observed, that as homicide committed in the pre

vention of forcible and atrocious crimes is justifiable only upon cide will be justifiable.

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 se-
cured, and when the apprehension of danger has ceased, such kill-
ing will be murder: though perhaps, if the blood were still hot
from the contest or pursuit, it might be held to be only man-
slaughter, on account of the high provocation. (c)
(x) 9 Anp. c. 16. Fost. 275.

(a) I Hale 484. 1 East. P. C. c. 5. (y) 1 Hale 481, 484. Fost. 274. s. 58. p. 290. And in Handcock v. Baker and others, (0) i East. P. C. c. 5. s. 58. p. 291. 2 Bos. & Pul. 265. Chambre, J. said, Ante, 499 ; and see also ante, Book " It is lawful for a private person to II. Chap. xxvi. Of Affrays, p. 270. “ do any thivg to prevent the perpe- (c) i East. P. C. c. 5. s. 60. p. 293. “ tration of a felony."

4 Blac. Com, 185. i Hale 485. (2) Fost. 274.

which homi

CHAPTER THE FIFTH.

OF DESTROYING INFANTS IN THE MOTHER'S WOMB.

43 G. 3. c. 58.

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We have already seen, that an infant in its mother's womb, not Common lav being in rerum natura, 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.

The 43 Geo. 3. c. 58. s. 1., after reciting that certain heinous 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 miscar“ 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.

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

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(a) Ante, 424.

meanor at common law in 3 Chit. (6) See a precedent of an indict- Crim. Law, 798. procured from the ment for this offence as a misde- Crown Office, Mich. T. 42 Geo. 3.

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