*176]

CHAPTER XIV.

OF HOMICIDE.

*IN the ten preceding chapters we have considered, first, such crimes and misdemeanors as are more immediately injurious to God and his holy religion; secondly, such as violate or transgress the law of nations; thirdly, such as more especially affect the king, the father and representative of his people; fourthly, such as more directly infringe the rights of the public or commonwealth, taken in its collective capacity; and are now, lastly, to take into consideration those which in a more peculiar manner affect and injure individuals or private subjects.

Were these injuries indeed confined to individuals only, and did they affect none but their immediate objects, they would fall absolutely under the notion of private wrongs, for which a satisfaction would be due only to the party injured, the manner of obtaining which was the subject of our inquiries in the preceding book. But the wrongs which we are now to treat of are of a much more extensive consequence: 1. Because it is impossible they can be committed without a violation of the laws of nature,-of the moral as well as political rules of right: 2. Because they include in them almost always a breach of the public peace: 3. Because by their example and evil tendency they threaten and endanger the subversion of all civil society. Upon *177] these accounts it is *that, besides the private satisfaction due and

given in many cases to the individual by action for the private wrong, the government also calls upon the offender to submit to public punishment for the public crime. And the prosecution of these offences is always at the suit and in the name of the king, in whom, by the texture of our constitution, the jus gladii, or executory power of the law, entirely resides. Thus, too, in the old Gothic constitution there was a threefold punishment inflicted on all delinquents; first, for the private wrong to the party injured; secondly, for the offence against the king by disobedience to the laws; and, thirdly, for the crime against the public by their evil example. (a) Of which we may trace the groundwork in what Tacitus tells us of his Germans, (b) that, whatever offenders were fined, "pars mulctæ regi, vel civitati, pars ipsi, qui vindicatur vel propinquis ejus, exsolvitur.”(1)

These crimes and misdemeanors against private subjects are principally of three kinds: against their persons, their habitations, and their property.

Of crimes injurious to the persons of private subjects, the most principal and important is the offence of taking away that life which is the immediate gift of the great Creator, and of which, therefore, no man can be entitled to deprive himself or another but in some manner either expressly commanded in or evidently deducible from those laws which the Creator has given us; the divine laws, I mean, of either nature or revelation. The subject, therefore, of the present chapter, will be the offence of homicide, or destroying the life of man, in its several stages of guilt, arising from the particular circumstances of mitigation or aggravation which attend it.

(a) Stiernhook, l. 1, c. 5.

(b) De Mor. Germ. c. 12.

is legalized.-Stewart. Statutes, 9 Geo. IV. c. 69, 7 & 8 Vict. c. 29 and 24 & 25 Vict. c. 96, 17, treat of the offence of taking game by night.

(1) ["Part of the fine is paid to the king, or the state, and part to the plaintiff, or to his relations."]

Now, homicide, or the killing of any human creature, is of three kinds: justifiable, excusable, and felonious. (2) The first has no share of guilt at all; the second very little; but the *third is the highest crime [*178 against the law of nature that man is capable of committing. (3)

I. Justifiable homicide is of divers kinds. (4)

1. Such as is owing to some unavoidable necessity, without any will, intention, or desire, and without any inadvertence or negligence, in the party killing, and therefore without any shadow of blame. As, for instance, by virtue of such an office as obliges one, in the execution of public justice, to put a malefactor to death who had forfeited his life by the laws and verdict of his country. This is an act of necessity, and even of civil duty, and therefore not only justifiable, but commendable, where the law requires it. But the law must require it, otherwise it is not justifiable: therefore, wantonly to kill the greatest of malefactors, a felon or a traitor, attainted or outlawed, deliberately, uncompelled and extra-judicially, is murder. (c)(5) For, as Bracton(d) very justly observes, "istud homicidium, si fit ex livore, vel delectatione effundendi humanum sanguinem, licet justè occidatur iste, tamen occisor peccat mortaliter, propter intentionem corruptam."(6) And, further, if judgment of death be given by a judge not authorized by lawful commission, and execution is done accordingly, the judge is guilty of murder. (e) And upon this account Sir Matthew Hale himself, though he accepted the place of a judge of the common pleas under Cromwell's government, (since it is necessary to decide the disputes of civil property in the worst of times,) yet declined to sit on the crown side at the assizes and try prisoners, having very strong objections to the legality of the usurper's commission; (f) a distinction perhaps rather too refined, since the punishment of crimes is at least as necessary to society as maintaining the boundaries of property. Also, such judgment, when legal, must be executed by the proper officer or his appointed deputy; for no one else is required by law to do it, which requisition it is that justifies the homicide. If another *person doth [*179 it of his own head, it is held to be murder,(g) even though it be the judge himself. (h) It must, further, be executed servato juris ordine;(7) it must pursue the sentence of the court. If an officer beheads one who is adjudged to be hanged, or vice versa, (8) it is murder, (i) for he is merely ministerial, and therefore only justified when he acts under the authority and compulsion of the law; but if a sheriff changes one kind of death for another, he then acts by his own authority, which extends not to the commission of homicide, and, besides, this license might occasion a very gross abuse of his

(c) 1 Hal. P. C. 497.

(d) Fol. 120.

(e) 1 Hawk. P. C. 70. 1 Hal. P. C. 497. (f) Burnet, in his Life.

(g) 1 Hal. P. C. 501. 1 Hawk. P. C. 70.
(h) Dalt. Just. c. 150.

(i) Finch, L. 31. 3 Inst. 52. 1 Hal. P. C. 501.

(2) Murder and manslaughter are each and both felonies. 2 Bish. Crim. Law, 617. (3) See Kerr's Law of Homicide (1891), p. 9, on the classes of justifiable homicide. (4) See Clark's Crim. Law, ch. 8, p. 133, on justifiable homicide. The essential difference between excusable and justifiable homicide rests not merely in the fact that at common law one was felonious, although pardoned, while the other was innocent. Those only were justifiable homicides where the slayer was regarded as promoting justice and the question of personal danger did not necessarily arise. Pond v. The People (1860), 8 Mich. 177.

(8) 2. Bishop's Cr. L. 350.

(6) ["If the homicide be committed through malice, or a thirst of human blood, the perpetrator is guilty of murder on account of his evil intention, although the sufferer deserved death."]

(7) [According to the order of the court.]

(8) [Conversely.j

power. The king, indeed, may remit part of a sentence, as in the case of treason, all but the beheading; but this is no change, no introduction of a new punishment: and in the case of felony, where the judgment is to be hanged, the king (it hath been said) cannot legally order even a peer to be beheaded. (k) (9) But this doctrine will be more fully considered in a subsequent chapter.

Again: in some cases homicide is justifiable rather by the permission than by the absolute command of the law, either for the advancement of public justice, which without such indemnification would never be carried on with proper vigor; or, in such instances where it is committed for the prevention of some atrocious crime which cannot otherwise be avoided.

2. Homicides committed for the advancement of public justice are: 1. Where an officer, in the execution of his office, either in a civil or criminal case, kills a person that assaults and resists him. (7)(10) 2. If an officer, or any private person, attempts to take a man charged with felony, and is resisted, and in the endeavor to take him kills him. (m) This is similar to the old Gothic constitutions, which (Stiernhook informs us) (n) "furem, si aliter *180] capi non posset, occidere permittunt." (11) 3. In case of a riot, or rebellious assembly, the officers endeavoring to disperse the mob are justifiable in killing them, both at common law,(o) and by the riot act 1 Geo. I. c. 5. 4. Where the prisoners in a gaol, or going to a gaol, assault the gaoler or officer, and he in his defence kills any of them, it is justifiable for the sake of preventing an escape.(p) 5. If trespassers in forests, parks, chases, or warrens will not surrender themselves to the keepers, they may be slain, by virtue of the statute 21 Edw. I. st. 2, de malefactoribus in parcis;(12) and 3 & 4 W. and M. c. 10. (13) But in all these cases there must be an apparent necessity on the officer's side, viz., that the party could not be arrested or apprehended, the riot could not be suppressed, the prisoners could

(k) 3 Inst. 52, 212.

() 1 Hal. P. C. 494. 1 Hawk. P. C. 71.

(m) 1 Hal. P. C. 494.

(n) De jure Goth. 1. 3, c. 5.
(0) 1 Hal. P. C. 495. 1 Hawk. P. C. 161.
(p) 1 Hal. P. C. 496.

(9) Kerr's Law of Homicide (1891) 9.

(10) An officer, if assaulted in the execution of his duty, is not bound to give way, and if he kills his assailant, it is adjudged homicide in self-defence. I Barbour's Crim. Law, 42 (1883). Homicide by an officer is justifiable in the following cases: (1) Where a peace officer or his assistant, in the due execution of his office, whether in a civil or criminal case, kills one who is resisting his arrest or attempt to arrest; (2) Where the prisoners in jail, or going to jail, assault the jailer or officer, and he, in his defence, to prevent an escape, kills any of them; (3) When an officer or private person, having legal authority to arrest, attempts to do so, and the other flies, and is killed in the pursuit. But here the ground of arrest must be either a felony or the infliction of a dangerous wound; when an officer, in endeavoring to disperse a mob or a riotous or rebellious assembly, kills one or more of them, he not being able otherwise to suppress the riot. Kerr's Law of Homicide, p. 10. See also Clark's Crim. Law, p. 136, et seq. A voluntary killing in attempting to arrest one charged with a misdemeanor is murder. See Kerr's Law of Homicide (1891) p. II.

An officer who makes an arrest out of his proper district or without a warrant or authority, and purposely kills the party for not submitting to the illegal arrest, will in general be guilty of murder in all cases where an indifferent person, acting in like manner, without any pretence, would be guilty to that extent. Wharton's Crim. Law,

vol. I. 410. See Id. vol. 1, 411, et seq. on homicide of officers of justice and others aiding them. Killing by a military or naval officer is at least manslaughter, unless he act under proper authority. Id. vol. I. p. 410.

(11) ["It is allowable to kill a thief if he cannot otherwise be taken."]

(12) [Of trespassers in parks.]

(13) 21 Edw. I. stat. 2 is repealed, by 7 & 8 Geo. IV. c. 27, and 3 & 4 W. and M. c. 10, by 16 Geo. III. c. 30,-which latter is also repealed, by 7 & 8 Geo. IV. c. 27.— CHITTY.

not be kept in hold, the deer-stealers could not but escape, unless such homicide were committed; otherwise, without such absolute necessity, it is not justifiable. (14) 6. If the champions in a trial by battle killed either of them the other, such homicide was justifiable, and was imputed to the just judgment of God, who was thereby presumed to have decided in favor of the truth. (9)(15)

In the next place, such homicide as is committed for the prevention of any forcible and atrocious crime is justifiable by the law of nature; (r) and also by the law of England, as it stood so early as the time of Bracton, (s) and as it is since declared in statute 24 Hen. VIII. c. 5. If any person attempts a robbery or murder of another, or attempts to break open a house, in the nighttime, (which extends also to an attempt to burn it,)(t) and shall be killed in such attempt, the slayer shall be acquitted and discharged. This reaches not to any crime unaccompanied with force, as picking of pockets, or to the breaking open of any house in the daytime, unless it carries with it the attempt of robbery also. (16) So the Jewish law, which punished no theft with death, makes homicide only justifiable in case of nocturnal house-breaking: if a thief be found breaking up, and he be "smitten that *he [*181 die, no blood shall be shed for him; but if the sun be risen upon him, there shall blood be shed for him; for he should have made full restitution."(u) At Athens, if any theft was committed by night it was lawful to kill the criminal if taken in the fact: (w) and by the Roman law of the twelve tables, a thief might be slain by night with impunity; or even by day, if he armed himself with any dangerous weapon: (x) which amounts to nearly the same as is permitted by our own constitutions.

The Roman law also justifies homicide when committed in defence of the chastity either of one's self or relations; (y) and so also, according to Selden, (2) stood the law in the Jewish republic. The English law likewise justifies a woman killing one who attempts to ravish her:(a) and so too the

(g) 1 Hawk. P. C. 71.

(r) Puff. L. of N. l. 2, c. 5.

(8) Fol. 155.

(t) 1 Hal. P. C. 488.

(u) Exod. xxii. 2.

(w) Pott Antiq. b. i. c. 24.

(x) Cic. pro Milone, 3. Ff. 9, 2, 4.

(y)" Divus Hadrianus rescripsit eum qui stuprum sibi vol suis inferentem occidit dimittendum." The Divine Hadrian discharged him who killed a person attempting to violate the chastity of himself or any of his family."] Ff. 48, 8, 1.

(z) De legib. Hebræor. l. 4, c. 3.

(a) Bac. Elem. 64. 1 Hawk. P. C. 71.

(14) If a person commits felony, and flies, or resists those who attempt to apprehend him, or is indicted of felony, and flies, or is arrested by warrant or process of law, and escapes, or is being conveyed to prison, and escapes,-in any of these cases, if he cannot be taken alive, and is killed in the act of resistance, the homicide is justifiable. I Hale, P. C. 489. I East, P. C. 298. So if an officer has a warrant against A., by name, for felony, or if A. is indicted of felony, or if the hue and cry is levied against him, by name, in any of these cases if A., though innocent, flies or resists, and is killed by the officer or any other person aiding him during flight or resistance, the person so killing him is indemnified. Fost. 318. 1 East, P. C. 300. And the officer, it seems, would be equally indemnified though he had no warrant, if he acted on a charge of felony, and on reasonable suspicion, even though it should appear in the result that no felony had been committed. Samuel v. Payne, Doug. 359. Guppy v. Brittlebank, 5 Price, 525. -CHITTY.

(15) The trial by battle is abolished, by 59 Geo. III. c. 46. See further upon that subject, post [After], 346.-CHITTY.

Repealed. No punishment or forfeiture shall be incurred by any person who shall kill another by misfortune, or in his own defence, or in any other manner, without felony.

(16) In Story v. The State, 71 Ala. 339, the view of Mr. Wharton is adopted, which holds that the rule does not authorize the killing of persons attempting secret felonies, not accompanied by force. It is said by the authors of cases on self-defence, that a killing "which appears to be reasonably necessary to prevent a forcible and atrocious felony against property, is justifiable homicide," but "it is pretty clear that the right to kill in defence of property does not extend to cases of larceny." Storey v. The State, 71 Ala. 339, Tillman (1881). See Kerr's Law of Homicide, (1891) p. 12.

husband or father may justify killing a man who attempts a rape upon his wife or daughter; but not if he takes them in adultery by consent, for the one is forcible and felonious, but not the other. (b)(17) And I make no doubt but the forcibly attempting a crime of a still more detestable nature may be equally resisted by the death of the unnatural aggressor. For the one uniform principle that runs through our own and all other laws seems to be this, that where a crime, in itself capital, is endeavored to be committed by force, it is lawful to repel that force by the death of the party attempting. But we must not carry this doctrine to the same visionary length that Mr. Locke does, who holds(c) "that all manner of force without right upon a man's person puts him in a state of war with the aggressor; and, of consequence, that, being in such state of war, he may lawfully kill him that puts him under this unnatural restraint." However just this conclusion may be in a state of uncivilized nature, yet the law of England, like that of *182] every other *well-regulated community, is too tender of the public

peace, too careful of the lives of the subjects, to adopt so contentious a system; nor will suffer with impunity any crime to be prevented by death, unless the same, if committed, would also be punished by death. (18)

In these instances of justifiable homicide, it may be observed that the slayer is in no kind of fault whatsoever, not even in the minutest degree; and is therefore to be totally acquitted and discharged, with commendation rather than blame. But that is not quite the case in excusable homicide, the very name whereof imports some fault, some error or omission; so trivial, however, that the law excuses it from the guilt of felony, though in strictness it judges it deserving of some little degree of punishment.

II. Excusable homicide is of two sorts; either per infortunium, by misadventure; or se defendendo, upon a principle of self-preservation. We will first see wherein these two species of homicide are distinct, and then wherein they agree.

1. Homicide per infortunium or misadventure is where a man, doing a lawful act without any intention of hurt, unfortunately kills another: as where a man is at work with a hatchet, and the head thereof flies off and kills a stander-by; or where a person qualified to keep a gun is shooting at a mark and undesignedly kills a man: (d) for the act is lawful, and the effect is merely accidental. (19) So where a parent is moderately correcting his child,

(b) 1 Hal. P. C. 485, 486.

(c) Ess. on Govt. p. 2 c. 5.

(d) 1 Hawk. P. C. 73, 74.

(17) If the adultery is by the consent of the wife, the husband taking the offender in the act and killing him, is guilty of manslaughter only. Kerr's Law of Homicide (1891) P. 12. A husband or brother would not be justified in killing a man who is attempting to seduce and debauch his wife or sister by fraudulent means and not by force. Clark's Crim. Law, p. 138. A woman who kills a man attempting to rape her may be said to kill him in self-defence, and there is no difference in principle between such a case and the case where a man, not himself in fault, kills one who is attempting to take his life. Clark's Crim. Law, p. 139.

(18) If the rule stated by Blackstone were adopted, and defensive homicide were allowed only to prevent a capital crime, it would not be allowed in any case in this state at the present time, except when necessary to prevent murder in the first degree. Such is not understood to be the law. Aldrich v. Wright, 53 N. H. 416 (1873).

See Kerr's Law of Homicide (1891) p. 12, on homicide to prevent a crime.

This view has been repudiated by later authorities. While all admit that the killing cannot be done from mere choice, it is none the less certain that the felony need not be a capital one to come within the scope of the rule. Storey v. The State, 71 Ala. 338, Tillman (1881).

(19) If a person driving a carriage happen to kill another, if he saw or had timely notice of the mischief likely to ensue, and yet wilfully drove on, it will be murder; if he might have seen the danger, but did not look before him, it will be manslaughter; but