of this murder; and it was agreed by the Court, that if the king's officer, or any of his assistants, had been killed by the shot, it would have been murder in all the gang; and also, that if it had appeared that the shot was levelled at the officer, or any of his assistants, it would also have amounted to murder in the whole of the gang, though an accomplice of their own were the person killed.(m) The point upon which this case turned was, that it did not appear from any of the facts found, that the gun was discharged in prosecution of the purpose for which the party was assembled.(n) In another case the prisoners were hired by a tenant to assist him in carrying away his household furniture in order to avoid a distress. They accordingly assembled for this purpose armed with bludgeons and other offensive weapons; and a violent affray took place between them and the landlord of the house, who, accompanied on his part by another set of men, came to prevent the removal of the goods. The constable was called in and produced his authority, but could not induce them to disperse: and, while they were fighting in the street, one of the company, but which of them was not known, *killed a boy who was standing at his father's door looking on, but totally unconcerned in the affray. The [*744 question was, whether this was murder in all the company; and Holt, C. J., and Pollexfen, C. J., were of opinion that it was murder in all the company, because they were all engaged in an unlawful act, by proceeding in the affray after the constable had interposed and commanded them to keep the peace; especially as the manner in which they originally assembled, namely, with offensive weapons and in a riotous manner, was contrary to law. (0) But the majority of the Judges held, that as the boy was found to be unconcerned in the affray, his having been killed by one of the company could not possibly affect the rest; for the homicide did not happen in prosecution of the illegal act.(p). And it seems that this opinion proceeded upon the ground that there was no evidence to show that the stroke by which the boy was killed was either levelled at any of the opposing party, or was levelled at him upon the supposition that he was one of the opponents, and therefore that it was not given in prosecution of the purpose for which the party was assembled.(g) In these cases it seems that it is a question for the jury whether the act done was in prosecution of the purpose for which the party was assembled, or independent of it and without any previous concert. The prisoners, eight in number, each having a gun, upon being found poaching by some keepers, who went towards them for the purpose of apprehending them, formed into two lines, and pointed their guns at the keepers, saying they would shoot them; a shot was then fired which wounded a keeper, but no other shot was fired: it was objected that it was clear that there was no common intent to shoot this man, because only one gun was fired, instead of the whole number. Vaughan, B., "That is rather a question for the jury, but still on this evidence it is quite clear what the common purpose was. They all draw up in lines, and point their guns at the gamekeepers, and they are all giving their countenance and assistance to the one who actually fires the gun. If it could be shown that either of them separated himself from the rest, and showed distinctly that he would have no hand in what they were doing, the objection would have much weight in it."(r) Two private watchmen seeing the prisoner and another man with two carts laden with apples, which they suspected had been stolen, went up to them, and one walked beside the prisoner, and one beside the other man, at some distance from each other, and while they were so going along, the prisoner's companion stepped back, and with a bludgeon wounded the watchman he had been walking with; Garrow, B., "To make the prisoner a principal the jury must be satisfied that when he and his companion went out with a common (m) Plummer's case, Kel. 109. (n) Fost. 352, and see Mansell and Herbert's case, 1 Hale 440, 441, cited from Dy. 128 b. (0) They cited Stamf. 17, 40; Fitz. Cor. 350; Cromp. 244. (p) Rex v. Hodgson and others, 1 Leach 6. See Plummer's case, ante, note (m), 12 Mod. 629; Thompson's case, Kel. 66; Anon., cited by Holt, C. J., 1 Leach 7, note (a), and a case Anon., 8 Mod. 165. See also Keilw. 161, and Borthwick's case, Dougl. 202. (g) 1 East P. C. c. 5, s. 33, p. 258, 259; and see the remarks of Lord Hale, upon the case of Mansell and Herbert (Dy. 128 b.) in 1 Hale 440, 441. (7) Rex v. Edmeads, 3 C. & P. 390 (14 E. C. L. R.). illegal purpose of stealing apples, they also entertained the common guilty purpose of resisting to death, or with extreme violence, any persons who might endeavor to *apprehend them; but if they had only the common purpose of stealing *745] apples, and the violence of the prisoner's companion was merely the result of the situation in which he found himself, and proceeded from the impulse of the moment, without any previous concert, the prisoner will be entitled to an acquittal."(s) Where the whole of a party of poachers set upon and beat a keeper till he was senseless, and having left him lying on the ground, one of them after they had gone a little distance returned, and stole his money, it was holden that he alone was guilty of the stealing.(t) Where two poachers were apprehended by some gamekeepers, and being in custody called out to one of their companions, who came to their assistance and killed one of the gamekeepers, it was held that this was murder in all, though the blow was struck while the two were actually in custody, but that it would not have been so, if the two had acquiesced and remained passive in custody.(u) Where four poachers were met by a keeper and his assistant, and after some words had passed, three of them ran in upon the keeper, knocked him down and stunned him; and when he recovered himself, he saw all of them coming by him, and one said, "Damn 'em we've done 'em :" and when they had got two or three paces beyond him, one of them turned back and wounded the keeper in the leg, and then the men set off and ran away; Bolland, B., told the jury if they thought the prisoners were acting in concert, they were all equally guilty of inflicting the wound.(v) Where, upon an indictmeat for maliciously cutting, the question was, how far one prisoner was concurring in the act of the other; Park, J., told the jury that, "if three persons go out to commit a felony, and one of them, unknown to the others, puts a pistol in his pocket, and commits a felony of another kind, such as murder, the two who did not concur in this second felony will not be guilty thereof, notwithstanding it happened while they were engaged with him in the felonious act for which they went out."(w) On an indictment for murder it appeared that the six prisoners, who were shipmates, for some cause of offence unknown, chased a German sailor belonging to another ship through the streets, and as he took refuge from their attack against a railing, he was stabbed by one of them with a knife, of which wound he died in a few minutes. The evidence as to the hand by which the blow was given was very conflicting. Byles, J., told the jury that supposing they could fix upon the hand that stabbed, the first question would be what was his offence? The person who stabbed was clearly guilty of murder, whether he intended to kill or not. If he only intended to commit bodily harm, he was guilty of murder. The next question was in what condition were the other five men? The deceased sailor was leaning against some *iron railings when the stab was given, but before that he had *746] been assaulted in a barbarous and dastardly manner by these six men; but did the other men contemplate the use of the knife, or was it an independent act of the man who used it? They were all guilty of murder if they participated in a common design and intention to kill. If they should think that the others did not intend and design to kill, yet these others would also be guilty of murder if the knife was used in pursuance of one common design to use it, because then the hand that used the knife was the hand of all of them. Supposing there was no common design to use the knife, if being present at the moment of stabbing, they assented and manifested their assent by assisting in the offence, they were guilty of murder. First, then, there must be a common design to kill; secondly, there must be a (8) Rex v. Collison, 4 C. & P. 565 (19 E. C. L. R.). See the observations of Littledale, J., in Reg. v. Howell, 9 C. & P. 450 (38 E. C. L. R.). (t) Rex v. Hawkins, 3 C. & P. 392 (14 E. C. L. R.), Park, J. A. J. () Rex v. Whithorne, 3 C. & P. 394 (14 E. C. L. R.), MSS., C. S. G., Vaughan, B. See ante, p. 736, notes (x) and (y). (v) Rex v. Warner, R. & M C. C. R. 380; s. c., C. & P. 525 (24 E. C. L. R.). (w) Duffey's case, 1 Lew. 194. See Macklin's case, 2 Lew. 225, per Alderson, B., post. common design to use a murderous instrument; and, thirdly, there must be presence at the time and assent and assistance in the use of the knife. If, however, they should think neither of these three modes of putting the case proved against the five, it would be their duty to find the stabber guilty and to acquit the others.(x) Where on an indictment for murder it appeared that the deceased was found tied hand and foot with string, and something forced into her throat, by which she had been suffocated, and the house in which she was had been forcibly entered, and the object evidently had been robbery; the jury were told that if they were satisfied that the deceased met with her death from violence by any person or persons to enable them to commit a burglary or other felony, although they who inflicted the violence might not have intended to kill her, all who were parties to that violence were guilty of murder.(y) On an indictment for manslaughter it appeared that more than nine men, of whom seven were armed with guns, were out at night in pursuit of game; and shots had been heard in one wood, and the prisoners were met in a meadow going towards another wood by a party of gamekeepers; the deceased had a flail, but none of them had any gun: the poachers drew up in a line, as one of them ordered them to do: one of them said, "The first man that takes a step forward I will shoot," the deceased called out, "Oh, you would not be so cowardly as to shoot:" the man cried out, "So help me God, I will." The deceased said to his men, "Are you ready?" and they made a rush at the prisoners, and the flail was heard to rattle and then the deceased was shot, but not by the man he was assailing. It was by no means clear who fired the shot. Byles, J., told the jury that whoever fired the shot was guilty of manslaughter, and assuming that it could not be ascertained who fired the shot, all who were present, and were parties to the act, were certainly guilty, and that if all were in a row when the gun was fired that was strong evidence of a common purpose to shoot; but it was for the jury to decide whether there was such a common purpose or not, or whether the gun was fired in consequence of a personal encounter between a keeper, and the man who fired it.(z) On a trial for murder it appeared that a dispute had arisen between the deceased and Turner, who called the deceased a liar. The deceased then struck Turner, on which Staple took off his coat to fight, but the police prevented it, and the deceased left to go home; after a few minutes Turner and Staple followed him, and the police went after them, and just before they came up they heard a cry "Get up," and on coming up found the deceased lying on the road, one of the prisoners having hold of his head, the other of his feet. The deceased died the next day. The death was caused by an injury in the orbit of the eye, which had fractured the frontal bone, and which might have been caused by a blow from a blunt instrument or a kick from a heavy iron-shod boot, such as the prisoners wore. It was urged that as it was not proved which prisoner inflicted the blow, and there was no evidence of a common design to inflict felonious violence, or to do more than commit an assault, neither prisoner could be convicted even of manslaughter.(zz) Channell, B., agreed with the law laid down in that case, and held that on a charge of murder there must be evidence of a common design to kill or inflict murderous violence; but on a charge of manslaughter, if several were proved to have been parties to an unlawful act of violence, they are all guilty.(aa) (x) Reg. v. Price, 8 Cox C. C. 96. This case is evidently so inaccurately reported that great caution must be used as to it. (y) Reg. v. Franz, 2 F. & F. 580. (z) Reg. v. Luck, 3 F. & F. 483. The marginal note is not warranted by the case, and the case is very inaccurately stated. Byles, J., is reported to have directed the grand jury that, "as the poachers were not engaged in a felony, the use of the flail with violence might reduce the offence to manslaughter." It is perfectly clear that there is no such distinction known to the law as to the manner of arrest between cases of felony and misdemeanor, where the right to arrest at the time and place, and by the person attempting it, exists; and an attack with such a dangerous instrument as a flail, in order to arrest any one for a felony, would clearly reduce the offence to manslaughter; it is plain there was no reason for drawing any such distinction, and therefore the report is probably erroneous. (zz) Reg v. Luck, 3 F. & F. 483. (aa) Reg. v. Turner, 4 F. & F. 339. *747] *Sec. V. Cases where the Killing takes place in consequence of some Lawful Act being criminally or improperly performed, or of some Act performed without Proper Authority. DUE caution should be observed by all persons in the discharge of the business and duties of their respective stations, lest they should proceed by means which are criminal or improper, and exceed the limits of their authority. This will more especially require the attention of officers of justice; and should be kept in mind by those who have to administer correction in foro domestico, and by persons employed in those common occupations from which danger to others may possibly arise. It has been shown in a former part of this Chapter,(a) that ministers of justice, when in the execution of their offices, are specially protected by the law: but it behooves them to take care that they do not misconduct themselves in the discharge of their duty, on pain of forfeiting such protection. Thus, though in cases civil or criminal, an officer may repel force by force, where his authority to arrest or imprison is resisted, and will be justified in so doing if death should be the consequence; (b) yet he ought not to come to extremities upon every slight interruption, nor without a reasonable necessity. (c) And if he should kill where no resistance is made, it will be murder: and it is presumed that the offence would be of the same magnitude if he should kill a party after the resistance is over and the necessity has ceased, provided that sufficient time has elapsed for the blood to have cooled.(d) And again, though where a felon flying from justice is killed by the officer in the pursuit, the homicide is justifiable if the felon could not be otherwise overtaken; (e) yet where a party is accused of a misdemeanor only, and flies from the arrest, the officer must not kill him, though there be a warrant to apprehend him, and though he cannot otherwise be overtaken; and if he do kill him, it will in general be murder. (f) So, in civil suits, if the party against whom the process is issued, fly from the officer endeavoring to arrest him, or if he fly after an arrest actually made, or out of custody in execution for debt, and the officer not being able to overtake him make use of any deadly weapon, and by so doing, or by other means, intentionally kill him in the pursuit, it will amount to murder.(9) And also in the case of impressing seamen, *if the party fly, it is conceived that *748] the killing by the officer in the pursuit to overtake him would be man slaughter at least, and in some cases murder, according to the rules which govern the case of misdemeanors; paying attention, nevertheless, to those usages which have prevailed in the sea-service in this respect, so far as they are authorized by the Courts, which have ordinary jurisdiction over such matters, and are not expressly repugnant to the laws of the land. (h) If an officer make an arrest out of his proper district (except as he may be authorized by some Act of Parliament), or if an officer have no warrant or authority at all, he is no legal officer, nor entitled to the special protection of the law; and if he purposely kill the party for not submitting to such illegal arrest, it will be murder in all cases, at least where an indifferent person acting in the like manner, without any such pretence, would be guilty to that extent.() Thus where a warrant had been directed from the Admiralty to Lord Danby to impress seamen, one Browning, his servant, without any warrant in writing,(k) impressed a person (a) Ante, 732, et seq. (c) 4 Blac. Com. 180. (b) Ante, 735. and (e) 1 Hale 481; 4 Blac. Com. 179; Fost. 271. (g) 1 Hale 481; Fost. 271; 1 East P. C. c. 5, s. 74, p. 306, 307. Laying hold of the prisoner, and pronouncing words of arrest, is an actual arrest; or it may be made without actually laying hold of him, if he submit to the arrest: Horner v. Battyn and another, Bull. N. P. 62, and see 1 East. P. C. c. 5, s. 68, p. 300. But see Arrowsmith v. Le Mesurier, 2 N. R. 211, and Berry v. Adamson, 6 B. & C. 528 (13 E. C. L. R.). (h) 1 East P. C. c. 5, s. 75, p. 308; Borthwick's case, Dougl. 207. (i) 1 East P. C. c. 5, s. 78, p. 312. (k) A verbal delegation of the power to impress seamen was held bad in Borthwick's case, Dougl. 207, though it appeared to be the usage of the navy, and that the petty officers had usually acted without any other authority than such verbal orders. But the usage was considered as directly repugnant to the laws of the land. who was no seaman, and upon his trying to escape he killed him, it was adjudged murder (1) And where the captain of a man of war had a warrant for impressing mariners, upon which a deputation was indorsed in the usual form to the lieutenant; and the mate, with the prisoner Dixon, and some others, but without either the captain or lieutenant, impressed one Anthony How, who never was a mariner but was servant to a tobacconist, and upon How making some resistance, and for that purpose drawing a knife, which he held in his hand, Dixon, with a large walking-stick, about four feet long, and a great knob at the end of it, gave How a violent blow on the side of his head, of which he died in about fourteen days; it was adjudged murder. The capture and detention of How were considered as unlawful on two accounts; first, because neither the captain nor lieutenant were present, and Dixon was no lawful officer for the purpose of pressing, nor an assistant to a lawful officer; secondly, because How was not a proper object to be impressed. It was lawful therefore, under these circumstances, for How to defend himself; and Dixon's killing him, in consequence of an unlawful capture and detention, was murder.(m) So if a court-martial order a man to be flogged where they have no jurisdiction, and the flogging kills the man, the members who concurred in that order are guilty of murder.(n) *It is no excuse for killing a man that he was out at night as a ghost [*749 dressed in white for the purpose of alarming the neighborhood, even though he could not otherwise be taken. The neighborhood of Hammersmith had been alarıned by what was supposed to be a ghost; the prisoner went out with a loaded gun to take the ghost; and upon meeting with a person dressed in white, immediately shot him. McDonald, C. B., Rooke and Lawrence, Js., were clear that this was murder, as the person who appeared as a ghost was only guilty of a misdemeanor; and no one might kill him, though he could not otherwise be taken. The jury, however, brought in a verdict of manslaughter; but the Court said that they could not receive that verdict; and told the jury that if they believed the evidence they must find the prisoner guilty of murder; and if they did not believe the evidence, they should acquit the prisoner. The jury then found the prisoner guilty, and sentence was pronounced; but the prisoner was afterwards reprieved.(0) Gaolers and their officers are under the same special protection as other ministers of justice; but in regard to the great power which they have, and, while it is exercised in moderation, ought to have over their prisoners, the law watches their conduct with a jealous eye. If, therefore, a prisoner under their care die, whether by disease or accident, the coroner, upon notice of such death, which notice the gaoler is obliged to give in due time, ought to resort to the gaol; and there, upon view of the body, make inquisition into the cause of the death; and if the death was owing to cruel and oppressive usage on the part of the gaoler or any officer of his, or, to speak in the language of the law, to duress of imprisonment, it will be deemed wilful murder in the person guilty of such duress.(p) The person guilty of such duress will be the party liable to prosecution, because, though in a civil suit, the principal may in some cases be answerable in damages to the party injured through the fault of the deputy; yet in a capital prosecution, the sole object of which is the punishment of the delinquent, each man must answer for his own acts or defaults.(q) A gaoler, knowing that a prisoner infected with the small-pox lodged in a certain room in the prison, confined another prisoner against his will in the same room. The second prisoner, who had not had the distemper, of which fact the gaoler had notice, caught the distemper, and died of it; this was holden to be murder.(r) (1) O. B., 13th Oct., 1690, Rokeby's MS, cited in Serjt. Foster's MS., and in East P. C. 312. (m) Dixon's case, Kingst. Ass. 1756, cor. Dennison, J., (said to be 1758, in Serjeant Foster's MS.) cited in 1 East P. C. c. 5, s. 80, p. 313. (n) By Heath, J., in Warden v. Bailey, 4 Taunt. 77. (o) Rex v. Smith, O. B., Jan. 1804, MS., Bayley, J.; 4 Blac. Com. 201, n. (p) Fost. 321; 1 Hale 465. (g) Fost. 322; Rex v. Huggins and Barnes, 2 Str. 882. See Rex v. Allen, 7 C. & P. 153 (32 E. C. L. R.), and Rex v. Green, 7 C. & P, 156, post. (r) Fost. 322, referring to the case of Castell v. Bambridge and Corbet (an appeal of murder), 2 Str. 854. |