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 shewn that either of them separated himself from the rest, and shewed distinctly that he would have no hand in what they were doing, the objection would have much weight in it." (k) 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 illegal purpose of stealing apples, they also entertained the common guilty purpose of resisting to death, or with extreme violence, any persons who might endeavour to apprehend them but if they had only the common purpose of stealing 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." () 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. (m) 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. (n) 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, "Dam'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. (0) (k) Rex v. Edmeads, 3 C. & P. 390. (1) Rex v. Collison, 4 C. & P. 565. See the observations of Littledale, J., in Reg. v. Howell, 9 C. & P. 450. (m) Rex v. Hawkins, 3 C. & P. 392, Park, J. A. J. (n) Rex v. Whithorne, 3 C. & P. 394, MSS. C. S. G. Vaughan, B. See ante, p. 536, notes (u) and (v). (0) Rex v. Warner, R. & M. C. C. R. 380. S. C. 5 C. & P. 525 Where, upon an indictment 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." (p) Officers of justice acting improperly. SECT. 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 shewn in a former part of this Chapter, (b) that ministers of justice, when in the execution of their offices are specially protected by the law: but it behoves 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; (c) yet he ought not to come to extremities upon every slight interruption, nor without a reasonable necessity. (d) 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. (e) 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; (f) 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. (g) So, in civil suits, if the party against whom the process has issued, fly from the officer endeavouring to arrest him, or if he fly after an arrest actually made, or (p) Duffey's case, 1 Lew. 194. See Macklin's case, 2 Lew. 225, per Alderson, B., post. (b) Ante, 532, et seq. (c) Ante, 535. (d) 4 Blac. Com. 180. (e) 1 East, P. C. c. 5, s. 63, p. 297. (f) 1 Hale, 481. 4 Blac. Com. 179. Fost. 271. (9) Fost. 271. 1 Hale, 481. 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. (h) And also in the case of impressing seamen, if the party fly, it is conceived that the killing by the officer in the pursuit to overtake him would be manslaughter 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. (i) If an officer make an arrest out of his proper district, (except as he may be authorized by the Act 5 Geo. 4, c. 18,) 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. (k) Thus where a warrant had been directed from the Admiralty to Lord Danby to impress seamen, and one Browning, his servant, without any warrant in writing, (7) impressed a person who was no seaman, and upon his trying to escape killed him, it was adjudged murder. (m) 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 walkingstick, 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 or 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. (n) So if a court martial order a man to be flogged where they have no juris (h) 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. (i) 1 East, P. C. c. 5, s. 75, p. 308. Borthwick's case, Dougl. 207. (k) 1 East, P. C. c. 5, s. 78, p. 312. VOL. I. 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. (m) O. B. 13th Oct. 1690, Rokeby's MS. cited in Serjt. Foster's MS., and in 1 East, P. C. 312. (n) 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 N Killing a person who is committing a misdemeanor. Duress of im diction, and the flogging kills the man, the members who concurred in that order are guilty of murder. (0) It is no excuse for killing a man that he was out at night as a ghost dressed in white for the purpose of alarming the neighbourhood, even though he could not otherwise be taken. The neighbourhood of Hammersmith had been alarmed 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. M'Donald, 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. (p) Gaolers and their officers are under the same special protection prisonment by as other ministers of justice: but in regard to the great power which gaolers. 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. (q) 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 default of the deputy; yet, in a capital prosecution, the sole object of which is the punishment of the delinquent, cach man must answer for his own acts or defaults. (r) Case of Huggins and 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. (s) Huggins was warden of the Fleet prison, with power to execute the office by deputy, and appointed one Gibbon, who acted as deputy. Gibbon had a servant, Barnes, whose business it was to take care of the prisoners, and particularly of one Arne; and Barnes put Arne into a new-built room, over the common sewer, the walls of which were damp and unwholesome, and kept him without fire, (0) By Heath, J., in Warden v. Bailey, (p) Rex v. Smith, O. B. Jan. 1804. (r) Fost. 322. Rex v. Huggins and Barnes, 2 Str. 882. See Rex v. Allen, 7 C. & P. 153, and Rex v. Green, 7 C. & P. 156, post. (s) Fost. 322, referring to the case of Castell v. Bambridge and Corbet (an appeal of murder), 2 Str. 854. chamber-pot, or other necessary convenience, for forty-four days, when he died. It appeared that Barnes knew the unwholesome situation of the room, and that Huggins knew the condition of the room fifteen days at least before the death of Arne, as he had been once present at the prison, and seen Arne under such duress of imprisonment, and turned away; at which time Barnes shut the door of the room, in which Arne continued till he died. It was found that Arne had sickened and died by duress of imprisonment, and that during the time Gibbon was deputy, Huggins sometimes acted as warden. Upon these facts the Court were clearly of opinion that Barnes was guilty of murder. But they thought that Huggins was not guilty, as it could not be inferred, from merely seeing the deceased once during his confinement, that Huggins knew that his situation was occasioned by the improper treatment, or that he consented to the continuance of it: and they said, that it was material that the species of duress, by which the deceased came to his death, could not be known by a bare looking-in upon him. Huggins could not know the circumstances under which he was placed in the room against his consent, or the length of his confinement, or how long he had been without the decent necessaries of life: and it was likewise material that no application was made to Huggins, which perhaps might have altered the case. And the Court seemed also to think that as Barnes was the servant of Gibbon, and Gibbon had the actual management of the prison, the accidental presence of the principal would not amount to a revocation of the authority of the deputy. (t) With respect to the duty of officers in the execution of criminals, it has been laid down as a rule, that the execution ought not to vary from the judgment; for if it doth, the officer will be guilty of felony at least, if not of murder. (u) And in conformity to this rule it has been holden, that if the judgment be to be hanged, and the officer behead the party, it is murder; (v) and that even the King cannot change the punishment of the law by altering the hanging or burning into beheading, though, when beheading is part of the sentence, the King may remit the rest. (w) But others have thought more justly that this prerogative of the crown, founded in mercy and immemorially exercised, is part of the common law; (x) and that though the King cannot by his prerogative vary the execution so as to aggravate the punishment beyond the intention of the law, yet he may mitigate the pain or infamy of it: and accordingly that an officer, acting upon a warrant from the crown for beheading a person under sentence of death for felony, would not be guilty of any offence. (y) But the rule may apply to an officer varying from the judgment of his own head, and without warrant or the colour of authority. (z) Duty of officers tion of eriminals. in the execu Parents, masters, and other persons having authority in foro Correction in domestico, may give reasonable correction to those under their foro domestico. (t) Rex v. Huggins and Barnes, 2 Str. 882. 2 Lord Raym. 1574. Fost. 322. 1 East, P. C. c. 5, s. 92, p. 331, 332. (u) 1 Hale, 501. 2 Hale, 411. Inst. 52, 211. 4 Blac. Com. 179. (v) Hale, 433, 454, 466, 501. 2 Hale, 411. 3 Inst. 52. 4 Blac. Com. 179. (w) 3 Inst. 52. 2 Hale, 412. (y) Fost. 268. 4 Blac. Com. 405. (2) It was, however, the practice, founded in humanity, when women were condemned to be burned for treason, to |