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After which, the reckoning being paid, all the company, except the prisoner, went out of the room to go home; and he called to the deceased, saying, “Young man, come back; I have something to
say to you;" whereupon the deceased returned into the room, and the door was closed, and the rest of the company excluded ; but they heard a clashing of swords, and the prisoner gave the deceased the mortal wound. It was also found, that at the breaking up of the company the prisoner had his great coat thrown over his shoulders, and that he received three slight wounds in the fight; and that the deceased, being asked, upon his deathbed, whether he received his wound in a manner among sword men called fair, answered, "I think I did.” It was further found that, from the throwing of the bottle, there was no reconciliation between the prisoner and the deceased. Upon these facts all the Judges were of opinion that the prisoner was guilty of murder; he having acted upon malice and deliberation, and not from sudden passion. It should probably be taken, upon the facts found in the verdict and the argument of the Chief Justice, that, after the door had been shut, the parties were upon an equal footing in point of preparation before the fight began in which the mortal wound was given. The main point then on which the judgment turned, and so declared to be, was the evidence of express malice, after the interposition of the company, and the parties had all sat down again for an hour. Under those circumstances the court were of opinion that the prisoner had had reasonable time for cooling: after which, upon an offer of reconciliation from the deceased, he had made use of that bitter and deliberate expression, that he would have his blood. And again, the prisoner remaining in the room after the rest of the company retired, and calling back the deceased by the contemptuous appellation of young man, on pretence of having something to say to him, altogether shewed such strong proof of deliberation and coolness as precluded the presumption of passion having continued down to the time of the mortal stroke. Though even that would not have availed the prisoner under these circumstances: for it must have been implied, according to Mawgridge's case, that he acted upon malice; having in the first instance, before any provocation received, and without warning or giving time for preparation on the part of Mr. Gower, made a deadly assault upon him. (w)
If, after an interchange of blows on equal terms, one of the parties, on a sudden, and without any such intention at the commencement of the affray, snatches up a deadly weapon and kills the other party with it, such killing will be only manslaughter. But if a party, under colour of fighting upon equal terms, uses from the beginning of the contest a deadly weapon without the knowledge of the other party, and kills the other party with such weapon; or if, at the beginning of the contest, he prepares a deadly weapon, so as to have the power of using it in some part of the contest, and uses it accordingly in the course of the combat, and kills the other party with the weapon; the killing in both these cases will be murder. The prisoner and Levy quarrelled and went out to fight.
Use of a deadly weapon with previous intention.
(w) Rex v. Oneby, 2 Str. 766.2 Lord Raym. 1489.
After two rounds, which occupied little more than two minutes, Levy was found to be stabbed in a great many places; and of one of those stabs he almost instantly died. It appeared that nobody could have stabbed him but the prisoner; who had a clasped knife before the affray Bayley, J. told the jury, that if the prisoner used the knife privately from the beginning; or if before they began to fight he placed the knife so that he might use it during the affray, and used it accordingly, it was murder : but that if he took to the knife after the fight began, and without having placed it to be ready during the affray, it was only manslaughter. The jury found the prisoner guilty of murder. (a)
Though, where there has been an old quarrel between A. and B., Pretended or and a reconciliation between them, and afterwards, upon a new counterfeit reand sudden falling out, A. kills B., this is not murder; yet if upon the circumstances it appears that the reconciliation was but pretended or counterfeit, and that the hurt done was upon the score of the old malice, it is murder. (*)
Cases of Resistance to Officers of Justice, to Persons acting in
their aid, and to private Persons lawfully interfering to appre
hend Fetons, or prevent a Breach of the Peace. MINISTERS of justice, as bailiffs, constables, watehmen, &c. (y) Resisting and while in the execution of their offices, are under the peculiar pro- killing officers. tection of the law, a protection founded in wisdom and equity, and in every principle of political justice; for without it the public tranquillity cannot possibly be maintained, or private property secured; nor in the ordinary course of things will offenders of any kind be amenable to justice. For these reasons the killing of officers so employed has been deemed murder of malice prepense, as being an outrage wilfully committed in defiance of the justice of the kingdom. H, therefore, upon an affray, the constable, and others in his assistance, come to suppress the affray and preserve the peace, and in executing their office the constable or any of his assistants is killed, it is murder in law, although the murderer knew not the party that was killed, and although the affray was sudden, because the constable and his assistants came by authority of law to keep the peace, and prevent the danger which might ensne by the breach of it; and, therefore, the law will adjudge it murder, and that the murderer had malice prepense, because he set himself against the justice of the realm : so if the sheriff, or any of his bailiffs, or other officers, is killed in executing the process of the law, or in doing their duty, it is murder; the same is the law
(a) Rex v. Anderson, O. B. Decem- MS. Bayley, J. ber, 1816. Richards, B. and the Re- (3) i Hale 451. corder, thought the direction right. (y) i Hale 456, 460. Co. 40.
as to a watchman who is killed in the execution of his office. (g)
wise will amount to murder. (2)
tice is not, as we have seen, confined to their own persons. Every
But with respect to private persons using their endeavours to
(g) Cases of Appeals and Indictments, 4 Co. 40. As to the authority for acting, and the exercise of that authority in a proper inander, see post, Chap. iii. s. 4.
(2) Fost. 308, 309.
be indemnified; and, on the other hand, if A., or any person joining in the hue and cry, is killed by B., or any of his accomplices joining in that outrage, such killing will be murder : for A. and those joining with him were in this instance in the discharge of a duty required from them by the law; and, in case of their wilful neglect of it, subject to punishment. (e)
Upon these principles it may be laid down as a general rule, that General rule. where persons having authority to arrest or imprison, using the proper means for that purpose, are resisted in so doing, and killed, it will be murder in all who take a part in such resistance; for it is homicide committed in despite of the justice of the kingdom. This rule is laid down upon the supposition that resistance be made; and, upon that supposition, it is conceived that it will hold in all cases, whether civil or criminal; for under circumstances of resistance, in either case, the persons having authority to arrest or imprison may repel force by force, and will be justified if death should ensue in the struggle; while, on the other hand, the persons resisting will be guilty of murder. And it has been decided, that if in any quarrel, sudden or premeditated, a justice of peace, constable, or watchman, or even a private person, be slain in endeavouring to keep the peace and suppress the affray, he who kills him will be guilty of murder. (8) But in such case the person slain must have given notice of the purpose for which he came, by commanding the parties in the King's name to keep the peace, or by otherwise shewing that it was not his intention to take part in the quarrel, but to appease it; () unless, indeed, he were an officer within his proper district, and known, or generally acknowledged, to bear the office he had assumed. (i) As if A., B., and C., be in a tumult together, and D. the constable come to appease the affray, and A. knowing him to be the constable kill him, and B. and C. not knowing him to be the constable, come in, and finding A. and D. struggling, assist and abet A. in killing the constable, this is murder in A., but manslaughter in B. and C.(k) Where a constable interferes in an affray to keep the peace, and is killed, such of the persons concerned in killing him as knew him to be a constable are guilty of murder; and such as did not know it of manslaughter only. (a)
But it must be well remembered, that this protection of the law Questions as is extended only to persons who have authority to arrest or im- to authority, prison, and who use such authority in a proper manner; and that iugs, &c. questions of much nicety and difficulty will often arise upon the points of authority, legality of process, notice, and regularity of proceeding. The consideration of these points will be attempted in a subsequent part of the Work; for as the consequences of defects in any of these particulars will generally be to extenuate the crime of killing, and reduce it to manslaughter, the discussion of them will perhaps be better introduced in the Chapter relating to that species of homicide. (1)
(e) Fost. 318.
(i) i Hawk. P. C. c. 31, s. 49, 50. () Fost. 270, 271. 1 Hale 494. 3 (k) 1 Hale 438. Inst. 56. 2 Hale 117, 118.
(a) i Hale 446. (g) i Hawk. P. C. c. 31. s. 48, 54. (1) Post, Chap. iii. s. 4.
(h) Fost. 272. VOL. I.
As to persons With respect to the persons who shall be considered as taking
a part in the resistance, it may be observed, that if the party who
If a man be arrested, and he and his company endeavour a
precedent malice, as in the case of killing an officer in the due execution of his office.(0) But it should be observed, that, in another report of the same case, it is said to have been resolved, that if a person, not knowing the cause of the struggle, had interposed between the bailiff and the party arrested, with intent to prevent mischief, it would not have been murder in such person, though the bailiff's assistant were killed by one of the rescuers : (p) and it should seem that, in a case of this kind, the material enquiry would be, whether the stranger interfered with the intention of preserving the peace and preventing mischief; for if he interposed for the express purpose of aiding one party against the other, he must abide the consequences at his peril. (9)
A. beat B., a constable who was in the execution of his office, and they were parted; and then C., a friend of A., rushed suddenly in, took up the quarrel, fell upon the constable, and killed him in the struggle ; but A. was not engaged in this after he was parted from B. And it was holdlen by two Judges, that this was murder only in C.; and A. was acquitted, because it was a sudden quarrel, and it did not appear that A. and C. came upon any design to abuse the constable. (r) But if a man begin a riot, and the same
(m) Sir Charles Stanley's case, Kel. Andrews, 1 sid. 160. MS Burnet ac87.
cord as cited 1 East. P. C. c. 5. s. 63. (n) Jackson's case, 1 Hale 464, 465. p. 296. (0) Sir Charles Stanley's case, Kel. 87. (9) i East. P. C. c. 5. s. 83. p. 318. (p) Rex v. Sir Charles Stanslie and (r) By Holt, C. J., and Rooksby, at