killed, the Judges were of opinion that the other could not be guilty, either as principal or accessory; and he was acquitted. (u) In a case where a party of smugglers were met and opposed by an officer of the crown, and during the scuffle which ensued a gun was discharged by a smuggler which killed one of his own gang, the question was, whether the whole gang were guilty 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. (w) 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.(x) 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 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 alĺ 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. (y) 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. (2) And it seems that this opinion proceeded upon the ground that there was no evidence to shew 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. (a) (u) 1 Hawk. P. C. c. 31. s. 52. (w) Plummer's case, Kel. 109. (x) Fost. 352. and see Mansell and Herbert's case, 1 Hale 440, 441, cited from Dy. 128, b. (y) They cited Stamf. 17, 40. Fitz. Cor. 350. Cromp. 244. (z) Rex v. Hodgson and others, 1 Leach. 6. See Plummer's case, ante, note (w). 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. (a) 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. 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 possible arise. It has been shewn in a former part of this Chapter, (b) that Officers of improperly. ministers of justice, when in the execution of their offices, are justice acting 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 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.() And also in the case of impressing seamen, (b) Ante, 447. et sequ. (c) Ante, 449. (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. g) Fost. 271. 1 Hale 481. (h) 1 Hale 481. Fost. 271. 1 East. P. C. c. 5. s. 74. p. 306, 307. Laying hold of the prisoner, and pronouncing Killing a person who is committing a misdemeanor. 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 late 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, () 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 jurisdiction, and the flogging kills the man, the members who concurred in that order are guilty of murder. (a) 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 sup (i) 1 East. P. C. c. 5. s. 75. p. 308. (k) 1 East. P. C. c. 5. s. 78. p. 312. 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. (a) By Heath J. in Warden v. Bailey, 4 Taunt. 77. posed 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 that 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. (b) Gaolers and their officers are under the same special protection Duress of imas other ministers of justice: but in regard to the great power prisonment by gaolers. 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. (o) 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, each man must answer for his own acts or defaults. (p) A gaoler, knowing that a prisoner infected with the smallpox 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. (g) 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, 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 (b) Rex v. Smith, O. B. Jan. 1804. MS. Bayley J. 4 Bl. Com. 201. n. (0) Fost. 321, 1 Hale 465. P) Fost. 322. Rex v. Huggins and Barnes, 2 Str. 882. (q) Fost. 322. referring to the case of Castell v. Bambridge and Corbet (an appeal of murder), 2 Str. 856. Case of Huggins and Barnes. Duty of officers in the execution of criminals. Correction in till he died. It was fonnd 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 prin– cipal would not amount to a revocation of the authority of the deputy.(r) 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. (s) 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; (t) 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. (u) But others have thought more justly that this prerogative of the crown, founded in mercy and immemorially exercised, is part of the common law; (w) 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.(x) But the rule may apply to an officer varying from the judgment of his own head, and without warrant or the colour of authority. (y) Parents, masters, and other persons having authority in foro foro domestico. domestico, may give reasonable correction to those under their care; and if death ensue without their fault, it will be no more than (x) Fost. 268. 4 Blac. Com. 405. 1 East. P. C. c. 5. s. 96. p. 335. (y) It was, however, the practice, founded in humanity, when women were condemned to be burned for treason, to strangle them at the stake before the fire reached them, though the letter of the judgment was that they should be burnt in the fire till they were dead. Fost. 268. The 30 Geo. 3. c. 48. now directs that they shall be hanged as other offenders. |