Homicide in self-defence, i.e., committed se et sua defendendo in defence of a man's person or property, upon some sudden affray, has been usually classed with homicide per infortunium, under the title of excusable, as distinct from justifiable, because it was formerly considered by the law as in some measure blameable, and the person convicted either of that or of homicide by misadventure forfeited his goods: Fost. 273.

Homicide se defendendo seems to be where one, who has no other possible means of preserving his life from one who combats with him on a sudden quarrel, or of defending his person from one who attempts to beat him (especially if such attempt be made upon him in his own house), kills the person by whom he is reduced to such inevitable necessity. And not only he who on assault retreats to a wall or some such straight, beyond which he can go no farther, before he kills the other is judged by the law to act upon unavoidable necessity; but also he who, being assaulted in such a manner and such a place that he cannot go back without manifestly endangering his life, kills the other without retreating at all: Hawk. c. 11, ss. 13-14; ss. 51, 52, ante.

In the case of justifiable self-defence the injured party may repel force by force in defence of his person, habitation or property against one who manifestly intendeth and endeavoureth by violence or surprise to commit a known felony upon either. In these cases he is not obliged to retreat, but may pursue his adversary till he findeth himself out of danger, and if in a conflict between them he happeneth to kill, such killing is justifiable: Fost. 273.

Before a person can avail himself of the defence that he used a weapon in defence of his life he must satisfy the jury that the defence was necessary, that he did all he could to avoid it, and that it was necessary to protect himself from such bodily harm as would give him a reasonable apprehension that his life was in immediate danger. If he

used the weapon having no other means of resistance and no means of escape, in such cases, if he retreated as far as he could, he would be justified: R. v. Smith, & C. & P. 160; R. v. Bull, 9 C. & P. 22.

Under the excuse of self-defence the principal civil and natural relations are comprehended; therefore master and servant, parent and child, husband and wife, killing an assailant in the necessary defence of each other respectively, are justified, the act of the relation being construed as the act of the party himself: 1 Hale, 484; 8s. 47, 51, 52,

ante.

Chance medley, or as it was sometimes written, chaud medley, has been often indiscriminately applied to any manner of homicide by misadventure; its correct interpretation seems to be a killing happening in a sudden encounter; it will be manslaughter or self-defence according to whether the slayer was actually striving and combating at the time the mortal stroke was given, or had bona fide endeavoured to withdraw from the contest, and afterwards, being closely pressed, killed his antagonist to avoid his own destruction; in the latter case it will be justifiable or excusable homicide, in the former, manslaughter: 1 Russ. 888.

A man is not justified in killing a mere trespasser; but if, in attempting to turn him out of his house, he is assaulted by the trespasser he may kill him, and it will be se defendendo, supposing that he was not able by any other means to avoid the assault or retain his lawful possession, and in such a case a man need not fly as far as he can as in other cases of se defendendo, for he has a right to the protection of his own house: 1 Hale, 485; ss. 51 et seq., ante.

But it would seem that in no case is a man justified in intentionally taking away the life of a mere trespasser, his own life not being in jeopardy; he is only protected from the consequences of such force as is reasonably necessary to turn the wrong-doer out. A kick has been

held an unjustifiable mode of doing so: Wild's Case, 2 Lewin, 214. Throwing a stone has been held a proper mode: Hinchcliffe's Case, 1 Lewin, 161; see R. v. Moir, ante, p. 25 under s. 53.

Homicide committed in prevention of a forcible and atrocious crime, amounting to felony, is justifiable. As if a man come to burn my house, and I shoot out of my house, or issue out of my house and kill him. So, if A. makes an assault upon B. a woman or maid, with intent to ravish her, and she kills him in the attempt, it is justifiable, because he intended to commit a felony. And not only the person upon whom a felony is attempted may repel force by force, but also his servant or any other person present may interpose to prevent the mischief; and if death ensue the party so interposing will be justified; but the attempt to commit a felony should be apparent and not left in doubt, otherwise the homicide will be manslaughter at least; and the rule does not extend to felonies without force, such as picking pockets, nor to misdemeanours of any kind: 2 Burn, 1314; ss. 51, 52, ante.

It should be observed that, as the killing in these cases is only justifiable on the ground of necessity, it cannot be justified unless all other convenient means of preventing the violence are absent or exhausted; thus a person set to watch a yard or garden is not justified in shooting one who comes into it in the night, even if he should see him go into his master's hen roost, for he ought first to see if he could not take measures for his apprehension; but if, from the conduct of the party, he has fair ground for believing his own life in actual and immediate danger, he is justified in shooting him: R. v. Scully, 1 C. & P. 319. Nor is a person justified in firing a pistol on every forcible intrusion into his house at night; he ought, if he have reasonable opportunity, to endeavour to remove him without having recourse to the last extremity: Meade's Case, 1 Lewin, 184.

As to justifiable homicide by officers of justice or other persons in arresting felons: see ante, p. 178. As to homicide by misadventure, 2 Burn, 316.

Petit treason was a breach of the lower allegiance of private and domestic faith, and considered as proceeding from the same principle of treachery in private life as would have led the person harbouring it to have conspired in public against his liege lord and sovereign. At common law the instances of this kind of crime were somewhat numerous and involved in some uncertainty; but by the 25 Edw. III. c. 2, they were reduced to the following cases: 1. Where a servant killed his master. 2. Where a wife killed her husband. 3. Where an ecclesiastical person, secular or regular, killed his superior, to whom he owed faith and obedience.

PART XVII.

HOMICIDE.

DEFINITION.

218. Homicide is the killing of a human being by another, directly or indirectly, by any means whatsoever.

WHEN A CHILD BECOMES A HUMAN BEING.

219. A child becomes a human being within the meaning of this Act when it has completely proceeded, in a living state, from the body of its mother, whether it has breathed or not, whether it has an independent circulation or not, and whether the navel string is severed or not. The killing of such child is homicide when it dies in consequence of injuries received before, during or after birth.

See ss. 239, 240, 271 post; R. v. Poulton, 5 C. & P. 329; R. v. Brain, 6 C. & P. 349 ; R. v. Handley, 13 Cox, 79. If a mortal wound be given to a child whilst in the act of being born, for instance upon the head as soon as the head

appears and before the child has breathed, it may be mur. der if the child is afterwards born alive and dies thereof: R. v. Senior, 1 Moo. 346. But the entire child must actually have been born into the world in a living state, and the fact of its having breathed is not a conclusive proof thereof R. v. Sellis, 7 C. & P. 850; R. v. Crutchley, 7 C. & P. 814. A child is born alive when it exists as a live child, breathing and living by reason of breathing through its own lungs alone, without deriving any of its living or power of living by or through any connection with its mother, but the fact of the child being still connected with the mother by the umbilical cord will not prevent the killing from being murder: R. v. Crutchley, 7 C. & P. 814; R. v. Trilloe, 2 Moo. 260; R. v. West, 2 C. & K. 784. See post, s. 697 as to evidence on a charge of murder of a bastard child by his mother.

CULPABLE HOMICIDE.

220. Homicide may be either culpable or not culpable. Homicide is culpable when it consists in the killing of any person, either by an unlawful act or by an omission, without lawful excuse, to perform or observe any legal duty, or by both combined, or by causing a person, by threats or fear of violence, or by deception, to do an act which causes that person's death, or by wilfully frightening a child or sick person.

2. Culpable homicide is either murder or manslaughter.
3. Homicide which is not culpable is not an offence.

This is the common law.

Sections 209, 210, 211, ante, when death results from the offences provided for thereby are instances of culpable homicide by omission without lawful excuse to perform a legal duty. Ss. 213 & 214 are nothing but additions to the definition of culpable homicide. S. 255, s-s. 2, post, as to any one meeting death by falling through a hole in the ice, unlawfully left unguarded, is also nothing but a corollary of the definition given in the above s. 220. Other illustrations appear ante under the headings of murder and manslaughter. It is proper to note here that the Imperial Commissioners, from whose report all these sections on homicide are taken verbatim, state positively that no altera