several times on the head with the cock of the pistol, and cut him; he escaped, but was soon retaken, and he then expressed great disappointment at not having killed Freeman it was objected for the prisoner, that the charge on which he was taken into custody, namely, having a forged note in his possession, without more, imported no legal offence, and did not justify the constable in apprehending him, and consequently if death had ensued it would not have been murder: but the judges held, that although the charge was defective, the defect was not material; that it was not necessary that a charge of that description should contain the same accurate description of the offence as an indictment, and that the charge in the present case must be considered as imputing to the prisoner a guilty possession; and that if death had ensued it would have been murder. R. v. Ford, R. & Ry. 329. So, where a person charged a watchman to apprehend the prisoners, whom he accused of attempting to rob him, and the watchman accordingly pursued and overtook the prisoners, and required them to come back with him, without, however, stating what charge he had against them; one of the prisoners, having drawn some sharp instrument, sprung at the watchman, and caught hold of one of the skirts of his coat; the watchman (whom the prisoners knew to be so) then turned upon the prisoners, drew his staff, and the prisoners came at him; the watchiman struck one of them, who immediately stabbed him, and the other immediately attempted to stab him with a knife; where the alleged attempt to rob was made, was within the place for which the watchman was appointed, but where he was stabbed was without it: nine of the judges held that the watchman could legally arrest the prisoners, without saying that he had a charge of robbery against them, although the prisoners had in fact done nothing to warrant the arrest, and that if death had ensued it would have been murder; three of them were of a contrary opinion. R. v. Woolmer et al., Ry. & M. 334.

But if a constable or other person apprehend or attempt to apprehend an offender, where by law he is not authorized to do so, and be killed in doing it, the killing will be manslaughter only, not murder. Where a workman being refused his wages, because he had not finished his work, was very abusive to his master, the master gave charge of him to a constable, and the constable being about to take him, telling him that his master had given charge of him, and that he must go with him (the constable), the man, without saying a word, stabbed the constable with a knife, and ran away: being indicted for stabbing with intent to murder, the judges held that if death had ensued it would have been manslaughter only, as the constable had no right to arrest the prisoner; and therefore the prisoner ought to be acquitted. R. v. Thompson, Ry. & M. 80; and

see R. v. Curran, ante, p. 238. Where a constable without warrant, attempted to apprehend a man in the evening, for an act of vagrancy committed by him early in the afternoon, and the man resisted, and in the struggle stabbed the constable with a knife which he took out of his pocket: being indicted for stabbing with intent, &c., the judges held that the constable had no right to make the arrest; the vagrant act gave him authority to arrest only when the party is found committing an act of vagrancy, and to take him forthwith before a magistrate, so that he must be taken in the act or on fresh pursuit, and here many hours intervened between the act done and the attempt to arrest for it; it would therefore be manslaughter only if the constable had been killed, and consequently the case was not within the statute of stabbing. R. v. Gardener, Ry. & M. 390.

As to breaking open doors, &c., to make an arrest:-in civil cases, an officer cannot break open an outer door or a window, to arrest the occupier or any of his family, who have their residence there; but after entering at the outer door, the same being opened to him, he may break an inner door if that be necessary. Fost. 319, 320. This rule, however, as to not breaking an outer door, extends only to the case of an original arrest; for if the party be arrested out of the house, and escape, and take refuge even in his own house, the officer on fresh pursuit may break open doors in order to retake him, first giving due notice of his business, demanding admission, and being refused. Fost. 320. Nor does the rule extend to the house of a stranger at all. Fost. 320. But the officer, in breaking or entering the house of a stranger, to make an arrest, does so at his peril; if the party he seeks to arrest be there, he is justified; if he be not, he is not justified. 2 Hale, 117; see Johnson v. Lee, 6 Taunt. 246. Lloyd v. Sandilands, 2 Moore, 207.

But in criminal cases, where a felony has been committed or a dangerous wound given, or even where an officer of justice comes armed with a process founded on a breach of the peace, the party's own house is no sanctuary for him; doors in any of these cases may be forced, the notification, demand, and refusal above mentioned having been previously made. Fost. 320. See other cases, also, ante, pp. 28, 29. But a bare suspicion of the guilt of the party, will not warrant the officer in proceeding to this extremity, unless he have a warrant against him. Fost. 321.

If an officer in breaking open doors to make an arrest, be opposed, and in the struggle be killed,—if he were justified in doing so, the killing will be murder; Baker's case, 1 East, P. C. 323; if not, manslaughter only. 1 Hawk. c. 31, s. 65. 1 Hale, 458. Cook's case, Cro. Car. 537.

In killing gamekeepers.] By stat. 9 G. 4, c. 69, s. 1, “if any person shall by night, (that is from the expiration of the first hour after sunset, until the beginning of the last hour before sunrise, s. 12), unlawfully take or destroy any game or rabbits, in any land whether open or inclosed;-or shall by night unlawfully enter or be in any land whether open or inclosed, with any gun, net, engine, or other instrument, for the purpose of taking or destroying game:"-he is subject on summary conviction to certain imprisonment.

And by sect. 9, "if any persons to the number of three or more together, shall by night unlawfully enter or be in any land, whether open or inclosed, for the purpose of taking or destroying game or rabbits, any of such persons being armed with any gun, cross-bow, fire-arms, bludgeon, or any other offensive weapon," he is guilty of a misdemeanor, and subject on indictment to transportation or certain imprisonment.

And by sect. 2, where any person shall be found upon any land, committing any such offence as hereinbefore mentioned (see sect. 1, supra), it shall be lawful for the owner or occupier of such land,- —or for any person having a right or reputed right of free warren or free chase thereon, or for the lord of the manor or reputed manor wherein such land may be situate, -and also for any gamekeeper or servant of any of the persons herein mentioned, or any persons assisting such gamekeeper or servant,—to seize and apprehend such offender upon such land, or, in case of pursuit being made, in any other place to which he may have escaped therefrom, and to deliver him, as soon as may be, into the custody of a peace officer, in order to his being conveyed before two justices of the peace. This section, it will be perceived, had reference to the offences described in the first section: but as in committing offences within the ninth section, each offender commits an offence within the first section, it has been holden that this second section gives authority to apprehend persons committing offences, as well against the ninth section as against the first. R. v. Wm. Ball, Ry. & M. 330.

And if a gamekeeper or his assistant or other person here authorized, be killed in attempting to apprehend a poacher, under the circumstances here mentioned,-if the arrest would have been lawful, the offence is murder; if unlawful, the offence is manslaughter only. Where upon an indictment for maliciously shooting with intent to murder, it appeared that some gamekeepers attempted to apprehend the prisoners, who were poaching, when the prisoners pointed their guns at the keepers, and one of them fired, and wounded one of the keepers: it was objected that as the gamekeepers were only permitted, not enjoined, by statute, to apprehend persons poaching, their case was analagous to that of a private person

arresting on a suspicion of felony, in which case killing him would be manslaughter only, not murder: but Vaughan, B., held that the statute which gave gamekeepers authority to apprehend persons poaching, put them on a footing with constables for that purpose, and gave them the same protection; and that killing them in the lawful execution of their duty, would be murder, not merely manslaughter. R. v. Edmeads et al., 3 Car. & P. 390. So, where a gentleman's gamekeeper and assistants, finding twenty-two poachers in a coppice of their master, warned them off, and followed them to the turnpike road, where the poachers stopped and insisted that the keeper, &c., should go no further; the keeper said that he would shoot the first man who should break the peace; upon which the poachers rushed upon the keeper and his assistants, one of them struck the keeper a blow with a pole, and the keeper knocked him down; another made a blow at him with a pole, and the keeper knocked him down; another struck the keeper on the head, and he knocked him down; a gun was then fired by one of the poachers, which wounded one of the assistants: -one of the poachers being taken and indicted for this offence, it was objected for him, that as the keeper had knocked down three of the poachers, before the gun was fired, the prisoner could not be convicted, for the offence would have been manslaughter only, if death had ensued: but the judges held that notwithstanding the blows given by the keeper, it would have been murder if the keeper's assistant had died. R. v. Wm. Ball, Ry. & M. 330. S. P. R. v. James Ball et al., Ry. &M. 333. Where three prisoners were indicted for murder, and it appeared that some gamekeepers found two of them poaching, who after some little struggle stood still, but called to the third prisoner, who then came up, and with a stick shod with iron, beat the keepers on their heads, killed one of them, and rescued the two prisoners: Vaughan, B., held this to be murder in all. R. v. Whithorne et al., 3 Car. § P. 394.

And in these cases, it is not necessary that the keepers, &c., should previously declare who they are, or give the poachers to understand why they attempt to apprehend them. Where the assistants of a gamekeeper found poachers upon the lands of their master in the night time, and pursued them; upon which the poachers turned round, and one of them fired at one of the assistants and shot him in the thigh: it was objected that the assistants gave no notice to the poachers, as by calling on them to surrender, or the like, and therefore if death had ensued it would have been manslaughter only; but the judges held that the circumstances of the case constituted sufficient notice, the parties being in the very act of committing the offence for which they were liable to be apprehended. R. v. Payne et al., Ry. & M. 378. S. P. R. v. Davis, 7 Car. § P. 785.

To make the apprehension or attempt to apprehend poachers lawful, it must be made by some person having authority to apprehend, under stat. 9 G. 4, c. 69, s. 2, above mentioned. And a "watcher" has been holden to be within the meaning of that section. R. v. Price, 7 Car. & P. 178. But where the gamekeepers of a Mr. Clive found several poachers in a wood, and pursued them, when one of the poachers turned round and shot one of the keepers; and being indicted for it, it appeared in evidence that the wood did not belong to Mr. Clive, but he had only the permission of the owner to preserve game there: Patteson, J., held that the keepers had no legal authority under stat. 9 G. 4, c. 69, s. 2, to apprehend those poachers, Mr. Clive not being the owner or occupier of the wood, or lord of the manor, &c., and that therefore the offence was not murder, but manslaughter only. R. v. Addis, 6 Car. &P. 388. S. P. R. v. Davis, 7 Car. & P. 785.

And the poachers must be found upon land, open or inclosed, in the act of committing some offence within the 1st or 9th sections of stat. 9 G. 4, c. 69, ante, p. 245. But where a gamekeeper and his assistants, after hearing shots fired in a wood belonging to their master, saw the prisoners come in the direction from it, one of whom had a gun; the keeper called to his assistant to take care of the gun, and the assistant thereupon went to the man who had the gun, and gently took hold of it near the lock, and took off the percussion cap; the keeper then pretending to call out to some other person to come forward, the three other men fell upon the keeper and his assistant, knocked them down, and they became insensible; when the keeper came to himself, all the prisoners were passing him, and one of them said, "Dam 'em we've done 'em both," and having passed on a few yards, one of them returned, and with some instrumeut he had in his hand, he gave the keeper a violent blow on the leg, which cut through the gaiter, and wounded him it was objected at the trial, that as only one had given the blow on the leg, he alone was guilty; but the judge told the jury that if they were of opinion that the prisoners were acting in concert, they were all equally guilty: afterwards, before the judges, it was objected, that as the keeper did not find the prisoners in the wood, he had no right to stop them, and the assistant's doing so by taking hold of the gun, was sufficient provocation to reduce the case from murder to manslaughter, if death had ensued; but the judges held the conviction right. R. v. Warner, Albone, Butler, & Chasham, Ry. & M. 380. 5 Car. & P. 525. See as to killing upon slight provocation, ante, p. 226.

And the poachers must be found on the land, committing the offence in the night time, that is to say, from the expiration of the first hour after sunset, until the beginning of the last hour before sunrise. Ante, p. 245. And where a gamekeeper