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* PART V.

OFFENCES AGAINST THE PERSON, THE CONJUGAL AND PARENTAL RIGHTS, AND THE REPUTATION OF INDIVIDUALS.

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EXCEPTIONS TO REST OF PART V.

[THE contents of Part V. are to be taken to be subject to the provisions contained in this chapter.

• [Appendix. Note VII. See also 3 Hist. Cr. Law, ch. xxvi. and xxvii. pp. 1-120.] 1 S. D. Art. 196.

1 ARTICLE 253.

EXECUTION OF LAWFUL SENTENCES.

2 [The intentional infliction of death or bodily harm is not. a crime when it is done in the execution, in the manner prescribed by law by a person whose duty it is to execute it, of a lawful sentence duly passed by a competent court. A court which, but for some formal defect in its authority or in its proceedings, would have had jurisdiction to pass a sentence, is deemed for the purposes of this Article to be a competent court; but a court which has by law no jurisdiction at all over the case in which sentence is passed is not deemed to be a competent court, and a mistaken belief on the part of the judge, or of the officer who executes the sentence, that it is competent, does not justify or excuse his act.

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Illustrations.

(1.) A sits under a commission of gaol delivery. The officer forgets to adjourn the court at the end of the first day's sitting. This determines the commission. On the following day A sits again, and sentences a felon to death, who is duly executed by B. Neither A nor B is guilty of murder or manslaughter, though the proceedings are irregular.

(2.) A, a lieutenant or other having commission of martial authority in time of peace, causes B to be hanged by C by color of martial law. This is murder in both A and C.

1 S. D. Art. 197.

[1 Hale, P. C. 497; Foster, 267; 1 Hawk. P. C. 80; 1 East, P. C. 332-4. These authorities contain (inter alia) discussions as to varying the form of punishment (as by substituting beheading for hanging) little likely to be of practical value. Draft Code, ss. 25, 28.] 3 Per Lord Hale, 1 Hale, P. C. 499.

4 Coke, 3rd Inst. 52; 1 Hale P. C. 499, 500. The whole subject of martial law underwent full discussion in connection with the execution of Mr. Gordon by a court martial in Jamaica in 1865. An elaborate history of the case has been published by Mr. Finlason, and the charge to the grand jury, delivered at the Central Criminal Court by the Lord Chief Justice of England, has been published in a separate form. I know not whether the charge to the grand jury of Middlesex, delivered by Lord (then Mr. Justice) Blackburn has been published or not. Much information on the subject will be found in Forsyth's Cases and opinions on Constitutional Law, pp. 454-563. Mr. Forsyth prints, inter alia, an opinion given by the late Mr. Edward James, Q.C., and myself, in 1866. See pp. 55-563; and see Phillips v. Eyre, L. R. 6 Q. B. 11.]

1 ARTICLE 254.

SUPPRESSION OF RIOTS.

[The intentional infliction of death or bodily harm is not a crime when it is done either by justices of the peace, peace officers, or private persons, whether such persons are, and whether they act as, soldiers under military discipline or not for the purpose of suppressing a general and dangerous riot which cannot otherwise be suppressed.

3 ARTICLE 255.

PREVENTION OF THE COMMISSION OF CRIMES AND ARREST

OF CRIMINALS.

The intentional infliction of death or bodily harm is not a crime when it is done by any person

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in order to prevent the commission of treason, murder, burglary, rape, robbery, arson, piracy or any other felony in which the traitor, felon, or pirate so acts as to give the person who kills or wounds him reasonable ground to believe that he intends to accomplish his purpose by open force;

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or in order to arrest a traitor, felon, or pirate, or retake

1 S. D. Art. 198.

2 [See the charge of Tindal, C. J.,to the grand jury of Bristol in 1832, printed in a note to R. v. Pinney, 5 C. & P. 261, and quoted and approved in Phillips v. Eyre, L. R. 6 Q. B. 15 (Court of Exchequer Chamber). The proper course in such cases is for the civil magistrate to direct and control what is done, but this is not absolutely necessary. The Riot Act (R. S. C. c. 147, ss. 1-3), 1 Geo. 1, st. 2, c. 5, (see Article 85) authorizes in express terms the dispersion of rioters who continue riotously assembled together for more than an hour after the proclamation made, and indemnifies the persons concerned if any of the rioters should be killed; but this Act appears to be narrower than the common law as laid down by Tindal, C.J. See Draft Code, ss. 49-50.]

3 S. D. Art. 199.

4 [Coke, 3rd Inst. 55; 1 Hale, P. C. 486-7; Foster, 273 (more fully and satisfactorily); 1 Hawk. P. C. 82 (rather confusedly); 1 East, P. C. 271-4 (best and most fully stated); 1 Russ. Cr. 5th ed. 845-52 (taken substantially from East). Piracy is not mentioned by the authorities, but see 8 Geo. 1, c. 21, s. 6. (Article 141.) Draft Code, s. 54.

5 Coke, 3rd Inst. 56; 1 Hale, P. C. 489; 1 Hawk. P. C. 81; Foster, 270-1; 1 East P. C. 298-302. Draft Code, ss. 52-46.]

[or keep in lawful custody a traitor, felon, or pirate who has escaped, or is about to escape, from such custody, although such traitor, felon, or pirate offers no violence to any person;

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or, when it is done by a constable, or other officer of justice, in order to execute a warrant of arrest for treason or felony, which cannot otherwise be executed, although the person named in the warrant offers no violence to any person;

provided, in each of the said cases, that the object for which death or harm is inflicted cannot be otherwise accomplished.

2 ARTICLE 256.

3 PRIVATE DEFENCE.

The intentional infliction of death or bodily harm is not a crime when it is inflicted by any person in order to defend himself or any other person from unlawful violence, provided that the person inflicting it observes the following rules as to avoiding its infliction and inflicts no greater injury in any case than he in good faith, and on reasonable grounds, believes to be necessary when he inflicts it :

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(a.) If a person is assaulted in such a manner as to put him in immediate and obvious danger of instant death or grievous bodily harm, he may defend himself on the spot, and may kill or wound the person by whom he is assaulted;

1 [Coke, 3rd Inst. 55; 1 Hale, P. C. 490; 1 Hawk. P. C. 81; 1 East P. C. 298-302. It must be observed that this Article is confined to the intentional infliction of death or bodily injury. If the death or injury is not an intended or probable consequence of the act the case is provided for under Articles 266, 278.]

2 S. D. Art. 200.

[See Draft Code, ss. 55-65.

+ Coke, 3rd. Inst. 55; 1 Hale, P. C. 482; 1 Hawk. P. C. 82; Foster, 273-5; 1 Russ. Cr. 849. This case is so nearly co-extensive with the first case mentioned in the last Article that East does not notice them separately. Cases, however, may be imagined in which a sudden and violent assault would be no crime, and yet might be resisted by killing the assailant: see Illustration (1).]

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[(b.) If a person is unlawfully assaulted,

(i.) in his own house;

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(ii) in the execution of a duty imposed upon him by

law;

(iii.) 2 by way of resistance to the exercise of force which he has by law a right to employ against

the person of another;

he may defend himself on the spot, and may use a degree of force for that purpose proportioned to the violence of the assault, and sufficient (in case iii.) to enable him not only to repel the attack made upon him, but to effect his original purpose; but a person using force in the execution of a duty imposed upon him by law, or in order to effect a purpose which he may by law effect in that manner, and not being assaulted, is not entitled to strike or hurt the person against whom he employs such force, merely because he is unable otherwise to execute such duty or fulfil such purpose, except in the cases provided for in Article 255.

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(c.) If a person is unlawfully assaulted by another

1 Staundforde, 14a; Coke, 3rd Inst. 56; 1 Hale, P. C. 476, &c. ; 1 Hawk. P. C. 87; Foster, 275-6; 1 East P. C. 279-80.

2 [In addition to the authorities in the last note, see 1 East, P. C. 287, 307; 1 Hale, P. C. 486.]

3 See the authorities quoted for clauses (a.), (b.) and (c.), and especially 1 Hale, P. C. 481. The qualification at the end of this rule is founded on the doctrine that any one may lawfully prevent or suppress by force a breach of the peace or affray (1 Hawk. P. C. 489; R. v. Osmer, 5 East, 308), from which it would seem to follow that a man who is himself assaulted may arrest his assailant, and on the doctrine that son assault demesne is a good defence to an indictment for assault (1 Hawk. P. C. 110). If this were not the law it would follow that any ruffian who choose to assault a quiet person in the street might impose upon him the legal duty of running away, even if he were the stronger man of the two. The passage of Hale appears to me to be applicable only to cases where deadly weapons are produced by way of bravado or intimidation, a case which no doubt often occurred when people habitually carried arms and used them on very slight provocation. In such a case it might reasonably be regarded as the duty of the person assaulted to retreat rather than draw his own sword, but I cannot think that Hale meant to say that a man who in such a case closed with his assailant and took his sword from him would be acting illegally, or that if in doing so the assailant were thrown down and accidently killed by the fall the person causing his death would be guilty of felony. The minuteness of the law contained in the authorities on which this Article is founded is a curious relic of a time when police was lax and brawls frequent, and when every gentleman wore arms and was supposed to be familiar with the use of them. It might, I think, be simplified in the present day with advantage.]

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