(d) Secret Felonies.-Since a homicide. in prevention of a felony is only justifiable when necessary to prevent the felony, the doctrine does not apply to the prevention of felonies not attempted by violence or surprise. It does not apply to secret felonies, like larceny.429

(e) Knowledge. And under no circumstances is a homicide justifiable because the deceased was committing a felony, if the accused had no knowledge of this fact at the time of the killing.430

429 Reg. v. Murphy, 1 Craw. & D. 20, Beale's Cas. 318.

In Storey v. State, 71 Ala. 330, the evidence tended to show that the defendant killed the deceased in order to recapture a horse which the deceased had stolen from him. The larceny being a felony, the defendant requested the court to charge the jury that if the horse was feloni. ously taken and carried away by the deceased, and there was an apparent necessity to kill him in order to recover the property, and prevent the consummation of the felony, the homicide was justifiable. The request was refused, and the supreme court held that it was proper to refuse it, as a homicide to prevent a felony is justifiable only where the felony is attempted by force or surprise, as in the case of murder, robbery, rape, etc., and that the rule does not apply

269. Homicide to Prevent Misdemeanor or Tres

pass.

A homicide to prevent another from committing a mere misdemeanor, as, for example, a simple assault and battery, which does not endanger life or threaten great bodily harm, or an unlawful arrest, etc., is not justifiable.431 Nor is a man justified in killing another to prevent a bare trespass upon land or goods. 432 As we have seen, however, a man, in such cases, may use reasonable force short of taking life or inflicting great bodily harm, without being guilty of assault and battery; 433 and, as we shall presently see, he will be excused if, in the conflict which ensues, he necessarily kills the other to save himself from death or great bodily harm.434 270. Homicide in Suppressing a Riot.

There is one exception to the rule that

to secret felonies, like larceny. See, also, State v. Moore, 31 Conn. 479, 83 Am. Dec. 159.

430 See Reg. v. Dadson, 4 Cox, C. C. 358, Beale's Cas. 317.

431 Ante, § 260 a-f; State v. Moore, 31 Conn. 479, 83 Am. Dec. 159.

432 Ante, § 260 h; State v. Moore, supra.

433 Ante, §§ 212-214.

434 Post, § 277.

life cannot be taken to prevent a mere misdemeanor. Though a riot is only a misdemeanor at common law, it is generally so serious an offense that life may be taken, if necessary, in order to suppress it. "The intentional infliction of death or bodily harm," therefore, "is not a crime when it is done either by justices of the peace, peace of ficers, 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." 435

271. Homicide in Effecting Arrest or Preventing Escape.

(a) In Cases of Felony.-Either an officer or a private person, having authority to arrest another for a felony, may kill him if he cannot otherwise be taken, and he may do so when the party is fleeing, as well as when he is engaged in violent resistance.436

435 Steph. Dig. Crim. Law, art. 198; Pond v. People, 8 Mich. 150.

436 Fost. C. L. 267, Beale's Cas. 311; Steph. Dig. Crim. Law, art. 199. And see Reneau State, 2 Lea (Tenn.) 720, 31 Am. Rep. 626.

V.

437

A fortiori, when a felon has once been arrested, the officer or other person having him in custody may kill him, if necessary, in order to prevent his escape." A person can not justify the killing of another on the ground that he had committed a felony, unless he knew of the fact at the time of the killing. 438

(b) In Cases of Misdemeanor.-Some of the courts have applied the same rule to cases of misdemeanor, holding that life may be taken, if necessary, in effecting an arrest for a misdemeanor, or in order to prevent the escape of a person who is in custody for a

437 U. S. v. Clark, 31 Fed. 710, Beale's Cas. 319; Reneau v. State, supra.

"The intentional infliction of death or bodily harm is not a crime when it is done by any person in order to arrest a traitor, felon, or pirate, or retake 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; provided the object for which death or harm is inflicted cannot be otherwise accomplished."

Steph. Dig. Crim. Law, art. 199.

438 Reg. v. Dadson, 4 Cox, C. C. 358, Beale's Cas. 317.

misdemeanor. 439 The better opinion, however, is to the contrary,440 "the theory of the law being that it is better that a misdemeanant escape than that human life be taken."441 If a lawful attempt to arrest a person for a misdemeanor is resisted, the officer may lawfully employ any necessary force short of taking life in order to effect the arrest, and if, in the course of the conflict, he is threatened with death or great bodily harm, and he necessarily kills the person whom he is attempting to arrest to save himself, the homicide is justifiable.442

(2) EXCUSABLE HOMICIDE IN GENERAL.

It is

272. Definition.-Excusable homicide is homicide committed under circumstances that constitute, not a justification, but merely an excuse. of two sorts: 1. Homicide per infortunium, or by misadven

ture, where a person unfortunately kills another in doing a lawful act, without any intent to hurt, and without criminal negligence.

439 See State v. Garrett, 1 Winst. (N. C.) 144 84 Am. Dec. 359.

440 Reneau v. State, 2 Lea (Tenn.) 720, 31 Am. Rep. 626; U. S. v. Clark, 31 Fed. 710, Beale's Cas. 319.

441 Brown, J., in U. S. v. Clark, supra.

442 Steph. Dig. Crim. Law, art. 200.