Homicide necessarily committed by an officer or other person acting in his aid in the legal exercise of a particular duty, which the person resists or prevents him executing, is, in general, justifiable. As, if rioters, or forcible enterers or detainers, stand in opposition to the justices' lawful warrant, and any of them be slain, it is no felony. (Hale's Sum. 37). So, if they stand in opposition to the sheriff's posse comitatus. (Vide stats. 13 Hen. IV. c. 7; 2 Hen. 5, c. 8; 1 Hale, 53). And if the sheriff or magistrate, or any one coming in aid of them, be killed, it is murder in all. (Cromp. 22; 1 M. S. Sum. 219).

So, if a person having actually committed a felony will not suffer In arrest of felons. himself to be arrested, but stand on his own defence, or fly, so that he cannot possibly be apprehended alive by those who pursue him, whether private persons or public officers, with or without a warrant from a magistrate, he may be lawfully slain by them. (1 Hawk. c. 28, s. 11). So, if a felony hath actually been committed, and an officer or minister of justice, having lawful warrant so to do, arrest an innocent person, and such person assault the officer or minister of justice, the officer is not bound by law to give back, but to carry him away; and if, in execution of his office, he cannot otherwise avoid it, but in striving kill him, it is no felony. And in that case, the officer or minister of justice shall forfeit nothing; but the party who so assaulted or offered to fly away, and is killed, shall forfeit his goods. (3 Inst. 56).

But if the warrant were illegal and void upon the face of it, (see 1 Hale, 459; 1 East, P. C. 310), or issued with a blank in it, and the blank afterwards filled up, (R. v. Stockley, 1 East, P. C. 310; and see Housin v. Barrow, 6 T. R. 122; R. v. Winwick, 8 Id. 454; R. v. Hood, Moody, C. C. 281), or issued with an insufficient description of the defendant, as, for instance, if it were to take the son of J. S. L., (Ib.), or attempted to be executed against C. instead of B., the killing would be manslaughter.

Also, if a person arrested for felony break away from those who are conducting him to gaol, they may kill him, if they cannot otherwise take him. But in this case, likewise, there must have been a felony actually committed. (Hale's Sum. 36, 37). Also, if a criminal, endeavouring to break the gaol, assault his gaoler, he may be lawfully killed by him in the fray. (1 Hawk. c 28, s. 13).

But in civil cases, and also in cases of breach of the peace or other misdemeanor short of felony, if the officer should pursue a man flying in order to take him, and should kill him in the pursuit; (Fost. 271; 1 Hale, 481; 2 Hale, 117); or if a press-gang kill a seaman or other person flying from them; (R. v. Browning, 1 East. P. C. 312; and see Id. 308; R. v. Borthwick, 1 Doug. 207); the killing in these cases would be murderunless, indeed, the homicide were occasioned by means not likely or intended to kill, such as tripping up his heels, giving him a blow of an ordinary cudgel or other weapon not likely to kill, or the like, in which case the homicide, at most, would be manslaughter only. (See Fost. 271). If an officer or private person attempt to interfere to suppress an affray, and be resisted, and kill the person resisting, this is also justifiable homicide. (1 Hale, 481, 484; Fost. 274).

In arrest of prisoners escaping.

In arrest of per

sons guilty of

misdemeanors, &c.

In civil cases, although the sheriff cannot kill a man who flies from On civil process. the execution of a civil process, yet, if he resist the arrest, the sheriff or

his officer need not give back, but may kill the assailant. (Hale's Sum.

37). So if, in the arrest and striving together, the officer kill him, it

is no felony. (Hale's Sum. 37).

Homicide committed in prevention of a forcible and atrocious crime, In prevention of amounting to felony, is justifiable. As, if a man come to burn my house, crime, &c. and I shoot out of my house, or issue out of my house, and kill him. (Hale's Sum. 39). 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 se de

1. Justifiable fendendo; because he intended to commit a felony. (1 Hale, 485; Hale': homicide.

Necessity must exist.

Trial and discharge.

Homicide se defendendo.

What.

Cases of se defendendo.

Sum. 39).

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 ser terposing will be justified. (1 Hale, 481, 484; Fost. 274; Handoci 1. Baker, 2 B. & P. 265).

But the intent to commit a felony should be apparent and not be left in doubt, otherwise the homicide will be manslaughter at least; (1 Hale, 484); and the rule does not extend to felonies without force, such a picking pockets, (1 Hale, 488), nor to misdemeanors of any kind. (1 Haik, 485-6; 1 Hawk. P. C. c. 28, s. 23).

It should be observed, too, 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 er hausted; 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 intrusi into his house at night; he ought, if he have reasonable opportunity, endeavour to remove him without having recourse to the last extremity, (Meade's Case, 1 Lew. 184).

In all cases of justifiable homicide, the party upon arraignment, having pleaded not guilty, the special matter must be found; whereupon the party shall be dismissed without any forfeiture or pardon p chased; (Hale's Sum. 38); and see the 9 Geo. IV. c. 31, s. 10, infra, c firming this law.

Homicide in self-defence, i. e. homicide committed se et sua defe dendo, in defence of a man's person or property, upon some sudden aftry, has been usually classed with homicide per infortunium, under the tite 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. But now, by the stat. 9 Geo. IV. c. 31, s. 10, "No punishment er forfeiture shall be incurred by any person who shall kill another by misform, or in his own defence, or in any other manner without felony." And even before this act the practice was to direct an acquittal. There ar therefore, no longer any reason for distinguishing this from jusqjabė homicide.

Homicide in a man's own defence seems to be, where one, who hath no other possible means of preserving his life from one who combats with him on a sudden quarrel, kills the person by whom he is reduced to such an inevitable necessity. (1 Hawk. c. 29, s. 13).

And not only he, who upon an assault retreats to a wall, or some such strait, beyond which he can go no further before he kills the other, judged by the law to act upon unavoidable necessity, but also he, wh being assaulted in such a manner and in such a place that he cannot go back without manifestly endangering his life, kills the other without re treating at all. (1 Hawk. c. 29, s. 14).

And notwithstanding a person, who retreats from an assault to the wall, give the other wounds in his retreat, yet, if he give him no mortal one till he get thither, and then kill him, he is guilty of homicide se de fendendo only. (1 Hawk. c. 29, s. 14). But if the mortal wound were first given, then it is manslaughter. (Hale's Sum. 42).

And an officer who kills one that resists him in the execution of his office, and even a private person that kills one who feloniously assas him in the highway, may justify the fact, without ever going back a all. (1 Hawk. c. 29, s. 16).

But if a person, upon malice prepense, strike another, and then fly to 2. By misadthe wall, and there in his own defence kill the other, this is murder. (Hale's Sum. 42).

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 case, if he retreated as far as he could, he would be justified. (1 Russ. on Cr. 661; Reg. v. Smith, 8 C. & P. 160; Reg. 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 Russ. on Cr.662; 1 Hale, 484 ; 4 Bl. C. 186).

venture.

Chance medley, or as it was sometimes written, chand medley, has been Chance medley. often indiscriminately applied to any manner of homicide by misadventure; its correct signification seems to be, a killing happening in a sudden rencounter: 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. on Cr. 661; 4 Bl. Com. 184).

Defence of property against

trespassers.

only must be

used.

It has been seen that 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, (1 Hale, 486), 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). But it would seem that in no case is a man justified in intentionally Reasonable force 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; (Child's case, 2 Lew. 214); throwing a stone has been held a proper mode. (Hinchcliffe's case, 1 Ĺew, 161). There is one species of homicide se defendendo, where the party slain Homicide upon is equally innocent as he who occasions his death: as, for instance, that unfortunate case mentioned by Lord Bacon, (Elem. c. 5; see also 1 Hawk. c. 28, 3. 26), where two persons, being shipwrecked, and getting on the same plank, but finding it not able to save them both, one of them thrusts the other from it, and he is drowned: this homicide is excusable through unavoidable necessity, and upon the principle of self-defence.

necessity.

Hereof there can be no accessaries either before or after the fact, be- Accessaries. cause it is not done with a felonious intent, but upon inevitable neces

sity. (3 Inst. 56; see title "Accessary," Vol. I.)

As to forfeiture of the offender's goods, see ante, 106.

II. Homicide by Misadventure.

Forfeiture.

Homicide by misadventure is where a man is doing a lawful act, with- What is homicide out intent to hurt another, and death casually ensues. (Hale's Sum. 31; by misadventure. 1 East's P. C. 221). As, where a labourer, being at work with a

hatchet, and the head flies off and kills one who stands by; or where a third person whips a horse on which a man is riding, whereupon he

venture.

2. By misad- springs out and runs over a child, and kills him; in which case the rider is guilty of homicide by misadventure, and he who gave the blow, of manslaughter. (1 Hawk. c. 29, s. 3). But if a person riding in the street whip his horse to put him into speed, and run over a child and kill him, it is homicide, and not by misadventure; and if he ride so in a press of people, with intent to do hurt, and the horse killeth another, it is murder in the rider. (1 Hale, 476).

Lawful acts must

be done with caution.

Workmen throwing rubbish.

Driving carriages.

Navigating ships.

It is not sufficient that the act upon which death ensues be lawful and innocent in itself. It must be done in a proper manner, and with due caution to prevent mischief. (Fost. 262; 1 East's P. C. 261). Thus a party causing the death of a child by giving it spirituous liquors in a quantity quite unfit for its tender age, is guilty of manslaughter. (R.. Martin, 3 C. & P. 211).

on account of the

In the case of workmen throwing stones and rubbish from a house in the ordinary course of their business, by which a person underneath happens to be killed; if they deliberately saw the danger, or betrayed any consciousness of it, from whence a general malignity of heart might be inferred, and yet gave no warning, it will be murder, gross impropriety of the act. If they did not look out, or net til it was too late, and there was even a small probability of persons passing by, it will be manslaughter. But if it had been in a retired place, where there was no probability of persons passing by, and none had been seen about the spot before, it seems to be no more than accidental death; for though the act itself might breed danger, yet the degree of caution requisite being only in proportion to the apparent necessity of it, and there being no apparent call for it in the instance put, the rule applies, de non exidentibus et non apparentibus eadem est ratio. So, if any person had bee before seen on the spot, but due warning were given, it will be only mis adventure. (Hull's case, 1664; Kel. 40; 1 Russ. 769). On the other hand, in London and other populous towns, at a time of day when streets are usually thronged, it would be manslaughter, notwithstar di the ordinary caution used on other occasions of giving warning; for al the hurry and noise of a crowded street, few people hear the warning, es sufficiently attend to it, however loud. (1 East's P. C. 262).

Again, if a person driving a carriage happens to kill another: if he saw or had timely notice of the mischief likely to ensue, and yet wi fully drove on, it will be murder; for the presumption of malice arises from the doing of a dangerous act intentionally; there is the heart re gardless of social duty. If he might have seen the danger, but did not look before him, it will be manslaughter, for want of due circums tion. But if the accident happened in such a manner that no want due care could be imputed to the driver, it will be accidental death, and he will be excused. (1 East's P. C. 263). The mere calling out w not excuse the offender. (R. v. Walker, 1 C. & P. 320; 1 East's P 263). A. was driving a cart with four horses, in the highway at W chapel, and, he being in the cart, and the horses upon a trot, they th down a woman who was going the same way with a burthen up head, and killed her: Holt, C. J., Tracy, J., Baron Bury, and the fir corder Lovel, held this to be only misadventure. But, by Lord H it had been in a street where people usually pass, this had been m slaughter; but it was clearly agreed that it could not be murder. (0.1 Sess. before M. T. 1704; 1 East's P. C. 263).

See as to accidents, occasioned by furious driving of stage-coaches, Geo. IV. c. 4, title "Stage Coach," Vol. V. And see 7 & 8 Geo. c. lxxv., as to accidents by the overloading of boats by watermen, Thames," Vol. VI.

66

To make the captain of a steam-vessel guilty of manslaughter, inc ing a person to be drowned by running down a boat, the prosec must shew some act done by the captain, and a mere omission en part in not doing the whole of his duty is not sufficient. But if the be sufficient light, and the captain of a steamer is either at the h

venture.

or in a situation to be giving the command, and does that which causes 2. By misadthe injury, he is guilty of manslaughter. (R. v. Gree, 7 C. & P. 156). The captain and pilot of a steam-boat were both indicted for the manslaughter of a person who was on board of a smack, by running the smack down. The running down was attributed, on the part of the prosecution, to improper steerage of the steam-boat, arising from there not being a man at the bow to keep a look out at the time of the accident. It was proved that there was a man on the look-out when the vessel started, about an hour previous. According to one witness, the captain and pilot were both on the bridge between the paddle-boxes; according to another, the pilot was alone on the paddle-box. Held, that under these circumstances there was not such personal misconduct on the part of either as to make them guilty of felony. (R. v. Allen and another, 7 C. & P. 153).

If, when engaged in an unlawful or dangerous sport, a man kill an- Sports. other by accident, it is manslaughter. (Fost. 259; 1 Hale, 472; 1 Hawk. c. 29, s. 5; Ward's case, 1 East, P. C. 270). If the sport were lawful and not dangerous, it would be homicide by misadventure only. (Id.) But the sport or act from which death ensued must be malum in se. For, if it were barely malum prohibitum, as shooting at game by a person not qualified by statute law to keep or use a gun for that purpose, the case of a person so offending will fall under the same rule as that of a qualified man. For the statutes prohibiting the destruction of the game under certain penalties will not, in a question of this kind, enhance the accident beyond its intrinsic moment. (Fost. 259).

Parents, masters, and other persons having authority in foro domestico, Correction by may give reasonable correction to those under their care: and if death parents, &c. ensue from such correction, it will be no more than accidental death. But if the correction exceed the bounds of due moderation, either in the measure of it, or in the instrument made use of for that purpose, it will be either murder or manslaughter, according to the circumstances. If done with a cudgel, or other thing not likely to kill, though improper for the purpose of correction, it will be manslaughter; if with a dangerous weapon likely to kill or maim, as a pestle or great staff, it will be murder: due regard being had in both instances to the age and strength of the party. (1 East's, P. C. 261).

Medical practitioners.

If poison were administered by mistake, or if it were laid with an in- Poisoning by nocent intention in the place from which the deceased took it, it is mistake. merely homicide by misadventure. But if the poison were laid in such a manner or place as to be mistaken for food, it is, perhaps, manslaughter. (1 Hale, 431). If a physician or surgeon give his patient a potion or plaister to cure him, which, contrary to expectation, kills him, this also is neither murder nor manslaughter, but misadventure. (Mirr. c. 4, s. 16). A distinction, indeed, has been taken, between the administering a potion, &c., by a regular physician, &c., and one who is not so, and the death in the latter case is said to be manslaughter at the least; (Brit. c. 5; 4 Inst. 251); but Lord Hale very much questions the soundness of this distinction. (1 Hale, 430). And it seems, that if a person, whether he be a regular practitioner or not, honestly and bonâ fide perform an operation which causes the patient's death, he is not guilty of manslaughter; (R. v. Van Butchell, 3 C. & P. 629); but if he be guilty of criminal misconduct arising from gross ignorance or criminal inattention, then he will be guilty of manslaughter. (R. v. Williamson, Id. 635; R. v. Spiller, 5 C. & P. 333, and see further post, 807). The law does not require the utmost caution that can be used; it is sufficient that a reasonable precaution, what is usual and ordinary in the like cases, be taken; such as hath been found by long experience in the course of human affairs to answer the end; for such conduct shews that the party was regardful of social duty, and free from any manner of guilt. (Fost. 264; 1 East's P. C. 266). And, therefore, upon that principle,

What degree of caution must

be used.