understood only of arrests by officers, and does not extend to arrests by private persons of their own authority.(w)

In the case of a riot or rebellious assembly, the peace officers and their assistants, endeavoring to disperse the mob, are justified, both at common law and by the riot act, in proceeding to the last extremity, in case the riot cannot otherwise be suppressed.(x) And it has been said, that perhaps the killing of dangerous rioters may be justified by any private persons who cannot otherwise suppress them, or defend themselves from them, inasmuch as every private person seems to be authorized by the law to arm himself for the preservation of the peace.(y)

Gaolers and their officers are under the same special protection as other ministers of justice; and, therefore, if in the necessary discharge of their duty, they meet with resistance, whether from prisoners in civil or criminal suits, or from others, in behalf of such prisoners, they are not obliged to retreat as far as they can with safety, but may freely, and without retreating, repel force by force; and if the party so resisting happen to be killed, this, on the part of the gaoler, or his officer, or any person coming in aid of him, will be justifiable homicide.(z)

Sir William Hawkesworth being weary of life, and willing to be rid of it by the hand of another, having first blamed his keeper for suffering his deer to be destroyed, and commanded him to execute the law, came himself into his park at night as if with intent to steal the deer; and being questioned by the keeper, who knew him not, and refusing to stand or answer, he was shot by the keeper. This was decided to be excusable homicide by the statute De malefactoribus in parcis.(a) A man may repel force by force in defence of his person, habitation, or property, against one who manifestly intends and endeavors, 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 finds himself out of danger; and if, in a conflict between them, he happens to kill, such killing is *justifiable.(b) [*896 But it has been holden, that this rule does not apply to any crime unaccompanied with force, as of picking of pockets. (c) It seems, therefore, that the intent to murder, ravish, or commit other felonies attended with force or surprise, should be apparent, and not be left in doubt; so that if A. make an attack upon B., it must plainly appear by the circumstances of the case (as the manner of the assault, the weapon, &c.) that the life of B. is in imminent danger; otherwise his killing

(w) 2 Hale 84. Sed vide 1 Hale 489, 490, and 1 East P. C. c. 5, s. 68, pp. 300, 301, where it is said, that the fact of the indictment found is a good cause of arrest by private persons, if it may be made without the death of the felon: and that if the fact of his guilt be necessary for their complete justification, it is conceived that the bill of indictment found by the grand jury would, for that purpose, be primâ facie evidence of the fact, till the contrary be proved. Certainly not. See Rex v. Turner, ante, p. 77. C. S. G.

(x) 1 Hale 53, 494, 495; MS., Tracy, 36, cited 1 East P. C. c. 5, s. 71, p. 304; Riot Act, 1 Geo. 1, st. 2, c. 5, where persons continue together an hour after proclamation And see ante, Book II., Chap. xxv. Of Riots, &c., p. 378, et seq.

(y) 1 Hawk. P. C. c. 28, s. 14, and see Fost. 272; Poph. 121. It was so resolved by all the Judges in Easter Term, 39 Eliz, though they thought it more discreet for every one in such a case to attend and assist the King's officers in preserving the peace. And certainly, if private persons interfere to suppress a riot, they must give notice of their intention. See note (g), ante, p. 402.

(z) Fost. 321; 1 Hale 481, 496.

(a) 1 Hale 40. By the 21 Edw. 1, st. 2, if a forester, parker, or warrener, found any trespassers wandering within his liberty, intending to do damage therein, who would not yield, after hue and cry made to stand unto the peace, but continued their malice, and disobeying the King's peace, did flee or defend themselves with force and arms, if such forester, parker, or warrener, or their assistants, killed such offenders, either in arresting or taking them, they should not be troubled for the same, nor suffer any punishment. The 21 Edw. 1, st. 2, was repeaied by the 7 & 8 Geo. 4, c. 27, and 9 Geo. 4, c. 53. And the 3 & 4 Will. & M. c. 10, by the 16 Geo. 3, c. 30, and the 4 & 5 Will. & M. c. 23, by the 7 & 8 Geo. 4, c. 27, and the 1 & 2 Will. 4, c. 32. All further reference to their provisions has therefore been omitted. C. S. G.

(b) Fost. 273; Kel. 128, 129; 1 Hale 445, 481, 484, et seq.; 1 Hawk. P. C. c. 28, ss. 21, 24; Reg. v. Bull, 9 C. & P. 22 (38 E. C. L. R.)

(c) 1 Hale 488; 4 Blac. Com. 180. But if one pick my pocket, and I cannot otherwise take him than by killing him, this falls under the general rule concerning the arresting of felons: 1 East P. C. c. 5, s. 45, p. 273.

the assailant will not be justifiable self-defence.(d) There must be an intention on the part of the person killed to rob, or murder, or to do some dreadful bodily injury to the person killing; or the conduct of the party must be such as to render it necessary on the part of the party killing to do the act in self-defence. (e) And the rule clearly extends only to cases of felony; for if one come to beat another, or to take his goods merely as a trespasser, though the owner may justify the beating of him, so far as to make him desist, yet if he kill him, it is manslaughter.(ƒ) But if a house be broken open, though in the day-time, with a felonious intent, it will be within the rule.(g) A person who is set to watch a yard or garden by his master, is not justified in shooting any one who comes into it in the night, even if he see him go into his master's hen-roost, and some dead fowls and a crow-bar be found near him; but if from his conduct he has fair ground to believe his own life in actual danger, he is justified in shooting him.(h)1

Important considerations will arise in cases of this kind, as to the grounds which the party killing had for supposing that the person slain had a felonious design against him; more especially where it afterwards appears that no such design existed. One Levet was indicted for killing F. F., under the following circumstances:-Levet being in bed and asleep, his servant, who had procured F. F. to help her about the work of the house, and went to the door about twelve o'clock at night to let her out, conceived that she heard thieves about to break into the house: upon which she ran to him, and told him of what she apprehended. Levet arose immediately, took a drawn sword, and, with his wife, went down stairs; when the servant, fearing that her master and mistress should see F. F., hid her in the buttery. Levet with his sword searched the entry for thieves, when his wife, spying F. F. in the buttery, and not knowing her, conceived her to be a thief, and cried out to her husband in great fear, "Here they be that would undo us;" when Levet, not knowing that it was F. F. in *the buttery, hastily entered with his drawn *897] sword, and being in the dark, and thrusting before him with his sword, thrust F. F. under the left breast and gave her a mortal wound, of which she instantly died.(i) This was ruled to be misadventure; but a great Judge appears to have thought the decision too lenient, and that it would have been better ruled manslaughter; due circumspection not having been used.(k) Upon this opinion, however, some observations have been made; and it has been ably argued, upon the peculiar facts and circumstances of the transaction, that the case seems more properly to be one of those mentioned by Lord Hale,() where the ignorance of the fact excuses the party from all sort of blame.(m) And in another book of great authority, the case is mentioned as one in which the defendant might have justified the fact under the circumstances, on the ground that it had not the appearance even of a fault.(n)

Questions will also sometimes arise as to the apparency of the intent in one of the (d) 1 Hale 484.

(e) Reg. v. Bull, 9 C. & P. 22 (38 E. C. L. R.), Vaughan and Williams, JJ.

(f) 1 Hale 485, 486; 1 Hawk. P. C. c. 28, s. 23; Kel. 132; 1 East P. C. c. 5, s. 44, p. 272.

(g) 1 East P. C. c. 5, s. 44, p. 273. In 4 Blac. Com. 180, it is said, that the rule reaches not to the breaking open of any house in the day-time, unless it carries with it an attempt of robbery also. But it will apply where the breaking is such as imports an apparent robbery, or an intention or attempt of robbery 1 Hale 488.

(h) Rex v. Scully, 1 C. & P. 319, Garrow, B. The 24 Hen. 8, c. 5, by which persons killing those who were attempting to rob or murder, or commit burglary, were not to suffer any forfeiture of goods, &c., but to be fully acquitted, and which was here referred to in the second edition, was repealed by the 9 Geo. 4, c. 31. C. S. G. (i) Levet's case, Cro. Car. 538; 1 Hale 42, 474; Jones (W.) 429. (k) Fost. 299.

(m) 1 East P. C. c. 5, s. 46, pp. 274, 275.

(7) 1 Hale 42.

(n) 1 Hawk. P. C. c. 28, s. 27.

1 Whenever there is a reasonable ground to believe that there is a design to destroy life, to rob, or to commit a felony, a killing to arrest such a design is justifiable: State r. Harris, 1 Jones (Law) 190; Harrison v. State, 24 Ala. 67; Dill v. State, 25 Ibid. 15; Dyson v. State, 26 Miss. 362. It is lawful for the owner of a house to kill a burglar: M Pherson v. State, 22 Geo. 478. Killing to prevent a felony must be necessary: Mitchell v. State,

22 Geo. 211.

parties to commit such felony as will justify the other in killing him. Mawgridge, on words of anger, threw a bottle with great force at the head of Mr. Cope, and immediately drew his sword, upon which Mr. Cope returned a bottle with equal violence;(0) and it was held that this was lawful and justifiable on the part of Mr. Cope, on the ground that he that has manifested malice against another, is not fit to be trusted with a dangerous weapon in his hand.(p) There seems to have been good reason for Mr. Cope to have supposed that his life was in danger: and it was probably on the same ground that the judgment on Ford's case proceeded. Mr. Ford being in possession of a room at a tavern, several persons insisted upon having it, and turning him out, which he refused to submit to; thereupon they drew their swords upon Mr. Ford and his company, and Mr. Ford drew his sword, and killed one of them; and this was adjudged justifiable homicide.(q) For if several attack a person at once with deadly weapons, as may be supposed to have happened in this case, though they wait till he be upon his guard, yet it seems (there being no compact to fight) that he would be justified in killing any of the assailants in his own defence; because so unequal an attack resembles more a desire of assassination than of combat.(r) But no assault, however violent, will justify killing the assailant under the plea of necessity, unless there be a plain manifestation of a felonious intent.(s) And it may be further observed, that a man cannot, in any case, justify killing another by a pretence of necessity, unless he were wholly without fault in *bringing that necessity upon himself; for, if he kill any person in defence [*898 of an injury done by himself, he is guilty of manslaughter at least; as in the case where a body of people wrongfully detained a house by force, and killed one of those who attacked it, and endeavored to set it on fire. (t)

Mr. J. Foster was of opinion, that, upon the same principle upon which Mawgridge's case was decided, and possibly upon the rule touching the arrest of a person who has given a dangerous wound, the Legislature, in the case of the Marquis de Guiscard, who stabbed Mr. Harley sitting in Council, discharged the parties who were supposed to have given the Marquis the mortal wound from all manner of prosecution on that account, and declared the killing to be a lawful and necessary action.(u)

Where a known felony is attempted upon any one, not only the party assaulted may repel force by force, but his servant attending him, or any other person present, may interpose to prevent the mischief; and if death ensue, the party so interposing will be justified.(v) So, where an attempt is made to commit arson, or burglary, in the habitation, any part of the owner's family, or even a lodger, may lawfully kill the assailants, in order to prevent the mischief intended.(w)

But, in cases of mutual combats or sudden affrays, a person interfering should act with much caution. Where, indeed, a person interferes between two combatants with a view to preserve the peace, and not to take part with either, giving due notice of his intention, and is under the necessity of killing one of them in order to preserve his own life or that of the other combatant, it being impossible to preserve them by other means, such killing will be justifiable; (x) but, in general, if there be an affray and an actual fighting and striving between persons, and another

(0) Mawgridge's case, Kel. 128, 192, ante, p. 729. (p) By Lord Holt, Kel. 128, 129.

(q) Ford's case, Kel. 51.

(r) 1 East P. C. c. 5, s. 47, p. 276; and see 1 East P. C. c. 5, s. 25, p. 243, where Ford's case is observed upon; and it is said that the memorandum in the margin of Kelyng to inquire of this case, and the quære used by Mr. J. Foster in citing it, were probably made on the ground of the reason suggested in the margin of Kelyng for the judgment, namely, that the killing by Mr. Ford in defence of his own possession of the room was justifiable, which, under those circumstances, might be fairly questioned: as, on that ground, it might have been better ruled to be manslaughter.

(s) 1 East P. C. c. 5, s. 47, p. 277.

(t) 1 Hawk. P. C. c. 28, s. 22; 1 Hale, 405, 440, 441.

(u) 9 Ann c. 16, which was repealed by the 9 Geo. 4, c 31; Fost. 275.

(v) 1 Hale 481, 484; Fost. 274. And in Handcock v. Baker and others, 2 Bos. & Pul. 265, Chambre, J., said, "It is lawful for a private person to do anything to prevent the perpetration of a felony."

(w) Fost. 274.

(z) 1 Hale 484; 1 East P. C. c. 5, s. 58, p. 290.

run in, and take part with one party, and kill the other, it will not be justifiable homicide, but manslaughter.(y) i

It should be observed, that as homicide committed in the prevention of forcible and atrocious crimes is justifiable only upon the plea of necessity, it cannot be justified, unless the necessity continue to the time when the party is killed. Thus, though the person upon whom a felonious attack is first made be not obliged to retreat, but may pursue the felon till he finds himself out of danger; yet if the felon be killed after he has been properly secured, and when the apprehension of danger has ceased, such killing will be murder; though perhaps, if the blood were still hot from the contest or pursuit, it might be held to be only manslaughter, on account of the high provocation.(z)

*899]

*CHAPTER THE FOURTH.

OF DESTROYING INFANTS IN THE MOTHER'S WOMB.

WE have already seen that an infant in its mother's womb, not being in rerum naturâ, is not considered as a person who can be killed within the description of murder. (a) An attempt, however, to effect the destruction of such an infant, though unsuccessful, appears to have been treated as a misdemeanor at common law.(b)

The 43 Geo. 3, c. 58, 9 Geo. 4, c. 31, and 7 Will. 4, and 1 Vict. c. 85, formerly made certain attempts to procure the miscarriage of any woman highly penal; but these acts are repealed, and by the 24 & 25 Vict. c. 100, s. 58, "Every woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully (c) administer to her or cause to be taken by her any poison or other noxious thing,(d) or shall unlawfully(e) use any instrument or other means whatsoever with the like intent, shall be guilty of felony, and being convicted thereof, shall be liable, at the discretion of the Court, to be kept in penal servitude for life, or for any term not less than three years, or to be imprisoned for any term

(y) 1 East P. C. c. 5, s. 58, p. 291. Ante, p. 795; and see also ante, Book II., chap. xxvi. Of Affrays, p. 406.

(2) 1 East P. C. c. 5, s. 60, p. 293; 4 Blac. Com. 185; 1 Hale 485.

(a) Ante, p. 670.

(b) See a precedent of an indictment for this offence as a misdemeanor at common law in 3 Chit. Crim. Law, 798, procured from the Crown Office, Mich. T. 42 Geo. 3.

(c) The word "maliciously" was in the 9 Geo. 4, c. 31, s. 13.

(d) The words of the 43 Geo 3, c. 58, in s. 1, were "any deadly poison or other noxious and destructive substance or thing;" in sec. 2, "any medicines, drug, or other substance or thing whatsoever." The words in the 9 Geo. 4, c. 31, where the woman was quick with child, were, "L any poison or other noxious thing." Where the woman was not quick with child, "any medicine or other thing." See note (k), post, p. 901.

(e) " Unlawfully" was not in the 9 Geo. 4, c. 31, s. 13.

1 When a person, who is neither assaulted or threatened, gets down from his horse, arms himself with a club, interposes himself between two other persons who are about to engage in a fight, and kills one of them, this is murder: Johnston's case, 5 Gratt. 660. As to killing in an attempt to preserve the peace, see People v. Cob, 4 Parker C. R. 35 ; Pond v. People, 8 Mich. 150.

263.

2 It is not a punishable offence, by the common law, to perform an operation upon a pregnant woman, with her consent, for the purpose of procuring an abortion, and thereby to effect such purpose, unless the woman be quick with child: Comm. v. Parker, 9 Metc. To administer a potion to a pregnant woman with an intention to procure an abortion, is not an indictable offence, unless the woman be quick with child, and an abortion ensue: Comm. v. Bangs, 9 Mass. 387. See Wilson v. Ohio, 2 Ohio (N. S.) 319; State v. Howard, 32 Verm. 380.

not exceeding two years, with or without hard labor, and with or without solitary confinement." (f)

Sec. 59. "Whosoever shall unlawfully supply or procure any poison or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she be or be not with child, shall be guilty of a misdemeanor, and being convicted thereof, shall be liable, at the discretion of the Court, to be kept

in penal servitude for the term of three years, or to be imprisoned for any [*900 term not exceeding two years, with or without hard labor.”(g)

By sec. 67, principals in the second degree and accessories before the fact are punishable like principals in the first degree; "and whosoever shall counsel, aid, or abet the commission of any indictable misdemeanor punishable under this Act, shall be liable to be proceeded against, indicted, and punished as a principal offender."(h)

Sec. 69. "Whenever imprisonment, with or without hard labor, may be awarded for any indictable offence under this Act, the Court may sentence the offender to be imprisoned, or to be imprisoned and kept to hard labor, in the common gaol or house of correction."

Sec. 70. "Whenever solitary confinement may be awarded for any offence under this Act, the Court may direct the offender to be kept in solitary confinement for any portion or portions of any imprisonment, or of any imprisonment with hard labor, which the Court may award, not exceeding one month at any one time, and not exceeding three months in any one year; and whenever whipping may be awarded for any offence under this Act, the Court may sentence the offender to be once privately whipped, and the number of strokes and the instrument with which they shall be inflicted shall be specified by the Court in the sentence."

Sec 71. "Whenever any person shall be convicted of any indictable misdemeanor punishable under this Act, the Court may, if it shall think fit, in addition to or in lieu of any punishment by this Act authorized, fine the offender, and require him to enter into his own recognizances, and to find sureties, both or either, for keeping the peace, and being of good behavior; and in case of any felony punishable under this Act or otherwise than with death, the Court may, if it shall think fit, require the offender to enter into his own recognizances and to find sureties, both or either, for keeping the peace, in addition to any punishment by this Act authorized: provided that no person shall be imprisoned, for not finding sureties under this clause, for any period exceeding one year."(i)

In order to bring a case within the 24 & 25 Vict. c. 100, s. 59, it is not necessary that the intention of using the noxious substance should exist in the mind of any other person than the person supplying it. The prisoner was indicted for supplying savin, knowing that it was intended to be unlawfully used to procure a miscarriage, and it was contended that there was no case against him, because it was necessary that he should know that the savin was intended to be used with intent to procure the miscarriage, whereas it was not intended, except by the prisoner himself, to be so used; the jury found that the case was in other respects proved, but that the prosecutrix did not intend to take the savin, nor did any other person, except the prisoner, intend that she should take it; but, upon a case reserved, it was held that the intention of any other person than the prisoner was not necessary to the commission of the offence. The statute is directed against the supply

(f) This clause is framed on the 7 Will. 4 and 1 Vict. c. 85, s. 6. The first part of it is new, and extends the former enactment to any woman, who, being with child, attempts to procure her own miscarriage. The second part in terms makes it immaterial whether the woman were or were not with child, in accordance with the decision in Reg. v. Goodhall, 1 Den. C. C. 187; s. c. as Reg. v. Goodchild, 2 C. & K. 293 (61 E. C. L. R.). The Act extends to Ireland, but not to Scotland.

(g) This clause is new. It is intended to check the obtaining of poison, &c., for the purpose of causing abortion, by making both the person who supplies and the person who procures it guilty of a misdemeanor.

(h) See the previous part of this clause, ante, p. 881.

(i) See sec. 68 as to the trial of offences committed within the Admiralty jurisdiction, ante, p. 762.

VOL. 1.-46