stabbed me to the heart; I am a dead man ;" and expired. Upon inspection, it appeared that he had received three wounds, one very small on the right breast another on the left thigh, two inches deep, and half an inch wide; and the mortal wound on the left breast. After great argument and consideration, the Judges determined that the offence was only manslaughter.(k)

It appears that the Judges thought in this case, that there was not sufficient evidence that the prisoner lay in wait for the deceased, with a malicious design to provoke him, and under that color, to revenge his former quarrel, by stabbing him, which would have made it murder. On the contrary, he had composed himself to work at his own door, in a summer's evening; and when the deceased passed by, neither provoked him by word or gesture. The deceased began first by ill language, and afterwards by collaring and dragging him from his seat and rolling him in the road. The knife was used openly before the deceased came by, and not concealed from the bystanders; though the deceased in his passion did not perceive it till they were both down. And though the prisoner was not justifiable in using such a weapon on such an occasion, yet it being already in his hand, and the attack upon him very violent and sudden, the Judges thought that the offence only amounted to manslaughter; and the prisoner was recommended for a pardon.(1)

Upon an indictment for maliciously cutting, it appeared that the prisoner and the prosecutor, both being intoxicated, a quarrel ensued; the prosecutor struck the first blow, and they fought for a few minutes, when the prisoner ran back a short distance, and the prosecutor pursued, and overtook him, on which the prisoner, who had taken out his knife in his retreat, gave the prosecutor a cut across the abdomen. Park, J. A. J., "The question I shall leave to the jury is this, whether the prisoner ran back with a malicious intention of getting out his knife to inflict an injury on the prosecutor, and so to gain an advantage in the conflict? for if he did, notwithstanding the previous fighting between them on equal terms, and the prosecutor having struck the first blow, I am of opinion that if death had ensued, the crime would have been murder; or whether the prisoner, bonâ fide, ran away from the prosecutor with intention to escape from an adversary of superior strength, but finding himself pursued, drew his knife to defend himself? as in this latter case, if the prosecutor had been killed, the crime would have been manslaughter only."(m) On an indictment for manslaughter it appeared that the prisoner, a blind man, and the deceased were at a public house, and a *dispute arose between them [*795 about a bet. The prisoner said he had won, and the deceased refused to pay; the prisoner went to lay hold of him, and the deceased pushed him away; the prisoner went again to lay hold of the deceased, and was again pushed away; they then got hold of each other and there was a struggle, and they pushed about from one side to another; no blows were struck, but there were three falls, and the deceased fell undermost each time, and the third time the prisoner's knees came upon the lower part of the stomach of the deceased, and ruptured the intestines, which rupture caused the death. Patteson, J., told the jury that "all struggles in anger, whether by fighting, or wrestling, or any other mode-all kinds of contests in anger, are unlawful. And if you think the deceased's death was occasioned by an act of the prisoner in a struggle of that kind, I cannot tell you that it does not amount to manslaughter. If the prisoner was struggling, but did not attempt to throw him, I should tell you it is not a case of manslaughter; but it is for you to say whether that is the fact or not. If the prisoner laid hold of the deceased in anger, and struggled with him and threw him, then it is a case of manslaughter. If you can collect from the circumstances that the prisoner was pulled down against his will, and, in consequence, fell upon the deceased, then he will not be guilty. But there does not seem anything in the evidence to show that the prisoner evinced any disposition to give up the contest; on the contrary, it appears that the contest was continued till the fall, which occasioned the death. You have been told by the counsel for the prisoner that you must be satisfied that the death was occasioned by the (k) Rex v. Snow, 1 Leach 151.

() 1 East P. C. c. 5, s 26, p. 245, who cites Sergeant Foster's MS.

(m) Rex v. Kessal, 1 C. & P. 437 (12 E. C. L. R.); Rex v. Taylor, supra, note (i), and Rex v. Snow, supra (k), had been cited for the prisoner.

wilful act of the prisoner. In one sense of the word 'wilful' I agree with him. I take it for granted he does not mean by it malicious or intending to do injury, but that it must be an act of the will, and that it must be shown that the prisoner attempted to throw the deceased. They had no right to struggle in this way; if it had been an amicable contest in wrestling, to see who was the best man, that would be quite a different matter."( "(n)

It is said, that he shall be adjudged guilty of manslaughter, who, seeing two persons fighting together on a private quarrel, whether sudden or malicious, takes part with one of them, and kills the other.(o) And it seems clear that if a master, maliciously intending to kill another, take his servants with him without acquainting them with his purpose, and meet his adversary, and fight with him, and the servants, seeing their master engaged, take part with him, and kill the other, they would be guilty of manslaughter only, but the master of murder. (p) From this it follows, à fortiori, that if a man's servant or friend, or even a stranger, coming suddenly, and seeing him fighting with another man, side with him, and kill the other man, or seeing his sword broken send him another, wherewith he kills the other man, such servant, friend, or stranger, will be only guilty of manslaughter.(7) But this supposes that the person interfering does not know that the fighting is *796] upon malice; for though if A. and B. fight upon malice, and C., the friend or servant of A., not being acquainted therewith, come in and take part against B., and kill him, this (though murder in A.) is only manslaughter in C.; yet it would be otherwise, if C. had known that the fighting was upon malice, for then it would be murder in both. If A., having been assaulted, retreats as far as he can, and then his servant kills the assailant, it will be only homicide se defendendo; but if the servant had killed him before the master had retreated as far as he could, it would have been manslaughter in the servant. And the law is the same in the case of the master killing the other in defence of the servant.(r)

Where Ferdinando Cary and Oseband were in a field fighting upon a quarrel, and Sir M. Cary casually riding by, and seeing them in fight, and his kinsman one of them, rode in, drew his sword, thrust Oseband through and killed him; Coke, C. J., and the rest of the Court agreed that this is clearly but manslaughter in him, and murder in the other; for the one may have malice and the other not; he may come in by chance, and so kill the other.(8)

If two persons be fighting, and another interfere with intent to part them, but do not signify such intent, and he be killed by one of the combatants, this is but manslaughter.(t) And if a third person should take up the cause of one who has been worsted in mutual combat, and should attack the conqueror, and be killed by him, the killing would, it seems, be manslaughter. A. and B. were walking together in Fleet Street, and B. gave some provoking language to A., who, thereupon, gave B. a box on the ear, upon which they closed, and B. was thrown down, and his arm broken. Presently B. ran to his brother's house, which was hard by; and C., his brother, taking the alarm, came out with his sword drawn, and made towards A., who retreated ten or twelve yards; and C. pursuing him, A. drew his sword, made a pass at C., and killed him. A. being indicted for murder, the Court directed the jury to find it manslaughter, not murder, because it was upon a sudden falling out, not se defendendo, partly because A. made the first breach of the peace by striking B.; and partly because, unless he had fled as far as might be, it could not be said to be in his own defence; and it appeared plainly upon the evidence, that he might have retreated out of danger, and that his stepping back was rather to have an opportunity to draw his sword, and with more advantage to come upon C., than to avoid him; and accordingly, at last, it was found manslaughter.(u)

(n) Reg. v. Caniff, 9 C. & P. 359 (38 E. C. L. R.).

(o) 1 Hawk. P. C. c. 31, s. 35.

(P) 1 Hawk. P. C. c. 31, s. 55; 1 Hale 438; Plow Com. 100 b, Rex v. Salisbury. (g) 1 Hawk. P. C. c. 31, s. 56; 1 East P. C. c. 5, s. 58, p. 290.

(r) 1 East P. C. c. 5, s. 58, p. 292, and the anthorities there cited; 1 Hale 484. So Tremain says that a servant may kill a man to save the life of his master, if he cannot otherwise escape: 21 H. 7, c. 39; Plow. Com. 100; 1 MS. Sum.

(8) Rex v. Cary, 3 Bulst. 206; s. c., 1 Rolle R. 407, as Rex v. Carew.

(t) 1 East P. C. c. 5, s. 59, p. 292; Kel. 66.

(u) 1 Hale 482, 483. A case at Newgate, 1671.

Where upon an indictment for wounding under the 9 Geo. 4, c. 31, it appeared that the prisoner.and the prosecutor's brother were fighting, and the prosecutor laid hold of the prisoner in order to prevent him from beating his brother, and held him down on a locker, but did not strike him, and the prisoner then stabbed him; [*797 *the jury were directed, that if they were of opinion that the prosecutor did nothing more than was necessary to prevent the prisoner from beating his brother, the crime, if death had ensued, would have been murder; but if they thought that the prosecutor did more than was necessary to prevent the prisoner from beating the brother, or that he struck any blows, then it would have been manslaughter.(v)

A party of men were playing at bowls, when two of them fell out and quarrelled; and a third man who had not any quarrel, in revenge of his friend, struck the other with a bowl, of which blow he died; and this was held manslaughter, because it happened upon a sudden motion in revenge of his friend. (w) But it must be intended that the two men who fell out were actually fighting together at the time; for if words only had passed between them, it would have been murder; nothing but an open affray or striving being such a provocation to one person to meddle with an injury done to another as will lessen the offence to manslaughter, if a man be killed by the person so meddling.(x)

Though Lord Hale and others appear sometimes to intimate a distinction between the interference of servants and friends, and that of a mere stranger, yet the limits between them do not appear to be anywhere actually defined. And it has been ob

served, that the nearer or more remote connection of the parties with each other seems to be more a matter of observation to the jury as to the probable force of the provocation, and the motive which induced the interference, than as furnishing any precise rule of law grounded on such a distinction. (y)

As a blow aimed with malice at one individual, and by mistake or accident falling upon another and killing him. will amount to murder;(z) so if a blow intended against A. and lighting on B. arose from such a sudden transport of passion as, in case A. had died by it, would have reduced the offence to manslaughter, the fact will admit of the same alleviation, if it should happen to kill B. (a)

A widow finding that one of her sons had not prepared her dinner as she had directed him to do, began to scold him, upon which he made her some very impertinent answers, which put her in a passion, and she took up a small piece of iron used as a poker, intending to frighten him, and seeing she was very angry he ran towards the door of the room, when she threw the poker at him, and it happened that the deceased was just coming in at the moment, and the iron struck him on the head, and caused his death; Park, J. A. J., told the jury, "No doubt this poor woman had no more intention of injuring this particular child than I have, but that makes no difference in law. If a blow is aimed at an individual unlawfully-and this was undoubtedly unlawful, and an improper mode of correction-and strikes another and kills him, it is manslaughter, and there is no doubt, if the child at whom the [*798 blow was aimed had been struck, and died, it would have been manslaughter, and so it is under the present circumstances."(b)

A quarrel arose between some soldiers and a number of keelmen at Sandgate; and a violent affray ensuing, one of the soldiers was stripped, and a party of five or six came up and beat him cruelly. A woman called out from a window, "You rogues, you will murder the man!" The prisoner, who was a soldier, had before driven part of the mob down the street with his sword in the scabbard; and on his return, seeing his comrade thus used, drew his sword, and bid the mob stand clear, saying, he would sweep the street; and, on their pressing on him, he struck at them with the flat side of the sword several times; upon which they fled, and he pursued them. The soldier who was stripped got up, and ran into a passage to save himself.

(v) Rex v. Bourne, 5 C. & P. 120 (24 E. C. L. R.), Park, J. A. J.

(e) 12 Rep. 87.

(z) See the opinion of the Judges in Rex v. Huggett, Kel. 59, and 1 East P. C. c. 5, s. 89, pp. 328, 329.

(y) 1 East P. C. c. 5, s. 58, p. 292.

(a) Fost. 262.

(z) Ante, p. 739.

(b) Rex v. Conner, 7 C. & P. 438 (32 E. C. L. R.), Park, J. A. J., and Gaselee, J.

The prisoner returned, and asked if they had murdered his comrade; and the people came back, and assaulted him several times, and then ran from him. He sometimes brandished his sword; and then struck fire with the blade of it upon the stones of the street, calling out to the people to keep off. At this time the deceased, who had a blue jacket on, and might be mistaken for a keelman, was going along about five yards from the soldier; but, before he passed, the soldier went to him, and struck him on the head with his sword, of which blow he almost immediately expired. It was the opinion of two witnesses that if the soldier had not drawn his sword, they would both of them have been murdered. The Judges were clearly of opinion that this was only manslaughter.(c)

Sec. III-Cases of Resistance to Officers of Justice; to Persons acting in their Aid; and to Private Persons lawfully interfering to apprehend Felons, or to prevent a Breach of the Peace.

IT has been before mentioned as a general rule, that where persons having authority to arrest or imprison, and using the proper means for that purpose, are resisted in so doing, and killed, it will be murder in all who take part in such resistance.(d) But this protection of the law is extended only to persons who have proper authority, and who use that authority in a proper manner; (e) wherefore questions of nicety and difficulty have frequently arisen upon the points of authority, legality of process, notice, and regularity of proceeding; and as the consequence of defects in any of these particulars is in general that the offence of killing the person resisted, is extenuated to manslaughter, it will be proper in this place to consider some of those questions which have met with judicial decision.1

A special constable, duly appointed under the 1 & 2 Will. 4, c. 41, remains *799] a constable until his services are either determined *or suspended under sec. 9. Upon an indictment for the murder of J. Nutt, it appeared that Nutt was appointed on the 9th of February, 1832, by two justices, in writing, and under their hands, "to act as a special constable for the parish of St. George, until he received notice that his service is suspended or determined." Nutt was killed in conveying a prisoner to the station-house on the 16th of August, 1840; it was objected that Nutt did not continue a special constable till that time; but it was held that the appointment was indefinite in point of time, and remained valid and in force till it was either suspended or determined under sec. 9, and as Nutt's appointment was not shown to have been determined, he continued to be a special constable under the Act on the 16th of August, 1840, and had then, under sec. 5, all the ordinary powers of a common constable.(ƒ)

The authority to arrest and imprison is greater in cases of felony than in matters of mere misdemeanor; and lest of all in civil suits.

If a felony be committed, and the felon fly from justice, or a dangerous wound be given, it is the duty of every man to use his best endeavors to prevent an escape; and in such cases, if fresh suit be made, and à fortiori, if hue and cry be levied, all who join in aid of those, who began the pursuit, will be under the same protection of the law; and the same rule holds, if a felon, after arrest, break away as he is being carried to gaol, and his pursuers cannot retake him without killing him.(9) Thus, where upon a robbery committed by several, the party robbed raised hue and

(c) Brown's case, 1 Leach 148; 1 East P. C. c. 5, s. 27, pp. 245, 246. (d) Ante, p. 732. (e) Fost 319. (f) Reg. v. Porter, 9 C. & P. 778 (38 E. C. L. R.), Coleridge, J. (g) 1 Hale 489, 490; 1 Hawk. P. C. c. 28, s. 11; Fost. 309; 1 East P. C. c. 5, s. 67, p.

298.

1 Where one man is unlawfully restrained of his liberty, and kills the aggressor, the offence is only manslaughter, unless attended with circumstances of great cruelty and barbarity. But when the restraint is upon one man by another, so far as to prevent the former from doing what the latter may lawfully resist his doing, and the person restrained in that manner and for that cause kill the other, it is murder: State v. Craton, 6 Ired. 164. See also Comm. v. Drew, 4 Mass. 391; Boyd v. State, 17 Geo. 194; Brooks v. Comm. 11 P. F. Smith 352; Comm. v. Casey, 12 Cush. 246; Comm. v. M'Laughlin, Ibid. 615.

cry, and the country pursued the robbers, and one of the pursuers was killed by one of the robbers, it was held that this was murder, because the country, upon hue and cry levied, are authorized by law to pursue and apprehend the malefactors; and that, although there were no warrant of a justice of the peace, to raise hue and cry, nor any constable in the pursuit, yet the hue and cry was a good warrant in law for the pursuers to apprehend the felons; and that, therefore, the killing of any of the pursuers was murder.(h)

But where private persons use their endeavors to bring felons to justice, some cautions ought to be observed. In the first place, it should be ascertained that a felony has actually been committed, or that an actual attempt to commit a felony is being made by the party arrested; for if that be not the case, no suspicion, however well grounded, will bring the person so interposing within the protection, which the law extends to persons acting with proper authority (i) If it is clear that a felony has been committed, the next consideration will be, whether it was committed by the person intended to be pursued or arrested; for, supposing a felony to have been actually committed, but not by the person arrested or pursued upon suspicion, this suspicion, though probably well founded, will not bring the person endeavoring to arrest or imprison within the protection of the law, so far as to excuse him *from the guilt of manslaughter, if he should kill: or, on the other hand, [*800 to make the killing of him amount to murder. It seems that, in either case, it would only be manslaughter; the one not having used due diligence to be apprised of the truth of the fact, the other not having submitted and rendered himself to justice.(k)

Upon an indictment for wounding it appeared that the prisoner had asked leave to take a basket of ashes from the prosecutor's ashpit, which he was permitted to do.

As he was carrying away the ashes the prosecutor's apprentice saw the spout of a new tea-kettle which had stood on a shelf near the ashpit, among the ashes, and having given the alarm, the prosecutor seized the prisoner to detain him while a constable was sent for; the prisoner resisted, and in the struggle both fell, and the prisoner cut the prosecutor with a knife; a rattle of copper had been heard while the prisoner was at the ash-pit; it was objected that the prosecutor had no right to detain the prisoner. Alderson, B., "That will depend on whether the jury are satisfied that the prisoner had in fact stolen the tea-kettle. If he had stolen the tea-kettle, the prosecutor had a right to detain him, and this wounding will be felony."(1)

Where Headley, being called up in the night by one of his servants, found that his stable had been attempted, and the door cut in such a manner that the bolt was exposed, and found the prisoner and another person concealed in the yard; and a steel instrument was also found, by which the door of the stable appeared to have been cut, and some housebreaking instruments were also found near the spot where the prisoner and his companion were concealed, and under these circumstances they had been apprehended and detained by Headley and his servant, and during such detention, and in the course of the same night, the prisoner had cut Headley's servant with a knife, a point was made that such cutting was not within the 43 Geo. 3, c. 58, on the ground that the prisoner was not lawfully in custody, there being no warrant, and an attempt to commit a felony being only a misdemeanor. But the Judges held that the prisoner being detected in the night attempting to commit a felony, might be lawfully detained without a warrant, until he could be carried before a magistrate.(m)

These distinctions between officers and private persons proceed upon the principle

(h) Jackson's case, 1 Hale 464, ante, p. 736.

(i) 2 Inst. 52, 172; Fost. 318; Samuel v. Payne, Dougl. 359. And in Cox v. Wirrall, Cro. Jac. 193, it was holden that, without a fact, suspicion is no cause of arrest; and 8 Ed. 4, 3, 5 Hen. 7, 5, 7 Hen. 4, 35, are cited.

(k) 1 Hale 490; Fost. 318.

(4) Reg. v. Price, 8 C. & P. 282 (34 E. C. L. R.), Alderson, B. (m) Rex v. Hunt, R. & M. C. C. 93, post, Book III., chap. x.

See Rex v. Howarth, R. &

M. C. C. R. 207, post, p. 816, particularly. In Ex parte Krans, 1 B. & C. 261 (8 E. C. L. R.) Abbott, C. J., said, "it is lawful for any person to take into custody a man charged with felony, and keep him until he can be taken before a magistrate."

VOL. I.-41