to give up the protection of his house to his adversary by his flight. (2) But where the trespass is barely against the property of another, the law does not admit the force of the provocation as sufficient to warrant the owner in making use of any deadly or dangerous weapon; more particularly if such violence is used after the party has desisted from the trespass. But if the beating be with an instrument, or in a manner not likely to kill, it will only amount to manslaughter and it is even lawful to exert such force against a trespasser, who comes without any colour, to take the goods of another, as is necessary to make him desist. (a) : A man is not authorized to fire a pistol on every intrusion or invasion of his dwelling-house, which may be made forcibly at night; he ought, if he has a reasonable opportunity, to endeavour to remove the trespasser, without having recourse to the last extremity. M., who was indicted for murder, had made himself obnoxious to some boatmen, by giving information of certain smuggling transactions, in which some of them had been engaged; and they, in revenge, ducked him, and were in the act of throwing him into the sea, when he was rescued by the police; the boatmen, however, as he was going away, called to him that they would come at night, and pull his house down in the middle of the night a great number of persons came about his house, singing songs of menace, and using violent language, indicating that they had come with no friendly or peaceable intention. M., under an apprehension, as he alleged, that his life and property were in danger, fired a pistol, by which one of the party was killed. Holroyd, J., "A civil trespass will not excuse the firing a pistol at a trespasser, in sudden resentment or anger. If a person takes forcible possession of another man's close, so as to be guilty of a breach of the peace, it is more than a trespass. So if a man with force invades and enters into the dwelling of another; but a man is not authorized to fire a pistol on every intrusion or invasion of his house he ought, if he has a reasonable opportunity, to endeavour to remove him without having recourse to the last extremity but the making an attack upon a dwelling, and especially at night, the law regards as equivalent to an assault upon a man's person, for a man's house is his castle : and, therefore, in the eye of the law, it is equivalent to an assault; but no words or singing are equivalent to an assault, nor will they authorize an assault in return. If you are satisfied that there was nothing but the song, and no appearance of further violence: if you believe that there was no reasonable ground for apprehending further danger, but that the pistol was fired for the purpose of killing, then it is murder. There are cases where a person, in the heat of blood, kills another, that the law does not deem it murder, but lowers the offence to : (z) 1 Hale, 485. In Dakin's case, 1 Lew. 166, where the prisoner was a lodger at a house, to which there was a back-way, of which the prisoner was ignorant, it being the first night he had lodged at the house, and some persons split open the door of the house in order to get the prisoner out and ill treat him; Bayley, J., is reported to have said, "If the prisoner had known of the back way, it would have been his duty to have gone out backwards, in order to avoid the conflict." But it is sub mitted that the protection of the house (a) 1 Hale, 473, 486. 1 East, P. C. A person is firing a pistol not justified in on every forcible intrusion into his house at night. A person must only use so much force as is reasonably necessary to turn a trespasser out of his house. Homicide nate necessity. manslaughter; as, where a party coming up, by way of making an attack, and, without there being any previous apprehension of danger the party attacked, instead of having recourse to a more reasonable and less violent mode of averting it, having an opportunity so to do, fires on the impulse of the moment. If you are of opinion that the prisoner was really attacked, and that the deceased and his party were on the point of breaking in, or likely to do so, and execute the threats of the day before, he was, perhaps, justified in firing as he did." (b) A person must only use so much force as is reasonably necessary, in order to turn a trespasser out of his house. Upon an indictment for manslaughter, it appeared that the prisoner, upon returning home, found the deceased in his house, and desired him to withdraw, but he refused to go: upon this, words arose between them, and the prisoner becoming excited, proceeded to use force, and, by a kick which he gave to the deceased, caused his death. Alderson, B.; "A kick is not a justifiable mode of turning a man out of your house, though he be a trespasser. If a person becomes excited, and gives another a kick, it is an unjustifiable act. If the deceased would not have died but for the injury he received, the prisoner, having unlawfully caused that injury, is guilty of manslaughter." (c) Upon an indictment for manslaughter, it appeared that a man and his servant had insisted upon placing corn in the prisoner's barn, which she refused to allow; they exerted force: a scuffle took place, in which the prisoner received a blow on the breast, whereon she threw a stone at the deceased, the master, which killed him. Holroyd, J.: "The case fails, as it appears the deceased received the blow in an attempt to invade the prisoner's barn, against her will. She had a right to defend her barn, and to employ such force as was reasonably necessary for that purpose; and she is not answerable for any unforeseen accident that may have happened in so doing." (d) There is one species of homicide se defendendo where the party upon unfortu- slain is equally innocent as the person who occasions his death: and yet this homicide is also excusable, from the great universal principle of self-preservation, which prompts every man to save his own life, in preference to that of another, where one of them must inevitably perish. Of this kind is the case mentioned by Lord Bacon, where upon two persons being shipwrecked, and getting on the same plank, one of them, finding it not able to save them both, thrust the other from it, whereby he was drowned. (e) But, according to Lord Hale, a man cannot even excuse the killing of another who is innocent, under a threat, however urgent, of losing his own life, if he do not comply so that if one man should assault another so fiercely as to endanger his life, in order to compel him to kill a third person, this would give no legal excuse for his compliance. (f) But upon this it has been observed, that if the commission of treason may be extenuated by the fear of present death, and while the party is under actual compulsion, (g) there seems to be no reason why homicide may not also be mitigated upon the like consideration, of human infirmity: though, in case the party might have recourse to the law for his protection from the threats used against him, his fears will certainly furnish no excuse for committing the murder. (h). It should further be observed that, as the excuse of self-defence is founded on necessity, it can, in no case, extend beyond the actual continuance of that necessity, by which alone it is warranted: (i) for if a person assaulted does not fall upon the aggressor, till the affray is over, or when he is running away, this is revenge, and not defence. (j) SECT. III. Of Justifiable Homicide. IT has been already stated that justifiable homicide is of se- Acts of unveral kinds, as it may be occasioned by the performance of acts avoidable neof unavoidable necessity, or by acts done by the permission of the cessity, or permitted by law. (k) law. Amongst the acts of unavoidable necessity may be classed the ex- Execution of ecution of malefactors, by the person whose office obliges him, in the malefactors. performance of public justice, to put those to death who have forfeited their lives by the laws and verdict of their country. These are acts of necessity, and even of civil duty: and, therefore, not only justifiable, but commendable, where the law requires them. (1) But the law must require them, otherwise they are not justifiable; and, therefore, wantonly to kill the greatest of malefactors, would be murder; and we have seen that all acts of official duty should, in the nature of their execution, be conformable to the judgment by which they are directed. (m) Amongst the acts done by the permission of the law, for the advancement of public justice, may be reckoned those of the officer, who, in the execution of his office, either in a civil or criminal case, kills a person who assaults and resists him. The resistance will justify the officer in proceeding to the last extremity. So that in all cases, whether civil or criminal, where persons having authority to arrest or imprison, and using the proper means for that purpose, are resisted in so doing, they may repel force with force, and need not give back; and if the party making resistance is unavoidably killed in the struggle, this homicide is justifiable. (n) A rule founded in (g) 1 East, P. C. c. 2, s. 15, p. 70, and the authorities there cited. (h) 1 East, P. C. c. 5, s. 61, p. 294. Lord Hale says that in the most extreme case, where there could be no recourse to law, the person assailed ought rather to die himself than kill an innocent person. (i) 1 East, P. C. c. 5, s. 60, p. 293. (j) 4 Blac. Com. 293. Officers killing assault and resist them. those who Officers killing those who reason and public utility; for few men would quietly submit to an arrest, if, in every case of resistance, the party empowered to arrest were obliged to desist, and leave the business undone ; and a case in which the officer was holden guilty of manslaughter, because he had not first given back, as far as he could, before he killed the party who had escaped out of custody, in execution for a debt, and resisted being retaken, (o) seems to stand alone, and has been mentioned with disapprobation. (p) With respect to offenders against the revenue laws, it is enacted, that if any person or persons, liable to be detained, under the provisions of that or any other act relating to the customs, shall not be detained at the time of committing the offence for which he or they is or are so liable, or after detention, shall make his or their escape, it shall and may be lawful for any officer of the army, navy, or marines, being duly employed for the prevention of smuggling, and on full pay, or any officer of customs or excise, or any other person acting in his or their aid or assistance, or duly employed for the prevention of smuggling, to stop, arrest, and detain such person so liable to detention as aforesaid, at any time afterwards, and to carry him before any justice of the peace, to be dealt with as if detained at the time of committing the said offence. (q) But where the party does not resist, but merely flies to avoid the arrest, the conduct of the officer should be cautiously regulated by fly from arrest, the nature of the proceeding. For in civil cases, and also in the case of a breach of the peace, or any other misdemeanor, short of felony, if the officer should pursue a defendant flying in order to avoid an arrest, and should kill him in the pursuit, it will be murder or manslaughter, according to the peculiar circumstances by which such homicide may have been attended. (r) But 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 endeavours for preventing an escape; and if in the pursuit the party flying be killed, where he cannot be otherwise overtaken, this will be deemed justifiable homicide. (s) This rule is not confined to those who are present, so as to have ocular proof of the fact, or to those who first come to the knowledge of it: for if in these cases fresh suit be made, and a fortiori if hue and cry be levied, all who join in aid of those who began the pursuit are under the same protection of the law. And the same rule holds, if a felon, after an arrest, break away as he is carrying to gaol, and his pursuers cannot retake without killing him. (t) Where a person is indicted for a felony, and will not suffer himself to be arrested by an officer, having a warrant for that purpose, the officer may lawfully kill him if he cannot otherwise be taken; though such person be innocent, and though in truth no felony have been committed. (u) But it seems that this must be understood only of arrests by officers, and does not extend to arrests by private persons of their own authority. (v) (0) 1 Roll. Rep. 189. (p) Fost. 271. 1 East, P. C. c. 5, s. 74, p. 307. (g) 3 & 4 Wm. 4, c. 53, s. 52. And more particular provisions are contained in the act, as to the arrest and detention of persons committing offences therein enumerated. And see ante, Book II., Chap. x., p. 111, et seq. (r) Ante, p. 535, 544. (s) 1 Hale, 489, 490. 1 Hawk. P. C. c. 28, s. 11. Fost. 271. 4 Blac. Com. 179. (t) Id. ibid. 1 East, P. C. c. 5, s. 67, p. 298. (u) 1 Hawk. P. C. c. 28, s. 12. (v) 2 Hale, 84. Sed vide 1 Hale, 489 490, and 1 East, P. C. c. 5, s. 68, p. 300 in case of a In the case of a riot or rebellious assembly, the peace officers and Officers distheir assistants, endeavouring to disperse the mob, are justified, both persing a mob at common law and by the riot act, in proceeding to the last ex- riot, &c. tremity, in case the riot cannot otherwise be suppressed. (w) 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. (x) soners. Gaolers and their officers are under the same special protection as Gaolers and other ministers of justice; and, therefore, if in the necessary dis- their assistants charge of their duty, they meet with resistance, whether from killing priprisoners 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. (y) purcis. Sir William Hawkesworth being weary of life, and willing to be Malefactores in 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. (2) and atrocious A man may repel force by force in defence of his person, habita- Homicide in tion, or property, against one who manifestly intends and endeavours, the prevention by violence or surprise, to commit a known felony upon either. In of any forcible these cases he is not obliged to retreat, but may pursue his adversary crime. till he finds himself out of danger; and if, in a conflict between them, he happens to kill, such killing is justifiable. (a) But it has been holden, that this rule does not apply to any crime unaccompa 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 prima facie evidence of the fact, till the contrary be proved. Certainly not. See Rex v. Turner, ante, p. 43. C. S. G. (w) 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. 285, 266. (x) 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 (1), aute, p. 286. (y) Fost. 321. 1 Hale, 481, 496. (z) 1 Hale, 40. By the 21 Ed. 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 Ed. 1, st. 2, was repealed by the 7 & 8 Geo. 4, c. 27, and 9 Geo. 4, c. 53. And the 3 & 4 Wm. & M. c. 10, by the 16 Geo. 3, c. 30, and the 4 & 5 Wm. & M. c. 23, by the 7 & 8 Geo. 4, c. 27, and the 1 & 2 Wm. 4, c. 32. All further reference to their provisions has therefore been omitted. C. G. S. (a) Fost. 273. Kel. 128, 129. 1 Hale, 445, 481, 484, et seq. 1 Hawk. P. C. c. 28, s. 21, 24. Reg. v. Bull, 9 C. & P. 22. |