Grounds of felonious de sign. Levet's case. nied with force, as picking of pockets. (b) 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 the assailant will not be justifiable self-defence. (c) 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. (d) 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. (e) But if a house be broken open, though in the day-time, with a felonious intent, it will be within the rule. (f) 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. (g) Important considerations will arise in cases of this kind, as to the suspicion of a 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 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 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 (b) 1 Hale, 488. 4 Blac. Com. 180. (c) 1 Hale, 484. (f) 1 East, P. C. c. 5, s. 44, p. 273. a 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. (g) 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 last edition, was wholly repealed by the 9 Geo. 4, c. 31. C. S. G. wound, of which she instantly died. (h) 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. (i) 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, (j) where the ignorance of the fact excuses the party from all sort of blame. (k) 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. (1) Questions will also sometimes arise as to the apparency of the in- Apparency of tent in one of the parties to commit such felony as will justify the intent, other in killing him. Mawgridge, on words of anger, threw a bottle Mawgridge's with great force at the head of Mr. Cope, and immediately drew his case. sword, upon which Mr. Cope returned a bottle with equal violence; (m) 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. (n) 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's case. 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, (o) 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. (p) 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. (q) 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 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 (k) 1 East, P. C. c. 5, s. 46, p. 274, 275. (1) 1 Hawk. P. C. c. 28, s. 27. (m) Mawgridge's case, Kel. 128, 129, ante, p. 529. (n) By Lord Holt, Kel. 128, 129. (0) Ford's case, Kel. 51. (p) 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 Unless a felonious intent an assault, however vio be manifested, lent, will not justify killing the party. And the necessity must not be brought upon himself by the party killing. Interference by third persons to prevent felonies. Interference by third persons in cases of mutual combats and affrays. Time within which homicide will be justifiable. killed one of those who attacked it, and endeavoured to set it on fire. (r) 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. (s) 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. (t) 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. (u) 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: (v) but, in general, if there be an affray and an actual fighting and striving between persons, and another run in, and take part with one party, and kill the other, it will not be justifiable homicide, but manslaughter. (w) 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. (x) (r) 1 Hawk. P. C. c. 28, s. 22. 1 Hale, 405, 440, 441. (s) 9 Ann. c. 16, which was repealed by the 9 Geo. 4, c. 31. Fost. 275. (t) 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." (u) Fost. 274. (v) 1 Hale, 484. 1 East, P. C. c. 5, s. 58, p. 290. (w) 1 East, P. C. c. 5, s. 58, p. 291, Ante, p. 590; and see also ante, Book IL, chap. xxvi. Of Affrays, p. 291. () 1 East, P. C, c. 5, s. 60, p. 293. 4 Blac. Com. 185. 1 Hale, 485. CHAPTER THE FOURTH. OF DESTROYING INFANTS IN THE MOTHER'S WOMB. We have already seen, that an infant in its mother's womb, not Common law being in rerum naturá, is not considered as a person who can be offence. 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) Punishment The 43 Geo. 3, c. 58, made certain acts, intended to procure the miscarriage of a woman with child, highly penal: that statute was repealed by the 9 Geo. 4, c. 31, which is also repealed by the 1 Vict. c. 85, (c) which enacts, by sec. 6," that whosoever, with intent to procure the miscarriage of any woman, shall unlawfully (d) administer procure aborto her, or cause to be taken by her, any poison or other noxious tion. thing, (e) or shall unlawfully (ee) 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 transported beyond the seas for the term of his or her natural life, or for any term not less than fifteen years, or to be imprisoned for any term not exceeding three years.' By sec. 7, "In the case of every felony punishable under this act Punishment of every principal in the second degree, and every accessory before the accessories. fact, shall be punishable with death or otherwise in the same manner as the principal in the first degree, is by this act punishable; and every accessory after the fact to any felony punishable under this act shall, on conviction, be liable to be imprisoned for any term not exceeding two years." By sec. 8, "Where (a) Ante, p. 485. any person shall be convicted of any offence Offences pu (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 1 Vict. c. 85, s. 1, repeals so much of the 9 Geo. 4, c. 31, and the Irish Act, 10 Geo. 4, c. 34, " as relates to any person who shall use any of the ways or means therein mentioned, with intent to procure the miscarriage of any woman, or who shall counsel, aid, or abet, therein, and so much of the same acts as relates to the punishment of accessories after the fact, to such of the felonies punishable under those acts, as are hereinbefore referred to." This seems to be a repeal of sec. 13 of the 9 Geo. 4, c. 31, and sec. 16 of the 10 Geo. 4, c. (e) 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," any poison or other noxious thing." Where the woman was not quick with child, any medicine or other thing." See note (h), post, p. 672. 66 (ee)" Unlawfully," was not in the 9 Geo. 4, c. 31, s. 13. nishable by punishable under this act, for which imprisonment may be awarded, imprisonment. it shall be lawful for the Court to sentence the offender to be impri soned, or to be imprisoned and kept to hard labour, in the common gaol or house of correction, and also to direct that the offender shall be kept in solitary confinement for any portion or portions of such imprisonment, or of such imprisonment with hard labour, not exceeding one month at any one time, and not exceeding three months in any one year, as to the Court in its discretion shall seem meet." (f) The 43 Geo. 3, c. 58, s. 1 & 2, and the 9 Geo. 4, c. 31, s. 13, made an important distinction between the case where the woman was quick with child, and where she was not, or was not proved to be, quick with child. The present act makes no such distinction. It may be well, however, to mention the following cases, which were decided upon the repealed statutes. Upon an indictment on the 43 Geo. 3, c. 58, s. 1, the woman, in point of fact, was in the fourth month of her pregnancy; but she swore that she had not felt the cnild move within her before taking the medicine, and that she was not then quick with child. The medical men, in their examinations, differed as to the time when the foetus may be stated to be quick, and to have a distinct existence; but they all agreed, that, in common understanding, a woman is not considered to be quick with child till she has felt the child alive and quick within her, which happens with different women in different stages of pregnancy, although most usually about the fifteenth or sixteenth week after conception. And Lawrence, J., said, that this was the interpretion that must be put upon the words, " quick with child," in the statute: and, as the woman had not felt the child alive within her before taking the medicine, he directed the jury to acquit the prisoner. (g) An indictment upon the 43 Geo. 3, c. 58, s. 2, charged the prisoner with having administered to a woman a decoction of a certain shrub called savin: and it appeared upon the evidence that the prisoner prepared the medicine which he administered, by pouring boiling water on the leaves of a shrub. The medical men who were examined stated, that such a preparation is called an infusion, and not a decoction (which is made by boiling the substance in the water) upon which the prisoner's counsel insisted that he was entitled to an acquittal, on the ground that the medicine was misdescribed. But Lawrence, J., overruled the objection, and said, that infusion and decoction are ejusdem generis, and that the variance was immaterial: that the question was, whether the prisoner administered any matter or thing to the woman to procure abortion. (h) (ƒ) The act does not extend to Scotland, sec. 12. By sec. 10, offences committed within the admiralty jurisdiction are triable as any other felony committed within that jurisdiction. (9) Rex v. Phillips, Monmouth Sum. Ass. 1812, cor. Lawrence, J. 3 Campb. 77. (h) Rex v. Phillips, 3 Campb. 74, 75. And upon an indictment for murder, if the death be laid to have been by one sort of poison, and it turn out to have been by another, the difference will not be material. Ante, p. 557. And in Rex v. Coe, 6 C. & P. 403, where the prisoner was indicted on the 9 Geo. 4, c. 31, s. 13, for administering saffron to a female, and his counsel was cross-examining as to her having taken something else before the saffron, and also as to the innoxious nature of the article; Vaughan, B., said, "Does that signify? It is with the intention that the jury have to do; and if the prisoner administered a bit |