[without any fault of his own, and otherwise than in the cases provided for in clauses (a.) and (b.), but with a deadly weapon, it is his duty to abstain from the intentional infliction of death or grievous bodily harm on the person assaulting, until he (the person assaulted) has retreated as far as he can with safety to himself.

But any person unlawfully assaulted may defend himself on the spot by any force short of the intentional infliction of death or grievous bodily harm; and if the assault upon him is notwithstanding continued, he is in the position of a person assaulted in the employment of lawful force against the person of another.

(d.) If two persons quarrel and fight neither is regarded as defending himself against the other until he has in good faith fled from the fight as far as he can, but if either party does in good faith flee from the fight as far as he can, and if, when he is prevented, either by a natural obstacle or any other cause of the same nature, from flying farther, the other party to the fight follows and again assaults him, the person who has so fled may defend himself, and may use a degree of violence for that purpose proportioned to the violence employed against him.

Illustrations.

(1.) 2 A, a madman, violently attacks B in such a manner as to cause instant danger to B's life. B may kill A, though A is not committing any crime.

(2.) 3 A, an officer, has a warrant to arrest B on civil process. B flies. A overtakes him, and B assaults A. A may use any degree of violence to B necessary to repel his assault and to arrest him.

4

(3.) A, a trespasser, enters B's house and refuses to leave it. B has a right to remove A by force, but not to strike him even if he cannot otherwise get him out of the house. If on the application of such force A assaults B, B may use any degree of force necessary to defend himself and to remove A from the house.

1 [See the authorities for clause (b).

2 This seems to follow directly from the authorities cited. So, if A were under a mistake of fact which B had no time to explain.

31 East, P. C. 307.

41 Hale, P. C. 486.]

2

1 ARTICLE 257.

LAWFUL FORCE.

[It is not a crime to inflict bodily harm by way of lawful correction, or by any lawful application of force (other than those herein before mentioned) to the person of another; but if the harm inflicted on such an occasion is excessive the act which inflicts it is unlawful, and, even if there is no excess, it is the duty of every person applying the force to take reasonable precautions against the infliction of other or greater harm than the occasion requires.

Illustrations.

(1.) 3A, a schoolmaster, beats B, a scholar, for two hours with a thick stick. Such a beating is unlawful.

(2.) A kicks B, a trespasser, out of his house, in order to force him to leave it. B is killed. The kick is an unlawful act.

(3.) (SUBMITTED.) 5 A, the governor of a gaol, flogs B, a criminal, under the sentence of a court. It is A's duty to cause the surgeon of the gaol to be in attendance to see that no unintended injury is inflicted on B.

6 ARTICLE 258.

SUPERIOR ORDERS TO EMPLOY FORCE.

In all cases in which force is used against the person of another, both the person who orders such force to be used and the person using that force is responsible for its use, and neither of them is justified by the circumstance that

1 S. D. Art. 201.

[It would be inconsistent with the plan of this work to try to enumerate all the cases in which force may be lawfully applied to the person of another. In 1 Russ. Cr. 767-73, cases will be found as to excessive violence in executing legal process: R. v. Huggins, Str. 882, p. 872. Pressing for the sea service (p. 768). Captains in the merchant service: R. v. Leggetts, 8 C. & P. 191 (p. 773). Correction of children and servants (773-7). See Draft Code, s. 66.] Mitchell v. Defries, 2 U. C. Q. B. 430; Belch v. Arnott, 9 U. C. C. P. 68; The Bridgewater, 6 Q. L. R. 290; R. v. Faneuf, 5 L. C. J. 167; R. v. Stowe, 2 G. & O. 121. 3[R. v. Hopley, 1 Russ. Cr. 776; 2 F. & F. 202.

+ Wild's Case, 1 Russ. Cr. (5th ed.) 687; 2 Lewin, 214.]

5 See Art. 11;

S. D. Art. 202.

[he acts in obedience to orders given him by a civil or military superior, but the fact that he did so act, and the fact that the order was apparently lawful, are in all cases relevant to the question whether he believed, in good faith and on reasonable grounds, in the existence of a state of facts which would have justified what he did. apart from such orders,' or which might justify his superior officer in giving such orders.

Illustrations.

(1.) 2 A, a marine, is ordered by his superior officer on board a man-ofwar to prevent boats from approaching the ship, and has ammunition given him for that purpose. Boats persisting after repeated warnings in approaching the ship, A fires at one and kills B. This is murder in A although he fired under the impression that it was his duty to do so, as the act was not necessary for the preservation of the ship (though desir able for the maintenance of discipline).

3

(2.) A, the driver of an engine, orders B, the stoker (whose duty it is to obey his orders), not to stop the engine. The train runs into another in consequence, and C is killed. B is justified by A's order.

4

(3.) (SUBMITTED). A, a civil magistrate, directs B, a military officer, to order his men to fire into a mob. B gives the order. It is obeyed, and C, a common soldier, shoots D dead. The question whether A, B, and C respectively committed any offence depends on the question whether each of them respectively had reasonable grounds to believe, and did in fact

1 [As to this see 1 Hist. Cr. Law, 205.

2 R. v. Thomas, 1 Russ. Cr. 732; 4 M. & S. 441.

3 R. v. Trainer, 4 F. & F. 105; 1 Russ. Cr. (5th ed.) 837, 838. The language of Willes, J., in this case seems to be a little too wide, unless it is taken in connection with the particular facts.

4 Whether C would commit a military offence if he refused to obey B's order because he rightly thought it unreasonable, is a question which would have to be decided by a court martial. I should suppose that cases might be imagined in which even a court martial would hold that a military inferior might and ought to disobey orders on the ground of their illegality. An officer, e.g., who commanded his men to fire a volley down Fleet Street when there was no appearance of a disturbance, or to shoot a child of four years old running away during a riot, or to desert to the enemy, or to shoot a superior officer, ought to be disobeyed, and I suppose that a soldier who obeyed such an order might be punished by a court martial. That such acts as shooting peaceable people wantonly, or a child of four years old intentionally, even in a riot, would be murder as well in the soldier as in the officer cannot be doubted. If so, it seems impossible to suggest any other principle as to the effect of superior orders than the one mentioned in the text. It is indeed essential to the maintenance of the supremacy of the common law over military force.]

[believe in good faith, either that what they did was necessary to suppress a dangerous riot, or in the case of B, that A, or in the case of C, that B, had reasonable grounds to believe, and did believe, that the order given was necessary to suppress a dangerous riot. A's direction to B, and B's order to C, would not necessarily justify B or C in what they did, but would be facts relevant to the question whether they believed upon reasonable grounds as aforesaid.

1 ARTICLE 259.

CONSENT TO BODILY INJURY.

The consent of a person killed or maimed to the infliction of death or bodily harm, affects the criminality of such infliction to the extent defined in Articles 260-265, both inclusive. In each of these Articles the word "Consent" means a consent freely given by a rational and sober person so situated as to be able to form a rational opinion upon the matter to which he consents. Consent is said to be given freely when it is not procured by force, fraud, or threats of whatever nature.

2 ARTICLE 260.

RIGHT TO CONSENT TO BODILY INJURY FOR SURGICAL PURPOSES.

Every one has a right to consent to the infliction of any bodily injury in the nature of a surgical operation upon himself or upon any child under his care, and too young to exercise a reasonable discretion in such a matter, but such consent does not discharge the person performing the operation from the duties hereinafter defined in relation thereto.

1 S. D. Art. 203.

2 S. D. Art. 204.

[I know of no authority for these propositions, but I apprehend they require none. The existence of surgery as a profession assumes their truth.]

SURGICAL OPERATION ON PERSON INCAPABLE OF ASSENT.

[(SUBMITTED.) If a person is in such circumstances as to be incapable of giving consent to a surgical operation, or to the infliction of other bodily harm of a similar nature and for similar objects, it is not a crime to perform such operation or to inflict such bodily harm upon him without his consent or in spite of his resistance.

Illustrations.

(1.) A is rendered insensible by an accident which renders it necessary to amputate one of his limbs before he recovers his senses. The amputation of his limb without his consent is not an offence.

(2.) If the accident made him mad, the amputation in spite of his resistance would be no offence.

(3.) B is drowning and insensible. A, in order to save his life, pulls B out of the water with a hook which injures him. This is no offence.

3 ARTICLE 262.

RIGHT TO CONSENT TO BODILY INJURY SHORT OF MAIM.

4

Every one has a right to consent to the infliction upon himself of bodily harm not amounting to a maim. A maim is bodily harm whereby a man is deprived of the use of any member of his body or of any sense which he can use in fighting, or by the loss of which he is generally and permanently weakened, but a bodily injury is not a maim merely because it is a disfigurement.

Illustration.

(1.) It is a maim to strike out a front tooth. It is not a maim to cut off a man's nose. Castration is a maim.

1 S. D. Art. 205.

2 [Draft Code, s. 67.]

3 S. D. Art. 206.

[The positive part of this Article is proved thus:-Injuries short of maims are not criminal at common law unless they are assaults, but an assault is inconsistent with consent. As to the definition of a maim, see 1 Hawk. P. C. 107. He expressly mentions castration.]