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After which, the reckoning being paid, all the company, except the prisoner, went out of the room to go home; and he called to the deceased, saying, “Young man, come back; I have something to

say to you;" whereupon the deceased returned into the room, and the door was closed, and the rest of the company excluded ; but they heard a clashing of swords, and the prisoner gave the deceased the mortal wound. It was also found, that at the breaking up of the company the prisoner had his great coat thrown over his shoulders, and that he received three slight wounds in the fight; and that the deceased, being asked, upon his deathbed, whether he received his wound in a manner among sword men called fair, answered, "I think I did.” It was further found that, from the throwing of the bottle, there was no reconciliation between the prisoner and the deceased. Upon these facts all the Judges were of opinion that the prisoner was guilty of murder; he having acted upon malice and deliberation, and not from sudden passion. It should probably be taken, upon the facts found in the verdict and the argument of the Chief Justice, that, after the door had been shut, the parties were upon an equal footing in point of preparation before the fight began in which the mortal wound was given. The main point then on which the judgment turned, and so declared to be, was the evidence of express malice, after the interposition of the company, and the parties had all sat down again for an hour. Under those circumstances the court were of opinion that the prisoner had had reasonable time for cooling: after which, upon an offer of reconciliation from the deceased, he had made use of that bitter and deliberate expression, that he would have his blood. And again, the prisoner remaining in the room after the rest of the company retired, and calling back the deceased by the contemptuous appellation of young man, on pretence of having something to say to him, altogether shewed such strong proof of deliberation and coolness as precluded the presumption of passion having continued down to the time of the mortal stroke. Though even that would not have availed the prisoner under these circumstances: for it must have been implied, according to Mawgridge's case, that he acted upon malice; having in the first instance, before any provocation received, and without warning or giving time for preparation on the part of Mr. Gower, made a deadly assault upon him. (w)

If, after an interchange of blows on equal terms, one of the parties, on a sudden, and without any such intention at the commencement of the affray, snatches up a deadly weapon and kills the other party with it, such killing will be only manslaughter. But if a party, under colour of fighting upon equal terms, uses from the beginning of the contest a deadly weapon without the knowledge of the other party, and kills the other party with such weapon; or if, at the beginning of the contest, he prepares a deadly weapon, so as to have the power of using it in some part of the contest, and uses it accordingly in the course of the combat, and kills the other party with the weapon; the killing in both these cases will be murder. The prisoner and Levy quarrelled and went out to fight.

Use of a deadly weapon with previous intention.

(w) Rex v. Oneby, 2 Str. 766.2 Lord Raym. 1489.

After two rounds, which occupied little more than two minutes, Levy was found to be stabbed in a great many places; and of one of those stabs he almost instantly died. It appeared that nobody could have stabbed him but the prisoner; who had a clasped knife before the affray Bayley, J. told the jury, that if the prisoner used the knife privately from the beginning; or if before they began to fight he placed the knife so that he might use it during the affray, and used it accordingly, it was murder : but that if he took to the knife after the fight began, and without having placed it to be ready during the affray, it was only manslaughter. The jury found the prisoner guilty of murder. (a)

Though, where there has been an old quarrel between A. and B., Pretended or and a reconciliation between them, and afterwards, upon a new counterfeit reand sudden falling out, A. kills B., this is not murder; yet if upon the circumstances it appears that the reconciliation was but pretended or counterfeit, and that the hurt done was upon the score of the old malice, it is murder. (*)


Cases of Resistance to Officers of Justice, to Persons acting in

their aid, and to private Persons lawfully interfering to appre

hend Fetons, or prevent a Breach of the Peace. MINISTERS of justice, as bailiffs, constables, watehmen, &c. (y) Resisting and while in the execution of their offices, are under the peculiar pro- killing officers. tection of the law, a protection founded in wisdom and equity, and in every principle of political justice; for without it the public tranquillity cannot possibly be maintained, or private property secured; nor in the ordinary course of things will offenders of any kind be amenable to justice. For these reasons the killing of officers so employed has been deemed murder of malice prepense, as being an outrage wilfully committed in defiance of the justice of the kingdom. H, therefore, upon an affray, the constable, and others in his assistance, come to suppress the affray and preserve the peace, and in executing their office the constable or any of his assistants is killed, it is murder in law, although the murderer knew not the party that was killed, and although the affray was sudden, because the constable and his assistants came by authority of law to keep the peace, and prevent the danger which might ensne by the breach of it; and, therefore, the law will adjudge it murder, and that the murderer had malice prepense, because he set himself against the justice of the realm : so if the sheriff, or any of his bailiffs, or other officers, is killed in executing the process of the law, or in doing their duty, it is murder; the same is the law

(a) Rex v. Anderson, O. B. Decem- MS. Bayley, J. ber, 1816. Richards, B. and the Re- (3) i Hale 451. corder, thought the direction right. (y) i Hale 456, 460. Co. 40.

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as to a watchman who is killed in the execution of his office. (g)
This rule is not confined to the instant the officer is upon the spot,
and at the scene of action, engaged in the business that brought
him thither; for he is under the same protection of the law eundo,
morando, et redeundo: and therefore if he come to do his office,
and meeting with great opposition, retire, and be killed in the
retreat, this will amount to murder; as he went in obedience to
the law and in the execution of his office, and his retreat was ne-
cessary in order to avoid the danger by which he was threatened.
And, upon the same principle, if he meet with opposition by the
way, and be killed before he come to the place, such opposition
being intended to prevent his doing his duty, (which is a fact to
be collected from circumstances appearing in evidence,) this like-

wise will amount to murder. (2)
Persons acting The protection which the law affords to such ministers of jus-
in their aid.

tice is not, as we have seen, confined to their own persons. Every
one coming to their aid, and lending his assistance for the keeping
of the peace, or attending for that purpose, whether commanded
or not, is under the same protection as the officer himself. (a)
Nor is the protection which the law affords in these cases confined
to the ordinary ministers of justice, or their assistants. It extends,
under certain limitations, to the cases of private persons inter-
posing for preventing mischief from an affray, or using their en-
deavours to apprehend felons, or those who have given a dangerous
wound, and to bring them to justice; such persons being likewise
in the discharge of a duty required of them by the law. The law
is their warrant, and they may not improperly be considered as
persons engaged in the public service, and for the advancement of
justice, though without any special appointment; and being so
considered, they are under the same protection as the ordinary
ministers of justice. (b)

But with respect to private persons using their endeavours to
bring felons to justice, it should be observed, by way of caution,
that they must be careful to ascertain, in the first instance, that a
felony has actually been committed, and that it has been committed
by the person whom they would pursue and arrest. For if no
felony has been committed, no suspicion, however well founded,
will bring the person so interposing within this especial protection
of the law:(c) nor will it be extended to those who, where a felony
has actually been committed, upon suspicion, possibly well founded,
pursue or arrest the wrong person. (d) But the law is otherwise
in the case of an officer acting in pursuance of a warrant. For if
A., being a peace-officer, has a warrant from a proper magistrate
for the apprehending of B. by name, upon a charge of felony; or
if B. stands indicted for felony; or if the hue and cry is levied
against B. by name; in these cases if B., though innocent, fly, or
turn and resist, and in the struggle or pursuit is killed by A., or
any person joining in the hue and cry, the person so killing will


Private per

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(g) Cases of Appeals and Indictments, 4 Co. 40. As to the authority for acting, and the exercise of that authority in a proper inander, see post, Chap. iii. s. 4.

(2) Fost. 308, 309.
(a) i Hale 462, 463. Fost. 309.
(6) Fost. 309.
(c) Cro. Jac. 194. 2 Inst. 52, 172.
(d) I Hale 490. Fost. 318.

be indemnified; and, on the other hand, if A., or any person joining in the hue and cry, is killed by B., or any of his accomplices joining in that outrage, such killing will be murder : for A. and those joining with him were in this instance in the discharge of a duty required from them by the law; and, in case of their wilful neglect of it, subject to punishment. (e)

Upon these principles it may be laid down as a general rule, that General rule. where persons having authority to arrest or imprison, using the proper means for that purpose, are resisted in so doing, and killed, it will be murder in all who take a part in such resistance; for it is homicide committed in despite of the justice of the kingdom. This rule is laid down upon the supposition that resistance be made; and, upon that supposition, it is conceived that it will hold in all cases, whether civil or criminal; for under circumstances of resistance, in either case, the persons having authority to arrest or imprison may repel force by force, and will be justified if death should ensue in the struggle; while, on the other hand, the persons resisting will be guilty of murder. And it has been decided, that if in any quarrel, sudden or premeditated, a justice of peace, constable, or watchman, or even a private person, be slain in endeavouring to keep the peace and suppress the affray, he who kills him will be guilty of murder. (8) But in such case the person slain must have given notice of the purpose for which he came, by commanding the parties in the King's name to keep the peace, or by otherwise shewing that it was not his intention to take part in the quarrel, but to appease it; () unless, indeed, he were an officer within his proper district, and known, or generally acknowledged, to bear the office he had assumed. (i) As if A., B., and C., be in a tumult together, and D. the constable come to appease the affray, and A. knowing him to be the constable kill him, and B. and C. not knowing him to be the constable, come in, and finding A. and D. struggling, assist and abet A. in killing the constable, this is murder in A., but manslaughter in B. and C.(k) Where a constable interferes in an affray to keep the peace, and is killed, such of the persons concerned in killing him as knew him to be a constable are guilty of murder; and such as did not know it of manslaughter only. (a)

But it must be well remembered, that this protection of the law Questions as is extended only to persons who have authority to arrest or im- to authority, prison, and who use such authority in a proper manner; and that iugs, &c. questions of much nicety and difficulty will often arise upon the points of authority, legality of process, notice, and regularity of proceeding. The consideration of these points will be attempted in a subsequent part of the Work; for as the consequences of defects in any of these particulars will generally be to extenuate the crime of killing, and reduce it to manslaughter, the discussion of them will perhaps be better introduced in the Chapter relating to that species of homicide. (1)

(e) Fost. 318.

(i) i Hawk. P. C. c. 31, s. 49, 50. () Fost. 270, 271. 1 Hale 494. 3 (k) 1 Hale 438. Inst. 56. 2 Hale 117, 118.

(a) i Hale 446. (g) i Hawk. P. C. c. 31. s. 48, 54. (1) Post, Chap. iii. s. 4.

(h) Fost. 272. VOL. I.


the resistance.

As to persons With respect to the persons who shall be considered as taking
taking part in

a part in the resistance, it may be observed, that if the party who
is arrested yield himself and make no resistance, but others en-
deavour to rescue him, and he do no act to declare his joining
with them, if those who come to rescue him kill any of the bailiffs,
this is murder in them but not in the party arrested: but not so
if he do any act to countenance the violence of the rescuers. (m)
And where Jackson and four others, having committed a robbery,
were pursued by the country upon hue and cry, and Jackson
turned upon his pursuers, (others of the robbers being in the same
field, and having often resisted the pursuers,) and refusing to
yield, killed one of the pursuers; it was held, that inasmuch as all
the robbers were of a company and made a common resistance,
and so one animated the other, all those of the company of the
robbers that were in the same field, though at a distance from
Jackson, were principals, viz. present, aiding and abetting : and
it was also held, that one of the malefactors who was apprehended
a little before the party was hurt, being in custody when the
stroke was given, was not guilty, unless it could be proved that
after he was apprehended he had animated Jackson to kill the
party. (n)

If a man be arrested, and he and his company endeavour a
rescue, and, while they are fighting, one who knows nothing of the
arrest coming by act in aid of the party arrested, and one of the
bailiffs be killed, the person so acting in aid is guilty of murder ;
for a man must take the consequences of joining in any unlawful
act, such as fighting; and his ignorance will not excuse him
where the fact is made murder by the law without any


precedent malice, as in the case of killing an officer in the due execution of his office.(0) But it should be observed, that, in another report of the same case, it is said to have been resolved, that if a person, not knowing the cause of the struggle, had interposed between the bailiff and the party arrested, with intent to prevent mischief, it would not have been murder in such person, though the bailiff's assistant were killed by one of the rescuers : (p) and it should seem that, in a case of this kind, the material enquiry would be, whether the stranger interfered with the intention of preserving the peace and preventing mischief; for if he interposed for the express purpose of aiding one party against the other, he must abide the consequences at his peril. (9)

A. beat B., a constable who was in the execution of his office, and they were parted; and then C., a friend of A., rushed suddenly in, took up the quarrel, fell upon the constable, and killed him in the struggle ; but A. was not engaged in this after he was parted from B. And it was holdlen by two Judges, that this was murder only in C.; and A. was acquitted, because it was a sudden quarrel, and it did not appear that A. and C. came upon any design to abuse the constable. (r) But if a man begin a riot, and the same

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(m) Sir Charles Stanley's case, Kel. Andrews, 1 sid. 160. MS Burnet ac87.

cord as cited 1 East. P. C. c. 5. s. 63. (n) Jackson's case, 1 Hale 464, 465. p. 296. (0) Sir Charles Stanley's case, Kel. 87. (9) i East. P. C. c. 5. s. 83. p. 318. (p) Rex v. Sir Charles Stanslie and (r) By Holt, C. J., and Rooksby, at


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