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duced 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 Blow intended or accident falling upon another and killing him, will amount to for one indivimurder ;() so if a blow intended against A. and lighting on B. on another. 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 quarrel arose between some soldiers and a number of keelmen Brown's case: 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. 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 tine 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.(b)

SECT. IV.

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. (c) But this protection of the law is extended only to persons who. (y) 1 East. P.C. c. 5. s. 58. p. 292. (6) Brown's case, 1 Leach 148.. 1.

East. P. C. c.5. s. 27. p. 245, 246. (a) Fost. 262.

(c) Ante, 449.

453.

have proper authority, and who use that authority in a proper manner; (d) 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 wbich

have met with judicial decision. Authority of

The authority to arrest and imprison is greater in cases of officers and others to ar

felony than in matters of mere misdemeanor; and least of all in rest and im- civil suits. prison in cases of felony.

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 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.(e) Thus where, upon a robbery committed by several, the party robbed raised hue and 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 authorised 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. (f) Authority of

But where private persons use their endeavours to bring felons private persons to arrest to justice, some cautions ought to be observed. In the first place, &c. in cases of it should be ascertained that a felony has actually been committed, felony.

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.(g) 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 endeavouring 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, 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

(d) Fost. 319.

muel v. Payne, Dougl. 359. And in (e) i Hale 489, 490. 1 Hawk. P. C. Coxe v. Wirrall, Cro. Jac. 194, it was c. 28. s. 11. Fost. 309. 1 East. P.C. holden, that, without a fact, suspic. 5. S. 67. p. 298.

cion is do cause of arrest; and 8 Ed. (f) Jackson's case, 1 Hale 464. 4. 3. 5 Hen. 7. 5. 7 Hen. 4. 35. are ante, 450.

cited. (g) 2 Inst. 52, 172. Fost. 318. Sa

diligence to be apprised of the truth of the fact, the other not having submitted and rendered himself to justice.(h)

In a late case where Headley, being called up in the night by Or attempts to one of his servants, found that his stable had been attempted, and commit felony. 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.(2)

These distinctions between officers and private persons proceed Distinctions upon the principle of discouraging persons from proceeding to between the extremities upon their own private suspicion or authority. And authority

of upon this principle, it appears to have been considered, that a private perprivate person is not bound to arrest any one standing indicted sons. for felony, against whom no warrant can be produced at the time; and, therefore, the law does not hold out the same indemnity to such person, as it does to constables and other peace officers, who are ex officio not merely permitted, but enjoined by law, to arrest the parties, as well on probable suspicion of felony, as in case of felony actually committed ; and who may therefore well arrest upon the finding of the fact by the grand inquest on oath, which is suspicion grounded on high authority.(i) In this case, however, it might perhaps be well contended, that a person arresting another with the knowledge of the indictment having been found, cannot be properly considered as acting upon his own private suspicion or authority; and ought, therefore, to have the same protection as the officers of justice. And it seems agreed, that the indictment found is a good cause of arrest by private persons, if it

may be made without the death of the felon: (k) but it is said, that, if he be killed, their justification must depend upon the fact of the party's guilt, which it will be incumbent on them to make out; otherwise, they will be guilty of manslaughter.(I) (h) i Hale 490. Fost. 318.

only can take notice of a charge on (®) Rex v. Hunt, East. T. 1825. Ry, record, 1 East. P.C. c.5. s. 68. p. 300. and Mood. Cr. C. 93. Post, Book III. (k) Dalt, c. 170. S. 5. I East. P.C. Chap. x.

c. 5. s. 68. p. 301. (i) 2 Hale 84, 85, 87, 91, 93. sed (1) 2 Hale 83, 92.; and see 1 East. vide 1 Hale 489, 490. Hawkins, in al- P. C. c. 5. s. 68. p. 301, where it is luding to the power of arrest by offi- said, that if the fact of the guilt of cers in this case, gives as a reason that the party be necessary for their comthere is a charge against the party on plete justification, it is conceived, that record. I Hawk, P, C. c. 28. s. 12. the bill of indictment found by the But upon this, it is remarked, that it grand jury would, for that purpose, does not readily occur, why officers be primâ facie evidence of the fact.

Ford's

's case, Arrest on charge of felony imperfectly expressed.

Even in the case of a constable, it was formerly supposed to be necessary, that there should have been a felony committed in fact, which the constable must have ascertained at his peril: but it has since been determined, that a peace officer may justify an arrest on a charge of felony, on reasonable cause of suspicion, without a warrant; although it should afterwards appear that no felony had been committed.(m) And where a private person suspecting another of felony, has laid his grounds of suspicion before a constable, and required his assistance to take him, the constable may justify killing the party, if he fly, and cannot otherwise be taken, though in truth he were innocent. But in such case, where no hue and cry is levied, the party suspecting ought to be present, as the justification must be that the constable did aid him in taking the party suspected: and the constable ought to be informed of the grounds of suspicion, that he may judge of the reasonableness of it.(n)

In a late case it was held, that killing an officer will amount to murder, though he has no warrant, and was not present when any felony was committed, but takes the party upon a charge only; and though such charge does not in terms specify all the particulars necessary to constitute the felony. And it appears, from the same case, that it will be no excuse for killing an officer that such officer was proceeding to handcuff the party who was in his custody upon a charge of felony. The prisoner had produced a forged bank note; and from his conduct at the time, which justified a suspicion that he knew it to be forged, he was apprehended and carried to a constable, and delivered with the note to the constable; and the charge to the constable was “because he had a forged note in his possession.” After he had been in custody at the constable's some hours, namely, from six o'clock in the evening until eleven, the constable was handcuffing him to another man, when he pulled out a pistol and shot the constable. The constable was not killed, but the prisoner was indicted upon the 43 Geo. 3. c. 58.; and it was urged on his behalf that the charge imported no legal offence, for unless he knew the note to be forged he was no felon; and if the charge was insufficient, the arrest was illegal; and killing the officer (if that had taken place) would have been only manslaughter. But the prisoner having been convicted, and the case reserved for the consideration of the Judges, they were all of opinion that this defect in the charge was immaterial; that it was not necessary for such a charge to contain the same accurate description of the offence as would be required in an indictment; and that the charge in question must have been considered as imputing to the prisoner a guilty possession.(a)

In this case there was not only reasonable suspicion of a felony having been committed, but the charge naturally implied the particulars necessary to constitute felony, though they were not specified in terms. But in a recent case, where an arrest by a constable would have been clearly illegal; an attempt to make it under the circumstances was held to be such a provocation as

(m) Samue! v. Payne, Dougl. 359. (a) Rex v. Ford, East. T. 1817. MS.

(n) 2 Hale 79, 80, 91, 92, 93. 3 Inst. Bayley, J., and Russ. & Ry. 329. 221. 1 East. P. C. c. 5. s. 69. p. 301.

Thompson's
case,
Illegal arrest.

would have reduced the case 10 manslaughter if death had ensued. The indictment was for stabbing and cutting with intent to murder upon the same statute 43 Geo. 3. c. 58. On the trial it appeared that the prisoner, a journeyman shoemaker, applied to his master for some money, which was refused until he should have finished his work; that he applied again subsequently, was again refused, and became abusive, upon which his master threatened to send for a constable. The prisoner then refused to finish his work; and said that he would go up stairs and pack up his tools, and that no constable should stop him. He went up stairs, came down again with his tools, and drawing from the sleeve of his coat a naked knife, said he would do for the first bloody constable that offered to stop him; that he was ready to die, and would have a life before he lost his own. He then made a flourishing motion with the knife, put it up his sleeve again, and left the shop. The master then applied to a constable to take the prisoner into custody; making no charge further than saying that he suspected the prisoner had tools of his, and was leaving his work undone. The constable said he would take him if the master would give charge of him; and they proceeded together to the yard of an inn, where they found the prisoner in a public privy, as if he had occasion there; the privy had no door to it. The master said, “ that is the man, and I give you in charge of him;" upon which the constable said to the prisoner, “My good fellow, your master gives me charge of you, you must go with me."

with me.” The prisoner, without saying any thing, presented the knife, and stabbed the constable under the left breast; and attempted to make several other blows which the constable parried off with his staff. The constable then aimed a blow at the prisoner's head, upon which he ran away with the knife. The knife had struck against one of the constable's ribs and glanced off: if it had struck two inches lower, death would have ensued; but the wound as it happened was not considered dangerous.

The prisoner having been found guilty, sentence of death was passed upon him: but the learned judge (Mr. Baron Garrow) respited the execution, and submitted the case to the opinion of the Judges; all of whom (except Best, C. J., and Alexander, C. B., who were absent) met and took it into consideration. The majority, namely, Abbott, C. J., Graham, B., Bayley, J., Park, J., Garrow, B., Flullock, B., Littledale, J., and Gaselee, J., held that as an actual arrest would have been illegal, the attempt to make it when the prisoner was in such a situation that he could not get away, and when the waiting to give notice might have enabled the constable to complete the arrest, was such a provocation as, if death had ensued, would have made the case manslaughter only; and that therefore the conviction was wrong. Holroyd, J., and Burrough, J., thought otherwise.(b)

A constable, or other known conservator of the peace, may law- Authority to fully interpose upon his own view to prevent a breach of the peace, prison in cases and to quiet an affray; and if he or any of his assistants, whether of misdemeacommanded or not, be killed, it will be murder in all who take nors.

(6) Rex v. Thompson, Hil. T. 1825, 1 Ry. and Mood. 80.

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