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the case seems more properly to be one of those mentioned by Lord Hale, (n) where the ignorance of the fact excuses the party from all sort of blame.(0) 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. (p)

Questions will also sometimes arise as to the apparency of the Apparency of intent in one of the parties to commit such felony as will justify the other in killing him. Mawgridge, on words of anger, threw a Mawgridge's bottle with great force at the head of Mr. Cope, and immediately case. drew his sword, upon which Mr. Cope returned a bottle with equal violence:9) 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. (r) 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 being in possession of Ford's case. 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. (s) 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. (t) But no assault, however violent, will justify killing Unless a felothe assailant under the plea of necessity, unless there be a plain nious intent manifestation of a felonious intent. (u) And it may be further be manifested, observed, that a man cannot, in any case, justify killing another by however vioa pretence of necessity, unless he were wholly without fault in lent, will not bringing that necessity upon himself; for, if he kill any person in iustify killing defence of an injury done by himself, he is guilty of manslaughter the necessity at least : as in the case where a body of people wrongfully detained must not be a house by force, and killed one of those who attacked it, and en- himself by the deavoured to set it on fire. (W)

party killing. Mr. Justice 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 (n) i Hale 42.

used by Mr. Justice Foster in citing (o) i East. P. C. c. 5. s. 46. p. 274, it, were probably made on the ground

of the reason suggested in the margin (p) i Hawk. P. C. c. 28. s. 27. of Kelyng for the judgment, namely, (9) Mawgridge's case, Kel. 128, 129, that the killing by Mr. Ford in deAnte, 445.

fence of his own possession of the room (r) By Lord Holt, Kel. 128, 129. was justifiable, which, under those cir(s) Ford's case, Kel. 51.

cumstances, might be fairly questionEast. P. C. c. 5. s. 47. p. 276.; ed: as, on that ground, it might and see 1 East. P. C. c. 5. s. 25. p. have been better ruled to be man243. where Ford's case is observed slaughter. upon; and it is said that the memo. (u) 1 East. P. C. c. 5. S. randum, in the margin of elyog to (w) I Hawk. P. C. c. 28. s. 22. 1 inquire of this case, and the quære Hale 405, 440, 441.

275.

47. P.

277.

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 lawfûl and necessary action. (3) Interference

Where a known felony is attempted upon any one, not only the by third per- party assaulted may repel force by force, but his servant attending vent felonies. him, or any other person present, may interpose to prevent the

mischief; and if death ensue, the party so interposing will be justified. (y) 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. (z) Interference

But, in cases of mutual combats or sudden affrays, a person inby third per- terfering should act with much caution. Where, indeed, a person sons in cases interferes between two combatants with a view to preserve the of mutual combats and peace, and not to take part with either, giving due notice of his affrays. 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 : (a) 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 jus

tifiable homicide, but manslaughter. (6) Time within It should be observed, that as homicide committed in the prewhich homi- vention of forcible and atrocious crimes is justifiable only upon cide will be justifiable.

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 se-
cured, and when the apprehension of danger has ceased, such kill-
ing will be murder: though perhaps, if the blood were still hot
from the contest or pursuit, it might be held to be only man-
slaughter, on account of the high provocation. (c)
(x) 9 Ann. c. 16. Fost. 275.

(a) i Hale 484. 1 East, P. C. c. 5. (y) i Hale 481, 484. Fost. 274. S. 58. p. 290. · And in Handcock v. Baker and others, (6) i East. P. C. c. 5. s. 58. p. 291. 2 Bos. & Pul. 265. Chambre, J. said, Ante, 499 ; and see also ante, Book “ It is lawful for a private person to II. Chap. xxvi. Of Affrays, p. 270. “ do any thing to prevent the perpe- (c) i East. P. C. c. 5. s. 60. p. 293. “ tration of a felony."

4 Blac. Com. 185. i Hale 485. (2) Fost. 274.

CHAPTER THE FIFTH.

OF DESTROYING INFANTS IN THE MOTHER'S WOMB.

43 G. 3. c. 58.

66

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 misdemeanour at Common law:(b) and a statute has lately been passed, by which certain acts, intended to procure the miscarriage of a woman with child, are made highly penal.

The 43 Geo. 3. c. 58. s. 1., after reciting that certain heinous offences, with intent to procure the miscarriage of women, had s. 1. adminisbeen of late frequently committed, and that no adequate means tering, poison, had been provided for their prevention and punishment, enacts, tent to cause that if any person or persons shall, either in England or Ireland, the miscar“ wilfully, maliciously, and unlawfully, administer to, or cause to riage of a wo, “ be administered to, or taken by any of his majesty's subjects, child, felony

any deadly poison, or other noxious and destructive substance withoutclergy. “ or thing, with intent such his majesty's subject or subjects “ thereby to murder, or thereby to cause and procure the mis

carriage of any woman then being quick with child,” the person or persons so offending, their counsellors, aiders, and abettors, knowing of and privy to such offence, shall be felons, and shall suffer death, as in cases of felony, without benefit of clergy.

Upon an indictment on this section of the statute, the woman, The words in point of fact, was in the fourth month of her pregnancy: but “ quick with she swore that she had not felt the child move within her before child” are to

be construed taking the medicine, and that she was not then quick with child.

according to The medical men, in their examinations, differed as to the time the common when the fætus may be stated to be quick, and to have a distinct understand-, existence : but they all agreed, that, in common understanding, a they signify woman is not considered to be quick with child till she has felt that the wothe child alive and quick within her, which happens with different the child move women in different stages of pregnancy, although most usually within her.

A

(a) Ante, 424.

meanor at common law in 3 Chit. (6) See a precedent of an indict- Crim. Law, 798. procured from the ment for this offence as a misde- Crown Office, Mich. T. 42 Geo. 3.

about the fifteenth or sixteenth week after conception. And Lawrence, J. said, that this was the interpretation that must be put upon the words, "quick with child,” in the statute ; and, as the woman had not fest the child alive within her before taking the

medicine, he directed the jury to acquit the prisoner. (c) 43 Geo. 3. c. The second section of the statute recites that it might some58. is deriuad times happen that poison or some other noxious and destructive medicines, &c. substance or thing might be given, or other means used, with into women not tent to procure miscarriage or abortion, where the woman might Child, with in- not be quick with child at the time, or it might not be proved that tent to pro

she was quick with child : and enacts, "that if any person or percure miscar

sons shall wilfully and maliciously administer to, or cause to be riage, felony, punishable by

“ , , imprisonment, “ or other substance or thing whatsoever, or shall use or employ, &c. whipping or cause or procure to be used or employed, any instrument or or transporta « other means whatsoever, with intent thereby to cause or procure teen years.

“ the miscarriage of any woman not being, or not being proved to “ be, quick with child at the time of administering such things, or “ using such means, that then and in every such case, the person “ or persons so offending, their counsellors, aiders, and abettors, “knowing of and privy to such offence, shall be and are hereby “ declared to be guilty of felony, and shall be liable to be fined, “ imprisoned, set in and upon the pillory, publicly or privately

whipped, or to suffer one or more of the said punishments, or to “ be transported beyond the seas, for any term not exceeding “ fourteen years, at the discretion of the court, before which such “offender shall be tried and convicted.”(d) It is observable, that the using an instrument, &c. with intent to procure a miscarriage, thus made a felony within clergy, is not noticed in the former section of the statute, which relates to the procuring the miscarriage

of a woman being quick with child. An infusion An indictment upon this section of the statute charged the prior decoction

soner with having administered to a woman a decoction of a certain of a shrub are ejusdem gene

shrub called savin ; and it appeared upon the evidence that the ris. The ques- prisoner prepared the medicine which he administered, by pouring tion upon the

boiling water on the leaves of a shrub. The medical men who second section of the statute were examined stated, that such a preparation is called an infusion, is whether any and not a decoction, (which is made by boiling the substance in matter or thing the water) upon which the prisoner's counsel insisted that he was tered to pro

entitled to an acquittal, on the ground that the medicine was miscure abortion. described. 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. (e) And it is not In the same case, witnesses having been called on behalf of the necessary,

prisoner to prove that the shrub he used was not savin, the counsel upon an in

(c) Rex v. Phillips, Monmouth Sum. 75. And upon an indictment for Ass. 1812. cor. Lawrence, J. 3 Campb. murder, if the death be laid to have

been by one sort of poison, and it turn (d) The punishment of the pillory out to have been by another, the difis now taken away, by the 56 Geo. 3. ference will not be material. Ante,

(e) Rex v. Phillips, 3 Campb. 74,

77.

c. 138.

467.

for the prosecution insisted that he might, notwithstanding, be dictment on found guilty upon the last count of the indictment, which charged this section of that he administered a large quantity“ of a certain mixture, to the charging the “jurors unknown, then and there being a noxious and destructive prisoner with thing.The prisoner's counsel objected that, unless the shrub having ad, was savin, there was no evidence that the mixture was “noxious "a certain

“ mixture, “ and destructive.” Lawrence, J. held, that in an indictment on

“ to the jurors this clause of the statute, it was improper to introduce these unknown, words; and that though they had been introduced, it was not ne- " then and cessary to prove them. And he further said, “it is immaterial there being

a noxious 6 whether the shrub was sayin or not, or whether or not it was “and de“ capable of procuring abortion, or even whether the woman was "structive “ actually with child. If the prisoner believed, at the time, that

“ thing," to " it would procure abortion, and administered it with that intent, mixture was “ the case is within the statute, and he is guilty of the offence noxious or “ laid to his charge.(f)

destructive,

or even that (f) Rex v. Phillips, 3 Campb. 76. the young woman an innocent draught was with child. The prisoner had previously been tried for the purpose of amusing her, as she upon the first section of the statute, had threatened to destroy herself, unfor the capital charge, and acquitted. less enabled to conceal' her shame ; See ante, 553. Upon this second in- and the jury returned a verdict of dictment he urged that he had given Not guilty.

prove that the

the woman

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