husband or father may justify killing a man who attempts a rape upon his wife or daughter; but not if he takes them in adultery by consent, for the one is forcible and felonious, but not the other. (b)(17) And I make no doubt but the forcibly attempting a crime of a still more detestable nature may be equally resisted by the death of the unnatural aggressor. For the one uniform principle that runs through our own and all other laws seems to be this, that where a crime, in itself capital, is endeavored to be committed by force, it is lawful to repel that force by the death of the party attempting. But we must not carry this doctrine to the same visionary length that Mr. Locke does, who holds (c) "that all manner of force without right upon a man's person puts him in a state of war with the aggressor; and, of consequence, that, being in such state of war, he may lawfully kill him that puts him under this unnatural restraint." However just this conclusion may be in a state of uncivilized nature, yet the law of England, like that of *182] every other *well-regulated community, is too tender of the public peace, too careful of the lives of the subjects, to adopt so contentious a system; nor will suffer with impunity any crime to be prevented by death, unless the same, if committed, would also be punished by death.(18) In these instances of justifiable homicide, it may be observed that the slayer is in no kind of fault whatsoever, not even in the minutest degree; and is therefore to be totally acquitted and discharged, with commendation rather than blame. But that is not quite the case in excusable homicide, the very name whereof imports some fault, some error or omission; so trivial, however, that the law excuses it from the guilt of felony, though in strictness it judges it deserving of some little degree of punishment. II. Excusable homicide is of two sorts; either per infortunium, by misadventure; or se defendendo, upon a principle of self-preservation. We will first see wherein these two species of homicide are distinct, and then wherein they agree. 1. Homicide per infortunium or misadventure is where a man, doing a lawful act without any intention of hurt, unfortunately kills another: as where a man is at work with a hatchet, and the head thereof flies off and kills a stander-by; or where a person qualified to keep a gun is shooting at a mark and undesignedly kills a man: (d) for the act is lawful, and the effect is merely accidental. (19) So where a parent is moderately correcting his child, (b) 1 Hal. P. C. 485, 486. (c) Ess. on Govt. p. 2 c. 5. (d) 1 Hawk. P. C. 73, 74. (17) If the adultery is by the consent of the wife, the husband taking the offender in the act and killing him, is guilty of manslaughter only. Kerr's Law of Homicide (1891) p. 12. A husband or brother would not be justified in killing a man who is attempting to seduce and debauch his wife or sister by fraudulent means and not by force. Clark's Crim. Law, p. 138. A woman who kills a man attempting to rape her may be said to kill him in self-defence, and there is no difference in principle between such a case and the case where a man, not himself in fault, kills one who is attempting to take his life. Clark's Crim. Law, p. 139. (18) If the rule stated by Blackstone were adopted, and defensive homicide were al lowed only to prevent a capital crime, it would not be allowed in any case in this state at the present time, except when necessary to prevent murder in the first degree. Such is not understood to be the law. Aldrich v. Wright, 53 N. H. 416 (1873). See Kerr's Law of Homicide (1891) p. 12, on homicide to prevent a crime. This view has been repudiated by later authorities. While all admit that the killing cannot be done from mere choice, it is none the less certain that the felony need not be a capital one to come within the scope of the rule. Storey v. The State, 71 Ala. 338, Tillman (1881). (19) If a person driving a carriage happen to kill another, if he saw or had timely notice of the mischief likely to ensue, and yet wilfully drove on, it will be murder; if he might have seen the danger, but did not look before him, it will be manslaughter; but a master his apprentice or scholar, or an officer punishing a criminal, and happens to occasion his death, it is only misadventure; for the act of correction is lawful; but if he exceeds the bounds of moderation, either in the manner, the instrument, or the quantity of punishment, and death ensues, it is manslaughter at least, and in some cases (according to the circumstances) murder; (e) for the act of immoderate correction is unlawful.(20) *Thus, by an edict of the emperor Constantine, (f) when the rigor [*183 of the Roman law with regard to slaves began to relax and soften, a master was allowed to chastise his slave with rods and imprisonment, and if death accidentally ensued, he was guilty of no crime; but if he struck him with a club or a stone, and thereby occasioned his death, or if in any other yet grosser manner, "immoderate suo jure utatur, tunc reus homicidii sit.”(21) But to proceed: A tilt or tournament, the martial diversion of our ancestors, was however an unlawful act: and so are boxing and sword-playing, the succeeding amusement of their posterity; and therefore if a knight in the former case, or a gladiator in the latter, be killed, such killing is felony or manslaughter. But if the king command or permit such diversion, it is said to be only misadventure; for then the act is lawful.(g) In the like manner as, by the laws both of Athens and Rome, he who killed another in the pancratium, or public games authorized or permitted by the state, was not held to be guilty of homicide. (h) Likewise to whip another's horse whereby he runs over a child and kills him, is held to be accidental in the rider, for he had done nothing unlawful; but manslaughter in the person who whipped him, for the act was a trespass, and at best a piece of idleness of inevitably dangerous consequence. (i)(22) And in general if death ensues in consequence of an idle, dangerous, and unlawful sport, as shooting or casting stones in a town, or the barbarous diversion of cock-throwing, in these and (e) 1 Hal. P. C. 473, 474. (f) Cod. l. 9. i. 14. (g) I Hal. P. C. 473. 1 Hawk. P. C. 74. (h) Plato, de LL. lib. 7. Ff. 9, 2, 7. if the accident happened in such a manner that no want of due care could be imputed to the driver, it will be accidental death and excusable homicide. I East, P. C. 263. Where, on a false alarm of thieves, the master of the house kill one of the family by mistake, who had concealed himself in a closet, this was holden homicide by misfortune. Cro. Car. 538. Where an unqualified person by accident shoots another in sporting, it is no greater offence than in a qualified person. I East, P. C. 260, 269.-CHITTY. To excuse a homicide on the ground of accident, the accused must have been engaged in a lawful act, and must have performed it with due care. Clark's Crim. Law, p. 148. See I Barbour's Crim. Law, p. 49, on homicide committed by accident and misfortune. Also. Wharton on Homicide, 367 et seq. (20) See Wharton's Crim. Law, io ed. vol. I, p. 375, on correction by persons in authority. Ibid. p. 376 et seq. vol. 1, on gradations of guilt in homicide. (21) ["He uses his right beyond the bounds of moderation, then he is guilty of homi cide."T (22) Whenever death is the consequence of idle, dangerous, and unlawful sports, or of heedless, wanton, and indiscreet acts, without a felonious intent, the party causing the death is guilty of manslaughter. As if a man rides an unruly horse among a crowd of people, (1 East, P. C. 231;) or throws a stone or shoots an arrow over a wall into a public and frequented street, (1 Hale, P. C. 475;) or discharges his pistols in a public street upon alighting from his carriage, (1 Stra. 481;) or throws a stone at a horse which strikes a man, (1 Hale, P. C. 39:) in any of these cases, though the party may be perfectly innocent of any mischievous intent, still, if death ensues, he is guilty of manslaughter. So, if the owner suffers to be at large any animal which he knows to be vicious and mischievous, and it kills a man, it has been thought by some that he may be indicted for manslaughter; but it is well agreed that he is guilty of a high misdemeanor, (2 Hawk. P. C. c. 13, 8;) and, in a very recent case of that kind, Best, C. J., laid it down as law "that if a person thinks proper to keep an animal of this description, [a bull,] knowing its vicious nature, and another person is killed by it, it will be manslaughter in the owner, if nothing more: 1581 BOOK IV. II. similar cases the slayer is guilty of manslaughter, and not misadventure only, for these are unlawful acts. (k) 2. Homicide in self-defence or se defendendo, (23) upon a sudden affray, is also excusable, rather than justifiable, by the English law. This species of self-defence must be distinguished from that just now mentioned as *184] calculated to *hinder the perpetration of a capital crime; which is not only a matter of excuse but of justification. But the self-defence which we are now speaking of is that whereby a man may protect himself from an assault or the like, in the course of a sudden broil or quarrel, by killing him who assaults him. And this is what the law expresses by the word chance-medley, or (as some rather choose to write it) chaud-medley, the former of which in its etymology signifies a casual affray, the latter an affray in the heat of blood or passion; both of them of pretty much the same import: but the former is in common speech too often erroneously applied to any manner of homicide or misadventure; whereas it appears, by the statute 24 Hen. VIII. c. 5, and our ancient books, (1) that it is properly applied to such killing as happens in self-defence upon a sudden rencounter. (m) This right of natural defence does not imply a right of attacking: for, instead of attacking one another for injuries past or impending, men need only have recourse to the proper tribunals of justice. They cannot therefore legally exercise this right of preventive defence but in sudden and violent cases, when certain and immediate suffering would be the consequence of waiting for the assistance of the law. Wherefore, to excuse homicide by the plea of self-defence, it must appear that the slayer had no other possible (or at least probable) means of escaping from his assailant. (24) It is frequently difficult to distinguish this species of homicide (upon chance-medley in self-defence) from that of manslaughter, in the proper legal (k) 1 Hawk. P. C. 74. 1 Hal. P. C. 472. Fost. 261. (1) Staundf. P. C. 16. (m) 3 Inst. 55, 57. Fost. 275, 276. at all events, it will be an aggravated species of manslaughter." Blackman v. Simmons, 3 C. & P. 140. If workmen, in the ordinary course of their business, throw rubbish from a house in a direction in which persons are likely to pass, and any one passing is killed, this is manslaughter. I East, P. C. 262. Killing a person in a prize-fight is manslaughter. Ward's case, 1 East, P. C. 270. As to what are lawful sports, see Pulton, title Riot.CHITTY. Contributory negligence is no defence to the charge of homicide when such negligence was the result of the defendant's misconduct, as where the defendant causes another, under influence of fright, to run into a river, from which drowning ensues, or where defendant, under like conditions, causes another to leave the house, who, as a result, freezes to death in the fields. Wharton's Crim. Law, vol. I, p. 184, et seq. Although A. may die of a broken heart, caused by the unkindness of B., B. is not on this ground indictable for killing A., as the law has no way of determining the relation of cause and effect in matters purely psychological. Wharton's Crim. Law, vol. 1, p. 184. (23) State v. Kennedy, 91 N. C. 577 (1884). In the case of homicide in self defence, the danger must reasonably appear to be imminent, the person taking life must believe the danger to be imminent; and he must have retreated as far as safety would allow, except that a man is not bound to retreat when attacked in his own habitation, and as a rule he must not have been the aggressor and provoked the difficulty himself. Clark's Crim. Law, p.. 149, et seq. When a person is attacked in his own house he need retreat no farther. When a felonious attack on the house or its inmates is threatened, attack may be resisted by taking life, but this right is only one of prevention and defence. Wharton on Homicide, p. 445; 450, et seq., on right of a person to take life in the defence of his own house, and see Byrd v. Commonwealth, 89 Va. 539 (1893). (24) The general principle seems to be this:-If a man is attacked in such a manner that there is no possibility of his escaping without killing his assailant, he is justified in doing so, after having done his utmost to retreat. Fost. 278. Kel. 128. But no assault, however violent, will justify killing the assailant under the plea of necessity unless there is a clear manifestation of a felonious intent. I East, P. C. 277. I Russell, 551. And [*185 sense of the word. (n) But the true criterion between them seems to be this: when both parties are actually combating at the time when the mortal stroke is given, the slayer is then guilty of manslaughter: but if the slayer has not begun the fight, or (having begun) endeavors to decline any further struggle, and afterwards, being closely pressed by his antagonist, kills him to avoid his own destruction, this is homicide excusable by self-defence. (0) For which reason the law requires that the person who kills another in his own defence *should have retreated as far as he conveniently or safely can, to avoid the violence of the assault, before he turns upon his assailant; and that not factitiously, or in order to watch his opportunity, but from a real tenderness of shedding his brother's blood. And though it may be cowardice, in time of war between two independent nations, to flee from an enemy, yet between two fellow-subjects the law countenances no such point of honor, because the king and his courts are the vindices injuriarum,(25) and will give to the party wronged all the satisfaction he deserves.(p) In this the civil law also agrees with ours, or perhaps goes rather further: "qui cum aliter tueri se non possunt, damni culpam dederint, innoxii sunt." (q)(26) The party assaulted must therefore flee as far as he conveniently can, either by reason of some wall, ditch, or other impediment, or as far as the fierceness of the assault will permit him, (r) for it may be so fierce as not to allow him to yield a step without manifest danger of his life or enormous bodily harm, and then in his defence he may kill his assailant instantly. And this is the doctrine of universal justice(s) as well as of the municipal law. (27) And as the manner of the defence, so is also the time to be considered; for, if the person assaulted does not fall upon the aggressor till the affray is over, or when he is running away, this is revenge, and not defence. Neither, under the color of self-defence, will the law permit a man to screen himself from the guilt of deliberate murder; for if two persons, A. and B., agree to fight a duel, and A. gives the first onset, and B. retreats as far as he safely can and then kills A., this is murder, because of the previous malice and concerted design.(t)(28) But if A., upon a sudden quarrel, assaults B. first, (n) 3 Inst. 55. (0) Fost. 277. (p) 1 Hal. P. C. 481, 483. (q) FJ. 9, 2, 45. (r) 1 Hal. P. C. 483. an officer who kills one who resists him in the execution of his office, and even a private person that kills one who feloniously assaults him in the highway, may justify the fact without retreating at all. 1 Hawk. P. C. c. 29, s. 16. 1 Hale, P. C. 41. 3 Inst. 56. Crom. 28, a.-CHITTY. (25) [Avenger of injuries.] (26) ["Those who, when they cannot otherwise defend themselves, kill their adversary, are held innocent."] (27) The distinction between homicide excusable by self-defence and manslaughter is, that in the former case the slayer could not otherwise escape, although he would, while in the latter case he would not escape if he could. Wharton on Homicide, pp. 384, 385. A man who believes his life is in danger by another must if possible apply to the proper authorities for protection, and where this can be done, will not be excused in taking the law into his own hands. Ibid. p. 386 et seq., for full discussion of this principle. A party cannot avail himself of the right of self-defence, if the necessity for its exercise is brought on by his deliberate and lawless acts for the purpose of taking life. Anthony Law of Self-Defence, p. 16. Anthony Law of Self-Defence, p. 16, on necessity as a defence for taking life. Also Archbold Criminal Practice and Pleading, p. 684. Storey v. The State, 71 Ala. 337. Tillman (1881) on circumstances under which life may be taken in self-defence. Pond v. The People. 8 Mich. 176 (1860). The State v. Cable, 117 Mo. (1893) 385 et seq. Wiggins v. People etc. in Utah, 93 U. S. 478 (1876). 1 Wharton Crim. Law, 450 et seq. (28) If the meeting to fight be intentional no subsequent hot blood will be a defence. Wharton on Homicide, p. 361 et seq. I Archbold Crim. Practice and Pleading, p. 834. and upon B.'s returning the assault, A. really and bona fide(29) flees, and, being driven to the wall, turns again upon B. and kills him, this may *186] be se defendendo(30) according to some of our writers, (u) *though others(w) have thought this opinion too favorable, inasmuch as the necessity to which he is at last reduced originally arose from his own fault. Under this excuse of self-defence the principal civil and natural relations are comprehended: therefore master and servant, parent and child, husband and wife, killing an assailant in the necessary defence of each other respectively, are excused; the act of the relation assisting being construed the same as the act of the party himself. (x) There is one species of homicide se defendendo where the party slain is equally innocent as he who occasions his death; and yet this homicide is also excusable, from the great universal principle of self-preservation which prompts every man to save his own life preferably to that of another, where one of them must inevitably perish. As, among others, in that case mentioned by lord Bacon, (y) where two persons, being shipwrecked, and getting on the same plank, but finding it not able to save them both, one of them thrusts the other from it, whereby he is drowned. He who thus preserves his own life at the expense of another man's is excusable through unavoidable necessity and the principle of self-defence, since their both remaining on the same weak plank is a mutual though innocent attempt upon and an endangering of each other's life. (31) Let us next take a view of those circumstances wherein these two species of homicide by misadventure and self-defence agree; and those are in their blame and punishment. For the law sets so high a value upon the life of a man that it always intends some misbehavior in the person who takes it away, unless by the command or express permission of the law. In the case of misadventure it presumes negligence, or at least a want of sufficient caution, in him who was so unfortunate as to commit it, who therefore is not altogether faultless.(z) And as to the necessity which excuses a *187] man who kills another se defendendo, (32) lord Bacon (a) entitles it necessitas culpabilis, (33) and thereby distinguishes it from the former necessity of killing a thief or a malefactor. For the law intends that the quarrel or assault arose from some unknown wrong, or some provocation either in word or deed; and since, in quarrels, both parties may be, and usually are, in some fault, and it scarce can be tried who was originally in the wrong, the law will not hold the survivor entirely guiltless. But it is clear, in the other case, that where I kill a thief that breaks into my house, the original default can never be upon my side. The law, besides, may have a further view: to make the crime of homicide more odious, and to caution men how they venture to kill another upon their own private judgment, by ordaining that he who slays his neighbor, without an express warrant from the law so to do, shall in no case be absolutely free from guilt. Nor is the law of England singular in this respect. Even the slaughter of enemies required a solemn purgation among the Jews; which implies that the death of a man, however it happens, will leave some stain behind it. (u) 1 Hal. P. C. 428. (w) 1 Hawk. P. C. 75. (x) 1 Hal. P. C. 448. (y) Elem. c. 5. See also 1 Hawk. P. C. 78. (2) 1 Hawk. P. C. 72. (a) Elem. c. 5. And (29) [In good faith.] (30) [In self-defence.] (31) Kerr Law of Homicide (1891) 222 et seq., on homicide from necessity. (32) [In self-defence.] (33) [Culpable necessity.] |