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left to the jury to decide whether the death was the direct result of the wound. This seems to be another case of interference with the province of the jury. Again, it is plain that a surgeon's skill has very much to do with the recovery of the injured person (q).

(q) v. R. v. Holland, 2 M. & R. 351.

CHAPTER I.

HOMICIDE.

HOMICIDE the destroying of the life of a human being Homicide. -includes acts varying from those which imply no guilt at all to those which constitute the greatest crime and meet with the extreme punishment of the law. Three kinds of homicide are usually distinguished, each class admitting of subdivision:

Justifiable: Excusable: Felonious.

be felonious.

It may be stated at the outset that if the mere fact Presumed to of the homicide is proved, the law presumes the malice which is necessary to make it felonious; and, therefore, it lies on the accused to shew that it was justifiable or excusable.

homicide.

Justifiable Homicide, that is, where no guilt, nor Justifiable even fault, attaches to the slayer. For one species of homicide the term "justifiable" seems almost too weak, inasmuch as not only is the deed justifiable, but also obligatory. Three cases of justifiable homicide are recognized :

a criminal.

i. Where the proper officer executes a criminal in Execution of strict conformity with his legal sentence. A person other than the proper officer (ie., the sheriff or his deputy) who performs the part of an executioner is guilty of murder. The criminal must have been found guilty by a competent tribunal; so that it would be murder otherwise to kill the greatest of malefactors. The sentence must have been legally given; that is, by a court or judge who has authority to deal with

Homicide by one resisted in

of his duty.

the crime. If judgment of death is given by a judge who has not authority, and the accused is executed, the judge is guilty of murder. The sentence must be strictly carried out by the officer (ie., the sentence as it stands after the remission of any part which the sovereign thinks fit), so that if he beheads a criminal whose sentence is hanging or vice versa, he is guilty of murder. Though the sovereign may remit a part of the sentence, he may not change it.

The two following instances of justifiable homicide are permitted by the law as necessary; and the first, at least, as for the advancement of public justice.

ii. Where an officer of justice, or other person acting the execution in his aid, in the legal exercise of a particular duty, kills a person who resists or prevents him from executing it. Homicide is justifiable on this ground in the following cases (r): (a) When a peace officer or his assistant, in the due execution of his office, whether in a civil or criminal case, kills one who is resisting his arrest or attempt to arrest. (b) When the prisoners in gaol, or going to gaol, assault the gaoler or officer, and he, in his defence, to prevent an escape, kills any of them. (c) When an officer, or private person, having legal authority to arrest, attempts to do so, and the other flies, and is killed in the pursuit. But here the ground of the arrest must be either a felony, or the infliction of a dangerous wound. (d) When an officer, in endeavouring to disperse the mob in a riot or rebellious assembly, kills one or more of them, he not being able otherwise to suppress the riot. this case the homicide is justifiable both at common law and by the Riot Act (s).

In

In all these cases, however, it must be shewn that the killing was apparently a necessity.

(r) v. 4 Bl 179.

(8) I Geo. I, st. 2, c. 5.

But it is not difficult to instance cases in which the officer would be guilty, (a) of murder, for example, if the killing in pursuit as above were in case of one charged with a misdemeanor only, or of one required merely in a civil suit (t); (b) of manslaughter, for example, if the killing in case of one so charged with a misdemeanor were occasioned by means not likely to kill, as by tripping up the fugitive's heels.

iii. When the homicide is committed in prevention of Homicide in the prevention a forcible and atrocious crime. Such crimes, it is said, of crime. are the following:- Attempting to rob or murder another in or near the highway, or in a dwelling-house; or attempting burglariously to break a dwellinghouse in the night-time. In such cases, not only the owner, his servants and members of his family, but also any strangers present, are justified in killing the assailant. But this justification does not apply to felonies without force, e.g., pocket-picking; nor to misdemeanors of any kind.

A woman is justified in killing one who attempts to ravish her; and so, too, the husband or father may kill a man who attempts a rape on his wife or daughter, if she do not consent. And even 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.

It is said that the party whose person or property is attacked is not obliged to retreat, as in other cases of self-defence, but he may even pursue the assailant until he finds himself or his property out of danger (u). But this will not justify a person firing upon every one who forcibly enters his house, even at night. He ought not to proceed to the last extremity until he has taken

(t) v. R. v. Dadson, 20 L. J. (M.C.) 57.
(u) Fost. 273; 1 Hawk. c. 28, ss. 21, 24.

Excusable homicide.

all other possible steps. In fact, the conduct of the other must be such as to render it necessary on the part of the one killing to do the act in self-defence (v). This brings us very near to the line which separates justifiable from excusable homicide; in fact, it is difficult to distinguish between this and excusable homicide se defendendo. It may be questioned whether the distinction between justifiable and excusable is a substantial one; whether the cases under the former are not extreme cases of se defendendo.

Excusable Homicide.-We have just intimated that there is little if any ground for the distinction between justifiable and excusable homicide. Perhaps there may be something in this, that in the former case the killer is engaged in an act which the law enjoins or allows positively, while in the latter he is about something which the law negatively does not prohibit (w). In neither case is there the malice which is an essential of a crime. In former times, a very substantial difference was made between the two kinds of homicide. That styled "excusable" did not imply that the party was altogether excused; so much so that Coke says (x) that the penalty was death. But the earliest information which the records supply shews that the defendant was entitled to a complete pardon, and the restitution of his goods; but he had to pay a sum of money to procure this award. Now it is expressly declared by statute (y) that no forfeiture or punishment shall be incurred by any person who kills another by misfortune or in self-defence, or in any other manner without felony.

(v) R. v. Bull, 9 C. & P. 22.

(w) The reason usually given is that in both the forms of excusable homicide there may be some degree of blame attributable. In the first case, i.e., self-defence, inasmuch as in quarrels usually both parties are to some extent in fault; in the second, i.e., accident, the party may not have used sufficient caution. But to visit the act under all circumstances with the punishments due to what may have happened is obviously unjust. (a) 2 Inst. 148, 315.

(y) 24 & 25 Vict. c. 100, s. 7, re-enacting 9 Geo. 4, c. 31, s. 10.

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