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the deceased came by, and not concealed from the by-standers; though the deceased in his passion did not perceive it till they were both down; and, though the prisoner was not justifiable in using such a weapon on such an occasion, yet, it being already in his hand, and the attack upon him very violent and sudden, they thought it only amounted to manslaughter, and he was recommended for a pardon. Snow's case, 1 East, P. C. 244, 245.

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Not only will the premeditated use of deadly weapons, in cases of mutual combat, render the homicide murder, but the combat itself may be of such a nature as to make it murder, if death ensue. The *pris- [*685] oner was indicted for manslaughter, and the evidence was, that he and the deceased were "fighting up and down," a brutal and savage practise in the north of England. Bayley, J., said to the jury, Fighting up and down' is calculated to produce death, and the foot is an instrument likely to produce death. If death happens in a fight of this description, it is murder, and not manslaughter. The prisoner being convicted, Bayley, J., told him, that had he been charged with murder, the evidence adduced would have sustained the indictment. Thorpe's case, I Lewin, C. C. 171. See Murphy's case, 6 C. and P. 103 (a), ante, p. 660.

In order to bring the case within the rule relating to mutual combats, so as to lessen the crime to manslaughter, it must appear that no undue advantage was sought or taken on either side. Foster, 295. To save the party making the first assault upon an insufficient legal provocation, from the guilt of murder, the occasion must not only be sudden, but the party assaulted must be upon an equal footing, in point of defence at least, at the outset ; and this is peculiarly requisite, where the attack is made with deadly or dangerous weapons. 1 East, P. C. 242. Where persons fight on fair terms, says Mr. Justice Bayley," and merely with fists, where life is not likely to be at hazard, and the blows passing between them are not likely to occasion death, if death ensues, it is manslaughter; and if persons meet originally on fair terms, and after an interval, blows having been given, a party draws, in the heat of blood, a deadly instrument, and inflicts a deadly injury, it is manslaughter only. But if a party enters into a contest dangerously armed, and fights under an unfair advantage, though mutual blows pass, it is not manslaughter, but murder. Whiteley's case, 1 Lewin, C. C. 173.

The lapse of time, also, which has taken place between the origin of the quarrel, and the actual contest, is in these cases a subject of great consideration, as in the following instance. The prisoner was indicted for the wilful murder of William Harrington. It appeared that the prisoner and the deceased, who had been for three or four years upon terms of intimacy, had been drinking together at a public-house, on the night of the 27th of February, till about twelve o'clock; that about one, they were together in the street, when they had some words, and a scuffle ensued, during which the deceased struck the prisoner in the face with his fist, and gave him a black eye. The prisoner called for the police, and on a police-man coming, went away. He however returned again, between five and ten minutes afterwards, and stabbed the deceased with a knife on the left side of the abdomen. The prisoner's father proved that the knife, a common bread and cheese knife, was one which the prisoner was in the habit of carrying

(a) Eng. Com. L. Rep. xxv. 301.

about with him, and that he was rather weak in his intellects, but not so much so as not to know right from wrong. Lord Tenterden, in summing up, said, It is not every slight provocation, even by a blow, which will, when the party receiving it strikes with a deadly weapon, reduce the crime from murder to manslaughter. But it depends upon the time [*686] *elapsing between the blow and the injury; and also, whether the injury was inflicted with an instrument at the moment in the possession of the party, or whether he went to fetch it from another place. It is uncertain, in this case, how long the prisoner was absent. The witness says from five to ten minutes, according to the best of his knowledge. Unless attention is particularly called to it, it seems to me that evidence of time is very uncertain. The prisoner may have been absent less than five minutes. There is no evidence that he went any where for the knife. The father says that it was a knife he carried about with him, it was a common knife, such as a man in the prisoner's situation in life might have; for ought that appears, he might have gone a little way from the deceased, and then returned, still smarting under the blow he had received. You will also take into consideration the previous habits and connection of the deceased and the prisoner with respect to each other. If there had been any old grudge between them, then the crime which the prisoner committed might be murder. But it seems they had been long in habits of intimacy, and on the very night in question, about an hour before the blow, they had been drinking in a friendly way together. If you think that there was not time and interval sufficient for the passion of a man, proved to be of no very strong intellect, to cool, and for reason to regain her dominion over his mind, then you will say that the prisoner is guilty only of manslaughter. But if you think that the act was the act of a wicked, malicious, and diabolical mind, (which, under the circumstances, I should think you hardly would,) then you will find him guilty of murder. The jury found the prisoner guilty of manslaughter. Lynch's case, 5 C. and P. 324 (a).

In cases of mutual combat, evidence is frequently given of old quarrels between the parties, for the purpose of showing that the person killing acted from malice towards the deceased, but it is not in every case of an old grudge, that the jury will be justified in finding malice. Thus, where two persons who have formerly fought in malice, are afterwards to all appearance reconciled, and fight again on a fresh quarrel, it shall not be presumed that they were moved by the old grudge; Hawk. P. C. b. 1, c. 31, s. 30; unless it appear that the reconciliation was pretended only. 1 Hale, P. C. 452. If, says Lord Hale, A. sues B., or threatens to sue him, this alone is not sufficient evidence of malice prepense, though possibly they meet and fall out and fight, and one kills the other, if it happens upon sudden provocation; but this may by circumstances be heightened into malice prepense, as if A., without any other provocation, strikes B. upon account of that difference in law, or lies in wait to kill him, or comes with a resolution to strike or kill him. 1 Hale, P. C. 451.

Proof of malice-cases of mutual combat-duelling.] Deliberate duelling, if death ensues, is in the eye of the law murder; for duels are generally founded in deep revenge. And though a person should be drawn

(a) Eng. Com. L. Rep xxiv. 341.

into a duel, not on a motive so criminal, but merely upon the punctilio of what the swordsmen falsely call honor, that will not excuse him. For he that deliberately seeks the blood of another, in a private quarrel, acts in defiance of all laws, human and divine, whatever his motive may be. But if upon a sudden quarrel the parties fight on the spot, or if they presently fetch their weapons, and go into the field and fight, and one of them falls, it will be only manslaughter, because it may be presumed that the blood never cooled. It will however, be otherwise, if they appoint to fight the next day, or even upon the same day, at such an interval, as that the passion might have subsided, or if from any circumstance attending the case, it may be reasonably concluded that their judgment had actually controlled the first transport of passion before they engaged. The same rule will hold, if after a quarrel they fall into other discourse or diversions, and continue so engaged a reasonable time for cooling. Foster, 297. It seems agreed, says Mr. Hawkins, that wherever two persons in cool blood meet, and fight on a precedent quarrel, and one of them is killed, the other is guilty of murder, and cannot help himself by alleging that he was first struck by the deceased, and that he had often declined to meet him, but was prevailed upon by his importunity, or that it was his intention only to vindicate his reputation, or that he meant not to kill, but only to disarm his adversary, for since he deliberately engaged in an act highly unlawful, he must at his peril abide the consequences. Hawk. P. C. b. 1, c. 31, s. 21.

It is said by Lord Hale, that if A. and B. meet deliberately to fight, and A. strikes B., and pursues him so closely, that B. in safeguard of his own life kills A., this is murder in B., because their meeting was a compact, and an act of deliberation, and therefore all that follows thereupon is presumed to be done in pursuance thereof, and thus is Dalton (cap. 92, p. 241,) to be understood. 1 Hale, P. C, 452. But yet, quære, adds Lord Hale, whether if B. had really and bona fide declined to fight, ran away as far as he could, (suppose it half a mile,) and offered to yield, yet A. refusing to decline it, had attempted his death, and B. after all this kills A. in self-defence, whether it excuses him from murder? But if the running away were only a pretence to save his own life, but was really designed to draw out A. to kill him, it is murder. Ibid. Blackstone has noticed this doubt, but has given no opinion upon the subject; 4 Com. 185; but Mr. East has argued at some length in support of the proposition, that such homicide will not amount to murder, on the ground that B., by retreating, expressly renounces the illegal combat, and gives reasonable grounds for inducing a belief that he no longer seeks to hurt his opponent, and that the right of self-defence ought not therefore to be withheld from him. 1 East, P. C. 285. But if B. does not retreat voluntarily, but is driven to retreat by A., in such case the killing would be murder. Thus it is said by Hawkins, that if a man assault another with malice prepense, and after be driven by him to the wall, and kill him there, . in his own defence, he is guilty of murder in respect of his first intent. Hawk. P. C. b. 1, c. 31, s. 26.

*In cases of deliberate duelling, in which death ensues, [688] not only is the principal who inflicts the wound guilty of murder, but also the second, and it has been doubted whether the second of the party killed is not also guilty of the same offence. For the latter position Lord Hale cites the book of 22 Edw. 3, Coron, 262, but he adds, that he

thinks the law was too much strained in that case, and that though a great misdemeanor, it is not murder. 1 Hale, P. C. 442.

The prisoners were indicted for the murder of Charles Flower Mirfin, who was killed in a duel by a Mr. Elliott. Neither of the prisoners acted as a second on the occasion, but there was evidence to show that they and two other persons, went to the ground in company with Mr. Elliott, and that they were present when the fatal shot was fired. Vaughan, B., told the jury," When upon a previous arrangement, and after there has been time for the blood to cool, two persons meet with deadly weapons, and one of them is killed, the party who occasions the death is guilty of murder; and the seconds also are equally guilty. The question then is, did the prisoners give their aid and assistance by their countenance and encouragement of the principals in this contest ?" After observing that neither prisoner had acted as a second, the learned judge continued. "If, however, either of them sustained the principal by his advice or presence; or you think he went down for the purpose of encouraging and forwarding the unlawful conflict, although he did not say or do any thing, yet if he was present and was assisting and encouraging at the moment when the pistol was fired, he will be guilty of the offence imputed by this indictment." The prisoners were found guilty. Young's case, 8 C. and P. 644 (a).

Proof of malice-peace officers and others killed in performing their duty-what persons are within the rule.] The protection is not confined to the person of the officer only. Every one lending his assistance to an officer of the peace, for the keeping of the peace, whether commanded to do so or not, is under the same protection as the officer. Foster, 309; 1 Hale, P. C. 463.

Nor is the protection confined to the ordinary ministers of justice or their assistants. It extends, with some limitations, to private persons interposing to prevent mischief in case of an affray, or endeavoring to apprehend felons, or persons who have given a dangerous wound, and bring them to justice. For those persons are discharging a duty required of them by law. Foster, 309. But in the case of private persons endeavoring to bring felons to justice, this caution must be observed-viz. that a felony has been actually committed, for if not, no suspicion, however well founded, will bring the person so interposing within the protection of the law; and supposing a felony to have been actually committed, and the party interposing to arrest a wrong person, he will not be entitled to protection. Foster, 318.

There is a distincton between this case and that of a peace officer, who has a warrant against a particular person by name, though that per[*689 ] son may happen to be innocent of the offence with which he is charged. If A., being a peace officer, has a warrant from a proper magistrate for apprehending B. by name, upon a charge of felony, or if B. stands indicted for felony, or if the hue and cry be levied against B. by name, in these cases, if B., though innocent, flies, or turns and resists, and in the struggle or pursuit is killed by A., or any person joining in the hue and cry, the person so killing will be indemnified. And on the other hand, if A. or any other person joining in the hue and cry is killed by B.,

(a) Eng. Com. L. Rep. xxxiv. 564.

or any of his accomplices joining in that outrage, it will be murder. For A. and those joining with him were in this instance in the discharge of a duty the law requires from them, and subject to punishment, in case of a wilful neglect of it. Foster, 318.

Proof of malice-peace officers killed, or killing others in performance of their duty-their authority.] It will be convenient to consider the evidence relating to the conduct of peace officers in the execution of their duty, under the following heads:-1, their authority or warrant; 2, what notice of their authority is required; 3, the mode of executing their authority; and 4, the mode, where an officer is killed, in which that killing was effected.

With regard to the authority of a peace officer, and those assisting him, they are justified in apprehending, without any warrant, all persons who have committed a felony, or have been indicted for felony, and if in the pursuit, the felon be killed, where he cannot be otherwise overtaken, the homicide is justifiable. 1 East, P. C. 298, 300. So a peace officer may justify an arrest on a charge of felony, on reasonable suspicion, although it should afterwards appear that no felony has been committed. Samuel v. Payne, Dougl. 359; 1 East, P. C. 301. The constable, it is observed by Lord Hale, cannot judge whether the party be guilty or not, till he come to his trial, which cannot be till he be apprehended, which he thinks a sufficient reason for justifying him in killing the party accused, if he fly from the arrest, and cannot otherwise be taken, however innocent he may afterwards appear to have been. 2 Hale, P. C. 84, 89, 93; 1 East, P. C. 301. All that can in reason be required of the peace officer is, that he should inform himself, as well as he can, of the circumstances, and that the relation of the party who gave him information, should appear credible. 1 East, P. C. 302. But in order to justify a peace officer in making an arrest, upon suspicion of felony, on the charge of another, it must appear that the party arrested was charged with felony. The prisoner having quarrelled with his master about wages, the latter threatened to send for a constable. The prisoner went up stairs for his tools, and said no constable should stop him, and coming down, he drew from his sleeve a naked knife, saying 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, and making a flourishing motion with his knife, he put it in his sleeve again, and left the shop. The master then applied to a constable, but made no charge, only saying he suspected the prisoner had tools of his, and was *leaving his work undone. The constable told him [ *690 ] he would take him, if the master would give him in charge, upon which the master took the constable to the place in which the prisoner was, (a privy) and said "That is the man, I give you in charge of him." The constable then said to the prisoner, "My good fellow, your master gives you in charge to me, you must go with me." The prisoner, without speaking, stabbed the constable with a knife under the left breast, and attempted to make three other blows. Being indicted for maliciously stabbing the constable, and convicted, a case was reserved for the opinion of the judges, the majority of whom held, that as the actual arrest would have been illegal, an 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 prov

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