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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 hin 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. i 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 ?" Aster 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 cominitted 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. 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 provocation as, if death had ensued, would have made the case manslaughter only, and that there the conviction was wrong. Holroyd, and Burrough, JJ., thought otherwise. Thomson's case, 1 Moody, C. C. 80 (a). So in the following case, (which was an indictment under the 43 Geo. 3, for cutting the prosecutor, who had assisted the constable), the charge upon wbich the constable and the prosecutor acted, was held to be not sufficient to justify the arrest. A person travelling on the highway told the constable that a man coming on the road had been ill-using him, and charged the constable, in the prisoner's hearing to take him before a magistrate for so mis-using him, on which the constable meeting the prisoner passing along the highway, ordered him to stop, for insulting a man on the road, and told him he was his prisoner, ordering the prosecutor to assist him. The prisoner being in custody, attempted to escape, but being pursued by the prosecutor, gave him the cut in the face, for which he was indicted and convicted. On a case reserved, the judges were of opinion that the original arrest was illegal, and that the recaption would also have been illegal; that the case would not have been murder if death had ensued, and that the prisoner was consequently entitled to an acquittal. Curvan's case, 1 Moody, C. C. 132 (b). But in order to justify the officer, the charge need not contain the same accurate description of the offence, as would be required in an indictment. Thus, where the prisoner was delivered into the custody of a constable, who was told that it was because he had a forged note in his possession, and the prisoner shot at, and wounded, the constable, and was thereupon indicted for that offence, it was held, on a reference to the judges, that the conviction was right. They were of opinion, that though the charge on which the prisoner was taken into custody, viz. the having a forged note in his possession, without more, was defective, still that defect was immaterial; that it was not necessary that the charge should contain the same accurate description of the offence as an indictment, and that it must be considered as imputing to the prisoner a guilty possession. Ford's case, Russ. and Ry. 329 (c).
At common law, both peace officers and private persons are justified, [ *691 ) without a warrant, in apprehending and detaining until they *can be carried before a magistrate, all persons found attempting to commit a felony. Hunt's case, 1 Moody, C. C. 93 (d).
So at common law, either a constable or a private person may interpose, without warrant, to prevent a breach of the peace, and if he be killed in endeavoring to part those whom he sees fighting, the person by whom he is killed is guilty of murder, and cannot excuse himself by alleging that what he did was in a sudden affray, in the heat of blood; for he who carries his resentment so high as not only to execute his revenge against those who have affronted him, but even against such as have no otherwise off led him, than by doing their duty, and endeavoring to restrain him by breaking through his, shows such an obstinate contempt of the law, that he is no more to be favored, than if he had acted in cool blood. Hawk. P. C. b. 1, c. 31, s. 48.
But whether a constable or other peace officer is warranted in arresting a person upon a charge by another, of a mere breach of the peace, after the affray is ended, without a special warrant from a magistrate, is a point which has occasioned some doubt. According to some authorities, the
(a) 2 Eng, C. C. 80. (b) Id. 132. (c) 1 Jd. 329. (d) 2 Id. 93.
officer may arrest the party on the charge of another, though the affray is over, for the purpose of bringing him before a justice, to find sécurity for his appearance. 2 Hale, P. C. 90.
2 Hale, P. C. 90. Hancock v. Sandham, Williams v. Dempsey, 1 East, P. C. 306: (n.) But the better opinion is said to be the other way. 1 East, P. C. 305; Hawk. b. 2, c. 12, s. 20; 2 Russell, 506. See Timothy v. Simpson, I C., M. and R. 757.
It seems, however, that if one person threatens to kill another, who complains to a constable, the latter may, in order to avoid the present danger, arrest the party, and detain him till he can conveniently bring him before a justice of the peace. 2 Hale, P. C. 83. This power is grounded on the duty of the officer, to prevent a probable felony, and must be governed by the same rules which apply to that case. 1 East, P. C. 306.
According to Lord Hale, a peace officer may arrest night-walkers, or persons unduly armed, who will not yield themselves, and if they fly or resist, and the officer, in endeavoring to arrest them, kills them, it is not felony, though the parties be innocent. 2 Hale, P. C. 85, 97. But unless there were a reasonable suspicion of felony in such a case, it may be a matter of doubt at this day, says Mr. East, whether so great a degree of severity would be either justifiable or necessary, especially in case of mere flight. 1 East, P. C. 303. In one case it was held that the apprehension of a person in the night, as a night-walker and disorderly person, though by a lawful officer, would be illegal, if the person arrested was innocent, and there were no reasonable grounds to mislead the officer. Tooley's case, 2 Lord Raym. 1301. And Lord Holt is reported to have said, that constables had made a practice of taking up people only for walking the streets, but he knew not whence they had such an authority. 2 Hale, P. C. 89, (note). In a late case of an action for false imprisonment, it appeared that the plaintiff was returning home late from a party, when a constable seized him as a disorderly *person, and carried him before the [*692 ] captain of the watch (the defendant), who, upon the information of the constable, sent him to the House of Correction till the following morning. The defendant justified under a local act, which gave power to apprehend all night-walkers, malefactors, and suspicious persons. · But Bayley, J., said this was no defence to the action ; that by night-walkers was meant such persons as are in the habit of being out at night for some wicked purpose, and that there was no evidence to show that the plaintiff was a malefactor or suspicious person.
Watson v. Carr, i Lewin, C.C. 6. It is said in one case that watchmen and beadles have power at common law to arrest and detain in prison, for examination, persons walking in the streets at night, where there is reasonable ground to suspect of felony, although there is no proof of a felony having been comınitted. Lawrence v. Hedger, 3 Taunt. 14. This case, however, does not appear to extend beyond the rule already laid down, that every peace officer has authority, upon a reasonable suspicion of felony, to arrest a party, whether by day or night. It is said by Hawkins, that it is held by some that any private person may lawfully arrest a suspicious night-walker, and detain him till it be made to appear that he is a person of good reputation; and also that it has been adjudged that any one may apprehend a common notorious cheat, going about the country with false dice, and being actully caught playing with them, in order to have him brought before a justice of the peace, Hawk. P. C. b. 2, c. 13, s. 20; and see the 5 Geo. 4, c. 83, s. 6, stated post. An officer is not justified in killing, to prevent an escape, where the