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was of opinion that he and his assistants were guilty of an assault, and a verdict was found accordingly. Anon. 1 East, P. C. 305.

A peace officer is to be considered as acting strictly in discharge *of his duty, not only while executing the process entrusted to [ *696] him, but likewise while he is coming to perform, and returning from the performance of his duty. He is under the protection of the law, eundo, morando, et redeundo. And, therefore, if coming to perform his office he meets with great opposition and retires, and in the retreat is killed, this will amount to murder. Foster, 308; 1 Hale, P. C. 463. Upon the same principle, if he meets with opposition by the way, and is killed before he comes to the place, (such opposition being intended to prevent his performing his duty, a fact to be collected from the evidence,) it will also amount to murder. Foster, 309.

The authority of a constable or other peace officer, ceases with the limits of his district, and if he attempts to execute process out of the jurisdiction of the court or magistrate by whose orders he acts, and is killed, it is only manslaughter, as in the case of void process. 1 Hale, P. C. 458; 1 East, P. C. 314. So where a bailiff attempted to execute a writ without a non omittas clause, within an exclusive liberty, Holroyd, J., held him a trespasser, and the defendant who had wounded him in resisting, and who was indicted for maliciously cutting, with intent, &c., was acquitted. Mead's case, 2 Stark. N. P. Č. 205 (a).

But if the warrant be directed to a particular constable by name, and it is executed by him within the jurisdiction of the court or magistrate issuing the same, although it be out of the constable's vill, that is sufficient. 1 East, P. C. 314; Hawk. P. C. b. 2, c. 13, s. 27. By the 5 Geo. 4, c. 18, reciting, that warrants addressed to constables, &c., of parishes, &c., in their character of, and as constables, &c., of such respective parishes, &c., cannot be lawfully executed by them out of the precincts thereof respectively, it is enacted, "that it shall be lawful to and for each and every constable, and to and for each and every headborough, tithing-man, borsholder, or other peace officer, for every parish, township, hamlet, or place, to execute any warrant or warrants of any justice or justices of the peace, or of any magistrate or magistrates, within any parish, hamlet, township or place, situate, lying, or being within that jurisdiction for which such justice or justices, magistrate or magistrates, shall have acted when granting such warrant or warrants, or when backing or indorsing any such warrant or warrants, in such and the like manner, as if such warrant or warrants had been addressed to such constable, headborough, tithing-man, borsholder, or other peace officer, specially, by his name, or names, notwithstanding the parish, township, hamlet, or place, in which such warrant or warrants shall be executed, shall not be the parish, township, hamlet, or place, for which he shall be constable, headborough, tithing-man, or borsholder, or other peace officer, provided that the same be within the jurisdiction of the justice or justices, magistrate or magistrates, so granting such warrant or warrants, or within the jurisdiction of the justice or justices, magistrate or magistrates, by whom any such warrant or warrants shall be backed or indorsed."

In general where it becomes necessary, in order to show the *character of the offence, to prove that the deceased, or the prose- [*697]

(a) Eng. Com. L. Rep. iii. 315.

cutor, or other person was a constable, it will be sufficient to prove that he acted in that character, which will be prima facie evidence of his regular appointment, without its production. Vide ante, p. 7, 16.

Where it becomes necessary to show the warrant or writ upon which a constable or other officer has acted, it is sufficient to produce the warrant or writ itself, without proving the judgment or decree upon which it is founded. Foster, 311, 312; 1 East, P. C. 310. But it is not sufficient to prove the sheriff's warrant to the officer, without producing the writ of capias, &c., upon which it issued. Mead's case, 2 Stark. N. P. C. 205 (a); 2 Stark. Ev. 518, 2d ed. Where it is requisite to prove that the party was acting under an authority derived from the articles of war, a copy of the articles, printed by the King's printer, must be produced. In several instances, prisoners have been acquitted on a charge of murder for want of such evidence. 2 Stark. Ev. 519, 2d ed.

Proof of malice-peace officers killed or killing others in performance of their duty—their authority-regularity of process.] Where a peace officer, or other person, having the execution of process, cannot justify without a reliance on such process, it must appear that it is legal (1). But by this, it is only to be understood that the process, whether by writ or warrant, be not defective in the frame of it, and issue, in the ordinary course of justice, from a court or magistrate having jurisdiction in the case. Though there may have been error or irregularity in the proceedings previous to the issuing of the process, yet if the sheriff or other minister of justice be killed in the execution of it, it will be murder; for the officer to whom it is directed must, at his peril, pay obedience to it; and therefore, if a ca. sa. or other writ of the kind issue, directed to the sheriff, and he or any of his officers be killed in the execution of it, it is sufficient, upon an indictment for the murder, to produce the writ or warrant, without showing the judgment or decree. Rogers's case, Foster, 312. So in case of a warrant obtained from a magistrate by gross imposition, and false information touching the matters suggested in it. Curtis' case, Foster, 135, 311. So though the warrant itself be not in strictness lawful, as if it express not the cause particularly enough, yet, if the matter be within the jurisdiction of the party granting the warrant, the killing of the officer in the execution of his duty is murder; for he cannot dispute the validity of the warrant, if it be under the seal of the justice, &c. 1 Hale, P. C. 460. In all kinds of process, both civil and criminal, the falsity of the charge contained in such process, that is, the injustice of the demand in the one case, or the party's innocence in the other, will afford no matter of alleviation for killing the officer; for every man is bound to submit himself to the regular course of justice. 1 East, P. C. 310; 1 Hale, P. C. 457.

But if the process be defective in the frame of it, as if there be a mis[*698] take in the name or addition of the party, or if the name of *the party or of the officer be inserted without authority, and after the issuing of the process, and the officer in attempting to execute it be killed, this is only manslaughter in the party whose liberty is invaded. Foster, 312; 1 East, P. C. 310. The prisoner, who had been arrested and rescued,

(1) Comm. v. Drew & al., 4 Mass. 391.

(a) Eng. Com. L. Rep. iii. 315.

declared that if Welsh, the officer, attempted to arrest him again, he would shoot him. A writ of rescue was made out and carried to the office of Mr. Deacle, who acted for the under-sheriff of the county, to have the warrants made out. The under-sheriff's custom was to deliver to Deacle, sometimes blank warrants, sometimes blank pieces of paper, under the seal of the office, to be afterwards filled up as occasion should require. Deacle made out a warrant against the prisoner on one of these blank pieces of paper, and delivered it to Welsh, who inserted therein the names of two other persons, on the 12th of July. In executing this warrant, one of these persons, in getting into the house to assist in the arrest, was shot by the prisoner. Upon a reference to the judges, they certified that the offence in point of law amounted only to manslaughter. Stockley's case, 1 East, P. C. 310. So where the name of another sheriff's officer was inserted in a sheriff's warrant, after it had been signed and sealed, the arrest by the substituted officer was held illegal. Stevenson's

case, 19 St. Tr. 846. But where the name of an officer is inserted, before the warrant is sent out of the sheriff's office, it seems the arrest will not be illegal, on the ground that the warrant was sealed before the name of the officer was inserted. 1 Russell, 513. Thus, where the names of two officers were interlined in a writ of possession, after it was sealed, but before it left the sheriff's office, and in executing it one of the officers was wounded, the party wounding having been indicted under 43 Geo. 3, c. 58, and convicted, the judges held the conviction right. Harris' case, 1 Russell, 513. But where a magistrate kept a number of blank warrants ready signed, and on being applied to, filled up one of them and delivered it to an officer, who in attempting to make the arrest was killed, it was held that this was murder in the party killing. Per Lord Kenyon, R. v. Inhab. of Winwick, 8 T. R. 454.

Under this head, it may properly be considered how far any defect in the frame of the process, or any other illegality in the arrest, will be a defence to a third person interfering to prevent it, and killing the officer in so doing (1). The question is put by Mr. East in this form. How far the mere view of a person under arrest, or about to be arrested, supposing it to be illegal, is of itself such a provocation to a by-stander, as will extenuate his guilt in killing the officer, in order to set the party free, or prevent the arrest? In the following case it was held, by seven of the judges against five, that it was such a provocation. One Bray, constable of St. Margaret's, Westminster, came into St. Paul's, Covent Garden, and without warrant took up one Ann Dekins, as a disorderly person, though she was innocent. The prisoners, strangers to Dekins, meeting her in Bray's custody, drew their swords, and assaulted Bray to rescue her; but on his showing his staff, and declaring he was about the Queen's *business, they put up their swords, and he carried her to the [*699 ] round-house in Covent Garden. Soon afterwards the prisoners drew their swords, and assaulted Bray, in order to get the woman discharged. Whereupon Bray called Dent to his assistance, to keep the woman in custody, and to defend himself from the violence of the prisoners, when one of the prisoners, before any stroke received, gave Dent a mortal wound. All the judges, except one, agreed that Bray acted without any authority; but that one thought showing his staff was sufficient, and that

(1) Comm. v. Drew & al., 4 Mass. 391.

with respect to the prisoners, he was to be considered as a constable de facto. But the main point upon which they differed was, whether the illegal imprisonment of a stranger was, under these circumstances, a sufficient provocation to by-standers; or, in the language of Lord Holt, a provocation to all the subjects of England. Five judges held the case to be murder, and thought that it would have been a sufficient provocation to a relation or a friend, but not to a stranger. The other seven judges, who held it to be manslaughter, thought that there was no ground for making such a distinction, and that it was a provocation to all, whether strangers or others, so as to reduce the offence to manslaughter, it being a sudden action, without any precedent malice or apparent design of doing hurt, but only to prevent the imprisonment of the woman, and to rescue one who was unlawfully restrained of her liberty. Tooley's case, 2 Lord Raym. 1296; 1 East, P. C. 325. The resolution of the seven judges in this case has been commented upon with much force by Mr. Justice Foster. The prisoners, he observes, upon the first meeting, drew their swords upon the constables, who were unarmed, but put them up, appearing, on cool reflection, to be pacified. At the second meeting the constable received his death-wound, before any blow given or offered by him or his party; that there was no pretence of a rescue; for, before the second encounter, the woman had been lodged in the round-house, which the soldiers could not hope to force; so that the second assault upon the constable seemed rather to be grounded upon resentment, or a principle of revenge for what had passed, than upon any hope to rescue the woman. He concludes with expressing an opinion, that the doctrine advanced in this case is utterly inconsistent with the known rules of law, touching a sudden provocation in the case of homicide, and, which is of more importance, inconsistent with the principles upon which all civil government is founded, and must subsist. Foster, 314, 315; 1 East, P. C. 326. In a recent case also, upon Tooley's case being cited, Alderson, J., observed that it had been overruled. Warner's case, 1 Moody, C. C. 388 (a).

The majority of the judges in the preceding case, appear to have grounded their opinion upon two former decisions. The first of these is thus stated by Kelyng. Berry and two others pressed a man without authority. The man quietly submitted, and went along with them. The prisoner, with three others, seeing them, instantly pursued them, and required to see their warrant; on which Berry showed them a paper, which [*700] the prisoner and his companions *said was no warrant, and immediately drawing their swords to rescue the impressed man, thrust at Berry. On this, Berry and his two companions drew their swords, and a fight ensued, in which Hugget killed Berry. Hugget's case, Kel. 59. Lord Hale's report of this case is more brief. A press-master seized B. for a soldier, and with the assistance of C. laid hold on him; D. finding fault with the rudeness of C., there grew a quarrel between them, and D. killed C. By the advice of all the judges, except very few, it was ruled that this was but manslaughter. 1 Hale, P. C. 465. The judges were, however, divided in opinion, four holding that it was murder, eight that it was manslaughter. Foster, 314. Mr. Justice Foster is inclined to rest the authority of this case upon the ground of its having been a sudden

(a) 2 Eng. C. C. 388,

quarrel and affray, causing a combat between the prisoner and the assistant of the press-master; and he observes, that Hale, who, at the conference, concurred in the opinion of those who held it to be manslaughter only, says nothing touching the provocation which an act of oppression towards individuals might be supposed to give to the by-standers. He admits, however, that the case, as reported in Kelyng, does indeed turn upon the illegality of the trespass, and the provocation such an act of oppression may be presumed to give to every man, be he stranger or friend, out of mere compassion, to attempt a rescue. Foster, 314. The other case, referred to in Tooley's case, was that of Sir Henry Ferrers. Sir Henry Ferrers being arrested for debt upon an illegal warrant, his servant, in attempting to rescue him, as was pretended, killed the officer. But, upon the evidence, it appeared that Sir H. Ferrers, upon the arrest, obeyed, and was put into a house before the fighting between the officer and his servant, and the servant was acquitted of the murder and manslaughter. Sir H. Ferrers's case, Cro. Car. 371. Upon this case, Mr. Justice Foster observes, that from the report it does not appear upon what provocation the quarrel and affray began, and that it is highly propable that no rescue was thought of or attempted. Foster, 313.

This doctrine underwent some discussion in a later case. The prisoner was tried at the Old Bailey, for the murder of an assistant to a constable, who had come to arrest a man named Farmello, (with whom the prisoner cohabited,) as a disorderly person, under 19 Geo. 2, c. 10. Farmello, though not an object of the act, made no resistance, but the prisoner immediately, on the constable and his assistant requiring Farmello to go along with them, without any request to desist, and without speaking, stabbed the assistant. Hotham, B., said it was a very different case from what it would have been if the blow had been given by Farmello himself. If he, when the constable entered the room with an insufficient warrant, had immediately, in his own defence, rather than suffer himself to be arrested, done the deed, the homicide would have been lessened to the crime of manslaughter. The offence also might have been of a different complexion in the eye of the law, if the prisoner had been the lawful wife of Farmello; but standing in the light she did, she was to be considered an absolute stranger to him, a mere stander-by, a person who [ *701 ] had no right whatever to be in any degree concerned for him. Thus, being a stranger, and having, before any person had been touched, and when the officers had only required Farmello to go with them, and without saying a word to prevent the intended arrest, stabbed the assistant, she was guilty of murder. He then adverted to Hugget's case, and Tooley's case, (supra,) and observed, that the circumstances there were extremely different from those of the present case. Mr. Justice Gould, and Mr. Justice Ashurst, concurred in this opinion; but it was thought fit that the jury should find a special verdict, as the case was one of great importance. A special verdict was accordingly found, and the case was subsequently argued before ten of the judges, but no judgment was given, the prisoner either being discharged, or having made her escape from prison, during the riots in 1780. It is said, that the judges held the case to be manslaughter only. Adey's case, 1 Leach, 206; 1 East, P. C. 329, (n.)

Although it is intimated by Lord Hale, as well as by Hotham, B., in the preceding case, that a distinction may exist between the case of ser

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