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vants and friends, and that of a mere stranger, yet it must be confessed, says Mr. East, that the limits between both are no where accurately defined. And after all, the nearer or more remote connection of the parties with each other, seems more a matter of observation to the jury, as to the probable force of the provocation, and the motive which induced the interference of a third person, than as furnishing any precise rule of law, grounded on such distinction. 1 East, P. C. 292; 1 Russell, 500.

Proof of malice-cases of peace officers killed, or killing others, in the performance of their duty-notice of their authority.] With regard to persons who, in the right of their offices, are conservators of the peace, and in that right alone interfere in the case of riots and affrays, it is necessary, in order to make the offence of killing them amount to murder, that the parties -killing them should have some notice with what intent they interpose, otherwise the persons engaged may, in the heat and bustle of an affray, imagine that they came to take a partin it. But in these cases, a small matter will amount to a due notification. It is sufficient if the peace be commanded, or the officer in any other manner declare with what intent he interposes. And if the officer be within his proper district, and known or generally acknowledged to bear the office which he assumes, the law will presume that the party killing had due notice of his intent, especially if it be in the day-time. In the night, some further notification is necessary; and commanding the peace, or using words of the like import, notifying his buisness, will be sufficient. Foster, 310.

A bailiff or constable, sworn in at the leet, is presumed to be known to all the inhabitants or residents who are bound to attend at the leet, and are consquently bound to take notice that he is a constable; 1 Hale, P. C. 461; and in such case, the officer, in making the arrest, is not bound [ *702 ] to show the warrant. Id. 459. But *if the constable be appointed in some other way, from which the notoriety of his character could not be presumed, some other circumstances would be required to found the persumption of knowledge. And in the night-time, some notification would be necessary in the case of a leet constable. But whether in the day or night-time, it is sufficient if he declares himself to be the constable, or commands the peace in the king's name. 1 Hale, P. C. 461. Where a man, assisting two serjeants-at-mace in the execution of an escape warrant, had been killed, a point was reserved for the opinion of the judges, whether or not sufficient notice of the character in which the constables came had been given. It appeared that the officers went to the shop, where the party against whom they had the warrant, and the prisoner, who was with him, were; and calling out to the former, informed him that they had an escape warrant against him, and required him to surrender, otherwise they should break open the door. In proceeding to do so, the prisoner killed one of the serjeant's assistants. Nine of the judges were of opinion that no precise form of words was required; that it was sufficient that the party had notice, that the officer came not as a mere trespasser, but claiming to act under a proper authority. The judges who differed, thought that the officers ought to have declared in an explicit manner what sort of warrant they had. They said that an escape does not ex vi termini, or in notion of law, imply any degree of force or breach of the peace, and consequently the prisoner had not due notice that they came under the authority of a warrant grounded on a breach of

the peace; and they concluded, that, for want of this due notice, the officers were not to be considered as acting in the discharge of their duty. Curtis's case, Foster, 135.

With regard to a private bailiff, or special bailiff, it must either appear that the party resisting was aware of his character, or there must be some notification of it by the bailiff, as by saying I arrest you, which is of itself sufficient notice; and it is at the peril of the party if he kills him after these words, or words to the same effect, and it will be murder. 1 Hale, P. C. 461; Mackally's case, 9 Co. 69 b.; 1 Russell, 518. It is said also, that a private bailiff ought to show the warrant upon which he acts, if it is demanded. 1 Russell, 518, citing 1 Hale, P. C. 583, 588, 589. It seems, however, that this must be understood of a demand made, after submitting to the arrest. The expression in Hale (459,) is "such person must show his warrant, or signify the contents of it ;" and it appears, from the authority of the same writer, supra, that even the words "I arrest you," are a sufficient signification of the officer's authority.

Proof of malice-cases of peace officers killed or killing others in the execution of their duty-mode of executing their duty.] In cases of felony actually committed, if the offender will not suffer himself to be arrested, but stands upon his own defence, or flies, so that he cannot possibly be apprehended alive by those who pursue him, *whether public [ *703 ] officers or private persons, with or without a warrant, he may be lawfully killed by them. Hawk. P. C. b. 1, c. 28, s. 11. Where, says Mr.Justice Foster, a felony is committed, and the felon flies from justice, and a dangerous wound is given, it is the duty of every man to use his best endeavors for preventing an escape; and if, in the pursuit, the party flying is killed, where he cannot be otherwise overtaken, it is justifiable homicide. Foster, 271.

In case an innocent person is indicted for felony, and will not suffer himself to be arrested by the officer who has a warrant for that purpose, he may be lawfully killed by him, if he cannot otherwise be taken; for there is a charge against him on record, to which, at his peril, he is bound to answer. Hawk. P. C. b. 1, c. 28, s. 12. It seems, however, that a constable, or other peace-officer, is bound to arrest a person indicted of felony, without a warrant, and that therefore, if it be not possible otherwise to apprehend him, he will be justified in killing him, although he have no warrant. See 1 East, P. C. 300.

Whether or not a peace officer who attempts, without a warrant, to apprehend a person on suspicion of felony, will be justified in killing him, in case he cannot otherwise apprehend him, is a case requiring great consideration. Even in the instance of breaking open the outward door of a house, a peace officer is not justified, unless he is acting under a warrant, in proceeding to that extremity; Foster, 321, and vide post, 705; still less could he be justified in a matter concerning life. However, according to Lord. Hale, the officer would be justified in killing the party if he fly, and cannot otherwise be apprehended. 2 Hale, P. C. 72, 80.

In cases of misdemeanors, the law does not admit the same severe rule as in that of felonies. The cases of arrests for misdemeanors and in civil proceedings are upon the same footing. Foster, 271. If a man charged with a misdemeanor, or the defendant in a civil suit flies, and the officer pursues, and in the pursuit kills him, it will be murder. 1 Hale, P.

C. 481; Foster, 471. Or rather, according to Mr. Justice Foster, it will be murder or manslaughter, as circumstances may vary the case. For if the officer, in the heat of the pursuit, and merely to overtake the defendant, should trip up his heels, or give him a stroke with an ordinary cudgel, or other weapon not likely to kill, and death should ensue, it seems that this would amount to no more than manslaughter, and in some cases not even to that offence. But if he had made use of a deadly weapon, it would have amounted to murder. Foster, 271.

If persons engaged in a riot, or forcible entry, or detainer, stand in their defence, and continue the force in opposition to the command of a justice of the peace, &c., or resist such justice endeavoring to arrest them, the killing of them may be justified, and so perhaps, may the killing of any dangerous rioters by private persons, who cannot otherwise suppress them, or defend themselves from them. Hawk. P. C. b. 1, c. 28, s. 14. [ *704] *It is to be observed, that in all the above cases where the officer is justified by his authority, and exercises that authority in a legal manner, if he be resisted, and in the course of that resistance is killed, the offence will amount to murder.

With regard to the point of time at which a constable or other peace officer is justified, in case of resistance, in resorting to measures of violence, it is laid down, that although in the case of common persons, it is their duty, when they are assaulted, to fly as far as they may, in order to avoid the violence, yet a constable or other peace officer, if assaulted in the execution of his duty, is not bound to give way, and if he kills his assailant, it is adjudged homicide in self-defence. 1 Hale, P. C. 481. This rule holds in the case of the execution of civil process, as well as in apprehensions of a criminal charge. Hawk. P. C. b. 1, c. 28, s. 17. But though it be not necessary that the officer should retreat at all, yet he ought not to come to extremities upon every slight interruption, nor without a reasonable necessity. Therefore, where a collector, having distrained for a duty, laid hold of a maid-servant who stood at the door to prevent the distress being carried away, and beat her head and back several times against the door-post, of which she died; although the court held her opposition to them to be a sufficient provocation to extenuate the homicide, yet they were clearly of opinion that the prisoner was guilty of manslaughter, in so far exceeding the necessity of the case. And where no resistance at all is made, and the officer kills, it will be murder. So if the officer kills the party after the resistance is over, and the necessity has ceased, it is manslaughter, at least, and if the blood had time to cool, it would, it seems, be murder. 1 East, P. C. 297.

In respect to the time of executing process, it may be done at night as well as by day; and therefore killing a bailiff, or other officer, under pretence of his coming at an unseasonable hour, would be murder. But since the statute 29 Car. 2, c. 7, s. 6, all process warrants, &c., served or executed on a Sunday are void, except in cases of treason, felony, or breach of the peace, and therefore, an arrest on any other account, made on that day, is the same as if done without any authority at all. 1 East, P. C. 324.

In executing their duty, it often becomes a question in what cases constables and other peace-officers are justified in breaking open windows and doors. In no case whatever is an officer justified in breaking an outward door, or window, unless a previous notification has been given, and

a demand of entrance made and refused. Foster, 320; Hawk. P. C. b. 2, c. 14, s. 1.

Where a felony has been actually committed, or a dangerous wound given, a peace officer may justify breaking an entrance door to apprehend the offender without any warrant, but in cases of misdemeanors and breach of the peace, a warrant is required; it likewise seems to be the better opinion that mere suspicion of felony will not justify him in proceeding to this extremity, unless he be armed with a warrant. Foster, 320, 321; Hawk. P. C. b. 2, *c. 14, s. 7; 1 Russell, 520; Sed vide 1 [*705] Hale, P. C. 583; 2 Id. 92.

In cases of writs, an officer is justified in breaking an outer door upon a capias, grounded on an indictment for any crime whatever, or upon a capias to find sureties for the peace, or the warrant of a justice for that purpose. Hawk. P. C. b. 2, c. 14, s. 3. So upon a capias utlagatum, or capias pro fine; Id. 1 Hale, P. C. 459, or upon an habere facias possessionem; 1 Hale, P. C. 458, or upon the warrant of a justice of the peace for levying a forfeiture in execution of a judgment or conviction. Hawk. P. C. b. 2, c. 14, s. 5.

If there be an affray in a house, and manslaughter or bloodshed is likely to ensue, a constable having notice of it, and demanding entrance, and being refused, and the affray continuing, may break open the doors to keep the peace. 2 Hale, P. C. 95; Hawk. P. C. b. 2, c. 14, s. 8. And if there be disorderly drinking or noise in a house, at an unseasonable hour of night, especially in inns, taverns, or alehouses, the constable or his watch, demanding entrance, and being refused, may break open the doors to see and suppress the disorder. 2 Hale, P. C. 95; 1 East, P. C. 322. So if affrayers fly to a house, and he follows them with fresh suit, he may break open the doors to take them. Hawk. P. C. b. 1, c. 63, s. 16. But it has been doubted whether a constable can safely break open doors in such a case without a magistrate's warrant, and it is said, that at least there must be some circumstance of extraordinary violence to justify him in so doing. 1 Russell, 273, (n).

In civil suits, an officer cannot justify the breaking open an outward door or window to execute the process; if he do break it open he is a trespasser. In such case, therefore, if the occupier resist the officer, and in the struggle kill him, it is only manslaughter. For every man's house is his castle for safety and repose to himself and his family. It is not murder, because it was unlawful for the officer to break into the house, but it is manslaughter because he knew him to be a bailiff. Had he not known him to be a bailiff, it would have been no felony, because done in his house. 1 Hale, P. C. 458. This last instance, says Mr. East, which is set in opposition to the second, must be understood to include at least a reasonable ground of suspicion that the party broke the house with a felonious intent, and that the party did not know or had reason to believe that he was only a trespasser. 1 East, P. C. 321, 322.

The privilege is confined to the outer doors and windows only—for if the sheriff or a peace officer enter a house by the outer door, being open, he may break open the inner doors, and the killing him in such case would be murder. 1 Hale, P. C. 458. If the party whom the officer is about to arrest, or the goods which he is about to seize, be within the house at the time, he may break open any inner doors or windows to search for them, without demanding admission. Per Gibbs, J., Hutchinson v. Birch,

4 Taunt. 619. But it seems that if the party against whom the process [*706] has issued be not *within the house at the time, the officer must demand admittance before he will be justified in breaking open an inner door. Ratcliffe v. Burton, 3 Bos. and Pul. 223. So if the house be that of a stranger, the justification of the officer will depend upon the fact of the goods or the person, against whom he is proceeding, being in the house at the time. Cooke v. Birt, 5 Taunt. 765 (a); Johnson v. Leigh, 6 Taunt. 240 (b); 1 Russell, 521.

An officer attempting to attach the goods of the prisoner in his dwellinghouse, put his hand over the hatch of the door, which was divided into two parts, the lower hatch being closed, and the higher open. A struggle ensued between the officer and a friend of the prisoner, in the course of which the officer having prevailed, the prisoner shot at and killed him, and this was held murder. Baker's case, 1 East, P. C. 323. In the above case there was proof of a previous resolution in the prisoner to resist the officer whom he afterwards killed. 1 East, P. C. 323.

The privilege likewise extends only to those cases where the occupier or any of his family, who have their domestic or ordinary residence there, are the objects of the arrest; and if a stranger, whose ordinary residence is elsewhere, upon pursuit, takes refuge in the house of another, such house is no castle of his, and he cannot claim the benefit of sanctuary in it. Foster, 320, 321; 1 East, P. C. 323. But this must be taken subject to the limitation already expressed with regard to breaking open inner doors in such cases, viz. that the officer will only be justified by the fact of the person sought being found there. Ante, p. 705; 1 East, P. C. 324.

The privilege is also confined to arrests in the first instance; for if a man legally arrested (and laying hands on the prisoner, and pronouncing words of arrest, constitute an actual arrest), escape from the officer, and take shelter in his own house, the officer may, upon fresh pursuit, break open the outer door, in order to retake him, having first given due notice of his business, and demanded admission, and having been refused. If it be not, however, on fresh pursuit, it seems that the officer should have a warrant from a magistrate. 1 Hale, P. C. 459; Foster, 320; 1 East, P. C. 324.

Proof of malice-cases of officers killed or killing others in the execution of their duty-mode (where an officer is killed) in which that killing has been effected.] It is a matter of very serious consideration, whether in all cases where a peace officer or other person is killed, while attempting to enforce an illegal warrant, such killing shall under circumstances of great cruelty or unnecessary violence, be deemed to amount to manslaughter only. In Curtis's case, Foster, 135, ante, p. 702, the prisoner being in the house of a man named Cowling, who had made his escape, swore that the first person who entered to retake Cowling should be a dead man, and, immediately upon the officers breaking open the shop door, struck one of them on the head with an axe, and killed him. This was held murder, and a few of the judges were of opinion that even if the officers could not have justified breaking open the door, yet [*707] that it *would have been a bare trespass in the house of Cowling, without any attempt on the property or person of the prisoner; and ad

(a) Eng. Com. L. Rep. i. 258. (b) Id. i. 374.

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