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The prisoners were indicted for murder. It appeared that a body of persons had assembled together, and were committing a riot. The constables interfering for the purpose of dispersing the crowd, and apprehending the offenders, resistance was made to them by the mob, and one of the constables was beaten severely and afterwards died. The prisoners all took part in the violence used, some by beating him with sticks, some by throwing stones, and some by striking him with their fists. Alderson, B., told the jury that in considering the case, they would have to determine whether all the prisoners had the common intent of attacking the constables, if so each of them was responsible for all the acts of all the others done for that purpose, and if all the acts done by each if done by one man, would together show such violence, and so long continued, that from them the jury might infer an intention to kill the constable, it would be murder in them all, but if they could not infer such an intention, that they ought to find them guilty of manslaughter. The prisoners were convicted of the latter offence. Macklin's case, 2 Lewin, C. C. 225.
Proof of malice-private persons, killed or killing others, in apprehending them.] The rules regarding the protection of private persons who take upon themselves to arrest offenders, is much more confined than that which is applicable to peace officers and others, who act only in the execution of their duty. It must, however, be remembered, that where a private person lends his assistance to a constable, whether commanded to do so or not, he is under the same protection as the officer himself. Foster, 309.
So in cases of felony actually committed, or a dangerous wound given, private persons may apprehend without a warrant, and will be protected, so that the killing of them in executing that duty, will be murder ; but it is otherwise, where there is merely a reasonable suspicion of a felony, ante, p. 688 (1).
Whether or not a private person ought to enjoy the protection extended to peace officers, where he proceeds to arrest a person who stands indicted of felony, does not appear to be well settled. Lord * Hale [ *710] inclines to the opinion that the protection does not extend to a private person in such case, because a person innocent may be indicted, and because there is another way of bringing him to answer, viz. process of capias to the sheriff, who is a known responsible officer. 2 Hale, P. C. 84. The reasoning of Mr. East, however, is rather in favor of the protection. It may be urged, he observes, that if the fact of the indictment found against the party be known to those who endeavor to arrest him, in order to bring him to justice, it cannot be truly said, that they act upon their own private suspicion or authority, and therefore they ought to have equal protection with the ordinary ministers of the law. At any rate, it is a good cause of arrest by private persons, if it may be made without the death of the felon. (Dalton, c. 170, s. 5.) And if the fact of the prisoner's. guilt be necessary for their complete justification, the bill of indictment found by the grand jury would (he conceives) for that purpose be prima facie evidence of the fact, till the contrary should be proved. 1 East, P. C. 300.
(1) A well grounded belief that a felony is about to be committed, will extenuate a homicide committed in prevention of the felony, but not a homicide committed in pursuit by an individual of his own accord. State v. Rutherford, 1 Hawks, 457,
There is one class of misdemeanors in which private persons are justified in interposing, and are under the same protection as peace officers, namely, in case of sudden affrays to part the combatants, and to prevent mischief; but in these cases they must give express notice of their friendly intent, and if the party interposing with such notice, is killed by the affrayers, it will be murder in the party killing. Foster, 272, 311. And it is said by Hawkins, that perhaps private persons may justify the killing of dangerous rioters, when they cannot otherwise suppress them or defend themselves from them, inasmuch as every person seems to be authorized by law, to arm himself for such purposes. Hawk. P. C. b. 1, c. 28, s. 14. And this was so resolved by all the judges in Easter Term, 39 Eliz., though they thought it more discreet for any one in such a case to attend and assist the king's officer in so doing. Poph. 121 ; 1 East, P. C. 304. It is said by Hawkins, that at common law every private person may arrest any suspicious night-walker, and detain him till he give a good account of himself. Hawk. P. C. b. 2, c. 13, s. 6. But it is doubtful how far such a power is vested even in peace officers, (vide ante, p. 691,) and it is still more doubtful with regard to private persons. See 1 Russell, 506.
In general, in cases of misdemeanor, except in those above-mentioned, a private person will not be justified in apprehending the offender, and if in attempting to apprehend him he kill him, it will be murder. The neighborhood of Hammersmith had been alarmed by what was supposed to be a ghost. The prisoner went out with a loaded gun to take the ghost, and upon meeting with a person dressed in white, immediately shot him. Macdonald, C. B., Rooke, and Lawrence, JJ., were clear that this was murder, as the person who appeared to be a ghost, was only guilty of a misdemeanor, and no one might kill him, although he could not otherwise be taken. The jury, however, brought in a verdict of manslaughter; but the Court said that they could not receive that verdict, and told the jury that if they believed the evidence, they must find the prisoner guilty (*711 ] *of murder: and that if they did not believe the evidence, they should acquit the prisoner. The jury found the prisoner guilty, and sentence was pronounced, but he was afterwards reprieved. Smith's case, 1 Russell, 459; 4 Bl. Com. 201, (n.)
By various statutes, private persons are authorized to make arrests, as the owners of property injured, and their servants, under the 7 & 8 Geo. 4, cc. 29 and 30, ante, p. 692.
Gamekeepers, &c. have authority to arrest in certain cases by the 9 Geo. 4, c. 69, s. 2, see the clause, ante, p. 507.
Under this statute it has been held that a gamekeeper, &c., is entitled to arrest a party for an offence under the 9th section, though the above clause (s. 2,) speaks only of offences thereinbefore mentioned, for an offence under s. 9, is an offence also under s. 1. Ball's case, 1 Moody, C. C. 330. A gamekeeper and his assistants warned a party of poachers off his master's grounds, and followed them into the highway, where the poachers rushed upon the keeper and his men, and blows ensued on both sides. After the keeper had struck several blows, a shot was fired by the prisoner, one of the party, which wounded the prosecutor. The prisoner was indicted under the 9 Geo. 4, c. 31, for shooting at the prosecutor with intent to kill, &c. It was urged for the prisoner, that as the keeper had knocked down three of the men before the shot was fired, it would have
been manslaughter only if death had ensued; but the judge (Bayley, B.,) was of opinion that if the keeper struck, not vindictively, or for the purpose of offence, but in self-defence only, and to diminish the violence which was illegally brought into operation against him, it would have been murder if death had ensued. He told the jury that he thought the keeper and his men, even if they had no right to apprehend, had full right to follow the prisoner and his party, to discover who they were, and that the prisoner and his party were not warranted in attempting to prevent them, and that if they had attempted to apprehend thein, which, however, they did not, he thought they would have been warranted by the statute in so doing. The prisoner being convicted, on a case reserved, the judges were of opinion that the keeper had power to apprehend, and that notwithstanding the blows given by the keeper, it would have been murder, had the keeper's man died. Ball's case, 1 Moody, C. C. 330(a). The rule laid down in the above case, with regard to blows first given by the keeper in self-defence, was soon afterwards recognized in another case. 1 Moody, C. C. 333.
A gamekeeper and his assistants proceeded to apprehend a party of poachers whose guns they heard in a wood. They rushed in upon the poachers, who ran away, and the keeper followed, one of the poachers exclaiming, “the first man that comes out, I'll be damn’d if I don't shoot him.” At length several of the poachers stopped, and the prisoner, one of them, putting his gun to his shoulder, fired at and wounded the prosecutor; being indicted for this offence, it was objected that it was incumbent on the prosecutor to have given notice to the persons by calling upon them to surrender, which he *did not appear to have done; the [ *912 ] judge reserved the point, and the judges were all of opinion that the circumstances constituted sufficient notice, and that the conviction was right. Payne's case, 1 Moody, C. C. 378 (b).
Upon an indictment for murder, it appeared that the prisoner, being poaching at night in a wood, was attempted to be apprehended by the deceased, the servant of the prosecutor. The prosecutor was neither the owner nor occupier of the wood, nor the lord of the manor, having only the permission of the owner to preserve game there. The deceased having been killed by the prisoner in the attempt to apprehend him, it was held to be manslaughter only. Addis's case, 6 C. and P. 388 (c).
In these cases a question frequently arises how far the companions of the party who actually committed the offence participate in the guilt. The prisoners were charged with shooting James Mancey, with intent to murder. It appeared that the prisoners, each having a gun, were out at night in the grounds of C. for the purpose of shooting pheasants, and the prosecutor and his assistants going towards them for the purpose of
apprehending them, they formed into two lines, and pointing their guns at the keepers, threatened to shoot them. A gun was fired, and the prosecutor was wounded. Some of the keepers were also severely beaten, but no other shot was fired. It was objected that as there was no common intent to commit any felony, Mancey alone could be convicted, but Vaughan, B. said, “I am of opinion that when this act of parliament (57 Geo. 3, c. 90, repealed by 9 Geo. 4, c. 69,) empowered certain parties to apprehend persons who were out at night armed for the destruction of game, it gave them the same protec
(2) 2 Eng. C. C. 330. (6) 2 Ibid. 378.
(c) Eng. Com. L. Rep. xxv. 452.
tion in the execution of that power which the law affords to constables in the execution of their duty. With respect to the other point, it is rather a question of fact for the jury; still on this evidence it is quite clear what the common purpose was. They all draw up in lines, and point their guns at the keepers, and they are all giving their countenance and assistance to the one who actually fires the gun. If it could be shown that either of them separated himself from the rest, and showed distinctly that he would have no hand in what they were doing, the objection would have much weight in it."
Edmead's case, 3 C. and P. 390 (a). So when two persons had been seized by a gamekeeper and his assistants, and while standing still in custody, called to another man, who coming up, rescued the two men, and beat and killed one of the keeper's party ; Vaughan, B., ruled that all the three men were equally guilty, though, if the two had acquiesced and remained passive, it would not have been so. Whithorne's case, 3 C. and P. 394 (b).
Proof of malice-killing in defence of person or property.) The rule of law upon this subject is thus laid down by Mr. East. A man may repel force by force in defence of his person, habitation, or property, against one who manifestly intends or endeavors by violence or surprise io (*713] commit a known felony, such as rape, robbery, *arson, burglary, or the like. In these cases he is not obliged to retreat, but may pursue his adversary until he has secured himself from all danger, and if he kill him in so doing, it is justifiable self-defence; as on the other hand, the killing by such felons, of any person so lawfully defending himself, will be murder. But a bare fear of any of these offences, however well grounded, as that another lies in wait to take away the party's life, unaccompanied by any overt act, indicative of such an intention, will not warrant him in killing that other by way of precaution, there being no actual danger at the time. 1 East, P. C. 271, 2.
Not only is the party himself, whose person or property is the object of the felonious attack justified in resisting, in the manner above mentioned, but a servant or any other person may lawfully interpose, in order to prevent the intended mischief. Thus in the instances of arson and burglary, a lodger may lawfully kill the assailant in the same manner as the owner himself might do, but subject to the same limitations. (Sed vide post, p. 718.) In this case there seems to be no difference between the case of the person assaulted, and those who come in aid against such felons. The legislature itself seems to have considered them on the same footing, for in the case of the Marquis de Guiscard, who stabbed Mr. Harley while sitting in council, they discharged the party who gave the mortal wound from all manner of prosecution on that account, and declared the killing to be a lawful and necessary action. (9 Ann. c. 16.) 1 East, P. C. 289; Foster, 274; Cooper's case, Cro. Car. 544.
With regard to the nature of the intended offence, to prevent which, it is lawful instantly to use the last violence, and to put the assailant to death, it is only to such crimes as in their nature betoken an urgent necessity, which admits of no delay, that the rule extends. Of this nature are what have been termed known felonies, in contradistinction as it seems to such secret felonies as may be committed without violence to the person, such
(a) Eng. Com. L: Rep. xiv. 364. (b) Id. 366.
as picking the pocket, &c. Foster, 274; 1 East, P. C. 273. Where an attempt is made to murder, or to rob, or to ravish, or to commit burglary, or to set fire to a dwelling-house, if the attack be made by the assailant with violence and by surprise, the party attacked may lawfully put him to death. Ibid.
A statute was passed in the 24 Hen. 8, (c. 5,) upon this subject in affirmance of the common law. After reciting that it had been doubted whether if any person should attempt feloniously to rob or murder any persons in or near any common, bighway, cartway, or footway, or in their mansions, messuages, or dwelling-places, or attempt to break any dwellinghouse in the night-time, and should happen in such felonious intent to be slain by those whom they should so attempt to rob or murder, or by any person being in their dwelling-house attempted to be broken open, the person so happening to slay the person so attempting to commit murder or burglary, should forfeit goods and chattels; enacts that if any person or persons be indicted or appealed, of or for the death of any such evil *disposed person or persons attempting to rob, murder, or bur- [ *714 ] glarily to break mansion-houses, as is above-said, the person or persons so indicted or appealed thereof, and of the same by verdict so found and tried, shall not forfeit or lose any lands, tenements, goods, or chattels, for the death of any such evil disposed person in such manner slain, but shall be thereof, and for the same, fully acquitted and discharged. Though the statute only mentions certain cases, it must not be taken to imply an exclusion of any other instances of justifiable homicide, which stand upon the same footing of reason and justice. Thus the killing of one who attempts the wilful burning of a house, is free from forfeiture, without the aid of the statute ; and though it only mentions the breaking a house in the night-time, (which must be intended a breaking accompanied with a felonious intent,) yet, a breaking in the day-time with a like purpose must be governed by the same rule. 1 East, P. C. 272, 3.
The rule extends to felonies only. Thus, if one comes to beat another, or to take his goods as a trespasser, though the owner may justify a battery for the purpose of making him desist, yet if he kill him, it will be manslaughter. ' i Hale, P. C. 485, 486; 1 East
, P. C. 272. It is not essential that an actual felony should be about to be committed in order to justify the killing. If the circumstances are such as that, after all reasonable caution, the party suspects that the felony is about to be immediately committed, he will be justified in making the resistance, as in the following case. Levet being in bed and asleep, bis servant, who had procured Frances Freeman to help her in her work, went to the door, about twelve o'clock at night, to let her out, and conceived she heard thieves about to break into the house, Upon this she wakened her master, telling him what she apprehended. He took a drawn sword, and the servant fearing that Freeman should be seen, hid her in the buttery. Mrs. Levet seeing Freeman in the buttery, and not knowing her, conceived her to be the thief, and called to her husband, who entering the buttery in the dark, and thrusting before him with his sword, struck Freeman under the breast, of which wounds she instantly died. This was ruled to be misadventure only. Levet's case, Cro. Car. 538; 1 Hale, P. C. 42, 474. Possibly, says Mr. Justice Foster, this might have been ruled manslaughter, due circumspection not having been used. Foster, 299.
Whether a person who is assaulted by another will be justified in using,