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mitting that a trespass in the house, with an intent to make an unjustifiable arrest of the owner, could be considered as some provocation to a bystander, yet surely the knocking a man's brains out, or cleaving him down with an axe, on so slight a provocation, savored rather of brutal rage, or, to speak more properly, of diabolical mischief, than of human frailty, and it ought always to be remembered, that in all cases of homicide upon sudden provocation, the law indulges to human frailty, and to that alone. So in Stockley's case, ante, p. 698, the fact that the prisoner deliberately resolved upon shooting Welsh, in case he offered to arrest him again, was, it has been argued, sufficient of itself to warrant a conviction for murder, independently of the legality of the warrant. 1 East, P. C. 311.

When a bailiff, having a warrant to arrest a man, pressed early into his chamber, with violence, but not mentioning his business, and the man not knowing him to be a bailiff, nor that he came to make an arrest, snatched down a sword hanging in his chamber, and stabbed the bailiff, whereof he died; this was held not to be murder, for the prisoner did not know but that the party came to rob or kill him, when he thus violently broke into his chamber without declaring his business. 1 Hale, P. C. 470. A bailiff having a warrant to arrest C. upon a ca. sa, went to his house, and gave him notice. C. threatened to shoot him if he did not depart, but the bailiff disregarding the threat, broke open the windows, upon which C. shot and killed him. It was ruled, 1, that this was not murder, because the bailiff had no right to break the house; 2, that it was manslaughter, because C. knew him to be a bailiff; but 3, had he not known him to be a bailiff, it had been no felony, because done in defence of his house. Cook's case, 1 Hale, P. C. 458; Cro. Car. 537; W. Jones, 429.

These decisions. will appear to countenance the position that where an officer attempts to execute an illegal warrant, and is in the first instance resisted with such violence by the party that death ensues, it will amount to manslaughter only. But it should seem that in analogy to all other cases of provocation, this position requires some qualification. If it be possible for the party resisting to effect his object with a less degree of violence than the infliction of death, a great degree of unnecessary violence might, it is conceived, be evidence of such malice as to prevent the crime from being reduced to manslaughter. In Thomson's case, 1 Moody's C. C. 80 (a), ante, p. 690, where the officer was about to make an arrest on an insufficient charge, the judges adverted to the fact that the prisoner was in such a situation that he could not get away. In these cases it would seem to be the duty of the party whose liberty is endangered to resist the officer with as little violence as possible, and that if he uses great and unnecessary violence, unsuited both to the provocation given and to the accomplishment of a successful resistance, it will be evidence of malice sufficient to support a charge of murder. So also where, as in Stockley's case, (ante, p. 698), and Curtis's case, *(ante, p. 702), the party [*708 ] appears to have acted from motives of express malice, there seems to be no reason for withdrawing such cases from the operation of the general rule, (vide ante, p. 681), that provocation will not justify the party killing, or prevent his offence from amounting to murder, where it is proved that he acted at the time from express malice. And of this opinion appears to be Mr. East, who says, "It may be worthy of consideration whether the

(a) 2 Eng. C. C. 80.

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illegality of an arrest does not place the officer attempting it exactly on the same footing as any other wrong-doer." 1 East, P. C. 328.

It may be remarked that this question is fully decided in the Scotch law, the rule being as follows:-In resisting irregular or defective warrants, or warrants executed in an irregular way, or upon the wrong person, it is murder if death ensue to the officer by the assumption of lethal weapons, where no great personal violence has been sustained. Alison's Princ. Cr. Law of Scotl. 25. If, says Baron Hume, instead of submitting for the time, and looking for redress to the law, he shall take advantage of the mistake to stab or shoot the officer, when no great struggle has yet ensued, and no previous harm of body has been sustained, certainly he cannot be found guilty of any lower crime than murder. 1 Hume, 250. The distinction appears to be, says Mr. Alison, that the Scotch law reprobates the immediate assumption of lethal weapons in resisting an illegal warrant, and will hold it as murder if death ensue by such immediate use of these, the more especially if the informality or error was not known to the party resisting; whereas the English practice makes such allowance for the irritation consequent upon the irregular interference with liberty, that it accounts death inflicted under such circumstances as manslaughter only. Alison's Princ. Cr. Law of Scotl. 28.

In case of death ensuing, where resistance is made to officers in the execution of their duty, it sometimes becomes a question how far the acts of third persons, who take a part in such resistance, or attempt to rescue the prisoner, shall be held to affect the latter. If the party who is arrested yield himself, and make no resistance, but others endeavor to rescue him, and he do no act to declare his joining with them, if those who come to rescue him kill any of the bailiffs, it is murder in them, but not in the party arrested; otherwise, if he do any act to countenance the violence of the rescuers. Stanley's case, Kel. 87; 1 Russell, 450. Jackson and four other robbers being pursued by the hue and cry, Jackson turned round upon his pursuers, the rest being in the same field, and refusing to yield, killed one of them. By five judges who were present, this was held murder, and inasmuch as all the robbers were of a company, and made a common resistance, and one animated the other, all those who were of the company in the same field, though at a distance from Jackson, were all principals, viz. present, aiding, and abetting. They also resolved, that one of the malefactors being apprehended a little before the party was hurt, and being in custody when the stroke was given, was not guilty, un[*709] less it could be proved that after he was apprehended he had animated Jackson to kill the party. 1 Hale, P. C. 464. Where A. beat B., a constable, in the execution of his duty, and they parted, and then C., a friend of A., fell upon the constable, and killed him in the struggle, but A. was not engaged in the affair, after he parted from B., it was held that this was murder only in C., and A. was acquitted, because it was a sudden quarrel, and it did not appear that A. and C. came upon any design to illuse the constable. Anon. 1 East, P. C. 296.

It is a matter of fact, for the jury in these cases, to determine in what character the third party intervened. If he interfered for the purpose of aiding the person in custody to rescue himself, and in so doing killed the bailiff, it would be murder, but if, not knowing the cause of the struggle, he interposed with intent to prevent mischief, it would not amount to murder. 1 East, P. C. 318; I Russell, 450. See Kel. 86. Sid. 159.

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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

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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 them, 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. Ball's 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 [*712] 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

(a) 2 Eng. C. C. 330. (b) 2 Ibid. 378. (c) Eng. Com. L. Rep. xxv. 452.

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