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 to [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, highway, 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. 1 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, his 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,

in the first instance, such violence in his resistance as will produce death, must depend upon the nature of the assault, and the circumstances under which it is committed. It may be of such a character that the party assailed may reasonably apprehend death, or great violence to his person, as in the following case:-Ford being in possession of a room at a tavern, several persons persisted in having it, and turning him out, but he refused to submit, when they drew their swords upon Ford and his company, and Ford, drawing his sword, killed one of them, and it was adjudged justifiable homicide. Both in Kelyng and in Foster a quære is [*715] added in this case. *But Mr. East observes, that though the assailants waited till Ford had drawn his sword (which by no means appears), yet if more than one attacked him at the same time (and as he was the only one of his party who seems to have resisted, such probably was the case), the determination seems to be maintainable. Ford's case, Kel. 51; 1 East, P. C. 243. So in Mawgridge's case, great violence was held justifiable in the case of a sudden assault. Mawgridge, upon words of anger, threw a bottle with great force at the head of Cope, and immediately drew his sword. Cope returned a bottle at the head of Mawgridge, which it was lawful for him to do in his own defence, and wounded him, whereupon Mawgridge stabbed Cope, which was ruled to be murder; for Mawgridge, in throwing the bottle, showed an intention to do some great, mischief, and his drawing immediately showed that he intended to follow up the blow. Mawgridge's case, Kel. 128; 2 Ld. Raym. 1489; Foster, 296. Upon this case, Mr. East has made the following remarks:-The words previously spoken by Cope, could form no justification for Mawgridge, and it was reasonable for the former to suppose his life in danger, when attacked with so dangerous a weapon, and the assault followed up by another act indicating an intention of pursuing his life, and this at a time when he was off his guard, and without any warning. The latter circumstance furnishes a main distinction between this case and that of death ensuing from a combat, where both the parties engage upon equal terms, for then, if upon a sudden quarrel, and before any dangerous blow given or aimed at either of the parties, the one who first has recourse to a deadly weapon, suspend his arm till he has warned the other, and given him time to put himself upon his guard, and afterwards they engage upon equal terms; in such case it is plain that the intent of the person making such assault is not so much to destroy his adversary, at all events, as to combat with him, and run the hazard of losing his own life at the same time. And that would fall within the same common principle which governs the case of a sudden combat upon heat of blood. But if several attack a person at once with deadly weapons, as may be supposed to have happened in Ford's case (supra), though they wait till he be upon his guard, yet it seems (there being no compact to fight) that he would be justified in killing any of the assailants in his own defence, because so unequal an attack resembles more a desire of assassination than of combat. 1 East, P. C. 276.

An assault with intent to chastise, although the party making the assault has no legal right to inflict chastisement, will not justify the party assaulted in killing the assailant. The prisoner, who was indicted for the murder of his brother, appeared to have come home drunk on the night in question. His father ordered him to go to bed, but he refused, upon which a scuffle ensued between them. The deceased, a brother of the

prisoner, who was in bed, hearing the disturbance, got up, threw the prisoner on the ground, and fell upon him, and beat him, the prisoner not being able to avoid his blows, or to make his escape. As they were struggling together, the prisoner gave his brother a mortal [*716 ] wound with a penknife. This was unanimously held by the judges to be manslaughter, as there did not appear to be any inevitable necessity so as to excuse the killing in that manner. The deceased did not appear to have aimed at the prisoner's life, but only to chastise him for his misbehavior to his father. Nailor's case, 1 East, P. C. 277. The circumstances in the following case were very similar. The prisoner and the brother of the prosecutor were fighting, on which the prosecutor laid hold of the prisoner to prevent him from hurting his brother, and held him down, but did not strike him, and the prisoner stabbed him with a knife above the knee. The prisoner being indicted for stabbing under 9 Geo. 4, c. 31, Mr. Justice James Parke said, The prosecutor states that he was merely restraining the prisoner from beating his brother, which was proper on his part. If you are of opinion that he did nothing more than was necessary to prevent the prisoner from beating his brother, the crime of the prisoner, if death had ensued, would not have been reduced to manslaughter; but if you think that the prosecutor did more than was necessary to prevent the prisoner from beating his brother, or that he struck the prisoner any blows, then I think that it would. You will consider whether any thing was done by the prosecutor more than was necessary, or whether he gave any blows before he was struck. Bourne's case, 5 C.

and P. 120 (a).

At the conference of the judges upon Nailor's case, (supra,) Powell, J., by way of illustration, put the following case:-If A. strike B. without any weapon, and B. retreat to a wall, and there stab A., it will be manslaughter, which Holt, C. J., said was the same as the principal case, and that was not denied by any of the judges. For it cannot be inferred from the bare act of striking, without some dangerous weapon, that the intent of the aggressor rose so high as the death of the party struck, and unless there be a plain manifestation of a felonious intent, no assault, however violent, will justify killing the assailant under the plea of necessity. 1 East, P. C. 277.

But in order to render the killing in these cases justifiable, it must appear that the act was done from mere necessity, and to avoid the immediate commission of the offence (1). Thus a person who, in the case of a mutual conflict, would excuse himself upon the ground of self-defence, must show that before the mortal stroke given, he had declined any further combat, and retreated as far he could with safety, and that he had killed his adversary through mere necessity, and to avoid immediate death. If he fail in either of these circumstances, he will incur the penalty of manslaughter. Foster, 277.

Again, to render the party inflicting death under the foregoing circumstances justifiable, it must appear that he was wholly without any fault imputable to him by law in bringing the necessity upon himself. Therefore, where A., with many others, had, on pretence of title, forcibly eject

(1) State v. Wells, 1 Coxe, 424.

(a) Eng. Com. L. Rep. xxiv. 237.

ed B. from his house, and B. on the third night returned with several per[ *717 ] sons with intent to re-enter, and one of *B.'s friends attempted to fire the house, whereupon one of A.'s party killed one of B.'s with a gun, it was held manslaughter in A., because the entry and holding with force were illegal. Hawk. P. C. b. 1, c. 28, s. 22.

It is to be observed, that killing in defence of the person will amount either to justifiable or excusable homicide, or chance-medley, as the latter is termed, according to the circumstances of the case. Self-defence, upon chance-medley, implies that the party, when engaged in a sudden affray, quits the combat before a mortal wound is given, and retreating as far as he can with safety, urged by necessity, kills his adversary for the preservation of his own life. Foster, 276. It has been observed, that this case borders very nearly upon manslaughter, and that in practice the boundaries are in some instances scarcely perceptible. In both cases, it is presumed that the passions have been kindled on both sides, and that blows have passed between the parties; but in manslaughter, it is either presumed that the combat has continued on both sides till the mortal stroke was given, or that the party giving such stroke was not at that time in imminent danger of death. Foster, 276, 277. The true criterion between manslaughter and excusable homicide, or chance-medley, is thus stated by Sir William Blackstone. When both parties are actually combating at the time the mortal stroke is given, the slayer is guilty of manslaughter; but if the slayer has not begun to fight, or (having begun) endeavors to decline any further struggle, and afterwards, being closely pressed by his antagonist, kills him to avoid his own destruction, this is homicide, excusable by self-defence. 4 Bl. Com. 184 (1).

In all cases of excusable homicide, in self-defence, it must be taken that the attack was made upon a sudden occasion, and not premeditated, or with malice. For if one attack another with a dangerous weapon, unprepared, with intent to murder him, that would stand upon a different ground; and, in that case, if the party, whose life was sought, killed the other, it would be in self-defence, properly so called. But if the first assault be open malice, and the flight be feigned as a pretence for carrying that malice into execution, it would undoubtedly be murder; for the flight rather aggravates the crime, as it shows more deliberation. 1 East, P. C. 282.

Where a trespass is committed merely against the property of another, and without any felonious intent, the law does not admit the force of the provocation to be sufficient to warrant the owner of the property to make use, in repelling the trespasser, of any deadly or dangerous weapon (2). Thus, if upon the sight of a person breaking his hedges, the owner were to take up a hedge-stake and knock him on the head, and kill him, this would be murder; because the violence was much beyond the provocation. Foster, 291; 1 East, P. C. 288, vide, supra. However provoking the circumstances of the trespass may be, they will not justify the party in the use of deadly weapons. Lieutenant Moir, having been greatly annoyed by persons trespassing upon his farm, repeatedly gave notice that he would shoot any one who did so, and at length discharged a gun at a [*718] person who was trespassing, and wounded him in the thigh,

(1) People v. Garretson, 3 Wheeler's C. C. 347. People v. Tuki, Id. 242.

(2) State v. Zellers, 2 Halst. 220. Smith's case, 3 Rogers' Rec. 77. Commonwealth v. Drew & al. 4 Mass. 391.