punity (2). The same defense has been set up in prosecutions for attempted larceny from a person when he had nothing to be stolen; but the courts have generally held that the danger from allowing pickpockets to escape punishment unless they found something in the pockets is too great to permit such defenses, and the accused are quite as deserving of punishment whether they succeed or fail (3). On indictment for assault with intent to murder it was held that the defendant was guilty although he shot at a place that had just been left by his intended victim, and it would be impossible to shoot a man where he was not (4). SECTION 2. ULTIMATE ACTS. § 58. Ultimate acts classified. Having in the preceding sections traced the various preliminary acts leading up to a crime, but falling short of its actual perpetration, we come now to consider the completed acts; and these are of three kinds: 1. Criminal. 2. Justifiable. 3. Excusable. The criminal acts may be either the doing of a positive wrong or a neglect of duty in misfeasance or nonfeasance, and the force employed in doing the wrong may be direct or indirect, physical or mental. § 59. Crimes by indirect force. From the cases mentioned in § 14 and § 15, above, the reader will see that the wrong may consist in a negative as well as a positive act. The force exercised to commit the crime may also be direct or indirect. An example of manslaughter by in (2) Commonwealth v. Green, 2 Pick. 380. direct force is furnished by the case of the prosecution of the sheriff who confined the deceased against his will in a jail known by the sheriff to be infested with smallpox, from which exposure the deceased was stricken and died. Another instance is furnished by the case in which the defendants procured the execution of the deceased by conspiring to lead him into an apparent robbery and obtain his conviction therefor, to get the reward offered for convicting highway robbers (5). An instance of crime by force exercised upon the mind of the person injured is afforded by the case of the man who pulled the hair of the nurse so that her screaming scared the child she held into fits from which it died (6). In another case a conviction of assault with intent to do great bodily harm was sustained by proof that the defendant scared his wife so that she fell out of a window and was injured (7). § 60. Obedience to official orders as justification. Obedience to the orders of a superior officer having authority to give orders in such cases, is undoubtedly a sufficient answer to a criminal charge, regardless of the propriety of the order given. The sheriff who burned Latimore and Ridley at the orders of Queen Mary was held not liable to punishment under the reign of Queen Elizabeth for this reason. But if the order is one which the superior officer has no authority to give in any case, it will be no excuse or justification to the inferior when prosecuted for the act. An act of piracy committed by the first lieutenant on a privateer schooner at the command of the captain, (5) Rex v. MacDaniel, 1 Leach C. C. (3d ed.) No. 21. (6) Rex v. Towers, 12 Cox Cr. Cases 530. (7) Queen v. Halliday, 61 L. T. R. 701. was held to be no defense, because the command was clearly illegal (8). § 61. Exercise of official authority as an excuse. Within proper limits a chastisement inflicted by a parent or teacher upon a child or pupil is justified by the relation of the parent or teacher, and the same may be said of policemen and sheriffs in exercising authority over the jail or preserving the peace. But a sheriff who cruelly treats a prisoner or a teacher who inflicts punishment with unlawful instruments upon his pupils is liable criminally for his act. A teacher who switches a pupil for a supposed violation of the rules of the school is not liable criminally because it turns out that the child had not been guilty of any violation of the rule, for a teacher is not bound to be infallible any more than anyone else. It is enough that he has reasonable cause and acts with discretion. But a teacher who assaulted a pupil with a club, struck him in the face with his fists, swore at him, and said he could lick any man in the district, was held for criminal assault and battery (9). § 62. Arresting felons and preventing felony. From the earliest days of the common law it has been a rule that any person who sees a felony committed, or an officer who is credibly informed that a felony has been committed, may go to the extent of taking the life of the felon to prevent his escape. But it would seem that at the present time a citizen cannot justify a homicide to prevent the perpetration of the felony or the escape of (8) United States v. Jones, 26 Fed. Cases 653. (9) Boyd v. The State, 88 Ala. 169. the felon unless the felony was one accompanied by force and peril to life. shooting a horse justifiable (10). For this reason it was held that thief to prevent escape was not § 63. Self-defense. The instinct of self-preservation is recognized by the law as a valid excuse for an innocent person's killing a guilty one, if it appeared to the defendant at the time of his act that there was no other reasonably safe means of escape. When one, who is without fault himself, is attacked by another in such a manner, or under such circumstances, as to furnish reasonable ground for apprehending a design to take his life, or do him great bodily harm, and there is reasonable grounds for believing the danger imminent that such design will be accomplished, he may safely act upon appearances, and kill the assailant, if that be necessary to avoid the apprehended danger. The killing will be justifiable although it may afterwards turn out that the appearances were false, and that there was in fact neither design to do him serious injury, nor danger that it would be done. He must decide at his peril upon the force of the circumstances in which he is placed, for that is a matter which will be the subject of judicial review. But he will not act at the peril of making that guilt if appearances prove false which would be innocence if they proved true. While going about his own affairs A sees B walking rapidly towards him with a pistol in his outstretched hand using violent menaces against his life as he advances. As soon as he approaches near enough A strikes him to the ground (10) Storey v. State, 71 Ala. 329. and B dies. It turns out that the pistol was loaded with powder only and B's design was only to terrify A. Will any reasonable man say that A is more criminal than he would have been if there had been a bullet in the pistol? Those who would hold such a doctrine must require that a man so attacked shall examine the pistol to learn how it is loaded before he strikes his assailant. Such a doctrine would entirely destroy the right of self-defense. But where a man brings the danger upon himself by beginning the quarrel, he cannot avail himself of this defense if he is afterwards crowded by his opponent and compelled to kill to save his own life, unless he succeeded in withdrawing from the contest sufficiently to inform his opponent that the fight is over. It is also an old rule that one attacked has no right to take the life of another if opportunity for retreat was open; for he must not set his pride above the value of human life. He must withdraw if he can; but if to withdraw would merely increase his danger, as would be the case if he were assaulted at close range with a deadly weapon, he is not bound to retreat. Another exception to the rule that the innocent man must retreat to the wall exists by reason of the fact that no man is bound to flee from his own house. His house is his castle, and if assaulted there he may safely stand his ground even to the extent to the taking the life of his assailant (11). § 64. Defense of house. A man is not authorized to fire a pistol on every invasion of his house. He ought, if he has reasonable opportunity, to endeavor to remove the (11) State v. Middleham, 62 Iowa 150. |