hearing a shot fired in a plantation of his master, saw the prisoner there, who dropped a hen pheasant; the keeper went towards him, and he fired at him; but at the trial the keeper could not swear that this was before eight o'clock in the morning; and it was then objected, that as it was not shown that the prisoner was in the plantation in the pursuit of game one hour before sunrise, the keeper had no right to apprehend him; and the objection was holden good. R. v. Tomlinson, 7 Car. & P. 183.

In impressing seamen.] To render the impressment of a seaman legal, there must be a legal warrant from the Lords of the Admiralty; the warrant must be executed by a proper officer; and the parties impressed must (in the usual terms of the warrant) be "seamen, seafaring men, and others whose occupations and callings are to work in vessels and boats, upon rivers." See the form of the warrant, Fost. 156.

See

1. There must be a legal warrant; if there be none, and the party impressing be killed, it is manslaughter only. Hugget's case, Kel. 59. If the party impressed be killed, it is murder. If on the other hand, there be a legal warrant, and it be executed legally, and the person impressed be a proper object of impressment, if the officer or any of the men acting under his immediate orders be killed, it is murder; 1 East, P. C. 308; if in the struggle the party impressed be killed, it is justifiable homicide; but if the party impressed be killed in flight, it will be manslaughter at least, perhaps murder, in the same manner as in cases of misdemeanor. 1 East, P. C. 308. See ante, p. 222.

2. The warrant must be executed by the proper officer. The warrant requires that the person entrusted with the execution of it, must be a commissioned officer, expressly deputed in writing endorsed on the warrant, under the hand and seal of the officer to whom the warrant is directed. Where the warrant was directed to the captain of a man-of-war, and he deputed his lieutenant, but neither were present when some seamen of the ship, by their verbal orders, attempted to impress a seaman, who resisted and killed one of the pressgang: this was holden to be manslaughter only; Bradfoot's case, Fost. 154; if the seaman had been killed, it would have been murder. Dixon's case, 1 East, P. C. 313. See Borthwick's case, 1 Doug. 207.

3. The party impressed must be a "seaman, seafaring man, or other whose occupation or calling is to work in vessels or boats on rivers." Supra. Therefore, where the mate and some seamen of a ship of war, in the absence of the deputed officer, attempted to impress one How, who was servant to a tobacconist, and never was a mariner, and How made some resistance, and took out his knife, when one of the seaman hit

him a violent blow on the side of the head, with a large walking stick, having a great knob at the end of it, and he died of it this was holden to be murder, because the party was not liable to be impressed, and the deputed officer was not present and acting in the impressment. Dixon's case, supra. So, where a warrant was directed by the Admiralty to Lord Danby to impress seamen, and one Browning, his servant, without any warrant in writing, impressed a person who was no seaman, who, trying to escape, was killed by Browning; this was adjudged to be murder. 1 East, P. C. 312.

6. Principals and Accessories.

Principals.] If two persons be present, each aiding and abetting the other, either in the commission of a homicide,or in the commission of some other offence, in the prosecution of which a homicide is committed,-the one who kills is principal in the first degree, and the other guilty as principal in the second. In the case of a duel, from which death ensues, the seconds, as well the second of the party killed, as the second of the party killing,-are guilty of murder, as principals in the second degree. 1 Hawk. c. 31, s. 31. R. v. Young, 8 Car. & P. 644. And see ante, p. 235. So, in the case of a prize fight, if death ensue, not only the seconds, but all those who were present looking on, are guilty of manslaughter. Where it appeared that the prisoner was present at a prize fight, in which one of the parties was killed, but there was contradictory evidence whether he acted as second or not; and it was also doubtful whether the deceased came by his death from blows received by him in the fight, or received by him from individuals among the mob, who had broken the ring several times and beaten many persons with sticks: Littledale, J., held, that, whether the prisoner acted as second or not, if he encouraged the combatants by his presence, he must be deemed a principal in the second degree; but he desired the jury to consider whether the deceased met with his death in the fight or from the mob, for if the latter, the prisoner must be acquitted, it being proved that he had no stick upon the occasion, and that he was not one of those who broke in the ring: the jury found him guilty. R. v. Murphy, 6 Car. & P. 103. where in such a case it was objected that all the prisoners were present at the fight, and so principals in the second degree, and that their evidence therefore, as in the case of accomplices, required confirmation: Patteson, J., held, that although they were principals in the second degree, yet they could not be deemed such accomplices as required their testimony to be confirmed by other evidence. R. v. Hargraves, 5 Car. & P. 170.

But

Also, where divers persons resolve generally to resist all

opposers, in the commission of any breach of the peace, and to execute it in such a manner as may naturally tend to raise tumults and affrays,-as by committing a violent disseisin, or the like, and in so doing happen to kill a man: they are all guilty of murder; for those who wrongfully engage in such bold disturbances of the public peace, in open opposition to, and defiance of, the justice of the country, must at their peril abide the event of their actions. 1 Hawk. c. 31, s. 51. So, in the case of a riot or affray, if a constable be present, and interfere to prevent it, first producing his staff of office, or in other manner giving notice of his authority and of the intent with which he interposes, if he be resisted and he or any of his assistants be killed, it will be murder in every man who joined in such resistance. Fost. 311. 1 Hale, 461-463. Young's case, 4 Co. 40 b. R. v. Tyler, 8 Car. & P. 616. So, if a robbery be committed, and the country upon notice rise and pursue the robbers, who turn and make resistance, and in the struggle one of the pursuers be killed by the robbers or any of them, this will be murder in the whole gang joining in such resistance, whether present at the murder or at a distance, but taking part in the resistance. Fost. 310. 1 Hale, 464. So, where two soldiers came to a public-house late at night, and required to be served with beer, which the landlord refused on account of the lateness of the hour, and they then went away, uttering imprecations; in about an hour and a half afterwards, as the door was opened to let out some persons who had been detained in the house on business, one of the soldiers rushed in (the other remaining outside) and insisted on being served with beer, which the landlord again refused; and on the soldier's refusing to depart, and attempting to lay hands on the landlord, the latter collared him, and they pushed and pulled each other to the door, where the other soldier gave the landlord a violent blow on the head with some sharp instrument, of which he died: the soldiers being indicted for murder, Buller, J., held that this was murder in both, there being reasonable evidence that they had returned the second time with a deliberate intention to use personal violence in case beer should be refused to them. R. v. Willoughby et al., 1 East, P. C. 288. But where two private watchmen, seeing the prisoner and another man with two carts laden with apples, and suspecting they had stolen them, went up to them, and one walked beside the prisoner, and the other beside the other man, and whilst they were going along, the other man stepped back and wounded the watchman with whom he had been walking with a bludgeon: Upon the prisoner being indicted, as being present aiding and abetting, Garrow, B., told the jury, that to convict the prisoner the jury must be satisfied not merely that he and the other man came out for the common purpose of stealing apples, but that they also entertained

the common guilty purpose of resisting with extreme violence any person who might endeavour to apprehend them; if the only common purpose they had was that of stealing apples, and the violence of the prisoner's companion was merely the result of the situation in which he found himself, and proceeded from the impulse of the moment, without any previous concert, they must acquit the prisoner. R. v. Hawkins, 3 Car. & P. 392. So, where A. and B. were riding violently along a road, and seemingly racing, and A. rode past the horse of C. without doing any damage, but B. in following him rode against C., who was thereby thrown and killed, -this was holden to be manslaughter in B. only, not in A. R. v. Mastin, 6 Car. & P. 396. So, where two persons were indicted for cutting one Randall, with intent, &c., it appeared that the two prisoners were found in the area of a house at night, attempting to break in; one of them leaped out and ran away, but he was seized and secured by a watchman; the other was seized by Randall, another watchman, as he was running in another direction, but he gave Randall a violent blow on the head, and, during the scuffle that ensued, gave him a very severe cut on the head with the sharp end of an iron crow: the question was, whether the man who first ran away, could be said to be a principal in the second degree to the person who actually gave the blow, although not present at the time; and the judges held that he could not. R. v. White et al., R. & Ry. 99. And in all cases where there is no such common purpose, a person who is merely present at a murder, but neither takes any part in it, nor endeavours to prevent it, nor apprehends the murderer, nor levies hue and cry after him, although this strange behaviour is highly criminal, it will not of itself render him either principal or accessory. Fost. 350. So, where several persons were engaged in a smuggling transaction, and upon an attempt to oppose their design by one of the King's officers, one of the smugglers fired a gun, and killed one of his accomplices: it was holden that if the gun were discharged at the King's officers in prosecution of the original design, (which was a fact to be found by the jury), it would be murder in them all, although one of the accomplices happened to be killed but if done intentionally and with deliberation against the accomplice, from anger or some precedent malice in the party firing, it would be murder in him only. Plummer's case, Kel. 109.

In cases of poachers, questions of some nicety frequently arise. Where it appeared that upon some gamekeepers attempting to apprehend poachers, the latter drew up in a line, levelled their guns at the keepers, said they would shoot them, and one of them actually fired, and wounded one of the keepers: it was objected that as this was not done in pursuance of the common design of the poachers, but was entirely beside

it, that person alone who fired the shot could be convicted; but Vaughan, B., said it was quite clear from the evidence, that the common purpose of the poachers at the time was to attack the keepers; all pointed their guns at them, and one actually fired; all were therefore equally guilty; if, indeed, any one of them had separated himself from the others, in such a manner as to indicate a wish not to take part in what they were doing, his case would then admit of a very different consideration. R. v. Edmeads et al., 3 Car. & P. 390. So, upon an indictment of three persons for murder, it appeared that some gamekeepers seized two of the prisoners poaching, who after some little struggle stood still, but called to the third prisoner, who then came up, and with a stick shod with iron, beat the keepers on the head, killed one of them, and rescued the two other prisoners: Vaughan, B., held this to be murder in all. R. v. Whithorne et al., 3 Car. & P. 394. And where a gamekeeper and his assistant, after hearing shots fired in a wood belonging to their master, saw the prisoners come in a direction from it, one of whom had a gun; the keeper called to his assistant to take care of the gun, and the assistant therefore went to the man who had the gun, gently took hold of it near the lock, and took off the percussion cap; the keeper then pretending to call out to some other person to come forward, the three other men fell upon the keeper and his assistant, knocked them down and they became insensible; when the keeper came to himself, all the prisoners were passing him, and one of them said, "Dam 'em, we've done 'em both," and having passed on a few yards, one of them returned, and with some instrument he had in his hand, he gave the keeper a violent blow on the leg, which cut through his gaiter and wounded him: it was objected that as only one of them had given the blow on the leg, he alone was guilty: but the judge told the jury, that if they thought the prisoners were acting in concert, all were equally guilty; and the jury found them all guilty. R. v. Warner et al., R. & M. 380. 5 Car. § P. 525. Ante, p. 247.

If a man encourage another to kill himself, and be present at the time he does so, he will be principal in the murder. R. v. Dyson, R. & Ry. 523. Where a man and woman, who cohabited together, being in extreme poverty, agreed to commit suicide, and they together took a quantity of laudanum, of which the woman died, but the man recovered: the man was holden guilty of the murder of the woman, and convicted. R. v. Alison, 9 Car. & P. 418.

There may be cases, however, in which the degree of guilt of principals may be different. If whilst A. and B. are fighting, C. come up, and take part with A., and B. is killed, this would be manslaughter only in C., 1 Hawk. c. 31, ss. 35, 56, murder or manslaughter in A., according as his killing of B.