FORMS. mon gaol [or, house of correction] at in the said county, and there deliver him to the keeper thereof, together with this precept: And I do also command you the said keeper to receive and keep in your custody the said A. B. for the space of three months, unless the said sum shall be sooner paid, pursuant to the said conviction and warrant, and for so doing this shall be your sufficient warrant. Given under my hand and seal, the day of in the year of our Lord C. D. Notice of appeal to quarter sessions (a). (No. 158). 4. B. take notice, that I intend to appeal to the next general quarter sessions of the peace to be holden for the [county, &c.] of , against an order [conviction, or other proceeding], (as the case may be) [particularly specifying the purport of such order, &c. and assigning the grievance and cause of complaint]. Dated the day of C. D. (a) The 3 Geo. IV. c. 126, gives this form, see ante, 211. Highwayman. See Robbery, Vol. V.; Hundred, Vol. III. Hiring and Service, Settlement of Poor by. See Poor, Vol. IV. ; and as to the Hiring of Servants, post, Servant, Vol. V. Homicide*. HOMICIDE, in law, signifies the killing of a man by a man. 1 Hawk. c. 26, s. 2. And it includes in it not only petit treason (a), concerning which title see Treason, Vol. V., but also the several offences which are treated of in the following sections. There is also another kind of untimely death of a man, not properly homicide; when he is killed by a horse, a cart, a tree, or the like, and not by a man, which is called casual death; for which see title Deodand, Vol. I. I. Justifiable Homicide, 241 to 243. II. Homicide by Misadventure, 243 to 247. III. Homicide by Self-defence, 247. IV. Manslaughter, 248. [9 Geo. IV. c. 31, s. 9.] * See in general Russ. on Crimes, 3 Chit. C. L. 723; Arch. Crim. Law, 248, &c. (a) By the 9 Geo. IV. c. 31, s. 2, petit treason is to be treated as murder only. V. Murder, and herein, 249 to 257. (1) The Offence, 249. (2) The Indictment, 251. (4) The Place of Trial, 253. (5) The Punishment, Sentence, Execution, and Treatment (6) The Escape of Murderers, 257. [57 Geo. III. c. 53; 59 Geo. III. c. 44; 9 Geo. IV. c. 31]. VI. Attempts to Murder or do Harm, &c. 257. VII. Self-murder, 257. [4 Geo. IV. c. 52]. VIII. Forms, see List of, post, 258, I. Justifiable Homicide. To make homicide justifiable, it must be owing to some unavoidable ne- On a real neces cessity, to which the person who kills another must be reduced, without any sity. manner of fault in himself. 1 Hawk. c. 28, s. 1. And there must be no malice coloured under pretence of necessity; for wherever a person who kills another, acts in truth upon malice, and takes occasion from the appearance of necessity to execute his own private revenge, he is guilty of murder. 1 Hawk. c. 28, s. 2. crime, &c. Homicide committed in prevention of a forcible and atrocious crime, In prevention of amounting to felony, is justifiable. As if a man come to burn my house, and I shoot out of my house, or issue out of my house, and kill him. Hale's Sum. 39. So, if A. makes an assault upon B., a woman or maid, with intent to ravish her, and she kills him in the attempt, it is se defendendo; because he intended to commit a felony. 1 Hale, 485; Hale's Sum. 39. It seems to be agreed, that no breach of a man's word or promise, no trespass either to lands or goods, no affront by bare words or gestures, however false or malicious it may be, and aggravated with the most provoking circumstances, will excuse him from being guilty of murder, who is so far transported thereby as immediately to attack the person who offends him in such a manner as manifestly endangers his life, without giving him time to put himself upon his guard, if he kills him in pursuance of such an assault, whether the person slain did at all fight in his defence or not. 1 Hawk. c. 31, s. 33. A person set to watch a yard or garden is not justified in shooting one who comes into it in the night, even if he should see him go into his master's hen-roost; but if, from the conduct of the party, he has fair ground for believing his own life in actual and immediate danger, he is justified in shooting him. R. v. Scully, 1 C. & P. 319. Homicide committed by the proper officer in the execution of a criminal In execution of a in strict conformity with his sentence, is justifiable. 4 Bla. Com. 178; 1 Hale, 501. criminal. process, &c. Homicide necessarily committed by an officer or other person acting in In execution of his aid in the legal exercise of a particular duty, which the person resists or prevents him executing, is, in general, justifiable. As, if rioters, or forcible enterers or detainers, stand in opposition to the Rioters. justices' lawful warrant, and any of them be slain; it is no felony. Hale's Sum. 37. So, if they stand in opposition to the sheriff's posse comitatus. Vide stats. 13 Hen. IV. c. 7; 2 Hen. V. c. 8; 1 Hale, 53. And if the sheriff or magistrate, or any one coming in aid of them, be killed, it is murder in all. Cromp. 22; 1 MS. Sum. 219. JUSTIFIABLE HOMICIDE. Felons. Prisoners. Peace breakers, and persons guilty of misdemeanors, &c. Civil process. Notice on process. So, if a person having actually committed a felony will not suffer himself to be arrested, but stand on his own defence, or fly, so that he cannot possibly be apprehended alive by those who pursue him, whether private persons or public officers, with or without a warrant from a magistrate, he may be lawfully slain by them. 1 Hawk. c. 28, s. 11. So, if a felony hath actually been committed, and an officer or minister of justice, having lawful warrant so to do, arrest an innocent person, and such person assault the officer or minister of justice, the officer is not bound by law to give back, but to carry him away; and if, in execution of his office, he cannot otherwise avoid it, but in striving kill him; it is no felony. And in that case, the officer or minister of justice shall forfeit nothing; but the party who so assaulted or offered to fly away, and is killed, shall forfeit his goods. 3 Inst. 56. Also, if a person arrested for felony break away from those who are conducting him to gaol, they may kill him, if they cannot otherwise take him. But in this case, likewise, there must have been a felony actually committed. Hale's Sum. 36, 37. Also, if a criminal, endeavouring to break the gaol, assault his gaoler, he may be lawfully killed by him in the fray. 1 Hawk. c. 28, s. 13. Where an officer or private person, having legal authority to apprehend a man, attempts to do so, and the man, instead of resisting, flies, or resists and then flies, and is killed by the officer or private person in the pursuit: if the offence with which the man was charged be a breach of the peace, or other misdemeanor merely; Fost. 271; 1 Hale, 481; 2 Hale, 117; or if the arrest were intended in a civil suit; 1 Hale, 481; Fost. 271; or if a pressgang kill a seaman or other person flying from them; R. v. Browning, 1 East, P. C. 312; and see Id. 308; 1 Doug. 207; the killing in these cases would be murder-unless, indeed, the homicide were occasioned by means not likely or intended to kill, such as tripping up his heels, giving him a blow of an ordinary cudgel or other weapon not likely to kill, or the like, in which case the homicide, at most, would be manslaughter only. See Fost. 271; Arch. C. L. 267. If an officer or private person attempt to interfere to suppress an affray, and be resisted, and kill the person resisting, this is also justifiable homicide. 1 Hale, 481, 484; Fost. 274. In civil cases, although the sheriff cannot kill a man who flies from the execution of a civil process, yet, if he resist the arrest, the sheriff or his officer need not give back, but may kill the assailant. Hale's Sum. 37. So if, in the arrest and striving together, the officer kill him, it is no felony. Hale's Sum. 37. The party must have some notification of the officer's business, or the killing of him will not be murder. (1 East's P. C. 319, and the authorities there cited). If he be a known sworn officer, the law in the instances above mentioned will imply notice; if he be a special bailiff named in the process, he must declare his business and authority, as by using words of arrest or the like; and if such declaration be true, and the process legal, and afterwards he be killed, it is murder; for, after that declaration, the party killing acted at his peril. But if the officer declare his business, it is not necessary he should produce the warrant itself where it is not demanded. It is also said, that if a bailiff or constable be sworn, and commonly known to be such, and act within his own precinct, he need not shew his warrant to the party, though he demand a sight of it, but the officer ought to tell him the substance of it; but that all others, or these, if acting out of their precincts, ought to shew it if demanded. If this be understood merely of the warrant constituting him bailiff or constable, it may be true under the circumstances before noticed; but with respect to the writ or process itself against the party, there is no difference between the public or private bailiff; for, in either case, if the party submit to the arrest, and demand it, he is bound to shew at whose suit, for what cause, out of what court the process issues, and when and where returnable. In no case, however, is he required to part with the warrant out of his own possession, for that is his justification. See 8 T. R. 188. JUSTIFIABLE If the warrant be directed to several, any of them may execute it. And Arrest to be duly in no case of arrest is a constable bound to carry a prisoner before a parti- made. cular magistrate desired by the prisoner himself, but he may follow his own discretion, unless the warrant be special, and direct otherwise. 1 Hale, 459; 5 Rep. 59; 1 East's P. C. 320. Ante, Arrest, Vol. I.; post, Marrant, Vol. V. If the officer, in executing his office, exceed his authority, the law gives Exceeding autho him no protection in that excess: and it not only behoves the ministers of rity. justice and other public officers, but likewise private persons endeavouring to arrest or imprison in the several cases already specified, to be very careful that they do not misbehave themselves in the discharge of their duty; for, if they do, they may forfeit this special protection. 1 MS. Sum. 170; Post. 319; 1 East's P. C. 320. In order to make the killing of a bailiff in resisting the execution of mesne process in a civil action amount to murder, Wood, B., considered it necessary to prove the writ as well as the sheriff's warrant to the bailiff; and such homicide will not amount to murder, if the bailiff attempted to execute a writ without a non omittas clause within an exclusive liberty. Rex v. Mead, 2 Stark. 205. Killing an officer will be murder, though he has no warrant, and was not present when any felony was committed, but takes the party on a charge only, though that charge does not in terms specify all the particulars necessary to constitute the felony. R. v. Ford, R. & R. C. C. 329. If the servant of the owner of property find a party actually committing an offence against the stat. 7 & 8 Geo. IV. c. 29, (the Larceny Consolidation Act), and apprehend him under the 63rd sect. of that act, and, while taking the party to a magistrate, such party kill him, this will be murder; but if the servant either did not see him in the actual commission of the offence, or be taking him to any other place than before a magistrate, it will not be murder. R. v. Curran, 3 C. & P. 397. On an indictment under Lord Ellenborough's act for cutting, it appeared, that the prisoner was seen, in the night, entering an outhouse with intent to commit a felony, by a person who went and informed the prosecutor of it. The latter, in about a quarter of an hour, went in search of the prisoner to apprehend him. The prisoner had left the prosecutor's premises, and was found in a neighbouring garden, crouched down under a tree, with a drawn sword in his hand. The prosecutor apprehended the prisoner, who cut and wounded him. It was objected, that the prosecutor had no right to apprehend the prisoner, and that, if death had ensued, it would have been manslaughter only. The prisoner was convicted, and the twelve Judges held the conviction right. R. v. Howarth, Car. C. L. 231, 333; R. & M. C. C. 207, S. C. charge. In all these cases the party, upon arraignment, having pleaded not guilty, Trial and disthe special matter must be found; whereupon the party shall be dismissed without any forfeiture or pardon purchased. Hale's Šum. 38; and see the 9 Geo. IV. c. 31, s. 10, post, 247, confirming this law. II. Homicide by Misadventure. I HAVE purposely avoided the word chancemedly in this place, because Chancemedly. authors do not seem to be agreed whether it is to be applied to homicide by misadventure, or to manslaughter. Lord Coke and Mr. Hawkins seem to understand it of manslaughter; Lord Hale and others, of homicide by misadventure. The original meaning of the word seems to favour the former opinion, as it signifies a sudden or casual meddling or contention; whereas homicide by misadventure supposeth no previous meddling or falling out. But the same author sometimes in different places applies it to both of them promiscuously. HOMICIDE BY Homicide by misadventure is where a man is doing a lawful act, without MISADVENTURE intent to hurt another, and death casually ensues. Hale's Sum. 31; 1 What is homicide by misadventure. Lawful acts must be done with caution. Workmen throwing rubbish. Driving carriages. Sports. East's P. C. 221. As, where a labourer, being at work with a hatchet, and the head flies off and kills one who stands by; or where a third person whips a horse on which a man is riding, whereupon he springs out and runs over a child, and kills him; in which case the rider is guilty of homicide by misadventure, and he who gave the blow, of manslaughter. 1 Hawk. c. 29, s. 3. But if a person riding in the street whip his horse to put him into speed, and run over a child and kill him, it is homicide, and not by misadventure; and if he ride so in a press of people, with intent to do hurt, and the horse killeth another, it is murder in the rider. 1 Hale, 476. It is not sufficient that the act upon which death ensues be lawful and innocent in itself. It must be done in a proper manner, and with due caution to prevent mischief. Fost. 262; 1 East's P. C. 261. Thus, in the case of workmen throwing stones and rubbish from a house in the ordinary course of their business, by which a person underneath happens to be killed; if they deliberately saw the danger, or betrayed any consciousness of it, from whence a general malignity of heart might be inferred, and yet gave no warning, it will be murder, on account of the gross impropriety of the act. If they did not look out, or not till it was too late, and there was even a small probability of persons passing by, it will be manslaughter. But if it had been in a retired place, where there was no probability of persons passing by, and none had been seen about the spot before, it seems to be no more than accidental death; for though the act itself might breed danger, yet the degree of caution requisite being only in proportion to the apparent necessity of it, and there being no apparent call for it in the instance put, the rule applies, de non existentibus et non apparentibus eadem est ratio. So, if any person had been before seen on the spot, but due warning were given, it will be only misadventure. Hull's case, 1664; Kel. 40; 1 Russ. 769. On the other hand, in London and other populous towns, at a time of day when the streets are usually thronged, it would be manslaughter, notwithstanding the ordinary caution used on other occasions of giving warning; for in the hurry and noise of a crowded street, few people hear the warning, or sufficiently attend to it, however loud. 1 East's P. C. 262. Again, if a person driving a carriage happens to kill another: if he saw or had timely notice of the mischief likely to ensue, and yet wilfully drove on, it will be murder; for the presumption of malice arises from the doing of a dangerous act intentionally; there is the heart regardless of social duty. If he might have seen the danger, but did not look before him, it will be manslaughter, for want of due circumspection. But if the accident happened in such a manner that no want of due care could be imputed to the driver, it will be accidental death, and he will be excused. 1 East's P. C. 263. The mere calling out will not excuse the offender. R. v. Walker, 1 C. & P. 320; 1 East's P. C. 263. A. was driving a cart with four horses, in the highway at Whitechapel, and, he being in the cart, and the horses upon a trot, they threw down a woman who was going the same way with a burthen upon her head, and killed her: Holt, C. J., Tracy, J., Baron Bury, and the Recorder Lovel, held this to be only misadventure. But, by Lord Holt, if it had been in a street where people usually pass, this had been manslaughter; but it was clearly agreed that it could not be murder. O. B. Sess., before M. T. 1704; 1 East's P. C. 263. And see as to accidents occasioned by furious driving of stage coaches, 1 Geo. IV. c. 4, title Stage Coach, Vol. V. And see 7 & 8 Geo. IV. c. lxxv., as to accidents by the overloading of boats by watermen, title Thames, Vol. V. If, when engaged in an unlawful or dangerous sport, a man kill another by accident, it is manslaughter. Fost. 259; 1 Hale, 472; 1 Hawk. c. 29, s. 5; Ward's case, 1 East, P. C. 270. If the sport were lawful and not dangerous, it would be homicide by misadventure only. Id. |