drawn; and why it should not be left to the jury to decide whether the death was the direct result of the wound. This seems to be another case of interference with the province of the jury. Again, it is plain that a surgeon's skill has very much to do with the recovery of the injured person.(k)

(k) v. R. v. Holland, 2 M. & R. 351.

CHAPTER I.

HOMICIDE.

HOMICIDE-the destroying of the life of a human being-includes acts varying from those which imply no guilt at all to those which constitute the greatest crime and meet with the extreme punishment of the law. Three kinds of homicide are usually distinguished, each class admitting of subdivisions:

Justifiable: Excusable: Felonious.

It may be stated, at the outset, that if the mere fact of the homicide is proved, the law presumes the malice which is necessary to make it felonious; and, therefore, it lies on the accused to show that it was justifiable or excusable.

Justifiable homicide, that is, where no guilt, nor even fault attaches to the slayer. For one species of homicide the term "justifiable" seems almost too weak, inasmuch as not only is the deed justifiable, but also obligatory. Three cases of justifiable homicide are recognized:

i. Where the proper officer executes a criminal in strict conformity with his legal sentence. A person other than the proper officer (i. e., the sheriff or his deputy), who performs the part of an executioner, is guilty of murder. The criminal must have been found guilty by a competent tribunal; so that it would be murder otherwise to kill the greatest of malefactors. The sentence must have been. legally given; that is, by a court or judge who has author. ity to deal with the crime. If judgment of death is given by a judge who has not authority, and the accused is executed, the judge is guilty of murder. The sentence must be strictly carried out by the officer (i. e., the sentence as it stands after the remission of any part which the sovereign thinks fit), so that if he beheads a criminal whose sentence is hanging or vice versa, he is guilty of murder. Though

the sovereign may remit a part of the sentence, he may not change it.

The two following instances of justifiable homicide are permitted by the law as necessary; and the first, at least, as for the advancement of public justice.

ii. When an officer of justice, or other person acting in his aid, in the legal exercise of a particular duty, kills a person who resists or prevents him from executing it. Homicide is justifiable, on this ground, in the following cases: () (a) When a peace officer, or his assistant, in the due execution of his office, whether in a civil or a criminal case, kills one who is resisting his arrest or attempt to arrest. (b) When the prisoners in jail, or going to jail, assault the jailer or officer, and he, in his defense, to prevent an escape, kills any of them. (c) When an officer, or private person, having legal authority to arrest, attempts to do so, and the other flies, and is killed in the pursuit. But here the ground of the arrest must be either a felony, or the infliction of a dangerous wound.(1) (d) When an officer, in endeavoring to disperse the mob in a riot or rebellious assembly, kills one or more of them, he not being able otherwise to suppress the riot. In this case the homicide is justifiable both at common law and by the riot act.(m)

In all these case, however, it must be shown that the killing was apparently a necessity.

But it is not difficult to instance cases in which the officer would be guilty (a) of murder, for example, if the killing in pursuit, as above, were in case of one charged with a misdemeanor only, or of one required merely in a civil

(2) v. 4 Bl. 179.

(m) 1 Geo. 1, st. 2, c. 5.

(1) "If, after notice of intention to arrest the defendant, he either flee or forcibly resist, the officer may use all necessary means to effect the arrest." 2 Revised Stats. Indiana (1876), 379.

"When the arrest is being made by an officer, under the authority of a warrant, after information of the intention to make the arrest, if the person to be arrested either flee or forcibly resist, the officer may use all necessary means to effect the arrest." Rev. Stats Iowa (1873), 606

suit; (n) (b) of manslaughter, for example, if the killing, in case of one charged with a misdemeanor, were occasioned by means not likely to kill, as by tripping up the fugitive's heels.

iii. When the homicide is committed in prevention of a forcible and atrocious crime. Such crimes, it is said, are the following: Attempting to rob or murder another in or near the highway, or in a dwelling-house; or attempting burglariously to break a dwelling-house in the night-time. In such cases, not only the owner, his servants, and members of his family, but also any strangers present are justified in killing the assailant. But this justification does not apply to felonies without force, e. g., pocket-picking; nor to misdemeanors of any kind.

A woman is justified in killing one who attempts to rav ish her; and so, too, the husband or father may kill a man who attempts a rape on his wife or daughter, if she do not consent. And even if the adultery is by the consent of the wife, the husband, taking the offender in the act and killing him, is guilty of manslaughter only.

It is said that the party whose person or property is attacked is not obliged to retreat, as in other cases of selfdefense, but he may even pursue the assailant until he finds himself or his property out of danger.(0) But this will not justify a person firing upon every one who forcibly enters his house, even at night. He ought not to proceed to the last extremity until he has taken all other possible steps. In fact, the conduct of the other must be such as to render it necessary, on the part of the one killing, to do the act in self-defense.(p) This brings us very near to the line which separates jutisfiable from excusable homicide; in fact it is difficult to distinguish between this and excusable homicide se defendendo. It may be ques tioned whether the distinction between justifiable and excusable is a substantial one; whether the cases under the former are not extreme cases of se defendendo.

Excusable homicide.—We have just intimated that there

(n) v. R. v. Dadson, 20 L. J. (M. C.) 57.

(0) Fost. 273; 1 Hawk., c. 28, ?? 21, 24. (p) R. v. Bull, 9 C. & P. 22.

is little if any ground for the distinction between justifiable and excusable homicide. Perhaps there may be something in this, that in the former case the killer is engaged in an act which the law enjoins or allows positively, while in the latter he is about something which the law negatively does not prohibit.(q) In neither case is there the malice which is an essential of a crime. In former times, a very substantial difference was made between the two kinds of homicide. That styled "excusable" did not imply that the party was altogether excused; so much so that Coke says(r) that the penalty was death. But the earliest information which the records supply shows that the defendant was entitled to a complete pardon, and the restitution of his goods; but he had to pay a sum of money to procure this award. Now it is expressly declared by statute(s) that no forfeiture or punishment shall be incurred by any person who kills another by misfortune or in self-defense, or in any other manner without felony.

The two kinds of so-called excusable homicide are homicide in self-defense; homicide by accident or misfortune.

i. Se defendendo, upon sudden affray.—We have noticed above the case of a man killing another when the latter is engaged in the performance of some forcible crime. What we have now to deal with is a kind of self-defense, the occasion of which is more uncertain in its origin, and in which it seems natural to impute some moral blame to both parties. It happens when a man kills another, upon a sudden affray, in his own defense, or in defense of his wife, child, parent, or servant, and not from any vindictive feel

(9) The reason usually given is that in both the forms of excusable homicide there may be some degree of blame attributable. In the first case, i. e., self-defense, inasmuch as in quarrels usually both parties are to some extent in fault; in the second, i. e., accident, the party may not have used sufficient caution. But to visit the act under all circumstances with the punishments due to what may have happened is obviously unjust.

(r) 2 Inst. 148, 315.

(s) 24 and 25 Vict., c. 100, 8 7, re-enacting 9 Geo. 4, c. 31, § 10.