§ 440. Private persons interfering in riots for the furtherance of public justice should expressly avow their intention, or their killing will be but manslaughter.' If there be a malicious intention to kill, however, the case is murder.2 Private persons interfering to quell riots should give notice § 441. To justify the arrest of street-walkers and of their vagrants, there must be reasonable ground of suspicion. purpose. The present and more humane opinion in this respect is, Must be that the taking up of a person in the night, as a night- reasonable grounds to walker and disorderly person, though by a lawful officer, justify would be illegal if the person so arrested were innocent, vagrants. and there were no reasonable grounds of suspicion to mislead the officer.3 arrest of Time of § 442. The officer must also be careful not to make an arrest on a Sunday, except in cases of treason, felony, or breach of the peace; as, in all other cases, an arrest on that execution day will be the same as if done without any authority. But process may be executed in the night-time as well as by day.* mitted, or a dangerous wound given, of arrest. law, to arrest and detain in prison for examination persons walking in the streets at night, whom there is ground to suspect of felony, although there is no proof of felony having been committed. Lawrence v. Hedger, 3 Taunt. 14, 1811. And it has been said by Hawkins and others that every private person may, by the common law, arrest any suspicious night-walker, and detain him till he give a good account of himself. 2 Hawk. P. C. c. 13, s. 6; c. 12, s. 20. And it has been held that a person may be indicted for being a common night-walker, as for a misdemeanor. Ibid. c. 12, s. 20; Poph. 208; State v. Maxcy, 1 McMul. 503, 1841. But this prerogative is liable to great abuse, and should be kept within strict bounds. See article in 20 Alb. L. J. p. 215; Roberts v. Tooley's Case, 2 Ld. Raym. 1296, State, 14 Mo. 138, 1851; Whart. Cr. 1810. It is said that watchmen and Pl. & Pr. ? 80. That statutes authorbeadles have authority, at common izing summary arrest of vagrants are * State v. Ferguson, 2 Hill, (S. C.) 619, 1835. See R. v. Bourns, 5 C. & P. 120, 1831. 9 Co. 66 a; 1 Hale, 457; 1 Hawk. P. C. c. 13, s. 62. See Whart. on Hom. & 281. Man when officers take opposite § 443. Where officers accidentally, and without malice, take opposite parts in an affray, and one of them is killed, this, slaughter says Lord Hale, seems but manslaughter, and not murder, inasmuch as the officers and their assistants were engaged one against the other, and each had as much parts. authority as the other; but upon this it has been remarked, that perhaps it had been better expressed to have said, that inasmuch as they acted not so much with a view to keep the peace as in the nature of partisans to the different parties, they acted altogether out of the scope of their characters as peace officers, and without any authority whatever. If the sheriff, says the same authority, have a writ of possession against the house and lands of A., and A., pretending it to be a riot upon him, gain the constable of the vill to assist him, and to suppress the sheriff or his bailiffs, and in the conflict the constable be killed, this is not so much as manslaughter; but if any of the sheriff's officers were killed, it would be murder, because the constable had no authority to encounter the sheriff's proceeding when acting by virtue of the king's writ.3 § 444. Whoever joins with a defendant in resisting process is in A. aiding the same position, if he have notice, as the defendant arrested is himself. But malice in such case is imputable only to those who knew the officer was acting in an official capacity.5 B., when in the same position as B. Persons interfering to release prisoners cannot take advantage of the informality of the warrant. 6 constitutional, see People v. Forbes, 4 Park. C. R. 611, 1858; State v. Maxcy, 1 McMul. 501, 1841; Roberts v. State, 14 Mo. 138, 1851, and cases cited in Whart. Cr. Pl. & Pr. % 80. As to vagrants, see more fully Whart. Cr. Pl. & Pr. 80. As to night-walkers, see infra, 1446. 1 1 Hale, 460. 21 East P. C. c. 5, s. 71, p. 304. 3 1 Hale, 460; Anon. Exeter Sum. Ass. 1793; 1 East P. C. c. 5, s. 71, p. 305; 1 Russ. on Cr. (9th Am. ed.) 666, 841. Hugget's Case, Kel. 59. See 1 Hale, 456; Cro. Car. 378; Fost. 312 et seq.; R. v. Warner, R. & M. C. C. R. 385, 1833. See remarks of Pollock, C. B., in R. v. Davis, L. & C. 64, 1862. And see, also, R. v. Hunt, 1 Mood. C. C. 93; R. v. Curran, 3 C. & P. 397; R. v. Price, 8 Ibid. 282, 1838; R. v. Wier, 1 B. & C. 261, 1823; Kel. 87; R. v. Whithorne, 3 C. & P. 394, 1828; Jackson's Case, 1 Hale, 464, 465, 1675; 1 Hawk. c. 13; 4 Co. 40 b.; R. v. Luck, 3 F. & F. 483, 1862; R. v. Dadson, 2 Den. C. C. 35, 1849; State v. Murray, 15 Me. 100, 1837; Wolf r. State, 19 Ohio St. 248, 1869; State v. Garrett, Wins. (N. C.) 144, 1864; Boyd v. State, 17 Ga. 194, 1856; State v. Hilton, 26 Mo. 199, 1858. Supra, 8 418. ♪ State v. Zeibart, 40 Iowa, 169, 1874. 6 R. v. Allen, 17 L. T. (N. S.) 222, 1867. See infra, 1672 et seq. X. INFANTICIDE. Where, as When death occhild has indepen curs before dent circu lation, of homicide; otherwise, child is fence not when the § 445. To kill a child in its mother's womb is no murder; but if the child be born alive, and die after birth through the potion or bruises received in the womb, it is murder in the person who administered or gave them.' also, a blow is maliciously given to a child while in the act of being born, as, for instance, upon the head soon as the head appears, and before the child has breathed, it will be murder if the child is afterward born alive, and dies thereof. If the child has been killed by the mother wilfully and of malice aforethought while it is alive, and has an independent circulation of its own, this is murder, although the child be still attached to its mother by the umbilical cord,3 supposing it does not derive its power of existence from its connection with its mother.* But it must be proved that the child has actually been born into the world in a living state; and the fact of its having breathed, so it has been decided, is not a conclusive proof thereof. It has also 13 Inst. 50; 1 Hawk. 13, 16; R. v. Senior, 1 Mood. C. C. 346, 1832; R. v. West, 2 Cox C. C. 500; 2 C. & K. 784, 1848; R. v. Poulton, 5 C. & P. 329, 1832; R. v. Wright, 9 Ibid. 754, 1841; Evans v. People, 49 N. Y. 86, 1872. See discussion of this question in Dietrich v. Northampton, (Mass.) 30 Alb. L. J. 383, 1884. For life sentence, see Warren v. State, (Tex.) 26 S. W. Rep. 403, 1894. See Johnson v. State, 32 Tex. Cr. 504, 1893, as to accomplice. R. v. Senior, 1 Mood. C. C. 346, 1848; 3 Inst. 50; 1 Hawk. P. C. c. 13, s. 16; 4 Bl. Com. 198; supra, 331; 1 East P. C. c. 5, s. 14, p. 228; contra, 1 Hale, 433, and Staundf. 21. But the reason on which the opinions of the last two writers seem to be founded, namely, the difficulty of ascertaining the fact, cannot be considered as satisfactory, unless it be assumed that such fact never can be clearly established. born alive and dies from injuries prior after birth to birth. 5 Wallace v. State, 7 Tex. App. 570, 1880; 10 Ibid. 255, 1881; supra, ? 309. 6 R. v. Sellis, 7 C. & P. 850, 1837; Com. v. Donohue, 8 Phila. 623, 1871. Infra, 446. See cases cited supra, 309. It is ruled, however, if a child be actually wholly produced alive, it is not necessary that it should have breathed to make it the subject of murder. Upon an indictment for the murder of a child, where it appeared that the dead body of the child was found in a river, and it was proved by two surgeons that it had never breathed, Park, J. A. J., said: "A child must be actually wholly in the world in a living state to be the subject of a charge of murder; but if it has been wholly born, and is alive, it been held that if a person intending to procure abortion does an act which causes a child to be born so much earlier than the natural time that it is born in a state much less capable of living, and afterward dies in consequence of its exposure to the external air, the person who, by this misconduct, so brings the child into the world, and puts it thereby in a situation in which it cannot live, is guilty of murder if the misconduct was meant to kill; and the mere existence of a possibility that something might have been done to prevent the death would not render it the less murder.1 If the misconduct was merely reckless, without an intent to kill, the offence is manslaughter.2 Birth is a question of fact. § 446. Whether the child was born alive is a question of fact to be determined by all the circumstances of the case. Thus where the evidence went to prove that the child was dropped from the mother when she was at a privy, and was smothered in the soil, it was held a question to be determined in the first place by the jury whether the child was alive at the birth.3 The question of killing is in like manner to be determined by inference from all the facts.* Killing of child by negligent exposure § 447. A principle of much importance bearing on this question, and one that has been more fully discussed in a previous chapter in its general relations, is, that if a person do or omit any act toward another who is helpless, which act is man- or omission in usual natural sequence leads to the death slaughter. of that other, the crime amounts to murder if the act or omission be intentional; but if the circumstances are such that the person would not or could not have been aware that the result would be death, this would reduce the crime to manslaughter, provided the death was occasioned by an unlawful act, but not such an act as showed a malicious mind." is not essential that it should have breathed at the time it was killed, as many children are born alive, and yet do not breathe for some time after their birth." R. v. Brain, 6 C. & P. 349, 1834. See, also, R. v. West, 2 C. & K. 784, 1848. Compare R. v. Crutchley, 7 C. & P. 814, 1837; R. v. Reeves, 9 Ibid. 25, 1839; R. v. Enoch, 5 Ibid. 539, 1833; R. v. Wright, 9 Ibid. 754, 1841; R. v. Poulton, 5 Ibid. 329, XI. SUICIDE. in suicide der. § 448. Whoever is present, actually or constructively, encouraging the violent and illegal death of another, is responsible Surviving for such death, even though it was voluntarily submitted principal to by the deceased.' Thus, if two persons encourage indictable each other to commit suicide jointly, and one succeeds for murand the other fails in the attempt upon himself, he is a principal in the murder of the other. Nor is it necessary to prove that the deceased would not have killed himself without the defendant's co-operation; nor does it make any difference that the deceased was at the time under sentence of death.3 At com mon law there can § 449. As at common law the principal must be convicted before a conviction of the accessary, there can be at common law no conviction of an accessary before the fact to suicide, because the suicide is beyond the process of the courts. But by statutes in England and several of the United States, the advising another to commit suicide is made a substantive indictable offence." be no conaccessaries before the viction of fact to suicide. may be § 450. A woman desires to miscarry of a child with which she is pregnant, and assents to an operation for this purpose; Killing and dies from the operation. Whether, in such case, murder the offence is murder or manslaughter, depends largely when incion the intent as appearing on the whole case. If the producing intent were to kill or grievously injure her, the offence is tion. 2 Lew. 220; R. v. Middleship, 5 Cox C. C. 275, 1850. See, fully, supra, 22 56, 331, 359; infra, ?? 1563 et seq. Griffith v. State, 80 Ala. 583, 1891; Warren v. State, (Tex.) 16 S. W. Rep. 747, 1894. 1 R. v. Sawyer, 1 Russ. Cr. & M. (9th Am. ed.) 670; R. v. Dyson, R. & R. C. C. 528, 1819; State v. Avery, 113 Mo. 475, 1893. 6 dent to an abor Com. v. Dennis, 105 Mass. 162, 1870; Com. v. Mink, 123 Mass. 422, 1877; and see supra, ¿? 216, 326. By statute in Missouri the offence is manslaughter, State v. Ludwig, 70 Mo. 412, 1879. R. v. Leddington, 9 C. & P. 79, 1839; R. v. Russell, 1 Mood. C. C. 356, 1832. 5 See supra, 142; infra, 451. As to Ohio, see Blackburn v. State, 23 Ohio, 165, 1872. By 175 of the New York Penal Code of 1882, whoever "wilfully in any manner encourages, advises, assists, or abets another person in attempting to take the latter's life," is guilty of a felony. See supra, ?? 325, 390. |