felony.' But if an intruder refuse to leave, when a request to leave is either given or is implied from resistance to his entrance, he may be ejected by the employment of as much force as is requisite for the purpose, though the use of excessive force makes the party using it responsible in case of death for manslaughter.3 2 § 507. The use of spring-guns has been already incidentally noticed. We may here repeat the general principle, that spring necessary man is not justified in using instruments of destruction Killing by (e. g., spring-guns) for the defence of his property in any guns, case in which he would not be justified in taking life if when his house was actually assailed by a person with felonious to exclude burglars, is intent. Such guns may be used in a house to protect valu- excusable; ables there stored; but when they are negligently planted guns are in a place where they may be reasonably expected to injure set bond ordinary trespassers accustomed and likely to frequent such negli place, the killing of such a trespasser is manslaughter. 6 when such fide, but gently, it 18 man 1 R. v. Sullivan, C. & M. 209, 1841; Bird v. Holbrook, 4 Bing. 628; State v. Smith, 3 Dev. & Bat. 117, U. S. v. Gilliam, 11 Wash. Law Rep. 1838; McCoy v. State, 3 Eng. (Ark.) 119; Cent. Law J., 182, 1883; John451, 1848. See supra, 465-6; 2 son v. Patterson, 14 Conn. 1, 1840; Addis. on Torts, 793; Meade's Case, State v. Moore, 31 Ibid. 479, 1863. 1 Lew. 187, 1836; Howell v. Jackson, See Whart. on Neg. 8 347; Town6 C. & P. 723. As to the right of ex- send v. Wathen, 1 East, 277. And pulsion, see infra, ¿¿ 624 et seq. see a striking article by Sydney Smith, in the Edinburgh Review, 1821, reprinted in his essays, Am. ed. p. 227. ' Pennsylvania v. Robertson, Addis. 246, 1794; State v. Dugan, 1 Houst. C. C. 563, 1879; Reins v. People, 30 Ill. 256, 1863. See Greschia v. People, 53 Ibid. 295, 1870; Lyon v. State, 22 Ga. 399, 1857; McCoy v. State, 3 Eng. (Ark.) 451, 1848; Hinton v. State, 24 Tex. 454, 1859. * See infra, ¿ 624; supra, ?? 465-6; infra, 621 et seq.; Wild's Case, 2 Lew. 214, 1837; State v. Murphy, 61 Me. 56, 1870; State v. Lazarus, 1 Mill, 34, 1817. See State v. Harman, 78 N. C. 515, 1878, where it was held that a malicious and wanton homicide of a visitor who though forbidden had entered peaceably was murder. Supra, * 459. * See supra, ? 464. 'State v. Moore, 31 Conn. 479, 1863; Gray v. Combes, 7 J. J. Marsh, 478, 1832. In England it was originally held that the plaintiff, if he had notice of the spring-guns, could not recover for injury received by him. Ilott บ. Wilkes, 3 B. & A. 304; Deane v. Clayton, 7 Taunt. 489, 1817. Statutes followed making culpable injury by spring guns or man-traps a criminal offence. See, as to construction of statutes, Wootton v. Dawkins, 2 C. B. (N. S.) 412, 1857. In Jordin v. Crump, 8 M. & W. 782, 1841, the rule is laid down that a person, passing with his dog through a wood, in which he knew dog-spears are set, has no right of action against the owner of the wood for the death or injury to his dog, who, by reason of his own natural instinct, and slaughter; And where the intent is to kill any person entering, and no due notice is given, the offence is murder. The fact that the party setting the gun was absent at the explosion is no defence.2 when maliciously, murder. Killing under mandate of law justifiable. 4. Execution of the Laws. § 508. The execution of malefactors, by the person whose office obliges him, in the performance of public justice, to put those to death who have forfeited their lives by the laws and verdict of their country, is an act of necessity, where the law requires it.3 But the act must be under the immediate precept of the law, or else it is not justifiable; and, therefore, wantonly to kill the greatest of malefactors without specific warrant would be murder. And a subaltern can only justify killing another on the ground of orders from his superior in cases where the orders were lawful. As we have seen, a warrant that is without authority is no defence; though it is otherwise when the defects are merely formal." And so may killing under superior duty. 5. Superior Duty. § 509. It has already been observed that there are cases in which a surgeon, when called upon to determine whether a critical operation is to be performed, may undertake such operation, though the prospects of success are slight, if the alternative be a certain miserable death, in the natural progress of the disease. The same view may be accepted when the alternative is the sacrifice in childbed of the life of a mother or that of a child, and the life of the child is taken. Once more, supposing that the safety of a city require that a house should be destroyed by gunpowder, and supposing there be no time to rescue all the inmates of the house, the killing of one of such inmates, under the circumstances, would be excusable.8 1 3 5 6 Supra, 94, 307, 401. U. S. v. Carr, 1 Woods, 480, 1872. against the will of his master, runs Simpson v. State, 59 Ala. 1, 1877. off the path against one of the dog- 2 Supra, & 218. spears, and is killed or injured; because the setting of dog-spears was not in itself an illegal act, nor was it rendered so by the 7 & 8 Geo. IV. c. 18. The cases are reviewed in able opinions by Sherman, J., in Johnston v. Patterson, 14 Conn. 1, 1840; and by Doe, J., in Aldrich v. Wright, 53 N. H. 398, 1873. Supra, 95-6, 139, 144. See Territory v. Yee Dan, (N. M.) 37 Pac. Rep. 1101, 1894. 7 Ibid. * See supra, ?? 95-6, 139. 6. Necessity. Sacrifice of life excu when nec essary to own. § 510. The canon law, which lies at the basis of our jurisprudence in this respect, excuses the sacrifice of the life of one person, when actually necessary for the preservation another's of the life of another, and when the two are reduced to sable such extremities that one or the other must die,' quoniam necessitas legem non habet. Si quis propter save one's necessitatem famis, aut nuditatis furatus fuerit ciberia, vestem, vel pecus; poeniteat hebdomadas tres, et, si reddiderit, non cogatur ieiunare. Quod non est licitum in lege, necessitas facit licitum. So an eminent French jurist: En un mot, l'acte ne peutêtre excusable que lorsque l'agent cède à l'instinct de sa propre conservation, lorsqu'il se trouve en présence d'un péril imminent, lorsqu'il s'agit de la vie. In the same view leading German jurists unite.5 But it should be remembered that necessity of this class must be strictly limited. Hence it has been held by the canon jurists that the right can only be exercised in extremity, and in subordination to those general rules of duty to which even such a necessity as that before us must be subordinate. Hence when the question is between an unborn infant's life and a mother's, the mother is to be preferred; and between a sailor and a passenger, supposing there are more than enough sailors for the purpose of navigation, the passenger, as will presently be seen, ought to be preferred. But no assent by the party sacrificed can be by itself a defence." How far culpability precludes this defence has been already discussed.7 § 511. Upon the great authority of Lord Bacon it has been held that where two shipwrecked persons get on the same Self-presplank, and one of them finding it not able to save them ervation in both, thrusts the other from it, whereby he is drowned, shipwreck. it is excusable homicide. Lord Hale, however, doubts this, on the 5 Berner, De impunitate propter 16, pp. 187-90; Pufendorff's Law of summan necessitatem, etc. (1861); Nature, 204; Herbert's Legal MaxGeib, Lehrbuch, ii. 225; and an inter- ims, 7. esting compendium in Holtzendorf, ii. 180. ground that a man cannot ever excuse the killing of another who is innocent, under a threat, however urgent, of losing his own life if he do not comply; and that if one man should assault another so fiercely as to endanger his life, in order to compel him to kill a third person, this would give no legal excuse for his compliance. On this Mr. East remarks, that if the commission of treason may be extenuated by the fear of present death, and while the party is under actual compulsion, there seems to be no reason why homicide may not also be mitigated upon the like consideration of human infirmity; though, in case the party might have recourse to other apparent means for his protection in his apparent necessity, his fears furnish no excuse for killing.3 1 1 Hale, c. 28, s. 26; Arp v. State, 97 Ala. 5, 1893; Hicks v. U. S., 150 U. S. 442, 1893. 2 1 East P. C. c. 2, s. 15, p. 70. 3 Ibid. c. 5, s. 61, p. 294. received rendered her loss inevitable, and that the crew could only be saved, if saved at all, by taking refuge in the boats at once. The boats were immediately launched; in the long-boat In this country this topic has under- were crowded thirty-two passengers, gone the test of a judicial investiga- besides a portion of the crew, in all tion, in a court and under circum- forty-two persons; in the jolly-boat stances peculiarly favorable to its were placed nine persons. The two careful consideration. In March, 1842, boats pushed away from the ship, and Alexander William Holmes was in- the ropes by which they were attached dicted, in the United States Circuit to her were cut just before the ship Court for the Eastern District of went down. They remained together Pennsylvania, before Baldwin, J., for until the next morning, when they manslaughter. From the evidence it separated. During the first day the appeared that the ship William Brown weather was moderate and the sea left Liverpool on the 13th day of calm. From the moment the longMarch, 1841, having on board sixty- boat reached the water it was necesfive passengers and a crew composed sary to bail; she was leaky, and the of seventeen seamen, the whole num- plug was insecure and insufficient for ber amounting to eighty-two, most of the purpose. She was so loaded that the passengers being Irish and Scotch the gunwale was but a few inches from emigrants. The voyage was very favor- the water. Toward evening the sea able until the evening of the 19th of became rough, and at times washed April, at which time, while all were in over the sides of the boat. On the their beds except the watch, consisting second night, not much more than of seven persons, among whom was twenty-four hours after the abandonAlexander William Holmes, the pris- ment of the ship, the sea becoming oner, a Swede by birth, the vessel more and more tempestuous, and the struck an iceberg, and immediately danger of destruction imminent, the commenced leaking. The sails were defendant, together with the remainshortened, and resort was had to the ing sailors, proceeded to throw overpumps. Upon examination it was board those passengers whose removal found that the injury the vessel had seemed necessary for the common XIV. INDICTMENT. Under this head it is practicable to notice only such points of pleading as are peculiar to homicide. Other points of pleading are elsewhere discussed.1 safety. Relief shortly afterward came, but great conflict of evidence existed as to whether the boat could have held out in its originally crowded state even during that short period. The question, therefore, whether, with no prospect of aid, acting under the circumstances which surrounded the defendant at the time the act was committed, such necessity existed as would justify the homicide, was one of great doubt. But a new test was proposed by Judge Baldwin. Holding that in such an emergency there was no maritime skill required which would make the presence of a sailor of more value than that of a passenger, he maintained, with great power of argument, that in such case, it being the stipulated duty of the sailor to preserve the passenger's life at all hazards, if a necessity arose in which the life of one or the other must go, the life of the passenger must be preferred. If, on the other hand, the crew was necessary, in its full force, for the management of the vessel, the first reduction to be made ought to take place from the ranks of the passengers. But under any circumstances he insisted that the proper method of determining who was to be the first victim out of the particular class was by lot. The defendant, under the charge of the court, was convicted, but was sentenced to an imprisonment of light duration. U. S. v. Holmes, 1 Wall. Jr. 1, 1842. Crim. Law, 3d ed., art. 33,) thus comments: "I doubt whether an English court would take this view. It would be odd to say that the two men on the raft were bound to toss up as to which should go." To this it may be added, that an agreement by all parties on board to abide by the lot would be no defence to an indictment for homicide, since A.'s consent that B. should kill him, even on a contingency, is no defence to such killing. (Supra, & 144.) Nor can it be understood why the indictment was for manslaughter. If the defence of necessity was made out, the case was one for an acquittal. If it was not made out, the case was common law murder, as there was a deliberate taking of life. See criticism in London Quarterly Law Rev., Jan. 1885, p. 57. In his opinion in the Mignonette Case, Lord Coleridge concurs in this conclusion, and says that referring the matter to lot "can hardly be an authority satisfactory to a court of this country." In R. v. Dudley and Stephens (Mignonette Case, London, 1884), where the defendants were indicted for killing and eating a boy named Parker, who, with them, was in a state of starvation in a boat at sea, Baron Huddleston charged the grand jury as follows: "It is impossible to say that the act of Dudley and Stephens was an act of self-defence. Parker, at the bottom of the boat, was not endangering their lives by any act On this case Sir J. F. Stephen (Dig. of his; the boat could hold them all, 1 See Whart. Cr. Pl. & Pr. ?? 90 et seq. For precedents, see Whart. Prec. 104 et seq., tit. "HOMICIDE." |