§ 113. If the indictment be for uttering a forged bank note, parol evidence is admissible to show that the person, whose name appears on the note as president, is in fact the president of that bank; but it is not necessary to prove the existence of the bank, unless it be described in the indictment as a bank duly incorporated, or an intent to defraud that bank be alleged.2 1 The State v. Smith, 5 Day, 175. 2 Commonwealth v. Smith, 6 S. & R. 568; The People v. Peabody, 25 Wend. 473. HOMICIDE. § 114. HOMICIDE is "the killing of any human being." It is of three kinds :- 1. justifiable; -2. excusable; -3. feloni ous. § 115. 1. Justifiable homicide is that which is committed either, 1st, by unavoidable necessity, without any will, intention or desire, or any inadvertence or negligence in the party killing, and therefore without blame; such as, by an officer, executing a criminal, pursuant to the death-warrant, and in strict conformity to the law, in every particular; or, 2dly, for the advancement of public justice; as, where an officer, in the due execution of his office, kills a person who assaults and resists him; or, where a private person or officer attempts to arrest a man charged with felony and is resisted, and in the endeavor to take him, kills him; or, if a felon flee from justice, and in the pursuit he be killed, where he cannot otherwise be taken; or, if there be a riot, or a rebellious assembly, and the officers or their assistants, in dispersing the mob, kill some of them, where the riot cannot otherwise be suppressed; or, if prisoners, in gaol or going to gaol, assault or resist the officers, while in the necessary discharge of their duty, and the officers or their aids, in repelling force by force, kill the party resisting;-or, 3dly, for the prevention of any atrocious crime, attempted to be committed by force; such as, murder, robbery, house-breaking in the night time, rape, mayhem, or any other act of felony against the person. But in such 1 4 Bl. Comm. 178-180; 1 Russ. on Crimes, 665-670; Wharton's Amer. Crim. Law, 298-403. The Roman Civil Law recognized the same principles. Qui latronem (insidiatorem) occiderit, non tenetur, utique si aliter . cases, the attempt must be not merely suspected, but apparent, the danger must be imminent, and the opposing force or resistance necessary to avert the danger or defeat the attempt.1 2 § 116. 2. Excusable homicide is that which is committed either, 1st, by misadventure; (per infortunium;) which is where one, doing a lawful act, unfortunately kills another; as, if he be at work with a hatchet, and the head thereof flies off and kills a by-stander; or if a parent is correcting his child, or a master his apprentice or scholar, the bounds of moderation not being exceeded, either in the manner, the instrument, or the quantity of punishment; or if an officer is punishing a criminal, within the like bounds of moderation, or within the limits of the law, and in either of these cases death ensues : or, 2dly, in self-defence; (se defendendo;) which is where one is assaulted, upon a sudden affray, and in the defence of his person, where certain and immediate suffering would be the consequence of waiting for the assistance of the law, and there was no other probable means of escape, he kills the assailant. To reduce homicide in self-defence to this degree, it must be shown that the slayer was closely pressed by the other party, and retreated as far as he conveniently or safely could, in good faith, with the honest intent to avoid the violence of the assault. The Jury must be satisfied that, unless he had killed the assailant, he was in imminent and manifest danger either of losing his own life, or of suffering enormous periculum effugere non potest. Inst. lib. 4, tit. 3, § 2. Furem nocturnum, si quis occiderit, ita demum impunè feret, si parcere ei sine periculo suo non potuit. Dig. lib. 48, tit. 8, 1. 9. Qui stuprum sibi vel suis per vim inferentem occidit, dimittendum. Dig. lib. 48, tit. 8, l. 1, § 4. Si quis percussorem ad se venientem gladio repulerit, non ut homicida tenetur; quia defensor propriæ salutis in nullo peccasse videtur. Cod. lib. 9, tit. 16, 1. 3. In the cases mentioned in the text, if the homicide is committed with undue precipitancy, or the unjustifiable use of a deadly weapon, the slayer will be culpable. See Alison's Crim. Law of Scotland, p. 100; Id. p. 132-139. 1 United States v. Wiltberger, 3 Wash. 515. And see The State v. Rutherford, 1 Hawks, 457; The State v. Roane, 2 Dev. 58. 2 4 Bl. Comm. 182; 1 Russ. on Crimes, 657-660. bodily harm. This latter kind of homicide is sometimes called chance-medley, or chaud-medley, words of nearly the same import; and closely borders upon manslaughter. In both cases it is supposed that passion has kindled on each side, and that blows have passed between the parties; but the difference lies in this, that in manslaughter, it must appear, either that the parties were actually in mutual combat when the mortal stroke was given, or, that the slayer was not at that time in imminent danger of death; but that in homicide excusable by self-defence, it must appear, either that the slayer had not begun to fight, or that, having begun, he endeavored to decline any further struggle, and afterwards, being closely pressed by his antagonist, he killed him to avoid his own destruction.2 Under this excuse of self-defence, the principal civil and natural relations are comprehended; and, therefore, a master and servant, parent and child, and husband and wife, killing an assailant, in the necessary defence of each other respectively, are excused.3 § 117. Homicide is also excusable, when unavoidably committed in defence of the possession of one's dwelling-house, against a trespasser who, having entered, cannot be put out otherwise than by force; and no more force is used and no other instrument or mode is employed, than is necessary and proper for that purpose. So, if in a common calamity, two persons are reduced to the dire alternative, that one or the 1 4 Bl. Comm. 182; 1 Russ. on Crimes, 660, 661; Whart. Am. Crim. Law, 385-397. Qui, cum aliter tueri se non possunt, damni culpam dederint, innoxii sunt. Vim enim vi defendere, omnes leges omniaque jura permittant. Dig. lib. 9, tit. 2, 1. 45, § 4. Is, qui aggressorem vel quemcunque alium in dubio vitæ discrimine constitutus (occiderit, nullam ob id factum calumniam metuere debet. Cod. lib. 9, tit. 16, l. 2. 2 4 Bl. Comm. 184; 1 Russ. on Crimes, 661; The State v. Hill, 4 Dev. & Batt. 491. 3 4 Bl. Comm. 186; 1 Hale, P. C. 448. 4 1 Hale, P. C. 485, 486; 1 Russ. on Crimes, 662, 664; cites Meade's case, 1 Lew. Cr. Cas. 184; Child's case, 2 Lew. Cr. Cas. 214; Hinchcliff's case, 1 Lew. 161. other or both must certainly perish, as, where two shipwrecked persons are on one plank, which will not hold them both, and one thrusts the other from it, so that he is drowned, the survivor is excused.1 § 118. The distinction between justifiable and excusable homicide was formerly important, inasmuch as in the latter case, the law presumed that the slayer was not wholly free from blame; and therefore he was punished by forfeiture of goods, at least. But in the United States, this rule is not known ever to have been recognized; it having been the uniform practice here, as it now is in England, where the homicide does not rise to the degree of manslaughter, to direct an acquittal.2 § 119. 3. FELONIOUS HOMICIDE is of two kinds, namely, manslaughter and murder; the difference between which consists principally in this, that in the latter there is the ingredient of malice, while in the former there is none; or, as Blackstone expresses it, manslaughter, when voluntary, arises from the sudden heat of the passions, murder, from the wickedness of the heart. MANSLAUGHTER is therefore defined to be "the unlawful killing of another, without malice, either express or implied." 3 And hence every indictment for wilful homicide, in which the allegation of malice is omitted, is an indictment for manslaughter only. So, on the trial of an indictment for murder, if there is no sufficient proof of malice aforethought, and the act of killing being proved, is not justified nor excused, the Jury must return a verdict for manslaughter. As this offence is supposed to have been committed without malice, so also it must have been without premeditation; and therefore there can be no accessaries before the fact. Thus, 1 4 Bl. Comm. 186. And see Holmes's case, where several passengers were thrown over from the overloaded long-boat of a foundered ship, to save the lives of the others; in which this doctrine was very fully and ably discussed. Wharton's Am. Crim. Law, p. 397. 2 4 Bl. Comm. 188; 2 Inst. 148, 315. |