Charta (t) and the laws; and in this frenzy to have drawn upon the constable, and stabbed his assistant. It is extremely difficult to conceive that the violation of Magna Charta, a fact of which they were totally ignorant at the time, could be the provocation which led them into this outrage. But, admitting for argument sake that it was, we all know that words of reproach, how grating and offensive soever, are in the eye of the law no provocation in the case of voluntary homicide; and yet every man who hath considered the human frame, or but attended to the workings of his own heart, knows that affronts of that kind pierce deeper, and stimulate the veins more effectually, than a slight injury done to a third person, though under colour of justice, possibly can. The indignation that kindles in the breast in one case is instinct, it is human infirmity; in the other it may possibly be called a concern for the common rights of the subject; but this concern, when well founded, is rather founded in reason and cool reflection, than in human infirmity; and it is to human infirmity alone that the law indulges in the case of a sudden provocation.' He then proceeds further: But if a passion for the common rights of the subject, in the case of individuals, must, against all experience, be presumed to inflame beyond a personal affront, let us suppose the case of an upright and deserving man, universally beloved and esteemed, standing at the place of execution, under a sentence of death manifestly unjust. This is a case that may well rouse the indignation, and excite the compassion, of the wisest and best men; but wise and good men know that it is the duty of private subjects to leave the innocent man to his lot, how hard soever it may be, without attempting a rescue; for otherwise all government would be unhinged. And yet, what proportion doth the case of a false imprisonment, for a short time, and for which the injured party may have an adequate remedy, bear to that I have now put?' (u) 6 In a more recent case, the prisoner, who cohabited with a person named Farmello, killed an assistant of a constable, who came to apprehend Farmello, as an idle and disorderly person, under the 19 Geo. 2, c. 10. Farmello, though he was not an object of the Act, did not himself make any resistance to the arrest; but the prisoner, immediately upon the constable and his assistant requiring Farmello to go along with them, without making use of any argument to induce them to desist, or saying one word to prevent the intended arrest, stabbed the assistant. And Hotham B., with whom Gould, J., and Ashhurst, J., concurred, held the offence to be murder. A special verdict, however, was found: (v) and the case was argued in the Exchequer Chamber, before ten of the judges; but no opinion was ever publicly delivered. (w) (t) Holt, C. J., in delivering the judgment in Tooley's case, said, 'Sure a man ought to be concerned for Magna Charta and the laws; and if any one against the law imprison a man, he is an offender against Magna Charta.' (u) Fost. 315, 316, 317. (v) The Court advised the jury to find a special verdict, on the ground of the difference of opinion which had been entertained in Tooley's case, and the case of Hugget, ante, p. 115. (w) Adey's case, 1 Leach, 206. And see id. p. 212, where it is said that the prisoner lay eighteen months in gaol, and was then discharged; but the following note is added, It is said, that the judges held it to be manslaughter only, but no opinion was ever publicly given; and qu., whether the prisoner did not escape pending the opinion of the judges, when the gaol was burnt down in 1780, and was never retaken.' also 1 East, P. C. c. 5, s. 89, p. 329, note (a), where it is said, 'Upon inquiry, however, it And see With respect to the persons who shall be considered as taking a part in the resistance, it may be observed, that if the party who is arrested, yield himself and make no resistance, but others endeavour to rescue him, and he do no act to declare his joining with them, if those who come to rescue him kill any of the bailiffs, this is murder in them, but not in the party arrested: but not so if he do any act to countenance the violence of the rescuers. (x) And where Jackson and four others, having committed a robbery, were pursued by the country upon hue and cry, and Jackson turned upon his pursuers (others of the robbers being in the same field, and having often resisted the pursuers), and refusing to yield, killed one of the pursuers; it was held, that inasmuch as all the robbers were of a company, and made a common resistance, and so one animated the other, all those of the company of the robbers that were in the same field, though at a distance from Jackson, were principals, viz., present, aiding and abetting and it was also held, that one of the malefactors who was apprehended a little before the party was hurt, being in custody when the stroke was given, was not guilty, unless it could be proved that after he was apprehended he had animated Jackson to kill the party. (y) If a man be arrested, and he and his company, endeavour a rescue, and, while they are fighting, one who knows nothing of the arrest, coming by, act in aid of the party arrested, and one of the bailiffs be killed, the person so acting in aid is guilty of murder; for a man must take the consequences of joining in any unlawful act, such as fighting; and his ignorance will not excuse him where the fact is made murder by the law without any actual precedent malice, as in the case of killing an officer in the due execution of his office. (z) But it should be observed, that, in another report of the same case, it is said to have been resolved, that if a person, not knowing the cause of the struggle, had interposed between the bailiff and the party arrested, with intent to prevent mischief, it would not have been murder in such person, though the bailiff's assistant were killed by one appears that, pending the consideration of the case, by the judges, she escaped during the riots in 1780, and was never retaken.' In R. v. Porter and others, which is reported as to another point, 9 C. &. P. 778, upon an indictment for murder, where it appeared that the deceased, who was a watchman, and another were taking a person towards a station-house on a charge of robbing a garden, and were proceeding quietly along a road, the prisoner making no resistance, when they were attacked and the deceased beaten to death; in opening the case it was asserted, that even if the prisoner were not lawfully in custody, the offence was murder; for if a person were illegally in custody, and was making no resistance, no person had any right to attack the persons who had him in custody, and that if they did, and death ensued in consequence of the violence used to release the prisoner, it was murder; and that although there might be old cases to the contrary, they were no longer considered as binding authorities; the point, however, did is (x) Sir Charles Stanley's case, Kel. 87. See R. v. Whithorne, 3 C. & P. 394, post, p. 127. (y) Jackson's case, 1 Hale, 464, 465. (z) Sir C. Stanley's case, Kel. 87. of the rescuers; (a) and it should seem that, in a case of this kind, the material inquiry would be, whether the stranger interfered with the intention of preserving the peace and preventing mischief; for if he interposed for the express purpose of aiding one party against the other, he must abide the consequences at his peril. (b) A. beat B., a constable, who was in the execution of his office, and they were parted; and then C. a friend of A., rushed suddenly in, took up the quarrel, fell upon the constable, and killed him in the struggle; but A. was not engaged in this after he was parted from B. And it was holden by two judges, that this was murder only in C.; and A. was acquitted, because it was a sudden quarrel, and it did not appear that A. and C. came upon any design to abuse the constable. (c) But if a man begin a riot, and the same riot continue, and an officer be killed, he that began the riot would, if he remained present at it, be a principal murderer, though he did not commit the fact. (d) A great number of persons assembled in a house called Sissinghurst, in Kent, issued out and committed a great riot and battery upon the possessors of a wood adjacent. One of their names, viz., A., was known, the rest were not known; and a warrant was obtained from a justice of peace to apprehend the said A., and divers others persons unknown, who were all together in Sissinghurst-house. The constable, with about sixteen or twenty called to his assistance, came with the warrant to the house, and demanded entrance, and acquainted some of the persons within that he was the constable, and came with the justice's warrant, and demanded A. with the rest of the offenders that were then in the house; and one of the persons within came, and read the warrant, but denied admission to the constable, or to deliver A. or any of the malefactors; but, going in, commanded the rest of the company to stand to their staves. The constable and his assistants, fearing mischief, went away; and being about five rods from the door, B., C., D., E., F., &c., about fourteen in number, issued out and pursued the constable and his assistants. The constable commanded the peace, yet they fell on, and killed one of the assistants of the constable, and wounded others, and then retired into the house to the rest of their company which were in the house, whereof the said A. and one G., that read the warrant were two. For this A., B., C., D., E., F., G., and divers others, were indicted of murder, and tried at the King's Bench bar, when these points were unanimously determined: 1. That although the indictment were, that B. gave the stroke, and the rest were present aiding and assisting, though in truth C. gave the stroke, or that it did not appear upon the evidence which of them gave the stroke, but only that it was given by one of the rioters, yet that such evidence was sufficient to maintain the indictment; for in law it was the stroke of all that party, according to the resolution in Macallay's case. (e) (a) R. v. Sir C. Stanslie, 1 Sid. 160. MS. Burnet accord. as cited, 1 East, P. C. c. 5, s. 63, p. 296. (b) 1 East, P. C. c. 5, s. 83, p. 318. (c) By Holt, C. J., and Rooksby, at Hertford, temp. Will. 3, ad incipium MS. Tracey, 53. 1 East, P. C. c. 5, s. 63, p. 296; and see also Fost. 353. (d) R. v. Wallis, 1 Salk. 334. (e) 9 Co. 67 b. R. v. Caton, per Lush, J. 12 Cox, C. C. 624, post, p. 129. 2. That in this case all that were present and assisting to the rioters were guilty of the death of the party slain, though they did not all actually strike him, or any of the constable's company. 3. That those within the house, if they abetted or counselled the riot, were in law present aiding and assisting, and principals, as well as those that issued out and actually committed the assault; for it was but within five rods of the house, and in view thereof, and all done as it were in the same instant. (ƒ) 4. That here was sufficient notice that it was the constable, before the man was killed. 1. Because he was the constable of the same vill. 2. Because he notified his business at the door before the assault, viz., that he came with the justice's warrant. 3. Because, after his retreat, and before the man was slain, the constable commanded the peace; and, notwithstanding, the rioters fell on and killed the party. 5. It was resolved that the killing of the assistant of the constable was murder, as well as the killing of the constable himself. 6. That those who come in to the assistance of the constable, though not specially called thereunto, are under the same protection as they that are called to his assistance by name. 7. That although the constable retired with his company upon the not delivering up of A., yet the killing of the assistant of the constable in that retreat was murder. 1. Because the retreat was one continued act in pursuance of his office; being necessary, when he could not attain the object of his warrant, and being in effect a continuation of the execution of his office, and under the same protection of the law as his coming was. 2. Principally because the constable, in the beginning of the assault, and before the man was stricken, commanded the peace. 8. It seems that even if the constable had not commanded the peace, yet as he and his company came about what the law allowed them, and, when they could not effect it fairly, were going their way, the rioters pursuing them and killing one made the offence murder in them all; for the act was done without provocation, and the constable and his company were peaceably retiring; but this point was not relied upon, because there was enough upon the former point to convict the offenders. In the conclusion, the jury found nine of them guilty and acquitted those within; not because they were absent, but because there was no clear evidence that they consented to the assault as the jury thought; and therefore judgment was given against the nine to be hanged. (g) (f) Vide Lord Dacre's case, 1 Hale, 439. Crompt. 25, a. Dalt. c. 145, p. 472. 34 Hen. 8, B. Coron. 172. See also Moor, 86. Kel. 56. (g) Sissinghurst-house case, 1 Hale, 461, 2, 3. The award was for the marshal to do execution, because they were remanded to the custody of the marshal, and he is the immediate officer of the Court, and precedents in cases of judgments given in the King's Bench have commonly been, Et dictum est marescallo, &c. quod faciat executionem periculo incumbente. SEC. IX. Cases where the Killing takes place in the Prosecution of some Criminal, Unlawful, or Wanton Act. If an action, unlawful in itself, be done deliberately, and with intention of mischief or great bodily harm to particular individuals, or of mischief indiscriminately, fall where it may, and death ensue against or beside the original intention of the party, it will be murder. (h) Under this head may be mentioned the cases of particular malice to one individual falling by mistake or accident upon another, which, by the ignorance or lenity of juries, have been sometimes brought within the rule of accidental death. But though, in a loose way of speaking, it may be called accidental death when a person dies by a blow not intended against him, the case is considered by the law in a very different light. Thus, if it appears from circumstances that the injury intended to A., whether by poison, blow, or any other means of death, would have amounted to murder if he had been killed by it, it will amount to the same offence if B. happen to fall by the same means; (i) so that if C., having malice against A., strikes at and misses him, but kills B., this is murder in C.; (5) and upon the same principle, if A. and B. engage in a deliberate duel, and a stranger coming between them to part them is killed by one of them, it is murder in the party killing. (k) And it has also been resolved, that where A. had malice against D., the master of B., and assaulted him, and upon B. the servant coming to the aid of his master, A. killed B., it was murder in A. as much as if he had killed the master. (1) So, where A. gave a poisoned apple to his wife intending to poison her, and the wife, ignorant of the matter, gave it to a child who took it and died; this was held murder in A., though he, being present at the time, endeavoured to dissuade his wife from giving the apple to the child. (m) And, upon the same principle, it was held to be murder where A. mixed poison in an electuary sent by an apothecary to her husband, with intent to poison him, which did not kill him, but afterwards killed the apothecary, who to vindicate his reputation, tasted it himself, having first (h) Fost. 261. This must be taken with some qualification; see the cases referred to infra. (i) Id. ibid. 1 Hale, 441, Williams's case, 1 Hale, 469. See Mawgridge's case, Kel. 131. (j) 1 East, P. C. c. 5, s. 17, p. 230. () 1 Hale, 441. Dalt. c. 145, p. 472. It appears to have been holden in such a case, where the combating was by malice prepense, that the killing of the person who came to part them was murder in both the combatants, 22 Edw. 3, Coron. 262. Lambard out of Dallison's Report, p. 217. But Lord Hale thinks that this is mistaken, and that it is not murder in both, unless both struck him who came to part them; and says that by the book of 22 Ass. 71, Coron. 180 (which seems to be the case more at large) he only that gave the stroke had judgment, and was executed. 1 Hale, 441, to which this note is subjoined; the other does not appear to have been before the Court; but, upon putting the case, the Court said he that struck is guilty of felony, but said nothing as to him who did not strike.' |