their guns at the keepers, saying they would shoot them; a shot was then fired which wounded a keeper, but no other shot was fired: it was objected that it was clear that there was no common intent to shoot this man, because only one gun was fired, instead of the whole number. Vaughan, B., That is rather a question for the jury, but still on this evidence it is quite clear what the common purpose was. They all draw up in lines, and point their guns at the gamekeepers, and they are all giving their countenance and assistance to the one who actually fires the gun. If it could be shewn that either of them separated himself from the rest, and shewed distinctly that he would have no hand in what they were doing, the objection would have much weight in it.' (w) Two private watchmen seeing the prisoner and another man with two carts laden with apples, which they suspected had been stolen, went up to them, and one walked beside the prisoner, and one beside the other man, at some distance from each other, and while they were so going along, the prisoner's companion stepped back, and with a bludgeon wounded the watchman he had been walking with; Garrow, B., 'To make the prisoner a principal the jury must be satisfied that when he and his companion went out with a common illegal purpose of stealing apples, they also entertained the common guilty purpose of resisting to death, or with extreme violence, any persons who might endeavour to apprehend them but if they had only the common purpose of stealing apples, and the violence of the prisoner's companion was merely the result of the situation in which he found himself, and proceeded from the impulse of the moment, without any previous concert, the prisoner will be entitled to an acquittal.' (x)

Where the whole of a party of poachers set upon and beat a keeper till he was senseless, and having left him lying on the ground, one of them after they had gone a little distance returned, and stole his money, it was holden that he alone was guilty of the stealing. (y) Where two poachers were apprehended by some gamekeepers, and being in custody called out to one of their companions, who came to their assistance and killed one of the gamekeepers, it was held that this was murder in all, though the blow was struck while the two were actually in custody, but that it would not have been so, if the two had acquiesced and remained passive in custody. (2)

Where four poachers were met by a keeper and his assistant, and after some words had passed, three of them ran in upon the keeper, knocked him down and stunned him; and when he recovered himself, he saw all of them coming by him, and one said, Damn 'em we've done 'em;' and when they had got two or three paces beyond him, one of them turned back and wounded the keeper in the leg,

(w) R. v. Edmeads, 3 C. & P. 390.

(x) R. v. Collison, 4 C. & P. 565. See the observations of Littledale, J., in R. v. Howell, 9 C. & P. 450. R. v. Lee, 4 F. & F. 63.

6

(y) R. v. Hawkins, 3 C. & P. 392, J. A. Park, J.1

(2) R. v. Whithorne, 3 C. & P. 394, MSS. C. S. G. Vaughan, B. See ante, p. 118, notes (x) and (y).

AMERICAN NOTE.

1 See Sloan v. S., 9 Ind. 565.

and then the men set off and ran away; Bolland, B., told the jury if they thought the prisoners were acting in concert, they were all equally guilty of inflicting the wound. (a)

Where, upon an indictment for maliciously cutting, the question was, how far one prisoner was concurring in the act of the other; Park, J., told the jury that, 'If three persons go out to commit a felony, and one of them, unknown to the others, puts a pistol in his pocket, and commits a felony of another kind, such as murder, the two who did not concur in this second felony will not be guilty thereof, notwithstanding it happened while they were engaged with him in the felonious act for which they went out.' (b)

On an indictment for murder it appeared that the six prisoners, who were shipmates, for some cause of offence unknown, chased a German sailor belonging to another ship through the streets, and as he took refuge from their attack against a railing, he was stabbed by one of them with a knife, of which wound he died in a few minutes. The evidence as to the hand by which the blow was given was very conflicting. Byles, J., told the jury that supposing they could fix upon the hand that stabbed, the first question would be what was his offence? The person who stabbed was clearly guilty of murder, whether he intended to kill or not. If he only intended to commit bodily harm, he was guilty of murder. The next question was in what condition were the other five men? The deceased sailor was leaning against some iron railings when the stab was given, but before that he had been assaulted in a barbarous and dastardly manner by these six men; but did the other men contemplate the use of the knife, or was it an independent act of the man who used it? They were all guilty of murder if they participated in a common design and intention to kill. If they should think that the others did not intend and design to kill, yet these others would also be guilty of murder if the knife was used in pursuance of one common design to use it, because then the hand that used the knife was the hand of all of them. Supposing there was no common design to use the knife, if being present at the moment of stabbing, they assented and manifested their assent by assisting in the offence, they were guilty of murder. First, then, there must be a common design to kill; secondly, there must be a common design to use a murderous instrument; and, thirdly, there must be presence at the time and assent and assistance in the use of the knife. If, however, they should think neither of these three modes of putting the case proved against the five, it would be their duty to find the stabber guilty and to acquit the others. (c)

Where on an indictment for murder it appeared that the deceased was found tied hand and foot with string, and something forced into her throat, by which she had been suffocated, and the house in which she was had been forcibly entered, and the object evidently had been robbery; the jury were told that if they were satisfied that the

(a) R. v. Warner, R. & M. C. C. R. 380. S. C. 5 C. & P. 525.

(b) Duffey's case, 1 Lew. 194. See Macklin's case, 2 Lew. 225, per Alderson, B., post.

This

(c) R. v. Price, 8 Cox, C. C. 96. case is evidently so inaccurately reported that great caution must be used as to it. See post, 129.

deceased met with her death from violence by any person or persons to enable them to commit a burglary or any other felony, although they who inflicted the violence might not have intended to kill her, all who were parties to that violence were guilty of murder. (d) The prisoner was indicted for manslaughter. A man named Allen commenced a quarrel with the deceased, and called the prisoner out of a public-house, and both went after the deceased into a cellar and began to beat the deceased with their fists. In the course of the fight the deceased received from one or other of the men a blow from a piece of timber which was in the cellar. Allen was tried and convicted of manslaughter, and Cleasby, B., is reported to have ruled that Allen, having invited the prisoner down into the cellar to beat the deceased, was answerable for whatever was done afterwards. Lush, J., is reported to have said that might be so, and yet that the prisoner would not be responsible for all that Allen did. If two men concerted together to fight two other men with their fists, and one struck an unlucky blow causing death, both would be guilty of manslaughter. But if one used a knife or other deadly weapon, such as this piece of timber, without the knowledge or consent of the other, he only who struck with the weapon would be responsible for the death resulting from the blow given by it. (e)

SEC. X.

Cases where the Killing takes place in consequence of some Lawful Act being criminally or improperly performed, or of some Act performed without Lawful Authority.

Due caution should be observed by all persons in the discharge of the business and duties of their respective stations, lest they should proceed by means which are criminal or improper, and exceed the limits of their authority. This will more especially require the attention of officers of justice; and should be kept in mind by those who have to administer correction in foro domestico, and by persons employed in those common occupations from which danger to others may possibly arise.

Officers of justice acting improperly. - It has been shewn in a former part of this chapter (f) that ministers of justice, when in the execution of their offices, are specially protected by the law:

(d) R. v. Franz, 2 F. & F. 580. See R. v. Luck, 3 F. & F. 483. The marginal note is not warranted by the case, and the case is very inaccurately stated. Byles, J., is reported to have directed the grand jury that, as the poachers were not engaged in a felony, the use of the flail with violence might reduce the offence to manslaughter.' It is perfectly clear that there is no such distinction known to the law as to the manner of arrest between cases of felony and misdemeanor, where the right to arrest at the time and place, and by the person attempting it, exists; and an

attack with such a dangerous instrument as a flail, in order to arrest any one for a felony, would clearly reduce the offence to manslaughter; it is plain there was no reason for drawing any such distinction, and therefore the report is probably erroneous. C. S. G. See R. v. Skeet, 4 F. & F. 391.

(e) R. v. Caton, 12 Cox, C. C. 624. See R. v. Turner, 4 F. & F. 339, where Channell, B., ruled that it was otherwise on a charge of manslaughter. It seems Lush, J.'s, ruling is correct.

(f) Ante, p. 70, et seq.

but it behoves them to take care that they do not misconduct themselves in the discharge of their duty, on pain of forfeiting such protection. Thus, though in cases civil or criminal, an officer may repel force by force, where his authority to arrest or imprison is resisted, and will be justified in so doing if death should be the consequence; (g) yet he ought not to come to extremities upon every slight interruption, nor without a reasonable necessity. (h) And if he should kill where no resistance is made, it will be murder and it is presumed that the offence would be of the same magnitude if he should kill a party after the resistance is over and the necessity has ceased, provided that sufficient time has elapsed for the blood to have cooled. (i) And again, though where a felon flying from justice is killed by the officer in the pursuit, the homicide is justifiable if the felon could not be otherwise overtaken; (j) yet where a party is accused of a misdemeanor only, and flies from the arrest, the officer must not kill him, though there be a warrant to apprehend him, and though he cannot otherwise be overtaken; and if he do kill him, it will in general be murder; (k) but, under circumstances, it may amount only to manslaughter, if it appear that death was not intended. (1)

So, in civil suits, if the party against whom the process is issued, fly from the officer endeavouring to arrest him, or if he fly after an arrest actually made, or out of custody in execution for debt, and the officer not being able to overtake him make use of any deadly weapon, and by so doing, or by other means, intentionally kill him in the pursuit, it will amount to murder. (m)

But it is rather to be considered as murder or manslaughter, as circumstances may vary the case; for if the officer, in the heat of the pursuit, and merely in order to overtake the party, should trip up his heels, or give him a stroke with an ordinary cudgel, or other weapon not likely to kill, and death should unhappily ensue, this will not amount to more than manslaughter, if, in some cases, even to that offence. (n)

Where a collector, having distrained for a duty, laid hold of a maid servant who stood at the door to prevent the distress being carried away, and beat her head and back several times against the door-post, of which she died; although the Court held her opposition to the officer to be a sufficient provocation to extenuate the homicide, yet they were clearly of opinion that he was guilty of manslaughter in so far exceeding the necessity of the case. (0)

(g) Ante, p. 72.

(h) 4 Blac. Com. 180.

(i) 1 East, P. C. c. 5, s. 63, p. 297. The crime will at least be manslaughter. MSS. Burnet, 37.

(j) 1 Hale, 481. 4 Blac. Com. 179. Fost. 271. But if he may be taken in any case without such severity, it is, at least, manslaughter in him who kills him; and the jury ought to inquire whether it were done of necessity or not. 1 East, P. C. c. 5, s. 67, p. 298. (k) Fost. 271. 1 Hale, 481.

(7) Fost. 271. 1 East, P. C. c. 5, s. 70,

p. 302.
(m) 1 Hale, 481. Fost. 271. 1 East,
P. C. c. 5, s. 74, p. 306, 307. Laying hold
of the prisoner and pronouncing words of
arrest, is an actual arrest; or it may be made
without actually laying hold of him, if he
submit to the arrest. Horner v. Battyn and
another, Bull. N. P. 62, and see 1 East, P. C.
c. 5, s. 68, p. 300. But see Arrowsmith v.
Le Mesurier, 2 N. R. 211, and Berry v.
Adamson, 6 B. & C. 528.

(n) Fost. 271.

(0) Goffe's case, 1 Ventr. 216.

An officer in the impress service put one of his seamen on board a boat belonging to one William Collyer, a fisherman, with intent to bring it under the stern of another vessel, in order to see if there were any fit objects of the impress service on board. The boat steered away in another direction; and the officer pursued in another vessel for three hours, firing several shots at her, with a musket loaded with ball, for the purpose of hitting the halyards, and bringing the boat to, which was found to be the usual way, and one of the shots unfortunately killed Collyer. The Court said it was impossible for it to be more than manslaughter. (q) It is presumed, that this decision proceeded on the ground that the musket was not levelled at the deceased, nor any bodily hurt intended to him. But inasmuch as such an act was calculated to breed danger, and not warranted by law, though no bodily hurt were intended, it was holden to be manslaughter, and the defendant was burned in the hand. (r) It may here be observed, however, that by the statute for the prevention of smuggling, it is enacted, that in case any vessel or boat, liable to seizure or examination, shall not bring to on being required to do so, or being chased by any vessel or boat in Her Majesty's navy, having the proper pendant and ensign of Her Majesty's ships hoisted, or by any vessel or boat duly employed for the prevention of smuggling, having a proper pendant and ensign hoisted, it shall be lawful for the captain, master, or other person, having the charge or command of such vessel in Her Majesty's navy, or employed as aforesaid (first causing a gun to be fired as a signal), to fire at or into such vessel or boat; and such captain, master, or other person, acting in his aid or assistance, or by his direction, shall be indemnified and discharged from any indictment, penalty, action, or other proceeding for so doing. (8) If an officer make an arrest out of his proper district, (except as he may be authorised by some Act of Parliament,) or if an officer have no warrant or authority at all, he is no legal officer, nor entitled to the special protection of the law; and if he purposely kill the party for not submitting to such illegal arrest, it will be murder in all cases, at least where an indifferent person acting in the like manner, without any such pretence, would be guilty to that extent. (t)

So if a court-martial order a man to be flogged where they have no jurisdiction, and the flogging kills the man, the members who concurred in that order are guilty of murder. (x)

It is no excuse for killing a man that he was out at night as a ghost dressed in white for the purpose of alarming the neighbourhood, even though he could not otherwise be taken. The neighbourhood of Hammersmith had been alarmed by what was supposed to be a ghost; the prisoner went out with a loaded gun to take the ghost; and upon meeting with a person dressed in white, immediately shot him. M'Donald, C. B., Rooke and Lawrence, JJ., were clear that this was murder, as the person who appeared as a ghost was only guilty of a misdemeanor; and no one might kill him, though he could

(9) R. v. Phillips, Cowp. 830.

(r) 1 East, P. C. c. 5, s. 75, p. 308. (s) 16 & 17 Vict. c. 107, s. 218, see vol. i. p. 277, et seq.

(t) 1 East, P. C. c. 5, s. 78, p. 312. (x) By Heath, J., in Warden v. Bailey, 4 Taunt. 77.