vate property secured. For these reasons, the killing of officers so employed has been deemed murder of malice prepense as being an outrage wilfully committed in defiance of the justice of the kingdom. The law extends the same protection to any person acting in aid of an officer of justice, whether specially called thereunto or not. And a public officer is to be considered as acting strictly in discharge of his duty, not only while executing the process intrusted to him, but likewise while he is coming to perform, and returning from the performance of his duty.

He is under the protection of the law eundo, morando et redeundo. And therefore, if coming to perform his office he meets with great opposition and retires, and in the retreat is killed, this will be murder. Upon the same principles, if he meets with opposition by the way, and is killed before he comes to the place (such opposition being intended to prevent his performing his duty) this will also be murder.-Roscoe, 697; 1 Russell, 732. But the defendant must be proved to have known that the deceased was a public officer, and in the legal discharge, of his duty as such; for if he had no knowledge of the officer's authority or business, the killing will be manslaughter only.

In order to render the killing of an officer of justice, whether he is authorized in right of his office or by warrant, amount to murder, upon his interference with an affray, it is necessary that he should have given some notification of his being an officer, and of the intent with which he interfered.-Rex vs. Gordon, 1 East, P. C. 315, 352.

Where a constable interferes in an affray to keep the peace, and is killed, such of the persons concerned in killing him as knew him to be a constable are guilty of

murder, and such as did not know it, of manslaughter only.-1 Hale, 446. But it hath been adjudged that if a justice of the peace, constable or watchman, or even a private person, be killed in endeavouring to part those whom he sees fighting, the person by whom he is killed is guilty of murder; yet it hath been resolved, that if the third person slain in such a sudden affray do not give notice for what purpose he comes, by commanding the parties in the king's name to keep the peace, or otherwise manifestly shewing his intention to be not to take part in the quarrel but to appease it, he who kills him is guilty of manslaughter only, for he might suspect that he came to side with his adversary; but if the person interposing in such case be an officer within his proper district, and known, or but generally acknowledged to bear the office he assumeth, the law will presume that the party killing had due notice of his intent, especially if it be in the daytime.-1 Hawkins, 101.

Killing an officer will amount to murder, though he had no warrant, and was not present when any felony was committed, and takes the party upon a charge only, and though such charge does not in terms specify all the particulars necessary to constitute the felony.-R. vs. Ford, Russ & Ry. 329.

Killing an officer who attempts to arrest a man will be murder, though the officer had no warrant, and though the man has done nothing for which he was liable to be arrested, if the officer has a charge against him for felony, and the man knows the individual to be an officer, though the officer does not notify to him that he has such a charge-Rex vs. Woolmer, 1 Mood. 334.

So, where a man seen attempting to commit a felony, on fresh pursuit kills his pursuer, it is as much murder as

if the party were killed while attempting to take the defendant in the act, for any person, whether a peace officer or not, has power to arrest a person attempting to commit or actually committing a felony.-R. vs. Howarth, 1 Mood. 207

If a person is playing music in a public thoroughfare, and thereby collects together a crowd of people, a policeman is justified in desiring him to go on, and in laying his hand on him and slightly pushing him, if it is only done to give effect to his remonstrance; and if the person, on so small a provocation, strikes the policeman with a dangerous weapon and kills him, it will be murder, but otherwise if the policeman gives him a blow and knocks him down.-Rex vs. Hagan, 8 C. & P. 167.

MURDER.-KILLING BY OFFICERS OF JUSTICE.

Where an officer of justice in endeavouring to execute his duty, kills a man, this is justifiable homicide, or manslaughter, or murder, according to circumstances. Where an officer of justice is resisted in the legal execution of his duty, he may repel force by force; and if in doing so, he kills the party resisting him, it is justifiable homicide; and this in civil as well as in criminal cases.1 Hale, 494; 2 Hale, 118. And the same as to persons acting in aid of such officer. Thus if a peace officer have a legal warrant against B for felony, or if B stand indicted for felony, in these cases, if B resist, and in the struggle be killed by the officer, or any person acting in aid of him, the killing is justifiable.-Foster, 318. So, if a private person attempt to arrest one who commits a felony in his presence or interferes to suppress an affray, and be resisted, and kill the person resisting, this is also justifiable homicide.—1 Hale, 481, 484. Still there must be an apparent neces

sity for the killing for if the officer were to kill after the resisting had ceased, or if there were no reasonable necessity for the violence used upon the part of the officer, the killing would be manslaughter at the least. Also, in order to justify an officer or private person in these cases, it is necessary that they should, at the time, be in the act of legally executing a duty imposed upom them by law, and under such circumstances that, if the officer or private person were killed, it would have been murder; for if the circumstances of the case were such that it would have been manslaughter only to kill the officer or private person, it will be manslaughter, at least, in the officer or private person to kill the party resisting.-Fost. 318; 1 Hale, 490. If the prisoners in a gaol, or going to a gaol, assault the gaoler or officer, and he, in his defence, kill any of them, it is justifiable, for the sake of preventing an escape.-1 Hale, 496.

Where an officer or private person, having legal authority to apprehend a man, attempts to do so and the man, instead of resisting, flies, or resists and then flies, and is killed by the officer or private person in the pursuit, if the offence with which the man was charged were a treason or a felony, or a dangerous wound given, and he could not otherwise be apprehended, the homicide is justifiable; but if charged with a breach of the peace or other misdemeanor merely, or if the arrest were intended in a civil suit, or if a press-gang kill a seaman or other person flying from them, the killing in these cases would be murder, unless, indeed, the homicide were occasioned by means not likely or intended to kill, such as tripping up his heels, giving him a blow of an ordinary cudgel, or other weapon not likely to kill, or the like: in which case, the homicide, at most, would be manslaughter only. In case of a riot or rebellious assembly, the officers

endeavouring to disperse the mob are justifiable in killing them, both at common law, and by the Riot Act, if the riot cannot otherwise be suppressed.-Archbold, 646.

DUELLING.

Where words of reproach or other sudden provocations have led to blows and mutual combat, and death has ensued, the important enquiry will be, whether the occasion was altogether sudden and not the result of preconceived anger or malice; for in no case will the killing, though in mutual combat, admit of alleviation, if the fighting were upon a malice. Thus a party killing another in a deliberate duel is guilty of murder.-1 Rus.

727.

When, upon a previous agreement, and after there has been time for the blood to cool, two persons meet with deadly weapons and one of them is killed, the party who occasions the death is guilty of murder, and the seconds also are equally guilty; and with respect to others shewn to be present, the question is, did they give their aid and assistance by their countenance and encouragement of the principals in the contest: mere presence will not be sufficient; but if they sustain the principals either by advice or assistance, or go to the ground for the purpose of encouraging and forwarding the unlawful conflict, although they do not say or do anothing, yet, if they are present assisting and encouraging by their presence at the moment when the fatal shot is fired, they are, in law, guilty of the crime of murder.-Reg. vs. Young, 8 C. & P. 644.

Where two persons go out to fight a deliberate duel and death ensues, all persons who are present, encouraging and promoting that death, will be guilty of murder. And the person who acted as the second of the deceased