accused may show that he believed in good faith that he had a legal right to the property.163 Likewise an officer on indictment for extortion may show that he believed he had a legal right to the fee collected.183a And on a prosecution for perjury the accused may show that there was no corrupt intent because he swore in good faith after seeking the advice of counsel.164

The same principle has been applied in prosecutions for malicious mischief,164a trespass,1 164b "maliciously" setting fire to any furze or fern,165 conspiracy,165a neglect of official duty,165b and defrauding the revenue.165c

The existence of a custom or usage to violate the law is no defense.165d

IV. JUSTIFICATION.

76. In General.-There are some circumstances under which an act which would otherwise be a crime is justifiable. In such a case no crime at all is committed. The grounds which have been relied upon as constituting justification, and which may or may not justify, according to the circumstances, are: 1. Public authority.

2. Domestic authority.

3. Prevention of offenses.

163 Rex v. Hall, 3 Car. & P. 409, Beale's Cas. 281; People v. Husband, 36 Mich. 306; post, §§ 327, 378; Com. v. Stebbins, 8 Gray (Mass.) 494. Finding bank note, Reg. v. Reed, Car. & M. 306.

163a Cutler v. State, 36 N. J. Law, 125, Mikell's Cas. 241; Leeman v. State, 35 Ark. 438.

164 U. S. V. Stanley, 6 McLean (U. S.) 409, Fed. Cas. No. 16,376; U. S. v. Conner, 3 McLean (U. S.) 573, Fed. Cas. No. 14,847; State v. McKinney, 42 Iowa, 205; post, § 431(a).

164a Goforth v. State, 8 Humph. (Tenn.) 37.

164b State v. Hause, 71 N. C. 518; Wiggins v. State, 119 Ga. 216, 46 S. E. 86.

165 Reg. v. Twose, 14 Cox, C. C. 327, Beale's Cas. 283.

165a People v. Powell, 63 N. Y. 88.

163b State v. Bair (Ohio) 73 N. E. 514.

165c Reg. v. Allday, 8 Car. & P. 136.

165d Post, § 84.

4. Defense of one's person or property.

5. Defense of other persons.

6. Necessity.

7. Compulsion or command.

8. Custom.

77. Public Authority.

(a) In General.-It may be laid down as an undoubted principle that a person who does an act under valid public sanction or authority, and without exceeding or abusing such authority, is guilty of no crime, though the same act would be a crime if committed without such authority.166

Some of the plainest cases are the execution of a criminal by the proper officer in a proper manner under a valid conviction and sentence for a capital offense ;167 authorized arrest and imprisonment of criminals or persons accused of crime;168 and the killing of a person necessarily in order to arrest for a felony or to prevent an escape.169

What would otherwise be a common nuisance may be justified on this ground. If, in order to prevent the spread of an epidemic disease, inconvenience is caused to a few persons by the smoke and noxious vapors arising from the burning of infected clothing and bedding, and if the burning is done by public authority or sanction, in good faith, for the public safety, and such means are employed as are usually resorted to and approved by medical science in such cases, and if done with

166 See Reg. v. Lesley, Bell, C. C. 220, 8 Cox, C. C. 269, Beale's Cas. 311, Mikell's Cas. 86; State v. Mayor, etc., of Knoxville, 12 Lea (Tenn.) 146, Beale's Cas. 313.

167 Fost. C. L. 267; Beale's Cas. 311; 1 Hale, P. C. 496, Mikell's Cas. 392; post, § 267.

168 See Reg. v. Lesley, supra. And see post, § 211.

169 Fost. C. L. 267; Beale's Cas. 311; U. S. v. Clark, 31 Fed. 710, Beale's Cas. 310; †Leonin's Case, Select Pleas of the Crown, Sel. Soc. Pl. 133, Mikell's Cas. 393; U. S. v. Rice, 1 Hughes, 560, Fed. Cas. No. 16,153, Mikell's Cas. 394; post, § 271.

reasonable care and regard for the safety of others, there is no indictable nuisance.170

And where one was prosecuted for illegally taking fish, it was held that authority from the fish commissioner to take them for him for the purpose of obtaining spawn was a complete defense.170a

(b) Laws are without Extra-territorial Effect.-When the laws of a country are relied upon as justification for an act, it must be borne in mind that the laws of a country have no extraterritorial effect, subject to the qualification that the ships of a country are regarded as a part of its territory, though they may be on the high seas. This is well illustrated by an English

case in which the defendant was convicted on an indictment charging him with assaulting the prosecutors on the high seas, and imprisoning and detaining them. It appeared that the prosecutors were Chilian subjects, and had been ordered by the government of Chili to be banished from that country to England. The defendant, being master of an English merchant vessel lying in the territorial waters of Chili, contracted with the Chilian government to take the prosecutors from Valparaiso to Liverpool, and they were accordingly brought on board his vessel by the officers of the government, and carried by him to Liverpool under his contract. It was held that, although the conviction could not be supported for the assault and imprisonment in the Chilian waters, it must be sustained for that which was done out of the Chilian territory. Although the defendant was justified in receiving the prosecutors on board his vessel in Chili, that justification ceased when he passed the line of Chilian jurisdiction, and, as his wrongful detention thereafter was on an English vessel, he was guilty of an offense punishable by English law.17

171

179 State v. Mayor, etc., of Knoxville, 12 Lea (Tenn.) 146, Beale's Cas. 313.

170a State v. McDonald, 109 Wis. 506, 85 N. W. 502.

171 Reg. v. Lesley, Bell, C. C. 220, 8 Cox, C. C. 269, Beale's Cas. 311, Mikell's Cas. 86.

78. Domestic Authority.

A father, or other person standing in loco parentis, has authority to give reasonable correction to his child, and in doing so he is not guilty of an assault and battery, nor of felonious homicide if death ensues without his fault; but if the correction exceeds the bounds of moderation, either in the measure of it or in the instrument used, his authority is no justification, but he is guilty of assault and battery, manslaughter, or murder, according to the circumstances.172

The same principles were formerly applicable to husband and wife, master and servant, and teacher and pupil, but the extent to which this is now the case is not clear.173

79. Prevention of Offenses.

It is not only the right, but the duty, of every person, whether an officer or merely a private person, to prevent the commission of a felony, and acts done for this purpose, if necessary, are justifiable. If a felony can be prevented in no other way, even a homicide will be justifiable.174 To be justifiable, the homicide must be necessary, and must be committed in order to prevent the felony.175 For this reason the rule does not extend to a secret felony, like larceny, but only to such felonies as are committed by force or surprise, like murder, rape, robbery, burglary, etc.176

Homicide to prevent the commission of a misdemeanor or of a bare trespass is not justifiable,177 though an assault and battery may be justified on such ground.178 Even a homicide may

172 Fost. C. L. 262; Beale's Cas. 315; Reg. v. Griffin, 11 Cox, C. C. 402, Beale's Cas. 315; post, §§ 211, 263 (c), 274.

173 See post, §§ 211, 263 (c), 274.

174 Rex v. Compton, Lib. Ass'n 97, pl. 55, Beale's Cas. 316; †Howell's Case, Select Pleas of the Crown, Sel. Soc. Pl. 145, Mikell's Cas. 406; post, § 268.

175 Reg. v. Dadson, 4 Cox, C. C. 358, Beale's Cas. 317; post, § 268 (c). 170 Reg. v. Murphy, 1 Craw. & D. 20, Beale's Cas. 318; post, § 268 (c).

be justifiable if necessarily committed in an attempt to suppress a riot or affray.179

80. Defense of One's Person or Property.

(a) In General.-It is an elementary principle of the common law that a man has the right to defend his life, liberty, and property. This right is not only given to him by the common law, but in many states it is guaranteed by the declaration of rights or constitution, so that he cannot be deprived of the right by the legislature. Speaking generally, "the right of defense is the right to do whatever apparently is reasonably neces sary to be done in defense under the circumstances of the case. "180

(b) Defense of One's Person.-A man is not bound to submit to an assault upon himself, and seek redress in the courts, but may oppose force by force in self-defense, and his acts will be justifiable, provided they do not exceed the bounds of necessity, and provided he was not himself in fault in bringing on the necessity for self-defense. Striking another to prevent a threatened assault and battery is not a crime at all. A homicide is justifiable, not merely excusable, if necessarily committed by a person, who is without fault himself, in order to save his own life or to prevent great bodily harm, or to prevent the commission of a known felony by violence or surprise upon his person, his habitation, or his property. It was said by Foster: "In the case of justifiable self-defense the injured party may repel force by force in defense of his person, habitation, or property, against one who manifestly intendeth and endeavoreth by violence or surprise to commit a known felony upon either. In these cases he is not bound to retreat, but may pursue his adversary till he findeth himself out of danger, and if, in a conflict between them, he happeneth to kill, such killing is justifiable. Where a known felony is attempted

*

179 Post, § 270.

*

*

180 Aldrich v. Wright, 53 N. H. 398, 16 Am. Rep. 339.