upon the person, be it to rob or murder, here the party assaulted

may repel force by force

the party will be justified.

her chastity, may lawfully kill a person attempting to commit a rape upon her. An attempt is made to commit arson or burglary in the habitation; the owner, or any part of his family, or even a lodger with him, may lawfully kill the assailants for preventing the mischief intended."181

(c) Defense of One's Property.-A man not only has a right to defend his life and his person, but he also has a right to defend his property. He cannot take another's life, or inflict grievous bodily harm, merely in defense of property, but he may use necessary means short of this, and his acts in such necessary defense will not be a crime either at common law or under a statute.182

Where a statute imposed a penalty upon any person who, between certain days, should in any way destroy mink, beaver, otter, etc., it was held that the statute did not apply to one who killed minks between such days, where he did so in apparently necessary defense of his poultry.183

The same principle has been applied to the killing, trapping, or otherwise injuring dogs, hogs, and other animals in defense of property.184

(d) Necessity for Defense.-To give rise to the right of defense, whether of life, or of the person, or of property, there

181 Fost. C. L. 273; Beale's Cas. 326; †Anon. Fitzh. Abr., Corone. Pl. 284, Mikell's Cas. 411; Shorter v. People, 2 N. Y. 193, 51 Am. Dec. 286, Beale's Cas. 330. See post, §§ 276-285, where the right of self defense is treated at length.

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

An unintentional homicide, committed in the necessary defense of property, is excusable. Hinchcliffe's Case, 1 Lewin, C. C. 161, Mikell's Cas. 446.

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

184 Hodge v. State, 11 Lea (Tenn.) 528, 47 Am. Rep. 307; Thompson v. State, 67 Ala. 106, 42 Am. Rep. 101; Lott v. State, 9 Tex. App. 206. And see the note in 47 Am. Rep. 310.

must be necessity for defense, and the acts done in defense, to be justifiable, must not go beyond the necessity.185 "When force, purely defensive at first, increases and becomes more than is reasonably necessary for defense, the excess is aggressive, and not defensive.”186

To justify the defensive destruction of human life, the danger must be, not problematical and remote, but evident and immediate, or imminent.187 And so it is in defense of property.188 But imminence of danger, as was said in a New Hampshire case, “is relative and not absolute, and is measured more by the nature of the consequences than by the lapse of time. It is not a condition of things in which the party whose person or property is imperiled is allowed to anticipate, and prevent the impending mischief by making a deadly defense only a precise and invariable number of seconds, minutes, hours, or days before the mischief would happen without such defense. The law does not fix the distance of time between the justifiable defense and the mischief, for all cases, by the clock or calendar. The chronological part of the doctrine of defense, like the rest of it, is a matter of reasonableness; and the reasonableness depends upon circumstances.”189

Apparent Danger.-In determining whether an act claimed to have been done in self-defense was necessary, the question is not whether there was real necessity, but whether there was

185 Creighton v. Com., 84 Ky. 103, Beale's Cas. 339; Floyd v. State, 36 Ga. 91, Mikell's Cas. 412; Aldrich v. Wright, 53 N. H. 398, 16 Am. Rep. 339; State v. Rheams, 34 Minn. 18, 24 N. W. 302.

186 Aldrich v. Wright, supra.

187 Post, 279.

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

189 Aldrich v. Wright, supra. This was a case in which the defendant killed minks in defense of his poultry, and set up defense of property in an action for a penalty under a statute against destroying minks between certain dates.

reasonably apparent necessity. This is true as respects both defense of life190 and defense of property.191

Elsewhere Treated. The whole subject of self-defense and defense of property will be fully treated, and to better advantage, in dealing with homicide and assault and battery.192 To treat it further here would result in useless repetition.

81. Defense of Others.

There are many cases in which a person may be justified in interfering in defense of others than himself. If a man is assaulted by another, his servant may interfere in his defense, and vice versa. 193 The same is true of parent and child.194 And in the case of attempted arson or burglary, a guest or lodger may interfere and act in defense in the same manner as the owner himself might do.195

As was shown in a previous section, any person may lawfully interfere, and even take life, to prevent a felony attempted by violence or surprise.196 In other cases the right of a person to

190 Shorter v. People, 2 N. Y. 197, 51 Am. Dec. 286, Beale's Cas. 330; Campbell v. People, 16 Ill. 17, 61 Am. Dec. 49; Aldrich v. Wright, 53 N. H. 398, 16 Am. Rep. 339.

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

192 Post, §§ 212-214, 276-288.

193 1 East, P. C. 289; Fost. C. L. 273, Beale's Cas. 326, 343; post, §§ 215, 288.

194 Reg. v. Rose, 15 Cox, C. C. 540, Beale's Cas. 343; (where a son shot his father in defense of his mother); Campbell v. Com., 88 Ky. 402, 11 S. W. 290 (where it was held that a father has a right to defend his daughter against an assault and battery by her husband); Com. v. Malone, 114 Mass. 295 (where it was held that an assault and battery by a mother to prevent an indecent assault upon her sixteen-year-old daughter was justifiable). Patten v. People, 18 Mich. 314, Mikell's Cas. 433 (where a son killed a rioter in defense of his mother). And see post, §§ 215, 288.

A parent may not protect his child in committing an assault. State v. Herdina, 25 Minn. 161.

195 1 East, P. C. 290, Fost. C. L. 273; Beale's Cas. 326, 343; post, §§ 287, 288.

interfere in defense of a stranger is not clear. A stranger would no doubt be justified in interfering to prevent an assault upon one who is clearly without fault without being guilty of an assault and battery, and he may interfere as a mediator to preserve the peace in the case of an affray.197 A stranger, however, cannot lawfully interfere in an affray, and take the part of one party against the other.198

82. Necessity.

(a) In General.-"An act which would otherwise be a crime may be excused if the person accused can show that it was done only in order to avoid consequences which could not otherwise be avoided, and which, if they had followed, would have inflicted upon him, or upon others whom he was bound to protect, inevitable and irreparable evil; that no more was done than was reasonably necessary for that purpose; and that the evil inflicted by it was not disproportionate to the evil avoided."199

The cases referred to in previous sections under this subdivision are treated in the books as cases of necessity, as the execution of criminals, the arrest and detention of criminals, the prevention of felony, suppression of riots and affrays, necessary defense of person or property, etc. There are many other cases of necessity besides these.

196 Ante, § 79.

197 See 1 East, P. C. 290, Beale's Cas. 343. 1981 East, P. C. 290, Beale's Cas. 343.

199 Steph. Dig. Crim. Law, art. 32, citing Rex v. Stratton, 21 How. St. Tr. 1045, wherein it was said by Lord Mansfield: "Wherever necessity forces a man to do an illegal act,-forces him to do it,-it justifies him, because no man can be guilty of a crime without the will and intention of his mind." Sce Beale's Cas. 361, note.

A parent cannot be convicted of withdrawing his child from school without consent of the school board, where such action is necessary because of the child's ill health. State v. Jackson, 71 N. H. 552, 53 Atl. 1021, 60 L. R. A. 739.

(b) Larceny. It is said by Lord Bacon that, if a man steal viands to satisfy his present hunger, this is no felony nor larceny;200 and this is no doubt true if the case is one of actual necessity. Stealing cannot be justified on the ground of necessity, however, where, as is now generally the case, relief may be obtained by application to the public authorities.

(c) Homicide to Save Life.-It is also said by Lord Bacon that "if divers be in danger of drowning by the casting away of some boat or bark, and one of them get to some plank, or on the boat side, to keep himself above water, and another, to save his life, thrust him from it, whereby he is drowned, this is neither se defendendo, nor by misadventure, but is justifiable."201

It is extremely doubtful, however, whether a man is justified in taking another's life to save his own, where the necessity is not due to the other's fault, and there are decisions to the effect that he is not.202 Homicide in self-defense has been considered in a previous section.

200 Bacon's Maxims, reg. 5, Beale's Cas. 356.

201 Bacon's Maxims, reg. 5, Beale's Cas. 356.

202 Brewer v. State (Ark.) 78 S. W. 773. Thus, in Reg. v. Dudley, 15 Cox, C. C. 624, 14 Q. B. Div. 273, Beale's Cas. 357, Mikell's Cas. 131, note, it was held that a man who, in order to escape death from hunger, kills another for the purpose of eating his flesh, is guilty of murder, although at the time of the act he is in such circumstances that he believes, and has reasonable grounds for believing, that it affords the only chance of preserving his life. In this case it appeared that the defendants, D. and S., seamen, and the deceased, a boy who was with them, were cast away in a storm on the high seas, and compelled to put into an open boat; that the boat was drifting on the ocean, and was probably more than 1,000 miles from land; that on the eighteenth day, when they had been seven days without food, and five without water, D. proposed to S. that lots should be cast to determine who should be put to death to save the others, and that they afterwards thought it would be better to kill the boy, that their lives should be saved; that on the twentieth day they killed the boy, and fed on his flesh for four days, when they were rescued by a vessel. At the time of the act there was no sail in sight, nor any reasonable prospect of