On this principle, it was murder at common law to unintentionally kill another in committing, or attempting to com mit, burglary, arson, rape, robbery, or larceny.2

289

The doctrine has repeatedly been recognized and applied in this country, and is to be regarded as still in force, except where it has been expressly abrogated by statute. 290

The decisions at common law do not require that the act done shall have been of such a nature as to endanger life, or threaten great bodily harm, but the malice necessary to constitute murder is implied from the mere fact that the accused was committing, or attempting to commit, a felony. This was certainly the common-law doctrine. If it had been otherwise, the doctrine would have been altogether unnecessary, because the killing would be murder because of the tendency of the act,291 without regard to its being done in the commission of a felony.292

all offenses of that grade were punishable with death, with or without benefit of clergy. In such cases, therefore, the malicious and premeditated intent to perpetrate one kind of felony was, by implication of law, transferred from such offense to the homicide which was actually committed, so as to make the latter offense a killing with malice aforethought, contrary to the real fact of the case as it appeared in evidence." People v. Enoch, 13 Wend. (N.

Y.) 159, 27 Am. Dec. 197, 200.

289 Steph. Dig. Crim. Law, art. 223; Reg. v. Greenwood, 7 Cox, C. C. 404, Beale's Cas. 424; Reg. v. Serne, 16 Cox, C. C. 311, Beale's Cas. 465, Mikell's Cas. 600; State v. McNab, 20 N. H. 160; State v. Cooper, 13 N. J. Law, 361; State v. Shelledy, 8 Iowa, 477; Adams v. People, 109 Ill. 444, 50 Am. Rep. 617; Smith v. State, 33 Me. 48, 54 Am. Dec. 607; Com. v. Riley, Thatch. C. C. (Mass.) 471; State v. Barrett, 40 Minn. 77, 41 N. W. 463; Kennedy v. State, 107 Ind. 144, 6 N. E. 305, 57 Am. Rep. 99; Dill v. State, 25 Ala. 15; Reddick v. Com., 17 Ky. L. R. 1020, 33 S. W. 416; State v. Wagner, 78 Mo. 644; People v. Olsen, 80 Cal. 122, 22 Pac. 125; Rupe v. State, 42 Tex. Cr. R. 477, 61 S. W. 929.

To kill in the attempt to escape with the booty after committing robbery is to kill in the commission of robbery. State v. Brown, 7 Or. 186, Mikell's Cas. 611.

290 People v. Enoch, 13 Wend. (N. Y.) 159, 27 Am. Dec. 197; People v. Sullivan, 173 N. Y. 122, 65 N. E. 989, 63 L. R. A. 353.

291 Ante, § 244.

The doctrine, in so far as the commission of felonies not dangerous to life is concerned, has been criticised and rendered doubtful, but it seems never to have been expressly repudiated.293

(b) Attempt to Commit Suicide.-Suicide was a felony at common law,294 and therefore a homicide unintentionally committed by a person in an attempt to commit suicide has been held to be murder.295

292 In Reg. v. Greenwood, 7 Cox, C. C. 404, Beale's Cas. 424, Mikell's Cas. 556, the accused had communicated a venereal disease to a woman in committing a rape upon her, and the court charged the jury that the fact that he was committing a felony-the rape-made the homicide murder. Cf. Rex v. Lad, 1 Leach, C. C. 96, Mikell's Cas. 602, n.

And in an earlier English case it was held that, if a man shot at a hen with intent to steal it, he was guilty of murder because of his felonious intent to steal the hen. Rex v. Plummer, 1 Hale, P. C. 475. 293 In Reg. v. Serne, 16 Cox, C. C. 311, Beale's Cas. 465, Mikell's Cas. 600, decided in England in 1877, Stephen, J., expressed a doubt as to the soundness of the doctrine, and was of opinion that no court in England would follow the old cases to the full extent; but that, "instead of saying that any act done with intent to commit a felony, and which causes death amounts to murder, it would be reasonable to say that any act known to be dangerous to life, and likely in itself to cause death, done for the purpose of committing a felony, which caused death, should be murder." As has been heretofore suggested, however, if the doctrine is thus restricted, it is unnecessary to regard the intent to commit a felony at all, as the dangerous tendency of the act, in itself, renders the killing murder. There can be no doubt that the broad doctrine was well established at common law, and whether it is to be still adhered to is a question for the legislatures, and not for the courts, whose duty it is to enforce the law, and not to make it.

294 Post, § 250.

295 State v. Levelle, 34 S. C. 120, 27 Am. St. Rep. 799, Mikell's Cas. 604.

In Com. v. Mink, 123 Mass. 422, 25 Am. Rep. 109, Beale's Cas. 206, a conviction of manslaughter was sustained where a person killed another in an attempt to commit suicide, and it was intimated that the conviction might perhaps have been of murder. This, however, was not decided.

(c) Statutory Felonies.-It was said in a New York case that it necessarily follows, from this principle of the common law, that as often as the legislature creates new felonies, or raises offenses which were only misdemeanors at common law to the grade of felony, a new class of murders is created by the application of the principle to the case of a homicide committed while engaged in the perpetration of a newly-created felony; and on the other hand, when the legislature abolishes an offense which was a common-law felony, or reduces it to the grade of a misdemeanor, unintentional homicide by a person in the perpetration of such an act is no longer murder, but involuntary manslaughter.296 The latter part of this proposition is no doubt true, but the first part is not so clear.

249. Homicide in Resisting Arrest or Obstructing an Officer.

The malice necessary to constitute murder at common law will also be implied where an officer or private person is killed by a man in resisting or obstructing a lawful attempt to arrest him or another, or even to execute civil process, though the killing may have been unintentional. The law implies malice in such a case because the party "set himself against the justice of the realm.”297

296 People v. Enoch, 13 Wend. (N. Y.) 159, 27 Am. Dec. 197.

297 Yong's Case, 4 Coke, 40 a, Beale's Cas. 462; Pew's Case, Cro. Car. 183, Mikell's Cas. 594; Rex v. Ford, Russ. & R. 329; Rex v. Baker, 1 Leach, C. C. 112, 1 East, P. C. 323; Roberts v. State, 14 Mo. 138, 55 Am. Dec. 97; Brooks v. Com., 61 Pa. 352, 100 Am. Dec. 645; Com. v. Grether, 204 Pa. 203, 53 Atl. 753; Angell v. State, 36 Tex. 542, 14 Am. Rep. 380; Weatherford v. State, 31 Tex. Cr. R. 530, 21 S. W. 251, 37 Am. St. Rep. 828; Boyd v. State, 17 Ga. 194; Rafferty v. People, 69 Ill. 111; State v. Spaulding, 34 Minn. 361.

This rule does not apply where an arrest is attempted in such a wanton and menacing manner as to endanger life, or threaten great bodily harm, even though there may be a right to make the arrest. Jones v. State, 26 Tex. App. 1, 19 S. W. 53, 8 Am. St. Rep. 454; Croom v. State, 85 Ga. 718, 11 S. E. 1035, 21 Am. St. Rep. 179; note 302, infra.

The same principle applies where either an officer or a private person is killed by another, though unintentionally, in resisting his attempt to suppress a riot or affray.298 Where a person, in resisting a lawful attempt to arrest him or to suppress a riot or affray, attempts to kill the officer, and by accident kills a third person, the killing is murder.299

As we shall see in treating of excusable homicide, a person may oppose force to force in resistance of an illegal attempt to arrest him, and if, in the conflict which ensues, he kills the officer to save himself from death or great bodily harm, the homicide is excusable.300 And, as we shall see in treating of manslaughter, if a man kills another in the heat of passion caused by an illegal arrest, and not from malice, the homicide is voluntary manslaughter only.301 Therefore, to make the killing of an officer or private individual in resisting an arrest murder, and not manslaughter merely, or excusable, these three things are necessary, namely: (1) Legal authority to make the arrest; (2) knowledge of that authority on the part of the person sought to be arrested, or knowledge of facts from which such knowledge may be imputed to him; and (3) an attempt to make the arrest in a legal manner.302

298 Yong's Case, 4 Coke, 40 a, Beale's Cas. 462; Tomson's Case, J. Kelyng, 66, Beale's Cas. 462; Rex v. Hodgson, 1 Leach, C. C. 6; State v. Ferguson, 2 Hill (S. C.) 619, 27 Am. Dec. 412.

When a private individual interposes in an affray to separate the combatants, he must give notice of his pacific intent, in order that the killing of him shall be murder, instead of manslaughter. State v. Ferguson, supra.

299 Angell v. State, 36 Tex. 542, 14 Am. Rep. 380. And see Rex v. Hodgson, 1 Leach, C. C. 6.

300 Post, § 278.

301 Post, § 260 c.

302 See Tomson's Case, J. Kelyng, 66, Beale's Cas. 462, where it is held that the slayer must know, or have reason to know, that the person killed comes for the purpose of making the arrest, or sup

As we shall see in another connection, if a homicide is committed in resisting an illegal arrest, not because of and under the influence of the provocation, and the heat of blood caused by the attempt to arrest, but from malice, the killing is not manslaughter, but murder. 303

(C) Suicide.

250. In General. Suicide, or self-murder, was a felony at common law, and it is still regarded as unlawful and criminal, though it is no longer punished.

By the common law of England, suicide was considered a crime. The lands and goods of the offender were forfeited to the king, as in the case of other felonies, and his body was ignominiously buried in the highway. He was deemed a murderer of himself and a felon.304 Suicide is no longer punishable either in England or in this country, but it has not for that reason ceased to be criminal.305 One who persuades another to kill himself, and is present when he does so, is guilty of murder as principal in the second degree, or, if absent, he is guilty as an accessary before the fact.3 And if two persons agree to kill

306

pressing the riot or affray. And see Drennan v. People, 10 Mich. 169; State v. Spaulding, 34 Minn. 361, 25 N. W. 793; Creighton v. Com., 83 Ky. 142, 84 Ky. 103, 4 Am. St. Rep. 193, Beale's Cas. 339; Jones v. Statc, 26 Tex. App. 1, 9 S. W. 53, 8 Am. St. Rep. 454; Rex v. Thompson, 1 Mood. C. C. 80, Beale's Cas. 477; Mockabee v. Com., 78 Ky. 380; Fleetwood v. Com., 80 Ky. 1; Croom v. State, 85 Ga. 718, 11 S. E. 1035, 21 Am. St. Rep. 179.

303 Post, § 260 c.

304 3 Inst. 54; 1 Hale, P. C. 411; 2 Hale, P. C. 62; 1 Hawk. P. C. c. 27: Id. c. 9, Mikell's Cas. 551; 4 Bl. Comm. 189; State v. Levelle, 34 S. C. 120, 13 S. E. 319, 27 Am. St. Rep. 799; Com. v. Mink, 123 Mass. 422, 25 Am. Rep. 109, Beale's Cas. 206.

See monograph, "Is Suicide Murder?" by Wm. E. Mikell, 3 Col. Law Rev. 379.

305 Com. v. Mink, supra.

306 4 Bl. Comm. 189; Rex v. Dyson, Russ. & R. 523; Com. v. Mink, supra; Com. v. Bowen, 13 Mass. 356, 7 Am. Dec. 154, Mikell's Cas. 555;