Knowledge of Facts Giving Rise to Duty.-It is also necessary, in cases of this character, that the accused shall have known of the facts making it his duty to act, for a man cannot be said to neglect to perform a duty unless he knows of the condition of things which requires performance at his hands.117 In some cases, however, it may be a part of his duty to inform himself of the facts so that a failure to do so through culpable negligence would render him responsible.

(F) Justifiable and Excusable Homicide.

(1) JUSTIFIABLE HOMICIDE IN GENERAL.

417a

266. Definition.-Justifiable homicide is the necessary killing of another in the performance of a legal duty, or the exercise of a legal right, the slayer not being at all in fault." A homicide is justifiable, so that no blame whatever attaches, in the following cases:

was employed by the owner of a tramway, which crossed a public highway, to warn travelers on the highway of the approach of trucks on the tramway, but the owner of the tramway was under no legal duty to warn travelers. Under these circumstances, it was held that the accused owed no duty to the travelers, and that his failure to give warning, whereby the death of a traveler was caused, did not make him guilty of manslaughter. If a statute had imposed a duty to give warning, it would have been otherwise.

Failure to provide food or medical attendance for a starving or sick and helpless person or child does not render one guilty of homicide, if he is under no legal duty to do so. Thus, in Rex v. Smith, 2 Car. & P. 449, it was held that a person was not responsible for allowing his idiot brother to die of want, though living in the same house, where it did not appear that he had undertaken to support him. See, also, Reg. v. Pelham, 8 Q. B. Div. 959; Reg. v. Shepherd, Leigh & C. 147, 9 Cox, C. C. 123, Mikell's Cas. 223; Reg. v. Saunders, 7 Car. & P. 277.

This principle does not apply where a person has specially undertaken to supply the wants of a helpless person, or has put him beyond the reach of relief from others; and it makes no difference that there is no relationship between the parties. Reg. v. Smith, Leigh & C. 607, 10 Cox, C. C. 82; Reg. v. Marriott, 8 Car. & P. 425, Mikell's Cas. 229. 417 State v. Smith, 65 Me. 257.

417a 1 Hawk. P. C. c. 10, Mikell's Cas. 551.

1. When a person convicted of a capital offense, and sentenced to death by a court of competent jurisdiction, is executed by the proper officer in accordance with the sentence.

2. When a person is necessarily killed, either by a peace officer or by a private person, in order to prevent him from committing a felony by violence or surprise. 3. When a homicide is necessarily committed, either by a peace officer or by a private person, in suppressing a riot.

4. When a person is necessarily killed in effecting an arrest for a felony committed by him, or in preventing his escape after he has been arrested and is in custody.

5. When a person who is feloniously assaulted, and who is himself without fault, kills his assailant to save himself from death or great bodily harm.

267. Execution of Criminals.

One of the clearest cases of justifiable homicide is where an officer executes one who has been convicted of a capital offense and sentenced to death.418 To be justifiable, the homicide must be in accordance with the law, and in strict conformity with the sentence. "The law must require it," says Blackstone, "otherwise it is not justifiable; therefore, wantonly to kill the greatest of malefactors, a felon or a traitor, attainted or outlawed, deliberately, uncompelled, and extrajudicially, is murder.419 And further, if judgment of death be given by a judge not authorized by lawful commission, and execution is done accordingly, the judge is guilty of murder.420 Also, such judgment, when legal, must be executed by the proper officer or his appoint

418 4 Bl. Comm. 178; Fost. C. L. 267; Beale's Cas. 311; 1 Hale, P. C. 496, Mikell's Cas. 392; 1 Hawk. P. C. c. 10, Mikell's Cas. 552.

419 4 Bl. Comm. 178; 1 Hale, P. C. 497.

420 4 Bl. Comm. 178; 1 Hale, P. C. 497; 1 Hawk. P. C. 70.

ed deputy. If another person doth it of his own head, it is held to be murder, even though it be the judge himself.421 It must, further, be executed servato juris ordine; it must pursue the sentence of the court. If an officer beheads one who is adjudged to be hanged, or vice versa, it is murder."422

268. Homicide to Prevent a Felony.

423

(a) In General.—It is a well-settled principle of the common law that any person, whether he be a peace officer or merely a private individual, may and should kill another, if necessary to prevent him from committing a felony attempted by force or surprise, as murder, rape, sodomy, robbery, burglary, or arson. The homicide in such a case is not merely excusable, but it is justifiable. "Such homicide," said Blackstone, "as is committed for the prevention of any forcible and atrocious crime, is justifiable by the laws of nature, and also by the law of England, as it stood as early as the time of Bracton;" and he specifies as of that character the offenses mentioned above. 424 It is not at all necessary that the felony shall be directed against the person, habitation, or property of the person committing the homicide, but it is justifiable to kill in order to prevent such a felony against a third person, even though he may be a stranger.

(b) Statutory Felonies.-This doctrine applies, it has been held, to felonies created by statute, if they are forcible felonies, although they may not have been crimes at all at common law. Thus, it has been applied to a homicide committed in

421 4 Bl. Comm. 178.

422 4 Bl. Comm. 179; 3 Inst. 52; 1 Hale, P. C. 501.

423 4 Bl. Comm. 180; Fost. C. L. 259, 273, Beale's Cas. 326; Hawk. P. C. c. X, Mikell's Cas. 552; Steph. Dig. Crim. Law, art. 199; Cooper's Case, Cro. Car. 544, Beale's Cas. 347; Reg. v. Rose, 15 Cox, C. C. 540, Beale's Cas. 343; Howell's Case, Sel. Soc. Pl. 145, Mikell's Cas. 406; State v. Moore, 31 Conn. 479, 83 Am. Dec. 159; Pond v. People, 8 Mich. 150; Stoneman v. Com., 25 Grat. (Va.) 887; Ruloff v. People, 45 N. Y. 213; Osborne v. State, 140 Ala. 84, 37 So. 105.

424 4 Bl. Comm. 180.

order to prevent the statutory felony of breaking and entering a shop or warehouse with intent to steal, although this was no crime at all at common law.425

(c) Necessity for the Homicide-Acting on Appearances.To bring a case within the doctrine, the homicide must be necessary to prevent the felony. It is only on the ground of necessity that it is justifiable.426 It has been said that it need not be actually necessary, but it is enough if it is reasonably apparently so; that if a man kills another under a reasonable apprehension that the other intends to commit a felony, and that there is imminent danger of such design being carried into execution, he is justified in so doing, though the danger is unreal.427 Strictly speaking, however, the homicide is not justifiable under such circumstances, but excusable on the ground of the mistake of fact.428

(d) Secret Felonies.-Since a homicide in prevention of a felony is only justifiable when necessary to prevent the felony, the doctrine does not apply to the prevention of felonies not attempted by violence or surprise. It does not apply to secret felonies, like larceny.429

425 State v. Moore, 31 Conn. 479, 83 Am. Dec. 159. See, also, Pond v. People, 8 Mich. 150..

420 State v. Moore, 31 Conn. 479, 83 Am. Dec. 159; Storey v. State, 71 Ala. 330, Mikell's Cas. 406. And see People v. Cook, 39 Mich. 236, 33 Am. Rep. 380, Beale's Cas. 345; post, § 288.

427 Stoneman v. Com., 25 Grat. (Va.) 887.

In a New York case it was said: "One who is opposing and endeavoring to prevent the consummation of a felony by others may properly use all necessary force for that purpose, and resist all attempts to inflict bodily injury upon himself, and may lawfully detain the felons and hand them over to the officers of the law. Although the use of wanton violence and the infliction of unnecessary injury to the persons of the criminals is not permitted, yet the law will not be astute in searching for such line of demarcation in this respect as will take the innocent citizen, whose property and person are in danger, from its protection, and place him at the mercy of the felon." Ruloff v. People, 45 N. Y. 213.

428 See Levett's Case, Cro. Car. 538, Beale's Cas. 279; post, § 274. 429 Reg. v. Murphy, 1 Craw. & D. 20, Beale's Cas. 318.

(e) Knowledge. And under no circumstances is a homicide justifiable because the deceased was committing a felony, if the accused had no knowledge of this fact at the time of the killing.430

269. Homicide to Prevent Misdemeanor or Trespass.

A homicide to prevent another from committing a mere misdemeanor, as, for example, a simple assault and battery, which does not endanger life or threaten great bodily harm, or an unlawful arrest, etc., is not justifiable.431 Nor is a man justified in killing another to prevent a bare trespass upon land or goods.432 As we have seen, however, a man, in such cases, may use reasonable force short of taking life or inflicting great bodily harm, without being guilty of assault and battery;433 and, as we shall presently see, he will be excused if, in the conflict which ensues, he necessarily kills the other to save himself from death or great bodily harm.134

270. Homicide in Suppressing a Riot.

There is one exception to the rule that life cannot be taken to

In Storey v. State, 71 Ala. 330, the evidence tended to show that the defendant killed the deceased in order to recapture a horse which the deceased had stolen from him. The larceny being a felony, the defendant requested the court to charge the jury that if the horse was feloniously taken and carried away by the deceased, and there was an apparent necessity to kill him in order to recover the property, and prevent the consummation of the felony, the homicide was justifiable. The request was refused, and the supreme court held that it was proper to refuse it, as a homicide to prevent a felony is justifiable only where the felony is attempted by force or surprise, as in the case of murder, robbery, rape, etc., and that the rule does not apply to secret felonies, like larceny. See, also, State v. Moore, 31 Conn. 479, 83 Am. Dec. 159.

430 See Reg. v. Dadson, 4 Cox, C. C. 358, Beale's Cas. 317.

431 Ante, § 260 a-f; State v. Moore, 31 Conn. 479, 83 Am. Dec. 159. 432 Ante, § 260h; State v. Moore, supra.

433 Ante, §§ 212-214.

434 Post, §§ 277, 278.