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Where an indictment for manslaughter stated that the prisoner " did
compel and force A. B. and C. D. to leave" a windlass, by means of
*655 which the death was occasioned, and it appeared that the *prisoner,
who was working one handle of the windlass, went away, and A. B.
and 0. D., then finding they were not strong enough to hold the wind-
lass without him, let go their hold, by reason of which the deceased was
killed, it was held that the words " did compel and force" must be taken
to mean personal affirmative force applied to A. B. and C. D., and there-
fore the pri-soner must be acquitted. (?) So where an indictment alleged
that the prisoner did "propel and force" a vessel against a skiff, Parke,
B., said, "The allegation in the inquisition is, that the defendants forced
and propelled the vessel against the skiff: evidence against those who
gave the immediate orders will be necessary to sustain this allega-
tion."(m)

It has been held, upon two cases reserved, that a person indicted for
murder may be convicted of manslaughter, and punished accordingly,
although such indictment do not conclude contra formiam statuti,{ji\
And so on an indictment for manslaughter not concluding contra for-
mam statuti, the punishment provided by the 9 Geo. 4, c. 31, s. 9, may
be awarded, for such conclusion is only necessary where a statute cre-
ates the offence, not where it merely regulates the punishment, (o)
Accesso- If a person be indicted as accessory after the fact to a murder, he
"^^- may be convicted as accessory after the fact to manslaughter, if the

offence of the principal turns out to be manslaughter, (j?) Either assist-
ing the party to conceal the death, or in any way enabling him to evade

Oc) Hilton's case, 2 Lew. 214, Alderson, B. See Rex v. Waters,' 6 C. & P. 328, ante, p.

(i) Rex V. Llojd,2 9 C. & P. 301, Garrow B.
(m) Reg. V. Taylor,3 9 C. & P. 672. See the case ante, p. G52.

(n) Rex V. Chatburn, R. & M. C. C. R. 403. Rex v. Rushworth, R. & M. C. C. R. 404.
(o) Rex V. Berry, 1 Moo. & Rob. 463, Parke, B.

(p) Rex V. Greenacre,'" 8 C. & P. 35, Tindal, C. J., Coleridge and Coltman, Js.
' Eng, Com. Law Reps. xxv. 423. 2 n,, ^i. 399. 3 lb. xxxviii. 284. * lb. xxxiv. 280.



CHAP. IIT.] OF EXCUSABLE HOMICIDE. 655



the pursuit of justice, will rciulor a party, who knows the offence to
have been committed, an accessory after the fact. (7)

Upon an indictment for manslaughter, the jury may tind the prisoner
guilty of an assault under the 1 Vict. c. 85, s. 11, and he may be sen-
tenced to three years imprisonment, with or without hard labour, and
solitary confinement, not exceeding one month at any one time, and not
exceeding three mouths in any one year in addition to such imprison-
ment, or such imprisonment with hard labour, by virtue of sec. 8 & 11,
of that statute. (/•)



* CHAPTER THE THIRD. *656

OF E.XCUSABLE A.ND JUSTIFIABLE HOMICIDil.

We may now properly proceed to treat of such homicide as, not
amounting even to manslaughter, must be considered either as excusable
or justifiable ; excusable when the person by whom it is committed is not
altogether free from blame; and justifiable when no blame whatever is
attached to the party killing.

Excusable Jiomicide is of two sorts : either per infortunium^ by mis-
adventure ; or se et sua dcfendendo, upon a principle of self-defence.
This term excusable homicide imports some fault in the party by whom
it has been committed; but of a nature so trivial that the law excuses
such homicide from the guilt of felony, though in strictness it deems it
to be deserving of some degree of punishment. It appears to be the
better opinion, that the punishment inflicted for this offence was never
greater than a forfeiture of the goods and chattels of the delinquent, or
a portion of them :(«) and, from as early a time as our records will
reach, a pardon and writ of restitution of the goods and chattels have
been granted as a matter of right, upon payment of the expenses of
suing them out. At the present time, in order to prevent this expense,
it is usual for the judges to permit or direct a general verdict of acquit-
tal in cases where the death has notoriously happened by misadventure,
or in self-defence, (i) There might, however, f(trmcrly have been cases
so bordering upon, and not easily distinguishable from, manslaughter,
that the offender might have been put to sue out his pardon, according
to the provisions of the statute of Gloucester ;(c) but that statute was re-
pealed by the 9 Geo. 4, c. 31 ; sec. 10 of which enacts, '' that no punish-
ment or forfeiture shall be incurred by any person who shall kill another
by misfortune, or in his own defence, or in any other manner, without
felony." (</)

Justifiable homicide is of several kinds : as it may be occasioned by

{q) Ibid.

(r) Reg. r. Pool,' 9 C. & P. 728. Anonymous, 2 Mood. C. C. It. 40. Sec the sectioBB
and cases upon i\\cm, post, title, " .Vggravated .Vssanlts."

(rt) 4 l?!a. Com. 188. Tlic penalty for this offence is said hy Sir Edward Coke to have
been anciently no Ics-i than death. 2 Inst. 148, .Tlo; but this is denied by other writers, 1
Hale, P. C. c. 425. 1 Hawk. P. C. c. 2'.), s. 20, et seq. Fost. 282.

(6) 4 Bla. Com. 188. Fost. 288. 1 East, P. C. c. 5, a. 8, p. 222.

(c) Fost. 289. The 9 Geo. 4, c. 31, and the 10 Geo. 4, c. 84, the Irish Act, repeal so
much of the G Ed. 1, c. 9, " as relates to one person killing another by misfortune, or in Lis
own defence, or in any otlier manner, without felony."

('./) The 10 Geo. 4, c. 34, s. 13, is, word for word, the same as this section.
' Eng. Com. Law Reps, xxxviii. 309.



656 or EXCUSABLE HOMICIDE. [BOOK III.

tlic performance of acts of unavoidable necessity, where no shadow of
blame can be attached to the party killing ; or by acts done by the per-
mission of the law, either for the advaucement of public justice or for
the prevention of some atrocious crime.



*657 *SECT. I.

Of excusable Homicide hy Misadventure.

Persons HoMiciDE by misadventure is where one doing a lawful act, without

doing a any intention of bodily harm, and using proper precaution to prevent
and hap- danger, unfortunately happens to kill another person, (e) The act must
pening to be lawful ; for if it be unlawful, the homicide will amount to murder,
' ■ or manslaughter, as has been already shown ;(/) and it must be done

with intention of great bodily harm ; for then the legality of the act,
considered abstractedly, would be no more than a mere cloak, or pretence,
and consequently would avail nothing. The act must also be done in a
proper manner, and with due caution, to prevent danger. (i/)
Persons Thus, if people, following their common occupations, use due caution

following ^Q prevent danger, and nevertheless happen, unfortunately, to kill any
mon occu- One, such killing will be homicide by misadventure. As if workmen
pations. throw stones, rubbish, or other things from a house, in the ordinary
course of their business, by which a person underneath happens to be
killed, this will be misadventure only, if it were done in a retired place,
where there was no probability of persons passing by, and none had
been seen about the spot before, or if timely and proper warning were
given(A) to such as might be below. (i) And the party will not be more
criminal who is working with a hatchet, when the head of it flies oflF,
and kills a by-stander. (A-) So where a person, driving a cart or other
carriage, happens to drive over another and kill him, if the accident hap-
pened in such a manner that no want of due care could be imputed to
the driver, it will be accidental death, and the driver will be excused. (^)
A. was driving a cart with four horses in the highway at Whitechapel,
he being in the cart ; and the horses being upon a trot, threw down a
woman who was going the same way with a burthen upon her head,
and killed her. Holt, C. J., Tracy J., Baron Bury, and the Recorder
Lovell, held this to be only misadventure : but by Lord Holt, if it had
been in a street where people usually pass, this had been manslaugh-
ter. (?u) And, upon the same gx'ouud of no want of due care being im-
putable to the party in a case where a person was riding a horse, and
the horse, being whipt by some other person, sprang out of the road,
and ran over a child and killed it, this was held to be misadventure
only in the rider, though manslaughter in the person who whipped the
horse. (?i)

{e) 1 East, P. C. c. 5, s. 8, p. 221, and s. 36, p. 8, 260, 261. Fost. 258. 1 Hawk. P. C. c. 29,
s. 1.

(/) Ante, p. 538, et seq., p. 636, et scq.

(ff) 1 East, P. C. c. 5, s. 36, p. 261. (h) Ante, p. 648.

{i) 1 Hale, 472, 475. 1 Hawk. P. C. c. 29, s. 4. Fost. 262. 1 East, P. C. c. 5, s. 38,
p. 262.

{k) 1 Hawk. P. C. c. 29, s. 2. (/) Fost. 263. 1 Hale, 476.

(w) 0. B. Sess. before Mich. T. 1704, MS. Tracy, 32. 1 East, P. C c. 5, s. 38, p. 263;
and see observations on this case, ante, 649.

{n) 1 Hawk. P. C. c. 29, s. 3.



CHAP. III. § 1.] MISADVENTURE. 657

As the degree of caution to be cmployccl dcpeuds upon the probability Persons
of danger, it follows that persons using articles or instruments *in their pj."yg jj"^,j_
nature peculiarly dangerous, must proceed with such appropriate and ties, or in-
reasonable precaution as the particular circumstances may require. '*'^"'"-''l'''*
Thus, though where one lays poison to kill rats, and another takes it
and dies, this is misadventure : yet it must be understood to have been
laid in such manner and place as not easily to be mistaken for proper
food ; for that would betoken great inadvertence, and might in some cases
amount to manslaughter, (o)

A., having deer frequenting his corn field, out of the precinct of any
forest or chase, set himself in the night-time to watch in a hedge, and
set B., his servant, to watch in another corner of the field, with a gun
charged with bullets, giving him orders to shoot, when he heard any
bustle in the corn by the deer. The master afterwards improvidcntly
rushed in the corn himself: and the servant, supposing it to be the deer,
shot and killed the master. This was ruled to be misadventure, on the
ground that the servant was misguided by the master's own direction,
and was ignorant that it was any thing else but the deer. It seemed,
however, to the learned judge, who so decided, (^)) that if the master had
not given such direction, which was the occasion of the mistake, it would
have been manslaughter, because of the want of due caution in the ser-
vant to shoot before he discovered his mark.((/) But upon this it has
been remarked, that if, from all the other circumstances of the ease,
there appeared a want of due caution in the servant, it does not seem
that the command of the master could supply it, much less could excuse
him in doing an unlawful act; and that the excuse of having used ordi-
nary caution can only be admitted where death happens accidentally in
the prosecution of some lawful act.(>-) By the same rule as to due cau-
tion being observed, it has been holden to be misadventure only, where
a commander coming upon a sentinel in the night, in the posture of an
enemy, to try his vigilance, is killed by him as such ; the sentinel not
being able to distinguish his commander, under such circumstances, from
an enemy, (s)

But it should be observed, that the caution which the law requires, is As to tbo
not the utmost caution that can be used : it is sufficient that a reasonable '''-'t''y« "^

caution

precaution be taken ; such as is usual and ordinary in similar cases ; which must
such as has been found, by long experience in the ordinary course of l^*^"''**''"^'^'*
things, to answer the end.(/) This proper modification of the rule re- of danpcr-
specting caution does not appear to have been sufficiently attended to in iJ"* i'lstru-
the following case. A man found a pistol in the street, which he had
reason to believe was not loaded, having tried it with the rammer; he
carried it home and showed it to his wife; and she standing before hiin,
he pulled up the cock, and touched the trigger; and the pistol went off
and killed the woman. This was ruled inanslaughter.(») But the legality
of the decision has been doubted, on the ground that the man examined
the pistol in the common way, and used the ordinary caution deemed to

(o) 1 Hale. 4.11. 1 East, P. C. c. 5, s. 40, p. 2GG.

Ip) Lord Ilalc.

{q) 1 Hale, 4~Ct. The s.ime case is previously nientioncil, 1 Il.ile, 40, -where the learned
author seems to think tiiat the offence amounted tomanslauglitor; Imt cons^idcrs the question
as of great difficulty. The case was, however, detcrniiued at iVtcrborough, as stated in the
text.

(r) 1 East, P. C. c. 5, s. 40, p. 2G6.

(s) 1 Hale, 42. (t) Post. 2G4.

(m) Hampton's case, Kel. 41.



*659 OF EXCUSABLE HOMICIDE. [BOOK III.

be effectual in similar cases. (?c) And Mr. J. Foster, after stating *his
reasons for disapproving of the judgment, says, that he had been the
longer upon the case, because accidents of this lamentable kind may be
the lot of the wisest and the best of mankind, and most commonly fall
amongst the nearest friends and relations ; and then proceeds to state a
case of a similar accident, in which the trial was had before himself.
Upon a Sunday morning, a man and his wife went a mile or two from
home with some neighbours, to take a dinner at the house of their com-
mon friend. He carried his gun with him, hoping to meet with some
diversion by the way ; but before he went to dinner he discharged it,
and set it up in a private place in his friend's house. After dinner he
went to church; and in the evening, returned home with his wife and
neighbours, bringing his gun with him, which was carried into the room
where his wife was, she having brought it part of the way. He, taking
it up, touched the trigger ; and the gun went off and killed his wife,
whom he dearly loved. It came out in evidence, that, while the man
was at church, a person belonging to the family privately took the gun,
charged it, and went after some game ; but, before the service at church
was ended, returned it, loaded, to the place whence he took it, and
where the defendant, who was ignorant of all that had passed, found it,
to all appearance, as he had left it. " I did not inquire," says Mr. J.
Foster, " whether the poor man had examined the gun before he carried
it home ; but being of opinion, upon the whole evidence, that he had
reasonable grounds to believe that it was not loaded, I directed the jury,
that if they were of the same opinion, they should acquit him : and he
was acquitted." (x)
Correction It ^^^i been shown, that where parents, masters, and other persons,
inforo having authority in foro domestico, give correction to those under their
care, and such correction exceeds the bounds of due moderation, so that
death ensues, the offence will be either murder or manslaughter, accord-
ing to the circumstances :(_?/) but if the correction be reasonable and mo-
derate, and by the struggling of the party corrected, or by some other
misfortune, death ensue, the killing will be only misadventure. (z)
Death hap- Such sports and exercises as tend to give strength, activity and skill
r';"i°S in the use of arms, and are entered into as private recreations amongst
sports. friends, such as playing at cudgels, or foils, or wrestling by consent, are
deemed lawful sports ; and if either party happen to be killed in such
sports, it is excusable homicide by misadventure, (a) A different doc-
trine, indeed, appears to have been laid down by a very learned judge :(i)
*660 but the grounds of that doctrine have been ably combated by Mr. J.

(w) Fost. 264, -where it is said, that perhaps the rammer, -whicli the man had not tried
before, was too short, and deceived him. But, qu. whether the ordinary and proper precau-
tion would not have been to have examined the pan, which in all probability must have
been primed. The rammer of a pistol, or gun, is so frequently too short, from having been
accidentally broken, that it would be very incautious in a person previously unacquainted
with the state of the instrument to rely upon such proof as he could receive from the
rammer, unless it were passed so smartly down the barrel as clearly to give the sound of
the metal at the bottom. However, there is a qu. to the case in the margin of the report,
and it appears that the learned editor (Holt, C. J.,) was not satisfied with the judgment;
and that it is one of the points which, in the preface, he recommends for fui'ther considera-
tion.

{x) Fost. 2C5.

{y) Ante, p. 547. Chap, on 3furder, p. 645. Chap, on Manslaughter.

(2) 1 Hale, 454, 473, 474. 4 Bla. Com. 182.

[a) Fost. 259, 200. 1 East, P. C. c. 5, s. 41, p. 268. But there are other sports which
come under a different consideration. See ante, p. 638.

{b) 1 Hale, 472.



CHAP. III. § 2.] SELF-DEFENCE. G60

Foster, who gives this good reason for considering such sports as lawful,
that hodiJi/ harm is iwi the motive on cither siJe.lc) And certainly,
though it cannot be said, that they are altogether free from danger, yet
they are very rarely attented with fatal consequences, and each party
has friendly warning to be on his guard. Proper caution and fair play
should, however, be observed; and, though the weapons used be not
of a deadly nature, yet if they may breed danger, there should be due
warning given, that each party may start upon equal terms. For, if
two bo engaged to play at cudgels, and the one make a blow at the
other, likely to hurt, before he is upon his guard, and without warning,
from whence death ensues, the want of due and friendly caution will
make such act amount to manslaughter, but not to murder, the intent
not being malicious. (</)

Ordinarily the weapons made use of upon such occasions are not deadly Fporta
in their nature : but, in some sports, the instruments used are of a deadly , "^T,"
nature ; yet, in such cases, if they be not directed by the persons using weapons
them against each other, and therefore no danger be reasonably to be ap-"''*^ "*'-'^-
prehended, the killing which may casually ensue will be only homicide
by misadventure. Such will be the case, therefore, where persons shoot
at game or butts, or any other lawful object, and a by-stander is killed :{e)
and with respect to the lawfulness of shooting at game, it may be ob-
served, that though the party be not qualified, the act will not be so
unlawful as to enhance the accidental killing of a by-stander to man-
slaughter. (/)



SECT. 11.
Of excusahle Homicide in Self-defence.

Homicide in self-defence is a sort of homicide committed se et sua
defendendo, in defence of a man's person or property, upon some sudden
affray, considered by the law as in some mesure blamable, and barely
excusable, (ry)

When a man is assaultfcd in the course of a sudden brawl or quarrel, he Defenec of
may, in some cases, protect himself by killing the person who assaults r^'^^n"'*
him, and excuse himself on the ground of self-defence. But, in order medley,
to entitle himself to this plea, he must make it appear, first, that before
a mortal stroke given he had declined any further combat ; secondly,
that he then killed his adversary through mere necessity, in order to
avoid immediate death. (//) Under such circumstances the killing will
be excusable self-defence, sometimes expressed in the law by the word
chance medley, or (as it has been written by some,) chaud medley, the
former of which, in its etymology, signifies a casual affray; the latter
an affray in the heat of *blood, or passion. Both of them are pretty *(jQ\
much of the same import : but the former has, in common speech, been
often erroneously applied to any manner of homicide by misadventure ;
whereeas it appears by one of the statutes, (i') and the ancient books, (^)

(c) Fost. 200.

\d) 1 East, P. C. c. 5, s. 41, p. 200.

le) 1 Hulc, 38, 472, 475. 1 Hnwk. P. C. c. 29, s. 6. 1 East, P. C. c. 5, s. 41, \>. 209.

(/) 1 Hale, 475. Fost. 259.

(17) Fost. 273. " Self-defence culpable, but through the bcnijrnitv of the law excusable."

Ih) 1 East, P. C. c. 5, 8. 51. p. 280. Fost. 27.1. (1) 24 Hen. 8. c 5.

{k) Staund. P. C. 16. 3 Iiist. 55, 57. Kel. G7.



661 OF EXCUSABLE HOMICIDE. [BOOK III.

that it is properly capplied to sucli killing as happens in self-defence upon
a sudden rencounter. (^)
Homiciclo Homicide upon chance medley borders very nearly upon manslaughter;
°"^['""^° and, in fiict and experience, the boundaries are in some instances scarcely
borders perceivable, though in consideration of law they have been fixed. (?>i) In
nearly jrjo^ii cases it is supposed that passion has kindled on each side, and
6lau"htcr. blows have passed between the parties ; but, in the case of manslaughter,
it is either presumed that the combat on both sides had continued to
the time the mortal stroke was given, or that the party giving such
stroke was not at the time in imminent danger of death. (w) And the
true criterion between them is stated to be this ; when both parties are
actually combatting at the time the mortal stroke is given, the slayer is
guilty of manslaughter; but if the slayer has not begun to fight, or
(having begun) endeavours to decline any farther struggle, and after-
wards, being closely pressed by his antagonist, kills him to avoid his own
destruction, this is homicide excusable by self-defence. (o)-|-

(Z) 4 Bla. Com. 184. Fost. 275. Skene De verborum significatione, Verb. Chaudmelle.
{m) Fost. 276. {n) Fost. 277. (o) 4 Bla. Com. 184.

f [The right of resorting to force, upon the principle of self-defence, does not arise while
the apprehended mischief exists in machination only ; nor does it continue so to authorize
violence by way of retaliation or revenge for a past injury. The People v. McLeod, 1 Hill,
377. If the prisoner was going her own road, in a lawful pursuit, and was assailed in that
road with a hickory stick of dangerous character, and thereupon slew her adversary with a
knife, this is homicide in self-defence. Copcland v. The Slate, 7 Humphreys, 479.

The common law of Alabama on the subject of homicide is the same as the common law of
England : and wherever that law requires the person assailed to decline the contest or to
retreat before he will be excused in taking the life of his adversary, the law of Alabama
requires the same. Pierson v. The State, 12 Alab. 149.

Where upon the trial of an indictment for murder, the prisoner attempts to justify the
homicide on the ground that it was committed in self defence he must show to the satisfactioa
of the jury that he was in imminent danger either of death or of some great bodily harm ;
and it is not sufficient that the accused believed that it was necessary to take the life of his
assailant in order to protect himself from some great personal injury. The People v. Shorter,

4 Barb. Sup. C. c. 460.

One who is without fault himself, when assailed by another, may kill his adversary if the
circumstances be such as to furnish reasonable grounds for apprehending a design to take
away his life or to do him some great bodily harm, and there is also reasonable ground for
believing the danger imminent that such design will be accomplished, although it may after-
wards turn out that the appearances were false, and that there was in fact no such design
nor any danger that it would be accomplished. A person is not justified in returning blows
with a dangerous weapon, when he is struck with the naked hand, and there is no reason to
apprehend a design to do him great bodily harm ; nor is homicide justified when the combat
can be avoided or when, after it is commenced, the party can withdraw from it in safety
before he kills his adversary. Shorter v. The People, 2 Comst. 193.

On a trial for murder, there being evidence that the prisoner shot the deceased as he was
coming up the street towards the prisoner's office, it was held, that the prisoner's declara-
tion to the witness, " Yonder comes Macon" (the deceased) " with his yeager," (a kind of
gun) before firing, was admissible, as part of the res gesta ; but not the statement which
followed, "He intends to shoot or kill me." Held, also a statement of the prisoner to a
witness, before the shooting, that he saw the conduct of the deceased that morning, which
conduct was testified to by the witness as being violent and threatening as he passed with
bis gun, was admissible, as showing the prisoner's ground for alarm. Monroe v. The Slate,

5 Geo. 85. Evidence of threats by the deceased, accompanied by occasional acts of per-



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