PART II.

OFFENCES AGAINST INDIVIDUALS.

OFFENCES which immediately affect individuals are regarded as crimes, and not merely as violations of private rights, on several grounds. First, because they are considered as contempts of public justice and the Crown; secondly, because they almost always include in them a breach of the public peace; thirdly, because, by their example and evil tendency, they threaten and endanger the subversion of all civil society (u).

Offences against individuals may be divided into two classes --those

Against their Persons.
Against their Property.

(u) 4 Bl. 176.

OFFENCES AGAINST INDIVIDUALS-THEIR

PERSONS.

CHAPTER I.

HOMICIDE.

HOMICIDE the destroying of the life of a human beingincludes acts varying from those which imply no guilt at all to those which deserve and meet with the extreme punishment of the law. Three kinds of homicide are usually distinguished, each class admitting of sub-division.

Justifiable: Excusable: Felonious.

It may be stated at the outset that if the mere fact of the homicide is proved, the law presumes the malice which is necessary to make it amount to murder; and it therefore lies on the accused to show that the killing was justifiable or excusable, or that it only amounted to manslaughter (w).

Justifiable Homicide, that is, where no guilt, nor even fault, attaches to the slayer. For one species of homicide the term "justifiable" seems almost too weak, inasmuch as not only is the deed justifiable, but also obligatory. Three cases of justifiable homicide are recognised:

(1) Where the proper officer executes a criminal in strict conformity with his legal sentence. A person other than the proper officer (i.e., the sheriff or his deputy) who performs the part of an executioner is guilty of murder. The criminal must have been found guilty by a competent tribunal; so that it would be murder otherwise to kill the greatest of

(w) R. v. Greenacre, [1837] 8 C. & P. 35.

malefactors. The sentence must have been legally giventhat is, by a Court or Judge who has authority to deal with the crime. If judgment of death is given by a Judge who has not authority, and the accused is executed, the Judge is guilty of murder. The sentence must be strictly carried out by the officer (i.e., the sentence as it stands after the remission of any part which the Sovereign thinks fit), so that if he beheads a criminal whose sentence is hanging, or vice versa, he is said to be guilty of murder. Though the Sovereign may remit a part of the sentence, he may not change it (x).

The two following instances of justifiable homicide are permitted by the law as necessary; and the first, at least, for the advancement of public justice.

(2) Where an officer of justice, or other person acting in his aid, in the legal exercise of a particular duty, kills a person who resists or prevents him from executing it. Homicide is justifiable on this ground in the following cases (y): (i) When a peace officer, in due execution of his office, whether in a civil or criminal case, or a private person assisting a peace officer, or lawfully making an arrest, kills one who is resisting his arrest, provided that no more force was used than was necessary. (ii) When prisoners in gaol, or going to gaol, assault the gaoler or officer, and he, in his defence, to prevent an escape, kills any of them. (iii) When an officer, or private person, having legal authority to arrest or prevent escape, attempts to do so, and the other flies, and is killed in the pursuit. But here the ground of the arrest must be either treason felony or the infliction of a dangerous wound, and it must be shown that the criminal could not be arrested without killing him. (iv) When an officer, in endeavouring to disperse the mob in a riot or rebellious. assembly, kills one or more of them, he not being able otherwise to suppress the riot. In this case the homicide is justifiable both at common law and by the Riot Act (2).

(x) Except in the case of treason; as to which v. p. 39.

(y) v. Archbold, 868.

(z) 1 Geo. I. st. 2, c. 5.

In all these cases, however, it must be shown that the killing was apparently a necessity.

But it is not difficult to instance cases in which the officer would be guilty (a) of murder—for example, if the intentional killing in pursuit as above were in case of one charged with a misdemeanour only, or of one arrested merely in a civil suit (a); (b) of manslaughter-for example, if the killing in case of one so charged with a misdemeanour were occasioned by means not likely to kill, as by striking a blow with an ordinary stick.

(3) When the homicide is committed in defence of person or property against some forcible and atrocious crime. Such crimes, it is said, are the following: Attempting to rob or murder another in or near the highway or in a dwellinghouse; or attempting to break into a dwelling-house with intent to rob. The killing need not be in self-defence, but may be in defence of another against whose person or property a serious crime is threatened. In such cases, therefore, not only the owner, his servants, and members of his family, but also any strangers present, are justified in killing the assailant. So under circumstances which induced the belief that a man was cutting the throat of his wife, their son shot at and killed his father; it was held that if the accused had reasonable grounds for believing and honestly believed that his act was necessary for the defence of his mother, the homicide was justifiable (b).

It should be noticed that this justification does not apply to felonies without force, e.g., pocket-picking; nor to misdemeanours, save that in defence of a man's house the owner or his family may kill a trespasser trying forcibly to dispossess him of it (c). But this will not justify a person firing upon every one who forcibly enters his house, even at night. He ought not to proceed to the last extremity until he has taken all other steps to prevent the crime which is being attempted (d).

(a) R. v. Dadson, [1850] 20 L. J. M. C. 57.

(b) R. v. Rose, [1884] 15 Cox, 540.

(c) Archbold, 871; R. v. Symondson, [1896] 60 J. P. 645.
(d) R. v. Bull, [1839] 9 C. & P. 22.

A woman is justified in killing one who attempts to ravish her; and so, too, the husband or father may kill a man who attempts a rape on his wife or daughter.

It is said that the party whose person or property is attacked is not obliged to retreat, but he may even pursue the assailant until he finds himself or his property out of danger (dd). In so doing, however, killing will not be justifiable except in self-defence and to overcome resistance offered to him (e).

Excusable Homicide. It may perhaps be doubted whether there is any substantial ground for the distinction between justifiable and excusable homicide. But in the former case the killer is engaged in an act which the law enjoins or allows positively, while in the latter he is about something which the law negatively does not prohibit. In neither case is there the malice which is an essential of a crime. In former times, a very substantial difference was made between the two kinds of homicide. That styled "excusable" did not imply that the party was altogether excused; so much so that Coke says (f) that the penalty was death. But early records show that the defendant received a complete pardon, and the restitution of his goods (g), though he probably had to pay a sum of money to procure the pardon. Now it is expressly declared by statute (h) that no forfeiture or punishment shall be incurred by any person who kills another by misfortune or in self-defence, or in any other manner without felony.

The two kinds of so-called excusable homicide are homicide. in self-defence, on a sudden affray; homicide by accident or misfortune.

(1) Se defendendo, upon sudden affray. We have noticed above the case of a man killing another when the latter is

(dd) R. v. Scully, 1 C. & P. 319.

(e) Archbold, 851; v. R. v. Deana, [1909] 73 J. P. 255; 25 T. L. R. 299. (f) 2 Inst. 148, 315.

(g) v. 6 Edw. I. c. 9.

(h) 24 & 25 Vict. c. 100, s. 7, re-enacting 9 Geo. IV. c. 31, s. 10.