In order to make an abettor to a murder or manslaughter principal in the felony, he must be present aiding and abetting the fact committed. The presence, however, need not always be an actual standing by, within sight or hearing of the fact; for there may be a constructive presence; as when one commits a murder, and another keeps watch or guard at some convenient distance. (2) If several persons are present at the death of a man, they may be guilty of different degrees of homicide; as one of murder and another of manslaughter; for if there be no malice in the party striking, but malice in an abettor, it will be murder in the latter, though only manslaughter in the former. (a) It has been decided that if the person charged as principal be acquitted, a conviction of another charged in the indictment as present, aiding and abetting him in the murder, is good; for all are principals, and it is not material who actually did the murder.(b) And though anciently, the person who gave the fatal stroke was considered as the principal, and those who were present aiding and assisting only as accessories; yet it has long been settled, that all who are present aiding and assisting are equally principals with him who gave the stroke whereof the party died, though they are called principals in the second degree.(c) And, by our revised statutes, every person who shall be a principal in the second degree in the commission of any felony, or accessory before the fact to any murder, is to be punished in the same manner as principals in the first degree.(d)

In cases of deliberate duelling, in which death ensues, not only is the principal who inflicts the wound guilty of murder, but also the second; and it has been doubted whether the second of the party killed is not also guilty of the same offence. (e)

An accessory after the fact, is where a person knowing a murder to have been committed by another, receives the offender or gives him any other aid, with intent and in order that he may avoid or escape from arrest or trial, or conviction or punishment. And an accessory of this sort may be punished by imprisonment in a state prison not exceeding five years, or in a county jail not more than one year, or by a fine.(f) If one wounds another mortally, and after the wound given, but before death ensues, a person receives or assists the delinquent, this does not make him accessory to the homicide; for until death ensues there is no felony committed.(g) The

(z) 1 Hale, 615. Fost. 350. 4 Black. Com. 34.

(a) 1 East, P. C. 350.

(b) 1 Salk. 334.

(c) 1 Hale, 437. Plowd. Com. 100, a.

(d) 2 R. S. 698, § 6.

(e) Roscoe's Cr. Ev. 611. 1 Hale, 442. (f) 2 R. S. 699, § 7.

(g) 4 Black. Com. 38. 2 Hawk. P. C.

c. 29, s. 35.

principal and accessory may be indicted in the same indictment and tried together, which is the best and most usual course. (h)

Attempts to murder.] At common law, attempts to commit murder are not felonies, but are punishable as misdemeanors only. (1) By the revised statutes, however, a bare attempt to commit murder, is punishable by imprisonment in a state prison not more than ten years. (k) If the attempt is made with deadly weapons, or any other means or force likely to produce death, or in resisting the execution of any legal process, the same punishment is prescribed.(1) If it is made by administering poison, which shall be actually taken, the offender may be punished by imprisonment in a state prison not less than ten years; or if by poisoning food, springs, &c. not more than ten years. (m)

As to who may commit murder, see post, Book III., " Of the persons capable of committing crimes."

JUSTIFIABLE OR EXCUSABLE HOMICIDE. The killing of one human being by the act, procurement, or omission of another, in cases where such killing is not murder, according to the provisions of the revised statutes, is either justifiable or excusable homicide or manslaughter.(n)

With regard to cases of justifiable homicide, Blackstone observes, that the slayer is in no kind of fault whatever, not even in the minutest degree; and is therefore to be totally acquitted and discharged, with commendation rather than blame. But that such is not quite the case in excusable homicide, the very name whereof imports some fault-some error or omission: so trivial, however, that the law excuses it from the guilt of felony, though in strictness it judges it deserving of some little degree of punishment.(0)

Homicide is justifiable when committed by public officers and those acting by their command in their aid and assistance, either, 1. In obedience to any judgment of a competent court; or 2d. When necessarily committed in overcoming actual resistance to the execution of some legal process, or to the discharge of any other legal duty; or 3d. When necessarily committed in retaking felons who have been rescued or who have escaped; or 4th. When necessarily committed in arresting felons fleeing from justice.(p)

We shall consider each branch of this definition separately.

(h) 1 Russ. on Cr. 36.

(i) 4 Black. Com. 207, n. (k). 4 Mass.

Rep. 439; 1 Russ. 585.

(k) 2 R. S. 698, § 3.

(1) Id. 665, § 36. Post, ch. III. § 8.

(m) Idem, §§ 37, 38.
(n) 2 R. S. 660, § 1.
(0) 4 Black. Com. 181.
(p) 2 R. S. 660, § 2.

1st. When committed in obedience to any judgment of a competent court.] Where a criminal is executed by the proper officer, in pursuance of his sentence, this is justifiable homicide at common law, as well as under this section of the statute.(q) But if it be done by any other person, or not done in strict conformity with the sentence; as for instance, if an officer behead one who was adjudged to be hanged, or the contrary, it is murder.(r)

2d. When necessarily committed in overcoming actual resistance to the execution of some legal process, or to the discharge of any other legal duty.] This protection of the officer extends to civil as well as criminal cases. (s) And the same as to persons acting in his aid.(t) So if a private person attempts to arrest one who commits a felony in his presence, or interferes to suppress an affray, and being resisted, necessarily kills the person resisting, this is also justifiable homicide.(u) Still there must be an apparent necessity for the killing; for if the officer or private person were to kill after the resistance had ceased, or if there were no reasonable necessity for the violence used on his part, the killing would be manslaughter at least. (v) Also, in order to justify an officer or private person, in these cases, it is necessary that he should, at the time, be in the act of legally executing a duty imposed upon him by law, and under such circumstances that if the officer or private person were killed it would have been murder; for if the circumstances of the case were such that it would have been manslaughter only to kill the officer or private person, it would be manslaughter at least in the officer or private person to kill the party resisting. (w) Therefore, if the warrant is illegal and void upon the face of it, or issued with a blank in it, and the blank afterwards filled up, or issued with an insufficient description of the defendant, as for instance, if it were to take the son of J. S., or attempted to be executed against C. instead of B., the officer or private person would not be justified in killing the person resisting.(x)

By the legality of the process, is to be understood only that the process, whether by writ or warrant, must not be defective in the frame of it, and must issue in the ordinary course of justice from a court or magistrate having jurisdiction of the case. (y) Therefore, though there may have been error or irregularity in the proceeding previous to the issuing of the process, it will still be a protection to the officer if in executing

(q) 4 Black. Com. 178.

(r) 1 Hale P. C. 501. 3 Inst. 52. (8) Hale, 494. 2 id. 118.

(t) Fost. 318.

(u) 1 Hale, 481, 484. Fost. 274.

(v) Arch. Cr. Pl. 333.

(w) Idem, 334. Fost. 318. 1 Hale, 490.

(x) Arch. Cr. Pl. 330.

(y) Foster, 311. Roscoe's Cr. Ev. 620.

it a person is necessarily killed while resisting it; for the officer, at his peril, is bound to pay obedience to it (2) So, though the warrant of a justice of the peace be not in strictness lawful, as if it do not express the cause with sufficient particularity; yet if the matter be within his jurisdiction, the officer will be justified in killing those who oppose him in executing it. (a) It is said, however, that this must be understood of a warrant which has all the essential requisites of one.(b)

It may be observed, also, that in all kinds of process, both civil and criminal, the falsity of the charge contained in such process will not jus tify a person in resisting the execution of it; for every man is bound to submit himself to the regular course of justice; and, therefore, in the case of an escape warrant, the person executing it was held to be under the special protection of the law, though the warrant had been obtained by gross imposition on the magistrate, and by false information as to the matters suggested in it.(c)

The party undertaking to execute process, whether by writ or warrant, must be a legal officer for that purpose, or his assistant; and if an officer make an arrest out of his proper district, or have no warrant or authority at all, or if he excutes process out of the jurisdiction of the court from whence it issues, he will not be considered as a legal officer entitled to the special protection of the law. (d) And the officer must also be careful not to make an arrest on a Sunday, except in cases of breach of the peace, or for the apprehension of persons charged with crimes and misdemeanors; as in all other cases, an arrest on that day will be the same as if done without any authority. (e) But process may be executed in the night time as well as by day. (f) In every case, whether civil or criminal, in which doors and windows may be broken open in order to make an arrest, there must be a previous notification of the business and a demand to enter, on the one hand, and a refusal on the other, before the parties proceed to that extremity.(g) Where a felony has been committed, or a dangerous wound given, the party's house is no sanctuary for him; and the doors may be forced, after the notification, demand and refusal.(h) So where a minister of justice comes armed with process founded on a breach of the peace, doors may be broken. (i) And the rule is the same as to process of contempt,(k) and as to many other

cases. (1) But a bare suspicion of felony, will not justify the breaking open of doors, without a warrant.(m) If there be an affray in a house, however, and the constable demand entrance with the view of keeping the peace, and be refused by those within, he may break open the doors. (n) But this mode of proceeding does not extend to civil suits. With respect to civil process, the principle that a man's house is his castle, is admitted; and in such cases an officer cannot justify breaking open an outward door or window, to execute the process. (o) This rule, however, only applies to the breach of outward doors or windows; to a breach of the house for the purpose of arresting the occupier or any of his family; and to arrests in the first instance.(p)

In case of a riot or rebellious assembly, the officers endeavoring to disperse the mob, are justified in killing them, if necessary to suppress the riot. (q)

3d. When necessarily committed in re-taking felons who have been rescued, or who have escaped.] The word "felons," signifies any persons who have committed a crime of the degree of felony.(r) And the statute embraces rescues and escapes, not only from prison, but from the custody of officers. Rescue is the forcibly and knowingly freeing another from an arrest or imprisonment; and it is generally the same of fence in a stranger so rescuing as it would have been in a jailer to have voluntarily permitted an escape. (s) By the revised statutes, the forcibly rescuing any prisoner held in legal custody upon any criminal charge, is punishable by imprisonment not exceeding ten years. (t) The conviction of the prisoner is not required by the statute; the crime consisting in obstructing the course of law.

An escape from the custody of the law is an offence, of itself; though no force or violence is used; because all persons are bound to submit themselves to the judgment of the law. And a punishment for this of fence is prescribed by the revised statutes. (u) It is clearly agreed that an officer making fresh pursuit after a prisoner who has escaped through his negligence, may retake him at any time after, whether he find him in the same or a different county. And it is said generally, in some books, that an officer who has negligently suffered a prisoner to escape may retake him wherever he finds him, without mentioning any fresh pursuit.