The offense includes two essentials: (1) Restraint of another's liberty; (2) act unlawful. The magistrate who issues a void warrant or the person who procures it to be issued may under some circumstances be guilty of false imprisonment.25 25 Rush v. Buckley, 100 Maine 322, 61 Atl. 774, 70 L. R. A. 464, 4 Ann. Cas. 318; Broom v. Doug lass, 175 Ala. 268, 57 So. 860, 44 L. R. A. (N. S.) 164, Ann. Cas. 1914 CHAPTER XVII. HOMICIDE. Section 305. Homicide in general-Defini- 306. Classification-Definition. 308. Justifiable homicide. Execu- 309. Killing felon to effect arrest 310. Killing to quell riot. tion-Classification. 313. Excusable homicide-Homi- 315. Homicide in justifiable self- 316. Scope of the necessity for the killing. 317. Retreat unnecessary. 321. Evidence-Right of attack in self-defense. 322. Evidence-Actual danger not 323. Evidence-Grounds of appre- Defini § 305. Homicide in general-Definition.-Homicide is the killing of a human being by a person. The mode of doing it, and the circumstances attending it, do not enter into the definition, provided the killing be done by a person. Strictly speaking, when the killing is not done by a person it is not homicide. According to Bracton, "if it be done by an ox, a dog, or other thing, it is not properly termed homicide." 12 Brac. F. 120b. § 306. Classification-Definition.-Homicide is divided into the following three classes: (1) Justifiable; (2) Excusable; (3) Felonious. Blackstone observes, "Now homicide, or the killing of any human creature, is of three kinds, justifiable, excusable, and felonious. The first has no share of guilt at all; the second very little; but the third is the highest crime against the law of nature that man is capable of committing." It is to be observed, however, that treason is usually regarded the highest crime known to the law. § 307. Justifiable homicide-Definition.-Justifiable homicide is the killing of a human being in the discharge of a legal public duty. § 308. Justifiable homicide-Execution by sheriff. Where a sheriff or his deputy, in the discharge of his public duty, executes a person who has been condemned to death by a judicial tribunal of competent jurisdiction, the homicide is justifiable. In such case the victim must have been given a legal trial, or confessed his guilt, and the execution must be in strict conformity with the sentence imposed. Thus, if the sentence is that the victim be hanged, and the sheriff execute him by shooting or electrocuting him, the sheriff would be guilty of murder. It is Blackstone's view that, "The law must require it, 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. And farther, 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. Also, such judgment, when legal, must be executed by the proper officer, or his appointed deputy; for no one else is required by law to do 22 Bl. Comm., bk. 4, ch. 14, p. 177 (Cooley's 4th ed., p. 1347). * * If it, which requisition it is that justifies the homicide. another person doth it of his own head, it is held to be murder; even though it be the judge himself. It must farther be executed servato juris ordine (according to the order of the court); 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; for he is merely ministerial, and therefore only justified when he acts under the authority and compulsion of the law; but if a sheriff changes one kind of death for another, he then acts by his own authority, which extends not to the commission of homicide; and besides, this license might occasion a very gross abuse of his power." § 309. Killing felon to effect arrest or prevent escape.— Where one necessarily kills a felon to effect his arrest, or prevent his escape, the homicide is justifiable. And in such case, the necessity is sufficient if reasonably apparent. Moreover, the homicide may be committed by a private person as well as by a police officer. Stephen says, "The intentional infliction of death or bodily harm is not a crime when it is done by any person * in order to arrest a traitor, felon, or pirate, or retake or keep in lawful custody a traitor, felon, or pirate who has escaped, or is about to escape, from such custody, although such traitor, felon, or pirate offers no violence to any person; the object for which death or harm is inflicted can not be otherwise accomplished." It is to be observed, however, that where even a police officer kills a misdemeanant to effect his arrest the homicide is not justifiable, the theory of the law being that it is better that a misdemeanant escape than that human provided * 34 Bl. Comm. 178, 179. Steph. Dig. Crim. L. (5th ed), art. 220; Smith v. Commonwealth, 176 Ky. 466, 195 S. W. 811. life be taken. A few courts have held the contrary, but they do not represent the better view. On the other hand, where a peace officer, in attempting to arrest a misdemeanant, is threatened with death or great bodily harm, and he necessarily kills the latter to save himself, the homicide is justifiable. Moreover, an officer, whose duty it is to preserve the peace, is not required to decline combat, when resisted in his duties, and to put himself out of danger, before he will be justified in killing his assailant. But he will not be justified in taking human life to effect an arrest for a misdemeanor, or in preventing an escape or rescue from such arrest.9 An officer making an arrest for misdemeanor may resist force by force, and when the resistance. is violent and determined an officer is not bound to make nice calculations as to the degree of force necessary to accomplish the purpose, but may use such a reasonable degree of physical force in overcoming such resistance and effecting such arrest as may reasonably appear necessary therefor, and to prevent the escape of the party whom he is arresting. But he has no right to take the life of such person, or inflict on him great bodily harm, for the purpose of making such arrest, except when the officer has a reasonable apprehension of peril to his own life, or of suffering great bodily harm.10 § 310. Killing to quell riot.-Where a person necessarily kills one or more persons to quell a riot the killing is justi 5 United States v. Clark, 31 Fed. 710, Beale's Cases, 319. See also Handley v. State, 96 Ala. 48, 11 So. 322, 38 Am. St. 81. 6 State v. Garrett, 1 Win. L. (N. Car.) 144, 84 Am. Dec. 359. 7 Lynn v. People, 170 Ill. 527, 48 N. E. 964, Derby's Cases 245; State v. Smith (Iowa), 101 N. W. 110. 8 Lynn v. People, 170 I11, 527, 48 N. E. 964, Derby's Cases, 245. 9 State v. Smith (Iowa), 101 N. W. 110; Head v. Martin, 85 Ky. 480, 3 S. W. 622, 9 Ky. L. 45, Derby's Cases 246. 10 State v. Smith (Iowa), 101 N. W. 110. See also Commonwealth v. Marcum, 135 Ky. 1, 122 S. W. 215, 24 L. R. A. (N. S.) 1194; Davis v. State (Tex. Cr.), 196 S. W. 520. |