fiable. "The intentional infliction of death or bodily harm is not a crime when it is done either by justices of the peace, peace officers, or private persons, whether such persons are, and whether they act as, soldiers under military discipline or not for the purpose of suppressing a general and dangerous riot which can not otherwise be suppressed." This constitutes the one exception to the rule that human life may not be taken to prevent a mere misdemeanor. The reason for this exception is the fact that while riot, at common law, is only a misdemeanor, its consequences may prove very disastrous, and therefore justify a killing where necessary to quell it.

It is to be observed, however, in this connection, that a homicide to quell an affray is never justifiable.12 Nor is a homicide to prevent a mere trespass ever justifiable.18

§ 311. Killing to prevent felony.-Where any person necessarily kills another to prevent him from committing a felony attempted by force or surprise the homicide is justifiable. In such case it is not essential that the attempted felony be directed against the homicide himself, or against his habitation. It may be directed against the person or habitation of even a stranger. "Such homicide as is committed for the prevention of any forcible and atrocious crime, is justifiable by the law of nature, and also by the law of England, as it stood so early as the time of Bracton."14 The "forcible and atrocious crime" may be murder, rape, robbery, burglary, arson or sodomy.15 It does not include any secret felony like larceny.18

111 Steph. Dig. Crim. L. (5th ed.), art. 219. See also Pond v. People, 8 Mich. 150.

12 State v. Moore, 31 Conn. 479, 83 Am. Dec. 159n.

13 State v. Moore, 31 Conn. 479, 83 Am. Dec. 159n.

144 Bl. Comm. 180.

15 4 Bl. Comm. 180; 1 Steph. Dig.

Crim. L. (5th ed.), art. 220; Pond v. People, 8 Mich. 150; Osborne v. State, 140 Ala. 84, 37 So. 105; State v. Moore, 31 Conn. 479, 83 Am. Dec. 159n; Ruloff v. People, 45 N. Y. 213.

16 Reg. v. Murphy, 1 Craw. & D. 20, Beale's Cases 318.

The basis of the justification in this class of homicide is necessity.17 It is sufficient, however, if the necessity be reasonably apparent. 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 his life at the mercy of the felon.18

§ 312. Excusable homicide-Definition-Classification.— Excusable homicide is the killing of a human being under circumstances which constitute an excuse for the act rather than a justification of it. This class of homicide is of two kinds: (1) Homicide by misadventure, (2) homicide in selfdefense.

§ 313. Excusable homicide-Homicide by misadventure. -Homicide by misadventure is the killing of a human being by a person engaged in doing a lawful act with due care and without criminal intent. The decisions contain many examples of this class of homicide. Among them are the following:

1. One person accidentally kills another while playing football.19

17 Storey v. State, 71 Ala. 329; Derby's Cases 240; State v. Moore, 31 Conn. 479, 83 Am. Dec. 159n; People v. Cook, 39 Mich. 236, 33 Am. Rep. 380, Beale's Cases 345. See also Scheuerman v. Scharfen

berg, 163 Ala. 337, 50 So. 335, 24 L. R. A. (N. S.) 369n, 136 Am. St. 74.

18 Ruloff v. People, 45 N. Y. 213. 19 Reg. v. Bradshaw, 14 Cox Cr. C. 83, Beale's Cases 146.

2. A physician, in procuring an abortion where it is necessary, at least apparently, to save the mother's life, unintentionally kills the mother.20

3. A workman, after shouting warning, throws a piece of timber from a housetop and it strikes and kills a person.21 4. A steamboat, whose lookout is exercising due care, runs down another boat and lives are lost.22

5. A physician, in the exercise of due care, unintentionally causes death by administering a dangerous drug with the view of performing a surgical operation.23

6. A parent moderately punishes an offending child, or a teacher his pupil, and death ensues.24

7. A person is using a hatchet with due care and the head flies off and kills a bystander.25

8. A man, in the exercise of due care, shoots at a target and the ball glances off and kills a person.28

9. A watchman in a park, mistaking his master for a poacher, shoots and kills him.27

10. A person, while lawfully defending himself against the assaults of another, shoots and unintentionally kills a third party.28

On the other hand, if, in any of the foregoing examples, the perpetrator were guilty of negligence the homicide would be manslaughter; and if guilty of malice it would be murder.

§ 314. Homicide in self-defense-General requisites.— Homicide in self-defense is of two sorts, justifiable and ex

20 State v. Moore, 25 Iowa 128, 95 Am. Dec. 776n.

21 Hull's Case, J. Kelyng, 40. 22 Rex v. Green, 7 Car. & P. 156; Rex v. Allen, 7 Car. & P. 153.

23 Reg. v. Chamberlain, 10 Cox Cr. C. 486, Beale's Cases 187; Reg. v. Macleod, 12 Cox Cr. C. 534; Commonwealth v. Thompson, 6 Mass. 134, 3 Wheeler Cr. Cases 312; Rice v. State, 8 Mo. 561.

24 4 Bl. Comm. 182; 1 East P. C. 260, 269; Fost, C. L. 258, Beale's Cases 185, 315.

254 Bl. Comm. 182.

26 4 Bl. Comm. 182; 1 East, P. C. 260, 269.

271 Hale, P. C. 40.

28 Plummer v. State, 4 Tex. App. 310, 30 Am. Rep. 165.

cusable. By statute, however, in some states all homicides in self-defense are justifiable. To render a homicide justifiable or excusable on the ground of self-defense the following conditions are essential:

1. Imminent danger of death or serious bodily harm to the slayer must be at least reasonably apparent.

2. When the danger is only apparcnt the slayer must believe, on reasonable grounds, that it is real.

3. When the killing grows out of a sudden affray the slayer, before killing his adversary, must retreat as far as possible with safety.

4. The slayer, as a general rule, must not be the aggres

sor.

§ 315. Homicide in justifiable self-defense.—This kind of homicide is committed when a person without fault, who is feloniously assaulted, necessarily kills his assailant to prevent him from committing a forcible felony. Where a woman kills a man necessarily to prevent him from committing rape upon her; or a man kills another person necessarily to prevent that person from killing him, or inflicting serious bodily injury upon him, or robbing him the homicide is justifiable.29

§ 316. Scope of the necessity for the killing.-The necessity for the killing is sufficient if reasonably apparent. The law does not require it to arise out of actual danger in order to excuse the slayer. He may act upon a belief arising from appearances, which give him reasonable grounds to believe that the danger is actual. His guilt must depend upon the circumstances as they appear to him, and he is not responsible for a knowledge of the facts, unless his ignorance

29 4 Bl. Comm. 180; Osborne v. State, 140 Ala. 84, 37 So. 105; State v. Moore, 31 Conn. 479, 83 Am. Dec. 159n; Pond v. People, 8 Mich.

150. See also State v. Larkins, 250 Mo. 218, 157 S. W. 600, 46 L. R. A. (N. S.) 13n.

arises from some fault on his part.3 30 An instruction that "to justify a person in killing another in self-defense, it must appear that the danger was so urgent and pressing that in order to save his own life, or to prevent his receiving great bodily harm, the killing of the deceased was absolutely necessary," is erroneous.3

31

§ 317. Retreat unnecessary.-In this class of homicide. the party assaulted is not bound to retreat at all. Since he is without fault he may stand his ground and, if necessary to save his own life or prevent serious bodily harm to himself, kill his assailant. "A true man, who is without fault, is not obliged to fly from an assailant, who, by violence or surprise, maliciously seeks to take his life or do him enormous bodily harm."32

§ 318. Homicide in excusable self-defense.—In this kind of homicide the slayer is not without fault. In this respect it differs from homicide in justifiable self-defense. It is committed when a person who is engaged in a sudden affray necessarily kills another person in it to save himself from death or serious bodily harm.33 At common law it was punishable by forfeiture of goods.34 According to Coke anciently it was punishable by death.35 Later writers, how

30 Pond v. People, 8 Mich, 150; Hurd v. People, 25 Mich. 405; State v. Martin, 30 Wis. 216, 11 Am. Rep. 567; Beard v. State, 47 Tex. Cr. 50, 81 S. W. 33, 122 Am. St. 672.

31 People v. Morine, 61 Cal. 367. 32 Erwin v. State, 29 Ohio St. 186, 199, 23 Am. Rep. 733. See also Marshall v. United States, 45 App. (D. C.) 373; State v. Brooks, 79 S. Car. 144, 60 S. E. 518, 17 L. R. A. (N. S.) 483, 128 Am. St. 836; Miller v. State, 139 Wis. 57, 119 N. W. 850, Derby's Cases, 216; 4 B1. Comm. 183, 184; 1 Hale P. C. 40.

334 Bl. Comm. 183. It has been held that the mere fact of being willing to enter into conflict with deadly weapons with another does not destroy right to rely on selfdefense as justification if killing was done to protect life, not to harm adversary. State v. Pollard, 168 N. Car. 116, 83 S. E. 167, L. R. A. 1915 B, 529.

341 Hale P. C. 481, 482; Fost. C. L. 287; 1 East P. C. 279; 4 D. Comm. 188.

35 2 Co. Inst. 148, 315.