officer in charge of the prisoners, or reduce such slaughter to the crime of manslaughter. To cast any doubt upon this subject would, we think, be productive of the most serious mischief, by discouraging the police in the discharge of their duties, and by encouraging the lawless in a disregard of the authority of the law." It will be remarked that Allen's case differed from those of Hugget and Tooley and Reg. v. Osmer in this respect, that in it the constable was acting under a warrant which he was bound to obey; whereas, in the earlier cases, the constable had no legal authority whatever. But even if that difference had not existed, the remark that the prisoners. well knew that the courts of law would set right any injury resulting from the illegality of the custody, would, under s. 99, cl. 3, be a complete answer to the plea of private defence. ¶240. In all the previous observations, it has been assumed that the act which was resisted was in itself an offence. Section 97 has no application to any other case. There can, of course, be no resistance by way of self-defence to an act done by lawful authority, as the flogging of a convict under judicial sentence. Nor can there be any right of defence against an act which is itself an act of lawful self-defence. A gentleman, after vainly challenging another to fight, threw a decanter at him, which hit him on the head, and at once drew his sword. The other retaliated with another decanter, which broke the assailant's head. The latter at once killed him with his sword. This was held to be murder, and neither to be justified nor extenuated by the blow which he had provoked and received.1 So, if a robber or housebreaker by night is attacked in self-defence, and kills the person who attacks him, he cannot plead that he would otherwise have lost his own life, for this is one of the perils which the law attaches to his criminal act.2 Where, however, the right of selfdefence was being carried to an inexcusable excess, or was being enforced after the ciminal attempt had been abandoned, there would, in theory at all events, be a right to resistance. I know of no such case having arisen; and in practice it would be difficult to make out. Where a fight takes place between two persons, whether by pre-arrange 1 Mawgridge's case, Kelyng, 119. ment or on sudden anger, each is acting unlawfully. In such a case the old books enter into the most minute discussion as to the circumstances under which either of the contending parties may rely on the right of selfdefence.1 The Draft Code of 1879 summarizes the views of the Commissioners in s. 56 as follows: "Everyone who has without justification assaulted another, or has provoked an assault from that other, may, nevertheless, justify force subsequent to such assault, if he uses such force under reasonable apprehension of death. or grievous bodily harm from the violence of the party first assaulted or provoked, and in the belief on reasonable grounds that it is necessary for his own preservation from death or grievous bodily harm. Provided that he did not commence the assault with intent to kill or do grievous bodily harm, and did not endeavour, at any time before the necessity for preserving himself arose, to kill or do grievous bodily harm: Provided, also, that before such necessity arose, he declined further conflict, and quitted or retreated from it as far as practicable. "Provocation within the meaning of this section may be given by blows, words, or gestures." The principles contained in this section appear to be capable of application to cases such as I have suggested above. Where an act of self-defence is being done under a misconception of facts, it may be lawfully resisted by the person whose action is misconceived, although the person who does the act is himself committing no offence (s. 98). The burthen of proving the plea of private defence is on the accused, and in the absence of evidence the court is bound to assume the absence of such special circumstance as would make out the plea. If therefore the accused has not set up the plea at his trial, and especially if he has raised other pleas inconsistent with it, he cannot on appeal rely upon evidence recorded in the case as making out such a defence, nor can the court raise such a defence on his behalf.2 1 1 Hale, P.C. 479, 482; 1 Hawk. P.C. 97; Foster, Crim. L. 277; 1 East, P.C. 279. 2 Reg. v. Timmal, 21 All. 122. CHAPTER IV. COMPLICITY WITH CRIME I. Joint Acts, ¶¶242-245. II. Abetment, ¶¶ 246–255. III. Concealment of Offences, IV. Harbouring an Offender, 256-259 260-264. V. Screening an Offender. ¶¶ 265–271. VI. Corrupt Restitution of Property, ¶ 272. ¶241. In this chapter I propose to examine various sections of the Code in which the accused, though he has not with his own hand committed the substantive offence, has become in a subordinate or secondary manner mixed up with it. Such modes of crime are treated in English law books under the head of principals in the first or second degree, and accessories before or after the fact. In the Code they are dealt with according to the particular manner in which the defendant becomes associated with the crime. There are four ways in which a person may become criminally responsible in respect of any offence: First, he may personally commit it. Second, he may share in the commission, though he does no personal act. Third, he may set some other agency to work with a view to the commission of the offence. Fourth, he may help the offender after the act, with a view to screen him from justice. 242. Joint Acts. First.-No difficulty, of course, can arise under this head, where a single act is done by a single person. Where an offence is committed by means of several acts, whoever does any of these acts in furtherance of the common design, is guilty of the whole offence (s. 37). If one person steals goods in a house, and hands them to an accomplice outside, who carries them away, both are guilty of the theft.1 If, however, the person outside knew nothing of the intention to steal till the goods were handed to him, he could not be charged with the theft; his offence would be that of receiving stolen 1 Reg. v. Perkins, 2 Den. C.C. 459. property. On the other hand, two persons engaged in the same criminal act may be guilty thereby of different offences (s. 38). For instance, to take the last illustration; if the person who first removed the goods was the servant of the owner, he would commit an offence under s. 381, while the accomplice would only be punishable under s. 379. If, however, the accomplice knew that his associate was a servant, and urged him to steal his master's property, he would apparently, under s. 109, be liable to the aggravated penalty of s. 381. 66 ¶ 243. Second. Where several persons unite with a common purpose to effect any criminal object, all who assist in the accomplishment of that object are equally guilty, though some may be at a distance from the spot where the crime is committed, and ignorant of what is actually being done (s. 34). Several persons set out together, or in small parties, upon one common design, be it murder or other felony, or for any other purpose unlawful in itself, and each taketh the part assigned to him some to commit the act, others to watch at proper distances and stations to prevent a surprise, or to favour, if need be, the escape of those who are more immediately engaged. They are all, provided the fact be committed, in the eye of the law present at it; for it was made a common cause with them, each man operated in his station at one and the same instant toward the same common end, and the part each man took tended to give countenance, encouragement, and protection to the whole gang, and to ensure the success of their common enterprise." ¶244. On the other hand, if several unite for the purpose of committing a particular offence, such as housebreaking, and in the committal of it one of the inmates of the house is killed, it does not necessarily follow that those who were watching outside would be guilty of murder. It would be a question of fact whether it was the common purpose of all, not only to break into and rob the house, but to effect their object by violence if resisted. If those who entered the house had arms, and were known by the others to have 1 Reg. v. Hilton, Bell, C.C. 20. 2 Foster, Crim. L. 350; Ganesh Sing v. Ram Raja, 3 B.L.R., P.C. 44; S.C. 12 Suth. P.C. 38; Reg. v. Mahabir, 21 All. 263. A fortiori, if the accused is present when the criminal transaction takes place, and takes a part in it; as where a servant receives the money at a sale which is rendered criminal by statute, Keshwar Lal v. Girish Chunder, 29 Cal. 496. The infer them, such an inference would be legitimate. ence would, of course, be still stronger against those who were actually present when the violence was committed, though themselves unarmed. Where a number of persons combined to take a man by force to the tannah on a charge of theft, and some of them beat him on the way, Peacock, C.J., pointed out that while, on the one hand, it did not necessarily follow that the beating was part of the common design, so as to render those liable who were present, but did not join in the beating; so, on the other hand, the fact that they were present and did nothing to dissuade the others from their violent conduct, might very properly lead to an inference that they were all assenting parties, and acting in concert, and that the beating was in furtherance of a common design.2 Three soldiers went together to rob an orchard, two got upon a pear-tree, and one stood at the gate with a drawn sword. The owner's son coming by collared the man at the gate, and asked him what business he had there, upon which the soldier stabbed him. It was ruled by Holt, C.J., to be murder in him, but that the men on the tree were innocent. They came to commit a small inconsiderable trespass, and the man was killed upon a sudden affray without their knowledge. "It would," said he, " have been otherwise if they had all come thither with a general resolution against all opposers." Here, it will be observed, the sword carried by the soldier was part of his everyday wear, and it does not appear that his companions knew he had drawn it Still less can there be any joint liability where the act done by one is wholly foreign to the common purpose of all. Some soldiers who were employed in helping to apprehend a person, unlawfully broke open a house in which he was supposed to be, and some of them then stole some articles that were there. This was held only to be the offence of the actual thieves. Nor, finally, can a mere bystander be liable for a crime committed in his presence, though he neither attempts to prevent it, nor gives information against the offenders." 1 Dacres' case, 1 Hale, P.C. 439, 443; Reg. v. Jabanulla, 23 Cal., p. 978. 2 Reg. v. Gora Chand Gope, B.L.R., Sup. Vol. 443; S.C. 5 Suth. Cr. 45. 8 Foster, Crim. L. 353; see Reg. v. Sabed Ali, 11 B.L.R. 347; S.C. 20 Suth. Cr. 5; Reg. v. Duma, 19 Mad. 483. Anon, 1 Leach 7, n. 5 1 Hale, P.C. 439; Reg. v. Maganlall, 14 Bom., p. 125; Ishan Chandra v. Reg., 21 Cal. 262. |