killing one who is attempting to commit a felony by force or surprise is limited to cases in which such killing is necessary to prevent the felony. If the owner of the house were present at the place of entry, he could not kill the burglar if he could with safety to himself prevent, otherwise, the entry. This being so, it would seem that he cannot do indirectly what he could not do directly; and it would also seem that he cannot enlarge his rights by being absent.85

It is now admitted that a person cannot set spring guns on his premises outside of his dwelling, so as to kill persons who may merely trespass, as he would have no right to resist a mere trespass to the death. In any event, he must not place them where they will endanger the lives of persons passing along the public street or road adjoining the premises. 80

85 See Johnson v. Patterson, 14 Conn. 1, 35 Am. Dec. 96.

86 State v. Moore, 31 Conn. 479, 83 Am. Dec. 159. B., who was boarding with C., placed a spring gun in his trunk in such a position as to kill any one who opened the trunk. C., though warned by B. of these facts, moved by curiosity and without right, sought to open the trunk and was killed by the spring gun. On an indictment of B. for murder it was held that one may not take life by indirect means under circumstances that would not justify him in taking life directly, and that one may not take life to prevent a mere trespass to or theft of property. The court further held that B.'s warning to C. of the presence of the spring gun would be no defense, unless it were brought home to the deceased in such a manner that her act in opening the trunk was a deliberate attempt on her part to take her own life, but that, if defendant warned the only person who had a lawful right to enter his room, such warning would have a material bearing on the question of malice. State v. Marfaudille, 48 Wash. 117, 92 Pac. 939, 14 L. R. A. (N. S.) 346, 15 Ann. Cas. 584. On the question of notice this case does not go so far as a dictum in U. S. v. Gilliam, Fed. Cas. No. 15,205a, where it was said: "Where notice is given, the sufferer is held to have brought the calamity upon himself to be his own executioner if life is lost, and to have himself pulled the trigger."

Defense of Others

We have seen that the right and duty to prevent a felony are not limited to the person upon whom it is attempted, but extend to every person who is in a position to prevent it. The principle of justification is broader than the mere idea of self-defense.87 The right of third persons to interfere is not, however, limited to cases of attempted felony. Bystanders may interfere to prevent an assault or a larceny, or any other crime. The members of a family may protect and defend each other,88 and a man's guests or neighbors may interfere to resist an attack on his house.89 The rule as generally expressed is that one may do for another whatever another may do for himself," though there are cases casting some doubt on the rule so broadly stated. The right to defend another is said to be no greater than the latter's right to defend himself.o1

87 Defense of justice of the United States Supreme Court by a United States marshal. In re Neagle (C. C.) 39 Fed. 833, 5 L. R. A. 78; Id., 135 U. S. 1, 10 Sup. Ct. 658, 34 L. Ed. 55. Rescue of friend from kidnappers. Com. v. Delaney (Ky.) 29 S. W. 616.

884 Bl. Comm. 186; Rex v. Harrington, 10 Cox, Cr. Cas. 370; Estep v. Com., 86 Ky. 39, 4 S. W. 820, 9 Am. St. Rep. 260; Crowder v. State, 8 Lea (Tenn.) 669; Pond v. People, 8 Mich. 150; Patten v. People, 18 Mich. 314, 100 Am. Dec. 173; Sharp v. State, 19 Ohio 379; Com. v. Malone, 114 Mass. 295; State v. Bullock, 91 N. C. 614; Smurr v. State, 105 Ind. 125, 4 N. E. 445; State v. Westfall, 49 Iowa, 328; State v. Brittain, 89 N. C. 481; Staten v. State, 30 Miss. 619; Saylor v. Com., 97 Ky. 184, 30 S. W. 390 (attempt by force and threats to abduct wife.) A husband has the legal right to the company and custody of his wife and child, and may defend such custody by force, if necessary, against the wife's father to prevent the latter taking them from him. Cole v. State, 45 Tex. Cr. R. 225, 75 S. W. 527.

89 Cooper's Case, Cro. Car. 544; Semayne's Case, 5 Coke, 91; Pond v. People, 8 Mich. 150.

901 Bish. New Cr. Law, § 877; Stanley v. Com., 86 Ky. 440, 6 S. W. 155, 19 Am. St. Rep. 305.

91 Son's right to kill another in defense of his father is no greater than the father's right to kill in self-defense under the same circum

EXCUSABLE HOMICIDE IN GENERAL

66. Excusable homicide may be either:

(a) Accidental, or

(b) In self-defense, on a sudden affray.

ACCIDENT

67. Excusable homicide by accident is where the killing is the result of an accident or misfortune in doing a lawful act in a lawful manner."2

stances. Morris v. State (Ala.) 39 South. 608. In Guffee v. State, 8 Tex. App. 187, the trial court charged: "When one person interferes on behalf of another, he becomes responsible for the acts of the person in whose behalf he interferes; and if the acts and circumstances would not justify the killing by the person in whose behalf he interferes, neither will the law justify him in taking life in behalf of such person." The appellate court said: "The inherent vice of this extract from the charge of the court is that it bound appellant to his brother with hooks of steel, and made him answerable for the acts of his brother, as well as for his own, without regard to the motive or intent which may have been totally dissimilar in the breast of each. Throughout the transaction John Guffee may have been actuated by a malicious motive, while the intent of appellant may have been of a wholly different nature and character. Can it be said that in that event the same degree of culpability must attach to him as if his purpose had been the same as that of his brother? If so, one of the fundamental principles of criminal jurisprudence must be ignored and set at naught. If my brother seeks out his enemy on the public highway with a view to slay him, and I, ignorant of his design as well as the cause of the difficulty and how it originated, but seeing him hotly engaged and the fortune of the fight turning against him, and realizing that he is in imminent danger of life or limb, rush to his rescue, and strike down his antagonist in order to save his life, must I, under such circumstances, be adjudged guilty of murder with express malice, merely because my brother would be so adjudged in case he had inflicted the mortal blow? If the law is so written in the books, we have failed to discover it."

92 4 Bl. Comm. 182.

95

94

To excuse a homicide on the ground of accident, the accused must have been engaged in a lawful act, and he must have been performing it with due care. If he was engaged in an unlawful act, malum in se, or if the accident was the result of culpable negligence, he is criminally liable for the consequences. It is a lawful act for a parent to chastise his child, and he is not liable if death results to the child if the punishment was moderate. If, however, he uses an instrument likely to cause serious injury, or inflicts punishment to an immoderate extent, he is criminally liable. If a workman on a building throws material therefrom, and it kills a passer-by, the homicide is excusable if persons were not in the habit of passing, and there was no reason to suppose that they would pass. It would be otherwise, though, if he knew that people were passing, or it was likely that they were passing.96 So also, if a person accidentally kills another in mutual combat, where he is voluntarily fighting, he is guilty of manslaughter, as the fighting is an unlawful act; but if he does not wish to fight, and is merely defending himself, as the law permits him to do, he is excused, on the ground of accident." And if two persons engage in a friendly wrestling match, without unlawful violence, and one is thrown, and chances to fall in such a way that he is killed, or in such a way as to

93 State v. Benham, 23 Iowa, 154, 92 Am. Dec. 416; People v. Lyons, 110 N. Y. 618, 17 N. E. 391. The killing of a person by the accidental discharge of a pistol by one engaged in no unlawful act, and without negligence, is homicide by misadventure. U. S. v. Meagher (C. C.) 37 Fed. 875.

94 Post, p. 229 et seq.

95 Fost. Crown Law, 262; 4 Bl. Comm. 182; 1 Hale, P. C. 473, 474; Reg. v. Griffin, 11 Cox, Cr. Cas. 402. Post, p. 231, footnotes 34, 35; page 270.

96 Post, p. 232.

97 Reg. v. Knock, 14 Cox, Cr. Cas. 1.

CLARK CR.L.3D ED.-13

knock down a bystander, who is killed, the killing, being accidental, is excusable."8 If a man shoots at a person, and accidentally kills a bystander, he will be in the same position as if he had killed the person intended. The killing will be murder, manslaughter, justifiable, or excusable, according as it would have been one or the other if the person intended had been killed." But to render one liable for an accident in the doing of an unlawful act, the act must be malum in se, and not merely malum prohibitum, and, therefore, a person is not criminally liable for running over a person while driving at a speed prohibited by a city. ordinance, but not recklessly, since the excessive speed is only wrong because of the ordinance.1

EXCUSABLE SELF-DEFENSE

68. Excusable homicide in self-defense is where a person from necessity kills another upon a sudden affray,

to save himself from death or serious bodily harm. (a) The danger must reasonably appear to be imminent. (b) The person taking life must believe the danger to be imminent.

(c) He must have retreated as far as safety would allow, except that

EXCEPTION—A man is not bound to retreat when

attacked in his own habitation.

98 Reg. v. Bruce, 2 Cox, Cr. Cas. 262.

Agnes Gore's Case, 9 Coke, 81; Saunders' Case, 2 Plowd. 473; Plummer v. State, 4 Tex. App. 310, 30 Am. Rep. 165; Pinder v. State, 27 Fla. 370, 8 South. 837, 26 Am. St. Rep. 75. See, also, post, pp. 206, 212, note 55.

1 COM. v. ADAMS, 114 Mass. 323, 19 Am. Rep. 362, Mikell Illus. Cas. Criminal Law, 30.