(Cal. Sup. Ct., 1866.) Mother's Command. On trial for larceny it was contended that defendant was under the age of 21, living with his mother, and subject to her orders, and that the property was taken at her instance. Conviction was affirmed. The court said such orders were no defense and there was no proof that defendant was under the age of 14 years. P. v. Richmond, 29 Cal. 415. # * (Me. Sup. Ct., 1876.) When Master is Owner. Haynes appeals from conviction of arson of Mrs. I's house to defraud the insurance companies. APPLETON, C. J. The house burned by defendant was the house of another. If Mrs. Ingraham had burned her own dwelling she would not have been amenable to the penalties prescribed by R. S. c. 119, § 1. The fire was set at her instance, and for her supposed benefit. The servant obeying cannot be more guilty than the master commanding. * 蓉 * Exceptions sustained. S. v. Haynes, 66 Me. 307, 22 Am. Rep. 569, 3 L. 249. (Eng. Assize, 1660.) Command of Rebel Officer. Upon the trial of one Axtell, a soldier who commanded the guards at the king's trial, and at his murder; he justified that all he did was as a soldier, by the command of his superior officer, whom he must obey or die. It was resolved that was no excuse, for his superior was a traitor, and all that joined him in that act were traitors, and did by that approve the treason; and where the command is traitorous, then the obedience to that command is also traitorous. Memo., Kelyng 13, Mi. 114. (U. S. C. C. for Pa., 1813.) Command of the Captain of the privateer schooner, on which defendant was first lieutenant, was set up as a defense to an indictment for felonious and piratical entry on a Portuguese brig, and assaulting the captain of it. WASHINGTON, J., charged the jury: No military or civil officer can command an inferior to violate the laws of his country; nor will such a command excuse, much less justify, the act. Can it be for a moment pretended that the general of an army, or the commander of a ship of war, can order one of his men to commit murder or felony? Certainly not. Disobedience of an unlawful order must not, of course, be punishable; and a court-martial would, in such a case, be bound to acquit the person tried upon a charge of disobedience. We do not mean to go further than to say, that the participation of the inferior officer in an act which he knows, or ought to know, to be illegal, will not be excused by the order of his superior. U. S. v. Jones, 3 Wash. C. C. 209, 26 Fed. Cas. 653, B. 368. # (Tenn. Sup. Ct. 1866.) Same. Riggs was a private soldier who had been convicted of murder in killing a man while acting under the orders of his superior officer. The court held that an order illegal in itself, and not justifiable by the rules and usages of war, so that a man of ordinary sense and understanding would know, when he heard it read or given, that the order was illegal, would afford the private no protection for a crime under such order; but that an order given by an officer to his private which does not expressly and clearly show on its face, or the body thereof, its own illegality, the soldier would be bound to obey, and such order would be a protection to him. Reversed. Riggs v. S., 3 Cold. (44 Tenn.) 85, 91 Am. Dec. 272, 3 L. 257, Mi. 114. Acc. S. v. Sparks, 27 Tex. 627, 3 L. 251; C. v. Holland, 1 Duv. (Ky.) 182, 3 L. 260. * (U. S. C. C. for Dist. of E. Mich., 1887.) By Soldier to Prevent Escape of Convict. Defendant was indicted for shooting and killing one Stone who was endeavoring to escape from Ft. Monroe prison in Detroit. Stone, a soldier, had been court-marshaled for telling a lie to a superior officer, and sentenced to hard labor for two years. When shot he was gaining on his nearest pursuer; had been hailed by the sergeant that there was "a load after him, " and to halt; in another half-minute would have scaled the two fences between him and the highway, and probably been lost among the houses; and defendant fired in performance of a supposed obligation to prevent the escape by any means in his power. BROWN, J. Stone had been court-martialed for a military offense, in which there is no distinction between felonies and misdemeanors. His crime was one wholly unknown to the common law, and the technical definitions of that law are manifestly inappropriate to cases which are not contemplated in the discussion of common law writers upon the subject. We are bound to take a broader view, and to measure the rights and liabilities of the prisoner by the exigencies of the military service, and the circumstances of the particular case. It would be extremely unwise for the civil courts to lay down general principles of law which would tend to impair the efficiency of the military arm, or which would seem to justify or condone conduct prejudicial to good order and military discipline. It is urged by the defense that the finding of the court of inquiry acquitting the prisoner of all blame is a complete bar to this prosecution. I do not so regard it. If the civil courts have jurisdiction of murder, notwithstanding the concurrent jurisdiction by court-martial of military offenses, it follows logically that the proceedings in one cannot be pleaded as a bar to proceedings in the other; and if the finding of such court should conflict with the well recognized principles of the civil law, I should be compelled to disregard it. S. v. Rankin, 4 Cold. (44 Tenn.) 145. At the same time I think that weight should be given, and in a case of this kind great weight, to the finding, as an expression of the opinion of the military court of the magnitude of Stone's offense, and of the necessity of using a musket to prevent his escape. I am the more impressed with this view from the difficulty of applying common law principles to a case of this description. There is a singular and almost total absence of authority upon the subject of * * the power of a military guard in time of peace. But considering the nature of military government, and the necessity of maintaining good order and discipline in a camp, I should be loth to say that life might not be taken in suppressing conduct prejudicial to such discipline. In the case of McCall v. McDowell, 1 Abb. (U. S.) 212, 218, it is said that "except in a plain case of excess of authority, where at first blush it is apparent and palpable to the commonest understanding that the order is illegal, I cannot but think that the law should excuse the military subordinate when acting in obedience to the order of his commander." * I have no doubt the 妆 same principle would apply to the acts of a subordinate officer, performed in compliance with his supposed duty as a soldier; and unless the act were manifestly beyond the scope of his authority, or, in the words used in the above case, were such that a man of ordinary sense and understanding would know that it was illegal, that it would be a protection to him, if he acted in good faith and without malice. As there is no reason in this case to suppose that Clark was not doing what he conceived to be his duty, and the act was not so clearly illegal that a reasonable man might not suppose it to be legal -indeed, I incline to the opinion that it was legal-and as there was an entire absence of malice, I think he ought to be discharged. But, even if this case were decided upon common law principles, the result would not be different. By the statutes of the state in which the homicide was committed, a felony is defined to be any crime punishable by imprisonment in the state's prison. Stone had been convicted of a military offense, and sentenced to hard labor in the military prison for two years, and, so far as the analogies of the common law are applicable at all, he must be considered, in a case of this kind, as having been convicted of a felony. U. S. v. Clark, 31 Fed. 710, B. 319. * § 50. "Of Actual Duress by Persons Without Authority.” (Eng. Assize at Surrey, 1746.) Imprisonment and Forfeiture. Indictment for being a lieutenant in Duke of Perth's rebel army. Defense, coercion. It was proved that the duke's men sent summonses to his tenants, of whom defendant was one, to meet him in arms; that on the third summons, the prisoner and 12 others appeared, but when ordered to follow in arms refused to go, whereon cords were brought to bind them, and they were told they would be forced to go, and their horses and cattle driven off if they refused. LEE, C. J., told the jury that fear of having houses burnt and goods spoiled is no excuse in law for joining rebels; and that the only force that excuses is on the person with present fear of death; and that it is incumbent on every man who makes force his excuse to show actual force, and that he quitted the service as soon as he could. Willes, C. J., Foster and Wright, JJ., and Reynolds and Clive, BB., being present, concurred. Verdict, guilty. He was not executed. M'Growther's Case, 18 How. St. Tr. 391, Foster's C. L. 13, 1 East P. C. 71, B. 273, Ke. 56. (Pa. Sup. Ct., 1781.) Same. McKEAN, C. J. (to the jury): The crime imputed to the defendant by the indictment is that of levying war by joining the armies of the king of Great Britain. Enlisting, or procuring any person to be enlisted, in the service of the enemy, is clearly an act of treason. By the defendant's own confession it appears that he actually enlisted in a corps belonging to the enemy; but it also appears that he had previously been taken prisoner by them, and confined at Wilmington. He remained, however, with the British troops for ten or eleven months, during which he might easily have accomplished his escape, and it must be remembered that in the eye of the law nothing will excuse the act of joining an enemy but the fear of immediate death, not the fear of any inferior personal injury, nor the apprehension of any outrage upon property. But had the defendant enlisted merely from the fear of famishing, and with a sincere intention to make his escape, the fear could not surely always continue, nor could his intention remain unexecuted for so long a period. Verdict, not guilty. Respublica v. McCarty, 2 Dallas (2 U. S.) 86, 1 L. Ed. 300, B. 364. * # (Eng. Assize, 1831.) On Indictment for Destroying Threshing Machines, it appeared that defendant was compelled to join the mob, and gave the machine a blow with a sledge, as did the others, but ran away at the first opportunity, in about 25 minutes. He was acquitted. R. v. Crutchley, 5 C. & P. (24 E. C. L.) 133, B. 367, 3 L. 635. (Mich. Sup. Ct., 1895.) Or be Killed Sometime-Murder. Appellant was convicted of murder in the first degree and excepted to the instruction of the trial court to the jury, that the duress testified to by him was no defense. His testimony was that Banks, one of the conspirators, told him of the contemplated murder, and said he must go along. He replied: "I can't go along with you to shoot a man. Mine heart can't do that to shoot a dog. I got a bad dog; I got to ask mine neighbor to come and shoot him. Banks said they had others to shoot. "I got no gun." Banks said: "I furnish you somethings for that time, and you got to go; I told you about that now. You got to go if you like to live; if you back out, if you don't come, maybe we shoot you on the same night, and you been shot the first night if we can get you." The instruction was approved and the judgment affirmed by the supreme court, saying: "It would be a strange rule that would permit one to escape punishment for the crime of murder upon the plea that three days before the crime was to be committed, he had been told that he would himself be killed if he did not go and assist; especially under the circumstances de tailed by respondent himself." P. v. Repke, 103 Mich. 459, 61 N. W. 861. (Miss. Sup. Ct., 1890.) Same-Perjury. COOPER, J. The appellant has been indicted and convicted of the offense of perjury. The sole defense attempted to be proved was that appellant's life had been threatened by one Veto Dodd, unless he should go into court and testify so as to criminate himself and certain other persons who were suspected of having murdered a negro man and his wife, tenants upon the farm of Dodd. The court below excluded the evidence tendered to show the threats upon the ground that it was not proposed to be shown that the threats were made at the instant of delivery of the testimony nor in the presence of the court in which the appellant was testifying. This ruling of the court is the foundation of the errors assigned, the assignments of error other than the first presenting the same question in different forms. Counsel for appellant press upon our attention with apparent confidence that numerous class of cases in which the credibility of confessions or of testimony has been assailed and impeached by the circumstances under which the confessing person or witness spoke. We fail to perceive their application to the case at bar, in which the single question is, whether a man may justify or excuse deliberate perjury against the life and liberty of others on the ground that he was coerced to the perjury by fear engendered by the threats of others. We are not aware that a similar question has ever been presented for decision. We can conceive of cases in which an act, criminal in its nature, may be committed by one under such circumstances of coercion as to free him from criminality. The impelling danger, however, should be present, imminent and impending, and not to be avoided. Such was not the character of the duress here, and the appellant was not only possessed of the power and right of protecting himself, but he also could have appealed to the law to shield him from the threatened danger. The social system would be subverted and there would be no protection for persons or property if the fear of man, needlessly and cravenly entertained, should be held to justify or excuse breaches of the criminal laws of the state, and to excuse or justify the crime of perjury. The judgment is affirmed. Bain v. S., 67 Miss. 557, 7 So. 408, Mi. 118. * * (Ala. Sup. Ct., 1893.) Same-Murder Under Duress of Life. Arp, convicted of murder in the first degree and sentenced to be hanged, appeals, and assigns error in the refusal of the court to instruct the jury not to convict if they found that Arp killed Payne under duress, compulsion, fear, and peril of his own life. COLEMAN, J. The testimony of the defendant and the evidence admitted as confessions showed that he took the life of the deceased without provocation on the part of the deceased, and when there was no real or apparent necessity for the act, so far as such necessity proceeded |