from town, and after some talk, drove past, said: "G-d damn it, stop your mules, and take my things out," and seized the lines. Defendant did as requested; and deceased then stepped to the wagon, took out a piece of meat defendant had, and began cutting it. Defendant remonstrated, asked what it meant, was told he owed deceased a quarter and he was going to take meat for it; said he needed the meat to live on, offered to pay when he got home where he had some money, and finally another with defendant offered to pay the quarter; but deceased still insisted on having the meat, refused the money, and continued cutting off a piece. Several times defendant tried to take the meat, but each time deceased raked at him with the knife, and prevented him getting it. Finally defendant picked up a rail the size of a man's arm and ten feet long, a "deadly weapon," struck deceased on the head with it, put the meat in the wagon, and drove home. Deceased did not seem seriously injured at the time, but died next day. SIMMONS, J. The theory of the defense was that the killing was justifiable, because done to prevent a robbery; and that if the deceased was not attempting a robbery, his trespass upon the defendant was such that the homicide, if not justifiable, was not murder but merely manslaughter. In defense of his property "against one who manifestly intends by violence or surprise to commit a felony" thereon, a person may kill the aggressor if he does so under a reasonable belief that the killing is necessary for that purpose. Code § 4330, 1 East P. C. 271, 1 Bishop Cr. L. (Ed. 8), §§ 853, 875. To constitute robbery there must be force or intimidation, asportation without the consent of the owner, and an intent to steal. It is true, such a taking, although wrongful and violent, would not be robbery if the claim of right was in good faith, and if the taking was for no other purpose than to satisfy the claim. *But it would be otherwise if the claim of right was a mere pretext. trial judge ought, therefore, to have submitted to the jury the question whether, under the circumstances in evidence, the defendant had reason to believe that the claim of right was made and acted upon in good faith, or was merely a pretext. Reversed. Crawford v. S., 90 Ga. 701, 17 S. E. 628, 35 Am. St. Rep. 242.

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(U. S. Sup. Ct., 1896.) Man at Wife's Bedroom Window. Defendant, a negro, was convicted of murder of Phil Duncan, and appealed. "Defendant, however, was working at Lipe's, where his wife was staying; and if, as he claims, he saw a man in the act of raising a window which led to his wife's room, it was perfectly natural that he should wish to investigate, and to ascertain for what purpose the man was there. It appears to have been so dark at the time that defendant did not recognize deceased except by his voice; that the deceased threatened, with an oath, to kill him, and, as he says, 'made for him' with a knife. Under such circumstances we think that a charge to the jury that he was bound to retreat as far as he

could, or disable his adversary without killing him, was misleading. We think that a man who finds another trying to obtain access to his wife's room in the night-time, by opening a window, may not only remonstrate with him, but may employ such force as may be necessary to prevent his doing so; and if the other threatens to kill him, and makes a motion as if to do so, and puts him in fear of his life or great bodily harm, he is not bound to retreat, but may use such force as is necessary to repel the assault." Per BROWN, J. Reversed. Alberty v. U. S., 162 U. S. 499, 16 S. Ct. 864, 40 L. Ed. 1051.

§ 72. "Defense of Friend or Stranger."

Persons in Relations of Duty. "A assaults the master, who flies as far as he can to avoid death; the servant kills A in defense of his master; this is homicide defendendo of the master, and the servant shall have a pardon of course (21 Hen. 7, 39a); but if the master had not been driven to that extremity, it had been manslaughter at large in the servant, if he had no precedent malice in him. Plowd. Com. 100. The like law had been for a master killing in the necessary defense of his servant, the husband in the defense of the wife, the wife of the husband, the child of the parent, or the parent of the child; for the act of the assistant shall have the same construction in such cases as the act of the party assisted should have had, if it had been done by himself, for they are in a mutual relation one to another." 1 Hale P. C. 484.

(Eng. King's Bench, 1639.) By a Prisoner to Prevent Burglary. Cooper being indicted in the county of Surrey of the murder of W. L. in Southwark with a spit, he pleaded not guilty; and upon his arraignment it appeared that the said Cooper, being a prisoner in the king's bench, and lying in the house of one Anne Carricke, who kept a tavern in the rules, the said W. L. at one of the clock in the night, assaulted the said house, and offered to break open the door, and brake a staple thereof, and swore he would enter the house and slit the nose of the said Anne Carricke, because she was a bawd, and kept a bawdy house. And the said Cooper dissuading him from those courses, and reprehending him, he swore, that if he could enter he would cut the said Cooper's throat; and he brake a window in the lower room of the house, and thrust his rapier in at the window against the said Cooper, who in defense of the house and himself thrust the said W. L. in the eye, of which stroke he died. The question was, whether this were within the statute of 24 Hen. 8, c. 5. The court was of opinion, that if it were true he brake the house with an intent to commit burglary, or to kill any therein, and a party within the house (although he be not the master, but a lodger or sojourner therein) kill him who made the assault and

intended mischief to any in it, that it is not felony, but excusable by the said statute of 24 Hen. 8, c. 5; which was made in affirmance of the common law; wherefore the jury were appointed to consider of the circumstances of the fact; and they, being a substantial jury of Surrey, found the said Cooper not guilty upon this indictment; whereupon he was discharged. Cooper's Case, Cro. Car. 544, B. 347, Ke. 138.

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HOLT,

(Ky. Ct. of App., 1887.) Extent of Right-Appearances. J. The appellants, Renzy and Harmon Stanley, seek to excuse the killing of Rufus Ebling upon the ground that it was done by them to save the life of William Stanley, who is the brother of the one, and the uncle of the other. It is a general rule that whatever a person may lawfully do in his own defense, another may do for him. Mr. Bishop * says: "The doctrine here is that whatever one may do for himself he may do for another; * and, on the whole, though distinctions have been taken and doubts expressed, the better view plainly is that one may do for another whatever the other may do for himself." 1 Bish. Cr. L. § 877. This other person in such a case steps into the place of the assailed, and there attaches to him, not only the rights, but also the responsibilities of the one whose cause he espouses. ** * * Thus, if A unlawfully assaults B, endangering the latter's life, C has no right, because he may come upon the scene of conflict at a time when, during its progress, A is in danger, to kill B. This would be murder in C, just as it would in A. Any other rule could not be tolerated. The innocent cannot be sacrificed to save the guilty. This would be paradoxical. A volunteer must not kill in behalf of one in fault. This would be what some writers have termed a negligent killing. He may, however, do so far for one not in fault, if the impending danger thus brought about be either actual or apparent. In other words, as the person not in fault may, if he believes and has reasonable grounds to believe that his life is in immediate danger, defend it to the extent of taking life, so another may act upon the like appearances as to such danger, and defend it for him to the same It is evident that it [the instruction to the jury] confined the right of the appellants to act in defense of William Stanley's life to the existence of actual danger to it. It did not allow them to act in good faith upon appearances, however reasonable. Reversed. Stanley v. C., 86 Ky. 440, 6 S. W. 155,

extent.

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19 Am. St. Rep. 305.

Compare right to defend self from apparent assault. etc.: Campbell v. P., § 69; Pond v. P., § 70; Mead's Case, § 70; Shorter v. P., § 69.

(Eng. Assize, 1884.) To Save Mother from Murder. The prisoner, a slender man of 22, was indicted for the wilful murder of his father, a man of great size and strength, who on the night of the homicide came home intoxicated, and accused his wife of infidelity,

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and threatened to kill her, as he had done before when intoxicated. The family retired to adjoining bedrooms about 9 p. m., and shortly deceased's wife retreated to her daughters' room for safety, followed by deceased, who dragged her to the head of the stairs and threatened to push her down, then said he would cut her throat, and went (as they supposed) for a knife. Returning, he crowded his wife against the balusters, and she and her daughters shouted "murder!" At this the prisoner came from his room and fired the shot of which deceased died 12 hours later. On his arrest defendant said: "Father was murdering mother. I shot on one side to frighten him; he would not leave her, so I shot him." The defense was excusable homicide. LOPES, J., to the jury: If you think, having regard to the evidence and drawing fair and proper inferences from it, that the prisoner at the bar acted without vindictive feeling towards his father when he fired the shot, if you think that at the time he fired that shot he honestly believed and had reasonable grounds for the belief that his mother's life was in imminent peril, and that the fatal shot which he fired was absolutely necessary for the preservation of her life, then he ought to be excused, and the law will excuse him from the consequences of the homicide. If, however, on the other hand, you cannot come to that conclusion, if you think, and think without any reasonable doubt, that it is not a fair inference to be drawn from the evidence, but are clearly of opinion that he acted vindictively and had not such a belief as I have described to you, or had not reasonable grounds for such a belief, then you must find him guilty of murder. Verdict, not guilty. R. v. Rose, 15 Cox C. C. 540, B. 343, C. 194, Ke. 140.

(U. S. C. C. for Cal., 1889.) Protecting Supreme Court Justice. A deputy United States marshal was instructed by his superior officers to protect the life and person of a supreme court justice from a threatened assault by deceased. The latter was a desperate and powerful man, and on the occasion of the homicide struck the justice two violent blows. The deputy called to deceased to stop, saying that he was an officer, when deceased put his hand to a pocket where he usually carried a bowie-knife, and was immediately shot by the deputy. Held, that the homicide was justifiable. In re Neagle, 39 Fed. 833, 5 L. R. A. 78. See also on same facts, Cunningham v. Neagle, 135 U. S. 1, 10 S. Ct. 658, 34 L. Ed. 55.

§ 79.

§ 80.

"The Principal Must be Convicted Before the Accessory Can be Tried," 259. "There Must be Proof of Complicity Between the Parties," 261.

§ 81. "Within the Scope of the Original Design," 261.

§ 82. "A Natural Consequence of its Execution," 263.

§ 83. "Abandonment," 266.

§ 73. Classified. Having considered the general nature of a crime. and its two elements, intent and act, we come now to speak of the actors, viz: 1, Principals (a) in the first degree, and (b) in the second degree; and, 2, Accessories (a) before the fact, and (b) after the fact.

PRINCIPALS.

§ 74. "In the First Degree."'

(Eng. Queen's Bench, 1592.) Absent Principal. William Vaux was indicted for the murder of Nicholas Ridley by poisoning, and pleaded former acquittal and not guilty. By the record in the former case, put in evidence, it appeared that the indictment was insufficient, and that the jury found by special verdict that Vaux was not present when Ridley took the poison, whereupon the justices had given judgment for defendant. Because of the defect in the indictment the former acquittal was held no defense. Further, it was agreed per curiam that Vaux was a principal murderer, although he was not present at the time of the receipt of the poison, for otherwise he would be guilty of such horrible offense, and yet should be unpunished, which would be inconvenient and mischievous, for every felon is either principal or accessory, and if there is no principal there can be no accessory, quia accessorium sequitur principalem; and if any had procured Vaux to do it, he had been