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Homicide se Defendendo.
he giveth A. the mortal wound, and then he giveth his deaths
wound;
this is Homicide in his own defence. |
Chap. 150. |
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But in the former case, if B. upon malice
prepensed had first strucken
A. and then B. flieth to a strait or wall, and B. pursueth
him, and striketh
him, and B. killeth A. thereupon. This is Murther in
B. for the malice
prepensed was the ground and beginner hereof. |
F. Cor.
387.
Crom. 22,
28. |
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Yet if there had been former malice between A.
and B. and they meet
suddenly, and A. assaulteth B. and B. before any
stroke by him given;
flieth so far as he can; and A. pursueth him, and then B. killeth
A. This
seemeth to be Homicide in his own defence, notwithstanding the former
malice. |
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Copstones Case: There was malice between
Copstone and one S. and
they had fought divers times, and after met suddenly in London-street,
and
C. told S. that he would fight with him, and S. answered,
that he had nothing
to say unto him; and S. went to the Wall, and after C. assaulted
S.
and then S. struck and killed C; and it was found that
C. began the affray,
and S. was thereupon discharged, without forfeiting any thing.
But that
was by force of the Statute of 24 H. 8. c. 5. |
15 El.
Cromp. 27. |
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A Man in fight falleth to the ground, there his
flying, &c. is not necessary,
&c. See hereof before. |
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Also if a Thief assaults me to rob or kill me, I
am not bound to flie to
a Wall, &c. as I must in case a true Man assaults me. |
Stamf. 14. |
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If an Officer of Justice or Minister of the Law,
in the execution of his
Office, be assaulted, he is not bound to flie to a Wall, &c. as
other Subjects
are. |
Co. 9. 98. |
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Also the Servant may justifie the killing of another,
in defence of his
Masters Person or House, if the hurt cannot be otherwise avoided, Br.
Coron. 63. |
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Also the Servant may justifie the killing of him,
who robbed and killed
his Master, so that it be done presently. |
21 H. 7. 353. |
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In the defence of the possession of my Goods, I
may justifie to beat him
that wrongfully take them from me; but I cannot justifie to kill him,
except he be a Thief. |
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So then, to kill a true Man in defence of my Person,
in case where there
is an inevitable necessity, (sc. that I first shall flie so far
as I can for saving
my life, &c.) This is no Felony of death, &c. But otherwise
it is to kill
a true Man in defence of the possession of my House, Lands or Goods,
that is Man-slaughter (at least) as it seemeth. |
23 Ed. 1.
P. Forests
4.
Stamf. 13,
14. |
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" In case of killing a Man Se Defendendo,
there must be extrema necessitas;
" for if a Man flying see a place, beyond which he cannot go, and
" before he come there, kill his pursuer. This is not justifiable,
for he
" must go to the utmost place before he strike. |
Hob. 159. |
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" Sir Francis Bacon taketh this difference
in these former Cases of Se
' Defendendo, sc. When the Law doth intend some fault
or wrong in the
' party that hath brought himself in the necessity: This
he calleth Necessitas
' culpabilis, and saith this to be the chief reason why Se
impsum defendendo
' is not matter of Justification, but he must sue out his Pardon,
' and shall forfeit his Goods, because the Law intends it hath a beginning
' upon an unlawful cause; for Quarrels are not presumed to grow
' without some wrong in words or deeds, and so malice on either part;
' and it is hardly triable in whose default the quarrel began: But
where I
' kill a Thief that assails to rob me (and the like) and I kill him, here
there
' can be no malice or wrong presumed on my part. Ba. 33. |
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