4. An intent to resist an officer of police in the execution of his
duty.
The third form of malice aforethought has been much controverted. When
it was first recognized as creating a liability for wilful murder almost
all felonies were capital offences: but even at the end of the 17th
century Lord Holt expressed a view that it should be limited to felonies
involving violence or danger to life, e.g. assault with intent to rob,
or setting fire to a dwelling-house. And Sir James Stephen's opinion is
that, to justify conviction of murder by an act done with intent to
commit a felony, the act done must be one dangerous to life or known to
be likely to cause death.
Starting with the definition above given, English law still retains so
much of its medieval character as to presume all homicide to be
"malicious, and therefore murder, unless it is either _justified_ by the
command or permission of the law, _excused_ on the ground of accident or
self-preservation, or _alleviated_ into manslaughter by being the
involuntary consequence of some act not strictly lawful or occasioned by
some sudden and sufficiently violent provocation." The truth of the
facts alleged in justification, excuse or alleviation, is for the jury
to determine: the question whether if true they support the plea for
which they are put forward is for the court.
In the administration of the English criminal law as to homicide the
consequences of too strict an adherence to the technical definitions of
the offences are avoided (a) by the exercise of the jury of their powers
to convict of manslaughter only even in cases where they are directed
that the offence is murder or nothing; (b) by the report of the judge as
to the particular circumstances of each case in which a conviction of
murder has been followed by the statutory sentence of death; (c) by the
examination of all the evidence in the case by the Home Office in order
to enable the secretary of state to determine whether the prerogative of
mercy should be exercised.
Homicide is justifiable and not criminal when the killing is done in the
execution of the law. The most important case of justifiable homicide is
the execution of a criminal in due course of public justice. This
condition is most stringently interpreted. "To kill the greatest of
malefactors deliberately, uncompelled, and extrajudicially is murder....
And further, if judgment of death be given by a judge not authorized by
lawful commission, and execution is done accordingly, the judge is
guilty of murder" (Stephen's _Commentaries_, book vi. c. iv.). The
execution must be carried out by the proper officer or his deputy: any
person executing the sentence without such authority, were it the judge
himself, would be guilty of murder. And the sentence must be strictly
pursued: to execute a criminal by a kind of death other than that to
which he has been judicially condemned is murder.
Homicide committed by an officer of justice in the course of carrying
out his duty, as such, is also justifiable; e.g. where a felon resists a
legal arrest and is killed in the effort to arrest him (see 2 Pollock
and Maitland, 476); where officers in dispersing a riotous assemblage
kill any of the mob, &c. (see RIOT). In these cases the homicide must be
shown to have been absolutely necessary. Again, homicide is justifiable
if committed in the defence of person or property against forcible and
heinous crime, such as murder, violent robbery, rape or burglary. In
this connexion there has been much discussion as to whether the person
attacked is under a duty to retreat: and in substance the justification
depends on the continuous necessity of attack or defence In order to
prevent the commission by the deceased of the crime threatened.
Homicide is excusable and not criminal at all when committed either by
misadventure or in self-defence. In the former case the homicide is
excused; where a man in the course of doing some lawful work,
accidentally and without intention kills another, e.g. shooting at a
mark and undesignedly hitting and killing a man. The act must be
strictly lawful, and death by misadventure in unlawful sports is not a
case of excusable homicide. Homicide in self-defence is excusable when
the slayer is himself in immediate danger of death, and has done all he
could to avoid the assault. Accordingly, if he strikes and kills his
assailant after the assault is over, this is not excusable homicide. But
if the assault has been premeditated, as in the ease of a duel, the
death of either antagonist has under English law always been held to be
murder and not excusable homicide. The excuse of self-defence covers the
case in which a person in defence of others whom it is his duty to
protect--children, wife, master, &c.--kills an assailant. It has been
considered doubtful whether the plea of self-defence is available to one
who has himself provoked a fray, in the course of which he is so pressed
by his antagonist that his only resource is to kill him.
In English law the term "manslaughter" is applied to those forms of
homicide which though neither justifiable nor excusable are attended by
alleviating circumstances which bring them short of wilful murder. The
offence is not defined by statute, but only by judicial rulings. Its
punishment is as a maximum penal servitude for life, and as a minimum a
fine or recognizances to be of good behaviour. The quantum of punishment
between the limits above stated is in the discretion of the court, and
not, as under continental codes, with fixed minima; and the offence
includes acts and omissions of very varying gravity, from acts which
only by the charitable appreciation of a jury fall short of wilful
murder, to acts or omissions which can only technically be described as
criminal, e.g. where one of two persons engaged in poaching, by pure
accident gets caught in a hedge so that his gun goes off and kills his
fellow-poacher. This may be described as an extreme instance of
"constructive crime."