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against trespassers and persons found on any land, shall not extend to any person hunting or coursing upon any lands with hounds or greyhounds, and being in fresh pursuit of any deer, hare, or fox already started upon any other land, nor to any person bona fide claiming and exercising any right or reputed right of free warren or free chase, nor to any gamekeeper lawfully appointed within the limits of any free warren or free chase, nor to any lord or any steward of the crown of any manor, lordship, or royalty, or reputed manor, lordship, or royalty, nor to any gamkeeper lawfully appointed by such lord or steward within the limits of such manor, lordship, or royalty, or reputed manor, lordship, or royalty.
By sect. 36, game may be taken from trespassers not delivering up the same when demanded.
By sect. 37, penalties under the act are to be paid to the overseers of the poor, and inhabitants are not, by reason thereof, to be deemed incompetent witnesses.
By sect. 41, every prosecution for an offence punishable by summary conviction under the act, shall be commenced within three calendar months.
By sect. 42 it is provided, that it shall not be necessary in any proceeding against any person under this act, to negative by evidence any certificate, license, consent, anthority, or other matter of exception or defence, but that the party seeking to avail himself of any such certificate, license, consent, authority, or other matter of exception or defence, shall be bound to prove the same.
By sect. 44, an appeal is given to the quarter sessions.
Sect. 45 takes away the certiorari.
By sect. 46, proceedings under the act shall be a bar to any subsequent action for the same trespass.
Homicide is either innocent (that is, not punishable by law), or felonious.
1. Innocent Homicide,
The cases where it is innocent may be stated as follows:
1. Where the proper officer executes a criminal in strict conformity with his sentence.—3 Inst. 52; 1 Hale, 601; Arch. 329.
2. Where an officer of justice, or person acting under a warrant in the regular execution of his duty, (either in a civil or criminal case,) is assaulted and resisted by the party, and in the struggle to overcome that resistance kills the party.—1 Hale, 481, 494; 4 Bl. C. 179; Arch. 328.
And this extends to persons acting in aid of the officer.— Fost. 318; 1 Russ. 448.
Not only in the ordinary case of an arrest an officer is thus protected, but in case of a riot or rebellious assembly the officers endeavouring to disperse a mob, and in their defence killing any of them, (there being no other means of suppressing the riot,) are protected, and this whether it be a case under the Riot Act or not.—4 Bl. C. 180; 1 Hale, 495; Arch. 329.
So where the prisoners in a gaol or going to gaol, either in civil or criminal suits, assault the gaoler or officer, and he in his defence kills any of them, it is justifiable for the sake of preventing an escape.—4 Bl. C. 180; 1 Hale, 496.
3. Where an officer, or person acting under a warrant or an hue and cry, endeavours to apprehend a man for treason, felony, or a dangerous wound given, and the man, having notice thereof, instead of resisting, flies, and is killed by the officer, &c. in the pursuit, it being impossible otherwise to apprehend him.—1 Hale, 53, 481; 2 Hale, 118; Fost. 318; 1 Hawk. c. 28, s. 11; Arch. 328.
And this whether the felony, &c. had in fact been committed or not.—2 Hale, 118; Doug. 359; 6 Barn. & Cres. 635; 5 Price, 525.
But, in such cases of killing on pursuit, the killing is not justifiable unless the party flying was aware that he was pursued for the felony, &c.—2 Hale, 118.
Nor if the party were charged with a mere misdemeanor or in a civil suit, for in such cases the killing would be murder if intentional.—1 Hale, 481; 1 Hawk. c. 28, s. 20; Fost. 271; Arch. 329.
By 3 & 4 W. IV. c. 53, s. 8, vessels liable to seizure under the laws against smuggling, not bringing to under such circumstances specified in the act (upon signal given), may be fired at, and if death ensues, no prosecution can be maintained for it.
4. Where a treason or felony has been committed, or a dangerous wound given, and a private person, without warrant or hue and cry, endeavours to arrest the offender, and kills him in resistance or flight (in the cases before defined with respect to an officer), or where a private person interposes to prevent mischief from a riot, and in the struggle kills a rioter.—2 Hale, 119; Fost. 318; 4 Bl. C. 200; 1 Russ. 448.
But if the party whom he attempts to arrest turn out to be innocent, the killing is at least manslaughter; and in this respect the case of a private person differs from that of an officer.—Ibid.
5. Where a man attempts to rob or murder another, or to ravish a woman, or burglariously to break a dwellinghouse in the night-time, or to burn a house, or to break it open in the day-time with intent to rob, or attempts to commit any other forcible and atrocious crime, and is killed in the attempt, and to prevent his commission of the crime. —Fost. 273, 299; 4 Bl. C. 180; 1 Hale, 488; Arch. 311,
And this justification extends to the servants of the party attacked, and even to strangers present.—Ibid.
But it does not apply to felonies without force (such as picking pockets), nor to mere misdemeanors, nor to any case where the intent to commit the crime was not clearly manifested by the felon.— Ibid.
And where a servant was set to watch a garden at night, and shot a person whom he saw going into his master's hen-roost, it was holden unjustifiable, unless he had fair ground to believe his own life in danger.—1 Car. & Payne, 319; Arch. 320.
6. Where the killing is in self-defence, that is, where a man, being attacked by another, retreats from him as far as he can, or, after a sudden quarrel and fight, avoids any further struggle, and retreats as far he can, and there being then no other probable means of saving his own life, kills his assailant in self-defence.—Fost. 277; 1 Hale, 482; 1 Hawk, c. 29, s. 17; 1 Russ. 551; Arch. 316, 317.
And, malice apart, it seems to be immaterial in such case who struck the first blow.—Ibid.
But it must appear that the party killing had retreated as far as he could by reason of some wall, &c. unless the fierceness of the assault prevented it.—Ibid.
And if the quarrel was not sudden, but a deliberate proceeding, as in the case of a premeditated duel, the killing under such circumstances is felonious, and amounts to murder.—Ibid.
And to make the killing justifiable, there must be a clear manifestation of a felonious intent on the part of the assailant.—Ibid.
Where this excuse of self-defence applies, it extends to the case of parent and child, husband and wife, master and servant, who may kill an assailant in the necessary defence of each other respectively.—Ibid.
7. Where two innocent parties are involuntarily so situated that one of them, to save himself from immediate destruction, is obliged to kill the other.
For example, where two persons being shipwrecked, and getting on the same plank, which is insufficient to save them both, one of them thrusts the other from it, whereby he is drowned.—1 Hawk. c. 28, s. 26; Arch. 317.
8. Where a man doing a lawful act, and doing it with proper caution, kills another, without ill design.
For example, where a parent is moderately correcting his child, a master his apprentice or scholar, or an officer punishing a criminal, and happens to occasion his death, or where a man shooting at game (even though unqualified) by accident kills another.—4 Bl. C. 182, 192, 193; Fost. 258, 261; 1 Hawk. c. 29, s. 5; 1 Hale, 473, 474; Arch. 319, 322.
But in case of killing by correction, if it appear that the correction was immoderate or improper in the manner or instrument, it is felonious, viz. manslaughter or murder, according to the circumstances.—Ibid.
And in every case the act in which the killer is engaged must be a lawful one to make the killing excusable, for if he is engaged in a felony, or an act naturally tending to bloodshed, the accidental killing is murder; and if engaged in an unlawful act of a lower description, the accidental killing is manslaughter.—Ibid.
However, if two persons be fighting under such circumstances that if one were killed it would be manslaughter (which is felony) in the other, and an innocent party be unintentionally killed by one of them, it is only manslaughter.—Ibid.
Even if the act be itself lawful, yet if it be done without proper caution, the accidental killing will be felonious, for if the negligence be gross, it will be murder, and if slight, manslaughter.—Ibid.
For example, if a workman throw stones and rubbish, &c. from a house, and thereby kill a person passing underneath, if he did it without previously warning the persons beneath, and at a time when it was likely that persons were passing, it will be murder—if at a time when it was not likely that .any persons w ere passing, manslaughter—if in a retired place where no persons were likely to pass or in the habit of passing, it will be mere misadventure.