HOMICIDE, homi-sid, or man-killing, is either justifiable, excusable or felonious. Of the first sort are such cases as prise from un avoidable necessity or accident, without any imputation of blame or negligence in the party. killing. Where a crime is punishable capitally according to the laws, the judge is' bound to condemn the criminal to death, and the sheriff or other executive officer to carry the sentence into effect in the manner prescribed by the sentence of condemnation. But the judge must have jurisdiction of the offense, and be. duly commissioned; and the executive officer. must be empowered to carry the sentence into effect, and must perform the execution in the • manner prescribed by law, otherwise the execu tion of the criminal will make the judge or the officer, as the case may be, guilty of crimi. nal homicide. So, too, where an officer of justice is resisted in the execution of • his office, in his attempt to arrest a person in a Criminal, or, as is maintained, even in a civil case, he is not obliged to give back, but may repel force with force; and if the person resisting is un avoidably killed, the homicide is justifiable, for few men would quietly submit to arrest if, in case of resistance, the officer was obliged to give back. It is, however, laid down as taw • that if a felony be committed, and the• felon' attempts to flee from' justice, it is the duty of every private citizen to use' his best en deavors to prevent an escape, and if in the fresh pursuit the party be killed where he cannot be taken alive, it will be deemed a justifiable homicide. The same rule applies to cases of an attempt on the part of a felon to break away and escape after he has been arrested, and is on the way to jail. So if a party has been indicted for felony and will not• permit himself to be arrested, the officer a warrant for his arrest may lawfully kill him if he cannot be taken alive. But this is to be understood only of officers, and not 'of private persons. Magistrates and officers authorized to suppress and disperse mobs are justified by the common law in taking the requisite measures and using the requisite force for this purpose, though it extend to the killing of some of the rioters. The law arms every private citizen in the community with the power of life and death for the prevention of atrocious felonies accompanied with violence and personal danger to others, as in case of an attempt to murder or rob, or commit burglary or arson, the person making the attempt may, by the common law, if he cannot be otherwise prevented, be killed on the spot, and the law will not recognize the act as a crime. In cases of this sort, in order
to justify the homicide, it must appear that there were good grounds for a suspicion that the person killed had a felonious intent. A woman isjustifiable in killing one who attempts to ravish her, and the husband or father may be justified in killing a man who attempts a rape on his wife or daughter.
The cases already mentioned of justifiable homicide are those in which thepublic authority and laws are directly concerned. The laws of society, however, leave every individual a por tion of that right of personal defense with which he is invested by those of nature. If one may interpose to prevent an atrocious crime against society, where he is not himself in any personal danger, the laws will, a fortiori, permit him to defend himself against attacks upon his own person. Murder is the killing of a person who is under the protection of the laws, with malice prepense, either expressed or implied. Malice is the distinguishing character istic of murder, and may be either aforethought, or expressed, or implied. It is not necessary in order to constitute the crime of murder that the slayer should have the direct intention of killing. It the act be done with a wicked, depraved, malignant spirit, a heart regardless of social duty, and deliberately bent upon mis chief, it is characterized by what the law de nominates malice though it may not result from any enmity or grudge against the particu lar victim. So if a man wantonly discharges a gUn among a multitude of people, whereby any one is killed, the act will be done with that depravity of disposition which the law considers malice. Murder can be committed only by a free agent, for the crime presupposes a will, motive or disposition on the part of the perpetrator. An idiot or insane person cannot commit this crime. But drunkenness is in general no excuse for homicide, though the act be done under its immediate influence.