JUSTIFIABLE HOMICIDE. That which is committed with the intention to kill, or to do a grievous bodily injury, under circum stances which the law holds sufficient to ex culpate the person who commits it. A judge who, in pursuance of his duty, pronounces sentence of death, is not guilty of homicide; for it is evident that, as the law prescribes the punishment of death for certain offences, it must protect those who are intrusted with its execution. A judge, therefore, who pro nounces sentence of death, in a legal man ner, on a legal indictment, legally brought before him, for a capital offence committed within his jurisdiction, after a lawful trial and conviction of the defendant, is guilty of no offence; 1 Hale, PL Cr. 496.
Magistrates, or other officers intrusted with the preservation of the public peace, are justified in committing homicide, or giv ing orders which lead to it, if the excesses of a riotous assembly cannot be otherwise repressed; 4 Bla. Com. 178, 179. So a homi cide is justifiable, when committed by an officer in defending a judge of the United States, engaged in the discharge of his ju didal duties; In re Neagle, 135 U. S. 1, 10 Sup. Ct. 658, 34 L. Ed. 55.
An officer intrusted with a legal warrant, criminal or civil, and lawfully commanded by a competent tribunal to execute it, will be justified in committing homicide, if in the course of advancing to discharge his du ty he be brought into such perils that with out doing so he cannot either save his life or discharge the duty which he is command ed by the warrant to perform. And when the warrant commands him to put a criminal to death, he is justified in obeying it ; Cl. Cr. L. 134. See, State v. Rollins, 113 N. C. 722, 18 S. E. 394. In endeavoring to make an ar rest an officer has the right to use all the force that is necessary to overcome all re sistance, even to the taking of life; State v. Dierberger, 96 Mo. 666, 10 S. W. 168, 9 Am.
St. Rep. 380.
A soldier on duty is justified in commit ting homicide, in obedience to the command of his officer, unless the command was some thing plainly unlawful.
A man may be justified in killing another to prevent the debauching of his wife ; Futch v. State, 90 Ga. 472, 16 S. E. 102.
A private individual will, in many cases, be justified in committing homicide while acting in self-defence; Fields v. State, 134 Ind. 46, 32 N. E. 780; Lovett v. State, 30 Fla. 142, 11 South. 550, 17 L. R. A. 705; Keith v. State, 97 Ala. 32, 11 South. 914; Garello v. State, 31 Tex. Cr. R. 56, 20 S. W. 179. If a trespass on the person or property of another amounts to a felony, the killing of the trespasser will be justifiable, if neces sary in order to prevent it ; Crawford v. State, 90 Ga. 701, 17 S. E. 628, 35 Am. St. Rep. 242. It is not true as a general propo sition that one who is assaulted by another with a dangerous weapon is justified in tak ing the life of the party so assaulting him; State v. West, 45 La. Ann. 14, 12 South. 7. The same circumstances that will justify or excuse the homicide where the assault is up on one's self, will also excuse or justify the slayer if the killing is done in defence of his family or servant ; Hathaway v. State, 32 Fla. 56, 13 South. 592. See DEFENCE.
An instruction to a jury requiring a justi fication of homicide to be established beyond a reasonable doubt is erroneous; People v. Hill, 65 Hun 420, 20 N. Y. Supp. 187.
To establish a case of justifiable homicide it must appear that the assault upon the prisoner was such as would lead a reasona ble person to believe that his life was in peril; Allen v. U. S., 164 U. S. 492, 17 Sup. Ct. 154, 41 L. Ed. 528.
See ARREST; HOMICIDE; JUSTIFICATION.