Odger's English Common Law

29 8 JUSTIFIABLE AND EXCUSABLE HOMICIDE.
tenced to be hanged or vice vend, he is guilty of murder. A
technical defect in the proceedings is immaterial, if the Court
had jurisdiction over both the subject-matter and the person
condemned.
(2) An officer of justice is, in many cases, entitled to use
force in order to arrest a criminal, or to prevent his escaping
from custody. If it is necessary to use deadly weapons in
order to effect the arrest or to prevent the escape of the
criminal and death results, the homicide is justifiable. Policy,
or rather necessity, obviously requires that every minister of
justice should be protected, not only in executing any express
sentence of the law, but also in doing every act which the
law requires him to do in discharging the duties of his office.
On the same principle protection is extended to all private
persons who are called upon to assist officers of justice in-
executing their duties. So a gaoler may kill any convicted
prisoner who is endeavouring to escape from custody. In
some cases also the law confers upon private citizens the
right, and imposes upon them the duty, of taking prompt
action for the advancement of justice and the prevention of
crime, although no officer of justice be at hand. And generally
whenever A. has lawful authority to arrest or imprison B.
and uses only proper means for that purpose, then if B.
resists and is killed in the struggle, the homicide is justifiable
although if A. be killed by B., B. is guilty of murder.
(3) The legal position of persons, whether military or
civilian, who cause death in dispersing a riot, has been dis-
cussed in a previous chapter. 1 Where the mob is guilty merely
of a common law riot, which is a misdemeanour, only slight
force may be used for this purpose and not deadly weapons.
As soon, however, as any of the rioters begin to commit any
felonious violence, such as arson, housebreaking or murder,
deadly weapons may be used by either soldiers or civilians,
provided they can afterwards satisfy a jury that such extreme
measures were reasonably necessary in the circumstances t6
disperse the mob and to prevent any further felonious violence.
Where, however, the riot has become felonious under the
1 Ante, pp. 167, 168.
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