Odger's English Common Law

300 JUSTIFIABLE AND EXCUSABLE HOMICIDE.
for believing, and honestly believed, that his act was necessary to save
his mother's life, the homicide was justifiable. 1
" Burglars rob A.'s house ; they are escaping over his garden wall,
carrying off A.'s jewels with them. A. is in no peril of his life, but he
pursues the gang, calls upon them to surrender, and having no other means
of preventing their escape, knocks down one of them, who dies of the blow.
A., it would seem, if we may accept the authority of Foster, 2 not only is
innocent of guilt, but has also discharged a public duty." 3 But if a
burglar has abandoned his attack upon A.'s dwelling-house, and is running
away with no goods of A.'s in his possession, it is submitted that A. has
no right to kill him.
The law, however, grants no protection to the owner of property, if he
shoots at and kills a mere trespasser, even though such trespasser has come
on his land with a felonious intention, provided he has not yet commenced
to carry it into effect. If A., finding a trespasser upon his land,
beats and thus chances to kill him, he is guilty of manslaughter ; or, if
there he circumstances evidencing malice, he may be convicted of
murder. 4
(5) We have already spoken of the right of self-defence. 5
Whenever it is necessary for a person in defence of himself,
wife, child or any one under his protection to kill the
assailant, no crime is committed. But the means adopted to
repel an attack must in every case be reasonable and com-
mensurate with the force employed by the assailant. In
such cases, and in other instances which might easily be
cited, the person who has caused the death of another had a
right to use force, or it was his duty to use force ; and there-
fore if he used no more force than was reasonably necessary
under the circumstances to exercise his right or to perform
his duty, even homicide is justifiable. But the force used
must not be excessive nor continued longer than was necessary,
and the cause which justifies the use of force must still exist at
the time when the fatal blow was struck. Thus if a fugitive
criminal after a fierce struggle is at last captured by the police,
and all resistance on his part is over, it would be murder for
one of the policemen to kill him in revenge for injuries
received from him in the struggle.
In dealing with self-defence the old books make a distinction between
1
It. v. Hose (1884), 16 Cox, 540.
2 Foster's Crown Cases, pp. 271—274.
8 Dicey's Law of the Constitution, 8th ed., 494.
* See Wild's Case (1837), 2 Lewin, 214.
6 Ante, p. 7.