#### The State v. John H. Roane.

From Burke.

A homicide may be justified when it takes place to prevent a threatened felony, but not when inflicted as a punishment of one already committed.

To justify the homicide of a felon, for the purpose of arresting him, the slayer must show not only a felony actually committed, but also that he avowed his object, and that the felon refused to submit.

The Defendant was indicted for the murder of Levin, the slave of one Mclntire.

On the trial, the evidence was, that the deceased, a waiter in the tavern of his master, at 12 o’clock of the night of his death, went to the lot of the Defendant about one-fourth of a mile' from Mclntire’s house. The Defendant and his family were in bed, the house locked, and the gate of the yard shut — that the Defendant was awakened by the sharp barking of his dog — got up, seized a gun, opened the door, and saw the deceased going from the kitchen towards the gate, which opened into the public road — that the Defendant called and asked who was there, and no answer being returned, he fired and killed the deceased as he was opening the gate. All these facts were voluntarily disclosed by the Defendant upon his examination $ he further stated, that after the deceased fell, he procured a light and went to the body, when he first ascertained it was Levin — that he did not intend to strike the negro, but to fire above him, and frighten him. After ascertaining who the deceased was, the prisoner immediately went to the house of Mclntire, the master? *59and unformed him of the above circumstances. No animosity or ili will was proved to exist between the Defendant and the deceased— who was not in the habit of visiting the Defendant’s kitchen, and had no business there.

Dec. 1828.

It was in proof that several out-buildings in the neighborhood had been broken open and robbed, about the time that the deceased was killed — and that a good deal of alarm existed in the neighborhood, caused by depredations committed by runaway slaves.

The Counsel for the Defendant moved the Court to instruct the Jury,

1st. That if the Defendant had reason to believe, that a felony had been committed on his property, they ought to find him excused, and not guilty of any crime, if the killing took place in endeavoring to arrest the deceased, for the supposed felony.

ad. That if the Defendant bad reason to believe, that the deceased was one of the felons, who had committed' depredations in the neighborhood, or had committed any other felony, and refused to answer when hailed, the killing was excusable, if it became necessary to an arrest of the deceased.

Sd. That if the Defendant found the deceased in lus lot, at the late hour of twelve o’clock at night, after the Defendant and his family were in bed, and after he had heard of the felonies committed in the neighborhood ; if these circumstances, áfided to the fact, that the person of the deceased was then unknown to the Defendant, formed a reasonable ground for the Defendant to believe, that a felony was about to be perpetrated, the killing was excusable, notwithstanding the mistake under which the Defendant laboured.

4th. That if the Defendant did not intend to kill, but only to frighten the deceased, they should find him not guilty of any offence.

*60His honor Judge Danied, refused to give the instructions prayed for, but charged the Jury that if the Defendant discharged his gun in a careless, negligent and heedless manner, and thereby caused the death of tli.e deceased, he was guilty of manslaughter, although he did not intend to kill.

The jury found the Defendant guilty of manslaughter, and sentence being pronounced, he appealed to this Court.

Badger, for the Appellant,

referred to Pierce v. Myricfc, (,Ante 1 vol.345) and contended that if the Defendant killed the slave under a reasonable apprehension that he was about to commit a felony, the homicide was justifiable, and the fact that the slave was innocent of any felonious design, could make a difference.

He also cited the case of the State v, Tackett, (1 Hawks 210) and argued, that a difference existed between the case of a white man and a negro — and that those suspicions which the acts of a negro gave rise to, would make the killing of him justifiable homicide, when the same acts, in the case of a white, would only mitigate the killing to manslaughter.

He contended, that the Judge erred in refusing to instruct the Jury, that if the Defendant did not intend to kill the deceased, he was not guilty of any offence.

E. H. Jones, Mtorney- General, contra.

It would require no inconsiderable effort, for a person of generally good understanding^nd correct views, to bring his mind to the condition, that the Jury who found the verdict ip this case, were precluded by the law of the country, from finding one attended with no greater penal consequences. And nothing but a more perfect acquaintance with tiie society in which a new trial is to take place, should one be granted, than we possess, could induce him to think favorably of the discretion which the Appellant has exercised, in bringing his case to bo reviewed by this Court.

*61Among the errors specified in the charge of the presiding Judge, the third point in the numerical order of the case, is mainly relied upon in behalf of the Appellant. Because says the counsel, it is a necessary rule that a “ negro found in a man’s enclosure at an unreasonable hour of the night, may and ought to be treated as a felon.” If this is a rule of law, it is admitted, that it was disregarded by the presiding Judge in his charge to the Jury. But the rule of law is ueftber so unguarded, nor so extravagant.

It is not sufficient, that the act from which death ensues, be lawful or innocent! if must he done with due ¿are to prevent mischief. Masters or others, having authority, in foro domestico;, may give reasonable correction, and impose reasonable restraints upon those who are under their care, or within their enclosure, in order to prevent mischief, or to ensure obedience ; and if death happens, it will be no more than accidental homicide j but if the correction or restraint exceeds the just limits of moderation, either in the instrument employed for that purpose, or in the measure of it, it will be either murder or manslaughter according to the circumstances, (1 Hale 454 — Kelyng 64).

Now a loaded gun, can never be a suitable instrument for correction or restraint, according to the received sense of those terms, admitting even that Levin were to be considered as a trespasser. So if one man be trespassing upon another, breaking his hedges, passing through his yard, opening his gate or the like at an unusual hour of the night, and the owner takes his gun, and shoot him dead — it will be murder, because it is a wanton violence, beyond the provocation, (Kelyng 152). So also, if a man shall see another stealing his wood, he cannot justify beating him, unless it be to prevent the thief from stealing more; but if the thief upon being forbid, desists from taking more, and the owner pursues and beats him, so that he kills him, it is murder. (Kelyng *62 supra.) B»t it is said, that if Levin were a felon, the appellant had a right to kill him, if he could not be arrested without. This is true. But the remark is gratuitous, for as to this, there was no evidence of the fact, that the deceased was a felon — and consequently no law for the consideration of either the Court or jury.

Henderson, Judge.

If the facts stated are true, the Defendant has no cause to complain of the verdict; for although the state of alarm, in which the neighborhood was thrown by the frequent breaking open of out-houses might have palliated the homicide, if the negro had been coming into the yard, it cannot have that effect in this case, when it appears he was going out of it. For the law authorizes the killing of one who is in the act of committing a forcible felony, and even one who appears to be in the act of doing so, for the purpose of prevention, not by way of punishment. As little grounds has the Defendant to contend, that his object was to arrest the person. In the first place, when an individual commits a homicide upon the ground of making an arrest, he must show a felony committed, if not by the person killed, at least by some one, and secondly, that he made known his object, to-wit, that it was only to arrest — that the criminal, or supposed criminal, refused to submit, and that the killing was necessary to make the arrest. Neither can the Defendant object to the charge of the Judge in regard to using dangerous weapons without due care, such as firing the gun in the present case, and causing death, although perhaps not actually intended.

But upon the whole, I am disposed to think this rather an unfortunate than a wicked case; for it appears that the whole of it is taken from the Defendant’s free and voluntary statement, and without which, there would have been no evidence against him. I am therefore disposed to think, from what the Defendant said, that there was no actual intent to kill, but only to frighten ; but he cer*63tainly executed the intent in a careless manner, It is therefore manslaughter.

Per Curiam. — Let the judgment be affirmed.