The Camden journal. [volume] (Camden, S.C.) 1866-1891, 1878-09-19

officer. or other person, under any such
law. There being no such law as au
thorized the act, no such authority
could be under the law. 1t follows,
therefore, that the law set up does no,
embrace this case, under Its provisions
1t is argued, however, that the off.
GERS, having warrant authorizing an
arrest and being resisted BY the deceased
in the execution of that power, had
right to slay the resisting party. This
is a miaapprehension of the law. The
circumstances, as set forth in the afi-
davit Of the prisoners upon the applica>
ton fhr bali, do not make such case
of resistance as would justify the killing.
Nothing short of necessity would justly
or excuse taking life, whether done BY
an officer or an individlal-,he only
difference being that an officer, making
an arrest, may kill in selfsaefence with
out retreating, while private individu-
al may not SIN all cases; whether civil
or criminal, where persons, having aus
thority to arrest or imprison, and using
the proper means for that purpose, are
resisted in so doing, they may repel
force with force, and need not give
back; and if the party making the re-
sistance is unavoidably killed, this HON.
icide isjusti6able." q Russell on Crimes
546.)
The prisoners statements show, that
after having lain for some time in am-
bush, around the premises, they deter
mined to make a 'charge" upon the
house, and accordingly some Of them
did so, both in front and rear, with
guns in their hunds;..thas deceased, See
ing the approach of Kane, before any
explanation of the purpose and authors
ty with which they came, snapped his
gun at him, when Kane fired on tho
deceased and wounded him; tina: the
deceased ran through the house and into
the yard by another door, and there
was shot down, still running. Upon
this statement the act would not be JUS
ti6able, in any view Of che case. The
same learned authority. just cited de-
clares that "when the party does not
resist, but merely flies to avoid arrest,
the conduct of the officer should be
cautiously regulated by the nature Of
the proceeding. For in civil cases, aud
also in the case of breach of the peace,
or any other misdemeanor short Of
felony, if the officer should pursue
defendant flying, in order to avoid an
arrest, and should kill him in the pur-
suit, it will be murder or mapslaughter.
according to the peculiar circumstances
lsadssa! 1feb Russell, b "
ever, it were granted tina. the killing
was IN fact rs alleged By the prisoners,
done in necessary self defence, that is
common law defence. and does not exist
By virtue of the process claimed to be
in the hands of the officers, or the au
thority of the Statute law vherewith
they were clothed. II their official
character entered into the case as an
ingredient of such defence, it was only
so by virtue Of the common law, aud
not because Of any statute or process.
The killing would not have been justi-
able because of the presence Of the
warrant or authority, but by reason of
the conduct of the deceased. It was an act
done, not in execution Of the warrant,
but in the defence OF the person Of the
individual.
The act therefore cannot be said to
have been done under color of the Office
or authority or laws invoked.
These principles are fully sustained
BY the learned Chief Justics of the
United States in the case of McKie "s.
Rains, 10 Wall, 90. In that case the mar
shal had seized the goods of the plaintiff
under an execution against the goods of
one Oady. An action Of trespass was
brought in the State Court against the
Marshal, and judgment rendered thereon
in favor of the plaintiff. The Marshal
sought to transfer the case to the Cir
cult Court by writ of error, under an
act Of Congress of April 9th, 1866, and
aud an act o. March Sd. 1868, authori.
zing such transfer before or after judg-
ment, when the act complained of was
committed "during the rebellion, by
authority derived from any act of Con-
gress." The Chief Justice in deliver
ing the judgment Of the Court, says
THE case made by the pleadings was
clearly within the jurisdiction of the
State Court. where suit WAS brought;
and the parties being all citizens Of the
same State, was not within the original
Jurisdiction of any national court
Nor was case one which could at any
stage be removed into the Circnit Court
Of the United States, under the act oI
March 8, 1863, or April 9, 1866. II il
very plain that the first of these act:
does not apply. It was not snit OF
prosecution described by the act. NJ
act Of Congress has been cited, frou
which authority can be derived to the
Marshal to seize the goods Of one person
for the satisfaction of the debts Of an
other"
Similarly, 10 revenue law or othe
authority can be produced that woulc
authorize the act done by these prison
ers, and it was not therefore "a suit o
prosecution described by the act" her
r invoked.
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