
    State v. Rutherford.
    From Rutherford.
    A well grounded belief that a known felony is about to be committed, will extenuate a homicide committed in prevention of the felony, but not a homicide committed in pursuit, by an individual, of his own accord. '
    This was an indictment for an assault on one Spurlin, with an intent to kill him. The case, as proved before Norwood, Judge, was, tiiat the Defendant and one Magness, in whose employment Spurlin was, lived near each other; that during a temporary absence of Magness from his home, one of his slaves had been much injured by the bite of a very fierce dog, owned by Rutherford ; on the return of Magness, hearing what had happened, he requested Spurlin to take a gun, go to Rutherford’s house, and tell him that if he would permit his dog to be killed, he (Magness,) would be satisfied, otherwise, he would seek redress by law ; and also instructed Spur-lin, if Rutherford consented, to kill the dog. At dark, Spurlin accordingly went, and took the gun for the double purpose of defending himself from the dog, and of killing him, should Rutherford assent. On arriving within eighty yards of the house, he coughed, and the dog immediately attacked him; after trying in vain to keep the dog off with the gun, he fired, and injured the animal .slightly: Rutherford thereupon, immediately came out of his house with his gun, encouraged his dog, and ordered his negroes to pursue the person who had fired the gun : Spurlin, hearing this, ran towards the house of Magness, which was at some small distance, and was pursued by Rutherford, who, when within forty paces of him, without speaking, fired, and wounded Spur-lin in the head. On discovering who. it was, Rutherford expressed his regret that the whole load had not passed through. Spurlin. The Court, after instructing the Jury generally, as to the law, was requested by Defendant’s counsel, particularly to charge them, that if they believ- ^ ^je Defendant, Rutherford, had a. well grounded belief that the person who fired the gun intended to com, mit a felony, it would extenuate the offence, and the Defendant would be entitled to a verdict. The Court declined doing so, and instructed the Jury that there must be a felony committed, or strong and convincing evidence that a felony had been committed, or the party slaying, summoned by a proper officer, to extenuate a killing in pursuit; and that even then, if it should be apparent there was no necessity to kill, the offence would not bo extenuated, but would be murder; and that an intention to commit a felony, abandoned by the party, would not warrant a violent arrest. The Jury found the Defendant guilty: a new trial was refused; and from the judgment and sentenbe of the Court, Defendant appealed.
   Henderson, Judge.

The Defendant’s counsel prayed the Court to instruct the Jury, that if they believed that the Defendant, Rutherford, had a well grounded belief that the person who fired the gun intended to commit a felony, it would extenuate the offence, and the Defendant be entitled to a verdict. The Court declined to do so, and instructed the Jury that there must be a felony committed, or strong and convincing evidence that a felony had been committed, or the party slaying, summoned by a proper,officer, to extenuate a killing in pursuit. The Judge, if he erred at all, erred in favor of the Defendant, and against the State. A well grounded belief that a known felony is about to be committed, will extenuate a homicide committed in prevention of the act, but not a homicide committed in pursuit, by an individual, of his own accord. To extenuate a homicide committed in pursuit, there must be an actual felony committed; and it is said, that no evidence, however convincing, even the finding of the grand inquest on oath, will supply the want of an actual felony’s being committed, where an individual, of his own accord, commits a homicide in pursuit 5 because the pursuit by the individual is an officious act, it not being his duty to arrest, unless called on by an officer and from the tenderness of the law towards the life of a citizen, with which, I presume, is intermixed some portion of policy, for it might be a mean of gratifying private revenge, it is to be observed, that some doubts are expressed by Mr. East, where the grand inquest has found that a felony has been committed ; but no case is brought forward to support that doubt, and he concludes, that at least, it will be prima facie evidence that a felony was committed. But as I said before, a well grounded belief that a known felony was about to be committed, will extenuate a homicide committed in prevention of the supposed crime, and this upon a principle of necessity; but when that necessity ceases, and the supposed felon flies, and thereby abandons his supposed design, a killing in pursuit, however well grounded the belief may be that he had intended to commit a felony, will not extenuate the offence of the pursuer. This extenuation rests upon an actual felony committed, and a necessity for the killing to prevent the escape of the felon: the request of the counsel, and the charge of the Judge in answer thereto, have more the appearance of the discussion of an abstract proposition, than the subject matter then under consideration ; for I am at a loss to perceive, how, in this case, an idea could be entertained by Rutherford, that the person who fired the gun was about to commit a felony. A savage and fierce dog, at an early hour in the night, before bed-time, attacks a person in his owner’s ^ard, a gun is fired at him, but misses him, the dog continues the attack, no attempt is made to take the dog off, the person who fired retreats towards a near neighbour’s house, is pursued by Rutherford and fired upon, and struck with shot in a vital part; how it could be supposed that Rutherford entertained a well-grounded belief that the person intended to commit a felony, under ¿¡lcse circumstances, I am at a loss to say; and the Judge might have expressed an answer to the Counsel’s request either way, without affecting the merits of the cause; the verdict of the Jury would have been the same.

On the doctrine of reasonable ground to believe a felony was about to be committed, see East’s Cr. L. 273-4; Cro. Car. 538; Sevil’s case, 1 Hale 42, 474; Browne’s case, 1776, Leach, 151. That there must be a felony actually committed, East 300, and the authorities there cited.

I think, therefore, that the Defendant has no reason to complain, and that the rule for a new trial be discharged.

Tayxor, Chief-Justice, and Hair, Judge, concurred.  