
    Commonwealth versus Joseph Drew and Levi Quinby.
    
    Of murder and manslaughter.
    The defendants were indicted at this term for the wilful murder of Ebenezer Parker. The indictment contained two counts. The first count charged Drew and Quinby with assaulting Parker, at Falmouth, on the 11th day of January last, then a deputy sheriff, and in the due execution of his office ; and that Drew then and there gave the deceased the mortal wound, of which he thereafterwards, on the 18th of the same January, died; and that Quinby was present, aiding and abetting Drew in giving the mortal wound.
    The second count was like the first, with this difference only, that it was not alleged therein that Parker was a deputy sheriff, in the due execution of his office.
    The prisoners, on their arraignment, pleaded not guilty; and not agreeing in their challenges to the jurors, they were separately tried. Drew was first put on his trial.
    It satisfactorily appeared in evidence that, on the day alleged in the indictment, Drew gave the deceased a mortal wound with a bludgeon, by which Parker’s skull was fractured ; that the bludgeon was of hard wood, about four or five feet in length, and about two inches in diameter, having formerly been used as a handle to a pitchfork; and that Parker, seven days afterwards, died of that wound.
    * It was proved that at the time the wound was given, [ * 392 ] and long before, the deceased was, and had been, a deputy sheriff, duly appointed and qualified to execute that office; that an execution, duly issued on a judgment legally recovered by one Josiah Gould against Quinby, had been, some time before the assault, delivered to the deceased to be executed ; that about a fortnight before the assault, the deceased had lawfully arrested Quinby on that execution, and had delivered him to one Richard King for safe keeping, who took charge of him ; that without the knowledge of the deceased, King, at Quinby’s request, permitted him to go at large, Quinby promising King that he would be ready to settle the execution at any time when the deceased should call on him ; that Parker, 
      who lived at several miles’ distance from Quinby’s place of residence, came thither, about a week afterwards, to see Quinby, and procure satisfaction of the execution, but Quinby could not be found by him that Drew and Quinby were hired men, in the service of Daniel Conant, Drew’s employment being at a blacksmith’s forge of Conant’s, and Quinby’s in working at Conant’s saw-mill ; but when the mill was not going, Quinby worked with Drew at the blacksmith’s shop, which was at a distance from, and not part of, any dwelling-house ; that on the day when the mortal wound was given, the deceased again came to see Quinby, and, if he would not satisfy the execution, to arrest his body ; that Quinby knew that the deceased had come with that intent, and being at work in the saw-mill, and seeing the deceased coming to the mill, he left his work, and went to Conant’s house; there taking with him a bottle of rum, he passed out of Conant’s back door, and went to the blacksmith’s shop, where Drew was at work making nails, "when Drew and Quinby fastened the shop, to exclude the entrance of any person ; that in the evening, the deceased, having been informed that Quinby had shut himself in the shop with Drew, sent one William Babb, Jun., to the shop, to inform them that he was coming, and to advise Quinby to settle the execution ; that Babb went, and finding the door fastened, knocked ; Quinby called, “ Who is there ? ” Babb then told his name; “Who is with you?” asked Quinby; upon Babb’s answering, “ No one,” he was admitted into the [ * 393 ] shop, and the * door was again fastened; and Babb delivered his message from the deceased, advised Quinby to settle the execution, and told him that Conant was ready to settle it for him if he would consent; but Quinby refused, and said it should not be settled that night; that the deceased then came to the shop with Bichard King, Samuel Cox, and some others, to assist him, and knocked at the door ; Drew was drawing nails from a rod then in his hand, and Quinby was blowing the bellows, one hand being on the bellows pole, and the other resting on the bludgeon, with which the mortal wound was afterwards given; that when the deceased had knocked, Drew inquired who was there ? “ Parker,” answered the deceased ; that Drew then threw some burning cinders towards the door from the nail rod in his hand; that Parker then asked for admission, and Drew asked him if he was well; “Yes,” answered Parker; “then I advise you,” said Drew, “ to stay where you are; ” that the deceased then told Drew, that he did not want him, that he wanted Quinby, who was his prisoner, and that he would have him ; that the deceased then put his hands under the door, which was about four feet w'do, and which opened outwards on a lane leading to Conant’s 
      house, and to his mills, and, without much apparent difficulty, pulled it open ; that Drew immediately threw down the nail rod, caught up a sledge, and came to the door; that he went out in a great passion, saying, “ What are you breaking open my shop for ? stand by, or I will throw the sledge through you ; ” that he then, with the sledge, struck at the deceased, who was without any weapon, and who dodged behind the door ; that he then struck at King, who re treated from the sledge, and Drew threw it at him, and it glanced against his breast, and fell without hurting him ; that Quinby, when Drew had left the shop with the sledge in his hand, threw down the bludgeon he had held, towards the door, and it fell about two feet distant from it; that Drew, after throwing the sledge at King, returned to the shop door, and saw the bludgeon lying there ; that he reached in his hand, and took the bludgeon, and turned to the deceased, who had pushed the door partly forward, had come from behind it, and was standing against the edge of it, and struck at * him three times with the bludgeon, holding [ * 394 ] it in both his hands, and striking with great violence; that the first blow fell on the edge of the door, and forcibly shut it, the second blow was on the head of the deceased, and inflicted the mortal wound ; and the deceased, when falling under the weight of it, received the third blow on his back or shoulders, it not being clearly ascertained on which ; and one witness also testified that the first blow struck the head of the deceased ; that Drew then turned to King, and with the bludgeon knocked him down, and immediately went into the shop, carrying the bludgeon with him, and there told Babb that he had better take Parker up, as he had got enough of it; that Babb left the shop to take up the deceased, and Drew and Quinby again fastened the door, and, opening the window, defied the people who were outside; Drew saying that as many might come as had a mind to, and he would give them all sore heads.
    Upon this evidence, the counsel for the prisoner argued, that the offence was manslaughter, and not murder. That Parker having before arrested Quinby on the execution, and his servant having permitted him voluntarily to escape, he could not again lawfully arrest Quinby on the same execution; and therefore the deceased was a trespasser in breaking open the shop door, and his entry might lawfully be resisted by Drew, who was in possession of the shop. And they argued further that the deceased was killed in attempting unlawfully to arrest Quinby, by color of a legal warrant; that the attempt was an unlawful act; that not on'y Quinby, but any stranger, might lawfully oppose the officer in his unlawful attempt, and a fortiori might Drew, as he could not be considered as a stranger, being a fellow-servant with Quinby, working with him for Conant, who had hired them to labor in his service; and if the officer was killed in pursuing his unlawful attempt, the killing was at most but manslaughter. And upon this point they cited, and relied on as authorities, Sir Henry Ferrer’s case, Cro. Car. 371.— Hopkin Hugget’s case, 1 Hale, 465. and Kel. 59.— Rex. vs. Tooley & Al. 2 L. Raym. 1296. — Mary Adey’s case, 1 Leach, C. C. 245. 1 Fast, C. L. 329, in the note.
    
    * The Solicitor-General for the commonwealth
    argued that when the mortal wound was received, the deceased had not given to Drew any provocation, sufficient, in law, to reduce the homicide below the crime of murder. And he cited Foster’s C. L. Disc. 2, ch. 8, § 10, 11, 12, 13, 14, and 1 Fast’s C. L. 325, ch. 5, § 89.
    
      The Chief Justice charged the jury. After stating to them the evidence, he observed that, if they believed the witnesses, the deceased, when he received the mortal wound, was not in the execution of his office, as a deputy sheriff; that having arrested Quinby fourteen days before, and committed him to the custody of King, who had voluntarily permitted his prisoner to go at large, this permission must also be considered as the act of the deceased, whose servant King was; and that a voluntary escape of Quinby having been suffered, the deceased could not lawfully arrest him again on the same execution ; and therefore that the prisoner ought to be acquitted of the felony and murder charged in the first count of the indictment.
    In the second count, the prisoner was charged with murdering the deceased, then in the peace of GOD, and of the commonwealth, without any allegation that he was in the execution of his office as a deputy sheriff; and the jury were instructed that it was their duty to consider the evidence, as it applied to this second count. If they believed the witnesses, there was no question but that the deceased was killed by the prisoner at the bar. If they were satisfied of this fact, the implication of malice would arise, unless the circumstances of the killing were such as would reduce the crime below murder. If the act of killing was in itself attended with probable dangerous consequences to the deceased, and was committed deliberately, the malice will be presumed, unless some sufficient excuse or provocation should be shown ; for the law infers that the natural or probable effects of any act, deliberately done, were intended by the agent.
    It had been argued that there were two causes of provocation, which would reduce the killing below the crime of murder. One was, tnal the prisoner was in the peaceable possession of his shop, engaged in his lawful business, when the deceased unlawfully forced open the door, with an intent to enter, * against [*396] the prisoner’s consent. The other provocation was, that the deceased forced the door, with the intent unlawfully to enter, and to arrest Quinby, who was the prisoner’s fellow-servant, and at work with him, the deceased having no legal warrant therefor.
    
      The Chief Justice then observed that it was necessary for the jury, before they considered the nature and sufficiency of these provocations, to determine whether the bludgeon used by the prisoner, in killing the deceased, was, or was not, a deadly weapon, which would necessarily kill, or do great bodily harm; that this was a question of fact for the jury exclusively to decide. If the jury were satisfied that the weapon used was not likely to kill, or to do great bodily harm, he was of opinion that either of the provocations was sufficient to free the prisoner from the guilt of murder. For by using a weapon which would not probably do great injury to the deceased, it was a reasonable inference that the prisoner did not intend to kill the deceased, but accidentally killed him, against his intention, and the presumption of malice would be sufficiently rebutted; and without malice, the killing could not be murder. But if the jury were sat isfied that the instrument of death was a deadly weapon, which would probably kill the deceased, or do him great bodily injury these grounds of excuse or provocation would deserve a difieren consideration. That the provocation arising from the trespass committed by the deceased in breaking open the shop door, for the purpose of unlawfully entering, was not a provocation sufficient to reduce the killing below the crime of murder, if the prisoner killed the deceased with a deadly weapon; because the trespass was no* a sufficient excuse for such a barbarous act, admitting the prisoner and not Conaif, his master, to have had possession of the shop. For it is a rule of law, that where the trespass is barely against the property of another, not his dwelling-house, it is not a provocation sufficient to warrant the owner in using a deadly weapon; and if he do, and with it kill the trespasser, this will be murder, because it is an act of violence beyond the degree of the provocation ; but if the beating be with an instrument, and in a manner not likely to kill, and the trespasser should, notwithstanding, * hap- [ * 397 ] pen to be killed, it will be no more than manslaughter.
    The other provocation, which, it was argued, would reduce the killing below murder, was the forcibly breaking of the shop door by the deceased, with the intent unlawfully to enter, and to arrest Quinby. It was a principle of the law that, if any man, under color or claim of legal authority, unlawfully arrest, or actually attempt or offer to arrest another, and if he resist, and in the resistance kill the aggressor, it will be manslaughter; and that any person aiding the injured party by endeavoring to rescue him, or to prevent an unlawful arrest when actually attempted, is guilty only of manslaughter, if he kill the aggressor in opposing him, unless, perhaps, the party aiding be a stranger to him, whom he shall endeavor to assist. — That whether the principle will, or will not, comprehend a stranger, it was not necessary then to decide, for it was the opinion of the judges then present, that in this case the prisoner was not to be considered as a stranger to Quinby, as they were fellow-servants, hired by the same master, and were at that time laboring together in his service.
    Although, from the testimony of the witness, (if the jury credited him,) it appeared that, on the door being broken open, the prisoner rushed out with his sledge, saying, “ What are you breaking open my shop for? stand by, or I will throw the sledge through you,” whence it may be inferred that the fatal blow was given to chastise the deceased for the violence done to his shop ; yet the jury would decide, whether it must not be reasonably presumed that the intent of the prisoner was also to prevent the deceased from entering the shop to arrest Quinby, as the door had been fastened for his protection, and as the deceased had just before declared that he was his prisoner, and that he would have him. That in this view of the evidence the jury would apply the facts to the law.
    In three of the cases relied on for the prisoner, the unlawful arrest had been made before there was any resistance or quarrel. And in the last case, the officer and his assistant, before the latter was assaulted, were in the room with the party to be arrested, had him in their power, and had ordered him to go with them [ * 398 ] In the case of the prisoner, Quinby * had remained all the time in the shop, and the deceased ha,d not entered it, but, when the prisoner went out, had retreated behind the door, to avoid a blow from the sledge. That before the mortal blow was given, a stroke with the bludgeon had forcibly shut the door; and that the deceased and the prisoner were out of the shop, with the door closed, when the mortal wound was inflicted. If the jury were satisfied that the evidence established these facts, they would con elude that, although the deceased had forced open the door, with the intent to enter the shop, to arrest, or to attempt the arrest of Quinby, yet when he received his death wound, he had not arrested Quinby, nor had he, in fact, attempted or offered to arrest him.
    
      The Chief Justice concluded by observing that he had considered the evidence in a light as favorable to the prisoner as was consistent with the testimony of the witnesses ; and it was with regret that he was obliged to declare that, if the facts were as he had stated them, of which the jury were the judges, the killing of the deceased bv the prisoner, if the instrument was a deadly weapon, amounted to the crime of murder.
    The jury acquitted the prisoner on the first count, and found him guilty of the felony and murder charged in the second count.
    
      Quinby
    
    was afterwards put upon his trial, and the same evidence was given against him, which had been produced against Drew. It was further proved, in behalf of the commonwealth, that Quinby before Parker had arrested him on the execution, had armed himself with a club, and had declared to one witness, that if Parker attempted to take him, he would break his head; and to another witness, that if Parker came to take him, and he bid him stand off, if Parker persisted, he would split him down ; that after the mortal wound had been given, and Drew had again fastened himself in the shop, and let down the window, Quinby came to the window with a club, brandishing it in defiance; that he called one of the people a rascal, for pretending to be his friend, when he came to assist in taking him; and that Quinby or Drew said, Carry oft" your dead officer.” And the same William Babb, Jun., who was in the shop, when the * deceased forced open [ * 399 ] the door, testified that when the door was opened for himself, Quinby was standing within two feet of the door, with the bludgeon in his hand; that after he entered, the door was hasped, and Quinby went to the bellows, and shifting the bludgeon to his other hand, began blowing the bellows ; but he further swore, that when Drew went out of the shop with the sledge, Quinby did not •emove from his place ; that while standing by the bellows, he threw down the bludgeon, which fell between the anvil and the door, and about two feet from the door; that when he threw it down, he said nothing ; and that after Drew went out of the shop, Quinby could not see him, neither when he threw the sledge, nor when Quinby threw down the bludgeon.
    Upon this evidence, the Chief Justice left it to the jury, whether they would presume that Quinby threw the bludgeon towards the door, with the intent to furnish Drew with a deadly weapon, to assault the deceased outside of the shop. If they were satisfied that he threw the bludgeon with that intent, he was equally guilty with Drew, who used it. But if they were not satisfied that the bludgeon was thrown with that intent, Quinby ought to be acquitted. And the jury found him not guilty.
    On the last day of the term, Drew was brought up to receive his sentence, when his counsel moved the Court to delay giving judgment, because they had evidence that Richard King, who was a material witness for the government, had declared before the trial, that he would hang the prisoner by his testimony if he could, of which declaration he had no knowledge until after the trial; and because a Mr. Ingalls, one of the jury, did not agree to find the prisoner guilty of murder, but only of manslaughter; and through mistake of his duty, he believed that he must assent to the verdict of the major part of the jury.
    
      Holmes and Emery for the prisoner Drew.
    
    
      Mellen and Longfellow for Quinby.
    
    
      
       The reporter was favored by the Chief Justice with the report of this case.
    
    
      
       It was remarked by the Chief Justice that there seemed no occasion for two counts in this case, as murder was charged in both, and with a similar instrument and that, on the last count, the Solicitor-General might have given evidence that the deceased was a deputy sheriff in the due execution of his office, to prove that the killing was malicious.
    
   The Court

did not inquire into the truth of these allegations ; observing that if they were proved, they could not avail the prisoner .on any legal principles, by which alone the Court must be bound; and if they supported any equitable claims to favor for the prisoner, he might apply to the supreme executive, who had power [*400] to cause the sentence to be * executed, or who could pardon it absolutely, or on condition, at its discretion.

Judgment of death was then pronounced against the prisoner  