Page:1862-63 Territory of Dakota Session Laws.pdf/49

40 ony, shall be murder in the third degree, and shall be punished by imprisonment in the territorial prison not more than fourteen years, nor less than seven years.

Sec. 3. The killing of one human being, by the act, procurement, or omission, of another, in cases where such killing shall not be murder according to the provisions of this chapter, is either justifiable, or excusable homicide, or manslaughter.

Sec. 4. Such homicide is justifiable when committed by public officers and those acting by their command, in their aid and assistance, either in obedience to any judgment of any competent court; or when necessarily committed in overcoming actual resistance to the execution of some legal process, or to the discharge of any other legal duty; or when necessarily committed in retaking felons who have been rescued, or who have escaped; or when necessarily committed in arresting felons fleeing from justice.

Sec. 5. Such homicide is also justifiable when committed by any person in either of the following cases:

1. When resisting any attempt to murder such person, or to commit any felony upon him or her, or upon or in any dwelling house in which such person shall be; or

2. When committed in the lawful defense of such person, or of his or her husband, wife, parent, child, master, mistress, or servant, when there shall be a reasonable ground to apprehend a design to commit a felony, or to do some great personal injury, and there shall be imminent danger of such design being accomplished; or,

3. When necessarily committed in attempting by lawful ways and means to apprehend any person for any felony committed; or lawfully suppressing any riot, or in lawfully, keeping and preserving the peace.

Sec. 6. Such homicide is excusable when committed by accident or misfortune in lawfully correcting a child or servant, or in doing any other lawful act by lawful means, with ordinary caution, and without any unlawful intent.

Sec. 7. Whenever it shall appear to the jury, on the trial of any person for murder, or manslaughter, that the alleged homicide ras committed under circumstances, or in cases where by law such homicide was justifiable or excusable, the jury shall render a verdict of not juilty [sic].