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SEC. I.

Cases of Provocation. 1

Whenever death ensues from the sudden transport of passion, or heat of blood upon a reasonable provocation, and without malice, it is considered as solely imputable to human infirmity; and the offence will be manslaughter. (j) It should be remembered that the person sheltering himself under this plea of provocation must make out the circumstances of alleviation to the satisfaction of the Court and jury, unless they arise out of the evidence produced against him; as the presumption of law deems all homicide to be malicious, until the contrary is proved. (k)

We have already seen, ante, p. 38, what provocation will free the party killing from the crime of murder and reduce the offence to manslaughter.

SEC. II.

Cases of Mutual Combat.

Instances of mutual combat, in which, from the deliberate conduct of the parties, from some undue advantage taken by the party killing, or from the violent conduct which the party killing pursued in the first instance, the conclusion of malice has been drawn, and the killing has consequently amounted to murder, have been shewn in the preceding chapter. (1) We have also considered those cases where, upon words of reproach, or any other sudden provocation, the parties come to blows, and a combat ensues, no undue advantage being sought or taken on either side, and have shewn that if death happen under such circumstances, the offence of the party killing will amount only to manslaughter. (m)

SEC. III.

Cases of Resistance to Officers of Justice; to Persons acting in their Aid; and to Private Persons lawfully interfering to apprehend Felons, or to prevent a Breach of the Peace.

It has been before mentioned as a general rule, that where persons having authority to arrest or imprison, and using the proper means for that purpose, are resisted in so doing, and killed, it will be

(j) 1 Hale, 466. 1 Hawk. P. C. c. 30. Fost. 290. 4 Blac. Com. 191. 1 East, P. C. c. 5, s. 19, p. 232.

(k) Ante, p. 2.

(1) Ante, p. 47, et seq.
(m) Fost. 295.

AMERICAN NOTE.

1 See Ex parte Moon, 30 Ind. 197; P. v. Sanchez, 24 Cal. 17; S. v. Decklotts, 19 Iowa, 447; Perry v. S., 43 Ala. 21; Maria v.

S., 28 Tex. 698; S. v. Anderson, 4 Mo. 265; S. v. Massage, 65 N. C. 480; Colton v. S., 31 Miss. 504; U. S. v. Mingo, 2 Curt. C. C. 1.

murder in all who take part in such resistance. (n) But this protection of the law is extended only to persons who have proper authority, and who use that authority in a proper manner; (o) wherefore questions of nicety and difficulty have frequently arisen upon the points of authority, legality of process, notice, and regularity of proceeding. The consequence of defects in any of these particulars, as we have seen ante, is in general that the offence of killing the person resisted, is extenuated to manslaughter.

SEC. IV.

Cases where the Killing takes place in the Prosecution of some Criminal, Unlawful, or Wanton Act.

It has been shewn, that where from an action, unlawful in itself, done deliberately, and with mischievous intention, death ensues, though against or beside the original intention of the party, it will be murder: (p) and it may be here observed, that if such deliberation and mischievous intention does not appear, (which is matter of fact, and to be collected from circumstances,) and the act was done heedlessly and incautiously, it will be manslaughter. (9)

Where an injury, intended against one person, mortally affects another, as where a blow aimed at one person lights upon another and kills him, the inquiry will be whether, if the blow had killed the person against whom it was aimed, the offence would have been murder or manslaughter. For if a blow, intended against A., and lighting on B., arose from a sudden transport of passion, which, in case A. had died by it, would have reduced the offence to manslaughter, the fact will admit of the same alleviation, if it shall have caused the death of B. (r)

There are many acts so heedless and incautious as necessarily to be deemed unlawful and wanton, though there may not be any express intent to do mischief: and the party committing them, and causing death by such conduct, will be guilty of manslaughter. As if a person, breaking an unruly horse, ride him amongst a crowd of people, and death ensues from the viciousness of the animal, and it appear clearly to have been done heedlessly and incautiously only, and not with an intent to do mischief, the crime will be manslaughter. (s) But it is said, that in such a case it would be murder if the rider had intended to divert himself with the fright of the crowd. (t) And if a man, knowing that people are passing along the streets, throw a stone or shoot an arrow over a house or wall, and a person be thereby killed, this will be manslaughter, though there were no intention to do hurt to any one, because the act itself was unlawful. (u) So where a gentleman came to town in a chaise, and,

(n) Ante, p. 70.

(0) Fost. 319.

(p) Ante, p. 121, et seq.

(q) Fost. 261.

(r) Fost. 262.

s. 9.

(s) 1 East, P. C. c. 5, s. 18, p. 231.
(t) 1 Hawk. P. C. c. 31, s. 68.

(u) 1 Hale, 475. 1 Hawk. P. C. c. 29,

before he got out of it, fired his pistols in the street, which, by accident, killed a woman, it was ruled manslaughter; for the act was likely to breed danger, and manifestly improper. (v)

A party who causes the death of a child by giving it spirituous liquors, in a quantity quite unfit for its tender age, is guilty of manslaughter. (w)

Where an indictment for manslaughter stated that the three prisoners gave, administered, and delivered to M. A. divers large and excessive quantities of wine and porter, and induced, procured, and persuaded M. A. to take, drink, and swallow the said quantities of spirituous liquors; the same being likely to cause and procure his death, and which the prisoners then and there well knew; and that M. A., by means of the said inducement, procurement, and persuasion took, drank, and swallowed the said large quantities of spirituous liquors; by means whereof he became greatly drunk, &c., and while he was so drunk as aforesaid, the prisoners made an assault on him and forced and compelled him to go, and put, placed, and confined him in a cabriolet, and drove and carried him about therein for a long time, and thereby shook, threw, pulled, and knocked about M. A., by means whereof M. A. became mortally sick; of which said large quantities of spirituous liquors, and of the drunkenness occasioned thereby, and of the said shaking, &c., and the sickness occasioned thereby, M. A. died; it appeared that the deceased was in possession of the goods of one of the prisoners under a warrant from the sheriff, and the three prisoners plied him with drink, themselves drinking freely also, and when he was very drunk, put him into a cabriolet, and caused him to be driven about the streets, and about two hours after he was put in the cabriolet he was found dead. Parke, B., after directing the jury to dismiss from their consideration that part of the indictment which alleged that the prisoners knew that the quantity of liquor taken was likely to cause death, of which there did not appear to be any evidence, and which, if proved, would make the offence approach to murder, told the jury that if they were of opinion that the prisoners put the deceased in the cabriolet, then the questions would be: first, whether they or any of them were guilty of administering or procuring the deceased to take large quantities of liquor for an unlawful purpose; or, whether, when he had taken it, they put him into the cabriolet for an unlawful purpose. If they thought that the three prisoners, or one of them, made him excessively drunk, to enable the prisoner, whose goods were seized, to prevent the completion of the execution; or if they were satisfied that the object of the prisoners, or any of them, was otherwise unlawful, and that the death of the deceased was caused in carrying their unlawful object into effect, they must be found guilty. The simple fact of persons getting together to drink, (w) R. v. Martin, 3 C. & P. 211.1

(v) Burton's case, 1 Str. 481.

AMERICAN NOTE.

1 And see Ann v. S., 11 Humph. 159, where a slave contrary to orders gave a child laudanum with intent to produce a harmless

sleep- held manslaughter; see also Sarah v. S., 28 Missis. 267; 61 Am. D. 544.

or one pressing another to do so, was not an unlawful act; or, if death ensued, an offence that could be construed into manslaughter. Upon the first question stated, it would be essential to make out that the prisoners administered the liquor with the intention of making the deceased drunk, and then getting him out of the house; and if that were doubtful, still if, when he was drunk, they removed him into the cabriolet with the intention of preventing his returning, and death was the result of such removal, the act was unlawful, and the case would be a case of manslaughter. If, however, they all got drunk together, and afterwards he was put into the cabriolet with an intention that he should take a drive only, that was not an unlawful object, such as had been described, and the prisoners would be entitled to an acquittal. And to a question put by the jury, the learned. Baron answered, that if the prisoners, when the deceased was drunk, drove him about in the cab, in order to keep him out of possession, and by so doing accelerated his death, it would be manslaughter. (x) If death ensues from an act which is a mere trespass the offence will be only manslaughter, not murder.

Where a carman was in the front part of a cart loading it with sacks of potatoes, and a boy pulled the trapstick out of the front of the cart, but not with intent to do the man any harm, as he had seen it done several times before by others; and in consequence of the trapstick having been taken out, the cart tilted up, and the deceased was thrown out on his back on the stones, and the potatoes were shot out of the sacks, and fell on and covered him over, and he died in consequence of the injuries then received, it was held that the boy was guilty of manslaughter. (y) So where an indictment for manslaughter alleged that the prisoners in and upon one L. H. did make an assault, and that L. H. then lying in a certain cart containing divers bags of nails of great weight, the prisoners did with their hands force up the shafts of the said cart, and throw down the body of the said cart in which L. H. was so as aforesaid lying, and him the said L. H. by such forcing up of the shafts and throwing down of the body of the said cart as aforesaid, did cast and throw upon the ground under the said bags of nails; by means whereof the said bags of nails were thrown and forced against over and upon the breast of L. H., L. H. then being upon the ground, and the said bags of nails then and there did press and lie upon the breast of L. H., thereby giving, &c., and it was urged that this indictment was bad, as it did not allege that the prisoners knew that the deceased was in the cart; Taunton, J., held that it was not necessary to allege such knowledge, as malice was not an ingredient in the crime. (z)

On an indictment for manslaughter, it appeared that the deceased, having deposited a gun with the prisoner for a loan of money, called at the prisoner's house when he was absent, and took the gun away without repaying the loan. When the prisoner found the gun was gone he went after the deceased, and demanded it back. The deceased refused to comply, and the prisoner thereupon endeavoured to wrest it from him. The deceased said that the gun was loaded;

(x) R. v. Packard, C. & M. 236.

(z) R. v. Lear and Kempson, Stafford

(y) R. v. Sullivan, 7 C. & P. 641. Gur- Spring Assizes, 1832. MSS. C. S. G. ney, B., and Williams, J.

the prisoner, however, persisted in his attempt to take it away, and after a violent struggle succeeded in doing so; but, falling on the ground as he was in the act of wrenching the gun away, the gun went off accidentally, and killed the deceased. Lord Campbell, C. J., told the jury that, though the prisoner had a right to the possession of the gun, to take it away from the deceased by force was unlawful; and that, as the discharge of the gun was the result of this unlawful act, it was their duty to find the prisoner guilty of manslaughter. (a)

On an indictment for manslaughter, a statement of the prisoner was proved as follows: 'As I was going home about four o'clock this afternoon I heard the report of a gun. Shortly afterwards I saw the deceased with a gun, and I went to him to take his gun from him. We had a scuffle together for about ten minutes, and there were blows exchanged on both sides; the deceased struck me, and knocked me down with his gun; at the same time the gun went off, and shot the deceased. I was insensible for a short time, and when I came round found the deceased was dead, and had the barrel of the gun in his hand.' The prisoner was a game-keeper of a gentleman who had permission by parol to shoot over the land where this transaction took place. It was contended that, admitting the prisoner had no right to take the gun away, and that he was guilty of an assault in attempting to do so, the death was not the result of that assault, but of the excess of violence of the deceased himself. Lord Campbell, C. J., told the jury that the case was one of manslaughter. The struggle between the prisoner and the deceased was to be considered as one continuous illegal act on the part of the prisoner, and death resulting from that act. (b)

Where a defendant kept a gun loaded with printing types, in consequence of several robberies having been committed in the neighbourhood, and sent a mulatto girl, his servant, of the age of about thirteen, for the gun, desiring the person in whose house he lodged to take the priming out; which he did, and told the girl so, and delivered the gun to her, and she put it down in the kitchen, resting on the butt, and soon afterwards took it up again, and presented it, in play, at the plaintiff's son, a young boy, saying she would shoot him, and drew the trigger, and the gun went off, and wounded the boy; it was held that the defendant was liable to

(a) R. v. Archer, 1 F. & F. 351. As no more violence appears to have been used than was necessary to obtain possession of the gun, this case cannot be considered as rightly decided after Blades v. Higgs, 10 C. B. (N. S.) 713.

(b) R. v. Wesley, 1 F. & F. 528. Lord Campbell refused to reserve the point; and yet it seems well deserving of better consider ation. If the prisoner had died from the excess of violence inflicted by the deceased, it cannot be doubted that the deceased would have been guilty of manslaughter, and it is not a little startling to hold that that excess of violence which caused the gun to explode is to make the prisoner guilty of manslaughter. Suppose the deceased had pulled

the trigger intending to shoot the prisoner, and in the struggle he had shot himself instead, it would be startling to hold the prisoner guilty of manslaughter. The reason why an excess of violence is punished is, that it is not in point of law attributable to the assault committed, but to the wrongful act of the party assaulted, and to hold the party assaulting guilty of the result of an excess of violence is to hold him guilty of the consequence of an act, of which the law not only holds him not to be guilty, but holds the other party to be guilty, or, to put it in still simpler terms, to hold him responsible for an act which the law holds not to be his act at all, but to be wholly the act of another person. C. S. G.

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