Page images
PDF
EPUB

Stedman's

case.

Tranter and

Reason's case.

ing the aggressor, will reduce the crime to manslaughter, yet it must by no means be understood that the crime will be so extenuated by any trivial provocation which in point of law may amount to an assault; nor in all cases even by a blow. Violent acts of resentment, bearing no proportion to the provocation or insult, are barbarous, proceeding rather from brutal malignity than human frailty: and barbarity will often make malice. (y)

There being an affray in the street, one Stedman, a foot soldier, ran hastily towards the combatants. A woman, seeing him run in that manner, cried out, "You will not murder the man, will you?" Stedman replied, "What is that to you, you bitch?" The woman thereupon gave him a box on the ear, and Stedman struck her on the breast with the pommel of his sword. The woman then fled; and Stedman, pursuing her, stabbed her in the back. It seemed to Holt, C. J. that this was murder, a single box on the ear from a woman not being a sufficient provocation to kill in such a manner, after Stedman had given her a blow in return for the box on the ear; and it was proposed to have the matter found specially but it afterwards appearing, in the progress of the trial, that the woman struck the soldier in the face with an iron patten, and drew a great deal of blood, it was holden clearly to be no more than manslaughter. (z) The smart of the man's wound, and the effusion of blood, might possibly have kept his indignation boiling to the moment of the fact. (a)

The following case is reported. Mr. Lutterel, being arrested for a small debt, prevailed on one of the officers to go with him to his lodgings, while the other was sent to fetch the attorney's bill, in order, as Lutterel pretended, to have the debt and costs paid. Words arose at the lodgings about civility money, which Lutterel refused to give; and he went up stairs, pretending to fetch money for the payment of the debt and costs, leaving the officer below. He soon returned with a brace of loaded pistols in his bosom; which, at the importunity of his servant, he laid down upon the table, saying, "He did not intend to hurt the officers: but he would not be ill used." The officer, who had been sent for the attorney's bill, soon returned to his companion at the lodgings; and words of anger arising, Lutterel struck one of the officers on the face with a walking cane, and drew a little blood. Whereupon both of them fell upon him: one stabbed him in nine places, he all the while on the ground, begging for mercy, and unable to resist them; and one of them fired one of the pistols at him while on the ground, and gave him his death wound. And this is reported to have been holden manslaughter by reason of the first assault with the cane. (b) "This (says Mr. Justice Fos"ter) is the case as reported by Sir John Strange; and an ex"traordinary case it is; that all these circumstances of aggravation, two to one, he helpless and on the ground, begging for mercy, stabbed in nine places, and then dispatched with a 66 pistol; that all these circumstances, plain indications of a deadly

66

66

(y) Per Lord Holt in Keate's case,

Comb. 408.

(z) Stedman's case, Fost. 292. MSS. Tracy and Denton 57. 1 East. P. C.

c. 5. s. 21. p. 234.

(a) Fost. 292.

(b) Rex v. Tranter and Reason, ! Stra. 499.

CHAP. I. § 1.]

Provocation.

"revenge or diabolical fury, should not outweigh a slight stroke

"with a cane." (c)

coercion.

As an assault, though illegal, will not reduce the crime of the Personal reparty killing the person assaulting him to manslaughter, where the straint and revenge is disproportionate and barbarous, much less will such personal restraint and coercion as one man may lawfully use towards another form any ground of extenuation. Two soldiers came at eleven o'clock at night to a publican's, and demanded beer, which he refused, alleging the unseasonableness of the hour, and advised them to go to their quarters; whereupon they went away, uttering imprecations. In an hour and a half afterwards, when the door was opened to let out some company, who had been detained there on business, one of them rushed in, the other remaining without, and renewed his demand for beer; to which the landlord returned the same answer: and on his refusing to depart, and persisting to have some beer, and offering to lay hold of the landlord, the latter at the same instant collared him; the one pushing and the other pulling each other towards the outer door; where when the landlord came he received a violent blow on the head with some sharp instrument from the other soldier, who had remained without, which occasioned his death a few days afterwards. Buller, J. held this to be murder in both, notwithstanding the previous struggle between the landlord and one of them. For the landlord did no more in attempting to put the soldier out of his house at that time of the night, and after the warning he had given him, than he lawfully might; which was no provocation for the cruel revenge taken: more especially as there was reasonable evidence of the prisoners having come the second time with a deliberate intention to use personal violence, in case their demand for beer was not complied with. (d)

If A. stands with an offensive weapon in the doorway of a room wrongfully to prevent J. S. from leaving it, and others from entering, and C. who has right in the room struggles with him to get his weapon from him; upon which D., a comrade of A.'s, stabs C., it will be murder in D. if C. dies. A drummer and private soldier stopped at an inn with a deserter, and were pressed by one Martin to enlist him; and they gave him a shilling for that purpose, but they had no authority to enlist any body. Martin wanted afterwards to go away: but they would not let him, and a crowd collected. The drummer drew his sword, stood in the doorway of the room where they were, and swore he would stab any one who offered to go away. The landlord however got by him; and the landlord's son seized his arm in which the sword was, and was wresting the sword from him, when the private, who had been struggling with Martin, came behind the son, and stabbed him in the back. He was indicted upon the statute 43 G.

(c) Fost. 293. where Mr. J. Foster states many circumstances of the case which the reporter had omitted; and also the direction to the jury, in which the Chief Justice, upon other grounds than the first assault with the cane,

told them it could be no more than
manslaughter. See this case more fully
stated post, Chap. On Manslaughter.

(d) Rex v. Willoughby and another,
Bodmin Sum. Ass. 1791. MS. 1 East.
P. C. c. 5. s. 56. p. 288.

Provocation of

sentment

the instru

ments used.

3.; and it was urged for the prisoner, that the soldiers had a right to enlist Martin, and to detain him; and that if death had ensued, the offence would not have been murder: but, upon the point being saved, the Judges were all of a contrary opinion; and the conviction was held right. (y)

In cases of provocation of a slighter kind, not amounting to an a slighter kind assault, as the ground of extenuation would be that the act of re -mode of re- sentment, which has unhappily proved fatal, did not proceed from and nature of malice, or a spirit of revenge, but was intended merely for correction; so the material inquiry will be, whether malice must be inferred from the sort of punishment inflicted, from the nature of the instrument used, and from the manner of the chastisement. (e) For if on any sudden provocation of a slight nature one person beat another in a cruel and unusual manner, so that he dies, it is murder by express malice; though the person so beating the other did not intend to kill him. (ƒ)

Thus the case which has been before mentioned where, upon a chiding between husband and wife, the husband struck his wife with a pestle, (g) proceeded upon the ground of the pestle being an instrument likely to endanger life. (h) And it is probable that the doubt which was felt by some of the Judges in a case where a man, upon being called by a woman a son of a whore, took up a broom staff and threw it at her, and killed her, (i) arose from the consideration that the instrument was not such as was likely, when thrown from the given distance, to have occasioned death, or great bodily harm. (k)

And in order to negative malice, in a case where death has ensued from a blow not likely to have produced death, or mortal disease, all circumstances of aggravation, (though not sufficient to warrant giving a deadly blow) will be material. One Freeman, a soldier, was in a public-house drinking, and asked a girl who was sitting there to drink with him: upon which one Ann Simpson, with whom he had cohabited, seized his pot, abused him very much, and threw down his beer. Freeman then caught the pot from her, and struck her twice on the head with it: the blood gushed out, and she was taken to an hospital, where the wound was examined, and did not appear dangerous, being about a quarter of an inch deep; but it produced an erisypelas, which caused an inflammation of the brain, and the woman died. The witness, who saw the blows, did not think the prisoner intended to do the woman any grievous bodily harm. Gibbs, C. B. told the jury, that if the disease which caused the death originated from the wound, it was the same as if the wound had caused the death; that the primary cause was to be considered; that the aggravation, though not constituting a provocation which would extenuate the giving a deadly blow, would palliate the giving a moderate blow; and he left it to the jury whether those blows were such as

(y) Rex v. Longden, East. T. 1812. MS. Bayley, J., and Russ. and Ry.

228.

(e) 1 East. P. C. c. 5. s. 22. p. 235. and s. 23. p. 238, 9.

(f) 4 Blac. Com. 199.
(g) Ante, 435.

(h) 1 East. P. C. c. 5. s. 22. p. 235.
(i) Ante, 435.

(k) 1 East. P. C. c. 5. s. 22. p. 236.

CHAP. I. § 1.]

Provocation.

were likely to be followed by death, or by a disease likely to terminate in death. The jury thought that the blows were not of this kind, and the prisoner was found guilty of manslaughter only. (a)

66

[ocr errors]

66

66

The nature of the instrument used has been much considered in Rowley's case. the following case. The prisoner's son fought with another boy, and was beaten; he ran home to his father all bloody; who presently took a cudgel, ran three quarters of a mile, and struck the other boy upon the head, upon which he died. (1) This was ruled manslaughter, because done in sudden heat and passion: but upon this case Mr. Justice Foster makes the following remarks. (m) "Surely the provocation was not very grievous. The boy had "fought with one who happened to be an over-match for him, and was worsted; a disaster slight enough, and very frequent among "boys. If upon this provocation the father, after running three quarters of a mile, had set his strength against the child, had dispatched him with a hedge stake, or any other deadly weapon, or by repeated blows with his cudgel, it must, in my opinion, "have been murder; since any of these circumstances would "have been a plain indication of malice: but with regard to these "circumstances, with what weapon, or to what degree, the child "was beaten, Coke is totally silent. But Croke (n) setteth the case in a much clearer light, and at the same time leadeth his "readers into the true grounds of the judgment. His words are, "Rowley struck the child with a small cudgel, of which stroke "he afterwards died.' I think it may be fairly collected from "Croke's manner of speaking, and Godbolt's report, (o) that the "accident happened by a single stroke with a cudgel not likely to destroy, and that death did not immediately ensue. The stroke "was given in heat of blood, and not with any of the circum"stances which import malice, and therefore manslaughter. I "observe, that Lord Raymond layeth great stress on this cir"cumstance: that the stroke was with a cudgel, not likely to " kill." (p)

66

In a case where upon a special verdict it was found that the Hazel's case. prisoner, having employed her daughter-in-law, a child of ten years old, to reel some yarn, and finding some of the skains knotted, threw at the child a four-legged stool, which struck her on the right side of the head on the temple, and caused her death soon after the blow so given; and it was also found that the stool was of sufficient size and weight to give a mortal blow, but that the prisoner did not intend, at the time she threw the stool, to kill. the child; the matter was considered as of great difficulty, and no opinion was ever delivered by the Judges. (g) The doubt appears to have been principally upon the question, whether the instru-

[merged small][ocr errors]

beating." Fost. 294.
(m) Fost. 294.

(n) Cro. Jac. 296.

(0) Godb. 182. It is there said to have been "a rod," meaning probably a small wand.

(p) 2 Lord Raymond, 1498. Ante, note (1).

(q) Hazel's case, 1 Leach 368.

Result of the

cases upon this subject.

Provocation

no defence

where express malice.

Mason's case.

express malice.

ment was such as would probably, at the given distance, have occasioned death or great bodily harm. (r)

Where A. finding a trespasser upon his land, in the first transport of his passion, beat him and killed him, and it was holden to be manslaughter, (s) it must be understood that he beat the trespasser, not with a mischievous intention, but merely to chastise him, and to deter him from a future commission of such a trespass. For if A. had knocked his brains out with a bill or hedge stake, or had killed him by an outrageous beating with an ordinary cudgel, beyond the bounds of a sudden resentment, it would have been murder; these circumstances being some of the genuine symptoms of the mala mens, the heart bent upon mischief, which enter into the true notion of malice in the legal sense of the word. (t)

It seems, therefore, that it may be laid down, that, in all cases of slight provocation, if it may be reasonably collected from the weapon made use of, or from any other circumstance, that the party intended to kill, or to do some great bodily harm, such homicide will be murder. Accordingly, where a parker, finding a boy stealing wood in his master's ground, bound him to his horse's tail and beat him, and the horse taking fright, and running away, the boy was dragged on the ground till his shoulder was broken, whereof he died; it was ruled murder: for it was not only an illegal, but a deliberate and dangerous act; the correction was excessive, and savoured of cruelty. (u)

It should be further remembered, upon the grounds which have been before mentioned, (w) that the plea of provocation will not avail where there is evidence of express malice. In such case not even previous blows or struggling will extenuate homicide.

Richard Mason was indicted for the wilful murder of William Deliberate and Mason his brother, and convicted: but execution was respited, to take the opinion of the Judges upon a doubt, whether, upon the circumstances given in evidence, the crime amounted to murder or manslaughter. The prisoner, with the deceased and another brother, and some neighbours, was drinking in a friendly manner at a public house; till growing warm in liquor, but not intoxicated, the prisoner and the deceased began in idle sport to pull and push each other about the room. They then wrestled; one fell, and soon afterwards they played at cudgels by agreement. All this time no token of anger appeared on either side, till the prisoner in the cudgel-play gave the deceased a smart blow on the temple. The deceased thereupon grew angry; and throwing away his cudgel, closed in with the prisoner, and they fought a short space in good earnest: but the company interposing, they were soon parted. The prisoner then quitted the room in anger; and when he got into the street, was heard to say, "Damnation seize me if I do not fetch something and stick him." And being reproved for using such expressions, he answered, "I'll be damned to all

(r) 1 East. P. C. c. 5. s. 22. p. 236.
(s) 1 Hale 473.

(1) Fost. 291.

(u) Halloway's case, Cro. Car. 131.

Palm. 545. 1 Hawk. P. C. c. 39. s. 42..
W. Jones 198. 1 Hale 453. Kel. 127.
1 East. P. C. c. 5. s. 22. p. 237.
(w) Ante, 423.

« EelmineJätka »