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the original design, the wife or servant will be guilty of petit treason. (3) And if a wife or servant intending to poison or kill a stranger, the wife by mistake poison or kill her husband, or the servant his master, this, which would have been murder if it had taken effect against the stranger, becomes petit treason in the death of the husband or master. (a)

The same rule holds throughout, mutatis mutandis, for an in

ferior clergyman in relation to his superior. (b) of the judg- The judgment in petit treason is, that the criminal be drawn ment and exe- (on a hurdle), and hanged until dead. (c) It was formerly difcution.

ferent in the case of women, who were adjudged to be drawn and burned: but this was altered by the statute 30 G. 3. c. 48. by which they are subjected to the same judgment in all respects as men, and particularly with respect to the provisions of the statute 25 G. 2. c. 37. And it has been resolved by the Judges that the judgment for dissecting and anatomizing, and touching the time of execution, ought to be pronounced in cases of petit treason, though murder only is mentioned in the statute, and in that case too that the time of execution should be part of the judgment. (d)

(-) 1 Hale 379. (Dy. 128 a.) i East. afterwards the head shall be serered P. C. c. 5. s. 102. p. 338.

from the body, and the body be di(a) 1 Hale 379. Plowd. Com. 475 b. vided into four quarters. (0) i East. P. C. c. 5. s. 102. p. 338. (d) 1 East. P. C. c. 5. s. 136. p. 372.,

(C) The sentence in high treason is and the case of Swan and Jefferys, id. made siinilar to this by a late statute, p. 373. 54 G. 3. c. 146. with the addition that

CHAPTER THE THIRD.

OF MANSLAUGHTER.

of accessories.

In this species of homicide, malice, which has been shewn (a) to be the main ingredient and characteristic of murder, is considered to be wanting ; and though manslaughter is in its degree felonious, yet it is imputed by the benignity of the law to human infirmity; to infirmity which, though in the eye of the law criminal, is considered as incident to the frailty of the human constitution. (6) The punishment appointed for it is proportionably lenient; as (with the exception only of one sort of manslaughter, which by the statute 1 Jac. 1. c. 8. commonly called the statute of stabbing, is made a capital crime,) the offender is admitted to the benefit of clergy.

In order to make an abettor to a manslaughter a principal in Of aiders and the felony, he must be present aiding and abetting the fact com- abettors, and mitted. (c) But there cannot be any accessories before the fact in manslaughter, because it is presumed to be altogether sudden, and without premeditation. (d) Thus, if the indictment be for murder against A., and that B. and C. were counselling and abetting as accessories before only, (and not as present aiding and abetting, for such are principals,) if A. be found guilty only of manslaughter, and acquitted of murder, the accessories before will be thereby discharged. (e) There may, however, be accessories after the fact in manslaughter. (f)

The several instances of manslaughter may be considered in the following order :

I. Cases of provocation.
II, Cases within the statute of stabbing,-1 Jac. 1. c. 8.
III. Cases of mutual combat.
IV. 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.

(a) Ante, 421, et sequ.

(e) i Hale 437, 450. (6) Fost. 290. I Hale 466.

(f) i Hale 450. 1 East. P. C. c. 5. (c) I Hale 438, 439, and see ante, s. 123. p. 353. This seeins to have 431, et sequ. as to what will be a pre- been doubted before the statute l'Ann. sence, aiding and abetting.

stat. 2. c.9. 8. 1. (2 Hawk. P. C. c. 29. (d) 1 Hale 437. 1 Hawk. P. C. c. s. 24): but the effect of that statute 30. s. 2.

seems to have removed the doubt.

V. Cases where the killing takes place in the prosecution of

some other criminal, unlawful, or wanton act. VI. Cases where the killing takes place in consequence of some

lawful act being criminally or improperly performed, or of some act performed without lawful authority.

SECT. I.

Cases of Provocation.

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Whenever death ensues from 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. (9) 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. (h)

It has been shewn that the most grievous words of reproach, contemptuous and insulting actions or gestures, or trespasses against lands or goods, will not free the party killing froin the guilt of murder, if upon such provocation a deadly weapon was made use of, or an intention to kill, or to do some great bodily harm, was otherwise manifested. (i) But if no such weapon be used, or intention manifested, and the party so provoked give the other a box on the ear, or strike him with a stick or other weapon not likely to kill, and kill him unluckily and against his intention, it will be only manslaughter. (K)

It is, indeed, said to have been held in one case that words of menace of bodily harm are a sufficient provocation to reduce the offence of killing to manslaughter :(?) but it has been considered that such words ought, at least, to be accompanied by some act denoting an immediate intention of following them up by an actual assault. (m)

But, though words of slighting, disdain, or contumely, will not of themselves make such a provocation as to lessen the crime into manslaughter; yet, it seems that if A. give indecent language to B., and B. thereupon strike A., but not mortally, and then A. strike B. again, and then B. kill A., that this is but manslaughter. The stroke by A. was deemed a new provocation, and the

(g) i Hale 466. 1 Hawk. P.C. c.
30.

Fost. 290. 4 Blac. Com. 191. 1
East. P.C. c. 5. S. 19. p. 232.

(h) Ante, 422.
(i) Ante, 434, 435.
(k) Fost. 291. 1 East. P. C. c. 5. s.

20. p. 233.

(1) Lord Morley's case, 1 Hale 455. The same case is mentioned in Kel. 55. ; but no such position is there stated.

(m) i East. P. C. c. 5. S. 20. p. 233.

conflict a sudden falling out; and on those grounds the killing was considered as only manslaughter. (n)

Where an assault is made with violence or circumstances of Provocation indignity upon a man's person, as by pulling him by the nose, by assault. and the party so assaulted kills the aggressor, the crime will be reduced to manslaughter, in case it appears that the assault was resented immediately, and the aggressor killed in the heat of blood, the furor brevis occasioned by the provocation. (o) So if A. be passing along the street, and B. meeting him (there being convenient distance between A. and the wall) take the wall of him and justle him, and thereupon A. kill B., it is said that such justling would amount to a provocation, which would make the killing only manslaughter. And again it appears to have been considered that where A. riding on the road, B. whipped the horse of A. out of the track, and then A. alighted and killed B., it was only manslaughter. (p)

But, in the two last cases, it should seem that the first aggression must have been accompanied with circumstances of great violence or insolence; for it is not every trivial provocation which, in point of law, amounts to an assault, that will of course reduce the crime of the party killing to manslaughter. Even a blow will not be considered as sufficient provocation to extenuate in cases where the revenge is disproportioned to the injury, and outrageous and barbarous in its nature : but, where the blow which gave the provocation has been so violent as reasonably to have caused a sudden transport of passion and heat of blood, the killing which ensued has been regarded as the consequence of human infirmity, and entitled to lenient consideration. Thus, where a woman, after some words of abuse on both sides, gave a soldier a box on the ear, which the soldier returned, by striking her on her breast with the pommel of his sword; and the woman then running away, the soldier pursued, and stabbed her in the back with his sword; Holt, C. J. at first considered it to be murder : but, upon its coming out in the progress of the trial, that the woman had struck the soldier with a patten on the face with great force, so that the blood flowed, it was holden clearly to be no more than manslaughter. (9) In this case, the smart of the soldier's wound, and the effusion of blood, might possibly have kept his indignation boiling to the moment of the fact. (r)

Where a man has been injuriously, and without proper authority Provocation restrained of his liberty, the provocation has been considered suf- by restraining ficient to extenuate ; as where a creditor placed a man at the person of his

liberty. chamber door of his debtor, with a sword undrawn, to prevent him from escaping, while a bailiff was sent for to arrest him ; and the debtor stabbed the creditor, who was discoursing with him in the

(n) i Hale 455, where it is said, that East. P. C. c. 5. s. 20. p. 233. this was held to be manslaughter, ac- (p) i Hale 455. Lanure's case. cording to the proverb, 66 the second (9) Stedman's case, Old Bailey, Apr. blow makes the affray;" and Lord 1704, MS. Tracy and Denton, 57. Fost. Hale says, that this was the opinion of 292. 1 East. P. C. c. 5. s. 21. p. 234. bimself and some others.

(r) Fost. 292. See the case more (0) Kel. 135. 4 Blac. Com. 191. 1 fully stated ante, 436.

adulterer.

chamber. (s) And the same doctrine was held in a case where a serjeant in the army laid hold of a fifer, and insisted upon carrying him to prison : the fifer resisted ; and whilst the serjeant had hold of him to force him, he drew the serjeant's sword, plunged it into his body, and killed him. The serjeant had no right to make the arrest, except under the articles of war; and the articles of war were not given in evidence. Buller, J. considered it in two lights: first, if the serjeant had authority; and, secondly, if he had not, on account of the coolness, deliberation, and reflection, with which the stab was given. The jury found the prisoner guilty : but the Judges were unanimous, that the articles of war should have been produced; and, for want thereof, held the conviction

wrong. (1) Provocation Where a man finds another in the act of adultery with his wife, by detecting and kills him in the first transport of passion, he is only guilty of

manslaughter, and that in the lowest degree :(u) for the provocation is grievous, such as the law reasonably concludes cannot be borne in the first transport of passion. But it has been already shewn, that the killing of an adulterer deliberately, and upon re

venge, would be murder. (w) Provocations There are instances, where slight provocations have been conof a slight sidered as extenuating the guilt of homicide, upon the ground, kind, which have been al

that the conduct of the party killing upon such provocations might lowed to ex

fairly be attributed to an intention to chastise, rather than to a tenuate, where cruel and implacable malice. But, in cases of this kind, it must the party killing has not

appear, that the punishment was not urged with brutal violence, acted with cru- nor greatly disproportionate to the offence; and the instrument elty, or used

must not be such as, from its nature, was likely to endanger dangerous in

life. (x) Thus, where A. finding a trespasser on his land, in the first transport of his passion, beat him, and unluckily happened to kill him, it was holden to be manslaughter : but it must be understood, that he beat him, not with a mischievous intention, but merely to chastise for the trespass, and to deter him from committing it again. (y) And of the case of the keeper of a park, who, finding a boy stealing wood in his master's ground, tied him to a horse's tail, and beat him, upon which the horse running away, the boy was killed, (), it is said, that if the chastisement had been more moderate, it had been but manslaughter; for, between persons nearly connected together by civil and natural ties, the law admits the force of a provocation done to one to be felt by the other. (a) And, à fortiori, if the master had himself caught the trespasser, and beat him in such a manner as shewed a desire only to chastise and prevent a repetition of the offence, but had unfor

struments.

(8) Buckner's case, Sty. 467. greater provocation.

(1) Rex v. Withers, Mich. T. 1784. (w) Ante, 442. MS. Bayley, J., and i East. P. C. c. 5. (2) Fost. 291. 4 Blac. Com. 200. S. 20. p. 233. This case is also cited

(y) Post. 291. I Hale 473. Ante, as to a point of evidence in Holt's 440. case, 2 Leach, 594.

(z) Halloway's case, Cro. Car, 131. (u) Manning's case, T. Raym. 212. 1 Hale 453. I Hawk, P. C. c. 31. 1 Ventr. 159. And the court directed S. 42. Fost. 292. Ante, 440. the burning in the hand to be inflicted (a) i East. P. C. c. 5. s. 22. p. 237. gently, because there could not be a

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