nor in all cases even by a blow. (i) 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.(k)1

If a person kill another under the influence of provocation occasioned by a blow, accompanied by very aggravating language, if the blow were by itself insufficient to reduce the crime to manslaughter, possibly the aggravating language may be taken into consideration together with the blow, and amount to such a provocation as will reduce the offence to manslaughter. Upon an indictment for murder it appeared that upon the evening before the death the prisoner and the deceased had been quarrelling, and that the deceased had used very aggravating language, as well as very indecent and insulting gestures to the prisoner. The deceased was found dead the next morning with a wound in the throat, which had caused her death, and had been inflicted by some sharp instrument, such as a razor. Within a short distance of the deceased there was lying a sweeping-brush in such a position that it might be supposed to have fallen from the hand of the deceased, supposing that a scuffle had taken place before the fatal wound had been inflicted. Pollock, C. B., in summing up said, "It is true that no provocation by words only will reduce the crime of murder to that of manslaughter; but it is equally true that every provocation by blows will not have this effect, particularly when, as in this case, the prisoner appears to have resented the blow by using a weapon calculated to cause death. Still, however, if there be a provocation by blows, which would not of itself render the killing manslaughter, but it be accompanied by such provocation by means of words and gestures as would be calculated to produce a degree of exasperation equal to that which would be produced by a violent blow, I am not prepared to say that the law will not regard these circumstances as reducing the crime to that of manslaughter only."(1)

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, 66 What is that to you, you bitch?" The woman thereupon gave him a box on the ear, and Stedman

(i) See Rex v. Lynch, 5 C. & P. 324 (24 E. C. L. R.), per Lord Tenterden, C. J., post, p. 726.

(k) Per Lord Holt in Keate's case, Comb. 408.

(1) Reg. v. Sherwood, 1 C. & K. 556 (47 E. C. L. R.).

1 A. seeks B. and threatens his life; they meet; a quarrel ensues; B. strikes A. with his fist; they separate; A. attempts to arm himself with a stick, which he is unable to do; again stoops to raise another stick or billet of wood of a dangerous kind; whilst stooping B. stabs him. Held that this was not murder, but manslaughter: Allen v. State, 5 Yerg. 453. Where, on a trial of an indictment for murder, the facts proved show, on the part of the prisoner, a deep and settled hatred towards the deceased, mixed up with a recent combat, the difficulty is to assign the homicide to its proper cause, to decide whether it was committed under the sole influence of passion justly excited, or whether it was the carrying into effect of a settled and deliberate purpose. In such case there is no rule, and can be none, other than that the jury must draw their conclusions from all the facts of the case, relying upon legal presumptions, so far as these are applicable to the case: State v. Ford, 1 Spears 146. An assault is in general such provocation, as if the party striking is struck again and death ensue, it is only manslaughter. In determining, however, whether the killing upon provocation amounts to murder or manslaughter, the instrument with which the homicide was effected must be taken into consideration. If it were effected with a deadly weapon, the provocation must be great indeed to extenuate the offence to manslaughter: if with a weapon or other means not likely or intended to produce death, a less degree of provocation will be sufficient. The mode of resentment must bear a reasonable proportion to the provocation : Jacob v. State, 3 Humph. 493. The question, whether a weapon is a deadly weapon or not, is one of law for the court; but when it has been left to the jury, as it is for the benefit of the accused, it will not be ground for a new trial: State v. Collins, 8 Ired. 407.

When it was proved, on a trial for murder, that the deceased and the prisoner were quarreling, and as the prisoner approached the deceased he pitched over his head a chair without touching him and with no apparent intention so to do, it was held, that this was no provocation, as nothing less than an actual assault or battery, or an attempt to assault, within striking distance, is a legal provocation to reduce murder to manslaughter: State v. Barfield, Ibid. 344.

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 [*714 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.(m) 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.(n)

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.(o) "This (says Mr. J. Foster) is the case as reported by Sir John Strange; and an extraordinary 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 despatched with a pistol; that all these circumstances, plain indications of a deadly revenge or diabolical fury, should not outweigh a slight stroke with a cane."(p)

If two persons fight, and one overpower the other, and knock him down, and then strangle him with a rope, this is murder. Upon an indictment for murder by strangling, it appeared that the prisoner had said, "We quarrelled about some money I had won from him; he wanted it back, and I would not give it to him; he struck me, and I knocked him down; he got up, and I knocked him down again, and kicked him, and then I put a rope round his neck, and dragged him into the ditch." Patteson, J., said to the jury, "if you even believe the prisoner's statement, that will not prevent the crime from being murder, and reduce it to manslaughter. If two persons fight, and one of them overpowers the other, and knocks him down, and then puts a rope round his neck, *and strangles him, that is murder. The act is so wilful and deliberate that nothing can justify it."(q) [*715 As an assault, though illegal, will not reduce the crime of the party killing the person assaulting him to manslaughter, where the 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 (m) Stedman's case, Fost. 292; MS., Tracy and Denton, 57; 1 East P. C. c. 5, s. 21, p. 234. (n) Fost. 292.

(0) Rex v. Tranter, 1 Stra. 49.

(p) 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.

(7) Rex v. Shaw, 6 C. & P. 372 (25 E. C. L. R.), Patteson, J.

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.(r)

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 a 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 anybody. 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. 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 *716] the point being saved, the Judges were all of a contrary opinion.(s)

In cases of provocation of a slighter kind, not amounting to an assault, as the ground of extenuation would be that the act of resentment, which has unhappily proved fatal, did not proceed from 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, or from the manner of the chastisement.(t) 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.(u)

Thus the case which had been before mentioned, where, upon a chiding between husband and wife, the husband struck his wife with a pestle, (v) proceeded upon the ground of the pestle being an instrument likely to endanger life.(w) 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 broomstaff and threw it at her, and killed her,(x) 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.(y)

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.1 One

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

(8) Rex v. Longden, MS., Bailey, J., and R. & R. 228. (t) 1 East P. C. c. 5, s. 22, p. 235, and s. 23, p. 238, 9.

(u) 4 Blac. Com. 199.

(w) 1 East P. C. c. 5, s. 22, p. 235. (y) 1 East P. C. c. 5, s. 22, p. 236.

(v) Ante, p. 712.
(x) Ante, p. 712.

1 Malice is presumed from the use of a deadly weapon: State v. Decklotts, 19 Iowa 447 ; State v. Shippey, 10 Minn. 223; Smith v. Comm., 1 Duvall 224; Woodsides v. State, Plow. 656; Head v. State, 44 Miss. 731; Evans v. State, Ibid. 762; State v. Gillick, 7 Clarke 287; but not conclusively so: State v. Newton, 4 Nev. 410. See also Alford e.

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 the 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 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.(z)

The nature of the instrument used has been much considered in *the [*717 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.(a) This was ruled manslaughter, because done in a sudden heat and passion; but upon this case Mr. J. Foster makes the following remarks:(b) “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 threequarters of a mile, had set his strength against the child, had despatched 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() sets the case in a much clearer light, and at the same time leads 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,(d) 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 circumstances which import malice, and therefore manslaughter. I observe that Lord Raymond lays great stress on this circumstance: that the stroke was with a cudgel, not likely to kill.” (e)1

(z) Rex v. Freeman, O. B. Jan. 1814, S., Bayley, J.

(a) Rowley's case, 12 Rep. 87; s. c., 1 Hale 453, in which report the words are, "and strikes C that he dies." Mr. J. Foster, in citing the case, says, that the father, after running three-quarters of a mile, beats the other boy, "who dieth of this beating:" Fost. 294.

(b) Fost. 294.

(c) Cro. Jac. 296.

(d) Godb. 182. It is there said to have been a "rod,” meaning probably a small wand. (e) 2 Lord Raym. 1498. Ante, note (a).

State, 33 Geo. 303; Clem v. State, 31 Ind. 480; Murphy v. State, Ibid. 511; Bradley v. State, Ibid. 492; Donnellan v. Comm., 7 Buck 676; Hill v. State, 41 Geo. 484; State v. Ward, 5 Harring. 496; State v. West, 6 Jones (Law) 505; Comm. v. Braugham, 6 Buck

387.

Whether, on the trial of an indictment for homicide, the weapon, alleged to have been used, is a deadly weapon or not, is a question for the court, not for the jury: State v. Collins, 8 Ired. 407. Whether an instrument by which death is occasioned, if it be in fact as described by the testimony, be one by which death may or may not be probably caused, is a question of general reason, and therefore proper for the court; and if it be doubtful whether it would probably cause death, the court should direct a conviction for manslaughter only: State v. Craton, 6 Ired. 164. And see State v. Ostrander, 18 Iowa 435; State v. Dineen, 10 Minn. 407; Flournoy v. State, 16 Texas 31.

A father is informed on the evening of one day that his son, a small boy, has been wantonly whipped by a man. He meets the man on the evening of the next day, and then

Where upon a special verdict it was found that the prisoner, having employed her daughter-at-law, a child of ten years old, to reel some yarn, and finding some of the skeins knotted threw at a 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 the stool was of sufficient size and weight to give a mortal blow, but 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.) The doubt appears to have been principally upon the question, whether the instrument was such as would probably, at the given distance, have occasioned death or great bodily harm.(g)

1

Where A finding a trespasser upon his land, in the first transport of his passion, beat him and unluckily killed him, and it was holden to be manslaughter,(h) 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 *718] 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.() Moir having been greatly annoyed by persons trespassing upon his farm, repeatedly gave notice that he would shoot any one who did so, and at length discharged a pistol at a person who was trespassing, and wounded him in the thigh, which led to erysipelas, and the man died: he was convicted of murder, and executed.(k)

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 savored of cruelty.()

It should be furthered remembered, upon the grounds which have been before mentioned,(m) that the plea of provocation will not avail where there is evidence of

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

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

(h) 1 Hale 473.

(i) 1 Fost. 291.

(k) Moir's case, Rosc. Cr. E. 717, Lord Tenterden, C. J. See this case as stated in Rex v. Price, 7 C. & P. 178 (32 E. C. L. R.). Moir had gone home to fetch his pistols after be found the deceased trespassing, and the deceased persisted in trespassing, and some angry words passed before the pistol was discharged.

(7) 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.

(m) Ante, p. 669.

with his fists and feet beats and stamps him, whilst he is unresisting, with so much violence that the man dies from the effects of the beating on the next night. This is murder: M'Whirt's case, 3 Gratt. 594.

1 That a trespass is not sufficient provocation to reduce the killing to manslaughter. See Comm. v. Drew, 4 Mass. 391; State v. Morgan, 3 Ired. 186; Noles v. State, 26 Ala. 31; People v. Divine, 1 Edm. S. C. 594; State v. M'Donald, 4 Jones (Law) 19; Lyon v. State, 22 Geo. 399; People v. Norton, 4 Mich. 67; Harrison v. State, 24 Ala. 67; State v. Brandon, 8 Jones (Law) 463; State v. Skippey, 10 Minn. 223.

What a man may not do directly, he may not do indirectly. A man may not therefore place instruments of destruction for the protection of his property, when he would not be authorized to take life with his own hands for its protection: State v. Moon, 31 Conn. 477. A man has a right to order another to leave his house, but he has no right to put him out by force until gentle means fail; and if he attempts to use violence in the outset, and is slain, it will not be murder in the slayer, if there is no previous malice: M·Coy г. State, 3 Engl. 451.