a grievous injury, that is no justification or alleviation of the offence. There is no evidence of any conflict or of any provocation in law. If the prisoner used the sword intending to do a serious injury, that is such evidence of malice as the law holds to be murder. If the deceased rushed upon it, then it was an accident, and he is not guilty. If the wound was inflicted in a struggle without any intention on the part of the prisoner to use it, then there was such a careless use of it as to make him guilty of manslaughter." (xx)

It must be further observed also, that in every case of homicide upon provocation, how great soever that provocation may have been, if there be sufficient time for passion to subside and reason to interpose, such homicide will be murder.(y)1 Therefore, in the case of the most grievous provocation to which a man can be ex*725] posed, that of finding another in the act of adultery with his wife, though it would be but manslaughter if he should kill the adulterer in the first transport of passion, yet if he kill him deliberately, and upon revenge after the fact and sufficient cooling time, it would undoubtedly be murder.(z)"For let it be observed, that in all possible cases, deliberate homicide upon a principle of revenge is murder. No man under the protection of the law is to be the avenger of his own wrongs. If they are of a nature, for which the laws of society will give him any adequate remedy, thither he ought to resort: but be they of what nature soever, he ought to bear his lot with patience, and remember that vengeance be longeth only to the Most High."(a) With respect to the interval of time which shall be allowed for passion to subside, it has been observed that it is much more easy to lay down rules for determining what cases are without the limits, than how far exactly those limits extend. (b) In cases of this kind the immediate object of inquiry is whether the suspension of reason arising from sudden passion continued from the time of the provocation received to the very instant of the mortal stroke given; for if from any circumstance whatever it appear that the party reflected, deliberated, or cooled any time before the fatal stroke given; or if in legal presumption there was time or opportunity for cooling; the killing will amount to murder, as being attributable to malice and revenge, rather than to human frailty.(c) Whether the blood has had time to cool or not is a question for the Court and not for the jury, but it is for the jury to find what length of time elapsed between the provocation received and the act done. (d)

Upon an indictment for murder, it appeared that the prisoner and the deceased, who had been upon terms of intimacy for three or four years, had been drinking together at a public house till about twelve o'clock at night; about one they were together in the street, and had some words, and a scuffle ensued, during which the deceased struck the prisoner in the face with his fist, and gave him a black eye. The prisoner called for the police, and on a policeman coming, went away; he, however, returned again, between five and ten minutes afterwards, and stabbed the deceased with a knife on the left side of the abdomen: the knife, a common bread

(y) Fost. 296.

(xx) Reg. v. Noon, 6 Cox C. C. 137. (z) Fost. 296; 1 East P. C. c. 5, s. 20, p. 234, and s. 30, p. 251. See post, p. 786, and Reg. v. Fisher, infra, note (d).'

(a) Fost. 296; Rom. chap. xii. v. 19.
(c) Oneby's case, 2 Lord Raym. 1485.

(b) 1 East P. C. c. 5, s. 30, p. 251.

(d) Reg. v. Fisher, 8 C. & P. 182 (34 E. C. L. R.), Park, J. A. J., and Parke, B., and Law Recorder. Sed quære, and see the following cases.

1 Where it becomes material to inquire whether a homicide committed in a second, after a previous combat, in which it might have been manslaughter, was in course of the first or a continuance of it, or after such an interval of time as would imply premeditation, the proper case is, not whether the suspension of reason continued down to the moment of the mortal stroke given, but did the prisoner cool, or was there time for a reasonable man to have cooled? State v. McCauts, 1 Spears 334. If between the provocation received and the mortal stroke given, the prisoner fall into other discourse or diversion, and continue so a reasonable time for cooling, or if he take up and pursue any other business or design not connected with the immediate object of his passion, nor subservient thereto, so that it may be reasonably supposed that his intention was once called off from the subject of the provocation, any subsequent killing of his adversary, especially where a deadly weapon is used, is murder: Comm. v. Green, 1 Ashm. 289.

and-cheese knife, was one that the prisoner was in the habit of carrying about with him, and he was rather weak in his intellect, but not so much so as not to know right from wrong. Lord Tenterden, C. J., "It is not every slight provocation, even by a blow, which will, when the party receiving it strikes with a deadly weapon, reduce the crime from murder to manslaughter: but it depends upon the time elapsing between the blow and the injury; and also whether the injury was inflicted with an instrument at the moment in the possession of the party, or whether he went to fetch it from another place. It is uncertain, in this case, how long the prisoner was absent; the witness says from five to ten minutes, ac[*726 cording to the best of his knowledge. Unless attention *is particularly called to it, it seems to me that evidence of time is very uncertain; the prisoner may have been absent less than five minutes; there is no evidence that he went anywhere for the knife. The father says it was a knife he carried about with him; it was a common knife, such as a man in the prisoner's situation in life might have; for ought that appears he might have gone a little way from the deceased and then returned, still smarting under the blow he had received. You will also take into consideration the previous habits and connection of the deceased and the prisoner with respect to each other; if there had been any old grudge between them, then the crime which the prisoner committed might be murder. But it seems they had been long in habits of intimacy, and on the very night in question, about an hour before the blow, they had been drinking in a friendly way together. If you think that there was not time and interval sufficient for the passion of a man, proved to be of no very strong intellect, to cool, and for reason to regain her dominion over his mind, then you will say that the prisoner is guilty only of manslaughter. But if you think that the act was the act of a wicked, malicious, and diabolical mind (which, under the circumstances, I should think you hardly would), then you will find him guilty of murder."(e)

If thought, contrivance, and design be shown by a prisoner in the mode of procuring a deadly weapon after provocation has been given, and in again replacing the weapon immediately after the blow with it has been struck, this tends to show that the prisoner was acting under the influence of judgment and reason, rather than of violent and ungovernable passion. The deceased was requested by his mother to turn the prisoner out of her house, which after a short struggle with the prisoner he effected, and in doing so he gave him one kick. The prisoner said he would make him remember it, and instantly went to his own lodgings, from two to three hundred yards distant, passed through his bed-room and a kitchen into a pantry, and returned thence hastily back again. Within five minutes after the prisoner had left the deceased, the latter followed him to give him back his hat, which had been left behind, and they met about ten yards from the prisoner's lodgings. They stopped for a short time, when they were heard talking together, but without any words of anger; after they had walked on together for about fifteen yards, the deceased gave the prisoner his hat, when the latter exclaimed with an oath, that he would have his rights, and instantly stabbed the deceased with a knife or some sharp instrument, in two places, giving him a mortal wound in the belly. As soon as he had stabbed him a second time, he said he had served him right, and instantly ran back to his lodgings, passed hastily through his bed-room and the kitchen to the pantry, and thence back to his bed-room, where he undressed himself and went to bed. Shortly afterwards he was apprehended, and no knife or other instrument found upon him. In the pantry the prisoner had a sharp butcher's knife, with which he usually ate, and which was kept on a [*727 shelf with his meat; and in another part of the pantry three other *knives of a similar description, which he used in his business of a butcher. The several knives were found the next morning in their usual places in the pantry. Tindal, C. J., told the jury that the question for them was, whether the wound was given by the prisoner while smarting under a provocation so recent and so strong that the prisoner might not be considered at the moment the master of his own understanding; or whether there had been time for the blood to cool, and for reason to resume its

(e) Rex v. Lynch, 5 C. & P. 324 (24 E. C. L. R.).

seat, before the wound was given. That in determining this question, the most favorable circumstance for the prisoner was the shortness of time between the original quarrel and the stabbing; but, on the other hand, the weapon was not at hand when the quarrel took place, but was sought for from a distant place. It would be for them to say whether the prisoner had shown thought, contrivance, and design in the mode of possessing himself of the weapon, and again replacing it immediately after the blow was struck; for the exercise of contrivance and design denoted rather the presence of judgment and reason than of violent and ungovernable passion.(f)

From the cases which have been stated in the former part of this section, it appears that malice will be presumed, even though the act be perpetrated recently after the provocation received, if the instrument or manner of retaliation be greatly inadequate to the offence given, and cruel and dangerous in its nature; for the law supposes that a party capable of acting in so outrageous a manner upon a slight provocation must have entertained a general, if not a particular malice, and have previously determined to inflict such vengeance upon any pretence that offered.(g)

Sec. II-Cases of Mutual Combat.

WHERE words of reproach and other sudden provocations have led to blows and mutual combat, and death has ensued, the important inquiry will be whether the occasion was altogether sudden, and not the result of pre-conceived anger or malice; for in no case will the killing, though in mutual combat, admit of alleviation, if the fighting were upon malice.(h)

Thus a party killing another in a deliberate duel is guilty of murder;1 for whereever two persons in cold blood meet and fight on a precedent quarrel, and one of them is killed, the other is guilty of murder,(i) and cannot help himself by alleging that he was first struck by the deceased; or that he had often declined to meet him, and was prevailed upon to do it by his importunity; or that it was his intent only to vindicate his reputation ;(k) or that he meant not to kill, but only to *728] disarm his adversary.(7) He has deliberately engaged in an act, highly unlawful, in defiance of the laws, and he must at his peril abide the consequences; and upon this principle, wherever two person quarrel over night and appoint to fight the next day, or quarrel in the morning and agree to fight in the afternoon, or at any time afterwards so considerable that in common intendment it must be presumed that the blood was cooled, the person killing will be guilty of murder.(m) And in a case where, upon a quarrel happening at a tavern, Lord Morley objected to fighting at that time, on account of the disadvantage he should have by reason of the height of his shoes, and presently afterwards went into a field and fought; the circumstance was relied on as showing that he did not fight in the first passion.(n) So wherever there is an act of deliberation, and a meeting by compact, such mutual combat will not excuse the party killing from the guilt of murder; as where B. challenged A., and A. refused to meet him, but in order to evade the law, told B. that he should go the next day to a certain town about his business, and accordingly B. met him the next day in the road to the same town and assaulted him, whereupon they fought, and A. killed B., it is said that A. seems guilty of murder; but the same conclusion would not follow, if it should appear by the whole circumstances that he gave B. such information accidentally, and not with a design to give him an opportunity of fighting.(0) Upon the same principle, if A. and B meet deliberately to fight, (f) Rex v. Hayward, 6 C. & P. 157 (25 E. C. L. R.), Tindal, C. J. (g) 1 East P. C. c. 5, s. 30, p. 252.

(h) East P. C. c. 5, s. 24, p. 241.

(i) Reg. v. Young, 8 C. & P. 644 (34 E. C. L. R.), Vaughan, J., and Alderson, B.; Reg. v. Cuddy, 1 C. & K. 210 (47 E. C. L. R.); Baronet's case, 1 E. & B. 1 (72 E. C. L. R.). (k) As where he had been threatened that he should be posted for a coward: 1 Hale 452, and see Rex v. Rice, 3 East R. 581.

(2) 1 Hawk. P. C. c. 31, s. 21.

(m) 1 Hawk. P. C. c. 31, s. 22; 1 Hale 453. (n) Bromwich's case, 1 Lev. 180; 1 Sid. 277; 7 St. Tr. 42. Bromwich was indicted for aiding and abetting Lord Morley in the murder of Hastings.

(0) 1 Hawk. P. C. c. 31, s. 25.

1 Smith v. State, 1 Yerg. 228.

and A. strike B., and pursue B. so closely that B., in safeguard of his own life, kills A., this is murder in B.; because their meeting was a compact, and an act of deliberation, in pursuance of which all that follows is presumed to be done.(p)

And the law so far abhors all duelling in cold blood, that not only the principal who actually kills the other, but also his second, is guilty of murder ;(q) and it has been held that the second also of the person killed is equally guilty by reason of the countenance given to the principal, and of the compact; but this was considered as a severe construction by Lord Hale, who thought that *the law in that [*729 case was too far strained.(r) It is now, however, settled that the seconds of both are guilty of murder. (s) Where therefore an indictment charged Monro with the murder of Fawcett and the prisoner as present, aiding and assisting in the murder, and the death was shown to have occurred in a duel, in which Monro was one of the principals and the prisoner was said to have acted as second to the deceased; the jury were told, as a matter about which no judge entertained any doubt, that where two persons go out to fight a deliberate duel, and death ensues, all persons who are present on the occasion, encouraging or promoting the death, will be guilty of abetting the principal offender, and that, without giving them any particular name, all persons who are present aiding, assisting, and abetting that deliberate duel are within the term of such an indictment as this.(t)

With regard to other persons who are present at a premeditated duel, the question is, did they give their aid and assistance by their countenance and encouragement of the principals in the contest? Mere presence is not sufficient; but if they sustain the principals by their advice or presence, or if they go for the purpose of encouraging and forwarding the unlawful conflict, although they do not say or do anything, yet if they are present and assisting and encouraging at the moment when the pistol is fired, they are guilty of murder (u)

Where the combat is not an act of deliberation, but the immediate consequence of sudden quarrel, it does not of course fall within the foregoing doctrine; yet in cases of this kind the law may come to the conclusion of malice, if the party killing began the attack with circumstances of undue advantage.(v) For in order to save the party making the first assault, upon an insufficient local provocation, from the guilt of murder, the occasion must not only be sudden, but the party assaulted must be put on an equal footing in point of defence; at least at the onset: and this more particularly where the attack is made with deadly or dangerous weapons.(w)

(p) 1 Hale 452, 480, who says, "Thus is Mr. Dalton, cap. 93, p. 241 (new edit., c. 145, p. 471), to be understood." But a qu. is added in 1 Hale 452, whether, if B. had really and truly declined the fight, ran away as far as he could, and offered to yield, and yet A., refusing to decline it, had attempted his death, and B. after this had killed A. in his own defence, it would excuse him from the guilt of murder; admitting clearly that if the running away were only a pretence to save his own life, but was really designed to draw out A. to kill him, it would be murder. This quære of Lord Hale's is discussed in 1 East P. C. c. 5, s. 54, p. 284 et seq., and it is observed that Mr. J. Blackstone (4 Blac. Com. 185), expressly puts the same case of a duel as Lord Hale, but without subjoining the same doubt; and that it was considered as settled law by the Chief Justice in Oneby's case (Lord Raym. 1489). Mr. East, after reasoning in favor of the extenuation of the crime of the duellist so declining to fight, proceeds thus: "Yet still it may be doubtful whether, admitting the full force of this reasoning, the offence can be less than manslaughter, or whether in such case the party can altogether excuse himself upon the foot of necessity in self-defence, because the necessity which was induced from his own faulty and illegal act, namely, the agreement to fight, was in the first instance deliberately foreseen and resolved upon, in defiance of the law:" 1 East P. C. c. 5, s. 54, p. 285.

(g) 1 Hale 442, 452; 1 Hawk. P. C. c. 31, s. 31; Reg. v. Young, 8 C. & P. 644 (34 E. C. L. R.). (r) 1 Hale 442, where he says that the book of 22 E. 3, Coron. 262, was relied upon : but, as he thinks, the law was too far strained in that case; and in page 452 he says, "some have thought it to be murder also in the second of the party killed, because done by compact and agreement: 22 Edw. 3, 262. Sed qu. de hoc."

(s) Reg. v. Young, 8 C. & P. 644 (34 E. C. L. R.), Vaughan, J., and Alderson, B. Reg. v. Cuddy, 1 C. & K. 210 (47 E. C. L. R.), Williams, J., and Rolfe, B. (t) Reg. v. Cuddy, supra.

(v) Fost. 295.

(u) Reg. v. Young, supra.
(w) 1 East P. C. c. 5, s. 25, p. 242.

1 If a party enters a contest dangerously armed and fights under an unfair advantage, though mutual blows pass, it is not manslaughter, but murder: State v. Hildreth, 9 Ired.

Thus if B. draw his sword and make a pass at A., the sword of A. being then undrawn, and thereupon A. draw his sword, and a combat ensue, in which A. is killed, this will be murder; for B., by making the pass, while his adversary's sword was undrawn, shows that he sought his blood; and A.'s endeavor to defend himself, which he had a right to do, will not excuse B.(x)

In Mawgridge's case, words of anger happening, Mawgridge threw a bottle with great force at the head of Mr. Cope, and immediately drew his sword. Mr. Cope returned a bottle at the head of Mawgridge, and wounded him; whereupon Maw*730] gridge stabbed Mr. Cope. This was ruled to be murder; for Mawgridge, *in throwing the bottle, showed an intention to do some great mischief; and his drawing immediately showed that he intended to follow his blow; and it was lawful for Mr. Cope, being so assaulted, to return the bottle.(y)

Even if the parties are upon an equal footing when the combat begins, malice may be implied from the violent conduct which the party killing pursued in the first instance; more especially where there is time for cooling, and such expressions are used as manifest deliberation; as in the following case of Major Oneby :

it

Major Oneby was indicted for the murder of Mr. Gower; and a special verdict was found, containing the following statement. The prisoner being in company with the deceased and three other persons at a tavern, in a friendly manner, after some time, began playing at hazard; when Rich, one of the company, asked if any one would set him three half crowns; whereupon the deceased, in a jocular manner, laid down three halfpence, telling Rich he had set him three pieces; and the prisoner at the same time set Rich three half crowns, and lost them to him. Immediately after which, in an angry manner, he turned about to the deceased, and said, it was an impertinent thing to set halfpence, and that he was an impertinent puppy for so doing, to which the deceased answered, whoever called him so was a rascal. Thereupon the prisoner took up a bottle, and with great force threw it at the deceased's head; but did not hit him, the bottle only brushing some of the powder out of his hair. The deceased in return immediately tossed a candle-stick or bottle at the prisoner, which missed him; upon which they both rose up to fetch their swords, which then hung up in the room, and the deceased drew his sword; but the prisoner was prevented from drawing his by the company. The deceased thereupon threw away his sword; and the company interposing, they sat down again for the space of an hour. At the expiration of that time the deceased said to the prisoner, "We have had hot words, but you were the aggressor; but I think we may pass over;" and at the same time offered his hand to the prisoner, who made answer, "No, damn you; I will have your blood." After which, the reckoning being paid, all the company, except the prisoner, went out of the room to go home; and he called to the deceased, saying, "Young man! come back; I have something to say to you;" whereupon the deceased returned into the room, and the door was closed, and the rest of the company excluded; but they heard a clashing of swords, and the prisoner gave the deceased the mortal wound. It was also found, that at the breaking up of the company the prisoner had his great coat thrown over his shoulders, and that he received three slight wounds in the fight; and that the deceased, being asked upon his death-bed, whether he received his wound in a manner among sword-men called fair, answered, "I think I did." It was further found that, from the throwing of the bottle, there was no reconciliation between the prisoner and the deceased. Upon these facts all the Judges were of opinion that the prisoner *731] was guilty of murder; he *having acted upon malice and deliberation, and not from sudden passion. It should probably be taken, upon the facts found in the verdict and the argument of the Chief Justice, that, after the door had been shut, the parties were upon an equal footing in point of preparation before the fight began in which the mortal wound was given. The main point then on which the judgment turned, and so declared to be, was the evidence of express malice, after the interposition of the company, and the parties had all sat down again for an (x) Fost. 295; 1 Hawk. P. C. c. 31, s. 27.

(y) Rex v. Mawgridge, Kel. 128, 129, cited in Fost. 295, 296, where it is said that the judgment in this case was holden to be good law by all the judges of England, at a conference in the case of Major Oneby, 2 Lord Raym. 1485; 2 Stra. 766.