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Sec. 2. Upon every conviction for murder the Court shall pronounce sentence of death, and the same may be carried into execution, and all other proceedings upon such sentence and in respect thereof may be had and taken, in the same manner in all respects as sentence of death might have been pronounced and carried into execution, and all other proceedings thereupon and in respect thereof might have been had and taken, before the passing of this Act, upon a conviction for any other felony for which the prisoner might have been sentenced to suffer death as a felon."

By the 4 Geo. 4, c. 48, s. 1, where any person was convicted of any capital felony, except murder, the Court, instead of pronouncing sentence of death, [*781 was empowered to order that sentence to be recorded. By the 6 & 7 Will. . 4. c. 30, s. 2, which applied both to England and Ireland, it was enacted, that "sentence of death may be pronounced after convictions for murder in the same manner, and the Judge shall have the same power in all respects as after convictions for other capital offences." In Reg. v. Hogg,(hh) Lord Denman, C. J., held, that under this clause sentence of death might be recorded on a conviction for murder. By the 7 Will. 4 & 1 Vict. c. 77, s. 3, whenever any offender is convicted before the Central Criminal Court of any crime punishable with death, that Court may direct judgment of death to be recorded. This clause clearly included murder. This clause, so far as it relates to murder, and the 6 & 7 Will. 4, c. 30, s 2, are repealed by the 24 & 25 Vict. c. 95, and the present clause renders it imperative upon the Court to pass sentence of death on every person convicted of murder; it leaves, however, the time of passing the sentence, and all other proceedings, exactly as they were before this Act passed.(i)

Sec. 3. "The body of every person executed for murder shall be buried within the precincts of the prison in which he shall have been last confined after conviction, and the sentence of the Court shall so direct."(k)

Where two persons had been convicted of a barbarous murder in Pembrokeshire, at the Hereford assizes, being the next English county, and the indictment had been removed by certiorari into the Court of King's Bench, in order to argue some exceptions, which were overruled, that Court decided, after some question made whether the prisoners ought not to be sent back to Herefordshire to receive sentence, that they had the same jurisdiction over facts committed in Wales, as if committed in the next adjacent county in England; and the prisoners were therefore sentenced in the King's Bench, and were executed by the marshal.(?) But it seems to have been considered in a late case, that sentence pursuant to the statute 25 Geo. 2, c. 37, may be passed by a judge at nisi prius upon an indictment for murder removed by certiorari into the Court of King's Bench, and afterwards tried at nisi prius, without remitting the transcript of the record to the Court of Queen's Bench.(m)

On the application of the attorney-general, the Court of King's Bench will, as a matter of course, grant a habeas corpus to bring up prisoners convicted of murder and sentenced to death at the assizes, and a certiorari to remove into the King's Bench the record of the conviction and judgment. The prisoners were convicted of murder at Chester, and sentenced to be executed the next Friday; but a question arose, whether, since the 11 Geo. 4 & 1 Will. 4, c. 70, ss. 13, 14, and 15, the sheriffs of the city or *the sheriff of the county were bound to execute the sentence; and both parties refusing to do it, the prisoners had been from [*782 time to time respited. The attorney-general moved for a certiorari to remove the record of the conviction and the judgment, and for a habeas corpus to bring up the

(hh) 2 M. & Rob. 380.

(i) See further observations on this point, Greaves' Cr. Acts 30, 2d edit.

(k) This clause is founded on the 2 & 3 Will. 4, c. 75, s. 16, and 4 & 5 Will. 4, c. 26,

8. 2.

(1) Athos' case (father and son) as cited in note (r): 1 Hale 463, where it is said that the prisoners were executed at Kennington gallows, near Southwark. In Taylor's case, 5 Burr. 2797, the reporter says that he remembers this case; and that the defendants, being in the custody of the marshal, were executed at St. Thomas a Waterings, near the end of Kent Street. And see also the case in 1 Str. 553, and 8 Mod. 136; and see the Sissinghurst-house case, ante, p. 738, note (g).

(m) Rex v. Thomas, 4 M. & S. 447.

prisoners, in order that execution might be awarded by the King's Bench, and said he considered himself entitled to the writs as of right: but from respect to the Court, and for his own justification in the course he adopted, he stated the grounds of his application, and cited many cases to show that he was entitled to the writs as of course, and that the Court of King's Bench might direct execution to be done by the sheriff of the county of Chester, or those of the city, by the sheriff of Middlesex, or by the marshal of the King's Bench; and the writs were forthwith granted by the Court.(n)

When the prisoners were brought up and called upon to state if they had anything to say why execution should not be awarded, one of them prayed three days' time to answer; and the Court, in the exercise of its discretion, granted the application as to both.(0) When the prisoners were brought up again, one of them pleaded ore tenus,(p) that the King by proclamation in the " Gazette" had promised pardon to any person, except the actual murderer, who should give information, whereby such murderer should be apprehended and convicted; and that he, not being the actual murderer, had given such information, and thereby entitled himself to the pardon. The attorney-general demurred to the plea ore tenus, and the Court held that it was bad.(g) The Court in the same case also refused to hear an application from the sheriff of Middlesex, into whose custody the prisoners had been removed, praying that the order to do execution might not be made upon him.(r)

*783]

*CHAPTER THE SECOND.

OF MANSLAUGHTER.

In this species of homicide, malice, which has been shown(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.(b)

In order to make an abettor to a manslaughter a principal in the felony, he must be present aiding and abetting the fact committed. (c) It was formerly considered that there could not be any accessories before the fact in any case of manslaughter, because it was presumed to be altogether sudden, and without premeditation.(d) And it was laid down, that 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) But the position ought to be limited to those cases where the killing is sudden and unpremeditated; for there are cases of manslaughter where there may be accessories.(f) Thus a man may be such an accessory by purchasing poison for a (n) Rex v. Garside, 2 Ad. & E. 266 (29 E. C. L. R.) ; 4 N. & M. 333. See Rex v. Antrobus, 2 Ad. & E. 788.

(0) Rex v. Garside, supra.

(p) As he may do. See Dean's case, 1 Leach 476.

(9) Rex v. Garside, supra.

(r) Ibid. The Court, however, awarded execution to be done by the marshal of the Marshalsea, assisted by the sheriff of Surrey.

(a) Ante, p. 667, et seq.

(b) Fost. 290; 1 Hale 466. "Manslaughter is homicide, not under the influence of malice, but where the blood is heated by provocation, and before it has time to cool." Per Taunton, J., Taylor's case, 2 Lew. 215.

(c) 1 Hale 438, 439, and see ante, p. 706, et seq., as to what will be a presence, aiding and abetting.

(d) 1 Hale 437; 1 Hawk. P. C. c. 30, s. 2.

(e) 1 Hale 450. This is clearly Bibithe's case, 4 Rep. 43; Moor 461. See the observations on it, Greaves' Cr. Acts 43, 2d edit.

(f) Reg. v. Gaylor, D. & B. C. C. 288, ante, p. 60.

pregnant woman to take in order to procure abortion, and which she takes and thereby causes her death.(g) There may, however, be accessories after the fact in manslaughter.(h) If, therefore, upon an indictment against the principal and an accessory after the fact for murder, the offence of the principal be reduced to manslaughter, the accessory may be convicted as accessory to the manslaughter.(i)

The several instances of manslaughter may be considered in the following order :1. Cases of provocation.

II. Cases of mutual combat.

*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.

[*784

IV. Cases where the killing takes place in the prosecution of some criminal, unlawful, or wanton act.

V. 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.

Sec. I-Cases of Provocation.

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.(k)1 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. (1)

It has been shown 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 from 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.(m) 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.(n)

It is, indeed, said to have been held in one case that words of menace of bodily harm are a sufficient provocation to reduce che offence of killing to manslaughter;(0) 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.(p) But, though words of slighting, disdain, or contumely, will not of themselves make such a provocation to lessen the crime into manslaughter; yet, it seems that if

(g) Reg. v. Gaylor, D. & B. C. C. 288, ante, p. 60. (h) 1 Hale 450; 1 East P. C. c. 5, s. 123, p. 353. This seems to have been doubted before the statute 1 Anne, stat. 2, c. 9, s. 1 (2 Hawk. P. C. c. 29, s. 24); but the effect of that statute seems to have removed the doubt. So much of the 1 Anne as relates to accessories is repealed by the 7 Geo. 4, c. 64.

(i) Rex v. Greenacre, 8 C. & P. 35 (34 E. C. L. R.), Tindal, C. J., Coleridge, and Coltman, JJ.

(k) 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.

(1) Ante, p. 668.

(n) Fost. 291; 1 East P C. c. 5, s. 20, p. 233.

(m) Ante, p. 711.

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

(p) 1 East P. C. c. 5, s. 29, p. 233.

1 Ex parte Moon, 30 Ind. 197; Perry v. State, 43 Ala. 21; Murphy v. State, 31 Ind. 311; Comm. v. Drum, 8 P. F. Smith 9; Maria v. State, 28 Tex. 698; State v. Anderson, 4 Mo. 265; State v. Massage, 65 N. C. 480; State v. Curry, 1 Jones (Law) 280; Ray v. State, 15 Geo. 223; Colton v. State, 31 Miss. 504; Quarles v. State, 1 Sneed 407; State v. Floyd, 6 Jones (Law) 392; Dennison v. State, 13 Ind. 510; State v. Hargeth, 65 N. C. 669; U. S. v. Mingo, 2 Curt. C. C. 1; Gann v. State, 30 Geo. 67; Creek v. State, 24 Ind. 151; State v. Decklotts, 19 Iowa 447; People v. Sanchez, 24 Cal. 17.

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

*Where an assault is made with violence or circumstances of indignity *785] upon a man's person, as by pulling him by the nose, and the party so assaulted kills the aggressor, the crime will be reduced to manslaughter, in case it appears that the assault was resented inmediately, and the aggressor killed in the heat of blood, the furor brevis occasioned by the provocation.(r) 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. (s)

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.(t) 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.(u)

Where a man has been injuriously and without proper authority restrained of his liberty, the provocation has been considered sufficient to extenuate as where a creditor placed a man at the 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 chamber.(v) 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 evi*786] dence. 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.(w)

Where a man finds another in the act of adultery with his wife, and kills him or

(7) 1 Hale 455, where it is said, that this was held to be manslaughter, according to the proverb, "the second blow makes the affray ;" and Lord Hale says that this was the opinion of himself and some others.

(r) Kel. 135; 4 Blac. Com. 191; 1 East P. C. c. 5, s. 20, p. 233.

(8) 1 Hale 455, Lanure's case.

(1) Stedman's case, Old Bailey, Apr. 1704, MS., Tracy and Denton, 57 Fost. 292; 1 East P. C. c. 5, s. 21, p. 234.

(u) Fost. 292. See the case more fully stated, ante, p. 713.

(v) Buckner's case, Sty. 467.

(w) Rex v. Withers, Mich. T. 1784, MS., Bayley, J., and 1 East P. C. c. 5, s. 20, p. 233. This case is also cited as to a point of evidence in Holt's case, 2 Leach 594.

her(x) in the first transport of passion, he is only guilty of manslaughter, and that in the lowest degree :(y) for the provocation is grievous, such as the law reasonably concludes cannot be borne in the first transport of passion.1 But it has been already shown that the killing of an adulterer deliberately, and upon revenge would be murder.(z) So it seems that if a father were to see a person in the act of committing an unnatural offence with his son, and were instantly to kill him, it would only be manslaughter; but if he only hear it from others, and go in search of the person afterwards, and kill him, when there had been time for the blood to cool; it would be murder. (a)

Upon an indictment for murder it appeared that the prisoner, a soldier, was cohabiting with the deceased, and that he watched her go to the canteen of the barracks, and there drink with another soldier, upon which the prisoner went to his room in the barracks, and having got a cartridge from a pouch, and loaded his musket, he went to the barrack-yard and there meeting the deceased, he shot her, and she instantly died. In summing up, Rolfe, B., said, " Prima facie, when any man takes away the life of another, the law presumes that he did it of malice aforethought, unless there be evidence to show the contrary. Such are the cases where there has been a quarrel, a fight, or dispute, and in the violence of such quarrel, fight or dispute, death has ensued. Undoubtedly we find other cases stated, and among them the case of adultery. It is said that if a man were to find his wife in the act of committing adultery and kill her, that would be only manslaughter, because he would be supposed to be acting under an impulse so violent that he could not resist it. But I state it to you without the least fear or doubt, that to take away the life of a woman, even your own wife, because you suspect that she has been engaged in some illicit intrigue, would be murder: however strongly you may suspect it, it would most unquestionably be murder; and if I were to direct you, or you were to find otherwise, I am bound to tell you, either you or I would be grievously swerving from our duty."(b)

*There are instances, where slight provocations have been considered as [*787 extenuating the guilt of homicide, upon the ground, that the conduct of the party killing upon such provocations might fairly be attributed to an intention to chastise, rather than to a cruel and implacable malice. But, in cases of this kind, it must appear, that the punishment was not urged with brutal violence, nor greatly disproportionate to the offence; and the instrument must not be such as, from its nature, was likely to endanger life. (c) 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. (d) 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,

(z) Pearson's case, 2 Lew. 216, Parke, B.

(y) Manning's case, T. Raym. 212; 1 Ventr. 159. And the Court directed the burning in the hand to be inflicted gently, because there could not be a greater provocation. (z) Ante, p. 724.

(a) Reg. v. Fisher, 8 C. & P. 182 (34 E. C. L. R.), Park, J. A. J., Parke, B., and Law Recorder.

(b) Reg. v. Kelly, 2 C. & K. 814 (61 E. C. L. R.). It was not clear in the evidence in this case whether the prisoner loaded the musket immediately after he took the cartridge from his pouch, or whether he left the room and returned to it after taking the cartridge and before loading the musket; but Rolfe, B., observed that he thought it very immaterial as to the length of time that elapsed between the time when the prisoner saw the deceased and the soldier together and the time when he fired the shot; and equally little material whether the prisoner took the cartridge out of the pouch at the same time when he loaded the musket, or left the room between the one and the other, as, in point of law, there was nothing here to reduce the crime to manslaughter. (c) Fost. 291; 4 Blac. Com. 200.

(d) Fost. 291; 1 Hale 472, ante, p. 717.

1 State v. Samuel 3 Jones (Law) 74; Comm. v. Whitler, 2 Brews. 388. But only the finding of the parties in the act of adultery will reduce the killing to manslaughter: State v. John, 8 Ired. 330; State v. Avers, 64 N. C. 608; State v. Neville, 6 Jones (Law)

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