and beat him, upon which the horse running away, the boy was killed,(e) 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.(ƒ) And à fortiori, if the master had himself caught the trespasser, and beat him in such a manner as showed a desire only to chastise and prevent a repetition of the offence, but had unfortunately, and against his intent, killed him, it would only have been manslaughter.(g)

Where a person, whose pocket had been picked, encouraged by a concourse of people, threw the pickpocket into an adjoining pond, in order to avenge the theft by ducking him, but without any apparent intention to take away his life, and the pickpocket was drowned, it was ruled to be only manslaughter; for, though this mode of punishment is highly unjustifiable and illegal, yet the law respects the infirmities and imbecilities of human nature, where certain provocations are given.(h)

In a case where the prisoner's son, having fought with another boy and been beaten, he ran home to his father all bloody, and the father presently took a cudgel, ran three-quarters of a mile, and struck the other boy upon the head, upon which he died; it was ruled to be manslaughter, because done in sudden heat and passion() but the true grounds of the judgment seem to have been that the accident happened by a single stroke given in heat of blood, with a cudgel, not likely to destroy, and that death did not immediately ensue.(k)

Several other cases are reported, in which the nature of the instrument used led to a lenient consideration of the homicide, on the ground that such instrument was *788] not likely to endanger life. *Thus, where a man, who was sitting drinking in an alehouse, being called by a woman a son of a whore," took up a broomstaff, and threw it at her from a distance, and killed her; the Judges were not unanimous, and a pardon was advised; and the doubt appears to have arisen upon the ground, that the instrument was not such as could probably, at the given distance, have occasioned death, or great bodily harm.(1) A similar doubt appears to have been entertained in the following case, which was stated in a special verdict. A mother-in-law employed her daughter-in-law, a child of ten years old, to reel some yarn, and finding some of the skeins knotted, threw a four-legged stool at the child, which struck her on the right side of the head, on the temple, and caused her death soon afterwards; the verdict stated, that the stool was of sufficient size and weight to give a mortal blow; but that the mother-in-law did not intend, at the time she threw the stool, to kill the child.(m) And in a case where the prisoner had struck his boy with one of his clogs, because he had not cleaned them, it was held to be only manslaughter, because the master could not, from the size of the instrument he had made use of, have had any intention to take away the boy's life.(n)

In a case where the prisoner, who was a butcher, had employed a boy to tend some sheep, which were penned, who negligently suffered some of the sheep to escape through the hurdles, upon which the prisoner seeing the sheep get through, ran towards the boy, and taking up a stake that was lying on the ground, threw it at him, and with it hit the boy on the head, and fractured his skull, of which fracture he soon afterwards died; Nares, J., told the jury to consider whether the stake, which, lying on the ground, was the first thing the prisoner saw in the heat

(e) Halloway's case, Cro. Car. 131; 1 Hale 453; 1 Hawk. P. C. c. 31, s. 42; Fost. 292, ante, p. 718.

(f) 1 East P. C. c. 5, s. 22, p. 237.

(g) Ibid.

(h) Ferry's case, Old Bailey, 1785; 1 Hawk. P. C. c. 31, s. 38; 1 East P. C. c. 5, s. 22. p. 236. (i) Rowley's case, 12 Rep 87; 1 Hale 453.

(k) Fost 294, 295; Cro. Jac. 296; Godb. 182. See the case, ante, p. 717. (7) 1 Hale 455, 456; East P. C. c. 5, s. 22, p. 236.

(m) Hazel's case, 1 Leach 368. The question whether this was murder or manslaughter was considered as of great difficulty, and no opinion was ever delivered by the Judges. (n) Turner's case, cited in Comb. 407, 408; and 1 Lord Raym. 143, 144; 2 Lord Raym. 1498. The clog was a small one; and Holt, C. J., said, that it was an unlikely thing to kill the boy.

of his passion, was, or was not, under the circumstances, and in the particular situation, an improper instrument for the purpose of correcting the negligence of the boy; and that, if they thought the stake was an improper instrument, they should further consider, whether it was probable that it was used with an intent to kill; if they thought it was, that they must find the prisoner guilty of murder; but, on the contrary, if they were persuaded that it was not done with an intent to kill, that the crime would then amount, at most, to manslaughter. The jury found it manslaughter.(0) So on an indictment for wounding with a tin can, with which the prisoner had struck the prosecutor four times on the head, Alderson, B., directed the jury to consider, "whether the instrument employed was, in its ordinary use, likely to cause death; or, though an instrument unlikely, under ordinary cir cumstances, to cause death; whether it was used in such an extraordinary manner as to make it likely to cause death, either by continued blows or otherwise? *A tin can, in its ordinary use, was not likely to cause death or grievous bodily [*789 harm; but if the prisoner struck the prosecutor repeated blows on the head with it, you will say, whether he did this merely to hurt the prosecutor, and give him pain, as by giving him a black eye or bloody nose, or whether he did it to do him some substantial grievous bodily harm. When a deadly weapon, such as a knife, a sword, or gun, is used, the intent of the party is manifest; but where an instrument like the present is used, you must consider, whether the mode in which it was used satisfactorily shows that the prisoner intended to inflict some serious or grievous bodily harm with it."(p)

Upon an indictment for murder, it appeared that a body of persons were committing a riot, and the constables interfering for the purpose of dispersing the crowd, and apprehending the offenders, resistance was made to them by the mob, and one of the constables was beaten severely by the mob; the different prisoners all took part in the violence used; some by beating him with sticks, some by throwing stones, and others by striking him with their fists; of this aggregate violence, the constable afterwards died. Alderson, B., "The principles on which this case will turn, are these:-if a person attacks another without justifiable cause, and from the violence used death ensues, the question which arises is, whether it be murder or manslaughter? If the weapon used were a deadly weapon, it is reasonable to infer that the party intended death; and if he intended death, and death was the consequence of his act, it is murder. If no weapon was used, then the question usually is, was there excessive violence? If the evidence as to this be such as that the jury think there was an intention to kill, it is murder; if not, manslaughter. Thus, if there were merely a blow with a fist, and death ensued, it would not be reasonable to infer that there was an intention to kill; in that case, therefore, it is manslaughter. But if a strong man attacks a weak one, though no weapon be used, or if, after much injury by beating, the violence is still continued, then the question is whether this excess does not show a general brutality, and a purpose to kill, and if so, it is murder. Again, if the weapon used be not deadly, e. g. a stick, then the same question as above will arise as to the purpose to kill; and in any case if the nature of the violence, and the continuance of it be such, as that a rational man would conclude that death must follow from the acts done, then it is reasonable for a jury to infer that the party who did them intended to kill, and to find him guilty of murder. Again, it is a principle of law, that if several persons act together in pursuance of a common intent, every act done in furtherance of such intent by each of them is, in law, done by all. The act, however, must be in pursuance of the common intent. Thus, if several were to intend and agree together to frighten a constable, and one were to shoot him through the head, such an act would affect the individual only by whom it was done. Here, therefore, in considering this case, you must determine, whether all these prisoners had the common intent of attacking the constables; if so, each of them is responsible for all the acts of all the others done *for that purpose; and if all the [*790

(0) Wiggs' case, reported in a note to Hazel's case, 1 Leach 378. If, however, the instrument used is so improper, as manifestly to endanger life, it seems that the intention of the party to kill will be implied from that circumstance: ante, p. 716.

(p) Rex v. Howlett, 7 C. & P. 274 (32 E. C. L. R.), Alderson, B.

acts done by each, if done by one man, would together show such violence, and so long continued, that from them you would infer an intention to kill the constable, it will be murder in them all. If you would not infer such purpose, you ought to find them guilty only of manslaughter."(q)

It has been before shown, that the plea of provocation will not avail in any case, where it appears that the provocation was sought for and induced by the act of the party in order to afford him a pretence for wreaking his malice ;(r) and that even where there may have been previous struggling or blows, such plea cannot be admitted, where there is evidence of express malice. (s) It has also been observed, that in every case of homicide upon provocation, how great soever that provocation may have been, if there were sufficient time for passion to subside, and reason to interpose such homicide will be murder :(t) and it should always be remembered, that where a party relies upon the plea of provocation, it must appear, that when he did the fact, he acted upon such provocation, and not upon any old grudge.(u)

Sec. II-Cases of Mutual Combat.

INSTANCES of mutual combat, in which, from the deliberate conduct of the parties, from some undue advantage taken by the party killing, or from the violent conduct which the party killing pursued in the first instance, the conclusion of malice has been drawn, and the killing has consequently amounted to murder, have been shown in the preceding chapter.(v) We have now to consider those cases where, upon words of reproach, or any other sudden provocation, the parties come to blows, and a combat ensues, no undue advantage being sought or taken on either side for if death happen under such circumstances, the offence of the party killing will amount only to manslaughter.(w)

If, therefore, upon a sudden quarrel, the parties fight upon the spot, or if they presently fetch their weapons, and go into a field and fight, and one of them be killed, it will be but manslaughter, because it may be presumed that the blood never cooled.(x) And it must be observed, with regard to sudden rencounters, that when they are begun, the blood, previously too much heated, kindles afresh at every pass or blow; and in the tumult of the passions, in which mere instinct, selfpreservation, has no inconsiderable share, the voice of reason is not heard therefore the law, in condescension to the, infirmities of flesh and blood, has extenuated the offence.(y)

*791] If two draw their swords upon a sudden quarrel, and one kills *the other, it is only manslaughter. Sir Charles Pym with one party, and Mr. Walters with another party, dined at a tavern; and on coming out Sir Charles P. and Mr. W. quarrelled and drew their swords, and Mr. W. ran Sir Charles P. through the body, and he died. There was no evidence of any unfair advantage taken by Mr. W.; nor could the witnesses say more than that they heard them quarrelling, saw their swords drawn, and the sword through Sir Charles P.'s body; and it appeared that the parties did not know each other before. When Sir Charles P. fell, Mr. W. took him by the nape of the neck, dashed his head upon the ground, and said, "Damn you, you are dead!" Jenner, B., told the jury that this was only manslaughter the jury, however, were disposed to find it murder, because of the dashing the head against the ground, &c. but Allibone, J., repeated to them that it was manslaughter only, and they found accordingly.(z)

Lord Byron and Mr. Chaworth differed at a club as to the best means of procuring game. Mr. C. mentioned Sir C. Sedley's manors; Lord B. asked which they were; Mr. C. named Nuttall and another; Lord B. repeated his question: Mr. C. said, “Surely you will allow Nuttall to be Sir C. Sedley's: but if you have anything more to say, you will find Sir C. Sedley in Dean Street, and me in Berkeley Row."

(7) Macklin's case, 2 Lew. 225, Alderson, B. (s) Ante, p, 718.

(r) Ante, p. 719.
(t) Ante, p. 724; Fost. 296.

(u) 1 Hale 451; 1 East P. C. c. 5, s. 23, p. 239. See Mason's case, ante, p. 718, et seq.

(v) Ante, p. 727, et seq.

(x) 1 Hale 453; 1 Hawk. P. C. c. 31, s. 29 ; 3 Inst. 51.

(y) Fost. 138, 296.

(z) Rex v. Walters, 12 St. Tr. 113.

(w) Fost. 295.

The conversation then dropped, and they stayed together at least half an hour; and Lord B. during that time conversed with a gentleman who sat next him: Mr. C. settled the bill, but made a mistake in marking the club-room, which might arise from agitation; he marked Lord B. as absent, though he was there. Mr. C. then went out, and a Mr. Donston followed him, of whom Mr. C. asked if he had been short with Lord B. in what he said last to him; to which Mr. Donston answered "No," and was returning into the room, when he met Lord B. coming out. Lord B. said to Mr. C., "I want to speak to you;" upon which they both called the waiter, and were shown into a small room, and the waiter left a candle in the room. Lord B. asked Mr. C. if he meant the conversation upon game to Sir C. Sedley or to him; upon which Mr. C. said, "If you have anything to say we had better shut the door, or we shall be heard," and he shut the door. On turning from the door he saw Lord B.'s sword half drawn, and Lord B. said, "Draw, draw!" Mr. C. drew, and thrust at Lord B.; and after one or two thrusts, Mr. C. received a mortal wound, of which he died. An indictment was preferred for murder; but upon the trial the peers (123) were unanimous that it was manslaughter only.(a)

[*792

In a case where there had been mutual blows, and then, upon one of the parties being pushed down on the ground, the other stamped upon his stomach and belly with great force, and thereby killed him, it was considered to be only manslaughter. The deceased, who was a French prisoner, had stolen a tobacco-box from one of a party of French prisoners who were gambling, and was chastised by some of the party for his conduct, and a clamor was raised against him. As he passed the prisoner, who was sitting at a table and much intoxicated, the prisoner got up, and *with great force pushed the deceased backwards upon the ground. The deceased got up again and struck the prisoner two or three blows with his doubled fist in the face, and one blow in the eye; upon which the prisoner pushed the deceased backwards again in the same manner, and gave him, as he lay on his back upon the ground, two or three stamps with great force with his right foot on the stomach and belly; and afterwards, when the deceased arose on his seat and was sitting, gave him a strong kick in the face; the blood came out of the mouth and nose of the deceased, and he fell backwards, and died on the next day. The stamps upon the stomach and belly were the cause of his death. The prisoner was convicted of murder, on the ground that the violence which caused the death was not excused by heat of blood: but the learned Judge by whom the prisoner was tried, thinking that the case required further consideration, reserved it for that purpose, and the Judges were of opinion that it was only a case of manslaughter. (b)

A. uses provoking language or behavior towards B., and B. strikes him, upon which a combat ensues, in which A. is killed, this is holden to be manslaughter; for it was a sudden affray, and they fought upon equal terms; and in such combats, upon sudden quarrels, it matters not who gave the first blow.(c) But it would be otherwise, if the terms were not equal, and if the party killing sought or took undue advantage; as if B., in the foregoing case, had drawn his sword, and made a pass at A., the sword of A. being then undrawn, and thereupon A. had drawn, and a combat had ensued, in which A. had been killed; for this would have been murder, inasmuch as B., by making the pass, his adversary's sword being undrawn, showed that he sought his blood.(d) And A.'s endeavor to defend himself, which he had a right to do, will not excuse B.; but if B. had first drawn, and forborne till his adversary had drawn too, it had been no more than manslaughter.(e)

And such an indulgence is shown to the frailty of human nature, that where two persons, who have formerly fought on malice, are afterwards, to all appearance, reconciled, and fight again on a fresh quarrel, it shall not be presumed that they were moved by the old grudge, unless it appear by the whole circumstances of the case. (ƒ)1

(a) Rex v. Lord Byron, 11 St. Tr. 1177.

(b) Rex v. Ayes, MS., Bayley, J., and R & R. 166. (c) Fost. 295; 1 Hale 456. (d) 1 Hawk. P. C. c. 31, s. 27; Fost. 295. And see ante, p. 731.

(e) 1 Hawk. P. C. c. 31, s. 28; Fost. 295.

(ƒ) 1 Hawk. P. C. c. 31, s. 30; 1 Hale 452.

1 If a prisoner, upon meeting her adversary unexpectedly, who had interrupted her upon lawful road and in her lawful pursuit, accepted the fight, when she might have avoided

Though, from the preceding cases, it appears that not only the occasion must be sudden, but that the party assaulted must be put upon an equal footing in point of defence at the onset, to save the party making the first assault and killing from the guilt of murder; yet if, on any sudden quarrel, blows pass without any intention to kill or injure another materially, and in the course of the scuffle, after the parties are heated by the contest, one kill the other with a deadly weapon, it will only *793] amount to manslaughter.(g) But we have seen that the conclusion would be *different if there were any previous intention or preparation to use such a weapon in the course of the affray.(h)

John Taylor, a Scotch soldier, and two other Scotchmen, were drinking together in an alehouse, when some servants to the owner of the house, who were also drinking in another box abused the Scotch nation, and used several provoking expressions towards Taylor and his company, on which Taylor struck one of the servants with a small rattan cane, not bigger than a man's little finger, and another of the Scotchmen struck the same servant with his fist; the servant who was struck went out of the room into the yard, to fetch his fellow-servants to turn Taylor and his company out of the room; and, in the meantime, an altercation ensued between Taylor and the deceased, who was the owner of the house, but not the occupier, and who had come into the room after the servant went into the yard. He insisted that Taylor should pay for his liquor, and go out of the house; and Taylor, after some further altercation was going away, when the deceased laid hold of him by the collar, and said, “he should not go away till he had paid for the liquor;" and then threw him down against a settle. Taylor then paid for the liquor; whereupon the deceased laid hold of him again by the collar, and shoved him out of the room into the passage; and Taylor then said, "that he did not mind killing an Englishman more than eating a mess of crowdy." The servant who had been originally struck with the cane, then came and assisted the deceased, who had hold of Taylor's collar; and together they violently pushed him out of the door of the alehouse; whereupon Taylor instantly turned round, drew his sword, and gave the deceased the mortal wound. This was adjudged manslaughter.(i)

The prisoner, a shoemaker, lived near the deceased. One afternoon the prisoner, very much intoxicated by liquor, passed accidentally by the house of the deceased's mother, while the deceased was thatching an adjacent barn. They entered into conversation; but on the prisoner's abusing the mother and sister of the deceased, very high words arose on both sides, and they placed themselves in a posture to fight. The mother of the deceased, hearing them quarrel, came out of her house, threw water over the prisoner, hit him in the face with her hand, and prevented them from boxing. The prisoner went into his own house; and in a few minutes came out again, and sat himself down upon a bench before his garden gate, at a small distance from the door of his house, with a shoemaker's knife in his hand, with which he was cutting the heel of a shoe. The deceased having finished his thatching, was returning, in his way home, by the prisoner's house; and on passing the prisoner, as he sat on the bench, the deceased called out to him, “Are you not an aggravating rascal?" The prisoner replied, "What will you be, when you are got from your master's feet?" On which the deceased seized the prisoner by the collar, and dragging him off the bench, they both rolled down into the cartway. While they were struggling and fighting, the prisoner underneath, and the deceased upon him, the deceased cried out, "You rogue, what do you do with that knife in your *hand?" and made an attempt to secure it; but the prisoner kept striking *794] about with one hand, and held the deceased so hard with the other hand, that the deceased could not disengage himself. He made, however, a vigorous effort, and by that means drew the prisoner from the ground; and during this struggle the prisoner gave a blow, on which the deceased immediately exclaimed, "The rogue has

(g) 1 East P. C. c. 5, s. 26, p. 243.

(h) Ante, p. 731.

(i) Rex v. Taylor, 5 Burr. 2793; 1 Hawk. P. C. c. 31, s. 39,

it by passing on; the provocation being sudden and unexpected, the law will not presume the killing to have been upon the ancient grudge, but upon the insult given by stopping her on the way, and it would be manslaughter: Copeland v. State, 7 Humph. 479.