city, by the sheriff of Middlesex, or by the marshal of the King's Bench; and the writs were forthwith granted by the Court. (g) 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. (h) When the prisoners were brought up again, one of them pleaded ore tenus, (i) 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. (j) 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. (k) (g) Rex v. Garside, 2 Ad. & E. 266. 4 N. & M. 333. See Rex v. Antrobus, 2 Ad. & E. 788. (h) Rex v. Garside, supra. (i) As he may do. See Dean's case, 1 Leach, 476. (j) Rex v. Garside, supra. (k) Ibid. The Court, however, awarded execution to be done by the marshal of the Marshalsea, assisted by the sheriff of Surrey. CHAPTER THE SECOND. OF MANSLAUGHTER. 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. (b) In order to make an abettor to a manslaughter a principal in the of aiders and 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 of accessories. 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) 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. (g) The several instances of manslaughter may be considered in the following order : I. 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. 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. (a) Ante, p. 482, et seq. (b) Fost. 290. 1 Hale, 466. "Manslaughter is homicide, not under the influ ence 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. 509, et seq. as to what will be a presence, aiding and abetting. (e) 1 Hale, 437, 450. (g) Rex ». Greenacre, 8 C. & P. 35. (d) 1 Hale, 437. 1 Hawk. P. C. c. 30, s. 2. Words of pro vocation. Provocation by assault. SECT. 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. (g) 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 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. (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: (7) 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 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 indignity 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 immediately, and the aggressor killed in the heat of blood, the furor brevis occasioned by the provocation. (0) So if A. be passing along the street, and B. meeting him (there being convenient distance 55; but no such position is there stated. (m) 1 East, P. C. c. 5, s. 29, p. 233. (n) 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. (0) Kel. 135. 4 Blac. Com, 191. 1 East, P. C. c. 5, s. 20, p. 233. 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. (q) 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) Slight provocation, even by extenuate, if the revenge a blow, will not be barbarous. Where a man has been injuriously, and without proper authority Provocation restrained of his liberty, the provocation has been considered suffi- by restraining a person of cient to extenuate: as where a creditor placed a man at the chamber his liberty. 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. (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. (t) Where a man finds another in the act of adultery with his wife, and Provocation kills him or her (u) in the first transport of passion, he is only guilty of by detecting (p) 1 Hale, 455. Lanure's case. (q) Stedman's case. Old Bailey, Apr. 1704, MS. Tracy and Denton, 57, Fost. 292. 1 East, P. C. c. 5, s. 21, p. 234. (r) Fost. 292. See the case more fully stated, ante, p. 515. (s) Buckner's case, Sty. 467. (t) Rex v. Withers, Mich. T. 1784. MS. Bayley, J., and I 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. (u) Pearson's case, 2 Lew. 216, Parke, B. adulterer. Provocations of a slight kind, which have been allowed to extenuate, where the party killing has not acted with cruelty, or used dan gerous instru ments. Ducking a pickpocket. Father taking 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 revenge, would be murder. (w) 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 of 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. (x) There are instances, were slight provocations have been considered as 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. (y) 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. (2) 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, (a) 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. (b) And a 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 unfortunately, and against his intent, killed him, it would only have been manslaughter. (c) 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. (d) In a case where the prisoner's son having fought with another boy up the quarrel and been beaten, ran home to his father all bloody, and the father presently took a cudgel, ran three quarters of a mile, and struck the of his son. (u) Manning's case, T. Raym. 212. (y) Fost. 291. 4 Blac. Com. 200. (z) Fost. 291. 1 Hale, 473. Ante, p. 519. (a) Halloway's case, Cro. Car. 131. 1 Hale, 453. 1 Hawk. P. C. c. 31, s. 42. Fost. 292. Ante, p. 520. (b) 1 East, P. C. c. 5, s. 22, p. 237. (c) 1 East, P. C. c. 5, s. 22, p. 237. (d) Fray's case. Old Bailey, 1785. 1 Hawk. P. C. c. 31, s. 38. 1 East, P. C. c. 5, s. 22, p. 236. |