1

(10.) A, from wanton mischief, throws stones down a coal-pit and knocks away a scaffolding. The absence of the scaffolding causes an accident by which B is killed. A commits manslaughter.

- (11.) 2 A, a thief, pursued by B, a policeman, who wishes to arrest A, trips up B, who is accidentally killed. A commits murder.

3

(12.) A, having words with his wife, B, strikes her on the head with a pestle, and kills her. A commits murder, though the act was not premeditated.

4

(13.) A, being called names by B, a woman, throws a broomstick at her, which happens to kill her. A commits manslaughter.

(14.) A shoots at B, intending to kill him, and kills C. A commits murder.

ARTICLE 224.

EFFECT AND DEFINITION OF PROVOCATION.

Homicide, which would otherwise be murder, is not murder, but manslaughter, if the act by which death is caused is done in the heat of passion, caused by provocation, as hereinafter defined, unless the provocation was sought or voluntarily provoked by the offender as an excuse for killing or doing bodily harm.

The following acts may, subject to the provisions contained in Article 225, amount to provocation :

(a.) An assault and battery of such a nature as to inflict actual bodily harm, or great insult, is a provocation to the person assaulted.

8

(b.) If two persons quarrel and fight upon equal terms,

person causing the death, it was a harsh law which made the act murder. But the Court and jury were sitting there to administer law, not to make or mould it, and the law was what he told them." Times, April 28, 1868.

1 R. v. Fenton, 1 Lewin, 179; 1 Russ. Cr. 854.

21 Russ. Cr. 732-8 for a large collection of cases and authorities. See, too, 1 Hale, 456, 460; no distinction is taken in any of these cases as to the manner in which death caused.

3 1 Russ. Cr. 712.

Founded on 1 Hale, 455-6. The judges doubted whether the case was murder or manslaughter, and no judgment was delivered, but the prisoner was pardoned. This would no doubt be held to be manslaughter at the present day.

8 Lord Byron's Case, 11 S. T. 1177; R. v. Walters, 11 S. T. 114; and 1 Russ.

Cr. 727-32 and 790, where other cases are cited.

M

and upon the spot, whether with deadly weapons or otherwise, each gives provocation to the other, whichever is right in the quarrel, and whichever strikes the first blow.

(c.) 1An unlawful imprisonment is a provocation to the person imprisoned, but not to the bystanders, though an unlawful imprisonment may amount to such a breach of the peace as to entitle a bystander to prevent it by the use of force sufficient for that purpose. An arrest by officers of justice, whose character as such is known, but who are acting under a warrant so irregular as to make the arrest illegal, is provocation to the person illegally arrested, but not to bystanders.

2

(d.) The sight of the act of adultery committed with his wife is provocation to the husband of the adulteress on the part both of the adulterer and of the adulteress.

(e.) 3 The sight of the act of sodomy committed upon a man's son is provocation to the father on the part of the person committing the offence.

4

(f.) Neither words, nor gestures, nor injuries to property, nor breaches of contract, amount to provocation within this Article, except [perhaps] words expressing an intention to inflict actual bodily injury, accompanied by some act which shews that such injury is intended; 5 but words used at the time of an assault-slight in itself-may be taken into account in estimating the degree of provocation given by a blow.

(g.) The employment of lawful force against the person of another is not a provocation to the person against whom it is employed.

For the first part of the clause see Buckner's Case, 1 Russ. Cr. 785; R. v. Withers, Ibid. For the latter part, compare Huggett's Case, Sir H. Ferrer's Case, Tooley's Case, and Adey's Case, with Foster's remarks on Tooley's Case; 1 Russ. Cr. 753-7. See also 1 Hawk. P. C. 489; R. v. Osmer, 5 Ea. 308. Also Illustration (5), and Note IX.

2 Cases cited, 1 Russ. Cr. 786. I am not aware that it has ever been decided that adultery by the husband is provocation to the wife.

3 R. v. Fisher, 8 C. & P. 182.

1 East, P. C. 232; 1 Rust. Cr. 711, 784.

1 Russ. Cr. 711, note v.; Lord Morley's Case, 1 Hale, P. C. 455; R. v. Sherwood, 1 C. & K. 536, and see R. v. W. Smith, 4 F. & F. 1066.

6 Illustration (12).

Illustrations.

(1.) 1A, a woman, gives B, a soldier, a slap in the face. A has not given B provocation within this Article.

(2.) 2A, a woman, strikes B, a soldier, with a heavy clog violently in the face and wounds him. A has given B provocation within this Article.

3

(3.) A pulls B by the nose. A has given B provocation within the meaning of this Article.

4

(4.) A attempts to arrest B on an irregular warrant and in an irregular way. B shoots A dead. This is manslaughter by reason of the provocation given by B to A.

(5.) A arrests B under an irregular warrant and conveys him to gaol. C, D, and others attempt to rescue B. A resists, and one of the party shoots A dead. This is murder in C, D and all their party.

6

(6.) A and B, armed with swords, quarrel, draw their swords, and fight. Each gives the other provocation.

(7.) A and B quarrel, and agree together to fight, and do fight, a duel next day. Neither gives the other such provocation as would reduce the offence to manslaughter if either is killed.

(8.) A and B quarrel, and upon the spot agree to fight with their fists. A, from the beginning of the fight, uses a knife and kills B. A has not received such provocation from B as reduces his offence to manslaughter.

(9.) A and B quarrel and agree to fight with their fists. In the course of the fight A snatches up a knife, which happens to be near, and which he has not previously provided, and kills B. A has received such provocation from B as reduces his offence to manslaughter.

(10.) 10 A, at a tavern, throws a bottle at B's head and draws his sword B throws a bottle at A's head. A kills B. A has not received such provocation from B as reduces his offence to manslaughter.

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(11.) "A and B quarrel and fight in a public-house. A leaves the public-house, says he will kill B, conceals a sword under his coat, returns to the public-house, tempts B to strike him with a stick, saying, "Stand

1 Stedman's Case, Fost. 292.

2 Ibid.

31 East, P. C. 233.

R. v. Stevenson, 19 St. Tr. 846. This case must be understood to be suject to the provisions of the next Article.

5 This is the case of the Fenians executed at Manchester in 1867, for shooting Brett, a police constable in charge of a police van containing a Fenian prisoner. See Note IX.

6 R. v. Walters, 12 St. Tr. 113; and see R. v. Lord Byron, 11 St. Tr. 177.

1 R. v. Cuddey, 1 C. & K. 210; R. v. Barronet, and R. v. Barthelemy, Dears.

51 and 63, are recent cases of duelling.

R. v. Anderson, 1 Russ. Cr. 731.

9 Ibid.

10 R. v. Mawgridge, Kel. 128-9; Foster, 295-6.

11 Mason's Case, Foster, 132.

off, or I'll stab you," and without giving B time to retreat, does stab him mortally. A does not receive from B such provocation as reduces his offence to manslaughter.

1

(12.) 1 A attacks B in such a manner as to endanger B's life. B drives off and pursues A. A in self-defence kills B. This is murder in A.

ARTICLE 225.

WHEN PROVOCATION DOES NOT EXTENUATE HOMICIDE.

2 Provocation does not extenuate the guilt of homicide unless the person provoked is at the time when he does the act deprived of the power of self-control by the provocation which he has received, and in deciding the question whether this was or was not the case, regard must be had to the nature of the act by which the offender causes death, to the time which elapsed between the provocation and the act which caused death, to the offender's conduct during that interval, and to all other circumstances tending to shew the state of his mind.

Illustrations.

(1.) A and B violently quarrel, and throw bottles at each other at a tavern, A throwing the first bottle. The company interfering, they remain quiet for an hour, B wishing to be reconciled. A refuses, and says he will have B's blood. When B and the rest of the company leave, A calls B back in terms of insult, and fights with him with swords; B is killed. A commits murder, though the fight is on equal terms. (2.) B strikes A with his fist. A, being the stronger man of the two, throws B down on the ground, and beats out his brains with a poker. A commits murder.

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(3.) A and B quarrel and fight. B, getting the best of the fight, leaves A. A throws a coal-pick at B and injures him, and then wounds him with a knife. B leaves the house, saying to A, "You have killed me." A says to a third person, "I will have my revenge." B returns to the house soon afterwards and A stabs him again and kills him. A has committed murder.

1 Bacon's Maxims, 37, 38.

suppose B. is trying to arrest A.

2 See the cases quoted in the Illustrations, and R. v. Lynch, 5 C. & P. 324. Draft Code, s. 176.

3 R. v. Oneby, 2 Str. 766; 1 Russ. Cr. 730-1.

Per Parke, B. in R. v. Thomas, 7 C. & P. 817.

5 R. v. Kirkham, 8 C. & P. 115.

1

(4.) 1 A is turned out of a house and kicked by B. A runs to his own house, between 200 and 300 yards off, returns with a knife, and meeting B, stabs him after walking quietly with him some yards. A then runs back and puts his knife in its usual place. The deliberation shewn in fetching and replacing the knife are facts to be considered by the jury in deciding whether or not A committed the offence whilst deprived of selfcontrol by passion.

(5.) 2 Police-officers in charge of a police-van have in custody D, a person charged with felony under 11 Vict. c. 12. A, B, and C, and others assault the van in concert, rescue the prisoner, and shoot one of the policemen dead with a pistol. The warrant under which D was in custody was informal, but not to the knowledge of A, B, and C. A, B, and C and the others are guilty of murder, and it would have made no difference if they had known of the irregularity of the warrant.

ARTICLE 226.

PROVOCATION TO THIRD PERSON.

3 Provocation to a person by an actual assault or by a mutual combat, or by a false imprisonment, is in some cases provocation to those who are with that person at the time, and to his friends who, in the case of a mutual combat, take part in the fight for his defence. But it is uncertain how far this principle extends.

4 A

ARTICLE 227.

SUICIDE-ABETTING SUICIDE.

person who kills himself in a manner which in the case of another person would amount to murder is guilty of

1 R. v. Hayward, 6 C. & P. 157.

This is the case of R. v. Allen and Others, the Fenians, who murdered Brett, the policeman. See Note IX.

31 Russ. Cr. (5th ed.) 704-5. The passage referred to is taken from Hawkins. See Cary's Case (p. 705), which is this: "A and B were fighting in a field in a quarrel. C, A's kinsman, casually riding by and seeing them in fight and his kinsman one of them, rode in, drew his sword, thrust B through and killed him, Coke, C.J., and the rest of the Court agreed that this is clearly but manslaughter in him (i.e. C) and murder in the other, for the one may have malice and the other not." I should have said C's offence was infinitely worse than A's, and I do not think this case would be followed in the present day.

1 Hale, P. C. 411-419. See R. v. Fretwell, L. & C. 161; R. v. Russell, 1 Mood. 356. Draft Code, s. 183.