V. Cases where the killing takes place in the prosecution of some other criminal, unlawful, or wanton act. VI. 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. Words of provocation, SECT. I. Cases of Provocation. Whenever death ensues from 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 ргоduced 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 (g) 1 Hale 466. 1 Hawk. P. C. c. (i) Ante, 434, 435. (k) Fost. 291. 1 East. P. C. c. 5. s. 20. p. 233. (1) Lord Morley's case, 1 Hale 455. The same case is mentioned in Kel. 55.; but no such position is there stated. (m) 1 East. P. C. c. 5. s. 20. p. 233. 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 Provocation indignity upon a man's person, as by pulling him by the nose, by assault. 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 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 indigna tion boiling to the moment of the fact. (r) Where a man has been injuriously, and without proper authority Provocation restrained of his liberty, the provocation has been considered suf- by restraining ficient to extenuate; as where a creditor placed a man at the a person of his liberty. 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 (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. (p) 1 Hale 455. Lanure's case. Provocation by, detecting adulterer. Provocations of a slight kind, which have been allowed to ex tenuate, where the party killing has not acted with cruelty, or used dangerous instruments. 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 kills him in the first transport of passion, he is only guilty of 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) There are instances, where 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. (x) 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. (y) 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, (*), 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. (a) And, à 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 unfor (s) Buckner's case, Sty. 467. (u) Manning's case, T. Raym. 212. tunately, and against his intent, killed him, it would only have been manslaughter. (b) Where a person, whose pocket had been picked, encouraged by Ducking a a concourse of people, threw the pickpocket into an adjoining pickpocket. 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 imbecillities of human nature, where certain provocations are given. (c) In a case where the prisoner's son having fought with another boy 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 other boy upon the head, upon which he died; it was ruled to be manslaughter, because done in sudden heat and passion (d) 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. (e) Father taking up the quarrel of his son. instrument used by the party killing. Several other cases are reported, in which the nature of the in- Nature of the strument used led to a lenient consideration of the homicide, on the ground that such instrument was not likely to endanger life. Thus, where a man, who was sitting drinking in an alehouse, being called by a woman 66 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. (f) 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 skains 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. (g) 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. (h) : In a case where the prisoner, who was a butcher, had employed (b) 1 East. P. C. c. 5. s. 22. p. 237. (c) Fray's case. Old Bailey, 1785. 1 Hawk. P. C. c. 31. s. 38. I East. P. C. c. 5. s. 22. p. 236. (d) Rowley's case, 12 Rep. 87. Hale 453. 1 (e) Fost. 294, 295. Cro. Jac. 296. Godb. 182. See the case ante, 438, 439. (ƒ) 1 Hale 455, 456. 1 East. P. C. c. 5. s. 22. p. 236. (g) 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. (h) Turner's case, Comb. 407, 408., and cited in 1 Ld. Raym. 142, 144. 2 Ld. Raym. 1498. The clog was a small one; and Holt, C. J. said, that it was an unlikely thing to kill the boy. 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 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. (¿) It has been before shewn, 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; (k) and that even where there may have been previous struggling or blows, such plea cannot be admitted, where there is evidence of express malice. (1) 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 : (m) 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.(n) 1 Jac. 1. c. 8. 8. 2. SECT. II. Cases within the Statute of Stabbing,-1 Jac. 1. c. 8. By this statute, " every person and persons, who shall stab or thrust any person or persons, that hath not then any weapon "drawn, or that hath not then first stricken the party which "shall so stab or thrust, so as the person or persons so stabbed or "thrust shall thereof die within six months then next following, (1) Wiggs's 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, 438, 439, 461. (k) Ante, 442. Fost. 296. (1) Ante, 440, 441. 1 East. P. C. c. 5. Mason's case, ante, |