venture.

2. By misad- Mr. Justice Foster denies Rampton's case (Kel. 41) to be law: and, indeed, there is a quære put to it in the margin of the report. The pri soner had found a pistol in the street, which he had reason to believe was not loaded, having tried it with the rammer, which had gone dow into the muzzle of the pistol; the rammer, in fact, being too short. He carried the pistol home, and his wife standing before him, he cocked i and touched the trigger; on which the pistol went off and killed the woman. This was ruled manslaughter. In truth, the man had used the ordinary precaution adapted to the probability of danger in such cases: he had examined the pistol by the usual method of trial. And though it was doubtless an idle frolic, yet the heart was free from all sort d guilt, even the guilt of negligence; and therefore the act ought to have been excused. And the same learned judge determined accordingly ina case something similar.

Unlawful acts.

Evil intent.

Action for trespass.

This kind of ho

Upon a Sunday morning, a man and his wife going to dine at a friend's house in the neighbourhood, he carried his gun with him, to divert himself on his way; but before dinner he discharged it, and set it up in a private place in his friend's house. After dinner he went to church, and in the evening returned home with his wife and neighbours, bring ing his gun with him; which was put into the room where his wife was she having brought it part of the way. He, taking it up, touched the trigger, and the gun went off, and killed his wife. It came out in eridence, that, while the man was at church, a person belonging to the fi mily privately charged the gun, and went after some game; but before the service at church was ended, returned it loaded to the place from whence he had taken it; and where the defendant, who was ignorant of all that had passed, found it to all appearance as he had left it. Mr. Justi Foster thought it unnecessary to inquire whether the man had examined the gun before he carried it home; but being of opinion, upon the whee evidence, that he had reasonable grounds to believe that it was pa loaded, he directed the jury, that if they were of the same opinion, they should acquit him: and he was acquitted. (Fost. 265).

A gentleman came to town in a chaise, and before he got out of it fired his pistols in the street, which by accident killed a woman. This was ruled manslaughter: the act was likely to breed danger, and manifestly improper. (Burton's case, 1 Str. 481; 1 East's P. C. 266).

It has already been observed, that this homicide is only when it hap peneth upon a man's doing a lawful act; for, if the act be done in the prosecution of a felonious intention, it will be murder. (1 Rus. 54) For it is a general rule in case of all felonies, that, wherever a man intending to commit one felony happens to commit another, he is as much guilty as if he had intended the felony which he actually commits (1 Hawk. c. 29, s. 11). As, if A. shoot at the poultry of B., intending t steal them, and by accident kill a man, this is murder. (Fost. 258,259)

Further, if there be an evil intent, though that intent extendeth n to death, it is murder. Thus, if a man, knowing that many people are in the street, throw a stone over a wall, intending only to frighten them, or to give them a little hurt, and thereupon one is killed, this is murder for he had an ill intent, though that intent extended not to death, and though he knew not the party slain. (3 Inst. 57).

But in all the cases above, if it doth only hurt a man by such an acci dent, it is nevertheless a trespass; and the person hurt shall recover his damages: for though the chance excuse from felony, yet it excuseth not from trespass. (1 Hale, 472).

This homicide is not felony, because it is not accompanied with a fel micide no felony. nious intent, which is necessary in every felony. (1 Hawk. c. 29, s. 11).

Forfeiture.

Although this homicide is not properly a man's crime, but his misfor tune, yet, because the queen hath lost her subject, and in respect of the great favour the law hath to the life of man, and to the end that men should use all care, diligence, and circumspection, in all they do, that no

hurt should come of their actions, a person convicted hereof, before the 9 Geo. IV. c. 31, s. 10, forfeited his goods; but by that statute he is exempted from all punishment. (See post, 808).

3. Manslaughter.

III. Manslaughter.

what.

Manslaughter is thus defined-The unlawful killing of another with- Manslaughter, malice either express or implied: which may be either voluntarily, upon a sudden heat: or involuntarily, but in the commission of some unlawful act. (4 Blac. Com. 191; 1 Hale, 466; 1 Hawk. c. 30, s. 1; 1 East's P.C. 218).

There is no difference between murder and manslaughter, but that murder is upon malice forethought, and manslaughter upon a sudden occasion.

As if two meet together, and, striving for the wall, the one kill the Fighting. other, this is manslaughter and felony. And so it is, if they had upon that sudden occasion gone into the field and fought, and the one had killed the other, this had been but manslaughter, and no murder; because all that followed was but a continuance of the first sudden occasion, and the blood was never cooled till the blow was given. (3 Inst. 55). If two persons quarrel and fight, and one runs away, and when the other overtakes him, he pulls out a knife and stabs him, if death ensue, this is manslaughter; but murder if he ran away with the intention of getting out the knife. (R. v. Kessal, 1 C. & P. 437; and see 1 East, P. Č. 243; R. v. Taylor, 5 Burr. 2793; R. v. Anderson, 1 Russ. 447). Where, after mutual blows between the defendant and the deceased, the defendant knocked the deceased down, and, after he was upon the ground, stamped upon his stomach and belly with great force, and thereby killed him: this was held to be only manslaughter. (R. v. Ayes, Ř. & R. 166). Where the defendant and others quarrelled in a public-house, and there was an affray amongst them, and the defendant threw the deceased on the ground and was beating him severely, when some person calling to him not to murder the man, he said, "Damn him, I will murder him," upon which one of the party gave the defendant a blow and knocked him down; the defendant then went into the yard, and in about a minute returned in a violent passion with a pitch-fork; in the mean time, the deceased had armed himself with a fire shovel, and had struck one of the defendant's party on the head, when the defendant, not seeing the blow, returned from the yard and from behind ran one of the points of the fork into the deceased's temple, of which he died; it was doubted by some of the judges whether this was more than manslaughter, and accordingly the defendant was recommended for a conditional pardon. (R. v. Rankin, R. & R. 43).

If upon a sudden quarrel the parties fight upon equal terms, it matters not who gives the first blow, (1 Russ. on Crimes, 587; 1 Hale, 456), but it would be otherwise if the party killing began the attack under circumstances of undue advantage-as, if A. and B. quarrel, and A. draw his sword and make a pass at B., and B. thereupon draw his sword, and they fight, and B. is killed; A. would be guilty of murder: for this making the pass before B. had drawn his sword shews that he sought his blood. Fost. 295). So, where A. and B. quarrelled, and A. threw a bottle at B., and then drew his sword, and B. then threw the bottle back at A., and wounded him, upon which A. immediately stabbed him; this was holden to be murder. (R. v. Mawgridge, Kel. 128).

But the terms need only be equal at the commencement of the fray; for if on any sudden quarrel blows pass, 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 amount to manslaughter. (1 East, P. C.

VOL. III.

FFF

First blow immaterial, if terms

equal.

3. Manslaughter.

Third person interfering in combat of others;

to part them.

Aiming at one person, killing another.

Provocation by words, &c.;

by assault;

c. 5, s. 26; R. v. Snow, 1 Leach, 151). But the conclusion will be different if there were any previous preparation, as if a person being in possession of a deadly weapon, entering into a contest with another, intending at the time to avail himself of it, and in the course of the contest actually use it and kill the other, it will be murder. (Reg. v. Smità, 8 C. & P. 160).

And generally, if there be circumstances in the case indicative of malice in the party killing, it will be murder. Thus, if two persons quarrel and afterwards fight, and one of them kill the other-in such a case, if there intervened, between the quarrel and the fight, a sufficient cooling time for passion to subside, and reason to interpose, the killing would be murder. (Fost. 296; 1 Hale, 453; R. v. Lynch, 5 C. & P. 324). Or if A. had formed a deliberate design to kill B., and after this they meet and have a quarrel, and many blows pass, and A. kill B., this will be murder, if the jury are of opinion that the death was in consequence of previous malice and not of the sudden provocation, (Reg. v. Kirkham, 8 Car. & P.115).

If, when two persons are fighting, a third come up, and take the par of one of them, and kill the other; this will be manslaughter in the third party; (1 Hawk. c. 31, ss. 35, 36); and murder or manslaughter in the person whom he assisted, according as the fight was deliberate and premeditated, or upon a sudden quarrel. (Id. s. 55). If the fighting, however, were deliberate, or otherwise of malice, and the third party, when he interfered, knew it to be so, the killing would be murder, both in the party who thus interfered, and in the person whom be assisted. (1 East's P. C. 291, 292). If, on the other hand, the third party who thus interferes be killed, it is but manslaughter. (Id.; and see 12 Co. 87; Kel. 59).

If a person interfere with intent to part combatants, but do not signify such intent, and he be killed by one of the combatants, this is but manslaughter. (1 Hawk. P. C. c. 31, s. 56). So if he do more than is necessary to separate them. (Rex v. Bourne, 5 C. & P. 120).

If a blow aimed at one person light upon another, and kill him, the offence will be the same as if the person aimed at had been kill-i; thus a woman, in a fit of anger with her child, threw a poker at him, but struck another child who was entering the room at the moment, this was held manslaughter. (Rex v. Connor, 7 C. & P. 438).

It seems to be agreed, that no breach of a man's word or promise, na trespass either to lands or goods, no affront by bare words or gestures, however false or malicious it may be, and aggravated with the most provoking circumstances, will excuse him from being guilty of murder, who is so far transported thereby as immediately to attack the person who offends him in such a manner as manifestly endangers his life, without giving him time to put himself upon his guard, if he kills him in pursuance of such an assault, whether the person slain did at ali fħi in his defence or not. (1 Hawk. c. 31, s. 33).

Nor can any provocation whatever render homicide justifiable, or even excusable; the least it can amount to is manslaughter. If a man kill another suddenly, without any, or without a considerable provoc tion, the law implies malice, and the homicide is murder; but if the provocation were great, and such as must have greatly provoked him. the killing is manslaughter only. (Kel. 135; 1 Hale, 466; F. 290).

If a man pull another's nose, or offer him any other great perseas! indignity, and the other thereupon immediately kill him, it is manslaughter only. (Kel. 135; 4 Bl. Com. 191). But slight provocation even by a blow will not extenuate the crime where the revenge is de proportioned to the injury, or outrageous and barbarous in its nature; as, if a man, upon being gently pushed by a policeman to make him move on when causing an obstruction, kill him, this is murder.

v. Hagan, 8 C. & P. 167; see also Stedman's case, Fost. 292; R. v. 3. ManLynch, 5 C. & P. 324).

slaughter.

If a man take another in adultery with his wife, and kill him directly by adulterer; upon the spot, this is manslaughter merely. (1 Hale, 486; R. v. Manning, T. Raym. 212).

So, if a father see another person in the act of committing an unna- by offence on tural crime with his son, and instantly kill him, it is manslaughter children; only; but if, hearing of it, he go in quest of the party and kill him, it is murder. (Reg. v. Fisher, 8 C. & P. 182).

Where a boy, after fighting with another, ran home bleeding to his father; and the father immediately took a small cudgel, and ran three quarters of a mile to the place where the other boy was, and struck him a single blow with the stick, of which blow the boy afterwards died; this was holden to be manslaughter only. (R. v. Rowley, 12 Co. 87; and see Fost. 294). But the true grounds of this 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.

An unwarrantable imprisonment of a man's person has been holden by imprisonment. sufficient provocation to make a killing, even with a sword, manslaughter only. (R. v. Buckner, Sty. 467). Therefore, where a constable took a man without warrant, upon a charge which gave him no authority to do so, and the prisoner ran away, and J. S., who was with the constable all the time, ran after the prisoner, who, to prevent his being retaken, killed J. S.: it was holden to be manslaughter only, although, whilst under the charge of the constable, the prisoner struck the man who gave the charge; because a blow under the provocation of the illegal arrest would not justify the constable in detaining him, unless the blow were likely to be followed by dangerous consequences, and formed a new and distinct ground of detainer. (R. v. Curvan, R. & M. 132; see R. v. Thompson, R. & M. 88). So 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, this was held manslaughter. (R. v. Withers, 1 East, P. C. 233).

We have already seen that where a parent is moderately correcting Killing by his child, a master his servant or scholar, or an officer punishing a cri- correction, minal, and he happens to occasion his death, it is only misadventure; but if he exceeds the bounds of moderation, either in the manner, the instrument, or the quantity of punishment, and death ensue, it is manslaughter at the least, and in some cases (according to the circumstances) murder. (1 Hale, 473, 474). In all cases where the correction is inflicted with a deadly weapon, and the party dies of it, it will be murder; if with an instrument not likely to kill, though improper for the purpose of correction, it will be manslaughter. (Fost. 262). A mother, being angry with one of her children, took up a poker, and on his running to the door of the room, which was open, threw it after him and killed another child who was entering the room at the time; and it was holden to be manslaughter, although she did not intend to hit the child she threw the poker at, but merely to frighten him; because it was an improper mode of correction. (R. v. Connor, 7 C. & P. 438). Where a master struck his servant with one of his clogs, because he had not cleaned them, and death unfortunately ensued; it was holden to be manslaughter only, because the clog was very unlikely to cause death, and the master consequently could not have the intention of taking away the servant's life by hitting him with it. (R. v. Turner, Comb. 407, 408; and see R. v. Wigg, 1 Leach, 378, n.; and Anon., 1 East, P. C. 261; R. v. Leggitt, 8 C. & P. 191).

And though the correction exceeds the bounds of moderation, the Court will pay a tender regard to the nature of the provocation, where

3. Manslaughter.

Correction of seamen.

Other provocations.

Nature of the

instrument used.

the act is manifestly accompanied with a good intent, and the instrument not such as must in all probability occasion death; though the party were hurried to great excess. As was the case of a father, (Worcester Sp. Ass. 1775), whose son had frequently been guilty of stealing, complaints of which had come to the father, who had often corrected him. At length, the son being charged with another theft, and resolutely denying it, though proved against him, the father in a passion beat bis son with a rope, by way of chastisement for the offence, so much, that he died. The father expressed the utmost horror, and was in the greatest affliction for what he had done, intending only to have punished him with such severity as to have cured him of his wickedness. The learned Judge who tried the father consulted his colleagues in office. and the principal counsel on the circuit, who all concurred in opinie that it was only manslaughter, and so it was ruled. (1 East's P. C. 261), Persons on board a ship are necessarily subject to something like a despotic government, and it is extremely important that the law should regulate the conduct of those who exercise dominion over them. There fore, in a case of manslaughter against the captain and mate of a vessel, for accelerating the death of a seaman really in ill health, but whom, they alleged, they believed to be a skulker, the question will be, in der mining whether it is a slight or an aggravated case, whether the pe nomena of the death were such as would excite the attention of reasonable and humane men; and, in such a case, if the deceased be taken on board after he was discharged from an hospital, it is importat to inquire whether he was sent on board by the surgeon of the hos as a person in a fit state of health to perform the duties of a seaman (Reg. v. Leggett, 8 Car. & P. 191).

And there are other instances where slight provocations have be considered as extenuating the guilt of homicide, upon the grounds the conduct of the party killing, upon such provocations, might fair be attributed to an intention to chastise rather than to a cruel and im cable malice. But it must appear that the punishment was not with brutal violence. Thus, where A., finding a trespasser upon land, in his passion beat him, and, unluckily, happened to kill him,it holden to be manslaughter. (Fost. 291; 1 Russ. on Crimes, 582) So where a person, whose pocket has been picked, encouraged by a mob, threw the pickpocket into a pond, for the purpose of ducking him, but he was unfortunately drowned: this was holden to be slaughter. (R. v. Ray, 1 East, P. C. 236).

In considering, however, whether the killing upon prove amounts to murder or manslaughter, the instrument wherewith homicide was effected must also be taken into consideration; for were effected with a deadly weapon, the provocation must be grea deed to extenuate the offence to manslaughter; if with a weapon other means not likely or intended to produce death, a less degre provocation will be sufficient; in fact, the mode of resentment= bear a reasonable proportion to the provocation to reduce the offer manslaughter. So where a park-keeper, having found a boy s wood, tied him to a horse's tail, and dragged him along the park. the boy died of injuries he thereby received: this was holden1 murder. (1 Hale, 454). So, in all other cases, where, upon a s provocation, one beats another in a cruel and unusual manner, s he dies, it is murder. (4 Bl. Com. 199: and see R. v. Tranter 1 Str. 499; Fost. 293).

And it may safely be laid down as a general rule, that no word gestures, however opprobrious or provoking, will be considered in to be provocation sufficient to reduce homicide to manslaughter, killing be effected with a deadly weapon, or an intention to do the ceased some grievous bodily harm be otherwise manifested; be effected with a blow of a fist, or of a stick, or other weapon not