boiling to the moment of the stabbing. (1) And, if a man find another in the act of adultery with his wife, and kill him or her, on the spot, this is only manslaughter, on account of a provocation so great that the law reasonably concludes it to be unbearable in the first transport of passion (2) So, if a father see another in the act of committing an unnatural offence with his son, and smarting under this provocation instantly kill him, it is but manslaughter. (3) There are authorities to the effect that mere words or gestures,--no matter how insulting or how expressive of contempt or reproach,-will not, without an actual assault, be sufficient to reduce homicide to manslaughter. (4) But Mr. Justice Blackburn, in refering to this doctrine, treated it as a generat rule, which, under special circumstances, may have exceptions, as shewn by the following extract from his remarks in Rothwell's case:-" As a general rule of law no provocation of words will reduce the crime of murder to that of "manslaughter; but under special circumstances there may be such a provoca"tion of words as will have that effect; for instance, if the husband suddenly hearing from his wife that she had committed adultery, and, he having no 44 idea of such a thing before, were thereupon to kill her, it might be manslaughter. 5) And in commenting on this, Russell expressly agrees with Mr. Justice Blackburn's view of the law as here stated (6). There seems to be no doubt that, if the words which have provoked a killing are threats to do seriously bodily harm and are accompanied by some act shewing an evident intention of immediately following them up by actual physical force and violence, they will in that case also be such a provocation as would reduce the killing to manslaughter. (7) Whether a person acting under provocation and killing the provoker of his wrath, will be guilty of murder or manslaughter, will depend of course not only upon the nature of the provocation, but upon the nature and violence of the retaliation, and the weapon, if any, used. For although an assault with violence may reduce the offence of killing to manslaughter, when the party assailed, immediately, and in the heat of blood, resents the assault by killing his assailant, (8) it is not to be understood that the offence will be extenuated by every trifling provocation which, in point of law, may amount to an assault, nor even by an actual blow, in all cases; (9) nor that the retaliation may consist of violent acts of resentment bearing no proportion to the provocation or insult given and proceeding rather from brutal malignity than from human frailty. All such acts of retaliation are simply barbarous; and barbarity will often make malice. (10) For instance, A & B quarrelled about some money that A had won from B. and which B wanted back. A would not give up the money; so B struck him, and A knocked B down; B got up, and A knocked him down again, and kicked him. A then put a rope round B's neck and after strangling him dragged his dead body into a ditch. deliberate that nothing could justify them. (11) And where a wife scolded and chided her husband till he struck her with a pestle, so that she died, the husband was held guilty of murder, the pestle being a weapon likely to endanger life and the chiding being no provocation to extenuate the act to manslaughter. (12) A's acts amounted to murder and were so wilful and (1) Stedman's case, Fost. 292. (2) 1 Hale, 486; R, v. Kelly, 2 C. & K. 814; 1 Russ. Cr, 5 Ed. 687, 692. (3) R. v. Fisher, 8 C. & P. 182. See article 229 of the Code post. (4) Fost. 290. (5) R. v. Rothwell, 12 Cox, C. C. 145; 1 Russ. Cr. 677. (6) 1 Russ. Cr. 677 note (a). See par. 2, article 229 of the Code, post. p. 233. (9) Rex. v. Lynch, 5 C. & P. 324; 4 Bl. Com. 199; 1 Russ. Cr. 681. (10) Keate's case, Comb. 408; 1 Russ. Cr. 678. (11) Rex. v. Shaw, 6 C. & P. 372; 1 Russ. Cr. 681. (12) kel. 64; 1 Hale, 456; 1 Russ. Cr. 677. In order to reduce a homicide, upon provocation from murder, to manslaughter it is essential in all cases that the killing should appear to have been done immediately on the provocation being given; for if there be sufficient cooling time for passion to subside and reason to interpose before the killing, it will be deliberate revenge, not heat of blood, and will amount to murder; (1) it being presumed, in that case, that the offender meant (in the terms of article 227, post) to cause death, and was actuated by what, under the old law, was known as express malice. (?) 47. Prevention of assault with insult.-Every one is justified in using force in defence of his own person, or that of any one under his protection, from an assault accompanied with insult: Provided, that he uses no more force than is necessary to prevent such assault, or the repetition of it: Provided also, that this section shall not justify the wilful infliction of any hurt or mischief disproportionate to the insult which the force used was intended to prevent. 48. Defence of moveable property.-Every one who is in peaceable possession of any moveable property or thing, and every one lawfully assisting him, is justified in resisting the taking of such thing by any trespasser, or in retaking it from such trespasser, if in either case he does not strike or do bodily harm to such trespasser; and if, after any one, being in peaceable possession as aforesaid, has laid hands upon any such thing, such trespasser persists in attempting to keep it or to take it from the possessor, or from any one lawfully assisting him, the trespasser shall be deemed to commit an assault without justification or provocation. Under this article, the fact of a trespasser persisting in attempting to take or keep the thing after the possessor has laid hands upon it, places the latter in the position of a person acting in self-defence, as contemplated by article 45. 49. Every one who is in peaceable possession of any moveable property or thing under a claim of right, and every one acting under his authority, is protected from criminal responsibility for defending such possession, even against a person entitled by law to the possession of such property or thing, if he uses no more force than is necessary. 50. Every one who is in peaceable possession of any moveable property or thing, but neither claims right thereto nor acts under the authority of a person claiming right thereto, is neither justified nor protected from criminal responsibility for defending his possession against a person entitled by law to the possession of such property or thing. 51. Defence of dwelling House.—Every one who is in peaceable possession of a dwelling-house, and every one lawfully assisting him or acting by his authority, is justified in using such force as is necessary to prevent the forcible bieaking and entering of such dwelling (1) Fost. 296; R. v. Thomas, 7 C. & P. 817; Arch. Cr. Pl. & Ev. 20 Ed. 723; R. v. Hayward, 6 C. & P. 157. (2) R. v. Mason, Fost. 132; R. v. Kirkham, 8 C. & P. 115; Arch. Cr. Pl. & Ev. 723. house, either by night or day, by any person with the intent to commit any indictable offence therein. 52. Every one who is in peaceable possession of a dwelling-house, and every one lawfully assisting him or acting by his authority, is justified in using such force as is necessary to prevent the forcible breaking and entering of such dwelling-house by night by any person, if he believes, on reasonable and probable grounds, that such breaking and entering is attempted with the intent to commit any indictable offence therein. The distinctions made by these two articles appear to be that, where there is an actual intent to commit an indictable offence, necessary force to prevent the breaking and entering may be used whether it is attempted by night or by day; but if there be merely a reasonable belief that the breaking and entering is attempted will intent to commit an indictable offence, the attempted breaking and entering must occur in the night time, to justify the use of force to prevent it. Breaking means to break any part of a building, or to open, by any means, any door, window, shutter, cellar-flap, or other thing intended to cover openings to the building or to give passage from one part of it to another; and an entrance is made as soon as any part of the body of the person entering or any part of any instrument used by him is within the building. (1) While these two articles have reference to a breaking and entering with intent to commit an indictable offence, article 53 deals with the case of a mere trespasser. 53. Detence of real property.-Every one who is in peaceable possession of any house or land, or other real property, and every one lawfully assisting him or acting by his authority, is justified in using force to prevent any person from trespassing on such property, or to remove him therefrom, if he uses no more force than is necessary; and if such trespasser resists such attempt to prevent his entry or to remove him such trespasser shall be deemed to commit an assault without justification or provocation. Here, again the fact of a trespasser resisting the possessor's lawful efforts to prevent his entry or to effect his removal from the property places the possessor in the position of a person acting in self defence as contemplated by section 45. ILLUSTRATIONS. A a trespasser enters B's house and refuses to leave it. B is entitled to use all necessary force to remove A, but not to strike him. If, on B applying such necessary force, A resists, which is equivalent to an unprovoked assault, or if he otherwise actually assault B, B may defend himself, overcome A's resistance, and persist in using the necessary force to remove A from the house. (2) A, on entering his own house, found B there and desired him to withdraw, but B refused to go. Upon this, words ensued between them, and A becoming excited held guilty of manslaughter. (3) A was not justified in turning B out of the house by means of a kick, and was (1) See Article 407 post. (2) Hale P. C. 486; Burbridge Dig. Cr. L 195; 3 Steph. Hist. Cr. L. 15. (3) Wild's case, 2 Lew, 214 A and his servant B insisted on placing corn in C's barn, which she refused to allow A and B insisted and used force; a scuffle ensued, in which C received a blow on the breast, upon which she threw at A, a stone which killed him. It was held that, as A received the blow in an attempt to invade C's barn against her will, and as C had a right, in defending her barn, to employ such force as was reasonably necessary, for that purpose, she was not responsible for the unforeseen occurrence which happened in so doing (1). 54. Asserting right to house or land.-Every one is justified in peaceably entering in the day-time to take possession of any house or land to the possession of which he, or some person under whose authority he acts, is lawfully entitled. 2. If any person, not having or acting under the authority of one having peaceable possession of any such house or land with a claim of right, assaults any one peaceably entering as aforesaid, for the purpose of making him desist from such entry, such assault shall be deemed to be without justification or provocation. 3. If any person having peaceable possession of such house or land with a claim of right, or any person acting by his authority, assaults any one entering as aforesaid. for the purpose of making him desist from such entry, such assault shall be deemed to be provoked by the person entering. 55. Discipline of minors.—It is lawful for every rent, or person in the place of a parent, schoolmaster or master, to use force by way of correction towards any child, pupil or apprentice under his care, provided that such force is reasonable under the circumstances. The doctrine embodied in this article is that a parent, guardian, schoolmaster or master may inflict upon a minor child, ward, pupil, or apprentice, under his care, such force by way of correction as amounts to moderate chastisement. But he must not go beyond this; if he does, he will be liable to be indicted for assault and battery, or,-if his excessive chastisement causes the child's death, -for culpable homicide (2). The right of a teacher to chastise his pupil cannot be greater than that of the parent over the child. And so where a schoolmaster, beat a scholar for two hours with a thick stick the beating was unlawful. (3) Nor can the teacher of a mere day scholar, living with the parents, usurp the parental function of chastising for faults committed at home. (4) 56. Discipline on ships.—It is lawful for the master or officer in command of a ship on a voyage, to use force for the purpose of maintaining good order and discipline on board of his ship, provided that he believes, on reasonable grounds, that such force is necessary, and provided also that the force used is reasonable in degree. 57. Surgical operations.-Every one is protected from criminal responsibility for performing with reasonable care and skill any surgical operation upon any person for his benefit, provided that (1) Hinchcliffes case, 1 Lew, 161; 1 Russ. Cr. 5 Ed. 687. (2) 3 Greenl. Ev. s. 63; Rex, v. Cheeseman, 7 C. and P. 455; Rex v. Hazel, 1 Leach, 368; 1 East P. C. 236; Rex v. Conner 7 C. & P. 438, 1 Bish. New Cr Law Com. p. 531. (3) Rex v. Hopley, 2 F. & J. 202. (4) 1 Bish. New Cr Law Com. p. 535. performing the operation was reasonable, having regard to the patient's state at the time, and to all the circumstances of the case. See Article 212 post. 58. Excess. Every one authorised by law to use force is criminally responsible for any excess, according to the nature and quality of the act which constitutes the excess. 59. Consent to death.-No one has a right to consent to the infliction of death upon himself; and if such consent is given, it shall have no effect upon the criminal responsibility of any person by whom such death may be caused. ILLUSTRATIONS If A and B agree to fight a duel together, with deadly weapons, and either is killed in the duel, his consent will make no difference to the criminal responsibility of the other. If A be suffering from a tumor or other serious malady, he has a right to allow B. a surgeon, to perform a surgical operation considered reasonable and necessary for the purpose of relieving or curing him; and if he happen to die under or in consequence of the operation, B will (under article 571) be free from criminal responsibility if he has used in the operation reasonable knowledge, care required by article 212 post. and skill, as 60. Obedience to 'de facto ' law.—Every one is protected from criminal responsibility for any act done in obedience to the laws for the time being made and enforced by those in possession (de facto) of the Sovereign power in and over the place where the act is done. PART III. PARTIES TO THE COMMISSION OF OFFENCES. 61. Parties to offences.-Principals.—Every one is a party to and guilty of an offence who : (a) actually commits it; or (b.) does or omits an act for the purpose of aiding any person to commit the offence; or (c.) abets any person in commission of the offence; or (d) counsels or procures any person to commit the offence. 2. If several persons form a common intention to prosecute any unlawful party to purpose, and to assist each other therein, each of them is a offence committed one of them in the cution of such common purpose, the commission of which offence the prosecution of such common purpose. Ought to have been known to be a probable consequence of was, or |