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Resistance to officer, felonious assault.

Previous malicious assault.

The party must try to quit the combat;

and must be in danger, to maintain his

excuse.

Defence of master by servant, &c.

Defence not

available to prevent a trespass.

Accessaries.

Manslaughter,

what.

Without malice.

Accessaries.

Nature of pro

circumstances.

And an officer who kills one that resists him in the execution of his office, and even a private person that kills one who feloniously assaults him in the highway, may justify the fact without ever giving back at all. 1 Haw. c. 29. § 16.

But if a person upon malice prepense strike another, and then fly to the wall, and there in his own defence kill the other, this is murder. Hale's Sum. 42.

It is said that, in the case of a sudden affray, all malice apart, it matters not who gave the first blow, if either party endeavour to decline the combat and retreat before a mortal wound be given. 1 Russ. 544.

But the party killing cannot in any case substantiate his excuse, if he kill his adversary even after a retreat, unless there were reasonable ground to apprehend that he would otherwise have been killed himself. 1 Russ. ibid.

The excuse of self-defence extends to the case of master and servant, parent and child, husband and wife, killing an assailant in the necessary defence of each other. 1 Russ. 545.

It is to be understood, however, that the same excuse does not extend to the case of homicide in endeavouring to prevent an illegal entry into a party's house, or in opposition to a trespass on his property. 1 Russ. 545.

Hereof there can be no accessaries either before or after the fact, because it is not done with a felonious intent, but upon inevitable necessity. 3 Inst. 56. See 9 G. 4. c. 31. ante, p. 339.

IV. Hanslaughter.

Manslaughter is thus defined: :- the unlawful killing of another without 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 Black. Com. 191. 1 Hale, 466. 1 Haw. c. 30. § 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 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.

There can be no accessaries to this offence before the fact, because it must be done without premeditation. 1 Haw. c. 30. § 2. 1 East's P. C. 218.

But there may be accessaries after the fact. 3 Inst. 55.

It is by no means, however, every provocation, however gross, vocation, and of which will reduce the offence of killing to manslaughter; words of reproach, insulting words or gestures, or trespasses against land or goods, will not of themselves make the killing to be manslaughter instead of murder, if the offender make use of a deadly weapon, or shew an intention to kill or to do some great bodily harm. 1 Russ.

A blow struck,

If A. provoke B. by words, and B. strike A. (not mortally), and

then A. strike again, and B. kill A., the stroke by A. is a new

provocation, and it will be manslaughter only. 1 Russ. ibid.

So, in case of other personal assaults, if it be resented imme- Other assaults. diately, and the aggressor killed in the heat of blood. 1 Russ. 487.

Unless indeed the revenge is disproportioned to the injury, and Outrageous outrageous and barbarous in its nature. Ibid.

revenge.

So, where a man is restrained of his personal liberty. 1 Russ. Imprisonment.

487.

So, where an adulterer has been detected by the husband with Adulterer dehis wife. 1 Russ. 488.

tected.

So, in many other cases, provocations which were not of any No use of serious nature have been allowed to extenuate the offence, where dangerous the party killing has not acted with cruelty, or used dangerous weapons. instruments. 1 Russ. 488. et seq.

But the plea of provocation will not avail the party killing, if it Where provocaappears that he sought for and induced the provocation, in order tion is sought to afford him an opportunity of wreaking his malice. 1 Russ. 490.

for.

In cases of combat arising upon sudden quarrel or provocation, Mutual comand before the parties have time to cool, it will be manslaughter bats. only if death ensue, provided no undue advantage be sought or taken on either side. 1 Russ. 495.

Though it is murder if any one kill an officer in the execution Officer or of his duty, in endeavouring to arrest such person, or kill a private other making individual legally assisting such officer, or legally taking such a lawful arrest. person into custody, for the purpose of bringing him to justice; yet this protection extends to such only as act upon proper authority, and use their authority in a proper manner: but if the officer or private person exceed his legal authority, it will be no longer murder, but manslaughter. 1 Russ. 501, 502.

So the process, whether it be writ or warrant, must not be Process must defective in the frame of it, and it must issue in the ordinary be substantially course of justice, from a court or magistrate having jurisdiction. valid.

1 Russ. 511.

But it is not material that there may have been error or irregu- Previous irrelarity in the proceedings previous to the issuing of the process. gularity, not 1 Russ. 511.

If the process, however, is defective in the frame of it, as, if there is a mistake in the name or addition of the person on whom it is to be executed; or if the name of the officer or the party be inserted without authority, and after the issuing the process, this will make the crime no more than manslaughter. 1 Russ. 512. On indictment against G. H. for stabbing I. S., to prevent the lawful apprehension of the said G. H., it appeared that I. S. acted under a warrant to take - H., of, &c. by whatsoever name he may be called or known, the son of Samuel H., to answer, &c. on the oath of F. B., an officer of the sheriff of W., for assaulting him in the execution of his duty, and that G. H. stabbed him for attempt ing to take him on that warrant: on case, twelve judges (all who met) held the warrant ill, because, if it omitted the Christian name, it should have assigned some reason, and have given some other distinguishing particulars of G. H.; and his conviction was held wrong. M. T. 1830, R. v. Hood, MS. Bayley B. S. C. 1 M. 281. Peace-officers, and all other ministers of justice, are bound not to exceed the necessity of the case in the execution of their duty. If, therefore, they proceed to extremities, and death ensue, upon

inaterial.

Warrant

having a blank tian name of the person to be apprehended, and giving no reason for such omission, and not furnishing any distinguishing particulars, is bad.

for the Chris

Officers must not use more required.

violence than

Correction of

child or apprentice, &c.

Death of child by unskilful midwife.

9 G. 4. c. 31.

Punishment of manslaughter,

Contra form.

stat. not necessary to warrant trans

portation for life.

Murder, what.

Malice expressed.

Malice implied.

a slight interruption, or without there being any reasonable necessity, it will be murder, or manslaughter, according as the circumstances of the case may vary. 1 Russ. 529. 532.

The same principles apply, also, where the death of a child or of an apprentice, &c. is occasioned by the undue correction of the parent or master. 1 Russ. 532.

Giving a child, whilst in the act of being born, a mortal wound upon the head as soon as the head appears, and before the child has breathed, will, if the child is afterwards born alive and dies thereof, and there is malice, be murder. E. T. 1832.

An unskilful man, who acted as midwife, to facilitate a woman's delivery, broke the child's skull before it had the opportunity to breathe, and the child died of the wound immediately after it was born: It was insisted, that as the child was not born when the wound was given, the prisoner could not be guilty of manslaughter. But Bolland B. at the trial, and the judges (thirteen) afterwards, held he might, and conviction right. E. T. 1832, R. v. Senior, MS. Bayley B. S. C. 1 M. 346.

By 9 G. 4. c. 31. § 9., every person convicted of manslaughter shall be liable, at the discretion of the court, to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned, with or without hard labour, in the common gaol or house of correction for any term not exceeding four years, or to pay such fine as the court shall award.

R. v. Robert Chatburn, R. v. Thomas Rushworth. These prisoners were tried before Bolland B., the former at York, the latter at Appleby, Sum. Ass. 1833, on indictments for murder, and were each convicted of manslaughter; and when sentence of transportation for life was about to be passed, it was objected, that as the indictment did not conclude contr. form. stat., such sentence could not be passed: -The learned judge thought it unnecessary to conclude contr. form. stat., where the offence was not created by statute, but only the punishment increased (2 Haw. 8th edit. 477. 1 Vent. 13. Thomas Burgen's case, 2 Hale, 191.); and passed sentence of transportation in each case, but took the opinion of the judges, who were unanimously of opinion that he was right. M. T. 1833. MS.

V. Murder.

Murder is, when a man of sound memory, and of the age of discretion, unlawfully killeth any person under the king's peace, with malice forethought, either expressed by the party, or implied by law, so that the party wounded or hurt die of the wound or hurt, within a year and a day. 3 Inst. 47.

By malice expressed, is meant a deliberate intention of doing any bodily harm to another, whereunto by law a person is not authorised. 1 Hale, 451.

And the evidences of such a malice must arise from external circumstances, discovering that inward intention; as lying in wait, menacings antecedent, former grudges, deliberate compassings, and the like, which are various, according to variety of circumstances. 1 Hale's Sum. 51.

Malice implied is in several cases; as when one voluntarily kills another without any provocation; for in this case the law pre

sumes it to be malicious, and that he is a public enemy of mankind. 1 Hale, 455, 456.

Poisoning also implies malice, because it is an act of deliberation. 1 Hale, 455.

Also when an officer is killed in the execution of his office, it is murder, and the law implies malice. 1 Hale, 457.

Also where a prisoner dies by duress of the gaoler, the law implies malice, by reason of the cruelty. 3 Inst. 52.

Malice pre

And in general, any formed design of doing mischief may be called malice, and therefore not such killing only as proceeds from pense. premeditated hatred or revenge against the person killed, but also. in many other cases, such as is accompanied with those circumstances that shew the heart to be perversely wicked, is adjudged to be of malice prepense, and, consequently, murder. 2 Haw.. . 31. 18. 2 Str. 766.

For when the law makes use of the term malice aforethought, as Malice aforedescriptive of the crime of murder, it is not to be understood in thought. that narrow restrained sense to which the modern use of the word malice is apt to lead one, a principle of malevolence to particulars; for the law by the term malice (malitia) in this instance meaneth, that the fact hath been attended with such circumstances as are the ordinary symptoms of a wicked heart, regardless of social duty, and fatally bent upon mischief. Fost. 256, 257.

And wherever it appears that a man killed another, it shall be intended prima facie that he did it maliciously, unless he can make out the contrary, by shewing that he did it on a sudden provocation, or the like. 1 Haw. c. 31. § 32.

Also, wherever a person in cool blood, by way of revenge, beats another in such a manner that he afterwards dies thereof, he is guilty of murder, however unwilling he might have been to have gone so far. 1 Haw. c. 31. § 38.

If A. procures B., an idiot or lunatic, to kill C., A. is guilty of the murder as principal, and B. is merely an instrument. So if A. lay a trap or pitfall for B., whereby B. is killed, A. is guilty of the murder as a principal in the first degree, the trap or pitfall being only the instrument of death. 1 Russ. 423.

Beating a person in cold

blood.

Killing by means of an idiot, &c.

&c.

Murder may be committed upon any person within the king's Killing an alien peace: therefore, to kill an alien enemy within the kingdom, un- enemy, outlaw, less it be in the heat and actual exercise of war, or to kill a Jew, an outlaw, one attainted of felony, or one in a premunire, is as much murder as to kill the most regular-born Englishman. 1 Russ. 424. The killing may be effected by poisoning, striking, starving, drowning, and a thousand other modes by which life may be tinguished; but there must be some external violence or corporal damage: and, therefore, where the mind is so affected by strong impressions, or by harsh and unkind usage, that either sudden death ensues, or some mortal disease is contracted, the killing is not such as the law can notice. 1 Russ. 425.

ex

It must be by some injury to the body.

If a man, however, does an act which is likely to lead to death, Acts from and of which death is actually the consequence, such killing may which death be murder, although no stroke be struck by himself, and no killing proceeds. may have been primarily intended as where a person carried his sick father, against his will, in a severe season from one town to another, by reason whereof he died; and where a harlot, being delivered of a child, left it in an orchard covered only with leaves,

By negligence and harsh usage towards an apprentice.

Death of
apprentice
through cruel

usage, want of
proper food,
&c.

in which condition it was killed by a kite; in these and similar cases it was considered that the acts so done, wilfully and deliberately, were of malice prepense. 1 Russ. 425.

Wherever there is found to be actual malice, or a wilful disposi tion to injure another, or an obstinate perseverance in doing an act necessarily attended with danger, without regard to the consequences, as if a master, by premeditated negligence, or harsh usage, cause the death of his apprentice, it will be murder. 1 Russ. 426. See R. v. Friend, C. C. R. 20.

Thus, where the prisoner, upon his apprentice returning to him from Bridewell, whither he had been sent for misbehaviour, in a lousy and distempered condition, did not take that care of him which his situation required, and which he might have done; not having suffered him to be in a bed on account of the vermin, but having made him lie on the boards for some time without covering, and without common medical care; and the death of the apprentice, in the opinion of the medical persons who were examined, was most probably occasioned by his ill treatment in Bridewell, and the want of care when he went home, and the medical persons inclined to think that, if he had been properly treated when he came home, he might have recovered; the court, under these circumstances, and others in favour of the prisoner, left it to the jury to consider, whether the death of the apprentice was occasioned by the illtreatment he received from his master after returning from Bridewell, and whether that ill-treatment amounted to evidence of malice; in which case they were to find him guilty of murder. The prisoner was found guilty of manslaughter. Self's case, 1 East's P. C. 226.

R. v. Squire and his wife, Stafford Lent Assizes, 1799, cor. Lawrence J. MS. The prisoner Charles Squire, and Hannah, his wife, were indicted at Stafford Lent Assizes, 1799, for the murder of Joseph Green, a parish apprentice, bound to the prisoner Charles. It was proved that both the prisoners had treated the apprentice in a most cruel and barbarous manner for a considerable length of time, by tying a cord round his middle when naked, and taking him to a brook, and drawing him by the rope up and down the brook over-head; by beating him naked with a twisted cord; by throwing flashes and sparks of fire from red-hot iron rods upon him when only in his shirt; by beating him with a redhot iron rod and burning him; by repeated beatings with files, hammers, and sharp instruments, and with rods and fists, so that he was seldom without burns, cuts, wounds, and black eyes; by suspending him naked by a cord round his middle to a beam on the top of the shop, with one leg tied to the other thigh, and the great toe of the other just touching the ground, and his hands buckled behind; by suspending him by the heels by a cord tied round his ancles up to the beam, and hanging with his head towards the ground, but not touching it, and his hands tied behind him, so that he was black in the face, and blood gushed out at his mouth; and leaving him in the shop in that situation and locking the door, so that he was speechless, and must inevitably have died, if a boy who passed by had not got the key, and gone into the shop and cut him down; by tying him and placing him on his naked back upon the floor in a small room all night, and other acts of inhuman barbarity; and, lastly, by not giving him sufficient food

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