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 administered 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. (q)

Where a person whose pocket had been picked, encouraged by a concourse of people, threw the pickpocket into an adjoining 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 imbecilities of human nature, where certain provocations are given. (r)

Where A. finding a trespasser upon his land, in the first transport of his passion, beat him and unluckily killed him, and it was holden to be manslaughter, (8) it must be understood that he beat the trespasser, not with a mischievous intention, but merely to chastise him, and to deter him from a future commission of such a trespass. For if A. had knocked his brains out with a bill or hedge stake, or had killed him by an outrageous beating with an ordinary cudgel, beyond the bounds of a sudden resentment, it would have been murder; these circumstances being some of the genuine symptoms of the mala mens, the heart bent upon mischief, which enter into the true notion of malice in the legal sense of the word. (t) Moir having been greatly annoyed by persons trespassing upon his farm, repeatedly gave notice that he would shoot any one who did so, and at length discharged a pistol at a person who was trespassing, and wounded him in the thigh, which led to erysipelas, and the man died he was convicted of murder, and executed. (u)

Where the trespass is barely against the property of another the law does not admit the force of the provocation as sufficient to warrant the owner in making use of any deadly or dangerous weapon; more particularly if such violence is used after the party has desisted from the trespass. But if the beating be with an instrument, or in a manner not likely to kill, it will only amount to man

slaughter and it is even lawful to exert such force against a trespasser, who comes without any colour, to take the goods of another, as is necessary to make him desist. (v)

6

A man is not authorised to fire a pistol on every intrusion or invasion of his dwelling-house, which may be made forcibly at night; he ought, if he has a reasonable opportunity, to endeavour to remove the trespasser, without having recourse to the last extremity. M., who was indicted for murder, had made himself obnoxious to some boatmen, by giving information of certain smuggling transactions, in which some of them had been engaged; and they, in revenge, ducked him, and were in the act of throwing him into the sea, when he was rescued by the police; the boatmen, however, as he was going away, called to him that they would come at night, and pull his house down in the middle of the night a great number of persons came about his house, singing songs of menace, and using violent language, indicating that they had come with no friendly or peaceable intention. M., under an apprehension, as he alleged, that his life and property were in danger, fired a pistol, by which one of the party was killed. Holroyd, J., A civil trespass will not excuse the firing a pistol at a trespasser, in sudden resentment or anger. If a person take forcible possession of another man's close, so as to be guilty of a breach of the peace, it is more than a trespass; so if a man with force invades and enters into the dwelling of another; but a man is not authorised to fire a pistol on every intrusion or invasion of his house he ought, if he has a reasonable opportunity, to endeavour to remove him without having recourse to the last extremity but the making an attack upon a dwelling, and especially at night, the law regards as equivalent to an assault upon a man's person, for a man's house is his castle: and, therefore, in the eye of the law, it is equivalent to an assault; but no words or singing are equivalent to an assault, nor will they authorise an assault in return. If you are satisfied that there was nothing but the song, and no appearance of further violence: if you believe that there was no reasonable ground for apprehending further danger, but that the pistol was fired for the purpose of killing, then it is murder. There are cases where a person, in the heat of blood, kills another, that the law does not deem it murder, but lowers the offence to manslaughter; as, where a party coming up, by way of making an attack, and, without there being any previous apprehension of danger, the party attacked, instead of having recourse to a more reasonable and less violent mode of averting it, having an opportunity so to do, fires on the impulse of the moment. If you are of opinion that the prisoner was really attacked, and that the deceased and his party were on the point of breaking in, or likely to do so, and execute the threats of the day before, he was, perhaps, justified in firing as he did.' (w)

A person must only use so much force as is reasonably necessary, in order to turn a trespasser out of his house. Upon an indictment for manslaughter, it appeared that the prisoner, upon returning home, found the deceased in his house, and desired him to withdraw, (v) 1 Hale, 473, 486. 1 East, P. C. (u) Meade's case, 1 Lew. 184, Holroyd, c. 5, s. 56, p. 289.

J.

but he refused to go: upon this, words arose between them, and the prisoner becoming excited, proceeded to use force, and, by a kick which he gave to the deceased, caused his death. Alderson, B.: ' A kick is not a justifiable mode of turning a man out of your house, though he be a trespasser. If a person becomes excited, and gives another a kick, it is an unjustifiable act. If the deceased would not have died but for the injury he received, the prisoner, having unlawfully caused that injury, is guilty of manslaughter.' (x)

Upon an indictment for manslaughter, it appeared that a man and his servant had insisted upon placing corn in the prisoner's barn, which she refused to allow; they exerted force: a scuffle took place, in which the prisoner received a blow on the breast, whereon she threw a stone at the deceased, the master, which killed him. Holroyd, J.: The case fails, as it appears the deceased received the blow in an attempt to invade the prisoner's barn, against her will. She had a right to defend her barn, and to employ such force as was reasonably necessary for that purpose; and she is not answerable for any unforeseen accident that may have happened in so doing.' (y)

Where a man finds another in the act of adultery with his wife, and kills him or her (z) in the first transport of passion, he is only guilty of manslaughter, and that in the lowest degree: (a) for the provocation is grievous, such as the law reasonably concludes cannot be borne in the first transport of passion. But, as will presently be shewn, the killing of an adulterer deliberately, and upon revenge, would be murder. (b). So it seems that if a father were to see a person in the act of committing an unnatural offence with his son, and were instantly to kill him, it would be only manslaughter; but if he only hear of it from others, and go in search of the person afterwards, and kill him, when there had been time for the blood to cool, it would be murder.' (c)

Upon an indictment for murder, Rolfe, B., in summing up, said, 'To take away the life of a woman, even your own wife, because you suspect that she has been engaged in some illicit intrigue, would be murder.' (d)

In one case, in which a man was charged with wilful murder of his son-in-law, who had assaulted the prisoner's daughter in his presence in a violent manner, although not in a manner to endanger life, Cockburn, C. J., seemed to think that the offence might be

reduced to manslaughter, and the prisoner was found guilty of that offence only. (e)

The prisoner was indicted for the wilful murder of his wife. Words had passed between them. He took a knife, and in a struggle stabbed her. For the defence, witnesses were called to shew that the wife had been in the habit of making violent attacks upon her husband, seizing him by the neckerchief and twisting it tight so as almost to strangle him, and cause the bystanders to interfere; and also that the prisoner had abscesses on his neck, which would render him particularly sensitive to such assaults. Byles, J., after consulting Bramwell, B., admitted the evidence, but said that the evidence must be confined to explaining the nature of this particular attack. (f)

It seems, therefore, that it may be laid down, that in all cases of slight provocation, if it may be reasonably collected from the weapon made use of, or from any other circumstance, that the party intended to kill, or to do some great bodily harm, such homicide will be murder. Accordingly, where a parker, finding a boy stealing wood in his master's ground, bound him to his horse's tail and beat him, and the horse taking fright, and running away, the boy was dragged on the ground till his shoulder was broken, whereof he died; it was ruled murder for it was not only an illegal, but a deliberate and dangerous act; the correction was excessive and savoured of cruelty. (g) Provocation no defence where express malice. It should be further remembered, upon the grounds which have been before mentioned, (h) that the plea of provocation will not avail where express malice is proved. (i)

The prisoner, with the deceased, who was his brother, and some neighbours, were drinking in a friendly manner at a public-house; till growing warm in liquor, but not intoxicated, the prisoner and the deceased began in idle sport to pull and push each other about the room. They then wrestled; one fell, and soon afterwards they played at cudgels by agreement. All this time no token of anger appeared on either side, till the prisoner in the cudgel-play gave the deceased a smart blow on the temple. The deceased thereupon grew angry; and throwing away his cudgel, closed in with the prisoner, and they fought a short space in good earnest: but the company interposing, they were soon parted. The prisoner then quitted the room in anger; and when he got into the street, was heard to say, 'Damnation seize me if I do not fetch something, and stick him!' And being reproved for using such expressions, he answered, 'I'll be damned to all eternity if I do not fetch something and run him through the body!' The deceased and the rest of the company continued in the room where the affray happened; and in about half an hour the prisoner returned, having put off a thin slight coat he had on when he quitted the room, and put on one of a coarse thick cloth. The door of the room being open into the street, the prisoner stood leaning against the door-post, his left hand in his bosom, and a cudgel

(e) R. v. Harrington, 10 Cox, C. C. 370. (f) R. v. Hopkins, 10 Cox, C. C. 229. (9) Halloway's case, Cro. Car. 131. Palm. 545. 1 Hawk. P. C. c. 39, s. 42.

W. Jones, 198. 1 Hale, 453. Kel. 127. 1 East, P. C. c. 5, s. 22, p. 237. Fost. 292. (h) Ante, p. 3.

(i) See R. v. Sattler, D. & B., C. C. 525.

in his right, looking in upon the company, but not speaking a word. The deceased seeing him in that posture, invited him into the company; but the prisoner answered, I will not come in.' 'Why will you not?' said the deceased. The prisoner replied, Perhaps you will fall on me and beat me.' The deceased assured him he would not; and added, 'Besides, you think yourself as good a man as me at cudgels, perhaps you will play at cudgels with me.' The prisoner answered, 'I am not afraid to do so, if you will keep off your fists.' Upon these words the deceased got up and went towards the prisoner, who dropped the cudgel as the deceased was coming up to him. The deceased took up the cudgel, and with it gave the prisoner two blows on the shoulder. The prisoner immediately put his right hand into his bosom, and drew out the blade of a tuck sword, crying, ‘Damn you, stand off, or I'll stab you;' and immediately, without giving the deceased time to step back, made a pass at him with the sword, but missed him. The deceased thereupon gave back a little; and the prisoner shortening the sword in his hand, leaped forward towards the deceased and stabbed him to the heart, and he instantly died. The judges unanimously agreed, that there were in this case so many circumstances of deliberate malice and deep revenge on the defendant's part, that his offence could not be less than wilful murder. He vowed he would fetch something to stick him, to run him through the body. Whom did he mean by him? Every circumstance in the case shewed that he meant his brother. He returned to the company, provided, to appearance, with an ordinary cudgel, as if he intended to try skill and manhood a second time with that weapon but the deadly weapon was all the while carefully concealed under his coat; which most probably he had changed for the purpose of concealing the weapon. He stood at the door, refusing to come nearer, but artfully drew on the discourse of the past quarrel; and as soon as he saw his brother disposed to engage a second time at cudgels, he dropped his cudgel and betook him to the deadly weapon, which till that moment he had concealed. He did indeed bid his brother stand off: but he gave him no opportunity of doing so before the first pass was made. His brother retreated before the second: but he advanced as fast, and took the revenge he had vowed. The circumstance of the blows before the sword was produced, which probably occasioned the doubt, did not alter the case, nor did the precedent quarrel; because, all circumstances considered, he appeared to have returned with a deliberate resolution to take a deadly revenge for what had passed: and the blows were plainly a provocation sought on his part, that he might execute the wicked purpose of his heart with some colour of excuse. (j)

In the foregoing case it was considered that the blows with the cudgel were a provocation sought by the prisoner, to give occasion. and pretence for the dreadful vengeance which he meditated: and it should be observed, that where the provocation is sought by the party killing, and induced by his own act, in order to afford him a pretence for wreaking his malice, it will in no case be of any avail. (k) Thus where A. and B. having fallen out, A. said he

(j) Mason's case, Fost. 132. 1 East, P. C. c. 5, s. 23, p. 239.

(k) 1 East, P. C. c. 5, s. 23, p. 239.