would not strike, but would give B. a pot of ale to strike him; upon which B. did strike, and A. killed him, it was held to be murder. (1) So where A. and B. were at some difference; A. bade B. take a pin out of his (A.'s) sleeve, intending to take the occasion to strike or wound B. B. accordingly took out the pin, and A. struck him and killed him; and this was ruled murder: first, because it was no provocation when B. did it by the consent of A.; and, secondly, because it appeared to be a malicious and deliberate artifice, by which to take occasion to kill B. (m)

:

Where upon an indictment for maliciously wounding under the 9 Geo. 4, c. 31, it appeared that some words passed between the prisoner and a third person, after which he walked up and down. the passage of the house with a sword-stick in his hand, with the blade open, and was heard to say, 'If any man strikes me I will make him repent it.' He was desired to put up the stick, which he refused to do; and shortly after the prosecutor, ignorant of what had occurred, but perceiving the prisoner was creating a disturbance, struck the prisoner twice with his fist, when the prisoner stabbed him; Parke, B., told the jury, If a person receives a blow, and immediately avenges it with any instrument that he may happen to have in his hand, then the offence will be only manslaughter, provided the blow is to be attributed to the passion of anger arising from that previous provocation; for anger is a passion to which good and bad men are both subject. But the law requires two things: first, that there should be that provocation; and secondly, that the fatal blow should be clearly traced to the influence of passion arising from that provocation. (n) There is no doubt here, but that a violent assault was committed; but the question is, whether the blow given by the prisoner was produced by the passion of anger excited by that assault? If you see that a person denotes, by the manner in which he avenges a previous blow, that he is not excited by a sudden transport of passion, but under the influence of that wicked disposition, that bad spirit, which the law terms "malice," in the definition of wilful murder, then the offence would not be manslaughter. Suppose, for instance, a blow were given, and the party struck beat the other's head to pieces by continued, cruel, and repeated blows; then you could not attribute that act to the passion of anger, and the offence would be murder. And so, if you find that before the stroke is given, there is a determination to punish any man, who gives a blow, with such an instrument as the one which the prisoner used: because if you are satisfied that before the blow was given the prisoner meant to give a wound with such an instrument, it is impossible to attribute the giving such wound to the passion of anger excited by that blow; for no man who was under proper feelings, none but a bad man of a wicked and cruel disposition, would really determine beforehand to resent a blow with such an instrument.' (0) On a trial for murder, where deceased died from a stab given by the prisoner, in a contest with the deceased, Bosanquet, J., told (7) 1 Hawk. P. C. c. 31, s. 24. Coleridge, J., S. P. 1. R. v. Eagle, 2 F. & F. 827.

(m) 1 Hale, 456.

(n) R. v. Kirkham, 8 C. & P. 115, per

(0) R. v. Thomas, 7 C. & P. 817, Parke, B.

the jury, The question for you, on a careful consideration of the whole evidence, will be, whether the prisoner was guilty of either murder or manslaughter, or whether the circumstances of the case were such as to entitle him to an acquittal; whether he is guilty of murder or manslaughter, or whether his act was justifiable or excusable upon the question of whether it amounts to murder you have to consider this; did the prisoner enter into a contest with an unarmed man, intending to avail himself of a deadly weapon? For if he did, it will amount to murder. But if he did not enter into the contest with an intention of using it, then the question will be, did he use it in the heat of passion in consequence of an attack made upon him? If he did, then it will be manslaughter. But there is another question, did he use the weapon in defence of his life? Before a person can avail himself of that defence, he must satisfy the jury that that defence was necessary; that he did all he could to avoid it; and that it was necessary to protect his own life, or to protect himself from such serious bodily harm as would give a reasonable apprehension that his life was in immediate danger. If he used the weapon, having no other means of resistance, and no means of escape, in such case, if he retreated as far as he could, he will be justified.' (p)

On an indictment for murder it appeared that the prisoner and his wife, who had been to look for him, came home about midnight: he was not sober, and she upbraided him for staying out so late he took some money out, and she said he could treat other persons and not her; he then took down a sword from a shelf, pulled it out of the sheath, and struck her on the back with the flat part of it; her daughter ran to the door; the mother attempted to follow her, and her daughter took hold of her hand to pull her through; the father, according to the daughter's first account, went to his wife at the door, and ran the sword into her left side; but it appeared that she could not see the actual thrust: a wound nine inches long was found in the left side which caused the death. She stated in her husband's presence that he had done it with a sword. The authorities cited ante, p. 2, having been referred to; Cresswell, J., after referring to them, said, 'This is expressed more intelligibly by Littledale, J., who says that "malice, in its legal sense, denotes a wrongful act, done intentionally, without just cause or excuse." (q) Therefore if you think the prisoner used the weapon wilfully, then that is such malice as the law requires. The great question for your consideration is whether the wound was given wilfully. If done by the accident of the woman rushing on the sword, the prisoner would not be responsible. If you can find any evidence that he used the sword carelessly, and that, without intending to inflict a wound, he caused it, then he is guilty of manslaughter; but if he used it intending to inflict a wound, then he is guilty of murder. When there is a contest the law makes great allowances for blows and a personal encounter, but not for words. (r) If, therefore, in consequence of words, the prisoner was provoked, and intended to do the (a) See this passage in note (i), ante, (r) But see post, p. 57.

(p) R. v. Smith, 8 C. & P. 160. Bosanquet and Coltman, JJ., and Bolland, B.

p. 2.

deceased a grievous injury, that is no justification or alleviation of the offence. There is no evidence of any conflict or of any provocation in law. If the prisoner used the sword intending to do a serious injury, that is such evidence of malice as the law holds to be murder. If the deceased rushed upon it, then it was an accident, and he is not guilty. If the wound was inflicted in a struggle without any intention on the part of the prisoner to use it, then there was such a careless use of it as to make him guilty of manslaughter.' (s)

Provocation will not avail if there is time for cooling. It must be further observed also, that in every case of homicide upon provocation, how great soever that provocation may have been, if there be sufficient time for passion to subside and reason to interpose, such homicide will be murder. (t) Therefore, in the case of the most grievous provocation to which a man can be exposed, that of finding another in the act of adultery with his wife, though it would be but manslaughter if he should kill the adulterer in the first transport of passion, yet if he kill him deliberately, and upon revenge after the fact and sufficient cooling time, it would undoubtedly be murder. (u) For let it be observed, that in all possible cases, deliberate homicide upon a principle of revenge is murder. No man under the protection of the law is to be the avenger of his own wrongs. If they are of a nature, for which the laws of society will give him an adequate remedy, thither he ought to resort: but be they of what nature soever, he ought to bear his lot with patience, and remember that vengeance belongeth only to the Most High.' (v) With respect to the interval of time which shall be allowed for passion to subside, it has been observed that it is much more easy to lay down rules for determining what cases are without the limits, than how far exactly those limits extend. (w) In cases of this kind the immediate object of inquiry is, whether the suspension of reason arising from sudden passion continued from the time of the provocation received to the very instant of the mortal stroke given; for if from any circumstance whatever it appear that the party reflected, deliberated, or cooled any time before the fatal stroke given; or if in legal presumption there was time or opportunity for cooling; the killing will amount to murder, as being attributable to malice and revenge, rather than to human frailty. (2) It was at one time held that the question whether the blood has had time to cool or not was a question for the Court and not for the jury. (y)

1 And see Bishop, ii. s. 681, "If the deadly weapon is employed neither with direct aim nor in a manner likely to be deadly in the particular instance, it is not to be legally regarded therein as deadly," referring to S. v. Roane, 2 Dev. 58. S. v. West, 6 Jones, N. C. 505. See also S. v. Smith, 2 Strob. 77; 47 Am. D. 589. Price v. S., 36 Miss. 531. S. v. Hildreth, 9 Ired. (N. C.) 429.

(w) 1 East, P. C. c. 5, s. 30, p. 251. (x) Oneby's case, 2 Lord Raym. 1485.2 (y) R. v. Fisher, 8 C. & P. 182, J. A. Park, J., Parke, B., and Law Recorder. Sed quare, and see the following cases. 8

NOTES.

2 See S. v. McCauts, 1 Spears, 334 ; C. v. Green, 1 Ashm. 289. Bishop, ii. s. 673.

8 It would seem that the better opinion in America is that the question whether there has been sufficient time for the passion to cool is one for the jury. Bishop, ii. s. 711, but see S. v. McCauts, supra, and S. v. Moore, 69 N. C. 267.

Under an indictment for murder, it appeared that the prisoner and the deceased, who had been upon terms of intimacy for three or four years, had been drinking together at a public-house till about twelve o'clock at night; about one they were together in the street, and had some words, and a scuffle ensued, during which the deceased struck the prisoner in the face with his fist, and gave him a black eye. The prisoner called for the police, and on a policeman coming, went away; he, however, returned again, between five and ten minutes afterwards, and stabbed the deceased with a knife on the left side of the abdomen: the knife, a common bread-and-cheese knife, was one that the prisoner was in the habit of carrying about with him, and he was rather weak in his intellect, but not so much so as not to know right from wrong. Lord Tenterden, C. J., 'It is not every slight provocation, even by a blow, which will, when the party receiving it strikes with a deadly weapon, reduce the crime from murder to manslaughter; but it depends upon the time elapsing between the blow and the injury; and also whether the injury was inflicted with an instrument at the moment in the possession of the party, or whether he went to fetch it from another place. It is uncertain, in this case, how long the prisoner was absent; the witness says from five to ten minutes, according to the best of his knowledge. Unless attention is particularly called to it, it seems to me that evidence of time is very uncertain; the prisoner may have been absent less than five minutes; there is no evidence that he went anywhere for the knife. The father says it was a knife he carried about with him; it was a common knife, such as a man in the prisoner's situation in life might have; for aught that appears he might have gone a little way from the deceased and then returned, still smarting under the blow he had received. You will also take into consideration the previous habits and connection of the deceased and the prisoner with respect to each other; if there had been any old grudge between them, then the crime which the prisoner committed might be murder. But it seems they had been long in habits of intimacy, and on the very night in question, about an hour before the blow, they had been drinking in a friendly way together. If you think that there was not time and interval sufficient for the passion of a man proved to be of no very strong intellect, to cool, and for reason to regain her dominion over his mind, then you will say that the prisoner is guilty only of manslaughter. But if you think that the act was the act of a wicked, malicious, and diabolical mind (which, under the circumstances, I should think you hardly would), then you will find him guilty of murder.' (2)

6

The prisoner and the deceased, who were strangers, met at a publichouse with others, and sat there drinking and wrangling until midnight, when they were all turned out. In consequence of some trivial quarrel about a game, the deceased struck the prisoner a blow on the face with his open hand, saying, that if he did not like it he might return it.' The prisoner said he was not in a fit state to fight, and the men stood wrangling some interval of time, which was described by some of the witnesses as about ten minutes.' Then the two men shook hands and parted, the prisoner going towards home.

(z) R. v. Lynch, 5 C. & P. 324.

6

When he had gone about thirty yards he stopped, turned round, and cried out, Now I am on the highway; if anybody wants anything I am ready for him.' The deceased appeared to have taken this as a kind of challenge to himself, and at all events acccepted it as such, and went after the prisoner, who had stood still. Almost immediately afterwards the deceased was heard to cry out, 'I am stabbed,' and was found lying on the ground, his jacket off, and in the hands of the prisoner who was standing by; and a mortal wound in his abdomen, which was no doubt inflicted by the prisoner, who said, I should n't have done it if he had n't hit me on the face.' When the dying deposition of deceased was taken, he declared that on the second occasion he had not struck the prisoner; and when the prisoner said to him, 'Did n't you knock me down?' the dying man denied it. Hannen, J., in the course of his summing up to the jury, said, 'In the present instance the evidence as to the time which had elapsed is left in some uncertainty; but several witnesses say it was "about ten minutes." It is for you to form your own conclusion as to what took place in the interval, as to which you can only draw inferences from the circumstances; and though there is no express evidence of a renewal of the aggression on the part of the deceased (and the evidence is rather against the supposition, especially as the prisoner did not accuse him of it at the time), it is beyond a doubt that he followed the prisoner with the intention of renewing the attack, and his jacket was found off. It is for you to draw such inferences from this as you think warranted by the evidence. If you come to the conclusion that the prisoner, after the blow had been given, had time for his blood to cool, and that when he stopped on the road he had the intention in his mind to use the knife in the event of the deceased following him, and uttered the words he used with the object of inducing the deceased to follow him, there would be evidence of implied malice to sustain the charge of murder. But if you come to the conclusion that the prisoner had not such intention in his mind, and that he did not utter the words with such intention, that they were idle words of bravado, not of challenge, and that he used the knife on some fresh and sudden provocation, ensuing from the deceased following him and renewing the assault upon him, then there is evidence to reduce the crime to manslaughter.' (a)

The deceased was requested by his mother to turn the prisoner out of her house, which after a short struggle with the prisoner he effected, and in doing so he gave him one kick. The prisoner said he would make him remember it, and instantly went to his own lodgings, from two to three hundred yards distant, passed through his bedroom and a kitchen into a pantry, and returned thence hastily back again. Within five minutes after the prisoner had left the deceased, the latter followed him to give him back his hat, which had been left behind, and they met about ten yards from the prisoner's lodgings. They stopped for a short time, when they were heard talking together, but without any words of anger; after they had walked on together for about fifteen yards, the deceased gave the prisoner his hat, when the latter exclaimed with an oath, that he would have his rights, and instantly stabbed the deceased with a

(a) R. v. Selten, 11 Cox, C. C. 674.