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thought, either express or implied. 8 Where the legislature makes use of a technical law term, its meaning must be ascertained by the common law; and therefore the definition of murder under the several statutes must be taken in the common law sense. t

2. Manslaughter. $ 931. Manslaughter is the unlawful and felonious killing of another, without any malice, either express or implied. It is of two kinds.

§ 932. (a.) Voluntary manslaughter, is the unlawful killing of another, without malice, on sudden quarrel or in heat of passion. Where upon a sudden quarrel two persons fight, and one of them kills the other, this is voluntary manslaughter ; and so, if they upon such occasion go out to fight in a field; for this is one continued act of passion. So, also, if a man be greatly provoked by any gross indignity, and immediately kills his aggressor, it is voluntary manslaughter, and not excusable homicide, not being se defendendo; neither is it murder, for there is no previous malice.u In these and such like cases, the law,

deceased, 125, 135; giving deceased means of concealment are not stated, poison and thereby aiding her in sui- 184 ; endeavor to conceal the birth of cide, 138; burning a house in which dead child, under the English statute, deceased was at the time, 126 ; giving 185; against captain and engineer of deceased large quantities of spirituous steamboat, for manslaughter in second liquors, &c., 168; starving, 161; forc- degree, in New York, 172–3; conspiing sick persons into street, &c., 143; racy to murder, 183. neglecting to supply wife with shelter, s Com. v. Thomson, 6 Mass. 134 ; 170; neglecting to supply apprentice 3 Wheeler's C. C. 319; Statev. Zeller, with food, 161-2; killing same with 2 Halsted, 220; State v. Norris, 1 over-work, 163 ; neglecting to supply Hay. 429; State v. Weaver, 2 Ib. 54 ; infant with clothes, 165 ; striking with Com. v. Daley, 4 Penn. Law Journ. stones, 149, 167; manslaughter by 154 ; Penns. v. Honeyman, Add. 148; same, 167; striking with a cart, 169; 3 Inst. 47, 51; 2 Ld. Raymond, 1487; striking infant with dray (involuntary i Hale, 425 ; 1 Hawk. ch. 31, s. 3, manslaughter), 176; riding over with a 8; Kel. 127; Fost. 256 ; 4 Blac. Com. horse, 121 ; murder of bastard child by 198; Lewis C. L. 394 ; McMillan v. strangling, 144, 157; murder by throw- State, 35 Ga. 75. ing in privy, 158; by smothering in t U. S. v. Magill, 1 Wash. C. C. R. linen cloth, 159; same in Pennsylvania, 463; Wharton on Homicide, 33, 34. by strangling, 123, 160; misdemeanor u 1 Hale, 449 ; 4 Blackstone's Com. in concealing death of bastard child, 191; 1 Hawk. c. 30, s. 3 ; Parker, J., under the Pennsylvania statute, by Selfridge's Trial, 158; Wharton on casting it in a well, 610; same where Hom. 35, 417; State v. Norris, 1 Hay. kindly appreciating the infirmities of human nature, extenuates the offence committed, and mercifully hesitates to put upon the same footing of guilt the cool deliberate act and the result of hasty passion.

In general, where an involuntary killing happens in consequence of an unlawful act, it will be either murder or manslaughter, according to the nature of the act which occasioned it; if it be in prosecution of a felonious intent, or in consequences naturally tending to bloodshed, it will be murder; but if no more was intended than a mere civil trespass, it is manslaughter. (v.)

Manslaughter differs from murder in this, that though the act which occasioned the death be unlawful, or likely to be attended with bodily mischief, yet the malice, either expressed or implied, which is the very essence of murder, is presumed to be wanting ; and the act being imputed to the infirmity of human nature, the punishment is proportionably lenient. w

It is no defence to an indictment for manslaughter, that the homicide therein alleged appears by the evidence to have been committed with malice aforethought, and was, therefore, murder ; but the defendant, in such case, may notwithstanding be properly convicted of the offence of manslaughter. x

The prisoner had procured certain drugs and given them to his wife, with intent that she should take them in order to procure abortion. She took them in his absence and died from their effects. On an indictment against him for manslaughter, it was objected that he was only an accessary before the fact, and that in law there cannot be an accessary before the fact to manslaughter. It was held that he was properly found guilty of manslaughter. x2 429 ; State v. Smith, 10 Rich. Law Rice, S. C. Dig. 104 ; Penn. v. Levin, (S. C.) 341 ; Stokes v. State, 18 Geo. Addison, 279; State v. Travers, 2 17; Com. v. Drum, 58 Penn. 9; Moore, Wheeler's C. C. 506; Com. v. Mitchell, ex parte, 30 Ind. 197; Perry v. State, 43 1 Virg. Cases, 716; Parker J., SelAla. 21 ; Murphy v. State, 31 Ind. fridge's Trial, 158; 1 Hale, 449, 450,

466 ; 3 Inst. 55; 1 Hawk. c. 30, s. 2; v 1 Hale, 449; Fost. 290 ; State v. vide R. v. Mawgridge, Kel. 124; Fost. Turner, Wright, 20; Jervis's Arch- 290 ; vide Lord Cornwall's case, Dom. bold, 9th ed. 386. So in Maine, State Proc. 1678; 2 St. Tr. 730. v. Smith, 32 Me. 369.

x Com. v. McPike, 3 Cush. 181 ; w Ex parte Tayloe, 5 Cowen, 51; Selfridge's case, Whart. on Hom. 417. King v. Com. 2 Va. Cases, 78 ; Com. v. Ante, $ 560, 616. Bob, 4 Dall. 125; State v. Tookey, 2 2 R. v. Gaylor, 7 Cox C. C. 253;

511.

$ 933. (6.) Involuntary manslaughter is where a man doing an unlawful act, not amounting to felony, by accident kills another.y It differs from homicide excusable by misadventure in this, that misadventure always happens in the prosecution of a lawful act, but this species of manslaughter in the prosecution of an unlawful one. Where a person does an act lawful in itself, but in an unlawful manner, this excepts the killing from the class of homicide excusable per infortuniam, and makes it involuntary manslaughter.

3. Ercusable Homicide.

Ercusable homicide is of two kinds :

$ 934. (a.) Where a man doing a lawful act without any intention to hurt, by accident kills another; as, for instance, where a man is hunting in a park, and unintentionally kills a person concealed. This is called homicide per infortuniam, or by misadventure.

$ 935. (6.) Homicide in self-defence, or se defendendo, upon a sudden affray, is also excusable rather than justifiable. This species of self-defence must be distinguished from that calculated to hinder the perpetration of a capital crime, which latter is not only a matter of excuse but of justification. But the self-defence of which we are now speaking is that whereby a man may protect himself from assault in a sudden broil or quarrel. This right of natural defence does not imply a right of attack. Tribunals of justice are the remedial agents for injuries past or impending; preventive defence can only be legally used in sudden and violent cases, where certain and immediate suffering would be the consequence of waiting for the assistance of the law.

It is frequently difficult to distinguish this species of homicide from manslaughter in the proper legal acceptation of that word. The true criterion seems to be, that where both parties are actually in conflict at the time the mortal stroke is given the crime is that of manslaughter ; but if the slayer decline any further struggle, and afterwards to avoid his own destruction kills his antagonist, this is homicide excusable by self-defence. 2.

Dears. & B. C. C. 288 ; 40 Eng. Law y Com. v. Thompson, 6 Mass. 134 ; & Eq. 556. See R. v. Fretwell, 9 Cox Jervis's Archbold, 9th ed. 386 ; StudC. C. 152. Ante, $ 134.

still v. State, 7 Geo. 2.

Whether, in view of the homicide statutes, an intended collateral offence is a felony or misdemeanor, is not to be ascertained by the common law classification, but by reference to the statute. a

4. Justifiable Homicide. Justifiable homicide is of three kinds :

§ 936. (a.) Where the proper officer executes a criminal in strict conformity with his sentence.

§ 937. (6.) Where an officer of justice, in the legal exercise of a particular duty, kills a person who resists or prevents him from executing it.

§ 938. (c.) Where the homicide is committed in prevention of a forcible and atrocious crime ; as, for instance, when the deceased was in the act of robbing or murdering another. 6

II. REQUISITES OF HOMICIDE GENERALLY. Before proceeding to consider the different grades of homicide, one or two points are to be adverted to, which apply generally :

1. There must be Proof of the corpus delicti. § 939. There must always, as has been already noticed, be clear and unequivocal proof of the corpus delicti. c

2. It must be shown that the Deceased was living when the alleged

Mortal Blow was struck. § 940. It is essential in all cases to show that the deceased was living at the time when the alleged mortal blow was struck. Thus, where it was doubtful, in a case where a mother was charged with throwing her child overboard, whether it was living or dead at the time, it was held that it rested on the government to show it was living at the time, it appearing that the mother was laboring under puerperal fever, and the idea of malice being

z See Wharton on Homicide, 168, State v. Yarborough, 1 Hawks, 78 ; 211. Post, $ 1019.

Wharton on Homicide, 36, 211. Ante, a State v. Smith, 32 Maine (2 Red.), $ 90 b. 369. Post, $ 1019.

c See ante, § 745-6-7-8-9; and 6 Brac. 145; 1 Hale, 448; Com. v.

see, also, $ 683. Daley, 4 Penn. Law Journal, 158 ;

thereby excluded. d The presumption that a person proved to have been alive at a particular time is still so, holds until it is rebutted by the lapse of time, or other satisfactory proof. e

3. The Death must be traced to the Blow. $ 941. This topic has been already generally discussed. el At present the following remarks are pertinent :

Proof that the violence inflicted by the defendant was the cause of the death of the deceased is necessary, though, as has just been seen, positive proof that life continued to the moment of the fatal blow is not always necessary. e2

If the wound is the proximate cause of the death, it is no de

d U. S. v. Hewson, 7 Boston Law opponent, he simply lets it happen Reporter, 361, per Story, J.; Wharton (lasst es nur geschehen) that the ball on Homicide, 93, 94, 95, 96, 97, 98, goes on its mission, perforates its ob&c. See ante, $ 745, 872, &c. ject, and that the latter by his wound

e Com. v. Harman, 4 Barr, 269. loses his life. See post, $ 2634.

Nor is this causal connection severed ei See ante, $ 751.

when the mortal effect of the injury 62 The causal connection between could have been averted by quicker death and its evident cause, says a very and more skilful surgical aid, which able German jurist (Berner, Lehr- aid was not invoked. But the wound buch der Strafrechts, 1871, p. 434), is cannot be regarded as the cause of the not severed when the actor, after he death when a positively mischievous has put the external agency on the surgical operation intervened to such track of destruction, leaves it to its an effect as either to produce death, or natural action; as when, after putting that without it death could not have poisoned food on his enemy's table, he ensued. waits until the latter himself takes the Nor is this causal connection severed food ; or where a skilful swimmer, by when the fatality of the wound is false representations and promises, en- traceable either to the peculiar contices another in deep water, and then stitutional idiosyncrasies of the dequietly leaves him to drown; or where ceased, or to accidental circumstances a midwife, after cutting the umbilical favoring such a result; - such, for incord, does not bind it up, so that the stance, as the fact that the deceased, child bleeds to death. In all such who was struck with a sabre on his cases of withdrawal of action, after the head, had a peculiarly thin skull; or destructive agency has been put in that when he was thrown to the ground motion, there is no question of mere he fell on the edge of a precipice. But negligence (Unterlassung). For such it is otherwise when an utterly foreign withdrawal of action closes almost all event, in a distinct line of sequence, crimes of commission ; for the actor intervenes, as when a wounded person brings his train of causes just to the in falling strikes his head against a point where that train can be left to stone. See fully ante, $ 751. itself; and even when he shoots at an

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