[articles: and principally consists in this, that manslaughter, when voluntary, arises from the sudden heat of the passions; murder, from the wickedness of the heart. First. Manslaughter is, therefore, thus defined (m): the unlawful killing of another, without malice, either express or implied (n): which may be either voluntarily, upon a sudden heat; or involuntarily, but in the commission of some unlawful act. These were called, in the Gothic institutions, "homicidia vulgaria; quæ aut casu, aut etiam sponte committuntur, sed in subitaneo quodam iracundiæ calore et impetu" (o): and hence it] has been held [that in manslaughter there can be no accessories before the fact (p); because it must be done without premeditation. As to the first or voluntary branch: if upon a sudden quarrel] in the way of chance medley (q), [two persons fight, and one of them kills the other, that is manslaughter; and so it is, if they upon such an occasion go out and fight in a field; for this is one continued act of passion (r), and the law pays that regard to human frailty, as not to put a hasty and deliberate act upon the same footing with regard to guilt. So also if a man be greatly provoked, as by pulling his nose, or other great indignity, and immediately kills the aggressor, though he is not excusable se defendendo, since there is no absolute necessity for doing it to preserve himself; yet neither is it murder, for there is no previous malice; but it is manslaughter (s). But in this, and in every other case of homicide upon provocation, if there be a sufficient cooling time for passion to subside and reason to interpose, and the person so provoked afterwards kill the other, this is deliberate revenge, and not heat (m) 1 Hale, P. C. 466. (n) In an indictment for manslaughter, the charge should be that "the defendant did feloniously kill "and slay the deceased," and it is unnecessary to set forth the manner or means. (24 & 25 Vict. c. 100, s. 6.) 29. (0) Stiern. de Jure Goth. 1. 3, c. 4. (p) Vide sup. p. 124, n. (7). (1) Vide sup. p. 126. (r) Hawk. P. C. b. 1, c. 31, s. (s) Kelyng, 135. [of blood; and accordingly amounts to murder (t). So if a man takes another in the act of adultery with his wife, and kill him directly on the spot; though this was allowed by the laws of Solon (u), as likewise by the Roman civil law if the adulterer was found in the husband's own house (v), --and also among the antient Goths (x),-yet in England it is not absolutely ranked in the class of justifiable homicides, as in the case of forcible rape; but it is manslaughter (y). It is, however, the lowest degree of it; and therefore in such a case the court directed the burning in the hand,] formerly inflicted for manslaughter and other felonies not punished with death, [to be gently inflicted; because there could not be a greater provocation (~). Manslaughter therefore on a sudden provocation, differs from excusable homicide se defendendo on a sudden affray, in this; that in the one case there is an apparent necessity for self-preservation to kill the aggressor; in the other there is no necessity at all, being only a sudden act of revenge (a). The second branch, or involuntary manslaughter, differs also from homicide excusable by misadventure, in this; that misadventure always happens in consequence of a lawful act, but this species of manslaughter in consequence of an unlawful one. As if two persons play at sword and buckler, (unless by the king's command,) and one of them kills the other; this is manslaughter, because the original act was unlawful: but it is not murder, for the one had no intent to do the other any personal mischief (b). So where a person does an act, lawful in itself, but in an unlawful manner, and without due caution and circumspection; as when a workman flings down a stone or piece of timber into the street, and kills a man; this may be either mis (t) Fost. 296. (u) Plut. in Vit. Solon. (v) Ff. 48, 5, 24. (x) Stiern. de Jure Goth. l. 3, (y) 1 Hale, P. C. 486. [adventure, manslaughter or murder, according to the circumstances under which the original act was done. If it were in a country village where few passengers are, and he call out to all people to have a care, it is misadventure only; but if it were in London, or other populous town, where people are continually passing, it is manslaughter, though he gives loud warning (c); and murder, if he knows of their passing, and yet gives no warning at all,-for then it is malice against all mankind (d). And in general, when 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 its consequences naturally tending to bloodshed, it will be murder; but if no more was intended than a mere civil trespass, it will amount only to manslaughter (e). Next, as to the punishment of this degree of homicide. The crime of manslaughter amounts to felony (ƒ):] and every person convicted thereof (g) may be sentenced, at the discretion of the court, to be kept in penal servitude for life or for a term of not less than three years; or to be imprisoned with or without hard labour for any term not (c) Kel. 40. (d) 3 Inst. 57. (e) Fost. 258; Hawk. P. C. b. 1, c. 31, s. 46. Homicide, however, amounts to murder, if committed in resisting an officer of justice in the lawful execution of his duty, even though there be no felonious intent. Vide post, p. 156. (f) In the particular case of manslaughter by stabbing, though done upon sudden provocation, the offence was formerly a capital felony. This was by statute 1 Jac. 1, c. 8, which provides, that when one thrusts or stabs another, the party stabbed not having then a weapon drawn, nor having then first stricken the party stabbing, so that he dies thereof within six months after, the offender shall not have the benefit of clergy, though he did it not of malice aforethought. "A statute made," says Blackstone (vol. iv. p. 193), "on "account of the frequent quarrels "and stabbings with short daggers, "between the Scotch and English "at the accession of James I." But this Act was repealed (as well as the 43 Geo. 3, c. 58, and 1 Geo. 4, c. 90, s. 2, relating to the same subject) by 9 Geo. 4, c. 31. (g) By 22 Vict. c. 33, a party charged with manslaughter on a coroner's inquisition, may be admitted by him to bail. exceeding two years: or to pay such fine as the court shall award, in addition to or without such other discretionary punishment as aforesaid (h). Secondly. [We are next to consider the crime of deliberate and wilful murder; a crime at which human nature starts, and which is perhaps punished almost universally throughout the world with death. The words of the Mosaical law,-over and above the general precept to Noah (i), that "whoso sheddeth man's blood, by man "shall his blood be shed," are very emphatical in prohibiting the pardon of murderers. "Moreover, ye "shall take no satisfaction for the life of a murderer, who "is guilty of death, but he shall surely be put to death; "for the land cannot be cleansed of the blood that is "shed therein, but by the blood of him that shed it "(j).] [The name of murder, (as a crime,) was antiently applied only to the secret killing of another (k); which the word moërda signifies in the Teutonic language (1). And it was defined "homicidium quod nullo vidente, nullo sciente, clam perpetratur” (m); for which the vill wherein it was committed, or, if that were too poor, the whole hundred, was liable to a heavy amercement, which (h) 24 & 25 Vict. c. 100, s. 5. Besides the punishment of manslaughter considered as a crime, it is attended with a liability to make pecuniary satisfaction to the representatives of the deceased. (Vide sup. vol. 1. p. 484.) It may be here also observed (and the remark applies to all the felonies mentioned in this chapter with the exception of murder) that by 24 & 25 Vict. c. 100, s. 71, the court may, in its discretion, add to the punishment inflicted, a requisition to give security for keeping the peace. (i) Gen. ix. 6. (j) Numb. xxxv. 31, 33. (k) Dial. de Scacc. 1. 1, c. 10. (1) Stiern. de Jure Sueon. 1. 3, c. 3. The word murdre in the old statutes also signified any kind of concealment or stifling. So in the statute of Exeter, 14 Edw. 1," Je riens ne celerai, ne sufferai estre celé, ne murdré," which is thus translated into Fleta, 1. 1, c. 18, s. 4, " Nullam veritatem celabo, nec celari permittam, nec murdrari." And the words "pur murdre le droit," in the articles of that statute, are rendered in Fleta, ib. s. 8, " pro jure alicujus mur drando." (m) Glanv. 1. 14, c. 3. [amercement itself was also denominated murdrum (n). This was an antient usage among the Goths in Sweden and Denmark; who supposed the neighbourhood, unless they produced the murderer, to have perpetrated or at least connived at the murder (o); and, (according to Bracton,) was introduced into this kingdom by King Canute, to prevent his countrymen, the Danes, from being privily murdered by the English (p); and was afterwards continued by William the Conqueror, for the like security to his own Normans (q). And therefore if, upon inquisition had, it appeared that the person found slain was an Englishman, (the presentment whereof was denominated englescherie,) the country seems to have been excused from this burthen (r). But this difference being totally abolished by statute 14 Edw. III. st. 1, c. 4, we must now, (as is observed by Staundforde,) define murder in quite another manner; without regarding whether the party slain was killed openly or secretly, or whether he was of English or foreign extraction (s). Murder is therefore now thus defined by Sir Edward Coke (t): "When a person of sound memory and discre"tion unlawfully killeth any reasonable creature in being, "and under the king's peace, with malice aforethought, "either express or implied (u)." The best way of examining the nature of this crime, will be by considering the several branches of this definition. First, it must be committed by a person of sound memory and discretion;] infants under fourteen, lunatics and idiots, [as was formerly observed, are incapable of committing (n) Bract. 1. 3, tr. 2, c. 15, s. 7; Stat. Marl. c. 26; Fost. 281. (o) Stiern. 1. 3, c. 4. :: (u) In an indictment for murder, the charge should be that "the de"fendant did feloniously, wilfully, "and of his malice aforethought, "kill and murder the deceased," and it is unnecessary to set forth the manner or means. (24 & 25 Vict. c. 100, s. 6.) Ꮮ Ꮞ |