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though arrested after they had been in the State v. Reese (Del.) 79 Atl. 217, 221, 2 Boyce, country more than three years. Chomel v. 434; State v. Collins (Del.) 62 Atl. 224, 226, l'nited States, 192 Fed. 117, 118, 112 C. C. A. 5 Pennewill, 263; State v. Bell (Del.) 62 Atl. 461.
1 147, 148, 5 Pennewill, 192; State v. Brown of voting
(Del.) 61 Atl. 1077, 1079, 5 Pennewill, 339; The constitutional authority given the 33; State v. Tinkler, 83 Pac. 830, 831, 72
State v. Miele (Del.) 74 Atl. 8, 10, 1 Boyce, Legislature to prescribe the time and man. Kan. 262; State v. Phinney, 89 Pac. 634, 13 Der" in which municipal officers may be elected or appointed does not include the Idaho, 307, 12 L. R. A. (N. S.) 935, 12 Ann.
Cas. 1079; State v. Uzzo (Del.) 65 Atl. 775power to determine what shall constitute a legal voter. Livesley v. Litchfield, 83 Pac. 777, 6 Pennewill
, 212; State v. Lance, 63 s.
E. 198, 200, 149 N. C. 551; State v. Short 142, 143, 47 Or. 248, 114 Am. St. Rep. 920.
(Del.) 82 Atl. 239, 242, 2 Boyce, 491; Mixon MANNER DIRECTED OR PRESCRIB- v. State, 68 S. E. 315, 316, 7 Ga. App. 803. ED BY LAW
“Manslaughter" is defined to be the unUnder Code 1904, art. 93, $ 33, which de- lawful killing of another without malice, eiclares that in granting administration with ther express or implied, and without premedthe will annexed the residuary legatee or itation. State v. Brinte (Del.) 58 Atl. 258, legatees shall be perferred, and directs the 262, 4 Pennewill, 551. orphans' court to proceed in the manner di
The term "manslaughter" has become a rected by law with respect to executors with- generic term, covering two specific offenses or in the state before administration with the degrees of homicide, punishable, the one unwill annexed shall be granted to any other der the statute by confinement in the peniperson, the pbrase "in the manner directed tentiary, and the other under the common by law" relates to the provisions of sections law, by fine and imprisonment in jail. The 32 and 33, relative to notice; and, where common-law learning of the text-writers upon the executor named in the will declined to the offense of "manslaughter” can have no act, the residuary legateé was the person place in the definition of the two degrees of next entitled, and a person who, in addition homicide which have been carved out of manto a bequest of the residue of the estate after slaughter by the effect of our statute, howthe death of another, was given a remainder ever apt such learning may have been under in a specific part of the estate, is a “residu- the ancient practice, when the punishment of ary legatee,” and hence on petitions by such both grades was a matter resting in the dislegatee and by a creditor the court could not cretion of the judge. Brown V. Commongrant administration to the creditor. Mc-wealth, 92 S. W. 542, 511, 122 Ky. 626. Caughey v. Byrne, 80 Atl. 653, 654, 115 Md.
Rev. St. 1899, § 1825, declaring any one 85.
who shall administer drugs to, or shall emThe term “manner prescribed by law," as ploy an instrument on, a pregnant woman, used in the Constitution of Washington, giv- with intent to destroy the fætus or child of ing the owner of property sought to be con- said pregnant woman, guilty of manslaughdemned the right to have the amount of his ter, is invalid in so far as it attempts to decompensation determined by a jury, unless a clare manslaughter, which necessarily imjury be waived, as in other civil cases, in the ports a homicide to have been committed, "manner prescribed by law,” means that the when the death of neither the child nor the law in force at the time the condemnation mother results from the act charged. State proceedings are instituted, and not that in
v. Hartley, 84 S. W. 910, 185 Mo. 669, 105 force at the time of the adoption of the Con- Am. St. Rep. 608. stitution, is to be resorted to in determining
As felonious homicide whether a jury trial is waived or not. Che
See Felonious Homicide. lan County y. Navarre, 80 Pac. 845, 847, 38 Wash. 684.
"Manslaughter" is the unlawful killing MANSLAUGHTER
of a human being without malice either ex
press or implied, and must be voluntary upon See Assault with Intent to Commit Man- a sudden heat of passion, caused by a provo
slaughter; Involuntary Manslaughter ; cation apparently sufficient to make the pasVoluntary Manslaughter.
sion irresistible. Duckworth v. State, 97 8. Willful manslaughter, see Willful-Will- W. 280, 281, 80 Ark, 360; State v. Primrose fully.
(Del.) 77 Atl. 717, 719, 2 Boyce, 164; State See, also, under the Immediate Influence v. Brown, 60 S. E. 945, 946, 79 S. C. 390; of Sudden Passion,
State v. Borrelli (Del.) 76 Atl. 605, 607, 1 “Manslaughter" is the unlawful killing Boyce, 349; Commonwealth v. Curcio, 65 Atl. of a human being without malice, either ex- 792–794, 216 Pa. 380; State v. Foster, 45 S. press or implied. State v. Emory (Del.) 58 E. 1, 3, 66 S. C. 469. Atl. 1036, 1038, 5 Pennewill, 126; State y. "Manslaughter" is where one person kills Ireland, 83 Pac, 1036, 1038, 72 Kan. 265;' another without malice, as in a sudden af
fray, in the heat of blood, or in a transport A killing wholly the result of passion of passion, without cooling time or time for and without malice is manslaughter. Brewreflection. State v. Russo (Del.) 77 Atl. 743, er v. State, 49 South. 336, 339, 160 Ala. 66. 746, 1 Boyce 538; State v. Roberts (Del.) 78
If there was a sudden, impulsive killing, Atl. 305, 310, 2 Boyce, 140; State v. Adams due to passion suddenly aroused--furor brev(Del.) 65 Atl. 510, 511, 6 Pennewill, 178; is-it was "manslaughter.” State v. Underhill (Del.) 69 Atl. 880, 882, 6 50 S. E. 247, 252, 57 W. Va. 228.
State v. Taylor, Pennewill, 491; State v. Jackson (Del.) 82 Atl. 824, 825.
Manslaughter where the homicide is
willful and unlawful, but is committed un“Manslaughter" is the unlawful killing der such circumstances of provocation or alof a human being without malice, express leviation as to rebut the implication of malor implied, and without any mixture of de- ice. State v. Harmon (Del.) 60 Atl. 866-868, liberation whatever. It must be voluntary,
Pennewil), 580. upon a sudden heat of passion, caused by a provocation apparently sufficient to make the
“The distinguishing quality of ‘manpassion irresistible. In “voluntary man- laughter is that the mind must be so agislaughter" there must be a serious and high- tated by reason of the conduct that it is inly provoking injury inflicted upon the per
capable cool reflection." Venters son killing, sufficient to excite an irresistible State, 83 S. W. 832, 836, 47 Tex, Cr. R. 280. passion in a reasonable person, or an at
"Manslaughter" is defined by the stat. tempt by the person killed to commit a seri- ute in Indian Territory as a voluntary act 'ous personal injury on the person killing. upon a sudden heat of passion caused by The killing must be the result of that sud- provocation apparently sufficient to make the den, violent impulse of passion supposed to passion irresistible, and it is further describbe irresistible. People v. Bissett, 92 N. E. ed as a killing in the commission of an un949, 951, 246 Ill. 516.
lawful act without malice or in the prosecuWhere the act of killing another is done tion of a lawful act without due caution and in sudden heat and passion, or sudden affray, circumspection. Carney United States, and without previous malice and not in nec- 104 S. W. 606, 7 Ind. T. 247. essary self-defense, accused is guilty of man
“Intentional killing is ‘manslaughter' if slaughter. Combs v. Commonweath (Ky.) it is committed under and by reason of a 112 S. W. 658, 659.
passion caused by what the law deems suf“Manslaughter" is voluntary homicide ficient provocation. The law does not merecommitted under the immediate influence of ly look to see if a man was provoked and ensudden passion arising from an adequate raged, and, if so, reduce his crime to man'cause, but neither: justified nor excused by slaughter; but it also looks at the provocalaw. Sue v. State, 105 S. W. 804, 809, 52 tion, and does not excuse him at all if it was Tex. Cr. R. 122.
inadequate to excite his passion. The provo
cation must be sufficient, in the eye of the A homicide in sudden passion excited by law, or it is murder.” State v. White, 51 S. sufficient provocation without malice is “man- E. 44, 50, 138 N. C. 704 (quoting and adopting slaughter,” not' because the law supposes definition in Clark, Cr. Law, p. 198). that the passion made the slayer unconscious of what he was about to do, but because it
An instruction that "manslaughter" is presumes that passion disturbs his reason. the unlawful killing of another without malMcBryde v. State, 47 South. 302, 305, 156 Ala. ice, express or implied, and that the per44.
son committing the act must not be in fault,
is not erroneous, where the judge further Every killing upon a rash and incon-charged, in other words, that the killing siderate impulse is not "manslaughter”; an must be on sufficient provocation. State v. adequate cause rendering the mind incapable Reeder, 51 S. E. 702, 703, 72 S. C. 223. of cool reflection being essential to reduce an unlawful killing to manslaughter. Potts
“Manslaughter" is the killing of another v. State, 118 S. W. 535, 538, 56 Tex. Cr. R. in the heat of passion without malice by the
use of a dangerous weapon without authority 39.
of law and not a necessary self-defense. To reduce a killing which would other. This was the definition given by the trial wise be murder to manslaughter, there must, court and held not erroneous on appeal. under the statute, have been both passion Moore v. State, 38 South. 504, 505, 86 Miss. and adequate cause to produce it. Hatchell 160. v. State, 84 S. W. 234, 236, 47 Tex. Cr. R.
Where one, under the influence of sudPSO.
den passion arising from some adequate Under Pen. Code, $ 254, homicide is cause, and not actuated by malice, while not manslaughter,” when perpetrated without a acting in self-defense, and intending to kill design to effect death, and in heat of pas- another, kills a different person, the offense sion. State v. Stumbaugh, 132 N. W. 666, is manslaughter. McCullough v. State, 136 668, 28 S. D. 50.
S. W. 1055, 1056, 62 Tex. Cr. R. 126.
Under Pen. Code 1911, art. 1128, de- "Manslaughter" was properly defined as fining “manslaughter" as voluntary homicide, “the unlawful killing of a human being withcommitted under the immediate influence out malice, without that black condition of of sudden passion arising from adequate the heart,
but in sudden heat of cause, if either sudden passion or adequate passion, on a legal provocation offered by cause, is lacking, the homicide is not man- deceased. That is to say, if deceased asslaughter. Burns v. State (Tex.) 145 S. W. saulted defendant, and defendant beca me 356, 364.
hot and passionate, and in that condition of The true nature of “manslaughter" is the heart he struck and killed deceased, in that it is a homicide mitigated out of tender- sudden heat and passion, the law denominess to the frailty of human nature. Every nates that sort of killing ‘manslaughter.'" man, when assailed with violence or great State v. Hunter, 63 s. E. 685, 687, 82 S. C. rudeness, is inspired with a sudden impulse
153. of anger, which puts him upon resistance "Manslaughter" exists where one perbefore time for cool reflection. If during son unlawfully kills another without malice, that period he attacks his assailant with a as where one in a sudden affray, in the heat weapon likely to endanger life, and death of blood, or in a transport of passion, witherisues, it is regarded as done through heat out malice, inflicts a mortal wound, without of blood, and violence of anger and not time for reflection or for the passion to cool. through malice. The same rule applies to a State v. Brelawski (Del.) 84 Atl. 950, 952. homicide in mutual combat, which is attrib
Where the evidence showed that accused uted to sudden and violent anger occasioned struck decedent, riding in a wagon, with a by the combat, and not to malice. Where
six-foot binding pole, and that decedent was two meet, not intending to quarrel, and angry either knocked off the wagon or fell from it words suddenly arise, and a conflict springs and was fatally injured by a wheel running up, in which blows are given on both sides, it is a mutual combat, without much regard slaughter in the language of the statute, and
over him, the court properly charged on manto who is the assailant; and if no unfair ad- that the jury could convict accused if they vantage be taken in the outset, and an occa- believed that he struck decedent and knocksion is not sought for the purpose of gratify, ed him off the wagon, or caused decedent to ing malice, and one seizes a weapon and strikes a deadly blow, it is regarded as homi- fall from the wagon, and that a wheel ran
over him, and that he died in consequence cide in the heat of blood, and under our stat
Gilute is manslaughter in the first degree. Rob- of such striking and being run over.
more v: State, 122 S. W. 493, 194, 92 Ark. inson v. Territory, 85 Pac. 451, 456, 16 Okl.
In the prosecution of an officer for killIn a prosecution for homicide, where the court discussed at length the difference be-struction that if defendant in good faith be
ing deceased while resisting arrest, an intween murder and “manslaughter" resulting lieved that he had a right to execute a capias in defense of one's dwelling, and gave numerous illustrations so that the jury could not pro fine under which he was seeking to arhave been misled, an instruction that “it is rest deceased on Sunday, then they should
find defendant guilty of manslaughter, was ‘manslaughter if sudden heat and passion
Kammerer v. Commonwealth, 125 be aroused because of the wrongful trespass of another upon his home, and if he slays in S. W. 723, 724, 137 Ky. 315. sudden heat and passion that is ‘manslaugh- An instruction that if accused was in ter,'” if not technically correct, is harmless such a state of excitement that his reason error. State v. Kibler, 60 S. E. 438, 440, 79 was dethroned, that he was driven by an unS. C. 170.
controllable impulse so that he was not moOne who provokes a difficulty without rally or legally accountable for his conduct, any intention of killing or doing any serious so that he did not realize his crime or what bodily harm, and suddenly and without de he was doing or where he was, and had gone liberation and under the immediate influence able to recover himself and his senses, then
some distance from the scene before he was of sudden passion arising from an adequate he would be guilty of no higher crime than cause kills another, is guilty of manslaugh- manslaughter, was erroneous, as the degree ter.” Cornelius v. State, 112 S. W. 1050, of mental disturbance required was equiva1055, 54 Tex. Cr. R. 173.
lent to insanity. People v. Poole, 123 N. W. A charge defining "manslaughter" as 1093, 1094, 159 Mich. 350, 134 Am. St. Rep. voluntary homicide committed under the im- 722. mediate influence of sudden passion arising Under Rev. St. U. S. § 5341, declaring from an adequate cause, but neither justified that every person who unlawfully and willnor excused by law, defining the meaning of fully but without malice shoots at or otherits phrases, and stating what was necessary wise injures another, of which shooting or to reduce voluntary homicide to the grade of other injury the person dies, is guilty of manslaughter, is not erroneous. Pratt v. manslaughter, an instruction defining manState, 127 S. W. 827, 831, 59 Tex. Cr. R. 167. 'slaughter and omitting the word "willfully"
was erroneous. O’Barr v. United States, 105 | ing, stabbing, wounding, shooting, or otherPac. 988, 989, 3 Okl. Cr. 319, 139 Am. St. wise injuring him, resuting in his death, Rep. 959.
without malice. State v. Collingsworth, 92 A charge on manslaughter in the lan- N. E. 22, 82 Ohio St. 154, 28 L. R. A. (N. S.) guage of the statute that every person who 770, 137 Am. St. Rep. 775; Miller v. State, shall unlawfully kill any human being, with- 107 Pac. 948, 3 Okl. Cr. 575. out malice, express or implied, either volun- Same-Cooling time tarily upon a sudden heat or involuntarily, “Manslaughter" is the unlawful killing of but in the commission of some unlawful act, a human being without malice, either exshall be guilty of manslaughter is sufficient; press or implied, and is committed when the the statute containing no technical terms, death wound is given by accused without and being plain and unambiguous, and easily malice, on sudden provocation, in the heat of understood by a juror of ordinary intelli- blood or in a transport of passion, on suffigence. State v. Quinn, 105 Pac. 818, 821, 56 cient provocation without time for reflection Wash. 295.
and deliberation and for the blood to cool. Defendant, a frail feeble man 62 years State v. Moore (Del.) 74 Atl. 1112, 1114, 1 of age, after having been severely beaten by Boyce, 142. deceased, went to his residence, obtained a If there should appear to have been an pistol, and, returning, fired two shots, the interval between the assault or provocation second of which struck deceased while he given and the killing sufficient for the voice was advancing. Deceased took the pistol of reason to be heard, the killing shall be ataway from defendant, and beat him with it tributed to deliberate revenge, and punished into insensibility, after which deceased died as murder. People v. Bissett, 92 N. E. 949, from his wound. Held, that an instruction 951, 246 Ill. 516. that if defendant with a deadly weapon or In determining whether a homicide is reinstrument reasonably calculated to produce duced from murder to manslaughter, the death by the mode or manner of its use, in question is not only whether accused's pasa sudden transport of passion aroused by sion, engendered by a sufficient provocation, adequate cause, and not in defense of him- did in fact cool, but also whether the time self against an unlawful attack reasonably intervening between the giving of the provoproducing a rational fear or expectation of cation and the killing was sufficient for the death or serious bodily harm, shot deceased passion of a reasonable man to cool; an afas charged, he was guilty of manslaughter, firmative answer to either question precludwas proper and warranted by the evidence. ing a reduction to manslaughter. A killing Sartin v. State, 103 S. W. 875, 876, 51 Tex. committed upon a provocation given 9 or 10 Cr. R. 571.
months before is not reduced to manslaughDefendant, keeper of a bagnio, had trou- ter by the passion engendered by such provoble with a man therein, and he went out, be- cation. Ex parte Fraley, 109 Pac. 295, 296, 3 ing immediately followed by deceased and his Okl. Cr. 719, 139 Am. St. Rep. 988. party. The testimony for the state was To reduce homicide from the degree of that the defendant then called for a pistol, murder to that of manslaughter it must have aimed it towards the party, and fired, say- been committed upon a sudden quarrel or ing, “Run you
run," and that on heat of passion, and, where a person who is her going inside, being asked if they ran, sufficiently wronged by another to arouse in she said, "Yes.” She and her witnesses tes him that heat of passion which, if life were tified that no shot was fired from the house. taken immediately, would make the crime Held, that "negligent homicide" was not in manslaughter, after sufficient cooling time has the case, but "manslaughter," of which she intervened, kills deceased, the homicide will was convicted, was the lowest grade of homi- be deemed the result of deliberation; and cide of which she could be found guilty; so where defendant was informed by his wife that any error in the instruction thereon was that she had committed adultery with deharmless. Clifton v. State, 84 S. W. 237, ceased, the first time under violence, search239, 47 Tex. Cr. R. 472.
ed for deceased, took a journey by train to The mere belief by defendant that he his home, and shot him 17 hours after he was in danger of having some injury inflict had been first informed, there had been a ed upon him, without any reasonable grounds sufficient cooling time and his acts could not for entertaining such belief, has never been be said to have been committed in such “heat recognized by the courts of this state or any of passion" as would reduce the homicide to other state to which our attention has been manslaughter. People v. Ashland, 128 Pac. called as being sufficient to reduce the grade 798, 801, 20 Cal. App. 168. of the crime from "murder" in the first or Same-Intent second degree to "manslaughter." State v.
To reduce homicide to manslaughter, it Clay, 100 S. W. 439, 442, 201 Mo. 679.
is not necessary that the intent to kill be “Manslaughter,” as defined by the stat- formed in a sudden transport of passion, on utes of the United States, consists in the un. adequate cause, but it is enough that the lawful and willful killing of another by strik- mind is excited and not capable of cool re
flection from some adequate cause. Kann- sudden passion, arising from an adequate macher v. State, 101 S. W. 238, 242, 51 Tex. cause, but neither justified nor excused by Cr. R. 118.
law. By the expression under the immediate The rule is well settled that to constitute influence of sudden passion is meant: (1) "manslaughter” it is not necessary that the That the provocation must arise at the same perpetrator should have intended and willed time of the commission of the offense, and the death of the person killed. One who will that the passion is not the result of a former
(2) That the act must be difully uses a deadly weapon upon another provocation. will be deemed to intend the necessary and rectly caused by the passion arising out of probable consequences of his act. The text- the provocation. It is not enough that the writers divide manslaughter into two de- mind is merely agitated by passion arising
from some other provocation. (3) The pasgrees, voluntary and involuntary. Tyner v. United States, 103 Pac. 1057, 1058, 2 Okl. Cr. sion intended is either of the emotions of the
mind known as anger, rage, sudden resent689. Intent is not an essential element of the reflection.” Sue v. State, 105 S. W. 804, 809,
ment, or terror rendering incapable of cool statutory definition of "manslaughter" when 52 Tex. Cr. R. 122. committed by culpable negligence, and charges predicated upon the theory that intent is
“Manslaughter' is where one person un
In in every case essential to the statutory crime lawfully kills another without malice. of “manslaughter" are properly refused. order to reduce the crime to manslaughter, Kent v. State, 43 South. 776, 774, 53 Fla. 51. the provocation must be very great—so great
as to produce such a transport of passion as Sand. & H. Dig. $ 1660, providing that the to render the person for the time being deaf killing of a human being without design to to the voice of reason." State v. Powell effect death, in the heat of passion, but in a (Del.) 61 Atl. 966, 971, 5 Pennewill, 24; State cruel and unusual manner, unless it be under v. Tilghman (Del.) 63 Atl. 772, 773, 6 Pennecircumstances that would constitute excusa- will, 54; State v. Johns (Del.) 65 Atl. 763, ble or justifiable homicide, shall be adjudged 766, 6 Pennewill, 174; State v. Wiggins (Del.) manslaughter, is not applicable to a killing 76 Atl. 632, 635, 7 Pennewill, 127. with a pistol; the statute being evidently intended to cover a case of homicide committed "To reduce unlawful killing from 'murunintentionally, but with such wanton sav- der' to 'manslaughter,' two things must conagery and cruelty, and in such an unusual cur: First, conditions must be shown to exmanner, as to imply recklessness of design. ist which would be calculated to produce, in In one sense, it is true, all killing is cruel; the mind of a person of ordinary prudence but, in the sense of this statute, killing with and self-control, such rage, fury, or terror as such a common or effective instrument of would render the mind of the defendant indeath as a pistol cannot be regarded as cruel; capable of forming a premeditated design to still less is this manner of death unusual. effect the death of the person slain, or of any Tanks v. State, 75 S. W. 851, 852, 71 Ark. other human being; second, it must also be 459.
shown that the defendant was in fact, at the In “manslaughter” there may be an in- time of the homicide, laboring under such tent to kill existing in the mind of the slayer rage, fury, or terror." Ex parte Smith, 99 at the time the fatal shot is fired. Keigans Pac. 893, 900, 2 Okl. Cr. 24. . State, 41 South. 886, 887, 52 Fla. 57.
To reduce a homicide from murder to Where the intent was merely to inflict "manslaughter," it must be committed in a chastisement, and death results from some heat of passion, on a reasonable provocation, peculiarity in decedent's constitution or oth without malice and without premeditation, er unexpected incident, the killing is man- and under circumstances that will not be jusslaughter only. Rosemond v. State, 110 S. W. tifiable or excusable homicide. The passion 229, 230, 86 Ark. 160.
which will reduce homicide to the degree of “Manslaughter” is the unlawful killing duced by some lawful provocation, such as a
manslaughter is an excited state of mind proof another without malice, and under certain blow or an assault of any kind upon the perconditions this crime may be established, though the killing has been both unlawful includes every homicide not justifiable or ex
"Manslaughter," in the fourth degree, and intentional. State v. Baldwin, 68 S. E.
cusable which was manslaughter at common 148, 151, 152 N. C. 822.
law, and which is not excusable or justifiaIf the intention to kill was formed in ble, or declared by statute to be manslaughdefendant's mind, through passion, with ade- ter in some other degree. State v. Weakley, quate cause, and the homicide occurred while | 77 S. W. 525, 527, 178 Mo. 413 (quoting and the mind was in that condition, it was no adopting the definitions in Rev. St. 1899, 8 higher offense than manslaughter. Dixon v. 3477). State, 103 S. W. 399, 401, 51 Tex. Cr. R. 555.
Killing, the result of passion produced Same Provocation
by fight, is “manslaughter" if the person up'Manslaughter' is voluntary homicide on whom an assault is made with violence committed under the immediate influence of resent it immediately by killing the aggres