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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 became 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.

153. rudeness, is inspired with a sudden impulse 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, withensues, 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 over him, the court properly charged on manis a mutual combat, without much regard slaughter in the language of the statute, and to who is the assailant; and if no unfair ad- that the jury could convict accused if they rantage 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 cide in the heat of blood, and under our stat- of such striking and being run over.

over him, and that he died in consequence

Gilute is manslaughter in the first degree. Rob

more v. State, 122 S. W. 493, 194, 92 Ark. inson v. Territory, 85 Pac. 451, 456, 16 Okl.

205. 241.

In the prosecution of an officer for killIn a prosecution for homicide, where the

ing deceased while resisting arrest, an incourt discussed at length the difference be struction that if defendant in good faith between 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 find defendant guilty of manslaughter, was

rest deceased on Sunday, then they should ‘manslaughter if sudden heat and passion

erroneous. Kammerer v.

. Commonwealth, 125 be aroused because of the wrongful trespass S. W. 723, 724, 137 Ky. 315. of another upon his home, and if he slays in 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 mo

rally or legally accountable for his conduct, One who provokes a difficulty without

so that he did not realize his crime or what any intention of killing or doing any serious bodily harm, and suddenly and without de- he was doing or where he was, and had gone

some distance from the scene before he was liberation and under the immediate influence able to recover himself and his senses, then 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 equiva1053, 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

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flection from some adequate cause. Kann- sudden passion, arising from an adequate macher v. State, 101 S. W. 238, 242, 51 Tex. i 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 fully uses a deadly weapon upon another provocation. (2) That the act must be diwill 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 grees, voluntary and involuntary. Tyner v.

from some other provocation. (3) The pasUnited States, 103 Pac. 1057, 1058, 2 Okl. Cr. sion intended is either of the emotions of the 689.

mind known as anger, rage, sudden resentIntent is not an essential element of the retlection.” Sue v. State, 105 S. W. 804, 809,

ment, or terror rendering it 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 say- 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. v. 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

"Manslaughter," in the fourth degree, and intentional. State v. Baldwin, 68 S. E. includes every homicide not justifiable or ex.

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-tér 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, $ 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

son.

sor, and act therein in heat of blood and not Provocation caused by words only is not exclusively in his own defense. State v. sufficient to reduce a homicide from murder Quick, 64 S. E. 168, 169, 170, 150 N. C. 820 to “manslaughter.” Petty v. State, 89 S. W. (citing State v. Miller, 17 S. E. 167, 112 N. C. 465, 467, 76 Ark. 515. 878; State v: Crane, 95 N. C. 619; State v.

Testimony of a statement made by deTackett, 8 N. C. 210).

ceased to defendant and to some of defendThe mere belief by defendant that he ant's sisters, who were present, that they was in danger of having some injury inflicted were bitches, or damn bitches, does not raise upon him, without any reasonable grounds the issue of insulting conduct toward a famfor entertaining such belief, has never been ily relative of defendant. Johnson v. State, recognized by the courts of this state or any 84 S. W. 824, 826, 47 Tex. Cr. R. 523. other state to which our attention has been called, as being sufficient to reduce the grade immediate influence of passion arising in his

Where accused killed another under the of the crime from “murder" in the first or

mind from information given him by his wife second degree to "manslaughter." State y.

to the effect that deceased had used insulting Clay, 100 S. W. 139, 442, 201 Mo. 679.

language to her, defendant believing and in A slight assault does not excuse the kill- good faith acting on the information, such ining of an assailant with a deadly weapon, so formation was to him an adequate cause, reas to reduce the offense from the grade of ducing the crime to manslaughter, whether murder to that of manslaughter. State v. the insults had been in fact offered or not. Wiggins (Del.) 76 Atl. 632, 635, 7 Pennewill, Melton v. State, 83 S. W. 822, 824, 47 Tex. Cr. 127; Same v. Borrelli (Del.) 76 Atl. 605, R. 451. 607, 1 Boyce, 319.

In a prosecution for manslaughter, whereWhen words of decedent are accompa- in it appeared accused killed deceased while nied by acts showing a purpose to commit vi- endeavoring to gain possession of a house ocolence on accused, as by raising and pointing cupied by the deceased, there was evidence at him a gun, accused is entitled to an in- that accused, just before the killing, sent his struction on manslaughter. State v. Craw- wife to demand possession, and that when ford, 66 S. E. 110, 115, 66 W. Va. 114.

she did so deceased asked her if she was going If the prisoner willingly engaged in a

to take the place of her husband, or if she fight with the deceased, and the deceased

was attending to his business, and said that threw his hand to his hip pocket, and ad- there was no law that could put him out, and vanced upon the prisoner in a threatening that then her hushand called her, and demanner, and the prisoner, being willing to ceased and his brother followed her, cursing fight, seized a pistol, and shot the deceased, accused and calling him vile names. Held and the deceased died from the wound then not to raise the issue of manslaughter by inflicted by the prisoner, the prisoner would reason of insulting conduct towards her, so be guilty of “manslaughter,” provided the ap- as to require a charge thereon. Gay v. State, pearance and manner of the deceased were | 125 S. W. 896, 901, 58 Tex. Cr. R. 472. such as to cause the prisoner to believe that

In a prosecution for homicide, an instructhe deceased was armed with a deadly weap- tion was erroneous which required that, beon, and that the prisoner did believe he was fore defendant would be entitled to a reducarmed with a deadly weapon and was about tion of his offense to manslaughter, the jury to harm him with it. State v. Exum, 50 S. E. must believe both that he was led to commit 283, 289, 138 N. C. 599.

the homicide from learning that decedent had If a convict, while attempting to prevent insulted his wife, and also that the decedent his punishment by the warden, which amount- had used violent language to and threatened ed to an assault, slew a fellow convict aiding him with bodily harm, since, where the law the warden, who was the warden's abettor makes any given fact adequate cause for in committing the assault, the homicide may homicide, a defendant is entitled to an unbe reduced to voluntary manslaughter; and equivocal instruction that, if such fact is it was error to omit to charge on that offense proven, it is adequate cause, and where any in a prosecution of the convict for murder. one or more issues are raised by the evidence, Westbrook v. State, 66 S. E. 788, 791, 133 Ga. either of which, if found to be true, would as 578, 26 L. R. A. (N. S.) 591, 18 Ann. Cas. 295. a fact constitute adequate cause, the jury

should be so instructed, and it is error to Where decedent slapped accused, but did blend the two and require that the affirmative not accompany the act by angry or insulting of both be proved. Barbee v. State, 124 S. W. words, a charge on manslaughter that, if ac- 961, 967, 58 Tex. Cr. R. 129. cused killed decedent under the immediate influence of sudden passion arising from the Where a person committing a homicide act of decedent rendering the mind of accus- did so in the belief that decedent had insulted ed incapable of cool reflection, he was guilty defendant's sisters, the homicide was "manof manslaughter only, properly submitted the slaughter," if committed upon the first meetissue of manslaughter. Best v. State, 125 s. ing after defendant was apprised of the outW. 909, 913, 58 Tex. Cr. R. 327.

rage, whether decedent actually committed.

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the insult or not, if the homicide was commit-, wounding, or shooting at or otherwise injurted while defendant was acting under the be- ing another person in any fort, arsenal, etc., lief that decedent was guilty and while labor- of which striking, etc., such person dies. ing under a passion aroused by that belief Manslaughter has been defined to be the which rendered his mind incapable of cool re killing of another without malice, express or flection. Gillespie v. State, 109 S. W. 158, implied, which may be voluntary upon sudden 159, 53 Tex. Cr. R. 167.

heat, or involuntary in the commission of If, when he killed decedent, accused was

some lawful act. Any unlawful and willful incapable of cool reflection because of dece killing of a human being without malice is dent's insulting language and conduct toward manslaughter, and thus defined it includes a accused's wife, knowledge of which had just negligent killing which is also willful. 'Mancome to him, or if the unwarranted ejection slaughter' occupies the middle ground beof accused from decedent's house, accompa- the one hand, and murder on the other.”

tween excusable, or justifiable, homicide on nied by kicks from decedeut, infuriated accused beyond cool reflection, resulting in the United States v. Hart, 162 Fed. 192, 194, 195. killing, the killing was “manslaughter.” Hol- Gross carelessness in the handling of firecomb v. State, 113 S. W. 754, 756, 54 Tex. Cr. arms which results in killing a human being R. 486.

is at least “inanslaughter." State v. Clardy, "If a husband finds his wife committing 53 S. E. 193, 500, 73 S. C. 340. adultery and under the provocation instantly Under Pen. Code, defining “manslaughtakes her life, the homicide is only 'man- ter" as the unlawful killing of a human being slaughter.'Thomas v. State, 43 South. 371, without inalice and dividing it into two kinds: 374, 150 Ala. 31 (citing looks' Case, 13 South. (1) Voluntary, upon a sudden quarrel or heat 767, 99 Ala. 166; McNeill v. State, 15 South. of passion; (2) involuntary in the commission 352, 102 Ala. 121, 48 Am. St. Rep. 17; Dabney of an unlawful act not amounting to a felv. State, 21 South. 211, 113 Ala. 38, 59 Am. St. ony, or in the commission of a lawful act Rep. 92; Williams v. State, 30 South. 484, which might produce death in an unlawful 130 Ala, 107, 112).

manner or without due caution or circumA charge that to reduce a killing to spection--in a prosecution for assault in the "manslaughter," where passions have been first degree, it was error to instruct that, if suddenly aroused on a sufficient provocation, the jury believed that defendant would have it must have been done under the influence of been guilty of manslaughter in case death passion promptly acted upon, is not errone- had resulted, then they should find him guilty ous. Harrison v. State, 40 South. 568, 570, of assault in the first degree, since intent is 141 Ala. 20.

not always a necessary element in the crime The unlawful killing of another without crime of assault in the first degree. State

of manslaughter, but is the essence of the malice is “manslaughter," as where one kills

V. Schaefer, 88 Pac. 792, 793, 35 Mont. 217. another in a sudden quarrel, in the heat of blood, or in a transport of passion, without “Manslaughter" is the unlawful killing malice, inflicts a mortal wound, without time of a human being without malice, and is of for reflection or for the passions to cool; but two kinds--voluntary (that is, upon a sudden to reduce the offense to manslaughter the quarrel or heat of passion); involuntary, in provocation must be very great, so great as the commission of an unlawful act not to produce such a transport of passion as to amounting to a felony, or in the commission render the person for the time being deaf to of a lawful act, which might produce death, the roice of reason. State v. Brooks (Del.) 84 in an unlawful manner, or without due cauAtl, 225, 228.

tion and circumspection. The instruction was

in the language of Pen. Code, g 192. People Voluntary or involuntary killing v. Lee, 108 Pac. 738, 739, 13 Cal. App. 48.

“Manslaughter" is the unlawful killing “Manslaughter,” as defined by Pen. Code. of another, without malice, upon a sudden $ 192, is the unlawful killing of a human beheat, or inadvertently, but in the commission ing without malice, first, voluntary, upon a of some unlawful act. Boche v. State, 122 N. sudden quarrel or heat of passion; second, inW. 72, 75, 84 Neb. 845.

voluntary, in the commission of an unlawful "Manslaughter" is the unlawful killing of act which might produce death in an unlawful another without malice, either express or im- manner or without due care and circumspecplied, and without premeditation, and is ei- tion. The causing of death while attempting ther voluntary or involuntary. State to commit an abortion does not constitute Blackburn (Del.) 75 Atl. 536, 539, 7 Pennewill, manslaughter under the statute. Huntington 479; State v. Morahan (Del.) 77 Atl. 488, 489, v. Superior Court of City and County of San 7 Pennewill, 494; State v. Woods (Del.) 77 Francisco, 90 Pac. 141, 144, 5 Cal. App. 288. Atl. 490, 491, 7 Pennewill, 499.

The approved definition of "manslaugh"Manslaughter," as defined by Rev. St. & ter" as the killing of another without malice, 3341, is the offense of unlawfully and will either express or implied, “either unlawfully fully, but without malice, striking, stabbing, upon a sudden quarrel, or unintentionally

3 WDS.& P.20 SER.-18

V.

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