while the slayer is in the unlawful commis- | fendant did "feloniously kill and slay" the sion of some act not amounting to a felony," deceased cannot support a conviction for asauthorizes an instruction that if defendant struck the blow that killed the deceased, and intended only to make an assault and battery upon his person, or to inflict great bodily injury thereon, but that, as a result of the assault, the deceased died without defendant having intended to kill him, defendant would be guilty of manslaughter. State v. Walker, 110 N. W. 925, 928, 133 Iowa, 489.

element. If, under the influence of some violent emotion, a sudden intent was formed, which on adequate provocation overwhelmed the reason of the appellant, then the killing was not murder, but manslaughter only. State v. Clark 77 Pac. 287, 288, 69 Kan. 576. The chief distinction between "murder" and "manslaughter" is deliberation and malice in murder and the want thereof in manslaughter, and, where the issue was whether accused or a third person inflicted the fatal wound, the error in an instruction that if accused killed decedent without authority of law and not in necessary self-defense he was guilty of manslaughter, arising from the omission of the words "without malice and in the heat of passion," was not prejudicial. Guest v. State, 52 South. 211, 212, 96 Miss. 871.

Generally it is not "murder," but "manslaughter," to kill an officer, or other person, to prevent an illegal arrest. Consequently, shooting at an officer without killing him, if done to prevent an illegal arrest, is prima facie not an assault with intent to murder, but the statutory crime of shooting at another, described in Code 1882, § 4370. Jenkins v. State, 59 S. E. 435, 436, 3 Ga. App. 146 (quoting, with approval, from Thomas v. State, 18 S. E. 305, 91 Ga. 206).

tion, reflection, or for the passions to cool. State v. De Paolo (Del.) 84 Atl. 213, 215.

"Manslaughter" is an unlawful killing in anger without malice. Proof of prior provocation may exclude the idea of malice in the homicide, but does not exclude the idea of unlawfulness. It merely substitutes the element of anger without malice for the element of malice, thus distinguishing manslaughter from murder. Cole v. State, 59 S. E. 24, 26, 2. Ga. App. 734.

Murder in the second degree consists of the killing of another without a formed design to take life, and without provocation to reduce the offense to "manslaughter," and under the influence of a wicked or depraved heart, or with cruel and wicked indifference to human life. "Manslaughter' is where one in a sudden affray, in the heat of blood, or in a transport of passion, without malice, inflicts a mortal wound, without time for reflection or for the passions to cool. It is where one person unlawfully kills another without malice. In order to reduce the crime to 'manslaughter,' the provocation must be very great, so great as to produce such a transport of passion as to render the person for the time being deaf to the voice of reason. While murder proceeds from a wicked and depraved heart and is characterized by malice, 'manslaughter' results, not from malice, but from unpremeditated and unreflecting passion." State v. Cephus (Del.) 67 Atl. 150, 151, 6 Pennewill, 160.

When a killing is intentional and is not lawful, it is generally "murder"; but, under circumstances of provocation, or of mutual combat, it may be reduced to "manslaughter." State v. Goldsby, 114 S. W. 500, 503, 215 Mo. 48 (citing 2 Bishop's Crim. Law [6th Ed.] § 695).

Under Pen. Code, §§ 187, 189, defining murder as the unlawful killing of a human being with malice aforethought, and defining murder in the first and second degrees, and section 192, defining manslaughter as the unlawful killing of a human being without malice, and dividing manslaughter into voluntary and involuntary manslaughter, and section 274, making it a felony to perform a criminal abortion, an unlawful killing with malice aforethought is "murder," and is also "manslaughter," because it is the unlawful "Murder" is where a person of sound killing of a human being, though it cannot be memory and discretion unlawfully kills any logically classed as voluntary or involuntary human being under the peace of the state, manslaughter, and under a charge of murder | with malice aforethought, either express or by attempting a criminal abortion, a verdict of manslaughter may be returned. People v. Huntington, 97 Pac. 760, 762, 8 Cal. App. 612. "Manslaughter" is an unlawful killing, which becomes "murder in the second degree" when it has the added element of malice. State v. Fowler, 66 S. E. 567, 151 N. C. 731.

"Manslaughter" consists of the unlawful killing of a human being without malice, and so, in a prosecution for assault with intent to commit murder, the accused cannot be convicted if, had his victim died, his crime would have only been manslaughter. State v. Stockley (Del.) 82 Atl. 1078, 1080.

implied.

The chief characteristic of this crime distinguishing it from "manslaughter" and every other kind of homicide, and therefore indispensably necessary to be proved, is malice preconceived or aforethought. State v. Brinte (Del.) 58 Atl. 258, 262, 4 Pennewill, 551.

A charge that, where an officer is shot and killed by one whom he is seeking legally to arrest, the offense is "murder" and not "manslaughter," was not erroneous when taken in connection with the evidence which was sufficient to show that defendant was violating the law in the presence of the officer and that upon an effort to arrest him he drew a pistol and shot the officer. Johnson v. State, 160 S. E. 160, 161, 130 Ga. 27.

"Manslaughter" is a homicide distinguished from murder in that it is the unlawful killing of another with malice, as in sud- If two persons deliberately agree to fight den affray, in the heat of blood, or in a trans- with deadly weapons on a subsequent day at port of passion, without time for delibera- a definite time and place, and both, being

276

armed, meet by chance near the appointed unintentionally kills such person, the crime place and near the appointed time, and with- would fall within this definition and constiout any fresh cause of a quarrel or other al- tute "manslaughter in the first degree.” tercation one slays the other without justifi- State v. McAnarney, 79 Pac. 137, 139, 70 cation, the crime is murder, and not volun- Kan. 679. tary "manslaughter." Bundrick v. State, 54 S. E. 683, 685, 125 Ga. 753.

MANSLAUGHTER IN SECOND DEGREE 277 MANSLAUGHTER IN FOURTH DEGREE

cusable or justifiable homicide. Held, that | 195 N. Y. 102, 21 L. R. A. (N. S.) 998, 133 Am. the phrase "when perpetrated without a de- St. Rep. 770, 16 Ann. Cas. 837. sign to effect death and in a heat of passion" was employed to express the distinction between homicide in the first degree and murder, and where one kills another in a cruel

or unusual manner, without excuse or justification, or by means of a dangerous weapon under circumstances which do not excuse or justify the killing, the crime is at least manslaughter in the first degree. State v. Edmunds, 104 N. W. 1115, 1116, 20 S. D. 135.

MANSLAUGHTER IN SECOND DEGREE Manslaughter in the second degree is the unlawful, involuntary killing of a human being. Neilson v. State, 40 South. 221, 222,

146 Ala. 683.

"Manslaughter in the second degree" is the unnecessary killing of another either while resisting an attempt by such other person to commit any felony or to do any unlawful act after such attempt shall have failed. State v. Stevenson, 85 Pac. 797, 798, 74 Kan. 193.

Under St. 1893, § 2090, every killing of a human being by culpable negligence which under the chapter on homicide is not murder or manslaughter in the first degree, nor excusable or justifiable homicide, is manslaughter in the second degree. Barker v. Territory, 78 Pac. 81, 83, 15 Okl. 22.

St. 1898, § 4351, makes it manslaughter in the second degree to unnecessarily kill another while resisting an attempt of the other to commit an unlawful act. Pollock v. State, 116 N. W. 851, 854, 136 Wis. 136.

Rev. St. 1899, § 1826 (Ann. St. 1906, P. 1267), defines manslaughter in the second degree to be the killing of a human being without a design to effect death in a heat of pas

sion in a cruel or unusual manner. State v. Colvin, 126 S. W. 448, 456, 226 Mo. 446.

Where there is a want of intention or willfulness in the doing of the unlawful act causing death, resulting from a mental status incapable of forming an intent or purpose to do the act, though produced by drunkenness, the homicide is reduced to manslaughter in the second degree. Heninburg v. State, 43 South. 959, 960, 151 Ala. 26.

Comp. Laws 1909, § 2280, defines "manslaughter in the second degree" as every killing of one human being by the act, procurement, or culpable negligence of another, which, under the provisions of the statute, is not murder or manslaughter in the first degree or excusable homicide. Turner V. State, 126 Pac. 452, 459, 8 Okl. Cr. 11; Kent v. Same, 126 Pac. 1540, 1043, 8 Okl. Cr. 188. MANSLAUGHTER IN THIRD DEGREE Under Rev. St. 1909, § 4462, defining manslaughter in the third degree as the killing of another with the design to effect death by a dangerous weapon, there can be no manslaughter in the third degree where the killing was with the design to effect death and was intentional, but one may be guilty of manslaughter in the third degree, when in the heat of passion he struck and killed the adversary with a dangerous weapon under circumstances authorizing a finding that he did not intend to kill the adversary by the blow. State v. Hanson, 132 S. W. 245, 248,

231 Mo. 14.

St. 1898, § 4354, declares that any per son who shall kill another in the heat of passion without a design to effect death, by a dangerous weapon, in any case except such wherein the killing of another is declared to be justifiable or excusable, shall be deemed guilty of manslaughter in the third degree. Duthey v. State, 111 N. W. 222, 224, 131 Wis. 178, 10 L. R. A. (N. S.) 1032; Bradley v. Same, 124 N. W. 1024, 1025, 142 Wis. 137. MANSLAUGHTER

GREE

IN FOURTH DE

Where the killing is intentional, “man

slaughter in the fourth degree" is defined as the intentional killing of a human being in the heat of passion on a reasonable provocation, without malice and without premeditation, and under circumstances which will not render the killing as justifiable or excusable homicide. State v. Sebastian, 114 S. W. 522, 528, 215 Mo. 58 (citing State v. McKenzie, 76 S. W. 1015, 177 Mo. loc. cit. 712; State v. Hermann, 23 S. W. 1071, 117 Mo. loc. cit. 637; State v. Sumpter, 55 S. W. 76, 153 Under Pen. Code, § 179, defining homicide Mo. 436; State v. Meadows, 56 S. W. 878, 156 as the killing of one human being by the Mo. 110; State v. Brown, 64 Mo. 367; State act, procurement, or omission of "another," v. Diller, 70 S. W. 139, 170 Mo. 1; State and section 180. providing that homicide is v. Ashcraft, 70 S. W. 898, 170 Mo. 409; State either murder or manslaughter, and section v. Kindred, 49 S. W. 845, 148 Mo. 270; State 193, subd. 3, making a homicide manslaugh- v. Gartrell, 71 S. W. 1045, 171 Mo. 489); ter in the second degree when due to the act, State v. Darling, 97 S. W. 592, 600, 199 Mo. procurement, or culpable negligence of any 168; State v. Greaves, 147 S. W. 973, 975, "person" which does not constitute murder or 243 Mo. 540. As a general rule it takes an manslaughter in the first degree, a corpora- assault, with personal violence, to constitute tion may not be indicted for manslaughter, such provocation. State v. Todd, 92 S. W. since the word "another" means another 674, 679, 194 Mo. 377 (quoting and adopting human being, and since the word "person" definition in State v. McKenzie, 76 S. W. 1015, does not include a corporation. People v. 177 Mo. 699). "Manslaughter in the fourth Rochester Ry. & Light Co., 88 N. E. 22, 24, degree," under the statutes of this state, is

the intentional killing of a human being in the heat of passion, on a reasonable provocation, without malice and without premeditation, and under circumstances which will not render the provocation justifiable or excusable homicide, and as a general rule it takes an assault with personal violence to constitute such provocation. State v. Kelleher, 100 S. W. 470, 475, 201 Mo. 614 (quoting and adopting definition in State v. McKenzie, 76 S. W. 1019, 177 Mo. 712). Where deceased pursued and attacked accused, who had fled after striking deceased with a stone, accused's act in killing deceased who had assaulted him and struck him was manslaughter in the fourth degree, the assault and battery being sufficient provocation to reduce the homicide to that offense. State v. Wilson, 147 S. W. 98, 104, 242 Mo. 481.

Gen. St. 1901, § 2011 (Crimes Act, § 16), defines "manslaughter in the fourth degree" as the involuntary killing of another in the heat of passion, by means neither cruel nor unusual. State v. Knoll, 83 Pac. 622, 623, 72 Kan. 237; Same v. Moore, 100 Pac. 629, 630,

79 Kan. 688.

"Manslaughter in the fourth degree" is the involuntary killing of another in the heat of passion, or any homicide which would be manslaughter at common law, and which is not excusable nor justifiable, or is not declared to be manslaughter in some other degree. State v. Goldsby, 114 S. W. 500, 503, 215 Mo. 48 (citing 2 Bishop's Crim. Law [6th Ed.] § 695).

An instruction that: "If the defendant shot and killed deceased while in the heat of passion aroused by the striking of him with a stick produced in evidence, and without malice or premeditation, * * ** and not in necessary self-defense, then he is guilty of 'manslaughter in the fourth degree' * * * "--was faulty in that it did not require the jury to find that defendant intentionally shot and killed deceased. State v. Elsey, 100 S. W. 11, 14, 201 Mo. 561.

A killing resulting from an intentional shot, though without design to effect death, is not involuntary, within Rev. St. 1898, § 4362, declaring that involuntary killing in the heat of passion, etc., shall be deemed "manslaughter in the fourth degree." Johnson v. State, 108 N. W. 55, 58, 59, 129 Wis. 146, 5 L. R. A. (N. S.) 809, 9 Ann. Cas. 923.

MANUAL DELIVERY

"Dominion," as applied to a conveyance, means "to pass the instrument of writing from one man to another, as symbolic of his transferring the land to the person to whom it is delivered. Now the delivery must be made. It must be had. If a man draws a deed, and intends to deliver it, but never does, it is never a deed, because it is not consummated by delivery, and that delivery must be an actual delivery; that is, the maker of the deed must intend to pass it over to the grantee, the person to whom it is made. His dominion and right to the control over the property as set out in the deed passes with the delivery. Sometimes it is called 'manual delivery,' handing it over to him." Lancaster v. Lee, 51 S. E. 139, 141, 71 S. C. 280.

MANUAL GIFT

the Louisiana Code as the giving of corporeal, A "manual gift," which is defined by movable effects accompanied by real delivery, may be free, onerous, or remunerative, and, when the donor makes such a gift omnium bonorum on condition that the donation shall maintain him for the rest of his life, it will be dealt with as an onerous donation and not as a commutative contract. Ackerman v. Larner, 40 South. 581, 587, 116 La. 101.

MANUAL LABOR

The term "manual labor," in its ordinary and usual meaning and acceptation, means labor performed by and with the hands or hand, and it implies the ability for such sustained exercise and use of the hands or hand at a labor as will enable a person thereby to earn or assist in earning a livelihood. Being able to temporarily use the hands or hand at and in some kind of labor, but without ability to sustain such ordinary exercise and use of the hands at some useful labor whereby money may be earned to substantially assist in earning a livelihood at some kind of manual labor, does not constitute ability to perform manual labor. Grand Lodge Brotherhood of Locomotive Firemen v. Orrell, 69 N. E. 68, 69, 206 Ill. 208.

When a person is employed to work with his hands, as well as to exercise superintendence, the line must be drawn somewhere beWhere accused shot his wife with a pis- tween what are acts of superintendence and tol in an alleged insane frenzy, resulting from what acts of "manual labor," or all that he her alleged misconduct, the case did not pre- does must be regarded as superintendence or sent a killing within St. 1898, § 4363, declar- as manual labor, which manifestly would be ing that every other killing of a human being unjust. Though the principal duty of an by the act, procurement, or culpable negli-employé at a stone quarry was that of supergence of another, where such killing is not intendence, his putting a can of powder on justifiable or excusable, or is not declared to be murder or manslaughter in some other degree, shall be deemed manslaughter in the fourth degree. Duthey v. State, 111 N. W. 222, 224, 131 Wis. 178, 10 L. R. A. (N. S.)

1032.

the edge of the pit, whence it was accidentally knocked into the pit, causing an explo sion, is not an act of superintendence, so as to render the master liable for injury to a workman from the explosion. Riou v. Rockport Granite Co., 50 N. E. 525, 171 Mass.