MANSLAUGHTER.

Manslaughter "is the unlawful killing of another without malice, either express or implied." 4 Blac. Com. 191. It is a felonious homicide, and is said formerly to have heen punished at common law with death. It is thus distinguished from murder, "manslaughter arises from the sudden beat of the passion; murder from the wickedness of the heart." 4 Blac. Com, 190.

Manslaughter is said to be either "voluntary" or "involuntary." "Voluntary manslaughter" is committed at the moment of passion for some gross affiont or great injury; "involuntary mauslaughter," is when one engaged in an unlawful act kills another by accident.

There must be no malice or premeditation whatsoever in the act,» or it is not manslaughter. If two men quarrel suddenly and fight on the spot, and one kill the other, it is manslaughter. Nay, if they go out to fight immediately, it is but manslaughter, because the going out to fight immediately is but one continued act of passion. 1 Hawk. P. C. 92. But if a sufficient interval occur wherein it might reasonably be supposed that the passions had time to cool, it is deliberate revenge and not a momentary heat of temper, which could afterwards excite them to shed each others blood; and in such case therefore the offence would be murder. If one kill another in the act of adultery with his wife, it is manslaughter only. "Manslaughter on a sudden provocation, differs from excusable homicide se deffendendo, in this, that in one case there is an apparent necessity for self preservation to kill the aggressor, in the other case no necessity at all, being a sudden act of revenge." 4 Blac. Com. 192.

"Involuntary manslaughter" differs from excusable homicide by misadventure, in this only, that the latter happens in consequence of a lawful act, the former in consequence of an unlawful one. But though manslaughter of this nature is thus defined to be the consequence of an unlawful act, such consequences from every unlawful act, are not to be taken as' mere mauslaughter; for there are some acts so atrociously criminal, as rape, robbery, and housebreak ing, and other felonies, that if he in committing or attempting them, kill another, even by accident, it is murder. "Where a person does an act, lawful in itself, but in an unlawful manner, and without due caution and circumspection, as wlien a workman flings down a store or piece of timber into the street, and kills a man, this may be misadventure, manslaughter, or murder, according to the circumstances under which the original act was done. If it were in a country vi lage where few passengers are, and he calls out 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, tho' he gives loud warning; and murder if he knows of their passing and gives no notice at all, for then it is malice against all mankind. 3

vi'

Ins. 57. And in general, when an involuntary killing happens in consequence or an unlawful act, it will be either murder or manslaughter, according to the nature of the act which occasioned it.If it be in the prosecution of a felonious intent, or in its consequences naturally intended to bloodshed, it will be murder; but if no more was intended than a mere civil trespas, it would only amount to manslaughter." 4 Blac. Com, 192.

Though manslaughter is a distinct offence from murder, and one inay, it is presumed, be indicted for it alone, the usual way is to indict the party for murder, and the petty jury may thereupon find him guilty of murder or manslaughter, at their discretion, though the crime of manslaughter is never mentioned in the indictment. The verdict might perhaps even be, as at common law, "guilty of excusable homicide," or "homicide by chance medley," upon the same indictment. But, as has been already suggested, it seems to be the better because the simpler way in such cases to bring in the general verdict of acquittal "not guilty."

Manslaughter is punished at common law by burning in the hand and forfeiture of goods and chattels. But by the statute of this territory, "if any person or person shall commit the crime of manslaughter; and be thereof convicted, such person or persons shall be fined in a sum not exceeding five hundred dollars, and may moreover be punished with imprisonment at hard labor, or otherwise, as the court shall direct, not exceeding twelve months.* 1st sess Leg. Coun. chap. 50, sec. 22. The punishment for this offence, except in atrocious cases, is seldom severe.

By the statute of crimes and punishments, it is declared (chap 50 see. 40,) that no conviction "shall subject the offender to any other forfeiture or penalty than such as is hereinbefore declared and specified;" so that where the statute declares the punishment of an offence, all other punishments are done away.

MURDER.

We now come to the crime of "murder," which according to Sir Edward Coke is, "when a person of sound memory and discretion, unlawfully killeth any reasonable creature in being, and under the king's peace, with malice afore thought either express or implied."3 Ins. 47. According to this definition, infants and lunatics, not being "of sound memory and discretion," cannot commit this crime.— But to acquit the lunatic, the fact must not have been committed in a lucid interval; and respecting infants it is held, that if they be old enough to know the nature of the offence they may commit it.

Formerly it was murder to wound another severely. though the person did not die; but now it is necessary that the person die, and the manner of the death must be unlawful, that is without warrantfor excuse. The party also must die within a year and a day after the committing of the offence, otherwise it will not amount to murder, the day when the offence was committed being counted as one. Blac. Com. 133.

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By the French laws, perjury in capital cases, by which an innocent person is convicted and suffers death, was heid, and seemingly with great justice, to be murder. By the ancient common law also it was murder; 1 Brit. C. 5. but it would seem that the law at pres

March 25 1813. sec. 2, M. D. I, p 379.

Should any person stab or shoot, or in any manner disable another by such concealed weapons, or should take the life of any person, he shall, on conviction before any competent court, suffer death, or such other punishment as in the opinion of the jury shall be just."

B

March 20, 1818, sec. 16, M. D. I, p 395.

"If any person shall voluntarily engage in a duel with rapier or small sword, pistol or other dangerous weapon to the hazard of life, and death should ensue, the survivor shall, upon conviction, suffer death, and all and every person aiding and abett.ng as second, agent and abetter, and shall be duly convicted, shall be punished as accessories before the fact in murder."

C

March 6, 1819, secs. 1, 2, M. D. I, p 397.

SEC. 1. "That if any person or persons laying in wait, or in the perpetration or attempt to perpetrate any arson, rape. robbery or burglary, shall shoot or stab, or thrust any person with a dangerous weapon, and with the intent to commit the crime of murder, such person or persons so offending, on conviction thereof, shall suffer death.

SEC. 2. When any person or persons shall shoot or stab, or thrust any person with a dangerous weapon, and with the intent to commit the crime of murder under any other circumstances than those mentioned in the preceding section, such person or persons so offending, on conviction thereof, shall suffer imprisonment at hard labor or otherwise, for a term not less than one year, and not exceeding twemyone years."

ent is not so rigorous, "as there hath not been an instance wherein it hath been held to be murder for many ages past." Blac. Com. 196. A vulgar opinion has sometimes prevailed, that it is not murder to kill outlaws, &c. but it is murder to kill even an alien enemy while "in the peace of the country."

If one bruise or poison an infant in the womb, and the infant be born alive, and afterwards die of the bruises or poison, it is murder; but not if the infant be born dead, though that would amount to a great misdemeanor.

As malice is essential to this crime, it becomes necessary to define the lawful signification of the term. Express malice is easily understood. When murders are the consequence of old enmities or frequent menacings, when by the manner of the death, as poisoning, some deliberation or contrivance is obvious; when it is committed in the perpetration or the attempt to perpetrate some other felony, or accompanied with any other evidence of premeditation or wilfulness, the malicious or evil intention of the killer is plain, and therefore considered as express. If one shoot intending to kill A, but missing him accidentally kill B, this is murder. 1 Hale P. C. 457, . Or if one wilfully or through wantonness discharge a loaded gun in a crowd, and kill one though without aiming at any in particular, yet such killing would be murder. For "malice prepense (as the law terms it) is not so properly spite or malevolence to the deceased in particular, as the evil design in general, the dictate of a wicked depraved and malignant heart." 4 Blac. Com. 198. If one give drugs to a woman to poison a child in the womb, and the mother die with the poison, this is murder, though the poison was not designed for her. If one by un unlawful or unusually severe correction, cause the death of a child, servant, or the like, the law justly implies malice and makes the offence murder; for it must be malice or a disposition extremely malicious that could excite one to such an odious act of cruelty. The law for the same reason implies! malice even where no evidence of it whatsoever appears, as when one kills another on very trifling provocation or on none.The law also supplies the place of malicious intent, when an officer of justice is killed in the execution of his duty, or a citizen în arresting a felon.

The punishment of murder is DEATH; "Whoso sheddeth man's blood, by man shall his blood be shed." IX Genesis, 6.

RAPE.

[ March 20, 1818, secs. 3, 4. M. D. I, p 395, ste post article Burglary, A. 1819, p 397, ante article Muruer, C.]

March 6,

We now come to the offence denominated a "Rape". It may be thus defined: "Rape is the carnal knowledge of any woman above the age of twelve years, against her will, and of a woman child under the age of twelve years with or without her will."

An infant under the age of fourteen, is presumed by law incapable of committing a rape. 1 Hale P. C. 630. But he may be an accessory thereto, or a principal in the second degree, as aiding and assisting.-Ibid.

To constitute a rape there must be a penetration, for without it no attempt however to success, is a rape; but a very slight penetration is sufficient. It is also said that there is no rape unless there be an actual emissio seminis. But this is contradicted by high authority. Hale P. C. 628. Co. P. C. chap. 11 p. 60. It is said by physicians, that there are men, Quibus virgae erectio adsit, et emissio seminis, ex quadam defectu, desit."+

A man may enjoy his own wife by force without incurring the guilt of a rape, for marriage is evidence of her consent to submit to the will of her husband in this respect. But if he prostitute his wife to another by force, this is a rape; for it seems that a husband cannot assign his wife to another in this particular. If a man marry a woman by force, and then enjoy her by force, this is virtually a rape; but it is said he cannot be convicted thereof until the marriage be declared void by some competent authority. 1 Hale P. · C. 629.

By the civil law to enjoy a prostitute by force is not a rape, but it ́s otherwise at common law, though for no better reason than that "the woman may forsake that unlawful course of life." 1 Have P. C. 629.

*This definition is taken from Coke, P. C. chap. 11 p 60, with this difference that in Coke the age of consent is fixed at ten years, which Hale pretty evidently shews to have been a mistake. 1 Hale P. C. 631. However as a question has arisen on the point, it is perhaps to be wished that it may be settled by legislative interference, and that the age fixed on may be under ten years. The common law rule was intended for more northern latitudes.

The reader I trust will excuse the terms in which I am here constrained to express myself. An affectation of delicacy on the occasion would not be justifiable; the crime now before us is one of a heinous nature, and severely punished by the law, any too much pains cannot be taken to convict the guilty, and preserve the in; nocent. In the discussion of such a subject therefore the rude and simple language' of the law must not give place to the more elegant but less perspicuous refinements of modish phraseology,