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Manslaughter "is the unlawful killing of another wiiltout 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 wicked, wess 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 unlawfni 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 tiine 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 Blać. 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
unlawful act, are not to be taken as' mere mauslaughter; for there are some acts so atrociously criminal, as rape, robbery, and housebreakiny, and other felonies, that if he in committing or attempting them, kill another, even by accident, it is murder. “\Vhere a person does an act, lawful in itself, but in an unlawful manner, and without due caution and circumspection, as wlien a workman fings down a store or piece of timber into the street, and kills a man, this may be misacventure, 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 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
ins, 7. 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 ii.--If it be in the prosecution of a felonious intent, or in its consequences naturally intended to bloodshed, it will ise murder; but if no more was intended thin a mere civil trespas, it would only amount to manslaughter." 4 Bluć. Com. 192.
Though manslaughter is a distinct offence from murder, and one inny, it is presied, be indicted tor 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 perlinps even be, as at common law, "guilty of excusable homicide," or "homicide by chance inedley," upon the same indictment. But, as has been aiready suggested, it seems to be the better because the simpler way in such cases to bring in the verdict of acquittal "not guilty."
Manslaughter is punished at common law by burning in the hand and forfeiture of goods and chattels. But hy the statnte 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 haril labor, or otherwise, as the court shull direct, not exceedling 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 pirnishments, 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 ti:e statute declarcs 4. the punishmeni of an oilence, all other punishments are done away.
We now come to the crime of "murder," which necording to Sir Edward Coke is, “when a person of sound memory and discretion, onlawfully 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 lopatics, not being "of sound memory and discretion," cannot commit this crime.But to acquit the lunatic, the fact must not fave 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 coinmit it.
Formerly it was murder to wound another severely. thongli the person did not rie; but now it is necessary that the person die, and the inanner of the death must be unlawful, that is without warranfor. 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 ofience was committed being counted as one. Blac, Com. 133..
By the French laws, perjury in capital cases, by whic! an innocent person is convicted and suffers death, was heid, and seemingly will great justice, to be murder. By the ancient common law also it was marder; 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 stabı or shoot; or in any manner disable another lov snch concealed weapons, or should take the life of any person, he shall, on conviction before ally competent court, safter death, or snch other punishment as in the opinion of the jury shall be just."'
B March 20,1618, scc. 16, M. D.I, p 395. "If any person shall voluntarily engage in a duel with rapier or small sword, pis101 or other dangerous weapon to the hazard of life, and death should ensne, the survivor shall, npon conviction. suffer death, and all and every person aiding and ahet. ing is second, gent 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 stah, 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 suller death.
Şxc. 2. When any person or persons shall shoot or stah, 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 oflending, on conviction thereof, shall suffer imprisonment at hard labor or otherivise, for a tenia not less than one year, ani not exceeding treniyque years."
ent is not so rigorous, "as there liath not been an instance wherein it hath been held to be murder for many ages past.” Blai. 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 wbile “in the peace of the country."
If one bruise or poisor 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 become: 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. I IIale 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 tbe law terms it) is not so properly spite or malevolence to the deceased in particilar, 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 on unlawful or unusually severe correction, cause the death of a chik!, servant, or the like, the law justly implies malice and makes the offence murder; for it must be malice or a disposition extremely milicious that could excite one to such an odious act of cruelty.
The law for the same reason implies! malịce even where no evidence of it whatsoever appears, as when one kills another on very trifling provocation or on nonc.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 in arresting a felon.
The punishment of murder is DEATII; “Whoso sheddeth man's blood, by man shall bis blood be shed.” II Genesis, 6.
· [ March 20, 1818, secs. 3, 4. M. D. 1, p 395. ste post article Burglary, A. Murch 6,
1819, p. 397, ante article Muruer, C..]
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 le 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 penetraiion is sufficient. It is also said that there is no rape unless there be an actual emissio seminis. But this is contraddicted by higli authority. 1. Hale P. C. 628. Co. P, C. chap. '11 p. 60. It is said ly physicians, that there are men, Quibus virgae crectio adsit, et emissio -seminis, cx quada'i 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 hustrand 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 narriage be declared void by some competent authority. I Hale P. C. 629.
By the civil law to enjoy a prostitute by force is not a rape, but it is otherwise at common law, though for no better reason than that "the woman may forsake that unlawful course of life.” · 1 Haie P. C. 629.
*This definition is taken from Coke. P: C. chap. 11 7 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. 63). 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 i nder ten years. The common law rule was intended for inore northern latitudes.
+The reader I trust will excuse the terms iv which I am here constrained to express, myself An affectation of Jelicacy 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, more elegant but less perspicuous refinements of modish phraseology, 1