malice, express or implied, and without any mixture of deliberation whatever. It must be voluntary, upon a sudden heat of passion, caused by a provocation apparently sufficient to make the passion irresistible or involuntary in the commission of an unlawful act, or a lawful act without due caution or circumspection."

$370. Voluntary. "In cases of voluntary manslaughter, there must be a serious and highly provoking injury, inflicted upon the person killing, sufficient to excite an irresistible passion in a reasonable person, or an attempt by the person killed, to commit a serious personal injury on the person killing. The killing must be the result of the sudden, violent impulse of passion, supposed to be irresistible; for if there should appear to have been an interval between the assault or provocation given and the killing sufficient for the voice of reason and humanity to be heard, the killing shall be attributed to deliberate revenge, and punished as murder."

§ 371. Involuntary. - "Involuntary manslaughter shall consist in the killing of a human being without any intent to do so, in the commission of an unlawful act, or a lawful act, which probably might produce such a consequence, in an unlawful manner: Provided, always, that where such involuntary killing shall happen in the commission of an unlawful act, which in its consequences naturally tends to destroy the life of a human being, or is committed in the prosecution of a felonious intent, the offense shall be deemed and adjudged to be murder."3

$372. Punishment. "Whoever is guilty of manslaughter shall be imprisoned in the penitentiary for his natural life, or for any number of years. If the accused is found guilty by a jury, they shall fix the punishment by their verdict; upon a plea of guilty, the punishment shall be fixed by the court."4

1R. S., 374. 143. This definition is the same as at common law. State . Shelledy, 8 Iowa, 478.

STATEMENT OF THE OFFENSE OF MANSLAUGHTER.'

(Commence as in form on page 35) that C. D., on, etc., at, etc., in the said county, unlawfully, feloniously and willfully did cast and throw a certain stone, then and there held in his right hand, and then and there unlaw. fully, feloniously and willfully did thereby strike, penetrate and wound E. F., then and there being in the peace of the people, thereby giving the said E. F. then and there a mortal wound, in and upon the right side of the head, near the right temple of the said E. F., of which said mortal wound the said E. F. then and there instantly died (or "languished a short time and then, on the A. D. 18-, and there died").

day of

And so the said A. B. on his oath says, that C. D., in the manner and by means aforesaid, unlawfully, feloniously and willfully did kill the said E. F., against the peace and dignity of the people of the state of Illinois (conclude as in form on page 35).

373. Evidence. The evidence in case of manslaughter is substantially the same as in murder, except that in case of manslaughter no malice must exist or is required to be proved, for it is the want of malice and deliberation which reduces the crime of murder to manslaughter.2

$374. Cases Collected Illustrating the Difference between Murder and Manslaughter. The statutes have stated the difference between murder and manslaughter as clearly as it can be stated in words. Yet the distinction may be illustrated and made somewhat clearer by a reference to some of the cases. Where the deceased took hold of the bridle-reins of a horse on which the prisoner was mounted, and held him for thirty or forty minutes, and the prisoner at the end of that time struck the deceased with a jug of molasses which he happened to have in his hand, and thereby killed him, the offense was held to be manslaughter and not murder. If one under the color or claim of authority unlawfully arrest, or actually attempt or offer to arrest, another, and the latter in his resistance kills

3

'Strike out the words "malice aforethought" and the word "murder” in the statement of the offense of murder, then such statement will be a sufficient statement of the offense of manslaughter. For a form of an indictment for manslaughter held not to be good, see State v. McBride, 26 Wis., 409. 1 Arch. C. P. & Pl., 806.

State v. Ramsey, 5 Jones N. C., 195.

the aggressor, the offense will be manslaughter. A person is guilty of manslaughter if, when he is assaulted with a fist, he instantly stabs to death the assailant, or if after requesting another to leave his house he ejects him with a kick3 or resorts to any other violent battery, when gentler measures will do, and thereby kills him, or if he intentionally takes the life of another in the defense of his property other than his dwelling-house, or if he finds another in the act of adultery with his wife, and in the first transport of passion kills him. $375. Unintentional Killing in Doing an Unlawful Act. -The killing of a human being without any intent to do so in the commission of an unlawful act is manslaughter. As where a man found a trespasser upon his land, caught him, and in beating him accidentally killed him, without intending to do so, it was held to be manslaughter. And so where a man is engaged in unlawful and dangerous sport, or shoots at the poultry of another without intending to steal it,10 or throws a stone at another wantonly and in play merely," and accidentally kills another, the offense is manslaughter.

9

Negligence. The invol

$376. Continued Illustrations untary killing of another in doing a lawful act, which probably might produce such consequence in an unlawful manner, is

1 Com. v. Drew, 4 Mass., 391; Rex v. Deleany, Jebb, 88; Reg. v. Tooley, 11 Mod., 242; Roberts v. State, 14 Mo., 138; Rex v. Gordon, 1 East P. C., 315; 2 Wheeler C. C., 495.

2 Stewart v. State, 1 Ohio S., 66, 71; State v. Yarborough, 1 Hawks, 78; State v. Tackett, 1 Hawks, 210; State v. Kennedy, 20 Iowa, 569; State v. Neeley, 20 Iowa, 569.

* Wild's Case, 2 Lewin, 214; McCoy v. State, 3 Engl., 451.

Rex v. Longden, Russ. & Ry., 228; Reg. v. Sullivan, C. & M., 209; State v. Lazarus, 1 Mills, 34; McCoy v. State, 3 Engl., 451.

U. S. v. Wiltburger, 3 Wash. C. C., 515.

State v. Samuels, 3 Jones L. N. C., 74; People v. Ryan, 2 Wheeler C. C., 54.

7R. S., 374, § 145; but see Rowan v. State, 30 Wis., 129.

manslaughter.1 As where a merchant in raising a cask of wine to a third story over a crowded street, without sufficiently guarding the method of raising the cask, let it slip and thereby killed two women, it was held to be manslaughter.2 So driving with loose reins on a frequented road, whereby death ensues, has been held to be manslaughter. So it has been held that it is manslaughter if one discharges a gun in the dark and kills one whom he did not see. The offense, where correction is inflicted with an instrument not deadly, but improper for correction, or with a proper instrument to an improper degree, whereby death unexpectedly ensues, is manslaughter. And so where an engineer left the engine in charge of an incompetent person, where a pilot failed to make himself understood by a foreign helmsman, where the proper signal was neglected by a railway tender, and where a ground bailiff neglected to ventilate a mine," cases where death ensues the defendant is guilty of manslaughter.

1 R. S., 374, § 145.

'Rex v. Rigmardon, 1 Lewin, 180.

8

7

in all these

* Rex v. Dalloway, 2 Cox C. C., 273; Rex v. Murray, 5 Cox C. C., 352; Rex v. Haines, 2 Car. & K., 368.

'People v. Fuller, 2 Park. Cr. R., 16.

'Rex v. Cheeseman, 7 Car. & P., 455; Anonymous, 1 East P. C., 261; 1 Hawks P. C., 85, § 5.

Rex v. Hogan, 5 Eng. Law. & Eq., 553.

'Rex v. Spence, 1 Cox, 352; but see Rex v. Allen, 7 Car. & P., 153; Rex v. Greene, 7 Car. & P., 156.

Rex v. Pargeter, 3 Cox, 191.

Rex v. Haines, 2 Car. & K., 368..

SECTION III.

OFFENSES AGAINST PERSONS.

§377. The Common Law as to Abortions.

378. Provisions of the Statute as to Procuring Abortions

379. Ecbolic or Abortifacient Drugs.

380. Certificate Required.

381. Advertising Abortifacient Drugs.

382. Evidence Required-1. Of Applying the Instrument or Administer

ing the Drug, etc., to the Woman.

383. 2. That the Instrument, etc., will Produce an Abortion, etc.

381. Abduction of a Female.

385. Evidence of Abduction of a Female.

383. Abduction of a Child.

387. Assault with Intent to Commit a Felony.

388. Assault with Intent to Murder.

380. Evidence of the Assault.

390. Evidence of the Alleged Intent-Variance.

391. What Sufficient Evidence of the Intent.

392. Acquittal of Higher Crime and Conviction of the Lesser.

393. Defense of Property, when no Justification.

394. Assault with a Deadly Weapon.

395. Evidence of an Assault with a Deadly Weapon-Conviction of Les

ser Offense-Former Conviction of an Assault no Bar.

396. Concealing Death of Bastard.

397. Evidence of Concealing Death of Bastard.

398. Who may be Convicted of Concealing, etc.

399. Criminal Carelessness.

400. Of a Physician.

401. Of a Common Carrier.

402. Cruelty to Children and Others.

403. Dueling Defined.

404. Punishment.

405. Sending, Accepting or Carrying a Challenge.

406. Disabilities on Conviction of Dueling.

407. Dueling by Appointment Made within the State.

408. Leaving the State to Engage in a Duel.

409. Former Conviction or Acquittal in Another State. 410. Indictment for Dueling.

411. Publishing Another as Coward.