55. What if a man be greatly provoked, as by pulling his nose, or other great indignity, and immediately kills the agressor?-191.

This is not excusable se defendendo, since there is no absolute necessity for it to preserve himself; yet neither is it murder, for there is no previous malice; but it is manslaughter.

56. What if a man takes another in the act of adultery with his wife?-191.

If a man takes another in the act of adultery with his wife, and kills him directly upon the spot; though this was allowed by the laws of Solon, as likewise by the Roman civil law (if the adulterer was found in the husband's own house), and also among the ancient Goths; yet, in England, it is not absolutely ranked in the class of justifiable homicide, as in case of a forcible rape, but it is manslaughter, yet in the lowest degree.

57. In what does voluntary manslaughter, on a sudden provocation, differ from excusable homicide se defendendo ?-192.

In this that in one case there is an apparent necessity, for self-preservation, to kill the aggressor; in the other, no necessity at all, it being only a sudden act of revenge.

58. In what does involuntary manslaughter differ from homicide excusable by misadventure?-192.

Misadventure always happens in consequence of a lawful, involuntary manslaughter in consequence of an unlawful act.

59. What if a person does an act lawful in itself, but in an unlawful manner, and without due caution and circumspection, and thereby kills a man ?-192.

This may be either misadventure, manslaughter, or murder, according to the circumstances under which the original act was done.

60. What kind of homicide is it when an involuntary killing hap pens in consequence of an unlawful act?—192.

In general it will be either murder or manslaughter, according to the nature of the act which occasioned it

61. Under what circumstances will involuntary killing amount to murder?-192, 193.

If it be committed in the prosecution of a felonious intent, or in its consequences naturally tend to bloodshed, it will be murder; but if no more was intended than a mere civil trespass, it will only amount to manslaughter.

62. What is the punishment of manslaughter ?—193.

The crime amounts to felony, but within the benefit of clergy, and the offender shall be burned in the hand, and forfeit all his goods and chattels.

63. What species of manslaughter is punishable as murder, the benefit of clergy being taken away from it by statute?—193.

The offense of mortally stabbing another, though done upon sudden provocation.

64. Is the king excluded, in any case, from the power of pardoning murder?-194.

The English law has provided one course of prosecution (that by appeal) wherein the king himself is excluded from the power of pardoning murder.

65. How is murder defined?-195.

Murder is thus defined, or rather described, by Sir Edward Coke: "When a person of sound memory and discretion unlawfully killeth any reasonable creature in being, and under the king's peace, with malice aforethought, either express or implied.

66. How is a bare assault with intent to kill regarded ?—196.

Formerly it was held to be murder; now it is only a great misdemeanor.

67. If a person be indicted for one species of killing, can he be convicted by evidence of a totally different species of death?-196.

If a person be indicted for one species of killing, as by poiSoLing, he cannot be convicted by evidence of a totally different species of death, as by shooting with a pistol, or starving. But

where they only differ in circumstance, as if a wound be alleged to be given with a sword, and it proves to have arisen from a staff, an axe, or a hatchet, this difference is immaterial.

68. Of all species of deaths, which is considered, by the law, the most detestable ?-196.

That of poison; because it can, of all others, be the least prevented either by manhood or forethought.

69. May a man be guilty of murder, although no stroke be struck by himself, and no killing was primarily intended ?—196.

If a man does such an act of which the probable consequence may be, and eventually is death, such killing may be murder.

70. Within what time after the stroke received, or cause of death administered, must the party die, in order to make the killing murder?-197.

Within a year and a day.

71. When is it murder to kill a child in its mother's womb ?—198.

If the child be born alive, and dies by reason of the potion or bruises it received in the womb, it seems, by the better opinion, to be murder in such as administered or gave them.

72. What is the grand criterion which, now, distinguishes murder from other killing ?-198.

The killing must be with malice aforethought to make it the crime of murder.

73. Of what kinds is this malice aforethought, or prepense ?-198,

199.

It may be either express, or implied in law.

4. What constitutes malice express?-199, 200.

Express malice is when one, with a sedate, deliberate mind, and formed design, doth kill another; which formed design is evidenced by external circumstances discovering that inward intention. In many cases where no malice is expressed, the law will imply it; as where a man wilfully poisons another, in such a deliberate act the law presumes malice, though no particular enmity can be proved.

15. Who are guilty of murder, in deliberate duelling?—199.

The law has justly fixed the crime and punishment of murder on the parties, and on their seconds also.

76. If two or more come together to do an unlawful act against the king's peace, of which the probable consequence might be bloodshed, and one of them kills a man; in whom is it murder ?—200.

In them all, because of the unlawful act, the malitia præcogitata, or evil intended beforehand.

77. Can an affront, by words or gestures only, be a sufficient provocation to excuse or extenuate such acts of violence as manifestly endanger the life of another?—200.

No, it cannot.

78. If the person so provoked had unfortunately killed the other, by beating him in such a manner as showed only an intent to chastise and not to kill him, what would the law adjudge?—200.

The law so far considers the provocation, as to adjudge it only manslaughter, and not murder.

19. What if one intends to do another felony, and undesignedly kills a man?—201.

It is murder.

80. May it be taken for a general rule that all homicide is malicious, and of course amounts to murder?—201.

Yes, it may; unless where the homicide is justified by the command or permission of the law; excused on the account of accident or self-preservation; or alleviated into manslaughter, by being either the involuntary consequence of some act not strictly lawful, or (if voluntary) occasioned by some sudden and sufficiently violent provocation. For all homicide is presumed to be malicious until the contrary appeareth upon evidence

81. What is the punishment of murder?-201.

Death.

82. How is the crime of parricide regarded by the law of England?-202, 203.

Parricide, or the murder of one's parents or children, is treated no otherwise than as simple murder.

83. What is petit treason* ?—203.

Parva proditio, or petit treason, is nothing else but an aggravated degree of murder; although, on account of the violation of private allegiance, it is stigmatized as an inferior species of treason.

84. In what ways may petit treason happen?-203.

In three ways: by a servant killing his master, a wife her husband, or an ecclesiastical person his superior, to whom he or she owes faith and obedience.

85. What crime is that of the servant who kills his master, whom he has left, upon a grudge conceived against him during his service?

203.

Petit treason; for the traitorous intention was hatched while the relation subsisted between them, and this is only an execution of that intention.

86. If a wife be divorced a mensa et thoro, and she killed her divorced husband, what was her crime?—203.

She was guilty of petit treason, as the vinculum matrimonii still subsisted.

CHAPTER XV.

OF OFFENSES AGAINST THE PERSONS OF INDIVIDUALS.

1. Of what degrees of guilt are offenses affecting the security of the person of a private subject while living ?—205.

Of these, some are felonious, and in their nature capital; others are simple misdemeanors, and visited with a lighter punishment.

* The distinction between petit treason and murder was abolished by 9 George IV., a 31, s. 2.