66 " cient notice. an officer giveth sufficient notice what he is when what suffihe saith to the party, "I arrest you in the king's name; and in such case, the party, at his peril, ought to obey, though he knoweth him not to be an officer. (a) So, if a constable command the peace, or show his staff of office. (b) Or if it appears that he is actually known to the defendant to be an officer, as, for instance, where the defendant said, "Stand off, I know you well enough, come at your peril ; if, after this, the officer be killed, it will be murder. (c) knowledge If the constable interfere to prevent an affray Implied within his own vill, and be killed by one of the where officer inhabitants or other person who knows him to be known. the constable, it will be murder. If, by a stranger, it will be manslaughter. (d) So, if one of several know him to be a constable, it will be murder in him, manslaughter in the rest. (e) sons inter Private persons when they interfere must ex- Private perpressly intimate their intention, otherwise killing fering must them will be manslaughter only. (f) give express notice. evidence of It is to be observed in all these cases stated to be If express manslaughter only, if there be evidence of express malice, killing malice in the party killing, the homicide will be will be murmurder. (g) der. Malice, too, may be implied under other circum- Malice implistances: Thus, if a parent or master, in the correction of a child or servant, use excessive violence, and the child or servant die, this, in some cases, will be (a) Dalton, 111.; Mackalley's case, 9 Co. 69. b. (b) 1 Hale's P. C. 461.; Fost. C. L. 311.; 1 East, P. C. 315. (c) Rex v. Pew, Cro. Car. 183.; see also Rex v. Woolmer, 1 Moody, C. C. 334.; Rex v. Howarth, ibid. 207.. (d) 1 Hale's P. C. 458. (e) Ibid. (f) Fost. C. L. 310, 311. (9) Rex v. Stockley, 1 East's P. C. 310.; Rex v. Curtis, Fost. C. L. 135.; Rex v. Mason, Ibid. 132.; Ibid. 296.; Rex v. Kirkham, 3 C. & P. 115. ed from circumstances. murder. As where a master corrected his servant with an iron bar, and a schoolmaster stamped on his scholar's belly, these were justly holden to be murders, because the correction being excessive, and such as could not proceed but from a bad heart, it was equivalent to a deliberate act of killing. (h) Use of deadly And in all cases where the correction is inflicted with a deadly weapon, and the party dies of it, it will be murder. If with an instrument not likely to kill, though improper for the purposes of correction, it will be manslaughter. (i) weapon. Manslaughter. Involuntary manslaugh ter. Voluntary man slaughter. Killing in unlawful sports. 66 Manslaughter is "the unlawful and felonious killing of another without any malice either expressed or implied." It is of two kinds: 1. Involuntary manslaughter, where a man doing an unlawful act, not amounting to felony, by accident kills another, or where, doing a lawful act, which is at the same time dangerous, he neglects to use proper caution, and death ensues thereby. 2. Voluntary manslaughter, where upon a sudden quarrel, two persons fight, and one of them kills the other, or where a man greatly provokes another by some personal violence, and the other immediately kills him. (k) It has been already stated, that where a man intending to commit a felony undesignedly kills another, it is murder. (1) But if the original act, though unlawful (malum in se), do not amount to (h) 1 Hale's P. C. 473, 474.; Fost. C. L. 262. (i) Fost. C. L. 262.; see Rex v. Connor, 7 C. & P. 438.; Rex v. Turner, Comb. 407, 408.; Rex v. Wigg, 1 Leach's C. L. 378. n.; Rex v. Hazel, 1 Leach's C. C. 368.; Anon. ; 1 East's P. C. 261.; Rex v. Leggitt, 8 C. & P. 191.; and see 1 Hale's P.C. 454. Where a parent is moderately correcting his child, a master his servant, or an officer punishing a criminal, and happens to occasion his death, it is only misadventure. 1 Hale's.. P. C. 473, 474. (k) Archbold's Crim. Law, 7th ed. 387. (1) Suprà, p.120.; Fost. C. L. 261.; 1 Hale's P. C. 438. 436. ; see Rex v. Hunt, 1 Moody's C. C. 93.; 1 Hale's P. C. 441.; Rex v. Saunders, Plowd. 474.; 1 Hale's P. C. 441. Thus, if an ments. fighting. felony, the killing is manslaughter. (m) when engaged in an unlawful sport, a another by accident, it is manslaughter. tournament, the martial diversion of our cestors, was an unlawful act, and if a knight were killed, such killing was manslaughter. (n) The Prize same rule applies to the prize fights of the present day. (0) Again, if two persons quarrel and fight imme- Killing where diately on the spot, or even if immediately upon quarrel and the quarrel, they go out and fight in a field, for fight on the this is deemed a continual act of passion, and one is mediately, killed, the killing in such case is manslaughter only, slaughter. whether the party killing struck the first blow or not. (p) persons spot, or im man cool, murder. But if two persons quarrel and afterwards fight, If time to and a sufficient cooling time has intervened between the quarrel and the fight for passion to subside, and reason to interpose, the killing will be murder. (q) Death (m) The act done follows the nature of the act intended to be done. See 1 East's P. C. 230.; 1 Hale's P. C. 39. caused by throwing a stone at a horse. Fost. C. L. 258. Death caused by unlawfully shooting at poultry without intent to steal. (n) 4 Black. Comm. 183. (o) See Rex v. Perkins, 4 C. & P. 537.; Rex v. Hargrave, 5 C. & P. 170.; Rex v. Murphy, 6 C. & P. 103. But it is said, that if the king command or permit such diversion, the act being in that case lawful, the killing would be misadventure only. Fost. C. L. 259. ; cont. Hale's P. C. 472., vide suprà, p. 102. So if death ensue from such sports as are innocent and allowable, the case will fall within excusable homicide. Of the latter class are manly sports and exercises, which tend to give strength and activity and skill in the use of arms, as cudgel playing, wrestling, and fencing, when entered into as private recreations. 1 East's P. C. 268. 1 Hale's P. C. 472.475. But all struggles in anger are unlawful, and death occasioned by them is manslaughter at least. Reg. v. Canneff, 9 C. & P. 359. Patterson and Coltman Js. (p) Fost. C. L. 295, 296.; 1 Hale's P. C. 453. 456.; 1 Hawk. P. C. c. 31. s. 29.; 3 Inst. 51. (q) Fost. C. L. 296.; 1 Hale's P. C. 442. 452, 453., 1 Hawk. P. C. c. 31. s. 81.; Rex v. Oneby, 2 Strange, 766. If express malice shewn, may be murder. And even in the case of a sudden quarrel, where the such killing parties immediately fight, the case may be attended with such circumstances as may indicate malice upon the part of the party killing, and the killing then would be murder, and not manslaughter. (r) Thus, if a party under colour of fighting upon equal terms, uses, from the beginning of the contest, a deadly weapon without the knowledge of the other party, whom he kills with such weapon; or if, at the beginning of the contest, he prepares a deadly weapon, so as to have the power of using it in some part of the contest, and accordingly does so, and kills the other party, the killing in both these cases is murder. (s) Excess of violence. When third But if, after an interchange of blows on equal terms, one of the parties on a sudden, and without any such intention at the commencement of the affray, snatches up a deadly weapon and kills the other party with it, such killing will only amount to manslaughter. (t) Again, when after mutual blows between the defendant and the deceased, the defendant knocked the deceased down, and after he was on the ground, stamped upon his stomach and belly with great force, and thereby killed him, in one case this was held to be only manslaughter. (u) But in another case Mr. Justice Bayly intimated that up and down fighting would be murder. (x) If two persons be fighting, under such circumintentionally stances that if one were killed, it would be man person is un (Duelling). See Rex v. Snow, 1 East's P. C. 245.; 1 Hale's P.C. 451.; 1 Hawk. P. C. c. 31. s. 25. (r) Fost. C.L. 295.; Rex v. Mawgridge, Kel. 128. (s) Rex v. Whately, Lev. C. C. 173.; see Rex v. Mason, 1 East's P. C. 239. (t) Rex v. Anderson, 1 Russ. Cr. and Mis. 447.; see Rex v. Taylor, 5 Burr. 2793.; East's P. C. 243. ; Rex v. Keppell, 1 C. & P. 437.; Rex v. Snow, 1 Leach's C. C. 151. (u) Rex ". Ayes, Russ. & Ry. C. C. 166. (x) Rexv.Thorpe, Lew. C. C. cited Harrison's, Dig.739.1837. amounts to man slaughter only in the other, and an innocent party killed, death be unintentionally killed by one of them, it is manslaughter only. The reason for this apparent anomaly slaughter. is, that the act in which the parties are engaged, namely, the fighting, is not in itself felonious, though the result may become so. (y) Death caused lawful act in manner. No case is found in the books of death accidentally Killing by caused by the discharge of spring guns. Before spring guns. the statute 7 & 8 Geo. 4. c. 18., had such event happened, it would seem to have been only misadventure. But since that statute, it is conceived it would be manslaughter in the person causing them to be set. (z) Where a person does an act in itself lawful, but in an unlawful manner, and without due caution and by doing circumspection, as where a workman flings down a unlawful stone or piece of timber into the street, and kills a man, this may be either misadventure, manslaughter, or murder, according to the circumstances under which the original act was done. If it were in a May be miscountry village, where few passengers are, and he adventure, calls out to all people to have a care, it is misadven- slaughter, or ture only; but if it were in London, or other popu. lous town, where people are continually passing, it is manslaughter, though he gives loud warning; and murder, if he knows of their passing and gives no warning at all; for this is malice against all mankind. (a) man murder, ac cording to circum stances. rious driving. The same principle applies to cases where death Death by fuis occasioned by driving.over any person. If a man, driving a cart or other carriage, drive it (y) Fost. C.L. 262.; Rex v. Brown, 1 Leach's C. L. 148. The cases of death occasioned by fighting with fists belongs to this division of manslaughter rather than to that of voluntary manslaughter, because the object of the parties is not the death of either, nor the weapons likely to produce it. (z) See Holt v. Wilks, 3 B. & Ald. 301. As to (a) 4 Black. Comm. 192.; Kel. 40.; 3 Inst. 57. breaking a vicious horse, see 1 Hawk. P. C. c. 31. s. 68.; 1 East's P. C. 231.; 1 Hawk. P. C. c. 29. s. 12.; 1 Hale's P. C. 475. Shooting off guns, ibid.; Rex v. Burton, 1 Str. 481. |