A New Abridgment of the Law with Large Additions and Corrections

execute his revenge in such a manner as shows a cruel and deliberate intent of doing a personal hurt, he is guilty of murder; as, (a) where the keeper of a park, finding a boy stealing wood, tied him to a horse's tail, and beat him, whereupon the horse ran away, and killed him.

Hawk. P. C. c. 31, § 38, 39. (a) Cro. Car. 131; Jon. 198, Holloway's case; Keil. 127, S. C. cited; 1 Hale's Hist. P. C. 454, S. C. cited and agreed; because the correction was excessive, and it was an act of deliberate cruelty.

But where a person whose pocket had been picked, encouraged by a concourse of people, threw the pickpocket into a pond, in order to duck him, but without any apparent intention to take away his life, and the pickpocket was drowned, it was ruled to be only manslaughter.

Fray's case, 1 East, P. C. 236.||

[There being an affray in the street, one Stedman a foot-soldier ran hastily towards the combatants. A woman seeing him run in that manner cried out, "You will not murder the man, will you?" Stedman replied, "What is that to you, you bitch ?" The woman thereupon gave him a box on the ear, and Stedman struck her on the breast with the pommel of his sword. The woman then fled, and Stedman pursuing her stabbed her in the back. Holt was at first of opinion, that this was murder, a single box on the ear from a woman not being a sufficient provocation to kill in this manner, after he had given her a blow in return for the box on the ear; and it was proposed to have the matter found specially. But it afterwards appearing in the progress of the trial, that the woman struck the soldier in the face with an iron patten, and drew a great deal of blood, it was holden clearly to be no more than manslaughter.

Fost. Cr. L. 292.

The smart of the man's wound, and the effusion of blood, might possibly keep his indignation boiling to the moment of the fact.

Mr. Lutterel, being arrested for a small debt, prevailed on one of the officers to go with him to his lodgings, while the other was sent to fetch the attorney's bill, in order, as Lutterel pretended, to have the debt and costs paid. Words arose at the lodgings about civility money, which Lutterel refused to give; and he went up stairs pretending to fetch money for the payment of the debt and costs, leaving the officer below. He soon returned with a brace of loaded pistols in his bosom, which, at the importunity of his servant, he laid down on the table, saying, He did not intend to hurt the officers, but he would not be ill-used. The officer, who had been sent for the attorney's bill, soon returned to his companion at the lodgings; and words of anger arising, Lutterel struck one of the officers on the face with a walkingcane, and drew a little blood. Whereupon both of them fell upon him, one stabbed him in nine places, he all the while on the ground begging for mercy, and unable to resist them; and one of them fired one of the pistols at him while on the ground, and gave him his death's wound. This is reported to have been holden manslaughter by reason of the first assault with the cane.

Rex v. Tranter, 1 Str. 499. This is the case as reported by Sir John Strange; and an extraordinary case it is, that all these circumstances of aggravation, two to one, he, helpless and on the ground begging for mercy, stabbed in nine places, and then despatched with a pistol; that all these circumstances, plain indications of a deadly revenge or diabolical fury, should not outweigh a slight stroke with a cane. But in the printed trial, (6 St. Tr. 195,) there are some circumstances stated, which are entirely dropped, or very slightly mentioned, by the reporter.-1. Mr. Lutterel had a sword by his side, which, after the affray was over, was found drawn and broken. How that happened did not appear in evidence; for part of the affray was at a time when no witness was pre

sent, nobody spake to the whole. 2. When Lutterel laid the pistols on the table, he declared that he brought them down, because he would not be forced out of his lodgings. 3. He threatened the officers several times. 4. One of the officers appeared to have been wounded in the hand by a pistol shot, (for both the pistols were discharged in the affray,) and slightly on the wrist by some sharp-pointed weapon: and the other was slightly wounded in the hand by a like weapon. 5. The evidence touching Lutterel's begging for mercy was not, that he was on the ground begging for mercy; but that on the ground he held up his hands AS IF he was begging for mercy. The Chief Justice directed the jury, that if they believed Mr. Lutterel endeavoured to rescue himself, which he seemed to think was the case, and very probably was the case, it would be justifiable homicide in the officers. However, as Mr. Lutterel gave the first blow accompanied with menaces to the officers, and the circumstance of producing loaded pistols to prevent their taking him from his lodgings, which it would have been their duty to have done, if the debt had not been paid, or bail given, he declared IT COULD BE NO MORE than manslaughter. Fost. Cr. L. 293.] Vide case of Willoughby and another, MS. 1 East, P. C. 288; Russell on Cri. 437, (2d edit.); and Rex v. Freeman, 1814, MS. Bayley, J.; Russell, 439. Pennsylvania v. Honeyman, Addis. 149; Pennsylvania v. Bell, Addis. 162.

If A stands with an offensive weapon in the door-way of a room, wrongfully to prevent J S from leaving it, and others from entering; and C, who has a right in the room, struggles with him to get his weapon from him, upon which D, a comrade of A's, stabs C, it will be murder in D if C dies. A drummer and a private soldier stopped at an inn with a deserter, and were pressed by one Martin to enlist him: they gave him a shilling for that purpose, but they had no authority to enlist anybody. Martin wanted afterwards to go away, but they would not let him, and a crowd collected. The drummer drew his sword, stood in the door-way of the room where they were, and swore he would stab any one that offered to go away. The landlord, however, got by him, and the landlord's son seized his arm in which the sword was, and was wresting the sword from him, when the private who had been struggling with Martin came behind the son and stabbed him in the back. He was convicted upon the statute 43 G. 3; and it was urged for the prisoner, that the soldiers had a right to enlist Martin and to detain him, and that, if death had ensued, the offence would not have been murder; but upon the point being saved, the judges were all of a contrary opinion, and the conviction was held right.

Rex v. Longden, 1812, MS. Bayley, J.; and Russ. and Ryan, 228.

It seems that it may be laid down, as the result of the decisions, that in all cases of slight provocation, if it may be reasonably collected, from the weapon made use of, or from any other circumstance, that the party intended to kill or do some great bodily harm, such homicide will be murder, as in the instance (ante, 193) of the parker, who finding the boy stealing wood in his master's ground, bound him to his horse's tail and beat him, and the horse taking fright, the boy was dragged till his shoulder was broken, of which he died; for this correction was excessive and cruel.

Halloway's Ca., Cro. Car. 131; and see Russell, 440, (2d edit.)

It must be remembered, provocation will not avail, if there be evidence of express malice. In such case, not even previous blows or struggling will extenuate homicide.

In a case where, upon a special verdict, it was found that the prisoner having employed her daughter-in-law, a child of ten years old, to reel some yarn, and finding some of the skeins knotted, threw at the child a fourlegged stool, which struck her on the right temple, of which the child soon after died; and it was also found that the stool was of sufficient size and

(C) What shall be deemed Murder. (Implied Malice.) weight to give a mortal blow, but that the prisoner when she threw it did not intend to kill the deceased; the matter was considered of great difficulty, and was referred to all the judges; but no opinion was ever delivered, and a pardon was recommended. The doubt appears to have been principally on the question whether the instrument was such as would probably, at the given distance, occasion death or great bodily harm.

Hazel's Ca. 1 Leach, 368; Russell, 439, (2d ed.)||

If a slave shove a white man violently so that he falls or is in danger of falling, and he rises and immediately shoots the slave, this is but manslaughter.

State v. Piner, 2 Hayw. 79.

The commission of homicide on a sudden quarrel, to avoid great bodily harm, places a man under circumstances amounting to legal provocation, and though such circumstances cannot justify or excuse the act, yet the homicide is extenuated, and is but manslaughter.

State v. Roberts, 1 Hawks, 349. See State v. Yarborough, 1 Hawks, 78; State v. Norris, 1 Hayw. 429; State v. Weaver, 2 Hayw. 54.

If a slave resist his master, previous to any attempt on the part of the latter to take his life, and he afterwards kills his master, he is guilty of murder.

State v. Will, 1 Dev. & Bat. 121.7

2. Where the Malice shall be said to be implied, or by Presumption of Law: And herein, 1. Where the Homicide being voluntarily committed, and without Provocation, the Law implies Malice.

Herein it is laid down, that when one voluntarily kills another, without any provocation, it is murder; for the law presumes it to be malicious, and that he is hostis humani generis; and therefore it is necessary for him who happens to kill another, to show such a provocation as will take off the presumption of malice.

Hale's Hist. P. C. 445; Pennsylvania v. Honeyman, Addis. 148; Pennsylvania v. Lewis, Addis. 283; Commonwealth v. Smith, Pamphlet report of the trial of Richard Smith, 231; Pennsylvania v. Bell, Addis. 171; Pennsylvania v. M Fall, Addis. 257; Commonwealth v. Murray, 2 Ashm. 41; Commonwealth v. Gable, 7 S. & R. 428; Whiteford's case, 6 Rand, 721; Dexter v. Spear, 4 Mason, 115.

He that wilfully gives poison to another, whether he had provoked him or not, is guilty of wilful murder; because it is an act of deliberation odious in law, and presumes malice.

Hale's Hist. P. C. 455; ||45 G. 3, c. 58.

The law presumes all homicide to have been committed with malice aforethought.

State v. Zellers, 2 Halst. 220.7

If A comes to B, and demands a debt of him; or comes to serve him with a subpoena ad respondendum, or ad testificandum, and B thereupon kills A, this is murder; for herein there is no provocation.

Hale's Hist. P. C. 445.

Watts came along by the shop of Brains, and distorted his mouth, and smiled at him: Brains kills him; it is murder; for it was no such provocation as would abate the presumption of malice in the party killing.

Cro. Eliz. 778, Brain's case; Hale's Hist. P. C. 455, cited; United States v. Wiltberger, 2 Wash. C. C. R. 515.

If A be passing the street, and B, meeting him, there being a convenient distance between A and the wall, take the wall of A, and thereupon A kill him, this is murder. But if B had justled A, this justling had been a provocation, and would have made it manslaughter. And so it would be, if A riding on the road, B had whipped the horse of A out of the track, and then A had alighted, and killed B, it had been manslaughter.

Hale's Hist. P. C. 455, 456.

It seems agreed, that no affront by bare words or gestures, however slighting, or however false and malicious they may be, and aggravated by the most provoking circumstances, will excuse him from being guilty of murder, who is so far transported thereby, as immediately to attack the person who offends him, in such a manner as manifestly endangers his life. But if A gives indecent language to B, and B thereupon strikes A, but not mortally, and then A strikes B again, and then B kills A, this is but manslaughter; for the second stroke made a new provocation; and so it was but a sudden falling out. And though B give the first stroke, and, after a blow received from A, B gives him a mortal stroke; this is but manslaughter, according to the proverb, The second blow makes the affray.

Hawk. P. C. c. 31, § 33; Hale's Hist. P. C. 457.

A and B are at some difference; A bids B take a pin out the sleeve of A, intending thereby to take occasion to strike or wound B, which B doth accordingly, and then A strikes B, whereof he died; this was ruled murder; 1. Because it was no provocation, when he did it by the consent of A. 2. Because it appeared to be a malicious and deliberate artifice, thereby to take occasion to kill B.

Hale's Hist. P. C. 457.

If there be chiding between husband and wife, and the husband strike his wife thereupon with a pestle, that she dies presently, it is murder; and the chiding will not be a provocation to extenuate it to manslaughter.

Hale's Hist. P. C. 457.

It is said, that if a person happen to occasion the death of another unadvisedly, doing an idle wanton action, which cannot but be attended with the manifest danger of some other, as by riding with a horse, known to be used to kick, among a multitude of people, by which he means no more than to divert himself, by putting them into a fright; he is guilty of murder. Hawk. P. C. c. 31, § 61.

If a seaman in a state of great debility and exhaustion, so that he cannot go aloft without danger of death or bodily injury, and his situation is known to the master, be notwithstanding compelled by the master, by moral or physical force, to go aloft, who persists with brutality in such course, and the seaman falls from the mast and is drowned thereby, and his death was occasioned by the master under such circumstances, it is murder in the

master.

United States v. Freeman, 4 Mason, 505.

Where a person is insane at the time he kills another, he is not punishable as a murderer, although such insanity may have been remotely occasioned by the use of spirituous liquors. But drunkenness, of itself, is

no excuse.

United States v. Drew, 5 Mason, 28.

2. When done on an Officer or Minister of Justice.

It hath been adjudged, and hath frequently been agreed, that if a justice of peace, constable, watchman, &c., be killed in the execution of their offices, he, by whom any such person is killed, is guilty of murder; for herein the law implies malice; and the indictment need not be special, but general, Ex malitia sua præcogitata interfecit et murdravit; because the malice in law maintains the indictment.

9 Co. 68; 4 Co. 40; Cromp. 25; 3 Inst. 52; Savil. 67; Keil. 66; Hawk. P. C. c. 31, § 48; Hale's Hist. P. Č. 457.

So, if (a) a private person be killed in endeavouring to part those whom he sees fighting, the person by whom he is killed is guilty of murder; and he cannot excuse himself by alleging, that what he did was in a sudden affray, in the heat of blood, and through the violence of passion. But, if such person do not give notice for what purpose he comes, by commanding the parties in the king's name to keep the peace, or otherwise manifestly showing his intention to be not to take part in the quarrel, but to appease it; he who kills him is guilty of manslaughter only.

Keil. 66; 1 East, P. C. 318;|| Hawk. P. C. c. 31, § 48. (a) Killing the assistant of the constable is as well murder as the killing of the constable himself; so those who come to the constable's assistance, though not specially called thereunto, are under the same protection, as they that are called to his assistance by name. Hale's Hist. P. C. 463.

Whoever kills a sheriff, or any of his officers, in the lawful execution of a civil process, as, on arresting a person, a capias, &c., is guilty of murder. Hawk. P. C. c. 31, § 55. A sheriff who has suffered a voluntary escape, having no lawful authority to arrest the prisoner on the same execution; if he attempt to do so, and he be resisted and killed, it will not be murder. Commonwealth v. Drew et al., 4 Mass. 391.g

Nor is it any excuse to such person, that the process was erroneous,(b) (for it is not void by being so,) or that the arrest was in the night, or that the officer did not tell him for what cause he arrested him, and out of what court, (which is not necessary when prevented by the party's resistance,) or that the officer did not show his warrant, which he is not bound to do at all, if he be a bailiff commonly known, nor without a demand, if he be a special one.

Hawk. P. C. c. 31, § 56. [(b) If the process, be it by writ or warrant, be not defective in the frame of it, and issue in the ordinary course of justice from a court or magistrate having jurisdiction in the case; though there may have been error or irregularity in the proceeding previous to the issuing of the process, yet, if the officer or other minister be killed in the execution of it, this will be murder. And therefore if a capias ad satisfaciendum, fieri facias, writ of assistance, or any other writ of the like kind, issue directed to the sheriff, and he or any of his officers be killed in the execution of it, it is sufficient, upon an indictment for this murder, to produce the writ and warrant, without showing the judgment or decree. So ruled by Lord Hardwicke, in the case of one Rogers, at the summer assizes in Cornwall in the year 1735. Fost. Cr. L. 311.—In the case of a warrant from a justice of the peace, in a matter wherein he hath jurisdiction, the person executing such warrant is under the special protection of the law; though such warrant may have been obtained by gross imposition on the magistrate, and by false information touching matters suggested in it. Curtis's case, Fost. Cr. L. 135.- -An attachment issued out of the county court, and signed by the county clerk in his own cause, is legal process; and if the officer be resisted and killed in the execution of it, it will be murder. Baker's case, Leach's Cases, 106.]

But, where the warrant, by which he acts, gives him no authority to arrest the party; as, (c) where a bailiff arrests J S baronet, who never

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A New Abridgment of the Law with Large Additions and Corrections, Volume 7