by he fell being an ordinary seaman on board the brig, and in a weak state in heedless ly sending a of body and unable to perform the duty of seamen, wilfully or- sick seaman dered and compelled him, without his consent and against his aloft where will, to go aloft upon the main mast and rigging of the vessel, and perish and that Whitehead, by said compulsion, attempting to go aloft, slaughter. by reason of his weakness of body, fell overboard into the sea and was drowned, whereby the said Freeman wilfully murdered the said Whitehead. Story, J. (After stating to the jury that if the debility and exhaustion was known to Capt. Freeman when he ordered Whitehead aloft, and the circumstances were such as he must have foreseen would be attended with either death or enormous bodily injury by falling, so that the jury would infer malice from such brutal malignity of conduct, it was murder.) If the jury are not satisfied that there was either actual malice to the deceased, or constructive malice arising from brutal malignity, as before mentioned; still, if the circumstances of the case show, that there was gross heedlessness, want of due caution, and unreasonable exercise of authority on the part of Capt. Freeman, and that he ought to have known,and could not but have known, that Whitehead was unfit to go aloft, and that there was probable and immediate danger to his life in his so doing, then, notwithstanding the absence of such malice, the offience is at least amanslaughter. II. AS TO THE PROVOCATION.* 1. THE STATE V. TACKETT, Dec. T. 1820, 1 Hawk. Rep. 210. The prisoner was convicted of the murder of one Daniel, a slave, by shooting him. ed is man | Words will not, but blows will reduce a homicide to The court charged the jury that no words would justify or extenuate homicide, and make it less than murder; that by the manslaugh common law, a slight blow, if it did not threaten death or great bodily harm, would not excuse or extenuate, if the instrument * To reduce the crime of homicide to manslaughter, the assault must be extremely violent, as striking a soldier with a patten in the face, by which blood flowed; Rex v. Stedman, Fost. C. L. 292. And if a man be illegally restrained of his liberty, it will reduce the killing to manslaughter; Rex v. Withers, 2 East. P. C. 233. So killing a man in the act of adultery with the wife of the party, will reduce the act to manslaughter; Rex v. Manning, T. Raym. 212. So it will be manslaughter if the instrument or weapon used be not likely to endanger life and there be no intention to kill; Rex v. Hazel, 1 Leach, C. L. 368; Turner's Case, 1 Ld. Raym. 142; Rex v. Higgs, 1 Leach C. L. 378, note. And whether the weapon be likely to endanger life or not, is a question for the jury; ibid. VOL VI. 73 ter. Trespass against pro perty will not reduce the killing to man slaughter. In sudden used be a deadly one, as a loaded gun or the like; and that it was of no consequence, at what part of the body the aim was directed, if death or great bodily harm were intended. The prisoner appealed to this court. Per Cur. Taylor, C. J. The first proposition that a slight blow will not excuse, is legally correct. But when the charge affirms, "that a slight blow not threatening death or any great bodily harm, will not extenuate a homicide if the weapon be a deadly one," it authorises the inference that a blow to constitute a legal provocation, must threaten death or other great bodily harm.This, however, is no part of the description of a blow, which all the authorities hold sufficient to extenuate. For if it amount to a breach of the peace, and offer an indignity to the person receiving it, it is generally conceded that it will extenuate the homicide to manslaughter, although a deadly weapon be used. The general rule is, that words are not, but blows are a sufficient provocation to lessen the crime of homicide to manslaugh ter. New trial granted. 2. COMMONWEALTH V. DREW, ET AL. May T. 1808, 4 Mass. Rep 391; STATE V. ZELLERS, 2 Halst. Rep. 220. The court held that where the trespass is against the property of another, not being his dwelling house, it is not a provocation sufficient to warrant the owner in using a deadly weapon. And the court, in the State v. Zellers, adopt the law as laid down in Massachusetts. Where the deceased had purchased the land of the prisoner at sheriff's sale, and had proceeded at law to obtain possession of it, and on coming on the ground was met by the prisoner with a gun, who deliberately shot the deceased as he approached the prisoner with a rope in his pocket, evidently with an intent to secure the prisoner; the court laid down the law that an attempt to come upon the land was not a provocation. III. AS TO MUTUAL COMBATS. 1. THE STATE V. WELLS, Sept. T. 1790, Cox's Rep. 424. Wells was indicted and convicted of manslaughter in killing conflicts the one Cooper, under the following circumstances: The parties ling must had had a dispute about a turkey, and they being at a blackretreat as smith's shop in the neighborhood, the deceased then began party kil can. * the quarrel by angry words, and jostling the prisoner with his far as he elbow, who then made no resistance. The deceased said if it was not for the law he would whip the prisoner, who replied he need not be afraid. The deceased then struck the prisoner, seized him by the hair, and the prisoner caught him by the thigh and ran him in the corner of the shop, when the blacksmith separated them. The quarrel was again renewed by the deceased in using abusive language, to which the prisoner replied, when the deceased struck him, and the prisoner returned the blow and struck the deceased in his face. The prisoner, on receiving the blows from the deceased, fell upon the vice, when he took up a club and struck the deceased a blow on the head, which fractured his skull and caused his death. It appeared by the testimony of the blacksmith, that the prisoner could not have retreated further when he gave the blow. The judge charged the jury that in a case of mutual conflict, the prisoner must make it appear, that before the mortal stroke was given, he had retreated as far as it was possible to do with safety, and that he killed his adversary through mere necessity, in order to avoid his own destruction. Per Cur. Kinsey, C. J. The question is, whether the offence proved to have been committed by the prisoner comes up to the legal signification of the word manslaughter, and I am of opinion it does, and am of opinion there should be no new trial. 2. STATE V. NORRIS, Oct. T. 1796, 1 Hayw. Rep. 429. sudden con The prisoner was indicted for the murder of Nathaniel Daves, Killing in by stabbing him with a dirk. It appeared upon the trial that flict before the prisoner, who had had a former quarrel with the deceased, the passions went to the house of Mrs. Ramsay, where the prisoner then was, cool was that he remained there a short time and retired; and that the deceased hallowed after him and stripped and went out in the street. The deceased charged Norris with a design to breed a riot, which he denied, and the deceased called him a damned liar, * Where the parties fight on a sudden quarrel, the case may be attended with such circumstances as to make it murder; Mawgridges Case, Fort, 295. And where they fight upon an equal footing, the violence of one party killing the other, may amount to murder; Rex v. Oneby, 2 Stra. 766. But where two persons were fighting and one of them took up a deadly weapon and killed the other, it was held only manslaughter; Rex v. Taylor, 5 Burr. 2793. And even where it happens some time after the original quarrel; Rex v. Snow, 1 Leach C. L. 151. But if two persons fight and pretend a reconciliation, and they afterwards meet and suddenly fight upon the score of old malice, and one of them be killed, it is murder; 1 Halo P.C.451. held man slaughter. when he retorted the lie back, and the deceased then tripped up his heals and struck him after he had risen. The prisoner then ran off and returned in three or four minutes. Deceased turned and went towards him, saying, you have got a weapon or stick, which the prisoner denied. They met and the prisoner stabbed him. Per Cur. Hayward, J. If Norris had killed Daves on the spot, I think it would but have been manslaughter. Norris returned in three or four minutes and gave the fatal stab. It is for the jury to consider whether three or four minutes intervening between the blows and the stab was sufficient time for the passions to cool. Williams, J. concurred. The jury found him guilty of manslaughter. An unlaw ful arrest will reduce the killing IV. ON EXECUTING PROCESS. 1. COMMONWEALTH V. DREW & QUIMBY, May T. 1808, 4 Mass. The defendants were indicted for the murder of one Parker, a deputy sheriff. It appeared that Parker had arrested Quimby upon an executo man tion at the suit of Gould, and had delivered him to King for safe slaughter.* keeping, and that King had suffered him to escape. He now came to the shop where the prisoners were at work to retake him. The shop (a blacksmith's) where the prisoners were, was closed, and Parker asked admission and was refused; he pulled open the door, and Drew struck him on the head with a bludgeon, which mortally wounded him. Per Cur. Parsons, C. J. observed, that if the jury believed the deceased was not in the execution of his office, when he received the mortal wound, as deputy sheriff; that having suffered * A felon killing a person who is endeavoring to arrest him, is guilty of murder; Rex v. Jenkins, 1 Hale P. C. 464: Or a party attempting to commit a felony: Res v. Hunt, 1 R. & M. C. C. 93; Rex v. Ford, 1 R. R. 329. See Daltons J. c. 170. 5: 1 East. P. C. c. 5. 68; as to the right of a private person to arrest. It is said, after indictment is found, any person may arrest the felon, but that if he he killed their justification must depend upon the fact of the felon's guilt, which it will be incumbent on them to make out, otherwise they will be guilty of manslaughter. And where the arrest is made even by an officer, if it be clearly illegal, the killing the officer will be but manslaughter; Rex v. Thompson, 1 R. & M. 80; Rex v. Adey, 1 Leach C. L. 206. And the court held in The State v. Rutherford, 1 Hawk's Rep. 457, that a well grounded belief that a felony is about to be committed, will extenuate a homicide committed in prevention of the felony, but will not where the killing was in pursuit of the party's own accord. Quimby to escape he could not again arrest him on the same execution, he must be acquitted of the murder. Was he guilty of manslaughter? And that would depend upon the provocation. That the prisoners were peaceably at work in the shop, and that the deceased forced the door, and that they must consider the nature and sufficiency of these provocations to determine whether the bludgeon was or was not a deadly weapon. It is a principle of the law, that if any man, under color or claim of legal authority, unlawfully arrest, or actually attempt or offer to arrest another, and if he resist, and in the resistance kill the aggressor, it will be manslaughter. 2. TACKETT V. THE STATE, May T. 1832, 3 Yerger's Rep. 392; S. P. STATE V. CURTIS, 1 Hayw. Rep. 471. As where out seal. The prisoner was convicted of the murder of one Mitchell, a the warrant constable, who was in the act of arresting the prisoner on a war was with rant of the peace, on the complaint of Robinson, who testified that the prisoner had threatened his life. The warrant was without a seal, and on attempting to arrest the prisoner, the prisoner told him to stand off, and the deceased still advancing, he shot the deceased and killed him. Error to this court. Per Cur. Peck, J. The seal to the warrant was indispensable. The officer, therefore, in attempting to make an arrest upon this void authority, acted at his peril; in contemplation of law he had no process, and the attempt made to arrest the prisoner was not justified. The killing, therefore, having proceeded from the unauthorised attempt to arrest the prisoner, reduces the offence to the crime of manslaughter. Judgment reversed. V. WHEN THE PARTY KILLING IS ENGAGED IN SOME ministering COMMONWEALTH V. THOMPSON, Nov. T. 1809, 6 Mass. Rep. 134. Thompson was indicted for the murder of Lovett, by admin- One who in istering a drug called lobelia or indian tobacco. It appeared nocently ad upon the trial, that Lovett being confined to his house by a cold, medicine de sent for Thompson, who gave him at different times this plant not gailty pulverised into powder. Parsons, C. J. observed, that the deceased lost his life by the unskilful treatment of the prisoner, did not seem to admit of any troys life is of felony. |