Page:The American Cyclopædia (1879) Volume XI.djvu/133

 MANSLAUGHTER 125 leld that the mere omission to do an act can- not, although death ensue, make the man guilty of manslaughter. But if the omission were of an act which was certainly a duty, and such an act that any reasonable person must know that its omission would be very dangerous to life, the principles of criminal law would lead to the conclusion that this might be manslaughter. Thus, a man employed to wall a shaft in a colliery, and whose duty it was to place a stage over the mouth of the shaft, having omit- ted this, and a man being thereby killed, the court of king's bench held him guilty of man- slaughter. It seems to be agreed that if the act omitted were a legal duty, it would certainly amount to that crime. It should be added that the law always presumes (in the absence of clear proof to the contrary) that a man in- tended to do the thing he actually did, and in- tended the consequences which naturally and actually flow from his act ; and this principle applies even where the act causes death. So a very nice distinction is taken in law between a malum prohibitum and a malum per se. Thus, if there be a law prohibiting the shoot- ing of woodcocks before the 4th of July, one who shoots at one in June intends to break a law ; but if, while thus shooting, by mere ac- cident and without negligence, he should kill a man, this would be no crime, because shoot- ing a woodcock at that season is an offence only because the law has made it so. But if he shoot at his neighbor's poultry, and by ac- cident kill his neighbor, this is manslaughter ; because the destroying his neighbor's property was an offence of itself, independently of muni- cipal law. But by far the most frequent and most difficult questions in practice are those which must be determined either by the means used to produce death, or by the presence or absence of previous hostile intention. It is a general rule, that if one kills another with a deadly weapon, it is more than manslaughter ; and it has been said authoritatively, that whether the weapon used be a deadly weapon or not, is not a question of fact for the jury, but a question of law for the court. (See MURDEE.) The other question, as to previous hostility, generally turns upon the preliminary question, whether the act was committed in " the heat of passion," or under sudden provo- cation. If one, being angry, attacks another, his anger is not an entire excuse. But if a quarrel and conflict ensue, and the assailant kills the man whom he attacked, while this is a felonious homicide, it is not murder, because there is an absence of that malice aforethought which is of the essence of murder ; and there- fore it is manslaughter. Still further would it be from murder if the party killing had been himself attacked. But neither would this ex- cuse the act if it were not made necessary by the nature of the attack ; but it would reduce the crime to manslaughter. Here, however, it is to be remembered that such a quarrel makes that to be only manslaughter which would otherwise be murder, for no other reason than because it negatives the supposition of malice aforethought. If therefore this be proved, as if it be shown that the killer had a grudge against the deceased, and had manifested a vio- lent hatred and intention to injure him, it might be inferred that he provoked the quarrel merely to give him the opportunity of gratify- ing his malice. In such a case the quarrel, in- stead of negativing malice, would help to prove it ; and therefore, of course, it could not have the effect of reducing the felony to manslaugh- ter. So if there had been a quarrel and much provocation, and the quarrel had abated, and one of the parties withdrew and provided him- self with a dangerous weapon, and returning killed the other, the excuse of " heat of passion " would not apply, for there would then be evi- dence of deliberate purpose. So, too, let the provocation be what it may, if there be no excitement or heat of passion, the killing will be deemed deliberate and intentional. Still, where there was much provocation, and no evi- dence of hostile purpose previous to the prov- ocation, the killing itself would generally be deemed evidence of excited temper. There are other cases which the law regards as only man- slaughter, without evidence of momentary ex- citement ; partly because the law infers that from such a provocation there must be excite- ment ; and partly, perhaps, because the party killed brought his death upon himself by his outrageous wrong. Thus, if a husband detects his wife in adultery, and instantly and purpose- ly takes either her life or her paramour's, it is only manslaughter. Not so, however, if he waits for a subsequent opportunity, for then the first reason wholly fails, and the killing becomes murder. In one English case, where a man had his pocket picked, and with the assistance of others threw the thief into a pond to punish him by a ducking, and the man was drowned, this was held only manslaughter. Questions of this kind are so frequent, and at the same time so difficult, that the legislatures of many of the United States have endeavored to aid in their determination by discriminating between different classes and degrees of manslaughter, defining each degree, and affixing to it appropri- ate punishment. We have not space to speak of these in detail, but to illustrate the prevail- ing principles of classification refer to the stat- utes of New York. By these, four degrees of manslaughter are defined. The first degree, briefly stated, consists of killing without the purpose of death, when the deceased was en- gaged in perpetrating or attempting a crime less than felony, and where such killing would be, at common law, murder. Assisting in self-murder is manslaughter in the first degree, as also wil- fully killing an unborn quick child by injury to the mother, if it would be murder in case the mother died from the injury. The second de- gree consists in procuring abortion otherwise; killing in the heat of passion without the in- tent of death, but in a cruel and unusual man-