The Columbia Democrat. [volume] (Bloomsburg, Pa.) 1837-1850, 1838-02-10

conclusion most favorable TO the prisoner,
particularly in a capital case. That con.
clusion is that there was but one blow Civ
en-. On this point we have thus given the
opinion ofthe court, but iii question of
fact, and the jury will judge of it for them
selves.
Were there any circumstances which ex-
tenuate this sudden act Of destruction into
coluntary ma',Siaughter2 To extenuate
a homicide from murder to manslaughter
both prouocation and passion must exist.
PrOUocatiOn without passion will not ex-
tenuate the offence nor will passion with
out proUocation. This proyocation must
be such as is deemed in law sufficient to
deprive the party of deliberation. No
'cords, however insulting, no treSpaSs to
lands or goods. are held sufficient; but as
sault upon the person, or blows, are deem
ed sufficient to excite the passions to such
: an extent as to deprive the mind, for the
moment, of the power to deliberate. What
was the proyocation here! The prisoner,
on his return from his days employment,
called at the tavern of VIM, Sproul, in
company with his daughter, in the evening.
Hearing the deceased making loud noise
IN the bar-room, the father and daughter re-
tired to the kitchen for the purpose of a.
yoiding any contact with him, and the chill
dren fastened the kitchen door to prevent
the intrusion Of the deceased, who neverthe-
less came 10 the window and door deman-
ding admittance, and, according to one wit
ness, making threats and saying he would
''be IN dead or alive" He therefore for
ced open the door, bursting out the steeple
which held itfast. The prisoner who was
seated by the fire warming himself extern
ded his hand to the deceased in friendly
manner asked him hoto he did2 Without
taking any notice of this courtesy, the de-
ceased, without the slightest provocation,
seized the prisoner by the hair, and, accor-
ding TO one witness, with one hand by the
hair and with the other by the throat, drew
him violently back over the chair, Tie
daughter struck the deceased, in defence of
father, and the prisoner Immediately grab
bed for something and seizing the axe which
Jay in the chimney corner, where it had
been used in preparing kindling, suddenly
gave the deceased the fatal blow upon the
head which caused his death. Whether
the circumstances which occurred before
the fatal blow, were sufficient to deprive the
mind ofdeliberation, is question of law,
and the court are of opinion that the pro-
vocation acaS sufficient to produce, in ordi-
nary minds, such degree Of passion as to
prevent delberation. Whether this degree
Of passion was in fact produced is a ques-
ton for the jury, If they should believe
that it was, and that the act was done upon
a sudden heat occasioned by the provoca-
ton received, and without deliberation,
ahen the offence is extenuated from murder
an the first degree to vOlaeafary manslaugh-
Ter. If the intention to kill existed, which
we think may fairly be inferred from the
deadly weapon used as we'll as the manner
of using it, and the jury should be of opin-
ion that the act was deliberately perpetra-
ted, then the prisoner is, under the evil
denee in the cause, guilty of murder of
fret degree.
In conclusion; upon the whole evidence,
the court are of opinion, thatit is not case
of " Involuntary n1anslaughter' because Of
manifest intention to kill, as indicated by
the use of deadly weapon. That it is not
a case Of ''murder in the second degree"
for the same reason, the presence Of an in
tention to kill. That is not murder ofthe
first degree because, although the act was
7"ViynP' and ''premeditated," yetit was
not 'deliberately" "perpetrated, by reason of
the passion produced by sufficient provoca-
ton from the deceased, depriying the pris-
oner, for the moment, OF the power to de-
liberate. And that the prisoner is guilty of
'UOi1ntary mansIaughter' by reason of the
existence Of an intention to kill, suddenly