Year: 1860

previous malice, on the part of the accused,
and that mutual blows were given, before the
accused drew his knife, and that he then
drew 1t. in the heat and fury of the fight,
and dealt mortal wound although with the
purpose of doing Just what he did do, that is
of taking life, or what would be that intent,


if he had been in such state, as properly to
comprehend the nature of his act, it is still
but manslanghter


6. Although therefore il must be admitted
that 50 mortal a wOunI, inflicted with such
a weapon, upon so vital part Of the person,
upon such slight prJv1catIon, must always
excite. in the mind Of the thoughtful and
considerate, strong apprehension that it did
result from Il murd"rOus pIrpOSe yet it
seems 10 us that there was II good deal IN the
case calculated t. impress the minds of
jury. with a more favorable construction to-
wards the respondent, and that il should
therefore have been submitted to them. with


instructions applicable to the particular
facts


l. 1t was clearly a case Of mutual combat,
and continued for such length Of time, that
mutual blows might have been, and probIblv
were given.


,. The respondents declarations, given in
evidence by the prosecution, all of which
are made evidence, vas that AlcKeen gave
the first blow; having previously used in
sulting language.


g. The knife by which the mortal wound
was inflicted, is not shown % have been one
which the respondent did not ordinarily
carry about him II appears to have been
one in constant use about his business, and
verv likely might have been constantly car
ried about his person.


I There is no direct proof when it was
drawn, OF with what specific intent. That
IS matter Of inference, in rsELri o which
there Is, undoubtedly. room for deblJe.


3 Tne medical tesrim.-., ..ppelrs to my
mind to favor the conclusion, that the fatal
ch iracter of the wound might have been
caused by the fail. II the construction Of the
principal medical witness Is entirely correct,
rs t. the suddenness with which death would
ensue, and especially as to the absolute in
capacity Of the wounded person to continue
the struggle, Or ev-n to speak, after the tull
penetration Of the knife INTO the heart, it
would seem almost certain that, from the
other testimony. the conflict must have con-
tinueJ a considerable time. long enough for
the exchange of blows. before tue knife was
resortei 10, and that. when first struck, it
only penetrated % the breast bone. not reach
ing the heart, and, probably not seyering tLe
large nerve named and that it wa thrust
through to its fatal result by the fall.


1t seems to me, that if the jury should n1J
find the tact that previous malice existed,
on the part of the prisoner, towards the de-
ceased, Of IA character which induced him to
seek the quarrel, or thar he went into the
affray with his knife drawn, or with the in
tention of using it, or thinking of II as
possible resort, III case of convenience, u be
used in the uffray but that his drawing and
using 1t, was altogether an after thought.
subsequent to tn, encounter, that 1t must he
regarded as a case of mauslaughter-





There will be likely always to be such ev-
iience Of heat Of blood. a. to render it too
doubtful, in regard % the existence Of delib-
crate malice, TO allow the jury TO convict Of
murder, unless upon distinct and satisfactory
evidence of previous malice.


In every other view. the case wears very
much the aspect Of murder For the rule
laid down by the court, that if the design to
kill were formed deliberately, for ever 50
short time before the iuhicJion of the NOR
tai wound. OF if it were formed without such
as the law regards as sufficient
justification for anger and heat of blood. that
Is upon mere words, however provoking and
before q blow was given by che deceased,
the offence Is murder.i j. most und ,ubted law
AM if one infict a mortal wound. with
deadly weapon. like a sharp knife. upon a
vital part, as in the present case, il Is a pre-
Of fact, that he did design the nat
ural conseq queuces of his act and it Is murder,
unless he shows that the result was not de-
signed, OF it was done in heat of blood, upon
legal provocation.


So too on the other hand, if the prisoner
went there. without any thought of a fight,
or entered the fight without any thought Of
using his knife, and after receiving a blow
or blows, got so ieated IN his blood,
as to be incapable of acting with delibera-
tion, and having no deliberately tormed
feeling # malice or revenge, seized upon the
first weapon he could lay hold Of, and that
happened 70 be his knife, and dealt the NOR
tai blow, although in his mad fury, he struck
where he supposed he should most damage
his adversary, 1t Is still but manslaughter,
even if the Jury should think the respondent
intended to Kill. OF did that, in his madness.
which he must have supposed would Kill, II
he were capable Of Estimating consequences.


In this view the point OF time and the
manner OF inficting the mortal wound Is
Of great importance 70 be considered by the
Jury And it viii be affected to a con
extent by consideration OF the
length Of time the conflict continued, what
was done; whether this could have been
done after the fatal wound was inflicted,
or how much of it could have been done
after that. 1t Will Of course not escape the
consideration Of jury. in this connection,
that the mere estimate OF time, by witness :.
under such circumstances is prOverblaIiy
and very liable t. seem many
times longer than it is. This will be
by the comparison Of different
estimates, and more especially by the
particular acts which transpired.


From all We have said, it will be obvious,
that the first point OF inquiry before the
Jury, will be in regard to the existence OF
preconceIved malice ON the part OF the res
pondent, before he went into the combat.
In this view the nature and character OF
the wound. aud the manner OF It's IntIctlon,
will have an important bearing.


This being got over, the second Leading
inquiry will be, as to the existence ot any
legal provocation, such as blow, Or blows
inflicted by the dec =ased and the occurrence
of hot blood, IN consequence. The respond
ent. having established the negative OF the
former and the afhrmativs of the latter, or
rendered them fairly doubtful, in the esti-
nation of the jury, will be entitled to claim
a verdict of manslaughter, otherwise he Is
guilty of murder from the nature, extent and
consequence of the wound.


The verdict is set aside, and a new trial
granted.