Year: 1867




character as to rebot the legal inference
of malace, yet provocation has its defined
legal limits. No breach Of mans
word ; no mere trespass on his lands or
goods; no insults ty wores, however of.
fensive they may be, viii free party
killing from the guilt of murder This
rule holds good when u prrty, killing
upon provocation, makes use of . deadly
weapon, or otherwise mauifests an inten
tion to kill Malicious destruction of
property is likely, and as well calcslated
to provoke, as any thing that can be done
by one man to his neighbor-yet the law
by wisely judging that too great latitude
should not be given to the taxing away
OF human life, refuses to. extend to the
proyocatiop | have mentioned, partieu.
larly when the party killing use deadly
weapon. No proDocation whatever, can
render hon,idide justiiable, or even ex-
cusable. The best it can do is to reduce
it to mapslaughter. An uniutentional
trivial assault along street or densely
ly popplltel town ar city, or in lawful
ly assembled gathering eff people crowded
together, as by jostlG-nor, as bas been
said, a trespass against his property, mot
his dwelling house is sufficient provo,
cation to warrant the owner il using a
deadly weapon in its defence and if he
do, and with it kill the trespasser, it will
be murder; and this though the killing
were actually necessary to- prevent the
trespass. And it will be no answer to
express malice, and when proposition
has been received, and when q party, at
the time, or afterwards, uses expressions
indicating au intention to be revenged
using such language as satisfies jury
that he had formed design, and aft +
wards carrying his designs into exccu.
tiOn' he will be guilty of murder


Manslaughter is the unlawful Killing
of another without malice aforethousht
either express or implied 1t may be
committed voluntarily upon sudden
heat, or quarrel, or fighter it may be
involuntary, but while in the commission
of some unlawful act Cor contrary to
law, } below the degree Of felony.


A homicide having been duly proved.
to extcnuate it from murder,. to man>
slaughter, the evidence midst PROVE both
proyocation and passion to exist Prou-
.ocdtion alone will rot reduce the offence
Nor will p9s5ton without provocation.--
And this provocati5n must be such as
the law will deem sufficient to put man
in sucli state of temper as to prevent
due deliberation. Az I have already
said. no mere words of insult or eontume.
ly, ar epithets used, nor trcsspasses to
lands or goods, are sufficient. But an
assault or battery upon the person. or
blows, are deemed sufficient to excite the
passions to such an extent as deprive the
mind, for the moment, Of the power of
delibcration Was there evidence in this
case of any provocation, given by the
deceased to the defendant? If you arc
satisfied he gave. the fatal blow if so,
what was it 2 When and where was it
given and received? If there was, did
it produce passion If so, to what ex-
tent; and was the defendant smarting
under the provocation at the time p
Was it so recent and so strong that he
might be considered as not being, at the
moment master o. his own understand
ing? If so, then the offence would be
manslaughter.


But, gentlemen, if you shall find there
was provocation sufficient to produce pas
sion, and it actually existed in conso>
quence of it--yet, if, after the provoca-
ton, there had been sufficient time for
the blood to cool, and for his passion to
resume its place, before the fatal blows
Weae struck, the offence would be murs
der.


The law has not fixed limits within
which cooling time may be said to take
place. Every case, Of course, must de>
pend on its own circumstances f; bu5 the
time in which an ordinary man, in like
circumstances would have cooled, may be
said to be reasonable time. And as 10
The fact Of whether there has been a re-
suming of the csutrol OF reason, it is
said if the pfisoper displayed thought,
contrivan ce and design in the mode of
possessing himself Of the weapon, and
again replacing it Immediately after
the blow was struck, such exercise of
coatrivaace aud design demonstrates
rather the presence of judgment and
reason, than violent and ungovernable
passion Or if, between the provocation
and the stroke given, the prisoner fell
into another discourse, not connected
with the immediate object Of his pas
sion that it is believed by the juay his
attention was called off from the provo
cation-or, he should pursue his busi-
ness in the usual way for "a reasonable
length of time, any subsequent killing
Of his adversary--especlally when a
weapon of any kind, the use Of which
will produce death, is used, it murder.
And to which we may add that, when a
man is assailed, and is secure in his sep-
aratjon from further personal aggression
he has no right to return armed to the
scene of conflict, or hunt up his assail-
ant and engage in new combat with
him. If he do SO and slay him, he is
guilty of murder or Of naaslaughter, ac'
eording to the circumstances under which
the homicido is committed


! One of the defendants counsel, in his
argument, read 10 the Court and to the
Jury some authorities in reference there.
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