83 HOMICIDE killing was done in the heat of passion to reduce the crime to voluntary manslaughter.81 ample, where the killing was done because the For exslayer believed that he was in great danger but the facts do not warrant such a belief, it may be murder or manslaughter, according to the circumstances, 82 or, where the slayer, although acting in self-defense was not himself free from blame, the crime may be manslaughter. right to kill in self-defense may have terminated, So, although the nevertheless a heat of passion created by the attending circumstances may continue so that the killing will be manslaughter and not murder.84 Where the circumstances of the killing are such as may indicate that the person killed by his conduct had provoked passion on the part of the slayer, and also that the slayer may have acted in self-defense, the two theories are not so contra ient of murder, as an unlawful intent to take human life, was error, as a killing in promptings of an overmastering pasresponse to the sion is voluntary manslaughter, although intentional. 150 Ga. 736, 105 SE 361. Curry v. State, [e] Use of dangerous weapon.By express provision of the statutes in some jurisdictions, the killing of another in the heat of passion without malice by the use of a dangerous weapon, law. without authority and not in necessary self-deof fense, is State, 123 Miss. 87, 85 S 129, 10 manslaughter. Haley v. ALR 462. [29 C. J.] 1127 dictory that they may not both be considered, and, although it may be found that the theory of selfdefense is not supported, the theory of a killing under the influence of passion upon adequate provocation may be found to have been established.85 Character of passion. ates to reduce a killing to the grade of manslaughThe passion which operter is ordinarily created by rage or anger, it may result from other conditions of the mind 86 but rendering it incapable of cool reflection, such as fright or terror. 88 to terror or fright may be closely akin to a killing It is obvious that a killing due in self-defense.89 Degree of passion. Passion in order to reduce murder to manslaughter must be of such a degree as would cause an ordinary man to act upon impulse and without reflection. are: That the passion must be such "as to render Other expressions State, 2 Tex. A. 93. see infra VI in 30 C. J. ceased had abandoned the difficulty, "If the appellant knew that deand deliberate, he should continue to shoot, it would be murder. and then, while his mind was calm deceased, even though his adversary one is attacked under circumstances But if that he would be justified in slaying such conduct would be likely to cresubsequently abandoned the difficulty, ate that degree of fear or rage which would render him incapable of cool [f] Poison. While it is difficult ing under such circumstances would to see how poison could be adminis- be of no higher grade than reflection, and if it did do so, the killtered in a heat of passion, yet if laughter." McCampbell v. State, 76 it was, the homicide would be only Tex. Cr. 245, 249, 174 SW 345. manslaughter. man156 Ind. 246, 59 NE Hasenfuss v. State, [a] Illustrations.-(1) [g] Aggravated assault.-Charge when he drew his pistol and fired the 463. ceased was advancing on appellant "If as to aggravated assault is inappli- first shot, and deceased then abandecable when killing is under circum-doned the difficulty and fled, and apstances stated in text. State, 79 Tex. Cr. 48, 182 SW 1137.citement and passion of the moment, Mansell v. pellant, while laboring under the exNecessity for both heat of passion shot as he fled, this would be a case of and adequate cause see infra § 118. manslaughter 81. Allison v. State, 74 Ark. 444, Young v. State, 78 Tex. Cr. 314, 316, 86 SW 409. and not 82. U. S.-Stevenson v. U. S., 162 dence it is manifest that the first murder." 180 SW 686. U. S. 313, 16 SCt 839, 40 L. ed. 980. shot did not kill, and probably would (2) "From all the eviArk.-Allison v. State, 74 Ark. 444, not have killed 86 SW 409. disable, and the jury may have befrom the state's standpoint it did the deceased; but lieved that it rendered it unnecesfired. sary that the second shot should be The state of mind, therefore, in which the second shot was fired fense. was of vital importance in the defired with deliberation, and the oftermination of the grade of the ofThe shot might have been might have been fired when the appellant was in a state of agitation fense might have been murder. It manslaughter." sufficient to reduce the offense Anderson 87 Tex. Cr. 242, 244, 221 SW 285. 313, 16 SCt 839, 40 L ed. 980; Henv. State, wood 85. Stevenson v. U. S., 162 U. S. v. Peo., 54 Colo. 188, 129 P 1010. Cross references: Distinction between and justifiable and excusable homimanslaughter Imperfect self-defense see infra VI cide in self-defense see infra VI in 30 C. J. in 30 C. J. Inconsistent defenses generally see Propriety of instruction submitting Criminal Law § 70. both theories see infra IX C in 30 C. J. 86. Collins v. State, 102 Ark. 180, SW 676, 33 KyL 944. 143 SW 1075; Clardy v. State. 96 Ark. 52. 131 SW 46; Hocker v. Com., 111 pra note 80. See cases su D. C.-U. S. v. Heath, 20 D. C. 272. Ga.-Croom v. State, 85 Ga. 718, 11 SE 1035, 21 AmSR 179. Kan.-State v. Clark, 69 Kan. 576, 77 P 287. N. M.-State 572. 579, 175 P 772. v. Kidd, 24 N. M. "If the act is committed under the influence of an uncontrollable fear of death or great bodily harm, caused by the circumstances, but without the presence of all the ingredients necessary to excuse the act on the ground of self-defense, the killing is manslaughter." State v. Kidd, supra. "The mere fact that a lieves that he is in great and immeman bediate danger of life or great bodily harm does not of itself justify him in taking life. grounds for such belief, or the law There must be some will not excuse him for taking the life of another. acts from an honest belief that it But if the slayer is necessary to protect himself, and not from malice though he formed such or revenge, hastily and without due care, and conclusion when the facts did not justify it. still under such a case, although such a belief on his part will not fully justify him, it may go in mitigation of the crime, and reduce the homicide from murder to manslaughter." Allison v. State, 74 Ark. 444, 86 SW 409. 413. even Justifiable or see infra VI in 30 C. J. excusable homicide to 87. Hocker v. Com., 111 SW 676, 33 KyL 944; Com. v. Colandro. 231 Pa. 343, 351, 80 A 571 [quot Cyc]; Norris v. State, 42 Tex. Cr. 559, 61 SW 493; Stell v. State. (Tex. Cr.) Justifiable or excusable homicide 27 Tex. A. 63, 10 SW 445; Boyett v. 58 SW 75; Cochran v. State, 28 Tex. A. 422, 13 SW 651; Miller v. State, 83. Wallace v. U. S.. 162 U. S. 466, 16 SCt 859, 40 L. ed. 1039; Stevenson v. U. S., 162 U. S. 313, 16 SCt 839, 40 L. ed. 980: Allison v. State, 74 Ark. 444, 86 SW 409. 90 refers to a state of the mind brought "While the word 'passion' usually when it has lost its self-control, and expresses that condition of the mind about by anger, it, properly speaking, becomes the passive instrument of the Rev. St. (1899) § 1826 means any heat KyL 944. Hocker v. Com., 111 SW 676, 681, 33 actuating cause or feeling." produced by just cause of provocaof passion recognized by law, whether [a] "Heat of passion" as used in able cause. 665, 19 SW 192. tion or a lawful, adequate, or reasonArk. 52, 131 SW 46. State v. Berkley, 109 Mo. 88. 180, 143 SW 1075; Clardy v. State, 96 Ark.-Collins v. State, 102 Ark. Ky.-Hocker v. Com., 111 SW 676, 681, 33 KvL 944 [cit Cyc]. C. 121. as 559. 61 SW 493. R. I.-State v. Smith, 93 A 1. Tex.-Carlile 80 A 571. SW 822; Norris v. State, 42 Tex. Cr. V. State, (Cr.) 232 89. Com. v. Colandro, 231 Pa. 343, manslaughter seems to be the exisself-defense and [a] reasonably founded belief of immi"The dividing line between this character of tence, nent peril to life or great bodily the moving force, of a harm, as distinguished from the influence of an uncontrollable fear or terror, conceivable as existing, but stances are both adequate to raise not reasonably justified by the immediate circumstances. If the circumand sufficient to justify a belief in the necessity to take life in order to save oneself from such where the belief exists and is acted upon, the homicide is excusable upon a danger, the theory of self-defense if the act is committed under the indeath or great bodily harm, caused while, fluence of an uncontrollable fear of by the circumstances, but without the of self-defense, the killing is mansary to excuse the act on the ground presence of all the ingredients necesslaughter.' Com. v. Colandro, 231 Pa. 343. 352, 80 A 571. Self-defense see infra VI in 30 C. J. State v. Hoyt, 13 Minn. 132; State v. 90. Peo. v. Poole, 159 Mich. 350, 123 NW 1093, 134 AmSR 722; Maher v. Peo., 10 Mich. 212. 220, 81 AmD 781; Henderson, 24 Or. 100, 32 P Ryan v. State, 115 Wis. 488, 92 NW 1030: 271. " out time to cool, placing the prisoner act, be disturbed or obscured by pas- 66 the person for the time being deaf to the voice of reason, "'91 must "produce what, according to human experience, may be called an uncontrollable impulse to do violence,' 1992 must be such as to "temporarily suspend or overthrow the reason or judgment by its violence, ''93 must be such as would naturally destroy the sway of reason and render the mind of an ordinary person incapable of cool reflection," must be "almost uncontrollable, ''95 must be "irresistible. ''96 It need not be such as to "entirely dethrone reason, ''97 or "temporarily dethrone reason, 9998 or be so overpowering as to destroy volition or the reasoning faculties,' or "so overpowering as for the time to shut out knowledge and destroy volition,’ or to render the person accused "incapable of purpose or intention, ''2 or be "uncontrollable, nor need there have been a whirl-wind" of passion, or a "transport" of passion.5 The heat of passion must be such as to exclude premeditation and a previously formed design, 6 and, under some statutes, anger when not of such a character as to render the 66 991 Maher v. Peo., supra [quot Peo. v. Lilley, 43 Mich. 521, 5 NW 982, 986]. To same effect State v. Holme, 54 Mo. 153, 165. "The state of mind must be such, that the suddenly excited passion suspends the exercise of judgment, and dominates volition, so as to exclude premeditation and a previously formed design, though of short duration." Smith v. State, 83 Ala. 26 3 S 551. 91. State v. Primrose, 25 Del. 164, 165, 77 A 717. 92. State v. Davis, 50 S. C. 424, 27 SE 905, 62 AmSR 837. 93. Preston v. State, 25 Miss. 94. 405, 383. 1799 act, be disturbed or obscured by passion to an extent which might render ordinary men, of fair average disposition, liable to act rashly or without due deliberation or reflection, and from passion, rather than judgment." Peo. v. Poole, 159 Mich. 350, 354, 123 NW 1093. 134 AmSR 722. 98. Dillon v. State, 137 Wis. 655, 119 NW 352, 16 AnnCas 913: Johnson v. State, 129 Wis. 146, 108 NW 55, 5 LRANS 809, 9 AnnCas 923. 99. Smith v. State, 83 Ala, 26, 28, 3 S 551. See Olds v. State, 44 Fla. 452, 33 S 296 (discussing commonlaw manslaughter). 1. State v. Kennedy, 169 N. C. 288, 294, 84 SE 515. 2. State v. Davis. 50 S. C. 405, 424. 27 SE 905, 62 AmSR 837. State v. Hill, 20 N. C. 629, 34 95. Com. v. Ware, 137 Pa. 465, 20 AmD 396: Seals V. State, 3 Baxt. A 806. (Tenn.) 459: Quarles V. State, 1 Sneed (Tenn.) 407. 3. Robinson v. Com., 9 Ky. On. 926, 4. Seals v. State, 3 Baxt. (Tenn.) 459; Young V. State. 11 Humphr. (Tenn.) 200: Peo. v. Calton, 5 Utah 451, 16 P 902 [rev on other grounds 130 U. S. 83, 9 SCt 435, 32 L. ed. 870]. 96. Peo. v. Mendenhall, 135 Cal. 344, 67 P 325; State v. Sloan, 22 Mont. 293, 56 P 364; Peo. v. Calton, 5 Utah 451. 16 P 902 [rev on other grounds 130 U. S. 83, 9 SCt 435, 32 L. ed. 870]. [a] Statutory provisions frequently require the killing to be done under the influence of a provocation apparently sufficient to make passion irresistible. Collins v. State, 102 Ark. 180, 143 SW 1075; Clardy v. State, 96 Ark. 52, 131 SW 46; Henwood v. Peo. 54 Colo. 188, 129 P 1010; Smith v. Peo.. 1 Colo. 121: Rentfrow v. State, 123 Ga. 539. 51 SE 596; Peo. v. Bissett, 246 Ill. 516, 92 NE 949: Nowacryk v. Peo., 139 Ill. 336, 28 NE 961; Davis v. Peo., 114 Ill. 86, 29 NE 192; State v. Ah Mook, 12 Nev. 369. 375; State v. Hassing. 60 Or. 81, 118 P 195. 97. Ala.-Smith v. State, 83 Ala. 26. 3 S 551. Mich.-Peo. v. Poole, 159 Mich. 350, 123 NW 1093. 134 AmSR 722; Maher v. Peo., 10 Mich. 212. 81 AmD 781. N. C.-State v. Hill, 20 N. C. 629, 34 AmD 396. S. C.-State v. Davis. 50 S. C. 405, 27 SE 905. 62 AmSR 837. Tenn. Haile v. State, 1 Swan 248; Young v. State, 11 Humphr. 200. Utah.-Peo. v. Calton, 5 Utah 451. 16 P 902 [rev on other grounds 130 U. S. 83. 9 SCt 435, 32 L. ed. 870]. See Olds v. State, 44 Fla. 452, 33 S 296 (discussing common-law manslaughter). 5. Gillespie v. State, 53 Tex. Cr. 167, 109 SW 158; Clark v. State, 51 Tex. Cr. 519, 102 SW 1136: Kannmacher v. State, 51 Tex. Cr. 118, 101 SW 238. 6. Smith v. State, 83 Ala. 26, 3 S 551. 7. Updike v. State, 9 Okl. Cr. 124, 130 P 1107; Atchison v. State, 3 Okl. Cr. 295, 105 P 387. 8. State v. Shuster, (Mo.) 183 SW 296; 1 East P. C. p 232. 9. See statutory provisions; and Cavanaugh v. Com., 172 Ky. 799, 190 SW 123: Taylor v. Com., 172 Ky. 136. 188 SW 1087; Com. v. Mosser, 133 Ky. 609, 118 SW 915; Combs v. Com., 112 SW 658, 33 KyL 1058; Keeton v. Com., 108 SW 315, 32 KyL 1164. 10. State v. Shuster, (Mo.) 183 SW 296. Mutual combat as provocation see infra § 121. 11. Absence of design to kill see infra § 117. Specific intent to kill as element of manslaughter in first degree see infra § 147. "It will not do to hold that reason 12. Fowler v. State, 161 Ala. 1, should be entirely dethroned, or over- 49 S 788: Peo. v. Adams, 289 Ill. powered by passion, so as to destroy 339, 124 NE 575: State v. Halliday, intelligent volition. Such a degree 112 La. 846, 36 S 753: Tyner v. U. of mental 'disturbance would be S., 2 Okl. Cr. 689, 103 P 1057. equivalent to utter insanity, and, if 13. Peo. v. Elmore, 167 Cal. 205, the result of adequate provocation. 138 P 989; Peo. v. Chutuk, 18 Cal. would render the perpetrator morally A. 768, 124 P 566; State v. O'Doninnocent. . . .The principle involved nell, 176 Iowa 337, 157 NW 870; in the question, and which we think clearly deducible from the majority AmR 733. of well-considered cases, would seem to suggest, as the true general rule, that reason should, at the time of the Erwin V. State, 29 Oh. St. 186, 23 14. U. S.-U. S. v. Meagher, 37 Fed. 875. Cal.-Peo. v. Freel, 48 Cal. 436. Del.-State V. Wallace, 18 Del. 402. 47 A 621. Ga.-Dowdy v. State, 96 Ga. 653, 23 SE 827. Ind-Hasenfuss v. State, 156 Ind. 246, 59 NE 463; Norton v. State, 98 Ind. 347; Stout v. State, 90 Ind. 1; Bruner v. State, 58 Ind. 159: Waybright v. State, 56 Ind. 122; Creek v. State, 24 Ind. 151; Dennison v. State, 13 Ind. 510. Kan.-State 148. 110 P 103. v. Murray, 83 Kan. Ky-Curtis v. Com., 169 Ky. 727, 184 SW 1105; Com. v. Saylor, 156 Ky. 249, 160 SW 1032: Wheatley v. Com., 81 SW 687, 26 KyL 436; Montgomery v. Com., 81 SW 264, 26 KyL 356; Wheeler v. Com., 120 Ky. 697, 87 SW 1106, 27 KyL 1090; Jackson v. Com., 100 Ky. 239, 38 SW 422, 1091, 18 KyL 795, 66 AmSR 336. Mich.-Nye v. Peo., 35 Mich. 16; Maher v. Peo., 10 Mich. 212, 8 AmD 781. N. C.-State v. Hill, 20 N. C. 629. 34 AmD 396. Oh.-Erwin v. State, 29 Oh. St. 186. 23 AmR 733. Pa.-Com. v. Drum, 58 Pa. 9. Porto Rico.-Peo. v. Dumas, 14 Porto Rico 384. Tenn.-Robertson v. State, 2 Lea 239, 31 AmR 602; Haile v. State, 1 Swan 248; Young V. State, 11 Humphr. 200. Tex.-Connell v. State, 46 Tex. Cr. 259, 81 SW 746; Danford v. State, 44 Tex. Cr. 105, 69 SW 159; Reddick v. State. (Cr.) 47 SW 993. Vt.-State V. McDonnell, 32 Vt. 491. Va.-Brown v. Com., 86 Va. 466, 10 SE 745. W. Va.-State v. Galford, 87 W. Va. 358, 105, SE 237. "To be guilty of voluntary manslaughter, one must intend to slay. as opposed to an unintentional slaying." Curtis v. Com., 169 Ky. 727, 733, 184 SW 1105. [a] The reason the grade of the crime is reduced is "not because the law supposes that this passion made him unconscious of what he was about to do, and stripped the act of killing of an intent to commit it but because it presumes that passion disturbed the sway of reason, and made him regardless of her admonitions. It does not look upon him as temporarily deprived of intellect, and therefore not an accountable agent; but as one in whom the exercise of judgment is impeded by the violence of excitement, and accountable therefore as an infirm human being." State v. Hill, 20 N. C. 629, 34 AmD 396 [quot State v. Kennedy, 169 N. C. 288, 294, 84 SE 515; State v. Baldwin, 152 N. C. 822. 829, 68 SE 148]. To same effect 17 HOMICIDE ferred from the willful use of a deadly weapon;15 but, if the weapon is not deadly, the intent to kill cannot be inferred, but must appear from the evidence.16 There is also authority to the effect that one may be guilty of voluntary manslaughter by shooting in a wanton, reckless, and careless manner, or by the reckless and careless use of a deadly weapon, 18 and thereby killing a person, or causing death by other acts manifestly dangerous to life,19 but this on principle can only be on the ground of an inference of actual intent to do harm, and if there was in fact no intent, the killing is either murder or involuntary manslaughter. 20 The presence of an intent to kill is apparently inconsistent with the absence of malice, where a statute defines malice as an intent to do a wrongful act established either by proof or presump the Cr. 23 [29 C. J.] 1129 tion of law. 2 21 Further, the existence of sudden and irresistible passion would seem to be inconsisdisregards the actual intent, tent with the notion of intention,22 but the difference is reconciled upon the ground that the law be presumed not to have been actuated thereby.24 or defendant will It has been held to be voluntary manslaughter in some jurisdictions where, although there is no evidence of an intent to kill, death results from an intentional and unlawful blow.25 Intention directed toward third person. Where a shot or blow aimed at one person by a misadventure kills another, it is manslaughter if the homicide would have been of that grade had the person, against whom the blow or shot was directed, been killed,2 26 and the same rule has been applied where a killing is through mistake as to the McBryde v. State, 156 Ala. 44, 47) 239. S 302. [b] Voluntary antithetical to in- 140, 15 SE 21. voluntary.-"In Ga.-Boatwright v. State, 89 Ga. general absence definition sufficiently of a cise and distinctive, voluntary manInd.-King v. State, 187 Ind. 220, pre- 118 NE 809. slaughter is, by made to depend on the presence of some authorities, 264. 26 KyL 356. Ky-Montgomery v. Com., 81 SW a positive intention to kill; and by others, it seems to depend on wheth- State, (Cr.) 48 SW 583. Tex.-Connell V. State, er or not the blow is intentionally 259, 81 46 SW 746; Tex. directed against the person of the feet long, containing long, thin, and Birdwell V. party slain. [a] Heavy fence palings several points, are dangerous weapons. Neither of these char-projecting wire nails with sharp ten v. U. S., 42 App. (Ď. C.) 239. Pat[b] Use of a chair in such a manner that it would be a deadly weatary pon is sufficient proof of the intent State, (Tex. Cr.) 48 SW 583, to kill, required in cases of volunmanslaughter. Birdwell V. V. 503, 168 SW 860; Connell v. State, 17. SW 517; Montgomery v. Com.. 81 SW 18. acteristics meets the requirements, or reaches the merits, of every case. As applicable when the homicide occurs in a personal encounter, or is produced by a deceased, ordinarily, voluntary manblow aimed at the slaughter is defined, an intentional killing in the heat of passion, or in hot blood, and is distinguished from murder by the absence of malice, express or implied; and 'involuntary manslaughter is where one, doing an unlawful act, not felonious, nor tending to great bodily harm, or doing a lawful act without proper caution or requisite skill, undesignedly kills another,'-where death unintentionally results, so far as the accused is concerned. 1 Whar. Crim. Law §§ 304, 305; 3 Green. As thus defined, whether the killing on Ev., 128. is intentional, express or presumed. or unintentional, is the particular characteristic which voluntary distinguishes from slaughter-whether death involuntary manthe probable consequence of the unmay be lawful act. as from accidental, contradistinguished Voluntary, as the antithesis of inor misadventure. voluntary, is the distinguishing quality; but not intentional, as amounting to a specific intention to kill. Intention to do great bodily harm is sufficient. In Com. v. Gable, 7 Serg. & R. 423. Tilghman, C. J., says: 'But I take it, that evidence of a positive intention to kill is not necessary, in order to constitute the crime of voluntary manslaughter. It is sufficient, if there be such acts of violence as may be expected to produce great bodily harm. [a] Reason for rule.-"It is manifest that at common law the killing contrary, involuntary manslaughter murder upon the ground that malice On the in is, where it plainly appears this case would be held to be neither death nor any great bodily ly weapon under the circumstances that harm was intended, but death is ac- shown. was implied from the use of a deadcidentally caused by some unlawful malice does not obtain in Kentucky. act. or an act strictly lawful in it- Farris v. Com., 14 Bush 362; BuckBut the doctrine of implied self, but done in an unlawful manner, and without due caution."" rington v. State, 83 Ala. 9, 15, 3 S not follow that, because the doctrine ner v. Com., 14 Bush 601; Trimble Har- v. Com., 78 Ky. 176. 425. Yet it does [c] Mutilating to conceal identi- in of implied malice does not obtain ty.-Where accused cut ceased's throat while she was yet law, the de- which would be murder at common Kentucky, the shooting alive under the belief that she was here, is dead, and did so merely to conceal plied malice, the existence of malice involuntary When we reject the doctrine of immanslaughter. her identity, an instruction on manslaughter was held correct. is a question for the jury, and the son v. Com., 100 Ky. 239, 38 SW 422, murder Jack-offense 18 KyL 795, 66 AmSR 336. which would otherwise be Intoxication as reducing grade of the jury find as becomes voluntary slaughter, where under the evidence crime to manslaughter see supra 8 killing was 21. a fact that the not done with malice aforethought. been held in Kentucky in a long line Accordingly it other by has of cases that, where one kills anthe wanton, reckless, or 15. Ark.-Ringer 149 SW 850; Pash v. Com., 146 Ky. man offense, if without grossly careless use of firearms, the although he had no intention to kill. malice thought, is voluntary manslaughter, afore196; Chrystal v. Com., 9 Bush 669; Sparks v. Com., 3 Bush 111. 96 AmD York v. Com., 82 Ky. 360: Smith v. Com., 93 Ky. 318, 20 SW 229, 14 1335. KyL 260; Montgomery v. Com., 81 SW 264, 26 KyL 356; Brown v. Com., 122 Ky. 626, 92 SW 542, 28 KyL common-law principle that These opinions rest on the must be held to intend the necesa man 352, 33 KyL 749. sary consequence of his act." Ewing v. Com.. 129 Ky. 237, 242, 111 SW ant carelessly handled a loaded pis- of voluntary manslaughter that the 20. pra. one try on duty on board a vessel ran through the body, with his bayonet, [a] lustration. Where a senstrike deceased with the back of his and had no intention to kill him, the who merely used abusive language to him, if he only intended to crime weapon, or to prick him slightly, ter; but if he meant to kill, or to was involuntary manslaughof murder. Cas. No. 14,589. do great bodily harm, he was guilty 609, 14 P 566. U. S. v. Bevans, 24 F. 609. 14 P 566. 21. Peo. v. Kernaghan, 72 Cal. 22. Peo. V. Kernaghan, 72 Cal. 23. Peo. v. Freel. 48 Cal. 436. 24. ant killed deceased in a quarrel by 278, 83 SW 909. Peo. v. Doyell, 48 Cal. 85. 25. Perrymore V. State, 73 Ark. striking him [a] Illustration. Where defendboard without intent to kill him, he on the head with a 278, 83 SW 909. was guilty of voluntary manslaughPerrymore v. State, Ark. 73 Ark. 26. Ark.-Brooks State, 74 Ark. 252, 85 SW 410. 57. 216 SW State, 141 705; Ringer 290. 20 P 769. V. Colo.-Crawford v. Peo., 12 Colo. 26 KyL 436; Montgomery v. Com., 81 Ky-Wheatley v. Com., 81 SW 687, SW 264, 26 KyL 356. ter. V. Cr. 126, 136 SW identity of the person killed. 27 28 Willfully. Where a statute provides that the killing must be done unlawfully and willfully, the te m "willfully" will be construed as meaning acting voluntarily with evil intent or design. Such willfulness may be shown by the fact that defendant acted with reckless disregard of the life of another and that the means used were reasonably calculated to take such life.29 [§ 117] d. Absence of Malice. The absence of malice is essential to the crime of voluntary manslaughter, both at common law and under the statutes, this being the characteristic that distin guishes it from murder. 80 Therefore, an intentional31 homicide, if not justifiable or excusable,32 is murder and not manslaughter, although there may have been adequate provocation, if the provocation did not actually cause a sufficient degree of passion, or if the homicide was the result, not of passion, but of malice," even though a violent passion was aroused by the provocation, 34 as in cases where the homicide was due to a prior grudge or there was a prior intent to kill and defendant took advantage of the provocation to carry out such intent, ,35 especially if defendant used a deadly 33 See Hill v. State, 74 Tex. Cr. 481,, 177, 212 SW 853; State v. Inks, 135 | 719; Mason's Case. 1 East P. C. 239; 168 SW 864 (holding killing murder in second degree as upon implied malice). Eng.-Rex v. Gross, 23 Cox C. C. 455. Intent to kill one person and killing of another as murder see supra § 67. 27. Jacobs v. State, 85 Tex. Cr. 505, 213 SW 628. 28. Roberts v. U. S., 126 Fed. 879, 61 CCA 427, 127 Fed. 818, 62 CCA 134. Mo. 678, 37 SW 942; State v. Dett- Rogers, 18 N. Y. Nebr.-Bohanan v. State, 15 Nebr. 209, 18 NW 129. N. Y.-Peo. v. 9, 72 AmD 484; [a] Willfulness essential-Miller 7 N. Y. 396. v. State, 3 Okl. Cr. 575, 107 P 948 N. C.-State v. Burton, 172 N. C. (under U. S. Comp. St. [1901] § 939, 90 SE 561; State v. Pankey, 104 5341); O'Barr v. U. S., 3 Okl. Cr. N. C. 840, 10 SE 315; State v. Hen319, 105 P 988, 139 AmSR 959 (un-sley, 94 N. C. 1021; State v. Gooch. der U. S. Comp. St. [1901] p 3628). 94 N. C. 987; State v. Matthews, 80 29, Roberts V. U. S., 126 Fed. N. C. 417; State v. Owen, 61 N. C. 879, 61 CCA 427, 127 Fed. 818, 62 CCA 134. 30. See supra § 110. 31. Intentional killing as malicious see supra § 66. 32. Justifiable or excusable homicide see infra VI in 30 C J. 33. U. S.-Gourks V. U. S.. 153 U. S. 183, 14 SCt 806, 38 L. ed. 680; Collins v. U. S., 150 Ú. S. 62, 14 SCt 9, 37 L. ed. 998. Ala.-Caldwell v. State, 203 Ala. 412, 84 S 272; Warren v. State, 197 Ala. 313, 72 S 624; Davis v. State, 188 Ala. 59, 66 S 67; Washington v. State, 155 Ala. 2, 46 S 778; Martin v. State, 119 Ala. 1, 25 S 255; McNeill v. State, 102 Ala. 121, 15 S 352, 48 AmSR 17; Hornsby v. State, 94 Ala. 55. 10 S 522; Judge v. State, 58 Ala. 406, 29 AmR 757; Ex p. Nettles, 58 Ala. 268; Murphy V. State, 37 Ala. 142. Ark.-Price v. State, 114 Ark. 398, 170 SW 235; Casat v. State, 40 Ark. 511; Fitzpatrick v. State, 37 Ark. 238: Atkins v. State, 16 Ark. 568. Cal.-Peo. v. Bruggy, 93 Cal. 476, 28 P 26; Peo. v. Robertson, 67 Cal. 646, 8 P 600; Peo. v. Sanchez, 24 Cal. 17. Conn.-State v. Scheele, 57 Conn. 307, 18 A 256, 14 AmSR 106. Del.-State V. Downham, Houst. Cr. 45. Ga.-Perry v. State, 102 Ga. 365, 30 SE 903; Tate V. State, 46 Ga. 148. Ill-Palmer v. Peo., 138 Ill. 356, 28 NE 130, 32 AmSR 146. Iowa.-State v. Hunter, 118 Iowa 686. 92 NW 872. Kan.-State V. Yarborough, 39 Kan. 581, 18 P 474. Ky. Watkins V. Com., 123 Ky. 817, 97 SW 740, 29 KyL 1273; Turner v. Com., 89 Ky. 78, 1 SW 475, 8 KyL 350. La.-State v. Senegal, 107 La. 452, 31 S 867; State v. Ashley, 45 La. Ann. 1036, 13 S 738; State v. Newton. 28 La. Ann. 65. Mich.-Peo. v. Carter, 96 Mich. 583, 56 NW 79. See Peo. v. Owen, 154 Mich. 571, 118 NW 590, 21 LRANS 520 (where killing was deliberate). Minn.-State V. Hoyt, 13 Minn. 132; State v. Shippey, 10 Minn. 223, 88 AmD 70. 425; State v. Hildreth, 31 N. C. 429, Huggett's Case, Kel. C. C. 59, 84 "A killing upon provocation ordinarily calculated to excite the passion beyond control, would not make the killing voluntary manslaughter if the provocation did not, in fact, produce the sudden heat of passion, which is an essential ingredient of the offense." Cavanaugh v. Com., 172 Ky. 799, 805, 190 SW 123. [a] Rule applied.-One who began to shoot without justification or excuse, and continued to shoot until he killed deceased, would be guilty of murder, although sudden passion arose in the meantime and the last shot was the fatal shot. Martin v. State, (Tex. Cr.) 236 SW 729. 34. U. S.-Collins v. U. S., 150 U. S. 62, 14 SCt 9, 37 L. ed. 998. Ark.-Casat v. State, 40 Ark. 511. Mo.-State v. Nelson, 101 Mo. 464. 14 SW 712; State v. Gee, 85 Mo. 647. Pa. Com. v. Paese, 220 Pa. 371, 69 A 891, 123 AmSR 699, 17 LRANS Nebr.-Bohanan v. State, 15 Nebr. 795, 13 AnnCas 1081; Com. v. Greth-209, 18 NW 129 [writ of error dism er, 204 Pa. 203, 53 A 753; Com. v. 125 U. S. 692, 8 SCt 1390, 31 L. ed. Eckerd, 174 Pa. 137, 34 A 305; Com. 854]. v. Ware, 137 Pa. 465, 20 A 806: Brooks v. Com., 61 Pa. 352, 100 AmD 645; Com. v. Green, 1 Ashm. 289; Com. v. Mosher, 6 PaLJ 90; Com. v. Hare, 2 PaLJR 467, 4 PaLJ 257. Porto Rico.-Peo. V. Dumas, 14 S. C.-State v. Cobb, 65 S. C. 324, Tenn. McQueen V. State, 1 Lea 285; Clark v. State, 8 Humphr. 671. Tex-Merka v. State, 82 Tex. Cr. 550, 199 SW 1123; Oldham v. State, 63 Tex. Cr. 527, 142 SW 13; Stringfellow v. State, 42 Tex. Cr. 588, 61 SW 719; Fendrick V. State, (Cr.) 56 SW 626; Gregory v. State, (Cr.) 43 SW 1017, 48 SW 577: Beard v. State, (Cr.) 29 SW 770; Ex p. Jones. 31 Tex. Cr. 422, 20 SW 983: Miller v. State, 27 Tex. A. 63, 10 SW 445: Clove v. State, 26 Tex. A. 624, 10 SW 242; Melton v. State, 24 Tex. A. 47, 5 SW 652; Guffee v. State, 8 Tex. A. 187; Boyett v. State, 2 Tex. A. 93. Utah.-Peo. v. Halliday, 5 Utah 467. 17 P 118. Va.-Brown v. Com., 86 Va. 466, Wash.-McAllister V. Terr., 1 W. Va.-State v. Manns, 48 W. Va. Eng. Reg. v. Selten, 11 Cox C. C. 674; Reg. v. Kirkham, 8 C. & P. 115, 34 ECL 640; Rex v. Shaw, 6 C. & P. 372, 25 ECL 480: Rex v. Kessal, 1 C. & P. 437, 12 ECL 256; Rex Mo.-State V. Stewart. 278 Mo. V. Rice, 3 East 581, 102 Reprint Miss.-Thomas v. State, 61 Miss. 60; Ex p. Wray, 30 Miss. 673; Riggs v. State, 30 Miss. 635. N. C.-State v. Lane, 26 N. C. 113. Tex.-Ex p. Jones, 31 Tex. Cr. 422, 20 SW 983. 35. U. S.-Collins v. U. S., 150 U. S. 62, 14 SCt 9, 37 L. ed. 998. Ala.-Ex p. Nettles, 58 Ala 268; Murphy v. State, 37 Ala. 142. Ark. Atkins v. State, 16 Ark. 568. Cal.-Peo. v. Robertson, 67 Cal. 646, 8 P 600. Ga.-Perry v. State, 102 Ga, 365, 30 SE 903. Minn.-State v. Hoyt, 13 Minn. 132. Miss.-Ex p. Wray, 30 Miss. 673; Riggs v. State, 30 Miss. 635. Mo.-State v. Inks, 135 Mo. 678. 37 SW 942; State v. Dettmer, 124 Mo. 426, 27 SW 1117; State v. McDaniel, 94 Mo. 301, 7 SW 634; State v. Dunn, 80 Mo. 681; State v. Christian, 66 Mo. 138; State v. Green, 37 Mo. 466. Mont.-State v. Sloan, 22 Mont. 293. 56 P 364. N. C.-State v. Gooch, 94 N. C. 987; State v. Lane, 26 N. C. 113: State v. Tilly, 25 N. C. 424; State v. Johnson, 23 N. C. 354, 35 AmD 742. Pa. Com. v. Eckerd, 174 Pa. 137, 34 A 305; Com. v. Mosler, 6 PaLJ 90. S. C.-State v. Cobb, 65 SE 324, 43 SE 654. 95 AmSR 801. Tenn. McQueen v. State, 1 Lea 285; Clark v. State, 8 Humphr. 671. Tex.-Adams v. State, 35 Tex. Cr. 285, 33 SW 354; Melton v. State, 24 Tex. A. 47, 5 SW 652. Eng. Reg. v. Selten, 11 Cox C. C. 674; Reg. v. Kirkham, 8 C. & P. 115, 34 ECL 640; Rex v. Kessal, 1 C. & P. 437, 12 ECL 256; Mason's Case, 1 East P. C. 239; Whiteley's Case, 1 Lew. C. C. 173. [a] Conditional intent.-(1) The rule applies, although the intent to kill was conditional (Adams v. State, 35 Tex. Cr. 285, 33 SW 354) (2) as where there was an intent to kill deceased if resisted (State v. Hogue, 51 N. C. 381). 36 HOMICIDE 39 weapon, prepared for that purpose," murderous purpose can be shown to have been unless the abandoned before the crime was committed.3 fact that defendant had the weapon ready when 37 The he provoked the encounter, and immediately killed the deceased with it, indicates prior malice.88 the circumstances may show that the killing was But not malicious, although defendant used, and even though he had prepared, prepared, a deadly weapon. Whether or not the provocation and passion will reduce the grade in such cases depends upon defendant's intent when he entered into the contest. If he then intended to use a deadly weapon the crime is murder, but if he did not intend to use it when he began the contest, but later used it in the heat of passion, provoked by the attack made upon him, it is manslaughter.40 mere fact that defendant armed himself after a The quarrel with deceased does not necessarily prevent the subsequent killing from being reduced to manslaughter.41 in If he armed himself from a rea [b] The rule applies to one who helps another, knowing the unlawful purpose of the other. State, 8 Tex. A. 187 (where defendGuffee v. ant's brother attacked deceased, intending to injure him severely, and deceased, killed defendant's brother, and deproper self-defense, fendant, provoked thereby, instantly killed deceased, the provocation did not reduce the crime to slaughter, if defendant was manof his brother's unlawful purpose). aware [c] Feigned reconciliation. who, after a fight, feigns a One ciliation, but a few minutes later inreconvites a renewal of the attack, intending to use a deadly weapon if his challenge is accepted, and the renewal of the attack uses the weapon and kills his adversary as he meant to do, is guilty of murder. Reg. v. Selten, 11 Cox C. C. 674. 36. on U. S.-Collins v. U. S., 150 U. S. 62, 14 SCt 9, 37 L. ed. 998. Ala.-Murphy v. State, 37 Ala. 142. Ark.-Atkins v. State, 16 Ark. 568. Ill-Palmer v. Peo., 138 Ill. 356, 28 NE 130, 32 AmSR 146. Miss.-Riggs V. 635. State, 30 [29 C. J.] 1131 sonable belief that he was in danger of death or of great bodily harm at the hands of deceased, the homicide is manslaughter if it would have been manslaughter had defendant not especially armed himself, but if he armed himself to pursue his adversary, after their quarrel, to get an opportunity to kill him, it is murder.43 It is presence 42 44 45 or absence of deliberation and malice which makes the crime manslaughter or murder, and the character of the crime does not depend upon whether or not a dangerous weapon was used. [118] e. Provocation-(1) While, as has been noted, the grade of a felonious In General homicide committed upon sudden heat of passion aroused by adequate provocation is reduced from murder to manslaughter, neither passion alone, however violent,*7 adequate,18 will have this effect. Further, the pronor provocation alone, however vocation which must have been present must be such as the law deems adequate to produce the degree of passion required to mitigate the crime."9 Where both parties to a quarrel sep- 46. See supra § 114. Fla.-Rivers v. State, 75 Fla. 401, Mo.-State v. Dettmer. 124 Mo. 426, 27 SW 1117; State v. Dunn, 80 Mo. 681. Eng.-Reg. v. Selten, 11 Cox C. C. 674: Rex v. Hayward, 6 C. & P. 157. 25 ECL 371; Rex v. Kessal, 1 C. & P. 437, 12 ECL 256; Whiteley's Case, 1 Lew. C. C. 173. 37. State v. Stewart, 278 Mo. 177. 212 SW 853; State v. Dettmer, 124 Mo. 426, 27 SW 1117; State v. Horn, 116 N. C. 1037, 21 SE 694; State v. Tilly, 25 N. C. 424; State v. son, 23 N. C. 354. 35 AmD 742; MurJohnray v. Com., 79 Pa. 311. 38. Ex p. Nettles, 58 State v. Inks, 135 Mo. 678, 37 SW Ala. 268; 942; State v. Dunn, 80 Mo. 681. Del.-State v. Draper, Houst. Cr. Ind.-Miller v. State, 37. Ind. 432. Kan.-State v. Smith, 78 Kan. 179, 183, 96 P 39 [cit Cyc]. Mo.-State v. Partlow, 90 Mo. 608, 4 SW 14, 59 AmR 31. Tex.-Childs v. State, 35 Tex. Cr. 573, 34 SW 939. when [a] Weapon prepared only outside interference.-It for been held that, has also was prepared to be used only in case the weapon of outside interference, but was actually used in sudden passion due to adequate provocation, the grade was reduced. Ex p. Wray, 30 Miss. 673. 40. Com. v. Drum. 58 Pa. 9; Reg. v. Smith, 8 C. & P. 160, 34 ECL 666. 41. Gourko v. U. S., 153 U. S. 183, 14 SCt 806, 38 L. ed. 680; Fitzpatrick v. State, 37 Ark. 238. V. Com., 6 KyL Ky.-Chambers Mont.-State v. Brooks, 23 Mont. 355, 180 NW 567, 12 ALR 658; Bo- 137. man 132 V. 354, 35 AmD 742. Pa.-Com. v. Drum, 58 Pa. 9. Eng.-Rex v. Thomas, 7 C. & P. 46 Ala. 43, 37 S 93; Johnson v. State, 133 Ala. 38, 31 S 951; Smith v. State, 49. Ala.-Wilson V. State, 140 103 Ala. 4, 15 S 843; Reese v. State, State, 52 Ala. 391; Flanagan v. State, 90 Ala. 624, 8 S 818; Judge v. State, Ala. 44. 58 Ala. 406, 29 AmR 757; Allen v. 46 Ala. 703; Campbell v. State, 23 Ark.-Young v. State, 99 Ark. 407, 138 SW 475. Cal.-Peo. v. Mendenhall, 135 Cal. 344, 67 P 325; Peo. v. Bruggy, 93 Cal. 476, 29 P 26. 127, 76 A 632; State v. Emory, 21 Del.-State Del. 126, 58 A 1036; State v. Wallace, V. Wiggins, 23 Del. 18 Del. 402, 47 A 621; State v. BeckHarrigan, 14 Del. 369, 31 er, 14 Del. 411, 33 A 178; State v. State v. Dugan, Houst. Cr. 563; State A 1052; Vines, Houst. Cr. 424; State v. Pratt, v. Draper, Houst. Cr. 531; State v. Cr. 233; State v. List, Houst. Cr. Houst. Cr. 249; State v. Till. Houst. Colo.-May v. Peo., 8 Colo. 210, 6 P 816. 133. 272. D. C.-Jackson v. U. S., 48 App. Fla.-Rivers v. State, 75 Fla. 401, 78 S 343. Ga. Smith v. State, 49 5 SE 782. See Fogarty v. State, 80 Ga. 450, Ga. 482, Ill.-Peri v. Peo.. 65 Ill. 17. 100 Ind. Welty v. State, 180 Ind. 411, NE 4, 55 AmR 756; Beauchamp v. NE 73; Bridgewater 153 Ind. 560, 55 NE 737; Henning v. State, v. State, 106 Ind. 386, 6 NE 803, State, 6 Blackf. 299. 686, 92 NW 872; State v. Decklotts, Iowa. State v. Hunter, 118 Iowa 19 Iowa 447. Ky.-Doyle v. 238, 19 SW 664, 14 KyL 212; Cot18 KyL 518; Lewis v. Com.. 93 Ky. Com., 37 SW 153, rell v. Com., 17 SW 149, 13 Chambers v. Com., 6 KyL 448, 13 305; Nichols v. Com., 11 Bush 575; KvL Ky. Op. 149. La. Ann. 1031, 13 S 703; State v. La.- -State v. Ashley, 45 La. Ann. 1036, 13 S 738; Street v. Jackson, 45 Newton, 28 La. Ann. 65. 336, 58 NW 328; Peo. v. Carter. 96 Mich.-Peo. v. Borgetto, 99 Mich. Mich. 583, 56 NW 79; Maher v. Peo., 10 Mich. 212, 81 AmD 781. Minn.-State v. Shippey, 10 Minn. 223, 88 AmD 70. Miss.-Smith V. State, 867: Preston v. State, 25 Miss. 383. 58 Miss. Mo.-State v. Stewart, 278 Mo. 177, 212 SW 853; State v. Heath, 221 Mo. 565, 121 SW 149; State v. Pollard, 139 Mo. 220. 40 SW 949: State Blunt. 110 Mo. 322, 19 SW 650: State v. Ellis, 74 Mo. 207 [aff 11 Mo. A. 587]. |