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weapon either open or concealed."1

93

Abortion. Under some statutes, the killing of an unborn quick child,92 or the killing of the child or mother in an attempted abortion, except where necessary to preserve the life of the mother, is made manslaughter in the first degree. To constitute a defense under such a statute, it is not necessary that the danger of death to the mother be immediate.94

95

[148] 3. Second Degree. Under a statute making manslaughter by voluntarily depriving a human being of life manslaughter in the first degree, and manslaughter committed under any other circumstances manslaughter in the second degree, 96 negligence is not necessarily a constitutent element of manslaughter in the second degree.97 Some statutes make it manslaughter in the second degree, where the killing is without a design to

16 Okl. Cr. 291, 182 P 734; Tubby | v. State, 15 Okl. Cr. 496, 178 P 491; Beshirs v. State, 14 Okl. Cr. 578, 174 P 577; Cheadle v. State, 11 Okl. Cr. 566, 149 P 919, LRA1915E 1031; Updike v, State, 9 Okl. Cr. 124, 130 P 1107; Turner v. State, 4 Okl. Cr. 164, 111 P 988; Ex p. Bollin, 3 Okl. Cr. 725, 109 P 288; Atchison v. State, 3 Okl. Cr. 295, 105 P 387; State v. Edmunds, 20 S. D. 135, 104 NW 1115, 21 S. D. 5, 108 NW 556. See State v. Cantieny, 34 Minn. 1. 24 NW 458 (under prior statute offense was second degree).

[a] Absence of design to effect death is essential and "when a sane man deliberately fires a shotgun into the body of a man, the jury cannot be permitted to speculate as to his intentions. The law draws the inevitable conclusion that he intended to effect death." State v. Towers, 106 Minn. 105, 109, 118 NW 361. [b] Intoxication precluding premeditated design will reduce the offense from murder to manslaughter in the first degree. Choate v. State, (Okl. Cr.) 197 P 1060; Tubby v. State, 15 Okl. Cr. 496, 178 P 491; Cheadle v. State, 11 Okl. Cr. 566, 149 P 919, LRA1915E 1031.

98

effect death, in a heat of passion, but in a cruel
or unusual manner." Where the killing is inten-
tional, it cannot be manslaughter under this sec-
tion.99
Under other statutes, manslaughter is in
the second degree where it is committed in com-
mitting or attempting to commit a trespass or
other invasion of a private right, either of the
person killed or of another, not amounting to a
crime; where it is committed by any act, pro-
curement, or culpable negligence not constituting
murder or manslaughter in the first degree,2 or in
the heat of passion but not by a dangerous weapon
or by the use of means either cruel or unusual;3
or where it is unnecessarily committed while re-
sisting an attempt by deceased to commit any fel-
ony, or to do any other unlawful act, or after
such attempt has failed. The New York statute
provides that a person who, by negligence or mis-

96. See cases infra this note; and note 97.

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[a] Pointing revolver. Where statutes make it unlawful to point a revolver at another loaded or unloaded, if defendant intentionally pointed his gun at deceased and it was discharged, killing the latter, he would be guilty of manslaughter in the second degree. McDaniel v. State. 156 Ala. 40. 46 S 988, 130 AmSR 74. 21 LRANS 678.

97. Benjamin v. State, 121 Ala. 26,
25 S 917.

98. State v. Clark, 69 Kan. 576.
77 P 287; State v. Canton, (Mo.) 222
SW 448; State v. Wilson, 98 Mo. 440,
11 SW 985; State v. Gassert, 65 Mo.
352; Montgomery v. State, 136 Wis.
119, 116 NW 876, 18 LRANS 339.
"The words 'heat of passion,' as
used in the sections of the statute
defining involuntary manslaughter.
mean any heat of passion recognized
by law, whether produced by what
is denominated à just cause of provo-
cation or by what is denominated
a lawful, adequate or reasonable
cause of provocation." State v.
Berkley, 109 Mo. 665, 674. 19 SW 192
overr so far as in conflict State v.
Bulling, 105 Mo. 204, 15 SW 367,
16 SW 8301.

[c] Provocation.-"Heat of passion alone does not reduce a homi- [a] Illustrations.-(1) Where, on cide to manslaughter; there must trial for murder, the evidence shows be adequate provocation for it, and that the fatal blow was struck by the fatal blow must be the unpre-defendant in the heat of passion, meditated result of the passion thus in the course of an altercation bearoused. Nor do mere words, ges- tween him and deceased, refusal to tures or threats, however opprobrious charge the jury as to manslaughter or violent, constitute in law an ade- in the second degree is error. State quate provocation." In re Bollin, 3 v. Gassert. 65 Mo. 352 [rev 4 Mo. Ökl. Cr. 725, 728, 109 P 288. A. 44]. (2) Where, on a trial for murder the evidence showed that defendant and deceased had a quarrel, and that deceased was advancing on defendant in a threatening manner, with a stone in his hand, when defendant shot him, an instruction on manslaughter in the second degree, based on the theory that the killing was without design to effect death, "but in a cruel or unusual manner." was improper, but an instruction on manslaughter in the fourth degree should have been given. State v. Stiltz, 97 Mo. 20, 10 SW 614.

[d] Illustration. —A conviction may properly be had on testimony that deceased and defendant had a struggle on the sidewalk, that deceased had hold of defendant, and struck him, without having any weapon; and that defendant returned the blows by shooting deceased. Peo. v. Kennedy, 22 NYS 267. See Peo. v. Pearce, 2 Edm. Sel. Cas. (N. Y.) 76 (under former statute).

91. State v. Rheaume, (N. H.) 116 A 758.

92. See statutory provisions and Evans v. Peo., 49 N. Y. 86 (manslaughter in second degree when occasioned in an attempt to procure miscarriage under L. [1869] c 631). Unborn child as subject of homicide see supra § 5.

93. State v. Harris, 90 Kan. 807, 136 P 264, 49 LRANS 580; Evans v. Peo., 49 N. Y. 86; Lohman v. Peo., 1 N. Y. 379, 49 AmD 340; Peo. V. McGonegal, 62 Hun 622 mem, 17 NYS

147.

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[bl Cruel and unusual manner.-
A killing by one who in the heat
of passion in the course of an an-
gry altercation strikes a single fatal
blow with an ordinary working im-
plement which he had in his hands
at the commencement and during the
entire progress of the altercation is
not a killing in a cruel or unusual
manner. State V.
Wilson, 98 Mo.
440, 11 SW 985.

[c] Blow with club.-State v.
Canton, (Mo.) 222 SW 448.
99. State v. Edwards, 70 Mo. 480.
1. N. Y. Pen. Code § 193. See
Peo. v. Rochester R. etc., Co., 59
Misc. 347, 112 NYS 362 (holding that
word "person" refers to a "natural
person only).

2. State v. Goldstone, 144 Minn.

405, 175 NW 892; Peo. v. Jackson, 125 App. Div. 873, 110 NYS 807; Peo. v. Welch, 74 Hun 474, 26 NYS 694 [aff 141 N. Y. 266, 36 NE 328, 38 AmSR 793, 24 LRA 117]; Peo. v. McCarthy, 47 Hun (N. Y.) 491; Barker v. Terr., 15 Okl. 22. 78 P 81; Beshirs v. State, 12 Okl. Cr. 605, 166 P 73; Franklin v. State, 9 Okl. Cr. 178, 131 P 183.

[a] Driving motor vehicle.-Disobedience of Gen. St. (1913) § 2635, making it a penal offense to drive a motor vehicle at a speed greater than is reasonable and proper, having regard to the traffic or so as to endanger life, limb, or property, may constitute "culpable negligence" within the statute defining manslaughter in the second degree. State v. Goldstone, 144 Minn. 405, 175 NW

892.

[b] Illustration.-Where a policeman, with nothing to show that he was such, at night calls on a passerby to stop, and, when the latter starts to run, shoots him, he is guilty of manslaughter in the second degree. Peo. v. McCarthy, 47 Hun (N. Y.) 491.

[c] Use of deadly weapon.-Where it appeared by undisputed evidence that a homicide was committed with a deadly weapon, defendant cannot be guilty of manslaughter in the second degree. Wratislaw v. State, (Okl. Cr.) 194 P 273; Ballard State, 12 Okl. Cr. 277, 154 P 1197. 3. Peo. y. Sharkey, 87 App. Div. 532, 84 NYS 780 [aff 178 N. Y. 584 mem, 70 NE 1104 mem].

V.

4. State v. Hoyt, 13 Minn. 132; State v. Edwards, 70 Mo. 480; Perugi v. State, 104 Wis. 230, 80 NW 593, 76 AmSR 865; Fertig v. State, 100 Wis. 301, 75 NW 960; Doherty v. State, 84 Wis. 152, 53 NW 1120.

[a] Killing by officer.-Where deceased was resisting defendant, an officer legally authorized to arrest him, he was doing an unlawful act, and defendant was guilty of no crime if he shot him necessarily; but, if unnecessarily, he was guilty of manslaughter in the second degree. Doherty v. State, 84 Wis. 152, 53 NW 1120. But see State v. Rose, 142 Mo. 418, 44 SW 329 (stated infra note 17. [d] (2) ).

[b] Elements held not present. Defendant testified that deceased, standing on the opposite side of a table from him, told him, "if he had anything to say, to come outside the house, and he would kick his head off; that defendant skipped behind M., and asked if he meant that, to which deceased said 'Yes,' and struck his hand on the table, when defendant, 'on the impulse of the moment,' pulled a pistol, and shot him." On cross-examination defendant said deceased slurred the catholic church, and cursed the Madonna, when defendant pulled his revolver, and shot him. It was held that manslaughter in the second degree was not involved, as, under Rev. St.

88 148-150]

HOMICIDE

conduct in a business in which he is engaged or in the use of any machinery or property intrusted to his care, occasions the death of a human being, is guilty of manslaughter in the second degree. Under some statutes, where death results from the placing of a spring gun, it is specifically made manslaughter in the second degree.

Abortion. Under some statutes it is manslaughter in the second degree to cause the death of a woman or a quick child of which she may be pregnant in an attempt to produce an abortion."

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unnecessary

8

[§ 149] 4. Third Degree. Under some statutes, a homicide committed in the absence of justification or excuse in the heat of passion and withand by a dangerous out design to effect death, weapon, is made manslaughter in the third degree. (1898) 4354, there must be evidence] 47 NW 827. that the killing was unnecessarily done, before an instruction for manslaughter in that degree is proper. V. Perugi State, 104 Wis. 230, 80 NW 598. 76 AmSR 865. Such killing. [c] Intentional statute does not apply where defendant, in resisting what was claimed to be a civil trespass on his land or cattle, or both, struck deceased on the head and neck with an thereby causing his death, there being no pretense that the weapon was without design a used State v. Hoyt, 13 Minn. 132. death. [d] Trespass to property rights.The intentional killing of another on account of a mere trespass to property rights is not within the meanFertig V. statute. such a ing of State, 100 Wis. 301, 75 NW 960. 5. N. P. Pen. Code 195; Peo. v. Smith, 56 Misc. 1, 105 NYS 1082.

ax,

to cause

6. Schmidt v. State, 159 Wis. 15, 149 NW 388, AnnCas1916E 107.

7. State v. Sonner, 253 Mo. 440, 161 SW 723; State v. Fitzporter, 93 Mo. 390, 6 SW 223; State v. Emerich, 87 Mo. 110; State v. Dickinson, 41 Wis. 299.

to a

[a] Defenses.-(1) Under a statute making it manslaughter in the second degree to administer woman pregnant with a quick child with intent to any medicine, etc., destroy such child, unless the same shall have been necessary to preserve the life of such mother or shall have been advised by a physician to for that purpose, in be necessary case the death of the child or mother ensues from the means employed, the existence of both of such defenses State v. Fitzporter, is not required. Where 93 Mo. 390, 6 SW 223. (2) the statute requires that the act in order not to constitute manslaughter must have been necessary to save the or must have life of the mother been advised as so necessary by two physicians, it is no defense if defendant, a physician, thought to save operation to be necessary the life of the mother, where the evidence showed that it was in fact not necessary. Hatchard v. State, 79 Wis. (3) Consent of de357, 48 NW 380. ceased in the commission of the undefense. lawful act constitutes no State v. Bickel, (Mo.) 177 SW 310. Homicide in attempted abortion as: Manslaughter generally see supra §

136.

see

the

Murder see supra § 69.
supra
Statutory manslaughter
& 111.
Unborn child as subject of homi-
cide see supra § 5.
8. Andrews v. State, 21 Fla. 598:
State v. Talmage, 107 Mo. 543, 17
SW 990; State v. McKinzie, 102 Mo.
620, 15 SW 149; State v. Wilson, 98
v. El-
SW 985; State
Mo. 440, 11
liott, 98 Mo. 150, 11 SW 566; Peo.
AmR 480;
v. Schryver, 42 N. Y. 1,
Wilson v. Peo., 4 Park. Cr. (N. Y.)
619; Duthey v. State, 131 Wis. 178,
111 NW 222, 10 LRANS 1032; Ter-
rill v. State, 95 Wis. 276, 70 NW
356; Perkins v. State, 78 Wis. 551,

To come within this provision of the statutes, the
killing must not be intentional or with a design
to effect death; and the killing must have been in
Under other statutes it is
the heat of passion.10
manslaughter in the third degree where the homi-
cide is involuntarily committed by the act or cul-
pable negligence of another while engaged in com-
mitting or attempting a trespass or other injury to
private rights or property.11

[150] 5. Fourth Degree. Under some stat-
utes it is manslaughter in the fourth degree where
the killing is involuntary, by any weapon or means
neither cruel nor unusual, in the heat of passion,
in cases other than such as are justifiable or ex-
cusable. 12
Such a statute applies only to a killing

in the heat of passion,13 and which is uninten

(1)
[a] Such a provision applies
where it appears that defendant and
deceased engaged in a sudden quar-
which he had
in
rel, when defendant, who had a hoe
his hand, with
struck
and
been working when the quarrel be-
turned it around
the handle, instead
gan,
deceased with
of the blade. and deceased, at the
time, had a shovel in his hand. State
v. Wilson, 98 Mo. 440, 11 SW 985.
(2) The fact that the shooting and
killing were preceded by a quarrel,
much abusive language, and great
the
verdict
excitement, is sufficient to authorize
of manslaughter in
Perkins v. State, 78

a
third degree.
[b]
Wis. 551, 47 SW 827.
A charge that, if accused in-
feloniously struck
tentionally and
deceased with a dangerous weapon,
in the heat of passion. without de-
sign to effect his death, so that he
was guilty of manslaugh-
died, he
ter in the third degree, unless the
killing was justifiable, correctly de-
fined manslaughter in the third de-
gree. State v. Lane, 158 Mo. 572,
59 SW 965.

[c] Dangerous weapon.-The wea-
pon used must be dangerous in it-
State v. Bloom, 91 Kan. 156,
self.
136 P 951.
9.

State v. Miller. 264 Mo. 395,
175 SW 187; State v. Hanson. 231 Mo.
14. 132 SW 245: State v. McKenzie,
228 Mo. 385, 128 SW 948; State v.
Robertson, 178 Mo. 496, 77 SW 528:
State v. Vinso, 171 Mo. 576. 71 SW
1034: State v. Watson, 95 Mo. 411,
8 SW 383; State v. Dunn, 80 Mo. 681;
State v. Edwards, 70 Mo. 480: Duthey
v. State, 131 Wis. 178, 111 NW 222,
10 LRANS 1032.

а.

V.

State he had not killed him. Barutio, 148 Mo. 249, 49 SW 965. 10. Carlone v. State, 150 Wis. 38, 136 NW 153; Johnson v. State, 129 9 AnnCas 923: Perugi v. State, 104 Wis. 146, 108 NW 55, 5 LRANS 809, [a] "The heat of passion which Wis. 230, 80 NW 593, 76 AmSR 865. what would otherwise will reduce the or exclusively in be murder to manslaughter in the third degree, and which is specified inclusively statutory definitions of other homicidal offenses, is such mental disturbance, caused by a reasonable, adeso overcome and dominate or suspend quate provocation as would ordinarily the exercise of the judgment of an ordinary man as to render his mind for the time being deaf to the voice of reason: make him incapable of forming and executing that distinct intent to take human life essential to murder in the first degree, and to real cause him, uncontrollably, to act from the impelling force of the disturbing of heart or cruelty or Johncause, rather than from any wickednes recklessness of disposition." son v. State, 129 Wis. 146, 160, 108 Such NW 55, 5 LRANS 809, 9 AnnCas 923. [b] Illustrations.-(1) not was that he statute does not apply where a defendant testifies the night angry at deceased, and had no hard feelings toward him on he killed him, as it only applies in case of killing in the heat of passion. Wis. 230, 80 (2) Where Perugi v. State. 104 was an ordinary dispute NW 593, 76 AmSR 865. the quarrel which resulted in the homicide on defendant while he arising because the door of a car was locked was exin which the parties were lodging was out at night for pleasure, and he only testified that he ceedingly angry at the moment of evidence justifying was no there the killing, without any proof of circumstances showing provocation, finding of manslaughter in the Carlone v. State, 150 third degree. Wis. 38, 136 SW 153.

a

a

[c] Self-defense.-This provision of the statute is not intended to apply to a case where accused justiBradley v. State, fies the homicide as one committed in self-defense. 142 Wis. 137, 124 NW 1024; Perugi v. State, 104 Wis. 230, 80 NW 593, 76 AmSR 865.

11. State v. Nash, 63 Kan. 879, 64 P 1025.

The stat[a] Illustrations.-(1) ute does not apply where it appears that defendant was attacked by deceased, who accused him of having lied about him. and that defendant, over against knocked being window and repeatedly struck, drew a dirk knife, and stabbed deceased the wounds proving twice, one of State v. Watson, 95 Mo. 411. could 383. Defendant SW (2) fatal. g be convicted of manslaughter not in the third degree where the proof showed that he shot deceased either in self-defense or with intent to kill, and there was no pretense that he "without a design to effect shot State v. Pettit, 119 Mo. 410, (3) An instruc12. State v. Knoll, 69 Kan. 767 death." 416, 24 SW 1014. tion under Rev. St. (1889) § 3471. 77 P 580; State v. Hostetter, (Mo.) declaring the killing of another in "without a de- 222 SW 750; State v. Conley, 255 Mo. heat of passion to be man- 185, 164 SW 193; State v. Hermann, 117 Mo. 629, 23 SW 1071; State v. sign to effect death," slaughter in the third degree, is not 79 Mo. 441; Jones, State v. 566; called for, where defendant, worsted Berkley, 109 Mo. 665, 19 SW 192; in a quarrel of his own seeking, in State v. Elliott, 98 Mo. 150, 11 SW which he was the manifest aggressor. rose with the exclamation, "I will State v. Umfried, 76 Mo. 404; State v. Curtis, 70 Mo. 594; State v. Ed70 Mo. Roohana 480; fix him anyhow!" went to his house. making wards, returned revolver, a toward the window State, 167 Wis. 500, 167 NW 741; got threats, shot from which he heard deceased prom- Bliss v. State, 117 Wis. 596, 94 NW ise his mother he would not fight. 325; Terrill v. State, 95 Wis. 276, and, on hearing a scream, exclaimed, 70 NW 356; Keenan v. State, 8 Wis. "I got him anyhow," and, when tak- 132. to his bed, said he was

а

en

sorry

V.

13. State v. Hostetter, (Mo.) 222

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SW 750; Perugi v. State, 104 Wis.
230, 80 NW 593, 76 AmSR 865.
14. State v. Goldsby, 215 Mo. 48,
114 SW 500; State v. Wilson, 98 Mo.
440, 11 SW 985; State v. Dunn, 80
Mo. 681; State v. Jones, 79 Mo. 441;
State v. Curtis, 70 Mo. 594; State
v. Edwards, 70 Mo. 480; Beauregard
v. State, 146 Wis. 280, 131 NW 347;
Duthey v. State, 131 Wis. 178, 111
NW 222, 10 LRANS 1032; Johnson
v. State, 129 Wis. 162, 108 NW 55,
5 LRANS 809, 9 AnnCas 923; Do-
herty v. State, 84 Wis. 152, 53 NW
1120. But see Schlect v. State, 75
Wis. 486, 44 NW 509 (holding a con-
viction under such a statute is war-
ranted where deceased applied an
opprobrious epithet to defendant, who
was standing behind the bar of his
saloon, and defendant then started
for deceased, when they clinched, and
deceased got his arm around de-
fendant's neck, and beat him in the
face, or on the head, with the fist
of his other hand, and after strug-
gling in this position for a while,
defendant pulled his revolver from
his breast pocket, held it close to
deceased, and, without taking aim,
fired the fatal shot, defendant tes-
tifying that when he shot he was
strangled and nearly insensible).

[a] Involuntary.-"Manslaughter
in the fourth degree is defined to
be an involuntary killing of a human
being in the heat of passion, etc.
The term involuntary signifies in-
advertence. It is inconsistent with
the wilful shooting of another with
fatal effect. One may so wilfully
shoot, pointing a gun at such other
and discharging it purposely, yet
not aim the weapon at a vital part
of the body in the sense of a mental
and physical operation to that end-
though the presumption without ex-
planation would be to the contrary-
and so without necessarily a spe-
cific design to effect death. But
such an act cannot be deemed in-
voluntary within the meaning of our
statute. It is said elsewhere that
when one voluntarily shoots an-
other fatally, the homicide. cannot
be deemed involuntary." Johnson v.
State, 129 Wis. 146, 157, 108 NW 55,
5 LRANS 809, 9 AnnCas 923.
[b] For example.-(1) Where de-
fendant, on the night of the first
difficulty between himself and de-
ceased, and two weeks before the
last difficulty, made threats of re-
venge, repeated at least twice after-
ward, and down almost to the night
of the crime, and on that night re-
fused to loan his pistol, saying that
he "might want to use it" himself,
it was held not error to refuse to
instruct the jury as to manslaughter
in the fourth degree. State v. Dett-
mer, 124 Mo. 426, 27 SW 1117. (2)
Where, in a prosecution for homicide,
the state contended that defendant
either struck deceased with a lamp
intentionally, or struck the lamp
with his cane intentionally, and thus
caused a fire, which resulted in
decedent's death, while defendant
contended that he hit the lamp ac-
cidently when throwing up his hands,
under the belief that deceased was
throwing the lamp at him, it was
held that the court was justified
in refusing to charge on manslaugh-
ter in the fourth degree under such
a statute. Bliss v. State, 117 Wis.
596, 94 NW 325.

8 Wis. 132.

16

Such a provision of the statutes is held to comprehend that which was voluntary manslaughter at common law,17 as, for example, a killing in a sudden heat of passion aroused by adequate provocation, 18 or the unintentional killing of a person through the negligent handling of a firearm in a way indicating reckless disregard of human life.19 Culpable negligence within the meaning of this provision of the statutes does not require the ex

[a] Hoe handle.-As the jury might consider a hoe handle not a dangerous weapon, they should be instructed on manslaughter in the fourth degree, which is "the involuntary kiling of another by a weapon, or by means neither cruel nor unusual, in the heat of passion." State v. Wilson, 98 Mo. 440, 11 SW 985.

[b] Blow with hand.-Where accused struck deceased across the face with the flat of his hand, killing him, the act was at least manslaughter in the fourth degree, in view of St. (1917) §§ 4363, 4365. Roohana v. State, 167 Wis. 500, 167 NW 741.

[c] "Dangerous weapon" as employed in the definition of manslaughter in the fourth degree has been held to mean a weapon dangerous only as used. State v. Bloom, 91 Kan. 156, 136 P 951.

16. Fla.-Baker v. State, 30 Fla. 41, 11 S 492.

Kan-State v. Schwenk, 101 Kan. 408. 167 P 743.

Mo.-State v. Shuster, 183 SW 296; State v. Conley, 255 Mo. 185, 164 SW 193; State v. Montgomery, 230 Mo. 660, 132 SW 232; State v. Little, 228 Mo. 273, 128 SW 971; State v. Rose, 142 Mo. 418, 44 SW 329; State Hermann, 117 Mo. 629, 23 SW 1071; State v. Jones, 79 Mo. 441; State v. Edwards, 70 Mo. 480.

V.

or did not

Wis.-Beauregard v. State, 146 Wis.
280, 131 NW 347; Bliss v. State, 117
Wis. 596, 94 NW 325; Doherty v.
State, 84 Wis. 152, 53 NW 1120.
[a] Unexpected result.-The fact
that it could not reasonably have
occurred to defendant,
occur to him, that the death of
decedent was a reasonable or prob-
able result of blows inflicted by
him, does not prevent a conviction
of manslaughter in the fourth de-
gree. Baker v. State, 30 Fla. 41,

11 S 492.

[b] Homicide held manslaughter in higher degree.-Where accused shot his wife with a pistol in an alleged insane frenzy, resulting from her alleged misconduct. Duthey v. State, 131 Wis. 178, 111 NW 222, 10 LRANS 1032.

17. State v. Murray, 83 Kan. 148,
110 P 103; State v. Wilson, 242 Mo.
481, 147 SW 98; State v. Eastham,
240 Mo. 241, 144 SW 492; State v.

Montgomery, 230 Mo. 600, 132 S
232; State v.

Little, 228 Mo. 273,
128 SW 971; State v. McKinzie. 102
Mo. 620, 15 SW 149; State v. Stiltz,
97 Mo. 20, 10 SW 614; State v. Gil-
more, 95 Mo. 554, 8 SW 359, 912:
State v. Watson, 95 Mo. 411. 8 SW
383; State v. Partlow, 90 Mo. 608,
4 SW 14, 59 AmR 31.

of passion aroused by such assault he killed defendant, an instruction on manslaughter in the fourth degree would have been given. State v. Canton, (Mo.) 222 SW 448.

[c] If deceased was the aggressor, and by his blows aroused a sudden passion in defendant, and in the sudden quarrel defendant, without malice or premeditation, struck deceased with his knife and killed him, it was only manslaughter in the fourth degree. State v. Rowles, 146 Mo. 6, 47 SW 892, 69 AmSR 598.

State v.

[d] Peace officer.-(1) Where an officer using more force than was reasonably necessary to prevent the rescue of a prisoner, kills one who is attempting such rescue, a condegree may be sustained. viction of manslaughter in the fourth Montgomery, 230 Mo. 600, 132 SW 232. (2) Such provision has been held to apply where a police officer shot deceased while resisting arrest, and used more force than was reasonably necessary to accomplish the arrest, or where, immediately after deceased ceased to resist, the officer, in the heat of passion, engendered by deceased's striking him, shot him intentionally, but without malice. State v. Rose, 142 Mo. 418, 44 SW 329. Voluntary manslaughter see supra §§ 113-133.

18.

State v. Hostetter, (Mo.) 222 SW 750; State v. Canton, (Mo.) 222 SW 448; State v. Fletcher, (Mo.) 190 SW 317; State v. Lewis, 248. Mo. 498, 154 SW 716; State v. Goldsby, 215 Mo. 48, 114 SW 500; State v. Weakley, 178 Mo. 413, 77 SW 525; State v. McKenzie, 177 Mo. 699, 76 SW 1015; State v. Grugin. 147 Mo. LRA 774; State v. Rose, 142 Mo. 418, 39, 47 SW 1058, 71 AmSR 553, 42 44 SW 329; State v. Jones, 79 Mo. 441.

State

heat of passion which is produced by
[a] The heat of passion is "that
a lawful provocation as that term
was understood at common law."
State v. Bulling, 105 Mo. 204, 225,
15 SW 367, 16 SW 830 [quot State
v. Myers, 221 Mo. 598, 121 SW 131].
[b] Personal violence.-(1) Pro-
must consist
vocation
of nothing
less than personal violence.
v. Fletcher, (Mo.) 190 SW 317; State
V. Todd, 194 Mo. 377, 92 SW 674. (2)
Where defendant attacked deceased
striking him with a stone and fled,
the fact that defendant was pursued
by deceased and that his life was
in danger did not justify the killing.
but he is guilty of manslaughter
State v. Wil-
in the fourth degree.
son, 242 Mo. 481, 147 SW 98.

[c] Deceased in act of adultery with defendant's wife.-If deceased was killed by defendant upon being caught in adultery with defendant's wife, before the defendant's heat of passion aroused by the fact had time to cool, he would be guilty of manslaughter in the fourth degree. State V. Fox. 276 Mo. 378, 207 SW 779.

19. State v. Grote, 109 Mo. 345, 19 SW 93; State v. Morrison, 104 Mo. 638, 16 SW 492.

[a] Manslaughter in the fourth degree is "the intentional killing of a human being in the heat of passion, on a reasonable provocation, without malice and without premeditation, under circumstances that will not render the killing justifiable or excusable homicide." State v. Meyers, 221 Mo. 598, 121 SW 131. To same effect State v. Sabastian, 215 Mo. 58, 114 SW 522; State v. McKenzie, 177 [a] One who brandishes a loaded Mo. 699, 76 SW 1015; State v. Her- and self-cocking revolver in a room mann, 117 Mo. 629, 23 SW 1071. where there are other persons, and [b] Illustration.-If defendant af- accidently kills one of them, is ter cooling down and withdrawing guilty of manslaughter in the fourth from an altercation with deceased degree as it indicates carelessness 15. State v. Bloom, 91 Kan. 156, was assaulted by deceased without or recklessness incompatible with a 136 P 951; State v. Wilson, 98 Mo. any additional aggressive action on proper regard for human life. State 440, 11 SW 985; Keenan v. State, his part and in the sudden heat v. Emery, 78 Mo. 77, 47 AmR 92.

istence of gross negligence in the sense of a willful intent to injure or such a reckless disregard of the

rights of others or the consequences as the law deems equivalent to an intent to injure.2

20

20. Clemens v. State, (Wis.) 185 | under St. (1919) §§ 4337, 4363, 4365, |ing to headlights, and the statute NW 209; State v. Horner, 266 Mo. 4367, and a conviction was proper relating to speed, the term "involun109, 180 SW 873. where accused inadvertently ran tary" signifying inadvertence, and [a] Rule applied. One may be into a stationary motortruck with the term "culpable negligence" not properly convicted of manslaughter an automobile while violating St. requiring gross negligence. Clemens the fourth degree, although he (1919) § 1636-52a, subsec. 1, relat- v. State, (Wis.) 185 NW 209. is not guilty of gross negligence,

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