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than manslaughter.

Taylor's case.

Snow's case.

after the parties are heated by the contest, one kill the other with a deadly weapon, it will only amount to manslaughter. (z) But we have seen that the conclusion would be different if there were any previous intention or preparation to use such a weapon in the course of the affray. (a)

John Taylor, a Scotch soldier, and two other Scotchmen, were drinking together in an alehouse, when some servants to the owner of the house, who were also drinking in another box, abused the Scotch nation, and used several provoking expressions towards Taylor and his company, on which Taylor struck one of the servants with a small rattan cane, not bigger than a man's little finger, and another of the Scotchmen struck the same servant with his fist: the servant who was struck went out of the room into the yard, to fetch his fellow-servants to turn Taylor and his company out of the room; and, in the mean time, an altercation ensued between Taylor and the deceased, who was the owner of the house, but not the occupier, and who had come into the room after the servant went into the yard. He insisted that Taylor should pay for his liquor, and go out of the house; and Taylor, after some further altercation, was going away, when the deceased laid hold of him by the collar, and said, "he should not go away till he had paid for the liquor;" and then threw him down against a settle. Taylor then paid for the liquor; whereupon the deceased laid hold of him again by the collar, and shoved him out of the room into the passage: and Taylor then said, "that he did not mind killing an Englishman more than eating a mess of crowdy." The servant, who had been originally struck with the cane, then came and assisted the deceased, who had hold of Taylor's collar; and together they violently pushed him out of the door of the alehouse: whereupon Taylor instantly turned round, drew his sword, and gave the deceased the mortal wound. This was adjudged manslaughter. (b)

In another case of a similar kind, where the jury had found the prisoner guilty of murder, the following facts were stated for the opinion of the judges. The prisoner, whose name was William Snow, and who was a shoemaker, lived in the same neighbourhood as the deceased, and at no great distance from him. On the afternoon of the day mentioned in the indictment, the prisoner, very much intoxicated by liquor, passed accidentally by the house of the deceased's mother, while the deceased was thatching an adjacent barn. They entered into conversation: but on the prisoner's abusing the mother and sister of the deceased, very high words arose on both sides, and they placed themselves in a posture to fight. The mother of the deceased, hearing them quarrel, came out of her house, threw water over the prisoner, hit him in the face with her hand, and prevented them from boxing. The prisoner went into his own house; and in a few minutes came out again, and sat himself down upon a bench before his garden gate, at a small distance from the door of his house, with a shoemaker's knife in his hand, with which he was cutting the heel of a shoe. The deceased having finished his thatching, was returning, in his way home, by the prisoner's house: and on passing the prisoner, as he sat on the bench, the deceased called out to him,

(z) 1 East, P. C. c. 5, s. 26, p. 243.
(a) Ante, p. 531.

(b) Rex v. Taylor, 5 Burr. 2793. 1 Hawk. P. C. c. 31, s. 39.

"Are not you an aggravating rascal?" The prisoner replied, "What will you be, when you are got from your master's feet?" On which the deceased seized the prisoner by the collar, and dragging him off the bench, they both rolled down into the cartway. While they were struggling and fighting, the prisoner underneath, and the deceased upon him, the deceased cried out, "You rogue, what do you do with that knife in your hand?" and made an attempt to secure it; but the prisoner kept striking about with one hand, and held the deceased so hard with the other hand, that the deceased could not disengage himself. He made, however, a vigorous effort, and by that means drew the prisoner from the ground; and during this struggle the prisoner gave a blow, on which the deceased immediately exclaimed, "The rogue has stabbed me to the heart; I am a dead man ;" and expired. Upon inspection, it appeared that he had received three wounds, one very small on the right breast; another on the left thigh, two inches deep, and half an inch wide; and the mortal wound on the left breast. After great argument and consideration, the judges determined that the offence was only manslaughter. (c)

It appears that the judges thought in this case, that there was not sufficient evidence that the prisoner lay in wait for the deceased, with a malicious design to provoke him, and under that colour, to revenge his former quarrel, by stabbing him, which would have made it murder. On the contrary, he had composed himself to work at his own door, in a summer's evening; and when the deceased passed by, neither provoked him by word or gesture. The deceased began first by ill language, and afterwards by collaring and dragging him from his seat, and rolling him in the road. The knife was used openly before the deceased came by, and not concealed from the bystanders: though the deceased in his passion did not perceive it till they were both down. And though the prisoner was not justifiable in using such a weapon on such an occasion, yet it being already in his hand, and the attack upon him very violent and sudden, the judges thought that the offence only amounted to manslaughter; and the prisoner was recommended for a pardon. (d)

Upon an indictment for maliciously cutting, it appeared that the Kessal's case. prisoner and the prosecutor, both being intoxicated, a quarrel ensued; the prosecutor struck the first blow, and they fought for a few minutes, when the prisoner ran back a short distance, and the prosecutor pursued, and overtook him, on which the prisoner, who had taken out his knife in his retreat, gave the prosecutor a cut across the abdomen. Park, J. A. J., "The question I shall leave to the jury is this, whether the prisoner ran back with a malicious intention of getting out his knife to inflict an injury on the prosecutor, and so to gain an advantage in the conflict? for if he did, notwithstanding the previous fighting between them on equal terms, and the prosecutor having struck the first blow, I am of opinion that if death had ensued, the crime would have been murder: or whether the prisoner, bona fide, ran away from the prosecutor with intention to escape from an adversary of superior strength, but finding himself pursued, drew his knife to defend himself? as in this latter case, if

(c) Rex v. Snow, 1 Leach, 151.

(d) 1 East, P. C. c. 5, s. 26, p. 245, who cites Sergeant Foster's MS.

Third person interfering in

the combat of others.

Interfering

with intent to part combatants.

the prosecutor had been killed, the crime would have been mslaughter only." (e)

It is said, that he shall be adjudged guilty of manslaughtr, who, seeing two persons fighting together on a private quarrel, whether sudden or malicious, takes part with one of them, and kills the other. (f) And it seems clear that if a master, maliciously intending to kill another, take his servants with him without acquainting them with his purpose, and meet his adversary, and fight with him, and the servants, seeing their master engaged, take part with him, and kill the other, they would be guilty of manslaughter only, but the master of murder. (g) From this it follows, a fortiori, that if a manservant or friend, or even a stranger, coming suddenly, and seeing him fighting with another man, side with him, and kill the other man, or seeing his sword broken send him another, wherewith he kills the other man, such servant, friend, or stranger, will be only guilty of manslaughter. (h) But this supposes that the person interfering does not know that the fighting is upon malice; for though if A. and B. fight upon malice, and C., the friend or servant of A., not being acquainted therewith, come in and take part against B., and kill him, this (though murder in A.) is only manslaughter in C.: yet it would be otherwise, if C. had known that the fighting was upon malice, for then it would be murder in both. If A., having been assaulted, retreats as far as he can, and then his servant kills the assailant, it will be only homicide se defendendo: but if the servant had killed him before the master had retreated as far as he could, it would have been manslaughter in the servant. And the law is the same in the case of the master killing the other in defence of the servant. (¿)

If two persons be fighting, and another interfere with intent to part them, but do not signify such intent, and he be killed by one of the combatants, this is but manslaughter. (k) And if a third person should take up the cause of one who has been worsted in mutual combat, and should attack the conqueror, and be killed by him, the killing would, it seems, be manslaughter. A. and B. were walking together in Fleet-street, and B. gave some provoking language to A., who, thereupon, gave B. a box on the ear, upon which they closed, and B. was thrown down, and his arm broken. Presently B. ran to his brother's house, which was hard by; and C., his brother, taking the alarm, came out with his sword drawn, and made towards A., who retreated ten or twelve yards; and C. pursuing him, A. drew his sword, made a pass at C., and killed him. A. being indicted for murder, the Court directed the jury to find it manslaughter, not murder, because it was upon a sudden falling out, not se defendendo, partly because A. made the first breach of the peace by striking B.; and partly because, unless he had fled as far as might be, it could not be said to be in his own defence; and it ap

(e) Rex v. Kessal, 1 C. & P. 437. Rex v. Taylor, supra, note (b), and Rex v. Snow, supra, note (c), had been cited for the prisoner.

(f) Hawk. P. C. c. 31, s. 35.

(g) 1 Hawk. P. C. c. 31, s. 55. 1 Hale, 438. Plow. Com. 100 b. Rex v. Salisbury.

(h) 1 Hawk. P. C. c. 31, s. 56. 1 East,

P. C. c. 5, s. 58, p. 290.

(i) 1 East, P. C. c. 5, s. 58, p. 292, and the authorities there cited. 1 Hale, 484. So Tremain says, that a servant may kill a man to save the life of his master, if he cannot otherwise escape. 21 H. 7, c. 39. Plowd, Com. 100. i MS. Sum.

(k) East, P. C. c. 5, s. 59, p. 292. Kel. 66.

peared plainly upon the evidence, that he might have retreated out of danger, and that his stepping back was rather to have an opportunity to draw his sword, and with more advantage to come upon C., than to avoid him; and accordingly, at last, it was found manslaughter. (1)

Where, upon an indictment for wounding under the 9 Geo. 4, c. 31, it appeared that the prisoner and the prosecutor's brother were fighting, and the prosecutor laid hold of the prisoner in order to prevent him from beating his brother, and held him down on a locker, but did not strike him, and the prisoner then stabbed him ; the jury were directed that if they were of opinion that the prosecutor did nothing more than was necessary to prevent the prisoner from beating his brother, the crime, if death had ensued, would have been murder; but if they thought that the prosecutor did more than was necessary to prevent the prisoner from beating the brother, or that he struck any blows, then it would have been manslaughter.(m) A party of men were playing at bowls, when two of them fell out and quarrelled; and a third man who had not any quarrel, in revenge of his friend, struck the other with a bowl, of which blow he died; and this was held manslaughter, because it happened upon a sudden motion in revenge of his friend. (n) But it must be intended that the two men who fell out were actually fighting together at the time; for if words only had passed between them, it would have been murder; nothing but an open affray or striving being such a provocation to one person to meddle with an injury done to another as will lessen the offence to manslaughter, if a man be killed by the person so meddling. (0)

Though Lord Hale and others appear sometimes to intimate a distinction between the interference of servants and friends, and that of a mere stranger, yet the limits between them do not ap

pear to be any where actually defined. And it has been observed,

that the nearer or more remote connexion of the parties with each other seems to be more a matter of observation to the jury as to the probable force of the provocation, and the motive which induced the interference, than as furnishing any precise rule of law grounded on such a distinction. (p)

on another.

As a blow aimed with malice at one individual, and by mistake Blow intended or accident falling upon another and killing him, will amount to for one indimurder; (q) so if a blow intended against A. and lighting on B. vidual lighting arose from such a sudden transport of passion as, in case A. had died by it, would have reduced the offence to manslaughter, the fact will admit of the same alleviation, if it should happen to kill B. (r)

A widow, finding that one of her sons had not prepared her dinner as she had directed him to do, began to scold him, upon which he made her some very impertinent answers, which put her in a passion, and she took up a small piece of iron used as a poker, intending to frighten him, and seeing she was very angry he ran

(D) 1 Hale, 482, 483. A case at Newgate, 1671.

(m) Rex v. Bourne, 5 C. & P. 120, Parke, J. J.

(n) 12 Rep. 87.

(0) See the opinion of the Judges in

Rex v. Huggett, Kel. 59, and 1 East, P. C.
c. 5, s. 89, p. 328, 329.

(p) 1 East, P. C. c. 5, s. 58, p. 292.
(q) Ante, p. 539.

(r) Fost. 262.

Brown's case.

towards the door of the room, when she threw the poker at him and it happened that the deceased was just coming in at the moment, and the iron struck him on the head, and caused his death; Park, J. A. J., to the jury "No doubt this poor woman had no more intention of injuring this particular child than I have, but that makes no difference in law. If a blow is aimed at an individual unlawfully-and this was undoubtedly unlawful, as an improper mode of correction-and strikes another and kills him, it is manslaughter, and there is no doubt, if the child at whom the blow was aimed had been struck, and died, it would have been manslaughter, and so it is under the present circumstances." (s)

A quarrel arose between some soldiers and a number of keelmen at Sandgate; and, a violent affray ensuing, one of the soldiers was stripped, and a party of five or six came up and beat him cruelly. A woman called out from a window, "You rogues, you will murder the man!" The prisoner, who was a soldier, had before driven part of the mob down the street with his sword in the scabbard; and on his return, seeing his comrade thus used, drew his sword, and bid the mob stand clear, saying, he would sweep the street; and, on their pressing on him, he struck at them with the flat side of the sword several times; upon which they fled, and he pursued them. The soldier who was stripped got up, and ran into a passage to save himself. The prisoner returned, and asked if they had murdered his comrade; and the people came back, and assaulted him several times, and then ran from him. He sometimes brandished his sword; and then struck fire with the blade of it upon the stones of the street, calling out to the people to keep off. At this time the deceased, who had a blue jacket on, and might be mistaken for a keelman, was going along about five yards from the soldier; but, before he passed, the soldier went to him, and struck him on the head with his sword, of which blow he almost immediately expired. It was the opinion of two witnesses that, if the soldier had not drawn his sword, they would both of them have been murdered. The judges were clearly of opinion that this was only manslaughter. (t)

SECT. III.

Cases of Resistance to Officers of Justice; to Persons acting in their
Aid; and to Private Persons lawfully interfering to apprehend
Felons, or to prevent a Breach of the Peace.

IT has been before mentioned as a general rule, that where persons having authority to arrest or imprison, and using the proper means for that purpose, are resisted in so doing, and killed, it will be murder in all who take part in such resistance. (u) But this protection of the law is extended only to persons who have proper

(s) Rex v. Conner, 7 C. & P. 438, P. C. c. 5, s. 27, p. 245, 246.
Park, J. A. J., and Gaselee, J.
(u) Ante, p. 532.

(t) Brown's case, 1 Leach, 148. 1 East,

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