of what occurred until the party was again united after the shooting; but he testified that he heard the firing, and when he and his companion were joined by the rest they, including the defendant, told him that they had suddenly and unexpectedly met the policeman, who ordered them to stop, which order they disobeyed, whereupon he commenced to fire at them, and they returned the fire. He did not, as he says, see the shooting, and, of course, was unable to identify the person who fired the fatal shot.

a tool chest, from which they took some ris says that he has no personal knowledge chisels and tools. Then, following the railroad, they went to a section shanty, and, finding it locked, broke it open and took from it an iron crowbar. Harris says that he carried the crowbar, the defendant a hatchet, and some of the others the chisels, and they proceeded to the main street of the village. According to Harris, when they all got off the train at the station, they spoke of robbing the postoffice, which was on the main street, opposite the store where the shooting occurred. Before reaching this point on the street Harris says he and another of the party separated from the rest, and he threw away the iron bar upon a grass plat, leaving the others with only a hatchet and chisels. From this point Har

Where death unintentionally ensues from acts or means which, under the circumstances, could not have been supposed to injure human life or inflict great bodily injury, the law will not imply malice, and the degree of the crime will be reduced from murder to manslaughter. State v. Johnson, 102 Ind. 247, 1 N. E. 277.

But when one does an act in such a recklessly careless manner that it is calculated to endanger human life, and death ensues, he is guilty of manslaughter, although the death of the person may not have been intended. York v. Com. 82 Ky. 360.

Neither malice nor an intent to kill necessarily enters into the crime of manslaughter, where the death results from an unlawful act designed to effect another result. State V. Pate, 4 Ohio Legal News, 403.

And the apprehension of personal danger in case of refusal does not furnish any excuse for assisting in doing an act which is illegal, so as to prevent a killing done in the execution of such act from being manslaughter. Reg. v. Tyler, 8 Car. & P. 616.

Voluntary and involuntary manslaughter differ from each other in that in the first the unlawful killing is voluntary; that is, the killing is done by design, or intention, or purposely; and in the second the unlawful killing is involuntary;-that is without any design, intention, or purpose of killing, but in the commission of some unlawful act. Adams v. State, 65 Ind. 565.

And involuntary manslaughter differs from homicide excusable by misadventure, in that misadventure always happens in consequence of a lawful act, while involuntary manslaughter happens in consequence of an unlawful one. Bias v. United States (Ind. Terr.) 53 S. W. 471.

b. Statutory provisions as to.

Under the statutes of the various states involuntary manslaughter is variously defined, owing to the varying language of the different statutes, though the meaning of the different definitions would seem to be substantially the same as that of the common-law definition.

Thus, in several of the states the rule is stated to be that an unintentional killing in the commission of an unlawful act constitutes involuntary manslaughter. Siberry v. State, 149 Ind. 684, 39 N. E. 936, 47 N. E. 458;

The testimony of Harris, the accomplice, so far as it relates to the journey of the party on the freight train, the arrival at Cobleskill, the breaking into the coal house and shanties, the procurement of the tools Brown v. State, 110 Ind. 486, 11 N. E. 447; Willey v. State, 46 Ind. 363; Com. v. Mink, 123 Mass. 422, 25 Am. Rep. 109; Goodwin's Case, 6 N. Y. City Hall Rec. 9; Johnson v. State, 66 Ohio St. 59, 61 L. R. A. 277, 90 Am. St. Rep. 564, 63 N. E. 607; Weller v. State, 19 Ohio C. C. 166; State v. Pate, 4 Ohio Legal News, 403; Robbins v. State, 8 Ohio St. 138; Jewell v. Territory, 4 Okla. 53, 43 Pac. 1075.

Or, as it is sometimes more particularly stated, manslaughter is an unintentional destruction of life while the slayer is in the commission of some unlawful act, other than arson, rape, robbery, or burglary; the distinction between it and murder being an absence of an intent to kill. State v. Brooks, 1 Ohio Dec. Reprint, 407.

So, involuntary manslaughter has been defined to consist of the killing of a human being without any intention to do so, but in the commission of an unlawful act, or a lawful act, which probably would produce such a consequence, in an unlawful manner. Studstill v. State, 7 Ga. 14; Bias v. United States (Ind. Terr.) 53 S. W. 471; State v. Lockwood, 119 Mo. 463, 24 N. W. 1015; Com. v. Bilderback, 2 Pars. Sei. Eq. Cas. 447; Com. v. Herold, 3 Pa. Dist. R. 623; Com. v. Kuhn, 1 Pittsb. 13.

And it has also been said to be involuntary manslaughter where a person doing an unlawful act, not amounting to a felony, by accident kills another; or where one kills another without malice, either express or implied, unintentionally, while the slayer is in the unlawful commission of some act not amounting to a felony. State v. Abarr, 39 lowa, 185; State v. Trusty, 1 Penn. (Del.) 319, 40 Atl. 766; State v. Jones, 2 Penn. (Del.) 573, 47 Atl. 1006; State v. Spendlove, 47 Kan. 160, 28 Pac. 994; State v. McNab, 20 N. H. 160; People v. Butler, 3 Park. Crim. Rep. 377; State v. Brooks, 1 Ohio Dec. Reprint, 407; Rowan v. State, 30 Wis. 129, 11 Am. Rep. 559.

And also where it plainly appears that neither death nor bodily harm was intended, but death was accidentally caused by some unlawful act; or by some act which, though perhaps not strictly unlawful in itself, was done in an unlawful manner without due caution. Lee v. State, 1 Coldw. 62; Overby v. State, 115 Ga. 240, 41 S. E. 609; State v. Lockwood, 119 Mo. 463, 24 S. W. 1015; Com. v. Bilderback, 2 Pars. Sel. Eq. Cas. 447; Williams v. State, 83 Ala. 16, 3 So. 616.

These are the material facts upon which the conviction must stand or fall. The case was submitted to the jury in two aspects. The jury was permitted to find that the defendant fired the fatal shot with a deliberate and premeditated design to effect death of the person killed, or procured, aided, counseled, or advised the act which resulted

and crowbar, and the flight of the whole | conceded that he could not have used it party across the country, their concealment after he had received the fatal wound. in barns during the night, and other incidents which he related, was corroborated by abundant proof; but his separation from his associates at the critical time, and his absence from the immediate scene of the homicide, and the alleged statements or admissions made by his associates after the shooting as to the circumstances under which it took place, all rests upon his own state-in his death. The case was also submitted ments. It was shown that the defendant was shot in the hand by a bullet which was subsequently extracted, and another of the party in the shoulder. The dead policeman's revolver was found near his body with five of the six chambers bearing evidence of having been recently discharged, and it is

to the jury upon the theory that they might find from the evidence that the defendant, without deliberation or premeditation, killed the deceased, or aided or abetted in the commission of the homicide while attempting to commit a felony under the last clause of the statute. We cannot know upOverby v. State, 115 Ga. 240, 41 S.

E. 609.

And under N. Y. Penal Code, § 189, a homi- | finding. cide is manslaughter in the first degree when committed without a design to effect death, either by a person committing, or attempting to commit, a misdemeanor, affecting the person or property either of the person killed, or of another. People v. Cole, 2 N. Y. Crim. Rep. 108; People v. Fitzsimmons, 69 N. Y. S. R. 191, 34 N. Y. Supp. 1102.

And under Wis. Rev. Stat. chap. 164, § 8, the killing of a human being without a design to effect death, by the act, procurement, or culpable negligence of another, while such other is engaged in the perpetration of any crime, or misdemeanor, not amounting to a felony, is manslaughter in the first degree. But it is so only when such killing would have been murder at common law. Rowan v. State, 30 Wis. 129, 11 Am. Kep. 559.

And in charging with reference to the Revised Statutes, the part referring to any attempt to perpetrate any such crime or misdemeanor, in cases in which such killing would be murder at common law, should not be omitted, upon the theory that that portion belongs to and exclusively qualifies the last clause of the section, and has no relation whatever to the antecedent clause; such construction being incorrect and inadmissible. Ibid.

So, to constitute the offense of manslaughter under the lowa statute, the killing need not have been the result of an intentionally unlawful purpose or act against the person killed, or some other person. State v. Vance, 17 Iowa, 138.

And the intentional application of unlawful force, whereby death ensues, though there may have been no specific intention to kill, and though the weapon used was not one ordinarily calculated to produce death, is manslaughter in the first degree under Ala. Code, §§ 3084,

3085. McManus v. State, 36 Ala. 285.

c. The preliminary unlawful act.

1. Its nature; what is unlawful generally.

While a person in the pursuit of an unlawful act may sometimes be punished for another act done without design and by mistake, if the act done was one for which he could have been punished if done wilfully, the act, to be unlawful in this sense, must be an act bad in itself and done with an evil intent; there being a distinction between acts merely malum prohibitum and acts malum in se. Com. v. Adams, 114 Mass. 323, 19 Am. Rep. 362.

Acts malum in se, in the pursuit of which one may be punished for another act done without design and by mistake, include, in addition to felonies, all breaches of public order, injury to person or property, outrages upon public decency or good morals, and breaches of official duty when done wilfully or corruptly; and acts malum prohibitum, in the pursuit of which one may not be punished for another act done without design or by mistake, include any matter forbidden or commanded by statute, but not otherwise wrong. Ibid.

And where an ordinance declares a certain

thing to be illegal, it is illegal to do it without reference to a wrong motive, and it may be violated where there is an entire want of design, and such violation, therefore, does not in itself supply the intent to do another act which requires a criminal intent to be proved, so as to render one punishable for the latter act. Ibid.

But the fact that an act which caused the death of another was not a misdemeanor at common law does not prevent death resulting act is made a misdemeanor by statute. People therefrom from being manslaughter, where the v. Abbott, 116 Mich. 263, 74 N. W. 529.

killing another unintentionally while the slayer Though to convict one of manslaughter for

is in the commission of some unlawful act within the meaning of the Ohio statute, the latter act must be shown to be one of violation of some statute law of the state. Weller v. State, 19 Ohio C. C. 166; Johnson v. State, 66 Ohio St. 59, 61 L. R. A. 277, 90 Am. St. Rep. 564, 63 N. E. 607.

Involuntary manslaughter in the commission of a lawful act, however, is not punishable in Georgia, unless such act is done without due caution and circumspection; and where one is indicted for involuntary manslaughter in the commission of an unlawful act, and the jury find the defendant guilty of involuntary manslaughter in the commission of a lawful act, the judgment thereon should be arrested, since the ingredient of the absence of due caution It is not sufficient that the act is a crime and circumspection is wholly lacking in the 'at common law, or that it is grossly negligent.

on which of these theories the jury based | sion of, or in the attempt to commit, a felthe verdict, and, therefore, the prosecution ony. The authorities do not support this must show that the proof justified the court contention. The law is now settled that in submitting the case in both aspects, and under an indictment in the common-law that there was evidence upon which the form the prosecution may prove facts to jury could find that the homicide was com- bring the case within any of the provisions mitted while the defendant was engaged in of the statute defining murder in the first an attempt to commit a felony, and that the degree. People v. Giblin, 115 N. Y. 196, 4 act was the result of deliberation and pre- L. R. A. 757, 21 N. E. 1062; People v. 08meditation. The learned counsel for the de- mond, 138 N. Y. 80, 33 N. E. 739; People v. fendant contends that these two theories of Constantino, 153 N. Y. 24, 47 N. E. 37; Cox the case could not have been submitted to v. People, 80 N. Y. 500; People v. Meyer, the jury upon a common-law indictment, but 162 N. Y. 357, 56 N. E. 758; People v. Wilthat the facts should have been alleged in lett, 102 N. Y. 254, 6 N. E. 301; People v. order to bring the case within that clause of Conroy, 97 N. Y. 62; Keefe v. People, 40 N. the statute which declares it to be murder Y. 348: Kennedy v. People, 39 N. Y. 245; in the first degree to commit the homicide Fitzgerrold v. People, 37 N. Y. 413; People when the accused is engaged in the commis- v. White, 22 Wend. 176. Johnson v. State 66 Ohio St. 59, 61 L. R. A. 277, 90 Am. St. Rep. 564, 63 N. E. 607.

And where one person kills another while engaged in an assault in the third degree upon him, to constitute the act manslaughter it is not necessary that he should have intended to violate the law; since the law presumes that every person knows its provisions, and he should have anticipated the consequences of his own act.

l'eople v. Fitzsimmons, 69 N. Y. S. R. 191, 34 N. Y. Supp. 1102.

But while involuntary homicide, perpetrated in the commission of some unlawful act, is manslaughter, though the death of the person killed is not wilful or intended, yet the unlawful act must be wilful, and not a mere misadventure. Robbins v. State, 8 Ohio St. 138.

|lent means, though in the doing of it he is engaged in an assault and battery upon her, which is a misdemeanor, he is not guilty of manslaughter in the first degree as defined by 2 N. Y. Rev. Stat. § 661, since that provision contemplates some other misdemeanor than that which is an ingredient of the imputed offense; and a charge to the jury in a prosecution therefor that, if the deceased came to her death by reason of blows or injuries inflicted upon her, not in self-defense, nor excusable or justifiable, the defendant should be found guilty of manslaughter in the first degree, is erroneous. People v. Butler, 3 Park. Crim. Rep. 377.

In State v. Spendlove, 47 Kan. 160, 28 Pac. 994, however, it was held that to bring a case within manslaughter in the first degree, under Kan. Gen. Stat. 1881, p. 2133, providing that

2. Rule that it must not be an ingredient of the killing of a human being without a de

the killing.

The rule has been laid down that to convict a person for homicide in killing a human being without the design to effect death, while engaged in the perpetration of, or attempt to perpetrate, a crime or misdemeanor not amounting to a felony; or in cases where such killing would be murder at common law, under statutes providing therefor, the accused must have been guilty of some offense other than violence to the person killed; the crime or misdemeanor which he was, perpetrating, or attempting to perpetrate, must have been one which was not a part or an ingredient of the offense charged. State v. Downs, 91 Mo. 19, 3 S. W. 219; State v. Sloan, 47 Mo. 604; People v. Rector, 19 Wend. 569; People v. Butler, 3 Park. Crim. Rep. 377; People v. Skeehan, 49 Barb. 217; McManus v. State, 36 Ala. 285.

And the rule that, in order to bring a case within the definition of manslaughter in the first degree under the New York statutes, it is necessary to show that the accused was committing, or attempting to commit, some other offense than that of intentional violence upon the person killed, applies to a case in which the accused struck the deceased a blow which would not have produced death, but which caused temporary insensibility, so that when deceased fell, or was knocked into the canal, by its force, he was unable to help himself, and was drowned. Wilson v. People, 4 Park. Crim. Rep. 619.

And where a husband kills his wife by vio

sign to effect death, by the act, procurement, or culpable negligence of another, while such other is engaged in the perpetration, or attempt to perpetrate, any crime or misdemeanor, not amounting to a felony, in a case in which such killing would be murder at common law, shall be deemed manslaughter in the first degree,— it is not necessary to show that the accused was committing, or attempting to commit, some misdemeanor other than intentional violence upon the person killed; the statute being expressly applicable to all crimes or misdemeanors not amounting to a felony, of which an assault and battery is one, intentional violence upon the person killed not being excluded.

In the above case State v. Sloan, 47 Mo. 604; People v. Butler, 3 Park. Crim. Rep. 377; People v. Skeehan, 49 Barb. 217; and People v. Rector, 19 Wend. 605, supra,-were disapproved, the court saying of the New York cases that they were decisions of an inferior court, excepting People v. Rector, and in that case Cowen, J., expressed one opinion and Bronson, J., delivered a different opinion, and the chief justice finally decided the case proper, agreeing with Bronson, J., but saying little, if anything concerning the construction of the statute relating to manslaughter in the first degree; and the court expressly refused to follow the construction put on the Missouri statute, from which the Kansas statute was taken in exact terms, on the ground that at the time of its adoption the Missouri courts had not yet construed it.

And in Darry v. People, 10 N. Y. 120, it was

PEOPLE V. SULLIVAN.

383

In one of the barns where defendant and commission his confederates were their flight from the scene of the homicide concealed a bottle of nitroglycerine was found, which was evidently left there by the party, and the possession of this substance, with the tools and implements already described, proved, as is contended, that the party had planned and were about to commit a bur-as to constitute an attempt to commit burglary when they came upon the deceased. This conclusion is, doubtless, supported by the evidence, and the jury could have found that the design of the party was to break into the postoffice, but, when the firing cominenced Harris, the accomplice, according to his statement, had separated from the rest, and had thrown away the crowbar, their most formidable instrument for use in the said that the New York statute similar in terms is made expressly applicable to all crimes and misdemeanors not amounting to a felony, and that an assault and battery is one, and that the statute nowhere confines the rule to offenses other than intentional violence.

the hatchet, and so far were prepared to of during While the parties still had the chisel and this intended burglary. make the attempt to break into the building, it is certain that no overt act was committed to that end, and the question is whether the purpose and intent of the parties had yet reached such a stage of action

And in People v. McKeon, 31 Hun, 449, it was held that an indictment for manslaughter in the first degree against a man who had repeatedly demanded that the proprietress of a saloon give him liquor, and on refusal struck her a severe blow which caused her death, is not subject to the objection that, in order to constitute manslaughter in the first degree, it is necessary to show that the accused was committing, or attempting to commit, some offense other than that of intentional violence upon the person killed.

In the above case People v. Butler, 3 Park. Crim. Rep. 377, supra, was criticised, the court saying that Judge Strong, who had expressed the views of the majority, cited no authority except the opinion of Bronson, J., in People v. Rector, 19 Wend. 605, supra, and that that was a dissenting opinion and in conflict with the opinion of Cowen, J., in the same case, and of Parker, J., in Darry v. People, 10 N. Y. 161, supra, and that Buel v. People, 78 N. Y. 492, 34 Am. Rep. 555, supra, III. e, 3, in which the court of appeals affirmed the decision of the general term reported in 18 Hun, 492, overruled the Butler Case.

Likewise, in Rowan v. State, 30 Wis. 129, 11 Am. Rep. 559, it was held that the language of the Wisconsin statute, which is similar to that above cited is applicable to a case in which the party causing death was engaged in committing an assault and battery on the person killed, refusing to follow People v. Rector, 19 Wend. 569; People v. Butler, 3 Park. Crim. Rep. 377, and People v. Skeehan, 49 Barb. 217,

supra.

3. In particular cases.

(a). Games, sports, and athletic performances. If a man is playing a friendly game according to the rules and practice of the game, and not going beyond it, and his act causes the death of another, it may be inferred that he is not actuated by any malicious motive or intention, and that he is not acting in a manner which he knows will be likely to be productive of death or injury; but, independently of such rules, if 63 L. R. A.

glary within the meaning of the statute deif they had entered the building, and while fining murder in the first degree. Of course, there, or in attempting to escape, had killed the watchman, although in self-defense, or in order to save their own lives, plainly the act would be murder in the first degree; and, if there is no substantial distinction between that case and the one at bar, then it tends, in acting as he does, to produce serious injury, or is indifferent and reckless he intends to cause serious hurt, or if he inwhether he will produce serious injury or not, he will be criminally responsible. Bradshaw, 14 Cox C. C. 83. Reg. v.

as to

dangerous sport kills
slaughter, though the killing is by accident.
And where one engaged in an unlawful and
another, it is man-
road, though the running is not reckless, or
State v. Vines, 93 N. C. 493, 53 Am. Rep. 466.
furious, or grossly negligent.
This applies to horse racing on
State, 131 Ala. 18, 31 So. 725.
a public
Thompson v.

friendly game, who commits an unlawful act
by which death is caused to another, is guilty
And, one of several players engaged in a
C. C. 83.
of manslaughter. Reg. v. Bradshaw, 14 Cox

by the law of the land, so as to relieve the
And no rules of practice of any game what-
ever can make that lawful which is unlawful
thereby.
person performing the unlawful act from crim-
inal liability for the death of a person caused
Ibid.

And where, in a game of football, a party
party on the other side, who was running to-
on one side was dribbling the ball in the di-
rection of the goal, when he was met by a
ward him to get the ball, or to prevent its
further progress, and such party, by way of
stomach, whereby his death was caused, his
charging the one having the ball, jumped in
the air and struck him with his knee in the
act was unlawful, and he is guilty of man-
slaughter. Ibid.

So, the latitude given to athletic exercises
when conducted merely as a diversion among
fights, public boxing matches, and the like, in
friends must not be extended to legalize prize
which the exhibition for the purpose of profit
is calculated to draw together numbers of idle,
skill in boxing, and is also urged on by taunts,
disorderly people; and where one is challenged
to fight with an adversary for a public trial of
although the occasion is sudden, yet if he
kills his opponent, he is guilty of manslaughter.
Ward's Case, 1 East P. C. 270.

to the act of one party to a ring or prize fight
And a homicide traceable directly and fairly
upon the other, is manslaughter.
or sparring exhibition, while engaged in the
commission of an assault in the third degree
People v.

must follow that it was properly submitted | St. Rep. 732, 25 N. E. 412; Mackesey v. Peoto the jury. Whether the defendant and his ple, 6 Park. Crim. Rep. 114; Com. v. Jacobs, associates were at the time of the homicide actively engaged in an attempt to commit a felony, within the meaning of the statute defining murder, is a question that seems to me not entirely free from doubt. None of the cases cited on this point by the learned counsel for the people are quite like this. Some of them, it is true, bear a close resemblance to it, while others differ widely. In none of them was the question involved with respect to what acts constitute an "attempt to commit a felony" within the meaning of the statute defining murder. People v. Lawton, 56 Barb. 126; McDermott v. People, 5 Park. Crim. Rep. 104; People v. Moran, 123 N. Y. 254, 10 L. R. A. 109, 20 Am. Fitzsimmons, 69 N. Y. S. R. 191, 34 N. Y. Supp.