in finding that the defendant killed the deceased from a deliberate and premeditated design to effect his death. If it was not, then the case should not have been submitted to the jury under the 1st clause of the statute defining murder. the person killed. Since both theories were the proof was sufficient to warrant the jury submitted to the jury, they must find support in the proofs; and, as there was no proof to show that the defendant fired the fatal shot, it was necessary to show that the whole party was acting in concert under an agreement or conspiracy, not only to commit a felony, but to take human life if thought necessary. All we know about the circumstances immediately preceding the homicide is based upon the statement or admissions of some one of the party, testified to by Harris, the accomplice, that they came suddenly upon the policeman, who commanded them to stop, and upon the refusal to do so he commenced to firc, and the defendant's party returned the fire, which resulted in the death. The question arises here whether deadly weapon used, in such case, the slayer can be guilty of nothing more than manslaugh ter. State v. Cochran, 147 Mo. 504, 49 S. W. 558; Beal's Case, 6 N. Y. City Hall Rec. 59. And where two men fight upon a sudden quarrel, and one kills the other, the chances being equal and no undue advantage having been taken, it is manslaughter, and not murder. State v. Massage, 65 N. C. 480; State v. Floyd, 51 N. C. (6 Jones L.) 392. And this without reference to the question, Who made the first assault? State v. Floyd, 51 N. C. (6 Jones L.) 392. And if one person challenges another to fight with fists, or engage in a personal encounter, without intent to kill, and the other accepts, and death results to one of them in the fight, the offense cannot be greater than manslaughter, though, if the combat is entered into for the purpose of killing, it might be murder; and the jury in a prosecution for such killing should be informed as to this phase of the law. Stringfellow v. State, 42 Tex. Crim. Rep. 588, 61 S. W. 719. So, one, who, after a difficulty with another, arms himself and returns for the purpose of killing him, is engaged in an unlawful act; and where a third party interferes to arrest this unlawful act, and in the scuffle incident to the interference he is accidentally shot by the defendant and killed, though the killing is a misadventure, it cannot be claimed that the heat of passion produced by the interference mitigates the homicide to manslaughter. Holmes v. State, 88 Ala. 26, 16 Am. St. Rep. 17, 7 So. 193. And one who seeks another with a view to provoke a quarrel, or bring on a difficulty with him, is not acting lawfully in doing so; and in such case he cannot avail himself of the plea of self-defense in killing the other, if he kills him in the difficulty so sought, though such killing may be necessary to preserve his life or his person from imminent and great danger. State v. Murdy, 81 Iowa, 603, 47 N. W. 867; State v. Benham, 23 Iowa, 154; State v. Neeley, 20 Iowa, 108. Failure to charge as to mutual combat in a murder case is not subject to objection by the accused, though there is evidence warranting it since such a charge would be against him. Clark v. State (Tex. Crim. App.) 76 S. W. 573. The proof in the case does not show that the party had any well-defined plan in mind when they left Albany. It does show, or tend to show, that some or all of them were more or less intoxicated, and, while that does not excuse the act, it bears upon the question of intent, deliberation, and premeditation. It is evident enough that they were not professional, or at least skilled, burglars, since if they were they would not be likely to trust to the chance of procuring (c). Other miscellaneous matters. The foregoing general rules would seem to be usually, if not universally, applicable to all the other varying facts of the different cases in which the question of legality or illegality with reference to involuntary manslaughter is involved. The Thus, a person in not chargeable with a death which ensued by reason of the single fact of his having attempted to pass through a tollgate without paying his toll, on the theory that the act was unlawful; such act done in the exercise of due care is, at worst, merely malum prohibitum, in itself devoid of dangerous tendency, and, therefore, not criminal. mere unlawfulness of the act does not, in that class of cases, per se render the doer of it able criminally for undesigned and improbable consequences; it must also appear, to render him liable, that he did the unlawful act in question under conditions that were dangerous to the tollgate keeper, such as that he drove through the gate at a rapid pace, or urged his team on after it had been seized by the deceased, or that from their known fractiousness it was hazardous to stop them; the criminality consisting of the two elements of the unlawfulness of the act and the unlawfulness and danger in the mode of its execution. Estell v. State, 51 N. J. L. 182, 17 Atl. 118. Nor is the simple act of persons getting to gether to drink, and one pressing another to do so, an unlawful act; or, if death ensues, an offense that can be construed into manslaughter. Reg. v. Packard, Car. & M. 236. But an intent to hold possession of property by a show of arms, though for intimidation only, is unlawful, and draws to itself the consequences of acts done in carrying it into execution, so as to render the person doing it criminally liable for the killing of a person resulting therefrom. 251, 2 Atl. 191. Weston v. Com. 111 Pa. And where two persons, with the intention of using such force as might be required to expel another from premises of which he was in possession, and upon which he was erecting a house, and to demolish the house, killed him in so doing, they are guilty of manslaughter; since their coming to the house for the purpose of forcibly pulling it down and putting him out was an unlawful act. People v. Honshell, 10 Cal. 83. the necessary tools for their purpose at the place where their operations were to be carried on, or to throw away the crowbar before they had reached the building that they had designs upon. They were criminals, no doubt, of some grade or capacity, but the whole transaction from beginning to end tends to show that they were of an inferior order, without much skill, experience, or ability. They were really a band of tramps, probably intoxicated, bent upon some mischief, but precisely what it was it is very difficult to gather from the proofs. Aside from the testimony of the accomplice as to the talk among themselves, there is as much reason to believe that they had designs upon the bank or any other building in the vicinity as upon the postoffice. Since there is no | And a kick is not a justifiable means of eject ing a trespasser from one's house; and, if a person becomes excited, and gives another a kick for the purpose of ejecting him, it is an unjustifiable act; and, if such person dies from injuries received, the one kicking him is guilty of manslaughter. Wild's Case, 2 Lewin C. C. 214. And where a person, with about thirty others, entered with force into another person's house and ejected him, and on the night of the third day afterwards the son of the person ejected, with about twenty others, returned with weapons with the intent to re-enter, and one of them cast fire into a thatched house adjoining the mansion, whereupon one of the trespassing party fired a gun and killed one of the owner's party, the rest of whom retired leaving the trespasser in possession,-the act is manslaughter in all of the trespassing company, because their entry and force were illegal. Basset's Case, 1 East P. C. 259, 1 Hale P. C. 440, 1 Hawk. P. C. 728. So, an attempt by one person, though having the right to the possession of a gun held by another, to take it by force, is unlawful; and where the discharge of the gun occurs in such attempt, which causes the death of the person holding it, as a result of the unlawful act, the person doing the act is guilty of manslaughter. Reg. v. Archer, 1 Fost. & F. 351. And where a woman engaged to be married, upon the man to whom she is engaged expressing his intention to break off the engagement and abandon her, attempts to shoot herself, with the intention of taking her own life, and the man attempts to prevent her from doing so, and in the struggle between them the pistol is accidentally discharged and the man is killed, her attempt to commit suicide is an unlawful act, and she is guilty of the crime of manslaughter. Com. v. Mink, 123 Mass. 422, 25 Am. Rep. 109. And the mere repeal of a law prescribing a penalty for suicide, or attempt to commit sui cide does not prevent suicide from being unlawful and criminal, so as to prevent the killing of another in an attempt to commit suicide from being a homicide in the commission of an unlawful act. Ibid. Where, however, a person, hearing a noise outside his house in the night, went out and, seeing an object, shot at it, and it proved to proof in the case to identify the person who fired the fatal shot the defendant's legal responsibility for the homicide must rest upon the fact that he was one of a party that had entered into a joint agreement, conspiracy, or confederacy to take human life if necessary in aid of some common criminal design. In order to hold the defendant responsible for the acts or statements of the rest of the party or any of them, the proof must coine up to this standard. Passing for the present the question whether the case was properly submitted to the jury on the theory that the homicide was committed while the defendant and others were engaged in an attempt to commit a felony under such circumstances as to render any one of the party responsible for the be a man, who was killed, if the deceased was killed without any intention on the part of the accused to shoot a human being, and under circumstances which induced him to believe that the object at which he fired was an animal trespassing upon his premises at night, he would not be guilty of any greater offense than involuntary manslaughter. Parks v. State, 105 Ga. 242, 31 S. E. 580. And adultery under the Texas statute is only a misdemeanor, and if a man is taken by another in the act of adultery with the latter's wife, and, to avenge the wrong, he makes a dangerous or murderous assault upon the other, in resisting which the other takes his life, the act would be manslaughter, because he was committing a misdemeanor, which was the cause of and brought about the necessity for the homicide. Reed v. State, 11 Tex. App. 509, 40 Am. Rep. 795. And a charge of involuntary manslaughter, defined by Cai. Penal Code, § 192, to be the unlawful killing of a human being without malice, in the commission of an unlawful act not amounting to a felony, or in the commission of a lawful act which might produce death in an unlawful manner, or without due caution and circumspection, against one who, while intoxicated, drove his team of horses through the principal street of a town in a reckless manner and at a great and unusual rate of speed, running over and killing a woman who attempted to cross the street, should rest on the commission of an act done without due caution and circumspection, and not upon the commission of an unlawful act in driving at a greater rate of speed than that allowed by the ordinance of the county; and such ordinance should not be admitted in evidence on the trial. People v. Pearne, 118 Cal. 154, 50 Pac. 376. For further instances of particular unlawful acts within the law as to involuntary manslaughter, see infra, IV. d. d. What constitutes killing in commission of unlawful act. 1. Generally. From the cases upon particular subjects with relation to what constitutes a killing in the commission of an unlawful act, set forth in the following subdivisions of this note, it would appear that the rule, that the killing must PEOPLE V. SULLIVAN. acts or statements of the others, I do not The evidence certainly warranted the jury (a). Drawing contrary to law. At common law one who levels a gun or pistol at another unnecessarily under the circumstances, though without any intention of discharging it, when it goes off accidentally and kills the other, is guilty of manslaughter. Reg. v. Weston, 14 Cox C. C. 346. And where a statute makes it a misdemeanor for any person to present at another any gun, pistol, or other firearm, whether loaded or unloaded, and one intentionally points a gun or pistol at another, though without any intention whatever to take life, and by accident it is discharged, producing death, he is guilty of manslaughter committed in the performance of an unlawful act. Barnes v. State, 134 Ala. 36, 32 So. 670; Henderson v. State, 98 Ala. 35, 13 So. 146; State v. Goodley, 9 Houst. (Del.) 484, 33 Atl. 226; State v. Grote, 109 Mo. 345, 19 S. W. 93; Surber v. State, 99 Ind. 71; State v. Tippett, 94 Iowa, 646, 63 N. W. 445; State v. Morrison, 104 Mo. 638, 16 S. W. 492; Ford v. State (Neb.) 98 N. W. 807. And an indictment charging the defendant with killing another by shooting without malice, he being then and there in the commission of an unlawful act, the drawing of a deadly weapon, to wit, a revolver, upon the deceased, and not in defense of his person or property, or of those entitled by law to his protection, sufficiently charges involuntary manslaughter while committing an unlawful act. 99 Ind. 71. Surber v. State, And an instruction in a prosecution for manslaughter to acquit if the jury believe the evidence, is properly refused, where the testimony affords an inference that the killing was malicious and unlawful, or, if not malicious, that it was intentional, or, if not intentional, that it was the result of the unlawful pointing of a loaded pisto' by the defendant at the de63 L. R. A. 387 to relieve any of them from the punishment which the law prescribes for such a wicked act. titled to a fair trial, and to the benefit of the rules of law applicable to criminal proAt the same time the defendant is encedure. The difficulty with the case is that we cannot affirm the judgment without holding that the proof sustains two propositions flict with each other. The one is that the defendant killed the deceased with a delibof fact that apparently are somewhat in conerate and premeditated design to effect his death, or counseled, aided, or abetted the killing with a like design. The other is that, without any design to effect death, he killed deceased, or counseled, aided, or abetted the killing while engaged in the commission of a felony. The criminal act receased. Barnes v. State, 134 Ala. 36, 32 So. 670. oiling his pistol, snapped it several times at his Thus, where a husband and father, while child and then at his wife, when it went off and shot the latter, the killing is not a misadventure, but is at least involuntary manslaughter. Johnson v. State, 94 Ala. 35, 10 So. 667. And a charge which instructs the jury to acquit under such circumstances is erroneous. Henderson v. State, 98 Ala. 35, 13 So. 146. So, one who intentionally points a loaded pistol at another, or points a pistol at him not knowing whether it is loaded, or believing it and kills him, is guilty of involuntary manto be unloaded, not intending to kill him, and slaughter in the commission of an unlawful cocks it and pulls the trigger, and it goes off act and an instruction to that effect in a prosecution therefor is not subject to objection as being argumentative, or an intimation that the defendant is guilty of involuntary manslaughter. Cook v. State, 93 Ga. 200, 18 S. E. 823. And if one points a loaded gun at another 154, 92 Am. Dec. 417. State with the avowed purpose of frightening the per- sulting in death is different in nature and character under the two provisions of the statute, and, while the People had the right to give proof under the indictment of all the facts, yet when the proof was all in it could not establish both propositions. If the proof tended to show that the deceased was killed without any design to effect death, but while the parties were engaged in an attempt to commit a felony, it necessarily excluded the theory that he was killed from a deliberate and premeditated design. It would seem to follow that the case should have been submitted to the jury on one theory or the other, and not upon both. But, while conceding that both theories should have been established by proof, it is contended that both were properly subAnd one who, though he had good reason to believe, and did believe, that a pistol was not in any manner dangerous, and who pointed it at another, who was killed by the discharge thereof, the pointing having been done with the pretense that it was loaded, in an attempt to frighten her, is justly censurable for a most reckless and imprudent act; and an instruction directing the jury to acquit if he did nothing more than a man of ordinary prudence and caution might have done under like circumstances, is properly refused. State v. Hardie, 47 Iowa, 647, 29 Am. Rep. 496. And if a person points a gun at another without examining whether it is loaded or not, and it happens to be loaded, and death results, he is guilty of criminal negligence, and of manslaughter. Reg. v. Jones, 12 Cox C. C. 628. So, evidence in a prosecution for homicide, that the accused drew a loaded pistol and pointed it at the toes of a boy, and told him he would shoot if he did not preach, and continued pointing it at him until the boy ran under a log for protection; and that he afterwards started away and persuaded the boy to accompany him, and, when he had gotten out of sight a pistol shot was heard, and the boy was found to be killed, is sufficient to warrant the court in charging that, though the shot was accidental, if it resulted from the recklessly careless use of a loaded pistol by the accused, he was guilty of voluntary manslaughter. Murphy v. Com. 15 Ky. L. Rep. 215, 22 S. W. 649 And evidence in such a prosecution that the accused pointed his pistol at deceased, then turned it toward the ground, and afterwards raised his arm up with the pistol in hand, when it went off killing the other accidentally, requires an instruction as to involuntary manslaughter. Embry v. Com. 11 Ky. L. Rep. 515, 12 S. W. 383. Nor does the fact that one was voluntarily drunk when pointing a pistol at another, which went off, killing him, relieve him from responsibility for involuntary manslaughter. Surber v. State, 99 Ind. 71. And one who, while intoxicated, was unlawfully carrying a deadly weapon, knowing that he was in the habit of getting intoxicated, and drew it and pointed it toward two others, thereby committed an unlawful act, though he had no intention to shoot or injure either of them and where the pistol went off and killed mitted to the jury, since half the jury might have accepted one theory and the other half the other theory. I am unable to appreciate the force of the reasoning in support of this proposition. If it be correct it must follow that the chances of a conviction are very much improved by the introduction of various theories in support of a single charge. If, for instance, it were possible for the prosecutor to try the case upon a dozen theories, and a single juror could be induced to assent to each theory, the whole body could unite in a verdict of guilty, although no one theory could command the as'sent of more than a single juror. This method of procedure, with all respect, strikes me as very much like what has long been known in legislative parlance as one of them he is guilty of manslaughter, though he unknowingly committed the act in a state of intoxication. People v. Slack, 90 Mich. 448, 51 N. W. 533. But it must appear that the pointing of the firearm at the person was intentional. State v. Goodley, 9 Houst. (Del.) 484, 33 Atl. 226; Siberry v. State, 149 Ind. 684, 47 N. E. 458. And where one person shoots another, and the homicide springs out of the mere act of unlawfully carrying a pistol, it is not negligent homicide of the second degree predicated upon the doing of an unlawful act negligently. Brittain v. State, 36 Tex. Crim. Rep. 406, 37 S. W. 758. To draw a weapon upon another, in the meaning of Burns's Rev. Stat. (Ind.) 1894, § 2068, providing that whoever draws or threatens to use any pistol, dirk, knife, sling-shot, or any other deadly or dangerous weapon already drawn upon another person shall be deemed guilty of a misdemeanor, means so to draw it that it may be used to his injury, as to point the muzzle of a gun or revolver at him; and it is not necessary that he intended to discharge or fire it off, or shoot the person, in order to constitute the violation of the statute. Siberry v. State, 149 Ind. 684, 39 N. E. 936, 47 N. E. 458. And it is the drawing, or threatening to draw, a dangerous or deadly weapon which is made criminal by Ind. Rev. Stat. 1881, § 1984, and not brandishing or flourishing of such weapon, so as to justify an arrest and render the killing of the officer, making it a killing in the performance of an unlawful act. Plummer v. State, 135 Ind. 308, 34 N. E. 968. So, the negligent use of a loaded pistol by a person who believes it to be empty, without any intention to do harm, from which death results is not sufficient to transform an accidental killing into a voluntary manslaughter; though it would be if it were done under such circumstances as to render it an assault. Robertson v. State, 2 Lea, 239, 31 Am. Rep. 602. And a conviction cannot be sustained where the facts set out in the bill of exceptions on appeal leave it doubtful whether the act from which death resulted was accidental or de signed. Ibid. And where a man loads a pistol without putting in a leaden ball, and tells a woman that, if she does not kiss him, he will shoot her, and then puts his arm around her, and the pistol goes off, and she is killed, all of the par log-rolling, the art of which consists in port two conflicting propositions of fact, namely, that the homicide was committed from a deliberate and premeditated design to effect the death of the person killed, and that it was committed without any such design or any intent to effect death, but when the accused was engaged in an attempt to commit a felony. When a capital case is submitted to a jury upon two different theories concerning the facts, the evidence must be of such a character as to sustain both. If either theory is not supported by evidence a verdict based upon the whole case cannot be permitted to stand. Of course a homicide may be committed by one engaged in an attempt to commit a felony, with the intent to kill and with deliberation and premeditation, and then all the elements constituttional and accidental killing by shooting with a pistol without careless or reckless handling. Messer v. Com. (Ky.) 76 S. W. 331. The case was submitted to the jury upon the theory that there was evidence to sup| ties being friendly, the killing does not constitute voluntary manslaughter. Nelson v. State, 6 Baxt. 418. So, an instruction as to accidental shooting should be given in a prosecution for murder in which there was evidence, on the one hand, that the defendant shot deceased either intentionally and maliciously or while performing the unlawful act of pointing a pistol at him, and, on the other hand, that he did not intend to shoot him, and did not point the pistol at him, but, while handing it over a counter in compliance with a request of the deceased, and not having his hand on the trigger, it was accidentally discharged. Fitzgerald v. State, 112 Ala. 34, 20 So. 966. A person who causes the death of another by a shot from a pistol unintentionally pointed or discharged at him, but without any malice on his part, is properly convicted of manslaughter under the Ohio statute as to manslaughter, and not of the crime specified by Ohio Rev. Stat. § 6822, providing that whoever unintentionally and without malice points or aims any firearm at or toward any person, or discharges any firearm so pointed or aimed, or maims or injures any person by the discharge of any firearm so pointed or aimed, shall be fined, etc.; since that statute was intended to cover a case of maiming or injury which does not produce death. Williamson v. State, 2 Ohio C. C. 292. (b). Negligently and carelessly handling. And if a person drew his pistol and waved it about, rudely displaying it, near a private residence at a time when there was a gathering of people at such residence for the purpose of innocent amusement, in a manner calculated to disturb the people there assembled, and the pistol was carelessly and negligently discharged, killing a man, though without intent to kill, the person so flourishing and discharging it would be guilty of negligent homicide in the second degree. Brittain v. State, 36 Tex. Crim. Rep. 406, 37 S. W. 758. And one who struck another intentionally with a pistol when it accidentally went off and killed the other, is not entitled to an acquittal in a prosecution for murder, since he might be found guilty of manslaughter. Stewart v. State, 137 Ala. 33, 34 So. 818. And where, in a prosecution for homicide, there is evidence tending to show that, when deceased was shot, he was approaching defendant, and was very near to him, when the latter struck him with a pistol, which was accidentally discharged and killed him, it is proper to produce evidence as to whether there were any powder burns on the clothes of deceased, as against an objection that it was not in rebuttal. Ibid. he is violating the law. 111, 96 Am. Dec. 196. Sparks v. Com. 3 Bush, So, if a man, contrary to law and good order and public security, fires off a pistol in the streets of a town, and death is thereby proOne who uses a dangerous and deadly weapon duced, he must answer criminally for it, whethin a careless and reckless manner, thereby kill- er it be malum in se or merely malum proing another, is guilty of manslaughter, al-hibitum; and especially so when he knows that though no harm is in fact intended. State v. Hardie, 47 Iowa, 647, 29 Am. Rep. 496; Com. v. Matthews, 89 Ky. 287, 12 S. W. 333; Sparks v. Com. 3 Bush, 111, 96 Am. Dec. 196; Chrystal v. Com. 9 Bush, 669; York v. Com. 82 Ky. 360; Murphy v. Com. 15 Ky. L. Rep. 215, 22 S. W. 649; State v. Emery, 78 Mo. 77, 47 Am. Rep. 92; State v. Grote, 109 Mo. 345, 19 S. W. 93; State v. Gilliam, 66 S. C. 419, 45 S. E. 6. And one who shoots another with a pistol discharged accidentally, but while he is exhibiting it in a rude, angry, and threatening manner, and not in necessary self-defense, may be found guilty of manslaughter. State v. Kelly, 1 Nev. 224. And a charge on involuntary manslaughter should be given where there was an uninten And where one discharges his gun loaded with a ball in a public highway at 9 o'clock in the evening when it is quite dark, the act is one of gross carelessness calculated to endanger the lives of persons passing along the street; and, if a human being is killed thereby, it will People constitute the crime of manslaughter. v. Fuller, 2 Park. Crim. Rep. 16. So, though a peace officer has authority to carry a pistol, it is nevertheless an offense for him rudely to display and fire it off at or near a private residence in a manner calculated to disturb the occupants; and if he does so, and a death results, he is responsible therefor. Rus |