State v. McDonnell

| Vt. | Jan 15, 1860

Eedfield, Ch. J.

I. The first objection made to the fairness of the trial in the court below, and which seems to be regarded by the prisoner’s counsel as showing, to some extent, that the animus of the whole was unfavorable to their client, is the alleged terms of disrespect in which the judge made allusion to that rule of law now recognized in this State, that the jury may judge of the law as well as the fact, in criminal cases. Any attempt on the part of ¿x judge, in the trial of an important criminal case, to prejudice the jury against- an established rule of law applicacable to all cases, or to the particular case, would very justly expose him to severe criticism. But we do not feel that such is precisely the present case.

The rule of law referred to is strikingly peculiar, as applicable to jury trials. Where the judge and jury are both required to assume their distinct and proper functions, the one of the law, and the other of the fact, it will scarcely be claimed to have any just application to ordinary cases. It surely will not be claimed that the object and purpose of the rule is to enable ingenious and eloquent counsel to procure the acquittal of guilty persons, by inducing juries to put a misconstruction upon the law, in opposition to the charge of the court. Nor that the jury are really more competent judges of the law than the court are.

The most which can fairly be claimed in favor of the rule is, that it is one of those great exceptional rules intended for the security of the citizen against any impracticable refinements in the law, or any supposable or possible tyranny or oppression of the courts. It has always been regarded as belonging rather to the department of governmental polity than to that of jurisprudence, in the strict sense of that term, and in that view is more justly considered a political than a legal maxim.

It has indeed been claimed, as one of those great landmarks, defining, and intended to secure the enforcement of English liberty, which, although always more or less in conflict and dispute, between the advocates of prerogative on the one hand, and of the largest liberty of the subject on the other, in that country, from which we in fact derive the principle of the rule; and which, because it is an exceptional rule, will always be likely to be characterized as an absurdity by the mere advocates of logical symmetry in the law, will nevertheless he sure, in the long run, to constantly gain ground, and become more and more firmly fixed in the hearts and sympathies of those with whom liberty and law are almost synonymous, and may therefore be regarded rather as an instinct, or a sentiment, than a mere logical deduction. It is therefore not a thing to be much reasoned about. It is a power, perhaps, more strictly than a right, in its primitive existence, but such a power as would be less likely to be wrongly exercised by juries when it was conceded, than if kept in perpetual conflict by occasional and sometimes acrimonious denials on the part of the court.

It is upon this ground that I, for myself, long before the dis-i tinct recognition of the rule by this court, in State v. Croteau, 23 Vt. 14" court="Vt." date_filed="1849-12-15" href="https://app.midpage.ai/document/state-v-croteau-6574448?utm_source=webapp" opinion_id="6574448">23 Vt. 14, came to the conclusion that it was best, as a matter of prudence, not to allow the question to be brought into contest between the court and juries. Let juries feel that they have the power and the right to judge of the law in criminal cases, over the heads of the court, and that they may do this in all criminal cases, if they choose to take the responsibility, and in practice it will be found 'that they will not do it, except in extreme cases. And in such cases it is perhaps proper enough that they should do it. Judges are liable to their full share of infirmity and error, and courts of the last resort will sometimes fall into errors of so grave and serious a character as to require the modification of the common sense instincts of the more unsophisticated. This, in civil cases, is well enough left to the interference of the legislature, but in criminal cases, affecting life, or character, or liberty, such a resort would come too late.

But we see no objection, where the interference of a jury is directly invoked in a criminal case, to the judge stating to the jury, in his own way, that this rule is not intended for ordinary criminal cases; that it is matter of favor to the defendant, and should pot be acted upon by the jury, except after the most thorough conviction of its necessity and propriety ; that any departure by the jury from the law laid down by the court, must be taken solely upon their own responsibility ; and that the safer, and better, and fairer way, in ordinary criminal cases, is to take the Jaw from the court, and that they are always justified in doing so.

This is substantially what was done by the court below, and we see no just ground of exception to the mode in which it was done. The declarations of the judge were explicit, and characterized by directness and plainness of speech, and this is, in general, a desirable quality in a charge to the jury. It may be carried too far, and thus become objectionable, like every good thing in excess, but it does not occur to us that this portion of the charge was specially objectionable on that ground. Men will differ in their views as to the best manner of dealing with such delicate questions between the court and jury. Perhaps the surest mode of keeping the jury within their proper functions is for the court not to trench upon their own peculiar province, and not to evince any suspicion that they will not reciprocate the courtesy. I think the more common fault of juries is to strive, by disagreements, or in some other mode, to escape the necessity of taking their own just share of the responsibility, rather than to usurp the proper province of the court This is undoubtedly the more common fault with us all in important trials.

II. The mode in which the defendant’s confession was })ut to the jury might be liable to misconstruction, no doubt. The jury were told that it must “ go to the jury as evidence, and they might give such credence to the different parts of it, under all the circumstances attending the whole case, as they saw fit.” It is claimed that this last expression might, naturally enough, be understood by the jury as giving them an arbitrary discretion to use only that portion of it, in making up their verdict, which made against the defendant. It is certainly not probable the jury would have so understood the charge. And as we are bound now, while revising the case upon error, to make all reasonable intendments in favor of the proceedings below, we shall hardly feel justified in opening the case upon this ground alone. We may refer to this subject again.

But, to guard against possible misapprehension, it is proper to add here, that in cases of such magnitude, where the State resort to the confessions of the defendant, as evidence against him, it rc\ -ires that considerable care be used by the court, lest, either In node of obtaining or the use made of such confessions injusti- .*■<' inflicted upon the accused. The general public sentiment upon the subject, that there is no danger of one suffering from his own confession, although natural and commendable, as ' evincing a desire not to have the guilty go unpunished, is certainly not based either upon sound logic or wise experience.

From the general rule, known to all, that the declarations of one accused of crime are not evidence in his favor, but are evidence against him, a common jury might not unnaturally come to the conclusion that the same rule should apply to the different portions of his confession, as it is called, when used in evidence against him. And it must be admitted that although the charge upon this point is sufficiently guarded against such misapprehension, when viewed in the light of the legal rule upon the subject, yet when interpreted by the popular sentiment upon the question, it is quite susceptible of being so understood as to countenance that acceptation. The case did seem to require that the jury should be made fully to comprehend that the declarations of the defendant in his favor were the conditions upon which those against him rested, and if used as evidence against him, he might fairly insist upon the conditions being maintained in his favor, unless disproved either by the other circumstances, or testimony in the case, or their own innate improbability or inconsistency and absurdity. The refusal of the court to respond to the request to give more definite instructions upon this point, was calculated to impress the minds of the jury in favor of a strict construction of those declarations of the defendant, which tended to exculpate him, and a more liberal one of those which made against him. And the failure of the judge, in summing up, to allude to this confession, as containing any possible circumstance of exculpation, would ¿end very much to confirm the jury in any impression they might have that it was not to be weighed in that direction. From all which it is obvious that if the charge was not positively erroneous on this point, it certainlywas not so fully guarded against misconstruction as was desirable.

III. In regard to Mosher’s testimony, the only question made is, whether it should have been suffered to go to the jury in the final summing up. This will undoubtedly strike different minds differently. If there was really any uncertainty in regard to tJifd' defendant having made the assault upon Mosher, as thrgre was confessedly very considerable doubt whether the person making the assault could have mistaken Mosher for the deceased, Me-Keen, the two uncertainties combined would increase the doubt in a compound ratio, and thus render this testimony too indefinite to go to the jury at all. One gets a far more vivid, and generally a more Correct apprehension of the true force of such circumstances, from hearing the whole trial and argument upon the facts. I should hesitate, therefore-, to speak with perfect confidence upon a matter of this kind, so as to open a case for new trial upon this ground alone, until I had taken time to so study the case in detail as to impress all the facts upon the memory in such a way as to be able to view each particular fact and circumstance in all its relations to the other facts and circumstances of the whole case, and thus feel sure I could comprehend its true bearing and force, both positively and relatively. My present impression is, that, in a case affecting life, testimony of this loose and unsatisfactory character ought to be wholly excluded from the consideration of the jury in the final summing up. It could not properly have been excluded upon the offer made in connection with this proof. But if, when all the evidence was in, the theory upon which it had been received was not sustained by any evidence, but rested in mere possibility or conjecture, about as likely to be false as true, the consideration of the evidence should not have been allowed to the jury. But this point is not intended to be definitely decided; it strikes the members of the court differently.

IY. But the most serious ground of complaint, in regard to the trial in this case, seems to us to arise upon the charge affecting the general nature of the offence.

1. The practice of reading books to the jury, in the manner and to the extent it seems to have been done in this case, affords a most significant commentary upon the general theory of making juries really attempt to settle the law, upon their own responsibility, in the ultimate decision of every criminal case, the same as they do the facts. One might almost as well, for any purpose of actual enlightenment, give the jury general treatise'upon criminal law, and tell them the whole law applicable to the case would fee found under the title homicide, or manslaughter and murder.

It is unquestionable that a common jury are, from titer- general habits of study and reflection, quite incapable of so comprehending general abstract propositions of law, read consecutively from a hook, as to make any safe and judicious application of them to the facts of a particular case, and especially a case of this character. But we are aware that this is often done in those States where the courts of last resort have trials for murder before them in banc, and formal opinions upon the law are expected to be given, and this is of necessity done in the presence of the jury; but the formal opinion of the court upon the law is intended rather for the profession, and the published reports, than for the enlightenment of the jury. That must be done after the general principles of the law of the case are settled, by applying them to the particular facts attempted to be proved in the case.

2. We do not understand that the law read from the books in this case was intended to qualify the general propositions laid down in the charge; but that it was read merely in confirmation of what is contained in the charge. It is intimated, in the argument for the prosecution, that if the general propositions laid down in the charge are erroneous, or require qualification, this court will look for that in the books there referred to. This we clearly could not do without knowing, with certainty, what particular portions of the books referred to were read to the jury. This we have no means of determining, as the passages are neither copied into the charge nor definitely described, so as to be capable of identification. It is, obvious, from the blanks left, that it was at one time the intention of the judge to do so, but it has not been done, and we cannot now do it. The charge must therefore be taken as it stands upon the bill of exceptions.

3. This seems very correct in the main. But mere abstract propositions of law, whether read from a book or not, afford but an imperfect guide to a common jury in the determination of a complicated case. The most learned, experienced and correct judges often misapprehend the proper application of general principles of law to the facts of a particular ease. That is the principal uncertainty which arises in the trial of causes. It is not often that the counsel, in a case of this character especially, diflmuch as to the principles and rules of law applicable to the :*y> ■ eral subj< „ The general definitions of murder and manslaughter have bee-. well settled for centuries. The only uncertainty arises in regard ,o ¡he application of these recognized and familiar principles to 1 u" over varying facts and circumstances of particular cases as tl -•■> arise, no two of which are precisely alike, or ever will be, and most of which are infinitely varied, in particulars more or les • important, from every adjudged case in the reports.

4. There is one marked feature in this charge which, in any view we ha\ : '.‘can able to take of the case, seems to us incurable. The entire tK<-ry of the defence, with the exception of a single sentence in tb; .barge, which had no natural or just application to the facts o' ,1. • case, is studiously and strenuously denied and disregarded. Uu only sentence in the charge, after the judge leaves the gen 'a1 prefatory propositions and enters upon the particular case, ii ■ >■ ' ich the distinction between murder and manslaughter is brc ¡;'b¡ into view before the jury, was certainly not framed with anj 'i< w to the particular case. It is taken verbatim almost from Wh- '¡(.¡, on Homicide, page 192, and refers to the case of Rex v. Anderson [Russell on Crimes 531, and is therefore solely applicable Sc .mother case, and by consequence is the same as a mere abstract<n. so far as this case is concerned. It has then no just and proper application to the facts and circumstances of this particular case. It is in fact, as it seems to us, even more objectionable, on some accounts, as applied to this case, than an entire omission ; for if the jury attempted to apply it to this case in any literal sense, (and they are not, in my judgment, required or supposed to be capable of any other except a literal application of the law given them to the particular case, and it is therefore the duty of courts, in their instructions to juries, to make the law applicable to the particular case, and not to deal in mere abstractions;) if then the jury attempted to make any such application of this portion of the charge to the facts of this case, it certainly must have led them to the conclusion that there was nothing in the case tending to show that the offence might have been manslaughter. And this was unquestionably the view taken of the case in the court below, the only one which makes ' charge consistent and reasonable. But we think this view, although strongly supported by much of the evidence, is not maintainable as the only view to be taken of the case.

5; We will, therefore, examine the case upon its merits, as presented in the facts detailed upon the bill of exceptions

The principal point of inquiry, as affecting the merits of the trial, is the evidence tending to show that the offence might have been only manslaughter. This is the important and proper point of inquiry in all cases of this character, since it is the duty of th'e court, upon common principles of humanity and justice, first, to pronounce the criminal innocent until he is proved guilty; and, secondly, after he is shown to have committed a homicide, to look for every excuse which may reduce the guilt to the lowest point consistent with the facts proved. There is, in the present case, still further reason for directing inquiry towards this point, inas" much as we have seen that the county court evider tly did not feel justified in giving the prisoner the benefit of any'such construction of the evidence as would reduce the offence’below the grade of murder.

We need not inquire, in regard to the law of homicide, further than the facts in this case seem to require. Some question is made in the argument in regard to the prima facie presumption of malice, resulting from the mere fact of death, by the hand of the accused. It does not seem important here to discuss that question, as the proof shows the manner of the death. There is no doubt that such a rule as that laid down by the court in this case, that the law implies malice from the killing with a deadly weapon, and thus imposes upon the accused the burden of show" ing the contrary, has long been recognized in the courts both of this country and England. The rule is thus expressed in 1 Hawkins’ P. C. 82, ch. 131, sec. 32, “ That wherever it appears that a man killed another, it shall be intended, prima facie, that he did it maliciously, unless he can make out the contrary, by showing that he did it on sudden provocation,” etc , citing Kelyng’s Reports of Crown Cases, temp. Charles 2, 27. The same general proposition is substantial repeated in all the subsequent treatises and reports where the question has arisen ; but it seems to have been done without much examination, and one might be allowed to question its application to the mere fact of killing, since, being but a presumption of fact, in the absence of all evijl dence in regard to the mode of death, the presumption of innoJ cence must be allowed to prevail over that of malice. But the mode of inflicting death often indicates, with more or less force, the motive and the probable degree of deliberation! Killing by poison clearly indicates malice, where the poison is given in such quantities as ordinarily to produce death. The same may be said when death is produced by resort to a deadly weapon, upon a vital part. This results from the presumption stated in the charge, that one intends the natural consequences of his acts. We see, therefore, no ground to complain of the rule, as qualified by the judge in this case. This is undoubtedly one of those points where the jury should be expected to judge for themselves, as it is a subject which they understand as well as the court, since it has reference to matter of fact, rather than of law. And where a rule of this character is attempted to be applied to a case to which it was never intended to have any application, as, for instance, to the mere fact of killing, as the rule, as laid down in Hawkins and in most of the treatises, might be made to apply, it must be, in my judgment, eminently suitable and proper that the jury should be allowed to test the force of the rule, as laid down by the judge, even by the application of their own expert1 ence and common sense instincts, to the rule itself. I should never question the right of a jury to revise, in criminal cases, any question of law so entirely within the range of their own knowledge and experience. One could scarcely be expected to find a verdict upon a rule of law, where his own conscientious convictions were so capable of a direct application to the rule, and where it did violence to the common experience of mankind. But it is not often, perhaps, that a rule of law is susceptible of so clear and narrow a ground of trial, or that it is so much at variance with common experience as to infer malice, from the mere fact of killing. But in the present case the wound indicated malice, whereas, if the deceased had died by the fall itself, without the stab, the natural presumption would have been the othef

t _ 7he first clear point in this case, established by almost the entire testimony, is that it was a case of conflict, or mutual combat, at the moment of the encounter. We leave out of question here all evidence of previous malice. At the time nothing had occurred, or was occurring, which called for forcible interference on the part of the deceased. The rattling of his door, and the ribald speeches connected therewith,- had ceased. The accused was quietly passing along the sidewalk. He was questioned in regard to what he had done, or why he did it. He made an eva-> sive and insulting reply. But this gave no occasion for McKeen to interfere forcibly. But the witnesses all concur that he did advance to meet the defendant, that he met him about half way. The witnesses could not say which moved the swiftest; thought the defendant did, but not sure. They were about six feet apart when both advanced, and met about half way. This is certainly not an attack solely on the part of the prisoner. He may have been, and probably was, the remote cause of the conflict; but it seems probable enough, from all the testimony as to the mode in which the encounter began, that McKeen might have avoided it if he had so chosen.

Being, then, a case of mutual combat or conflict, it does not appear very clearly which struck first. Both seem to have been in a state of preparation for the encounter; the witnesses so describe McKeen; Each, it may be fair to conclude, intended to strike first, and to disable his adversary, so as to put him out of the combat or bring him to terms. The confession of the defend-* ant attributes the first blow to McKeen. In a case of mutual combat, it does not seem to be regarded as important to the character of the homicide which did give the first blow. The prima facie presumption in regard to all such encounters upon equal terms is, that neither intends to kill or do grievous bodily harm to the other. But if there is evidence of a murderous intent at the time of beginning the affray, the homicide will be murder. It is upon this ground that the law places stress upon the parties being upon equal terms in the beginning of the conflict; .for if one take a deadly weapon into the affray with the design of using it in the fight, and especially if this be unknown to the other party, it will afford strong evidence of malice. Hence, if a man draw his sword before the other has time to draw, and thrus.tf his antagonist through, the body, whereby he dies, it is murder, for it shows a purpose of killing, in the first instance.

3. But in this part of the case we do, as we said, lay out of the account all evidence of previous malice; for if that be shown to the satisfaction of the jury, and that the prisoner sought the encounter for the purposes of revenge and punishment of the deceased, although he might not have intended to take his life, it is nevertheless murder when death ensues. And this is said to be the result, although in the fight the assailant “ be driven to the wall, and there kill his antagonist in self defence,” because he is “ guilty of murder in regard to his first intent;” 1 Hawkins’ P. C. ch. 31, sec. 26, citing Hale’s P. C. 47; Kelyng, 58, 129.

4. But I understand the true rule, as to bona fide cases of mutual conflict, is well laid down in 1 Hale’s P. C. 456, citing Foster, 297. That although bare words are not such provocation as to lessen the crime to manslaughter, “ yet, if A gives indecent language to B, and B therefore strikes A, but not mortally, and then A strikes B again, and then B kills A, that this is but manslaughter, for the second stroke made a new provocation, and so it was but a sudden falling out; and though B gave the first stroke, and after a blow received from A, B gives him a mortal stroke, this is but manslaughter, according to the proof; the second blow malees the affray.”

5. If, then, the jury should regard this as a bona fide case of mutual combat, without previous malice on the part of the accused, and that mutual blows were given before the accused drew his knife, and that he then drew it in the heat and fury of the fight, and dealt a mortal wound, although with the purpose of doing just what he did do, that is, of taking life, or what would be that intent if he had been in such a state as properly to comprehend the nature of his act, still it is but manslaughter.

6. Although, therefore, it must be admitted that so mortal a wound, inflicted with such a weapon upon so vital a part of the person, upon such slight provocation, must always excite in the mind of the thoughtful and considerate, strong apprehension that it did residt from a murderous purpose; yet it seems to us that there was a good deal in the case calculated to impress the minds of the jury with a more favorable construction towards the. defendant, and that it should, therefore, have been submitted to them with instructions applicable to the particular facts.

1, It was clearly a case of mutual combat, and continued for such length of time that mutual blows might have been, and probably were given,

2, The defendant’s declarations, given in evidence by the prosecution, all of which are made evidence, was that McKeen gave the first blow, having previously used insulting language.

3, The knife, by which the mortal wound was inflicted, is not shown to have been one which the defendant did not ordinarily carry about him. It appears to have been one in constant use about his business, and, very likely, might have been constantly carried about his person.

4, There is no direct proof when it was drawn, or with what specific intent. That is matter of inference, in regard to which there is undoubtedly room for debate.

5, The medical testimony appears to my mind to favor the conclusion that the fatal character of the wound might have been caused by the fall. If the construction of the principal medical witness is entirely correct as to the suddenness with which death would ensue, and especially the absolute incapacity of the wounded person to continue the struggle, or even to speak, after the full penetration of the knife into the heart, it would seem almost certain, from the other testimony, that the conflict must have continued a considerable time, long enough for the exchange of blows, before the knife was resorted to, and that when first struck it only penetrated into the breast bone, not reaching the heart, and probably not reaching the large nerve named, and that it was thrust through to its fatal result by the fall. It is not improbable that further examination and reflection may somewhat qualify this theory in the opinions of the medical witnesses. It seems to me, however, scarcely possible that so fatal a wound could have been inflicted to the full extent, until the very close of the affray. The time of inflicting the wound is important chiefly in reference to another question, the existence of a previous purpose of using the knife in the combat; for if that point is established against the defendant, to the satisfaction of the jury, it makes the homicide a clear case of murder.

The strongest point against the defendant, in this view of the case, arises from the improbability of his being able, in the very short time which elapsed during the affray, and in so heated a contest, to have drawn and opened his knife. But if the spring of the knife were moderate, or considerably worn, this might possibly be done with more facility than is now altogether obvious to us. At all events it is a point which the defendant has the right to have the jury consider, with every other question of fact, or circumstance, or inference, or probability, in his favor, none of which seem to us, so far as the defence is concerned, to have been properly submitted to their consideration at the trial. And unless we could fairly say that there was no testimony in the case tending to reduce the crime to manslaughter, we could not feel justified in passing sentence of death, until that testimony had been fully submitted and fairly weighed and determined by •the jury, whatever we might think of the probable result. That is not a question here.

It seems to me, that if the jury should not find the fact that previous malice existed on the part of the prisoner towards the deceased, of a character which induced him to seek the quarrel, or that he went into the affray with his knife drawn, or with the intention of using it, or thinking of it as a possible resort in case of convenience, to be used in the affray; but that his drawing and using it was altogether an afterthought, subsequent to the encounter, it must be regarded as a case of manslaughter. In this view of the case it must be altogether conjectural whether the defendant would conceive the idea of killing at all; and if he did, in his blind fury, it could not fairly be presumed to have been done with any such deliberation as to constitute murder, unless there is some distinct evidence of more coolness than ordinarily exists in such cases. This is the doctrine laid down in the books, and it corresponds with my own experience in the trial of a considerable number of cases of homicide, in cases of mutual contest. There will he likely always to be such evidence of heat of blood as to render it too doubtful, in regard to the existence of deliberate malice, to allow the jury to convict of murder, unless upon distinct and satisfactory evidence of previous malice.

In every other view the case wears very much the aspect of murder." For the rule laid down by the court, that if .the design to kill were formed deliberately, for ever so .short a time before the infliction of the mortal wound, or if it were formed without such provocation as the law regards as sufficient justification for anger and heat of blood, that i§, upon mere words, however provoking, and before a blow were given by the deceased, the offence 'is murder, is undoubted law. And if one inflict a mortal wound with a deadly weapon, like a sharp knife, upon a vital part, as in the present case, it is a presumption of fact that he did design the natural consequences of his act; and it is murder, unless he shows that the result was not designed, or it was done in heat of blood, upon legal provocation.

So, too, if the prisoner went to this store with the purpose of drawing the deceased into a fight, and then after he had succeeded, resorted to the use of a deadly weapon upon a vital part, and death ensued, it is a fair presumption of fact that he intended to take life in the outset, either absolutely, or, if it became necessary in order to overcome the deceased, and in either case it is murder.

So, too, on the other hand, if the prisoner went there without Any thought of a fight, or entered the fight without any thought of using his knife, and after receiving a blow or blows, got so heated in his blood as to be incapable of acting with deliberation, and having no deliberately formed feelings of malice or revenge, seized upon the first weapon he could lay hold of, and that happened to be this knife, and dealt the mortal biow, although in his mad fury he struck where he supposed he should most damage his adversary, it is still but manslaughter ; even if the jury should think the defendant intended to kill, or did that in his madness which he must have supposed would kill, if he were capable of estimating consequences.

In this view, the point of time and the manner of inflicting th.e mortal wound is of great importance to be considered by the jury. And it will be affected to a considerable extent by a consideration of the length of time the conflict continued, what was done, whether this could have been done after the fatal wound was inflicted, or how much of it could have been done after that. Jt will of course not escape the consideration of a jury, in this connection, that the mere estimate of time, by witnesses under such circumstances, is proverbially imperfect, and very liable to seem, many times, longer than it is. This will be corrected by the comparison of different estimates, and more especially by the particular acts which transpired.

The law of manslaughter is very] correctly defined by Chief Justice Shaw, in Webster’s ease, 5 Cush. 295. “ Manslaughter is the unlawful killing of another, without malice, and may be either voluntary, as when the act is committed with a real design and purpose to kill, but through the violence of sudden passion occasioned by some great provocation, which in tenderness for the frailty of human nature the law considers sufficient to palliate the offenee; or involuntary, as when the death of another is caused by some unlawful act, not accompanied with any intention to take life.” “ Every man, when assaulted with violence or great rudeness is inspired with a sudden impulse of anger which puts him upon resistance before time for cool reflection, and if during that period he attacks his assailant with a weapon likely to endanger life, and death ensues, it is regarded as done through heat of blood, or violence of anger, and not through malice or that cold blooded desire of revenge which more-properly constitutes the feeling, emotion or passion of malice.”

From all we have said it will be obvious that the first point of inquiry before the jury, will be in regard to the existence of preconceived malice on the part of the defendant, before he went into the combat. In this view, the nature and character of the wound, and the manner of its infliction, will have an important bearing.

This being got over, the second leading inquiry will be as to the existence of any legal provocation, such as a blow or blows inflicted by the deceased, and the occurence of hot blood in consequence. The defendant having established the negative of the former, and the affirmative of the latter, or rendered them fairly doubtful in the estimation of the jury, will be entitled to claim a verdict of manslaughter, otherwise he is guilty of murder, from the nature, extent and consequence of the wound.

The verdict is set aside and a new trial granted.