MANSLAUGHTER.

382. Homicide arising from nonfeasance.

383. The duty omitted must be a

legal one.

384. Homicide arising from wilful.

385. Homicide arising from gross negligence.

386. Homicide arising from omis-
sion to perform legal duty
owing to religious scruples.

omission to perform legal 387. Homicide arising from negli-
duty constitutes murder.
gence less than gross.

§ 342. Definition-Classification.-Manslaughter is the unlawful killing of a human being, without malice aforethought, express or implied.

Manslaughter is divided into the following two classes: (1) Voluntary, and (2) Involuntary.

§ 343. Voluntary manslaughter.-Voluntary manslaughter is an intentional homicide committed in sudden passion caused by a reasonable provocation, and without malice aforethought.1

"If upon a sudden quarrel two persons fight, and one of them kills the other, this is manslaughter: and so it is, if they upon such an occasion go out and fight in a field; for this is one continued act of passion; and the law pays that regard to human frailty, as not to put a hasty and deliberate act upon the same footing with regard to guilt. So also if a man be greatly provoked, as by pulling his nose, or other great indignity, and immediately kills the aggressor, though this is not excusable se defendendo, since there is no absolute necessity for doing it to preserve himself; yet neither is it murder for there is no previous malice; but it is manslaughter."

§ 344. Nature and requisites of voluntary manslaughter.The basis of the mitigation in this crime is the fact that the

11 Hale P. C. 466; 1 Hawk. P. C., ch. 30, § 3; Brown v. Commonwealth, 86 Va. 466, 10 S. E. 745; Cavanaugh v. Commonwealth, 172

Ky. 799, 190 S. W. 123; State v. Schaeffer, 96 Ohio 215, 117 N. E. 220.

24 Bl. Comm. 191.

law takes cognizance of the frailty of human nature. "The true nature of manslaughter is, that it is homicide mitigated out of tenderness to the frailty of human nature. Every man, when assailed 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 for revenge which more properly constitute the feeling, emotion, or passion of malice." To constitute a homicide voluntary manslaughter three things are essential: (1) The killing must be done intentionally; (2) malice aforethought must be absent; (3) a reasonable provocation for the act must exist.

§ 345. Intention to kill must be present.-In voluntary manslaughter there is always an intent to kill, either express or implied. When there is actual intent to inflict great bodily harm and death results, the intent to kill is implied.

It is sometimes erroneously stated, however, that to constitute manslaughter the homicide must be unintentional. The presence or absence of intent to kill is not the feature which distinguishes murder from manslaughter, and an instruction which charges the contrary is clearly erroneous. Whether the homicide amounts to murder or to manslaughter merely, does not depend upon the presence or absence of the intent to kill. In either case there may be a present intention to kill at the moment of the commission of the act. When the mortal blow is struck in the heat of passion, excited by a quarrel, sudden, and of sufficient violence to amount to adequate provocation, the law, out of forbearance for the weakness of human nature, will disre

3 State v. Hill, 4 Dev. & B. (N. Car.) 491, 34 Am. Dec. 396; State v. Borders (Mo.), 199 S. W. 180.

4 Chief Justice Shaw in Commonwealth v. Webster, 5 Cush. (Mass.) 295, 52 Am. Dec. 711n.

gard the actual intent and will reduce the offense to manslaughter."

The presence or absence of intent to kill, however, is a distinguishing feature between voluntary and involuntary manslaughter. In the latter crime intent to kill is always absent, whereas in the former it is always present.

§ 346. Malice aforethought must be absent.—The thing which characterizes and determines the nature of a homicide is the quo animo, or state of mind, which accompanies the act, and not the act itself. That which distinguishes manslaughter from murder is the absence of malice aforethought.5 It is to be observed, however, that malice aforethought and intent to kill are not synonymous terms. To constitute a homicide voluntary manslaughter, absence of malice aforethought and presence of intent to kill are both essential.

§ 347. Adequate provocation essential.-To reduce a homicide from murder to voluntary manslaughter there must be adequate provocation. As a general rule, provocation is adequate when it is such as to induce an ordinarily reasonable man, in sudden anger, to take life. Ordinary human nature is the standard unless the accused person is shown to have some peculiar weakness of mind or infirmity of temper, not arising from wickedness of heart, or cruelty of disposition."

The line of demarcation, however, between what constitutes adequate provocation and what does not can not be exactly defined. It may be said generally that the distinction is between those provocations which ordinarily cause a great degree of resentment and induce violence and those

5 People v. Freel, 48 Cal. 436, Knowlton's Cases 176, Fisher's Cases 196, Rood's Dig. 350.

5a State v. McGarrity, 140 La. 436, 73 So. 259.

6 Pond v. People, 8 Mich. 149.
7 Maher v. People, 10 Mich. 212,

81 Am. Dec. 781, Beale's Cases 482, Derby's Cases 355; People v. Poole, 159 Mich. 350, 123 N. W. 1093, 134 Am. St. 722n; Johnson v. State, 129 Wis. 146, 108 N. W. 55, 5 L. R. A. (N. S.) 809, 9 Ann. Cas. 923.

which are slight and trivial, ordinarily not followed by violence.s

Provocation to be adequate "should be real, or so apparent as to justify the assumption of its reality. It should also be sudden and sufficiently great. It should be calculated to exasperate both in its character, and in respect to the persons against whom it is directed."

19

§ 348. Malice implied when acts barbarous.-When the punishment inflicted is far in excess of the provocation given, and under the circumstances outrageous, the law implies that it emanates from a malignant and cruel heart rather than from human frailty.10 Thus, where a young man asked a crippled old man eighty years of age impertinent questions, to whom the latter replied, "None of your business," and the young man, whose feet were shod with heavy boots, knocked the old man down with his fist and brutally kicked him so that he died, it was implied that the slayer possessed a cruel and malignant heart.11 An act which might constitute adequate provocation when done by one's equal in physical prowess, might fall short of being such when done by a cripple, a child or a woman.12 "Violent acts of resentment, bearing no proportion to the provocation or insult, particularly where there is a decided preponderance of strength on the part of the party killing, are barbarous, proceeding rather from brutal malignity than human frailty; and barbarity will often imply malice."18 "If, even upon a sudden provocation one beats another in a cruel and unusual manner, so that he

8 State v. Ferguson, 2 Hill (S. Car.) 619, 27 Am. Dec. 412.

9 Flanagan v. State, 46 Ala. 703, 707, 708.

10 Keate's Case, 1 East P. C. 234; Johnson v. State, 129 Wis. 146, 108 N. W. 55, 5 L. R. A. (N. S.) 809; Commonwealth v. Paese, 220 Pa. 371, 69 Atl. 891, 17 L. R. A. (N. S.) 793n, 123 Am. St. 699, Derby's

Cases 360; People v. Venckus, 278
I11. 124, 115 N. E. 880; State v.
Prettyman, 6 Boyce (29 Del.) 452,
100 Atl. 476.

11 State v. Kloss, 117 Mo. 591, 23 S. W. 780.

12 Commonwealth v. Mosler, 4 Pa. St. 264, 6 Pa. L. J. 90.

13 Whart. Law of Homicide, §

425.