dies, though he did not intend his death, yet he is guilty of murder by express malice."14

§ 349. Nature and scope of the emotion engendered.Strictly speaking, it is not the provocation which reduces a homicide from murder to manslaughter, but rather the state of mind produced by the provocation.15 If the state of mind which caused the killing was not produced by the provocation but a cooling time intervened, then the killing is not manslaughter.16 The passion, or state of mind, essential to render the homicide manslaughter must be sufficient to rebut the imputation of malice. But, to accomplish this end, it is not essential that the reason be dethroned and the power of volition destroyed.17 The state of mind produced by the provocation must be such that the violence of the excitement impedes the exercise of judgment, and renders the slayer accountable as an infirm human being.18 A transport of passion, which deprives of the power of self-control, is, in a modified or restricted sense, a dethronement of the reasoning faculty a divestment of its sovereign power; but an entire dethronement is a deprivation of the intellect for the time. being.19 In the latter case the state of mind of the slayer would render him wholly innocent of crime.

§ 350. Co-existence of passion and malice.-Passion and malice may both exist in the mind of the slayer at the time of the act. In the eye of the law, however, they can not co-exist as the moving cause of the homicide.20 In other words, the law presumes that the killing can not proceed

144 Bl. Comm. 199.

15 State v. Ellis, 74 Mo. 207, 218; In re Fraleys, 3 Okla. Cr. 719, 109 Pac. 295, 139 Am. St. 988.

16 Lindsey v. State, 125 Ark. 542, 189 S. W. 163; Marshbanks v. State, 80 Tex. Cr. 507, 192 S. W. 246; Hassell v. State, 80 Tex. Cr. 93, 188 S. W. 991.

17 State v. Hill, 4 Dev. & B. (N. Car.) 491, 34 Am. Dec. 396.

18 State v. Hill, 4 Dev. & B. (N. Car.) 491, 34 Am. Dec. 396.

19 Smith v. State, 83 Ala. 26, 3 So. 551.

20 State v. Johnson, 23 N. Car. 354, 35 Am. Dec. 742.

from both impulses. Either one or the other must be the dominant motive which characterizes the crime.

Malice is presumed from the act of killing; while, on the other hand, proof of adequate provocation neutralizes or overcomes this presumption. In other words, when the weight of the provocation is equal to, or greater than, that of the presumption of malice the provocation is adequate to reduce the killing from murder to manslaughter. Provocation, however great, never disproves malice. The most it can do in any case is to overcome the presumption of malice. A malicious killing, however, no matter how great the provocation, is always murder.21

§ 351. Passion, or state of mind, must emanate from the provocation. The state of mind which the law recognizes as sufficient to reduce a voluntary homicide from murder to manslaughter must emanate from an adequate provocation. In other words, the provocation must be the direct and controlling cause of the excited condition of the mind at the time of the act. Passion which is not produced by provocation is insufficient ;22 and when produced by provocation the law requires it to be sufficient to render the slayer incapable of cool and deliberate reflection.23

§ 352. Provocation of illegal arrest.—A homicide, though unintentional, committed in resisting a lawful arrest is murder.24 On the other hand, it is often said that even an intentional homicide committed in resisting an unlawful arrest is manslaughter. As a general rule this is true. It should be observed, however, that there are exceptions to it. But, or

21 State v. Johnson, 23 N. Car. 354, 35 Am. Dec. 742; State v. Lichter (Del.), 102 Atl. 529; Little v. Commonwealth, 177 Ky. 24, 197 S. W. 514.

22 Rex v. Lynch, 5 Car. & P. 324, 24 E. C. L. (Reprint) 587; Reg. v. Welsh, 11 Cox Cr. C. 336.

23 Crosby v. People, 137 Ill. 325, 27 N. E. 49. See also State v. Michael, 74 W. Va. 613, 82 S. E. 611, L. R. A. 1915 A, 533, where one was mistaken as to his assailant and shot another and killed him.

24 Commonwealth v. Grether, 204 Pa. 203, 53 Atl. 753.

dinarily, when the attempted arrest is illegal, as where the warrant is void, or the person making the attempt to arrest does so without a warrant, or without the officer's jurisdiction, the killing of the officer in resisting the arrest, whether done intentionally or otherwise, is manslaughter. The unlawful attempt in such case is usually regarded by the law as a sufficient provocation to reduce the killing from murder to manslaughter.2

25

§ 353. Illegal arrest-Not a justification-An exception.An attempted unlawful arrest will not, as a very general rule at least, justify a killing. "The attempt to take away one's liberty while it may be imposed by the imperfect defense, can not be resisted to the death. * Nothing short of an endeavor to destroy life or inflict great bodily harm will justify the taking of life, prevails in this case. The reason why a man may not oppose an attempt on his liberty by the same extreme measures permissible in an attempt on his life, appears to be because liberty can be secured by a resort to the laws."26 But there are cases where the party whose unlawful arrest is attempted may resist even to taking the wrongdoer's life, as where the attempt is to convey one by force beyond the reach of law, or to carry him out of the country.27

§ 354. Illegal arrest-When the killing constitutes murder.-Ordinarily, as heretofore stated, an attempted illegal arrest is a sufficient provocation to reduce a homicide from murder to manslaughter. It is to be observed, however, that the killing must be done in sudden anger, and by reason thereof. However great the provocation, if the killing re

25 Commonwealth v. Carey, 12 Cush. (Mass.) 246, 251; Creighton v. Commonwealth, 84 Ky. 103, 4 Am. St. 193, 7 Ky. L. 70, Beale's Cases 339. See also Roberts v. State, 14 Mo. 138, 55 Am. Dec. 97n; Drennan v. People, 10 Mich, 169.

261 Bish. Crim. L. (8th ed.), §868. See also State v. Meyers, 57 Ore. 50, 110 Pac. 407, 33 L. R. A. (N. S.) 143.

27 Creighton v. Commonwealth, 84 Ky. 103, 4 Am. St. 193, 7 Ky. L. 785, Beale's Cases 339.

sults from a malicious and cruel heart rather than from heat of blood, the homicide is murder. To render the homicide manslaughter, the proof must show that the killing, though intentional, was not the result of cool, deliberate judgment and previous malignity of heart, but, on the other hand, solely the result of sudden passion imputable to human frailty. In other words, it must be shown that the slayer was transported by ungovernable passion and deaf to the voice of reason, and that this state of mind was produced by an adequate provocation. Thus, where two men who had committed a crime killed the party who attempted to arrest them, not in sudden anger or heat of blood, but, conscious of their guilt, in order that they might escape just punishment, it was held that the homicide was murder and not manslaughter, even though the attempted arrest was illegal.28

A

§ 355. Illegal arrest-The slayer a felon.-Upon principle, it would seem that when a felon, conscious of his guilt, intentionally kills a person who attempts to arrest him, and the proof shows that the person attempting to make the arrest is without legal authority, the homicide is murder. sense of guilt can not arouse honest indignation in the breast, and therefore can not extenuate a cruel and wilful murder to manslaughter.29 In the case of a felon there is much less. cause for his reason to be disturbed or obscured by passion than exists in the case of an innocent person. In the felon's case the homicide results from the exercise of judgment, whereas in the case of the innocent person it results from passion.

§ 356. Illegal arrest-The slayer a third party.—A third party may lawfully interfere to prevent an illegal arrest. In the eye of the law such an arrest is a provocation not only to the person arrested but also to bystanders. And if a by

28 Brooks v. Commonwealth, 61 Pa. St. 352, 100 Am. Dec. 645.

29 Brooks v. Commonwealth, 61 Pa. St. 352, 100 Am. Dec. 645.

stander, without malice, kills another to prevent him from making an illegal arrest the homicide is manslaughter.30

31

§ 357. Homicide which results from mutual combat.-Ordinarily, a homicide which results from mutual combat is manslaughter and not murder.3 This is owing to the fact that in such case the killing is regarded as done in the heat of blood rather than maliciously. When, however, the proof shows that the slayer began the affray with intent to kill his adversary, or do him grievous bodily harm, the homicide is murder. Where two persons meet, without any previous intention of quarreling, and, suddenly, angry words pass which lead to blows, and in the heat of blood one of them seizes a weapon and inflicts upon his adversary a mortal wound, the homicide is manslaughter and not murder. In such case, it is immaterial who strikes the first blow, and also whether the instrument which is used is a deadly weapon or not. If a quarrel ensue between two persons and one strikes the other, and the latter attacks the former with a knife and severely wounds him, and the wounded party immediately kills his adversary, the homicide is held manslaughter.32

Moreover, previous encounters between the parties, eveni when malicious, and threats by one against the other, do not raise a legal presumption of malice in the subsequent enAs said by Hawkins, "Certainly, where two persons have formerly fought on malice, and are apparently reconciled, and fight again on a fresh quarrel, it shall not be intended that they were moved by the old grudge, unless it so appears from the circumstances of the affair."33

30 Reg. v. Mawgridge, Kelyng 119. See also Hugget's Case, Kelyng 59; Reg. v. Phelps, Car. & M. 180; Reg. v. Tooley, 2 Ld. Raym. 1296; Steph. Dig. Crim. L., App. xv.

31 State v. Reeves (Mo.), 195 S. W. 1027.

32 State v. Hill, 4 Dev. & B. (N. Car.) 491, 34 Am. Dec. 396.

331 Hawk. P. C., ch. 13, § 30. See also Copeland v. State, 7 Humph. (Tenn.) 479; State v. Hildreth, 31 N. Car. 429, 51 Am. Dec. 364.