that the act has proceeded from the violent impulse of anger, outstripping the tardier operations of reason, but asks whether the anger has been provoked by sufficient cause and whether it has been made to yield to reason within a reasonable time. It regards men as rational creatures and expects them to subject their passions to reasonable control.60

61

Many decisions hold that the question of reasonable cooling time is one of law for the court to decide. Upon principle, however, the court should define to the jury the principles upon which the question is to be decided and leave it to them to determine whether the time was reasonable under all the circumstances of the particular case. 62

§ 365. Involuntary manslaughter-Definition-Essentials. -Involuntary manslaughter is the unintentional killing of another person, without malice, but without excuse or justification.62a

Its general requisites are as follows: (1) The killing must be unintentional; (2) it must be without malice; (3) it must be unlawful.

Involuntary manslaughter may arise from an act of malfeasance or misfeasance, or from mere nonfeasance.

§ 366. Homicide arising from acts of malfeasance.—A homicide which arises unintentionally from the commission of another crime may be murder or manslaughter, depending upon the circumstances of the case.

When a homicide arises from the commission of, or an attempt to commit a felony, such as robbery, rape, burglary or arson, or an act which naturally tends to cause death or grievous bodily harm, the killing is murder. This is owing

60 State v. McCants, 1 Speers L.

(S. Car.) 384.

61 Reg. v. Fisher, 8 Car. & P. 182; Rex v. Oneby, 2 Ld. Raym.

1485.

81 Am. Dec. 781, Beale's Cases 482, Derby's Cases 355.

62a Clouts v. State, 18 Ga. App. 707, 90 S. E. 373; Hunter v. Commonwealth, 171 Ky. 438, 188 S. W.

62 Maher v. People, 10 Mich. 212, 472; Maulding v. Commonwealth,

172 Ky. 370, 189 S. W. 251.

to the fact that in such cases malice is implied. On the other hand, when it arises from the commission of, or attempt to commit, a misdemeanor, or an act malum in se as distinguished from an act which is merely malum prohibitum, the killing is manslaughter.

§ 367. Homicide arising from assault and battery.-When a person commits an assault and battery which falls short of having a natural tendency to cause death or grievous bodily harm, and a homicide unintentionally arises therefrom, the killing is involuntary manslaughter.63 This is true if the death is occasioned merely by fear or terror.64

§ 368. Homicide arising from a prize fight.—When two persons engage in a prize fight, which constitutes a breach of the peace, and one unintentionally kills the other, the homicide is manslaughter.65

In a state, however, in which prize fighting is lawful the unintentional killing of one of the contestants by the other would be excusable homicide.66 While, on the other hand, where prize fighting is a felony, the homicide, according to the common-law rule, would be murder. Moreover, under this principle, to constitute the killing murder it is not essential that the act intended be such as to endanger life or threaten grievous bodily harm. The mere fact that the kill

63 People v. Steubenvoll, 62 Mich. 329, 28 N. W. 883; Reg. v. Towers, 12 Cox Cr. C. 530, Beale's Cases 425 (man assaulted a woman who was nursing a child, thereby causing the child to have convulsions and die); State v. Lockwood, 119 Mo. 463, 24 S. W. 1015, Derby's Cases 367; Fray's Case, 1 East P. C. 236, Beale's Cases 477; Wild's Case, 2 Lew. Cr. C. 214, Beale's Cases 347.

64 In re Heigho, 18 Idaho 566,

67

110 Pac. 256, 32 L. R. A. (N. S.) 877.

65 Reg. v. Knock, 14 Cox Cr. C. 1; Ward's Case, 1 East P. C. 270.

66 Reg. v. Bradshaw, 14 Cox Cr. C. 83, Beale's Cases 146, Derby's Cases 269 (football); Reg. V. Young, 10 Cox Cr. C. 371 (sparring); Reg. v. Bruce, 2 Cox Cr. C. 262. See also 4 Bl. Comm. 182; 1 Hale P. C. 473.

67 People v. Enoch, 13 Wend. (N. Y.) 159, 27 Am. Dec. 197n.

ing grows out of an act which constitutes a felony is sufficient.68 It has been held that a homicide arising from the commission of a robbery where the killing is done in attempting to escape with the booty, is murder.69

§ 369. Homicide arising from playing football.-When several persons engage in a game of football, in a manner such as to be dangerous to life or limb, and one of the players unintentionally kills another, the homicide is manslaughter. Moreover, the fact that the game is played according to established rules is no excuse.70 On the other hand, when the game is played in a lawful manner, and one of the players is killed unintentionally, the homicide is excusable. For, in such case, "The act is lawful, and the effect is merely accidental."72

71

§ 370. Homicide arising from correction of a child, pupil or apprentice. When a parent corrects his child, teacher his pupil or master his apprentice beyond the bounds of moderation, and death unintentionally arises from the undue chastisement, the homicide is manslaughter.73 If, however, the chastisement is within the bounds of moderation, the homicide is excusable.74

68 People v. Sullivan, 173 N. Y. 122, 65 N. E. 989, 63 L. R. A. 353n, 93 Am. St. 582; Adams v. People, 109 Ill. 444, 50 Am. Rep. 617; Kennedy v. State, 107 Ind. 144, 6 N. E. 305, 57 Am. Rep. 99; State v. Wagner, 78 Mo. 644, 47 Am. Rep. 131; Reg v. Serne, 16 Cox Cr. C. 311, Beale's Cases 465; Steph. Dig. Crim. L., art. 223.

69 State v. Brown, 7 Ore. 186. 70 Reg. v. Bradshaw, 14 Cox Cr. C. 83, Beale's Cases 146, Derby's Cases 269.

71 Reg. v. Bradshaw, 14 Cox Cr. C. 83, Beale's Cases 146, Derby's

Cases 269; Belk v. People, 125 Ill. 584, 17 N. E. 744.

724 Bl. Comm. 182. See also Reg. v. Bruce, 2 Cox Cr. C. 262, Beale's Cases 202.

731 Hale P. C. 455; State v. Fields, 70 Iowa 196, 30 N. W. 480; State v. Shaw, 64 S. Car. 566, 43 S. E. 14, 60 L. R. A. 801n, 92 Am. St. 817; Rex v. Cheeseman, 7 Car. & P. 455; Reg. v. Griffin, 11 Cox Cr. C. 402, Beale's Cases 315; Commonwealth v. Randall, 4 Gray (Mass.) 36.

741 East P. C. 260, 269; Fost. C. L. 262, Beale's Cases 185, 315; 4 Bl. Comm. 182.

§ 371. Homicide arising from a riot.-When a number of persons engage in the commission of a riot which results in an unintentional homicide, the killing is manslaughter and not murder. This is owing to the fact that riot, at commen law, is only a misdemeanor.75

§ 372. Homicide arising from an unlawful attempt to procure an abortion or from unlawful intercourse.-When a person unlawfully attempts to procure an abortion, in a manner not to endanger life or inflict serious injury and the woman dies, the homicide is manslaughter,76 When, however, the act is done under circumstances, or in a manner which endangers life or inflicts serious injury, and the woman dies, the homicide is murder."

Where one raped a child and gave her venereal disease, from which she died, there may be conviction of either manslaughter or murder.78

§ 373. Homicide arising from an act which is merely malum prohibitum.-To render a person criminally liable for an unintended result, the act from which it arises must be at least malum in se. Hence, where it is merely malum prohibitum he is not criminally liable for such result. Thus, where a person, while driving at a speed prohibited by a city ordinance, but not recklessly, runs into another, he is not

75 Brennan v. People, 15 I11. 511; Patten v. People, 18 Mich. 314, 100 Am. Dec. 173; State v. Jenkins, 14 Rich. L. (S. Car.) 215, 94 Am. Dec. 132; Sloan v. State, 9 Ind. 565; Rex v. Murphy, 6 Car. & P. 103. See also 1 Whart. Crim. L. (11th ed.), §§ 451, 524, 527.

76 Yundt v. People, 65 Ill. 372; Commonwealth v. Railing, 113 Pa. St. 37, 4 Atl. 459; People v. Olmstead, 30 Mich. 431; Worthington v. State, 92 Md. 222, 48 Atl. 355,

84 Am. St. 506, 56 L. R. A. 353; State v. Farnum, 82 Ore. 211, 161 Pac. 417, Ann. Cas. 1918A, 318.

77 State v. Moore, 25 Iowa 128, 95 Am. Dec. 776n; 1 Hale P. C. 429, 430. See also Commonwealth v. Parker, 9 Metc. (Mass.) 263, 43 Am. Dec. 396; Peoples v. Commonwealth, 87 Ky. 487, 9 S. W. 509, 810, 10 Ky. L. 517; State v. Harris, 90 Kans. 807, 136 Pac. 264, 49 L. R. A. (N. S.) 580n.

78 Reg. v. Greenwood, 7 Cox Cr. C. 404, Derby's Cases 343.

criminally liable for assault and battery.79

Nor would he be

liable for felonious homicide if the person run into were killed. And where a person, while carrying a concealed revolver in violation of law, accidentally discharges it and kills another, he is not liable for felonious homicide;80 or where hunting game on another's land in violation of statute, he unintentionally without negligence kills another and such hunting is not in itself dangerous to life.81

§ 374. Homicide arising from a mere tort.—When an unintentional homicide arises from a mère tort the killing is excusable. As said in a leading English case, "The mere fact of a civil wrong committed by one person against another ought not to be used as an incident which is a necessary step in a criminal case."82

§ 375. Homicide arising from acts of misfeasance.-A homicide which arises unintentionally from the doing of a lawful act in a grossly negligent manner is involuntary manslaughter.83

There are many cases in which death is the result of an occurrence, in itself unexpected, but which arose from negligence or inattention. How far in such cases the agent of such misfortune is to be held responsible, as a general rule depends upon the inquiry, whether he was guilty of gross negligence at the time.84 What constitutes gross negligence depends upon the circumstances attending the particular Thus, driving a team of horses, riding a bicycle or

case.

79 Commonwealth v. Adams, 114 Mass. 323, 19 Am. Rep. 362, Beale's Cases 204.

80 Potter v. State, 162 Ind. 213, 70 N. E. 129, 64 L. R. A. 942, 102 Am. St. 198, 1 Ann. Cas. 32.

1 State v. Horton, 139 N. Car.

588, 51 S. E. 945, 1 L. R. A. (N. S.) 991n, 4 Ann. Cas. 797.

82 Reg. v. Franklin, 15 Cox Cr. C. 163, Beale's Cases 203.

83 Fost. C. L. 262, Beale's Cases 185.

841 Whart. Crim. L. (11th ed.). §§ 454-495.