than the law itself would do, and if they do not take this care, the risk will fall on their own head. Persons may quarrel and be reconciled, or an old grudge may be revived and burn with increased fury. But wherever there is mixed up with the circumstances of the death some provocation, care must be taken to see whether the provocation was real or pretended, whether the blood had time to cool, however great might be such provocation, for the character of the crime will depend on the reasonableness of the inference that malice did or did not govern the fatal act.1

It is difficult to extract rules as to this matter without knowing the surrounding circumstances, but manslaughter only has been deemed to be committed where the death was caused by the immediate revenge of a gross personal indignity;2 or revenge of a blow on the face drawing blood," or revenge of an arrest without proper authority. And the moderation and unexpected result of the act will also negative malice and reduce the crime to manslaughter, as when the instrument used was not calculated to endanger life; 5 or where it was only a tin can or stick that was used to strike. In these cases the jury must say whether the intention was to kill or merely to do some slight hurt.

Mutual fighting and a fatal issue.-Again, in mutual fighting, a balancing of circumstances sometimes gives murder and sometimes manslaughter as the true character of the act. Where a fight or duel is engaged in with deliberation and concert, or even without such deliberation, if express malice be developed in course of the fight, and a fatal issue ensue, this will be murder. But if in the heat of passion a fair fight continues, and nothing shows disproportionate violence or anger, this will be nothing but manslaughter. In such circumstances the materiality of the inquiry, Who gave the first blow? ceases altogether after a series of blows have been interchanged. But where a sword or knife was drawn, after a

11 Hawk. P. C. c. 31, § 30; 1 Hale, P. C. 452; Plowd. 100. 2 Kel. 135; 4 Bl. Com. 191.

4 Buckner's Case, Sty. 467. Raym. 143; 2 L. Raym. 1498.

5

3 Stedman's Case, Fost. 292. Turner's Case, Comb. 407; 1 L. 6 R. v Howlett, 7 C. & P. 274.

7 R. v Walters, 12 St. Tr. 113; R. v L. Byron, 11 St. Tr. 1177 ; Ayes, R. & R. 166.

R. v

2

long heat of varying success, then it is murder;1 and the same whether the struggle began in play, if it is carried on in anger. And where a stranger interferes in a fight and takes a side, it depends entirely on what was his motive, and the nature of the exigency, for according to that he may or may not be in a better position than the combatants if he identify himself with one.3

4

Fatal accident in contests of skill and prize-fights.—The case where contests of skill and strength occur also stands on a delicate footing. There are some of these which the law looks upon as innocent if fairly conducted, and with a single eye to the professed object, namely, to develop strength, foresight, or endurance. Such may well be considered to be the case with wrestling, fencing with foils, foot-races, which, though attended with occasional danger, yet have for their object nothing calculated to hurt or maim an adversary for the mere sake of injury. Hence, if any fatal issue arise, it will usually be treated as accident or misadventure. On the other hand, prizefights, duels with swords or pistols, cudgel-playing, though some of them are incidentally attended with only harmless results, are primarily intended to excite the passions of the parties and spectators to such a degree that each endeavours to achieve a victory over the other at any cost, and though begun with a show of fair play, often become heated with passion, and develop such malignity of hatred and recklessness of life, that all the elements of criminal disposition and of malice are present. Hence, if any fatal result occur, the guilt of murder more frequently than manslaughter will fall on the adversary who kills. Some of these contests will be viewed with different eyes by judges, according to their idiosyncrasy, whenever the sport is near the dividing line of the lawful and the unlawful. Hale seemed to think a fatal accident

1 R. v Snow, 1 Leach. 151.

2 R. v Carmiff, 9 C. & P. 359. R. v Bourne, 5 C. & P. 120. And the same conclusion

3 1 Hale, 484; 1 East, P. C. c. 5, § 58; 4 Fost. 260; 1 East, P. C. c. 5, § 41. was come to by the ancients, for in the public games in Greece and Rome, should a fatal accident occur it was deemed misadventure and nothing more.-Plato, Leg. b. vii.; Dig. ix. 2, 7; 2 Whewell, El. Mor. § 116. And in our own law it was once said that if by the king's command the sword-playing took place, any fatal issue would be deemed only accident.-1 Hale, 473; 4 Bl. Com. 167.

in course of wrestling, cudgelling, foils, and like diversions ought only to be treated as manslaughter; while Foster, treating these as manly diversions, seemed to treat them as mere accidents and nothing more, or nothing but legal negligence. Each judge relied on Sir J. Chichester's case for the inference he drew as to the rule of law. Much must necessarily depend on the weapons used, if any, and how they are used. Yet Sir M. Foster says that in cockthrowing, where a man in throwing missed his aim and killed a child looking on, he had ruled it to be manslaughter, for it was a barbarous, unmanly custom, frequently productive of great disorders, and dangerous to bystanders, and one that ought to be discouraged. The views of the law in such cases will vary from age to age, and what would be deemed in accordance with the rougher manners of former times may be intolerable in ours.

How far for the jury to decide on malice.-Since the critical point in question of unlawful killing is thus the malice of the killer, the presence of which as an ingredient makes the offence murder, and its absence makes it manslaughter, it is important to know, whether and how far it is for the jury or for the judge to decide that point. It was laid down by Sir M. Foster, that whether the malus animus or malice existed was a matter of inference to be determined by the judge, though whether the facts existed out of which the inference is derived is matter for the jury to decide. And the court, and not the jury, is the judge whether the blood has cooled, and the violent transport of passion has abated.3 Yet in all mixed questions of law and fact it is well to leave them to the decision of juries.* And malice, and especially what is termed malice in law, is peculiarly within the province of juries. The degree of probability that death will ensue from a particular act, and the intention of the agent, are inferences to be drawn from each peculiar combination of facts, and must vary from case to case. And so, whether in a doubtful case the murderous act was done from malice or from some provocation co-existing. Moreover such inferences are to be deduced

5

1 Keil. 108; Fost. 260; 1 Hale, 473. Raym. 1485; 17 St. Tr. 50.

2

Oneby's Case, 2 L. 3 Ibid.; R. v Fisher, 8 C. & P. 185. 5 Rv Hayward, 6 C. &

Macdonald Rooke, 6 Bing. N. C. 217. P. 157.

from ordinary transactions and from the conduct and language of persons of various classes. All these are peculiarly matters for the consideration of a jury and not of the judge. In a case of shooting a man who was out at night dressed in white as a ghost, and who terrified the neighbourhood, three judges held that this was murder; because, though the ghost committed a misdemeanour, it was no reason why he should be shot; and they told the jury, if they believed the evidence, they must either find the defendant guilty of murder, or acquit him. But the jury insisted on finding a verdict of manslaughter. In that case the court refused to receive the verdict.1

Murder by one of several acting illegally together.-The unlawful acts, in prosecuting which murder is committed, often consist of some conspiracy in which several persons combine. The rule is, that, where several persons combine to commit some breach of the peace in a tumultuous way, or some felonious act, and in carrying out the common design one kills a third person, all are equally guilty of murder, though some may have no active part in the particular act.2 Thus where two persons, after being refused a supply of beer at a prohibited hour, broke into the public-house, demanding to be supplied, and fought with the publican, one of them stabbing him with a sharp instrument, it was held that both were guilty of murder.3 And where Lord Dacre agreed with several persons to hunt in another's park for deer, and to kill all who might resist, one of the party having killed the keeper, all were held guilty of the murder, though Lord Dacre at the moment was a quarter of a mile distant, and knew nothing of the individual blow. So where several were engaged in stealing; 5 in beating another; and in smuggling.7

6

The reason why all are deemed guilty in such cases is, that the presence of accomplices gives encouragement, support, and protection to the person actually committing it. And indeed in Anglo-Saxon times the barbarous

11 Russ. Cr. 546.

2 1 Hale, 439; 1 Hawk. P. C. c. 31, § 51 ; 4 Bl. Com. 200. 3 R. v Willoughby, East, P. C. 288. 4 Dacre's Case, Mo. 86; Palm. 35. 5 Fost. 258; R. v Collison, 4 C. & P. 565; R. v Howell, 9 C. & P. 450. 6 Errington's Case, 2 Lew. 217. 7 Plummer's Case, Kel. 109. 8 18 St. Tr. 1106

notion was acted on, that any one present at a death was a particeps criminis.1

Not only must the act be done in pursuance of the common design, but it must be done while the parties are all acting at the time in carrying it out, for if there has been an interval and new confederations, the bond between the parties is thereby relaxed.2 One distinction is whether the murder naturally flowed out of the prosecution of the common purpose, as it did, where several persons went to seize goods illegally by force, and one of them threw a stone at a woman and killed her; 3 and where several went to poach together and one killed the keeper; + and where several persons were pursued on a hue and cry, and one turned and slew his pursuer; 5 and where several conspired to rob a man, and one of them killed the victim.6

In estimating the joint guilt of several persons thus engaged in a common illegal design, care must always be taken to distinguish whether the murderous act was committed in furtherance of such design, for otherwise the guilt of the murder will fall on the individual whose hand effected it; and those associated with him, though in some cases chargeable with manslaughter, will not be guilty of murder. Thus where two were beating one, and a stranger interfered, whereupon one of the assailants stabbed the stranger, this was held to be murder only in the one who stabbed, because the stabbing of a stranger was a collateral matter not arising in furtherance of the assault. And in reference to such interferences, the stranger must take care to use no more violence than is necessary to prevent the continuance of the fight."

Parties implicated in murder.-As regards the parties to a murder there are, in this as well as other felonies,

1 Leg. Inae, c. 33; Leg. Alf., § 26. 1 Hale, P. C. 440; East, P. C. 300. R. v Hodgson, 1 Leach, 6.

2 Case of Drayton Bassett, 3 R. v Mansell, Dyer, 128;

4 R. v Edmeads, 3 C. & P. 390; R. v Whithorne, 3 C. & P. 394; R. v Warner, Ry. & M. 380, 5 C. & P. 525; R. Hawkins, 3 C. & P. 392. 5 R. v Jackson, 7 Cox, C. C. 357; R. v Howell, 9 C. & P.

437, 6 R. v Price, 8 Cox, C. C. 96. 580; R. v Plummer, 12 Mod. 627, Kel. 100; R. Borthwick, 1 Dougl. 207.

v

9 R. v Bourne, 5 C. & P. 120.

7 R. v Franz, 2 F. & F. 109; R. v Salusbury, Plowd. 8 1 Hawk. P. C. c. 31, § 52.