woolen, linen, or cotton, or of any one or more of those materials mixed [*624 ] *with each other, or mixed with any other material, or any framework-knitted piece, stocking, hose, or lace, respectively, being in the loom or frame, or on any machine, or engine, or on the rack or tenters, or in any stage, process, or progress of manufacture; or shall unlawfully and maliciously cut, break or destroy, or damage with intent to destroy, or to render useless, any warp or shute of silk, woolen, linen, or cotton, or of any one or more of those materials mixed with each other, or mixed with any other material, or any loom, frame, machine, engine, rack, tackle or implement, whether fixed or movable, prepared for or employed in carding, spinning, throwing, weaving, fulling, shearing, or otherwise manufacturing or preparing any such goods or articles; or shall by force enter into any house, shop, building or place, with intent to commit any of the offences aforesaid; every such offender shall be guilty of felony, and being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned for any term not exceeding four years, and if a male, to be once, twice, or thrice publicly or privately whipped (if the court shall so think fit,) in addition to such imprisonment."

This clause enumerates a variety of separate offences. The proofs in general will be, 1, proof of the unlawful and malicious act; 2, the nature of the property upon which that act was done, which must appear to be within the description of the statute; 3, the property of the prosecutor; 4, the intent with which the act was done, according to the statute; and 5, the malice.

Where the prisoner was indicted, under the 28 Geo. 3, c. 55, s. 4, for entering a shop, and maliciously damaging a certain frame, used for the making of stockings, and it appeared that he had unscrewed and carried away a part of the frame, called the half-jack, an essential part of the frame, without which it is useless, this was held a damaging of the frame within the statute. Tacey's case, Russ, and Ry. 452 (a).

Where the prisoners were charged, under the 22 Geo. 3, c. 40, s. 1, with breaking into a house with intent to cut and destroy certain tools employed in making woolen goods, and it appeared that the article destroyed was part of the loom itself, they were held to be rightly acquitted. Hiel's case, Russ. and Ry. 483 (b).

Proof of destroying threshing-machines, and certain machines used in manufacture.] By the 7 & 8 Geo. 4, c. 30, s. 4, "if any person shall unlawfully and maliciously cut, break, or destroy, or damage with intent to destroy, or to render useless, any threshing-machine, or any machine or engine, whether fixed or movable, prepared for or employed in any manufacture whatsoever, (except the manufacture of silk, woolen, linen, or cotton goods, or goods of any one or more of those materials, mixed with each other, or mixed with any other material, or any framework-knitted piece, stocking, hose, or lace,) every such offender shall be guilty of felony, and, being convicted thereof, shall be liable, at the dis[ *625 ] cretion of the Court, to be *transported beyond the seas for the term of seven years, or to be imprisoned for any term not exceeding

(a) 1 Eng. C. C. 452. (b) Ibid. 483.

two years; and, if a male, to be once, twice, or thrice publicly or privately whipped, (if the Court shall so think fit,) in addition to such imprisonment."

It has been held in several cases, that it is an offence within the statute, though, at the time when the machine is broken, it has been taken to pieces, and is in different places, only requiring the carpenter to put those pieces together again. Mackerel's case, 4 C. and P. 448 (a). So where. the machine was worked by water, and the prosecutor, expecting a riot, took it to pieces, and removed the pieces to the distance of a quarter of a mile, leaving only the water-wheel and its axis standing, and the wheel was destroyed by the prisoners; this was held to be an offence within the statute. Fidler's case, 4 C. and P. 449 (b). Where certain sideboards were wanting to a machine, at the time it was destroyed, but which did not render it so defective as to prevent it altogether from working, though it would not work so effectually, it was still held to be a threshing-machine within the statute. Bartlett's case, Salisb. Sp. Com. 3 Deac. Dig. C. L. 1517. So also where the owner removed a wooden stage, belonging to the machine, on which the man who fed the machine was accustomed to stand, and had also taken away the legs; and it appeared that though the machine could not be conveniently worked without some stage for the man to stand on, yet that a chair or table, or a number of sheaves of corn would do nearly as well, and that it could also be worked without the legs; it was held to be within the statute. Chubb's case, Salisb. Sp. Com. 2 Deac. Dig. C. L. 151. But where the owner had not only taken the machine to pieces, but had broken the wheel, from fear of its being set on fire, and it appeared that, without the wheel, the engine could not be worked, this was held to take the case out of the statute. West's case,

Salisb. Sp. Com. 2 Deac. Dig. C. L. 1518. See also, Crutchley's case, ante, p. 24.

Distinction between manslaughter and murder.] Manslaughter is principally distinguishable from murder in this, that though the act which occasions the death is unlawful, or likely to be attended with bodily mischief, yet the malice, either express or implied, which is the very essence

(a) Eng. Com. L. Rep. xix. 467. (b) ld.

of murder, is presumed to be wanting in manslaughter, the act being rather imputed to the infirmity of human nature. 1 East, P. C. 218; Foster, 290. It also differs from murder in this respect, that there cannot be any accessaries before the fact to manslaughter, since the act is presumed to be altogether sudden and without premeditation. 1 Hale, P. C. 437. Thus if there be an indictment charging A. with murder, and B. and C. with counselling and abetting, as accessaries before the fact only, (and not as present aiding and abetting, for such are principals,) and A. is acquitted of murder, but found guilty of manslaughter, B. and C. must be altogether acquitted. 1 Hale, P. C. 437, 450; 1 Russell, 485.

Where A. was indicted for the wilful murder of B., and C. was indicted for receiving, harboring, and assisting A., well knowing that he had committed the felony and murder aforesaid; Tindal, C. J., held that if the offence of A. was reduced to manslaughter, C. might notwithstanding, be found guilty as an accessary after the fact. Greenacre's case, 8 C. and P. 35 (a).

In considering the evidence in cases of manslaughter, it will merely be necessary to state the points shortly, and to refer generally to the cases, all of which will be found set forth at length under the title, Murder, post.

The subject of manslaughter will be treated under the following heads: 1, cases of provocation; 2, cases of mutual combat; 3, cases of resistance to officers of justice, &c.; 4, cases of killing in the prosecution of an unlawful or wanton act; 5, cases of killing in the execution of a lawful act, improperly performed, or performed without lawful authority (1). See 1 Russell, 486.

Proof in cases of provocation.] Whenever death ensues from [ *627 ] *sudden transport of passion or heat of blood, if upon reasonable provocation, and without malice, or upon sudden combat, it will be manslaughter; if without such provocation, or if the blood has had reasonable time to cool, or if there be evidence of express malice, it will be murder. 1 East, P. C. 232. Foster, 313.

But where the provocation is sought by the prisoner, it will not furnish any defence against the charge of murder. 1 East, P. C. 239; 1 Hale,

P. C. 457.

Words of reproach, how grievous soever, are not a provocation sufficient to free the party killing from the charge of murder, neither are indecent or provoking actions or gestures, without an assault. Foster, 290, 291; Brain's case, 1 Hale, P. C. 455; 1 Russell, 435 (n.); Morley's case, 1 Hale, P. C. 456; Kel. 55, 1 East, P. C. 233.

Although an assault is in general such a provocation as that, if the party struck strikes again, and death ensues, it is only manslaughter, yet it is not every trivial assault which will furnish such a justification. 1 East, P. C. 236; 1 Russell, 434; Stedman's case, Foster, 292; Reason's case, Foster, 293, 2 Str. 499; 1 East, P. C. 320.

In cases depending upon provocation, it is always material to consider the nature of the weapon used by the prisoner, as tending to show the existence of malice. If a deadly weapon be used, the presumption is, that it was intended to produce death, which will be evidence of malice;

(1) 1 Wheeler's C. C. 254.

(a) Eng. Com. L. Rep. xxxiv. 280.

but if the weapon was not likely to produce death, that presumption will be wanting. 2 Ld. Raym. 1498; Rowley's case, 12 Rep. 87; 1 Hale, P. C. 453; Foster, 294; 1 East, P. C. 236; 1 Leach, 368; Wigg's case, 1 Leach, 378, (n).

In order that the provocation may have the effect of reducing the of fence to manslaughter, it must appear to have been recent; for if there has been time for passion to subside, and for reason to interpose, the homicide will be murder. Foster, 296; 1 East, P. C. 252; 2 Ld. Raym. 1496; Oneby's case, 2 Str. 766; 2 Lord Raym. 1485; Hayward's case, 6 C. and P. 157 (a).

As evidence of provocation is only an answer to that presumption of malice which the law infers in every case of homicide, if there be proof of malice at the time of the act committed, the additional circumstance of provocation will not extenuate the offence to manslaughter. In such a case, not even previous blows or struggling will reduce the offence to homicide. 1 Russell, 440; Mason's case, Foster, 132; 1 East, P. C.

239.

There is one peculiar case of provocation which the law recognizes as sufficient to reduce the act of killing to manslaughter, where a man finds another in the act of adultery with his wife, and kills him in the first transport of his passion. Manning's case, Sir T. Raym. 212; 1 Russell, 488. But if the husband kill the adulterer deliberately, and upon revenge, after the fact and sufficient cooling time, the provocation will not avail in alleviation of the guilt. 1 East, P. C. 251.

So if a father see a person in the act of committing an unnatural offence with his son, and instantly kill him, it seems that it will be [ *628 ] only manslaughter, and that of the lowest degree; but if he only hear of it, and go in search of the person, and meeting him strike him with a stick, and afterwards stab him with a knife, and kill him, in point of law it will be murder. Fisher's case, 8 C. and P. 182 (b).

In the above case Park, J. said, that whether the blood has had time to cool or not, is a question for the court, and not for the jury, but it is for the jury to find what length of time elapsed between the provocation received and the act done.

It has been held by Park and Littledale, JJ., that Grindley's case, 1 Russell, 8, in which Holroyd, J., ruled, that though voluntary drunkenness cannot excuse from the commission of crime, yet where, as upon a charge of murder, the question is, whether an act is premeditated or not, or done only from sudden heat or impulse, the fact of the party being intoxicated was a circumstance proper to be taken into consideration, is not law. Carroll's case, 7 C. and P. 145 (c).

Where the prisoner was indicted for stabbing with a fork with intent to murder, and it appeared that he was in liquor, Alderson, B. said, "If a man uses a stick you would not infer a malicious intent so strongly against him, if drunk, when he made an intemperate use of it, as you would if he had used a different kind of weapon, but where a dangerous weapon is used, which, if used, must produce grievous bodily harm, drunkenness can have no effect on the consideration of the malicious intent of the party." Meakin's case, 7 C. and P. 297 (d). In Thomas's

(a) Eng. Com. L. Rep. xxv. 331. (b) Id. xxxiv. 345. (c) Id. xxxii. 471. (d) Id. 514.

case, Id. 817, (a, which was also an indictment for maliciously stabbing, Parke, B., told the jury that "drunkenness may be taken into consideration in cases where, what the law deems sufficient provocation has been given, because the question is, in such cases, whether the fatal act is to be attributed to the passion of anger excited by the previous provocation, and that passion is more easily excitable in a person when in a state of intoxication than when he is sober. So where the question is, whether words have been uttered with a deliberate purpose, or are merely low and idle expressions, the drunkenness of the person uttering them is proper to be considered. But if there is really a previous determination to resent a slight affront in a barbarous manner, the state of drunkenness in which the prisoner was, ought not to be regarded, for it would furnish no excuse."

Proof in cases of mutual combat.] Death in the course of a mutual combat, though in some cases it amounts to murder, is generally found to constitute manslaughter only there being most frequently an absence of that malice requisite to a conviction for murder, and a sufficient degree of provocation to show such absence.

The degree of provocation is not altogether of the same nature in these cases as in those mentioned under the last head, for where, upon words of reproach, or indeed upon any other sudden provocation, the parties come to blows, and a combat ensues, in which no undue advantage is [*629 ] taken on either side, and one of the parties is killed, it is manslaughter only. 1.East, P. C. 241; 1 Hale, P. C. 456; Foster, 295.

But if one of the parties provide himself with a deadly weapon beforehand, which he uses in the course of the combat, and kills his adversary, this will be murder, though it would be only manslaughter if, in the beat of the combat he snatched up the weapon, or had it in his hand at the commencement of the combat, but without an intention of using it. Anderson's case, 1 Russell, 547; Kessal's case, I C. and P. 437 (b); Snow's case, I East, P. C. 244-5; and see Murphy's case, post, p. 660 (1).

Not only may death in the course of a mutual combat be heightened to murder by the use of deadly weapons, but by the manner of fighting, as in "an up and down fight." Thorpe's case, 1 Lewin, C. C. 171.

To reduce the homicide to manslaughter in these cases, it must appear that no undue advantage was sought or gained on either side. Foster, 295; 1 East, P. C. 242; Whiteley's case, 1 Lewin, C. C. 173.

The lapse of time between the origin and the quarrel is also to be greatly considered, as it may tend to prove malice. Lynch's case, 3 C. and P. 324 (c). But it is not in every case where there has been an old grudge that malice will be presumed. Hawk. P. C. b. 1, c. 31, s. 30; 1 Hale, P. C. 452.

The case of deliberate duelling is an exception to the general rule, that death ensuing in the course of a mutual combat is manslaughter only. Foster, 297. The authorities upon this subject will be found under the head, Murder, post.

(1) People v. Tuhi, 3 Wheeler's C. C. 242.

(a) Eng. Com. L. Rep. xxxii. 750. (b) Id. xi. 444. (c) Id. xxiv. 341.