Gann v. State

By the Court.

Lyon, J.,

delivering the opinion.

The Court having charged the jury that, “ In all cases of voluntary manslaughter, there must be some actual assault upon the person killing by the person killed, or an attempt by the person killed, to commit a serious personal injury on the person killing,” and then, after giving a charge as requested by counsel for prisoner, qualified such charge thus: “ In case it is proven that any such provocation was given as the Court has already mentioned, that is, a provocation, not by words, threats, menaces, or contemptuous gestures, whether said or sung, but an actual assault upon the person killing, or an attempt by the person killed, to commit a serious personal injury on the person killing.” This charge, when considered with reference to the facts of this case, is erroneous.

The Court was evidently impressed with the idea that the only thing which, under our statute, could reduce a homicide from murder to voluntary manslaughter, was an actual assault upon the person killing, or an attempt by the person killed to commit a serious personal injury on the person killing, and such is the letter of the statute on this subject, but there is more in the statute besides that. The statute says in another place, that “ the killing must be the x-esult of that sudden, violent impulse of passion, supposed to be irrisistible, and that is the general principle distinguishing voluntary manslaughter from murder rather than that enunciated by the Court. Whenever the killing results from such passion alone, and not from any mixture of malice or deliberation, then the killing is not murder, but is voluntary manslaughter, no matter how that passion may be aroused, for if there is no malice either expressed or implied, or criminal neglect, there can be no murder. The clause of the statute given by the Court to the jury to control them in passing on the facts of this case applies to that class of cases, and was so intended by the Legislature, where the only excuse for the killing was the provocation given by deceased to accused. Not to those cases, however, when the provocation given is of such a character that it so excites the slayer with such great and sudden heat of passion, that he cannot resist its influence, and when the killing is caused by such passion, and not solely on account of the provocation given. Any other construction of this statute would leave a large number of cases of homicide unprovided for, which are neither murder, involuntarily manslaughter, or justifiable.

2. From all that we can see of the facts of this killing, as disclosed by the evidence, these parties, that is, the deceased and the accused, went into the fight mutually, upon equal terms, each having and using a knife upon a sudden heat of passion, caused by the provocation given by deceased, and their'almost immediate collision, and that the killing was the result of this mutual fight and sudden heat of passion rather than of the provocation. Now, if this was the fact, the killing was voluntary manslaughter and not murder, and so the Court ought to have charged the jury. Instead of this, the charge as given, taken altogether, excludes such a principle from the consideration of the jury.

We find the principle thus broadly laid down: “ If A and B fall suddenly out, and they presently agree to fight in the field, and run and fetch their weapons, and go into the field and fight, and A kills B, this is not murder, but homicide,” (manslaughter.) 1 Hale, P. C., 453. “ If, upon a sudden quarrel, the parties fight upon the spot, or if they presently fetch their weapons and go into the field and fight, and one of them falleth, it will be but manslaughter.” 1 Hawkins, 31, sec. 22, 29. 4 Blk. Com., 191. “Upon words of reproach, or any sudden provocation, the parties come to blows, and a combat ensues, no undue advantage being sought or taken on either side, and death ensues under such circumstances, the offense of the party killing will amount only to manslaughter.” 1 Russ. on Crim., 585, refers to Fost., 285.

“ If two draw their swords upon a sudden quarrel, and one kills the other, it is only manslaughter.” 1 Russ, on Grim., 586, refers to Rex vs. Walters, 12 St. W., 113, and in such case it is immaterial who strikes the first blow.

Could a principle be clearer or better settled ? And it in no wise conflicts with our statute, but is in full accordance with its very letter and spirit. “ Manslaughter,” says the statute, “is the unlawful killing, etc., without malice, without deliberation, which may be voluntary upon sudden heat oe passion, or involuntarily,” etc., and again, “ the killing must be the result of that sudden, violent impulse of passion,” etc.

Apply this principle to the facts of this case. Deceased and his friends were traveling faster than accused and his crowd — for he was behind — had overtaken and passed them some twenty or thirty steps, when he renewed the singing that was so offensive to the prisoner. Prisoner cursed deceased, and said “ he could whip any Oshields or Collins of the name.” Deceased denied this ; he was willing for the fight, and had been from the first of the difficulty, and instead of going on with his companions, as he had been previously, he stops in the road and waits for accused to come up with him, and then the fight commences, each having and using his knife — blows and wounds are given and received, and no one knows who is the aggressor. The result is, that the prisoner in the fight kills Collins, the deceased, by a stab with his knife. Now, it is manifest that he did not kill Collins solely on account of the provocation, because at that time, the distance between them was some twenty or thirty steps, and prisoner had a repeater and double-barrel gun, and used neither to revenge the affront, which it is likely he would have done, had it been his purpose to kill deceased for the provocation. Had he done so in that way, his crime would have been murder. The provocation would have been no excuse. But he does no such thing; on the contrary, when he, in his anger, comes up, and in collision with deceased, who was awaiting him for that purpose, in the dark, they engage with each other in a mutual fight, on equal terms. Now, it is clear that such killing, if we have the facts aright, under the rule stated, is not murder, but manslaughter, and so the Court ought to have charged the jury, and so should have been their finding; and as the Court did not so charge, nor the jury so find, we reverse the judgment of the Court below, and send the ease back for a new trial.

There is nothing else in the rulings of the Court that is necessary for us to pass upon.

Judgment reversed. .