In the article Homicide, it is said that felonious homicide is either manslaughter or murder. These two are distinguished from each other by the intent winch causes or accompanies the act. If a homicide be not justifiable nor excusable, and yet be not committed with malice aforethought, it is manslaughter. It is quite certain that the intent need not be to kill; for while there must be a criminal intent to make a person amenable to law as a criminal, yet if one crime be intended, and in the act of committing it another of a higher character be also committed without intent, the criminal is responsible for this higher crime. The general principle laid down in respect to manslaughter is, that not only a positive intention to commit some crime, but mere negligence, may make one guilty. If any one take upon himself an office or duty requiring care or skill, he is liable for the want of either; and if death be the consequence of his ignorance or carelessness, he is guilty of manslaughter. So if one driving furiously run over and kill a person whom he did not see, or if one in command of a steamer or sailing vessel by reason of gross negligence run down a boat and some one in it be drowned, this would be manslaughter.
So if any one, whether medical by profession or not, deal with another as a physician, and through gross want of care or skill kill him; or if any one charged "with building a house of any kind construct it so badly that it falls and kills persons within or near it; or if in building he drop a stone upon some one passing below, and kill him; in all these cases he would be guilty of manslaughter, provided he were grossly negligent in the act causing the death. This is the essential question; thus, in the last case, if he were building in a place where few persons were, and it was by a rare occurrence that some one happened to be where the stone fell, it is said that there would be no such negligence as would make the killer responsible as a criminal; while, on the other hand, if it were a crowded thoroughfare, and the person dropping the stone gave no notice or warning and used no precaution to prevent mischief, the crime would then amount to murder. So if one ride a vicious horse, who kicks some one to death, it is no crime whatever if the rider did not know his character and did nothing by his carelessness to bring about the fatal result; but if he knew that the animal was vicious, and carelessly rode him near a crowd and exposed him to alarm likely to make him run into the crowd and do mischief, then the killing would be manslaughter.
Sometimes it is said that if manslaughter be charged upon one on the ground of negligence only, without intent, this charge can be sustained only by evidence of the grossest negligence. It has been held that the mere omission to do an act cannot, although death ensue, make the man guilty of manslaughter. But if the omission were of an act which was certainly a duty, and such an act that any reasonable person must know that its omission would be very dangerous to life, the principles of criminal law would lead to the conclusion that this might be manslaughter. Thus, a man employed to wall a shaft in a colliery, and whose duty it was to place a stage over the mouth of the shaft, having omitted this, and a man being thereby killed, the court of king's bench held him guilty of manslaughter. It seems to be agreed that if the act omitted were a legal duty, it would certainly amount to that crime. It should be added that the law always presumes (in the absence of clear proof to the contrary) that a man intended to do the thing he actually did, and intended the consequences which naturally and actually flow from his act; and this principle applies even where the act causes death. So a very nice distinction is taken in law between a malum prohibitum and a malum per se.
Thus, if there be a law prohibiting the shooting of woodcocks before the 4th of July, one who shoots at one in June intends to break a law; but if, while thus shooting, by mere accident and without negligence, he should kill a man, this would be no crime, because shooting a woodcock at that season is an offence only because the law has made it so. But if he shoot at his neighbor's poultry, and by accident kill his neighbor, this is manslaughter; because the destroying his neighbor's property was an offence of itself, independently of municipal law. - But by far the most frequent and most difficult questions in practice are those which must be determined either by the means used to produce death, or by the presence or absence of previous hostile intention. It is a general rule, that if one kills another with a deadly weapon, it is more than manslaughter; and it has been said authoritatively, that whether the weapon used be a deadly weapon or not, is not a question of fact for the jury, but a question of law for the court. (See Murdee.) The other question, as to previous hostility, generally turns upon the preliminary question, whether the act was committed in "the heat of passion," or under sudden provocation. If one, being angry, attacks another, his anger is not an entire excuse.
But if a quarrel and conflict ensue, and the assailant kills the man whom he attacked, while this is a felonious homicide, it is not murder, because there is an absence of that malice aforethought which is of the essence of murder; and therefore it is manslaughter. Still further would it be from murder if the party killing had been himself attacked. But neither would this excuse the act if it were not made necessary by the nature of the attack; but it would reduce the crime to manslaughter. Here, however it is to be remembered that such a quarrel makes that to be only manslaughter which would otherwise be murder, for no other reason than because it negatives the supposition of malice aforethought. If therefore this he proved as if it be shown that the killer had a grudge against the deceased, and had manifested a violent hatred and intention to injure him, it might be inferred that he provoked the quarrel merely to give him the opportunity of gratifying his malice. In such a case the quarrel, instead of negativing malice, would help to prove it; and therefore, of course, it could not have the effect_ of reducing the felony to manslaughter.
So if there had been a quarrel and much provocation, and the quarrel had abated, and one of the parties withdrew and provided himself with a dangerous weapon, and returning killed the other, the excuse of " heat of passion " would not apply, for there would then be evidence of deliberate purpose. So, too, let the provocation be what it may, if there be no excitement or heat of passion, the killing will be deemed deliberate and intentional. Still, where there was much provocation, and no evidence of hostile purpose previous to the provocation, the killing itself would generally be deemed evidence of excited temper. There are other cases which the law regards as only manslaughter, without evidence of momentary excitement; partly because the law infers that from such a provocation there must be excitement; and partly, perhaps, because the party killed brought his death upon himself by his outrageous wrong. Thus, if a husband detects his wife in adultery, and instantly and purpose ly takes either her life or her paramour's, it is only manslaughter. Not so, however, if la-waits for a subsequent opportunity, for then the first reason wholly fails, and the killing becomes murder.
In one English case, where a man had his pocket picked, and with the assistance of others threw the thief into a pond to punish him by a ducking, and the man was drowned, this was held only manslaughter. - Questions of this kind are so frequent, and at the same time so difficult, that the legislatures of many of the United States have endeavored to aid in their determination by discriminating between different classes and degrees of manslaughter, defining each degree, and affixing to it appropriate punishment. We have not space to speak of these in detail, but to illustrate the prevailing principles of classification refer to the statutes of New York. By these, four degrees of manslaughter are defined. The first degree, briefly stated, consists of killing without the purpose of death, when the deceased was engaged in perpetrating or attempting a crime less than felony, and where such killing would be. at common law, murder. Assisting in self-murder is manslaughter in the first degree, as also wilfully killing an unborn quick child by injury to the mother, if it would he murder in case the mother died from the injury.
The second degree consists in procuring abortion otherwise; killing in the heat of passion without the intent of death, but in a cruel and unusual mannor; or killing unnecessarily one attempting to commit a felony. The third degree is killing in heat of passion, without intent of death, but with a dangerous weapon; involuntary killing, by procurement or negligence of another, while the person killed is engaged in committing a trespass on property; suffering an animal known to be mischievous to go abroad without care, or keeping it without care, and thereby causing death; receiving wilfully or negligently so many persons into a boat or vessel as to cause death; racing while in command of a steamboat carrying passengers, bursting the boiler, and so killing; killing by a physician while in a state of intoxication. The fourth degree may be said to include all other modes of manslaughter, known as such at common law, and of a milder kind than the preceding.