So if he did give previous warning, then, if it happened in a country village where few persons pass, it will be misadventure only-if in London, or other populous towns, at a time when the streets are full, manslaughter.-Arch. 322; 3 Inst. 57; Fost. 261, 262, 263; 1 Hale, 472, 475; Kel. 40; 1 Hawk. c. 29.

By 7 & 8 Geo. IV. c. lxxv. s. 38, in case any greater number of passengers shall be carried in any boat, &c. in the river Thames, &c. than is allowed by the act, and any one or more of them shall by reason thereof be drowned, every person navigating such boat, &c. and being thereof lawfully convicted, shall be deemed guilty of misdemeanor, and liable to be punished accordingly at the discretion of the court, and shall be disfranchised, and not allowed thereafter to navigate any boat, &c. on the Thames.

By 9 Geo. 4, c. 31, s. 10, it is provided that no punishment or forfeiture shall be incurred by any person who shall kill another by misfortune or in his own defence, or in any other manner, without felony.

2. Felonious Homicide.

The cases of felonious homicide are as follows:

1. Manslaughter.

This consists in the unlawful killing of another without malice, either express or implied.-4 Bl. C. 191; 1 Hale, 466.

It may be either voluntary or involuntary.—Ibid.

Voluntary manslaughter is where one person kills another in heat of blood.-4 Bl. C. 191; Fost. 296; 1 Hale, 453; 1 Hawk. c. 31, s. 29; Arch. 315.

One case of voluntary manslaughter arises upon fighting. --Ibid.

If two persons quarrel and afterwards fight, and one kill the other, and if there had not intervened between the quarrel and the fight a sufficient cooling time for passion to subside, this is manslaughter.-Ibid.

And this even though they should have gone out to fight in a field.

Ibid.

And whether the party killing struck the first blow or not.-Ibid.

But if there had been a sufficient cooling time it is not manslaughter, but murder.-Ibid.

Therefore in the case of duelling, if death ensue, it is murder; and it is murder both in the killer and his second; but whether the second of the deceased is guilty of murder is doubted by Lord Hale.-1 Hawk. c. 31, s. 21; 1 Hale, 442, 452; Fost. 297; 3 East, 581.

And even in the case of a quarrel where there has been no time to cool before the fight, yet if the case be attended with such circumstances as indicate malice in the killer, it will not be manslaughter, but murder.-Fost. 295.

For example, if A. and B. quarrel, and A. draw his sword and make a pass at B. the sword of the latter being then undrawn, and B. thereupon draw his sword, and they fight, and B. is killed, A. would be guilty of murder, for his making the pass before B. had drawn his sword shews that he sought his blood.—Ibid.

So, if two persons fight upon a sudden quarrel and be separated, and one of them afterwards, having provided himself with a deadly weapon, lies in wait for the other, to have an opportunity thus armed to renew the quarrel, and they accordingly meet, quarrel, and fight, and the man who is armed kills the other, this is murder.-1 Leach, 151; 1 East, P. C. 245.

Killing a person in a prize fight is manslaughter.—4 Bl. C. 183; 1 East, P. C. 270.

Another case of voluntary manslaughter arises upon provocation.

If a man kill another upon considerable provocation, and suddenly, it is manslaughter only, not murder.-Kel. 135; 1 Hale, 466-486; Fost. 290.

As if a man pull another's nose, or be taken in adultery with his wife.-Ibid.

But the provocation must be considerable, for no mere words or gestures, however opprobrious, will be considered sufficient to reduce a case to manslaughter, where an intention to kill appears; as where the killing was effected by a deadly weapon.-Fost. 290, 291; 1 Hale, 455; Arch. 818, 319.

Where the weapon which gave the fatal blow, however, was not likely to kill, there, though the provocation be less, the case will amount to manslaughter only.-Ibid.

So the killing must be sudden, for however great the provocation if there be a sufficient cooling time, it is murder.-4 Bl. Com. 191; Fost. 296.

In the particular case of killing an officer of justice (either civil or criminal) such as bailiff, constable, &c. in the regular execution of his duty, knowing him to be an officer, and with intention to oppose him in such his duty, the party killing, and those who aid him, are guilty not of manslaughter, but murder; for in such cases the law will infer malice.-1 Hale, 456, et seq.; Fost. 308, et seq.; Arch. 324, 327.

And the case is the same as to killing private persons lawfully interfering in affrays, felonies, &c. provided they expressly intimate their intention of so interfering.-Ibid.

But where an officer, &c. is resisted and killed executing a defective process, as where the party is wrongly named in the writ, or executing his authority in an illegal or irregular way, as where he arrests the wrong person, or out of his proper district, &c. the killing is manslaughter, unless circumstances appear tending to prove express malice, and then it is murder.-1 Hale, 457, 459; Fost. 312; Arch. 326.

One instance of irregularity relates to the breaking open of an outer door or a window. In civil process this is generally unlawful.-Fost. 319; Arch. 327.

But this protects only the occupier or any of his family residing in the house, and does not extend to the case of a stranger taking refuge there upon pursuit.-Fost. 320.

And it extends to the outward door only, and not to an inner door; and to an arrest in the first instance only; for

if a man arrested escapes and takes shelter, though in his own house, the outer door may be broken open.-Fost. 320.

Nor does it extend to criminal cases.-Ibid.

But even in criminal cases such breaking is illegal unless done by an officer acting under a magistrate's warrant. -Fost. 321.

And in every case, civil or criminal, such breaking is unlawful, unless there be a previous notification of the business of the officer and demand of admittance, (or something equivalent thereto,) and a refusal.-Fost. 320.

When an outer door or a window is in any of these cases unlawfully broken open, and the officer resisted and killed, it is manslaughter only, unless circumstances appear tending to prove express malice, and then it is murder.-Fost. 319; Arch. 327.

Involuntary manslaughter is where a man doing an unlawful act, not felonious or tending to bloodshed, or doing a lawful act without proper caution, kills another undesignedly. (V. sup. Innocent Homicide, case 8.)

But if the act in which he was engaged was felonious or tending to blood, he is guilty of murder.-Ibid.

Manslaughter is felony at common law.

In manslaughter there can be no accessary before the fact, for the offence is sudden and unpremeditated.—1 Hale, 450, 616.

By 9 Geo. IV. c. 31, sect. 9, every person convicted of manslaughter 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, with or without hard labour, in the common gaol or house of correction for any term not exceeding four years, or to pay such fine as the court shall award.

2. Murder.

Murder is thus defined or described by Lord Coke. "Where a person of sound memory and of the age of discretion unlawfully killeth any reasonable creature in being, and under the king's peace, with malice aforethought,

either express or implied, so as the party die of the wound, &c. within a year and a day after the same."-3 Inst. 47.

It cannot be committed by an idiot, lunatic, or infant of such age as to be doli incapax.-V. sup. Chap. II.

But if any person procure another person subject to such disability, to murder, the procurer is guilty of murder, and guilty (whether present or not) as a principal.—1 Hawk. c. 31, s. 7.

And a lunatic during a lucid interval, or if he has any sense of right and wrong, may be guilty.-Arch. 13.

Killing by bearing false witness against another, with premeditated design to take away his life, is said by Lord Coke," not to be holden for murder at this day."-3 Inst. 48; Fost. 132.

If a man by working on the fancy of another, or by harsh or unkind usage, puts him into such a passion of grief or fear that he dies suddenly, or contracts some disease of which he dies, this is not murder, because there is no external act of violence whereof the law can take notice.1 Hale, 429.

If a man lay poison to kill rats and a man casually take it, whereby he is poisoned, this is no felony; but if a man lay poison to the intent that B. should take it, to be poisoned therewith, and C. by mistake takes it and is poisoned to death, this is murder, though the poison was not intended for him.-1 Hale, 431.

Doing an act of which the probable consequence may be and eventually is death, though the consequence be indirect only, is murder, if the case be such that a murderous intention must be inferred; as where an apprentice was treated with such continued harshness and severity that his death was occasioned thereby, or where a woman delivered of a child left it in an orchard covered with leaves, and it was struck by a kite and died.-Leach, 127; 1 Hawk. c. 31, s. 4; 1 Hale, 432.

When a person acting medically or surgically treats his patient with gross ignorance, negligence, or rashness, and thereby occasions his death, the case is not murder, but