on, and the husband is mistaken as to the fact, though the circumstances were such as to justify a belief, even, of adultery, the offense would not be reduced to manslaughter." The statement is correct. The particular form of manslaughter the court was called upon to explain was this: An intentional killing in a transport of passion induced by an immediate wrong done to the killer by the person killed, which the law deems to be of such nature that the ordinary man is unable, under the first sting of its infliction, to control a natural impulse to punish the offender. Such an injury, if unprovoked, constitutes a provocation, which may render the immediate killing of the offender, in the transport of sudden anger, caused by the injury received, manslaughter, and not murder. It is a principle common to most systems of jurisprudence, arising from essential conditions of life, that the punishment for unjustifiable, intentional killing should be less severe when the fatal blow is impelled by a transient rage, reasonably induced by and immediately following a wrongful act done by the person killed to the slayer. Such wrongful act constitutes legal provocation, which demands the milder punishment; that is, under our law reduces murder to manslaughter. It should, however, be remembered that to call for the milder punishment the killing must be in fact the result of a sudden rage, difficult for the ordinary man to control, directly induced by a grievous injury. If in fact it is the result of the cruel spirit of revenge that must have life for a wrong, it is murder, no matter what the provocation may be.

In drawing the line between the crimes of murder and manslaughter, the law repels the notion that killing in revenge can be less than murder. The cases in which particular facts have been held to show legal provocation point to a principle, common to all, by which each is determined, and suggests its foundation, namely, when the mind of the slayer is not possessed by that conscious cruelty indicated by voluntary killing, but by a sudden transient rage, being the natural product of an injury then done to him by the person killed, the offense may be manslaughter. Mere rage is insufficient. It must arise directly from an injury then received, which must be as real as that caused by a severe battery. Mere insult is insufficient in law to produce this rage, unless it involve. some grievous injury; not a fanciful one, such as may result from mocking words or gestures, but a substantial injury, such as may be caused in some conditions of life by an unpunished personal affront, or such as may be suffered by a husband or father in the degradation of his wife or child. It is the combination of adequate insult and injury received, of sudden and uncontrollable transient rage thereby naturally produced, and of unlawful killing directly resulting from that rage, which marks such killing as manslaughter. The essence of the common law, as affecting the distinction between murder and manslaughter (excluding some arbitrary tests),

is this. Murder implies the presence as dominating a voluntary act causing death of an inhuman or unnaturally cruel state of mind; manslaughter implies its absence. It is thus stated by Lord Holt in 1707: "He that doth a cruel act voluntarily, doth it of malice prepensed." Reg. v. Mawgridge, 1 Kel. 119 et seq. Sir J. F. Stephen characterizes this definition of malice aforethought as correct and happy, and with the insertion of the words "or cruelly reckless" as solving nearly all questions as to the distinction between murder and manslaughter. 1 Steph. Hist. Cr. Law Eng. pp. 70, 73. Russell thus explains what may be involved in a cruel act: "Violent acts of resentment bearing no proportion to provocation or insult are barbarous, proceeding rather from brutal malignity than human frailty; and barbarity will often make malice." 1 Russ. Cr. (9th Am. Ed.) 713.

Intentional unlawful killing is necessarily a cruel act, which implies murder; but when the person killed is himself the aggressor through giving a provocation adequate to produce a sudden anger and impulse to punish the wrong, sufficient to dominate the will of the killer, the inherent cruelty of the act is so far modified as to make the offense manslaughter. Provocation, therefore, is legally effective, because for the moment it prevents, subdues, or excludes from the mind of the criminal actor that unnatural cruelty which is the earmark of murder through the controlling presence of natural rage immediately induced by an adequate injury. The essential test of an adequate injury is its inherent and judicially known capacity, under existing social conditions, to cause such rage, as a rule, when inflicted on the ordinary man. The conditions to which this part of the charge applied were these: (1) An admittedly intentional, unlawful killing; (2) in a transport of rage; (3) induced by an injury and insult done to the defendant by adultery committed with his wife in his presence. To make the offense manslaughter, the injury must have been done. Intentional unlawful killing in a rage is murder, and not manslaughter. Anger thirsting for the blood of an enemy is in itself an earmark of murder, no less than revenge or brutal ferocity; but when it is provoked by the wrongful act of the person slain, who thus brings upon himself the fatal blow, given in the first outbreak of rage, caused by himself, the offense is manslaughter; not only because the voluntary act is, in a way, compelled by an ungovernable rage, but also because the victim is the aggressor; and his wrong, although it cannot justify, may modify, the nature of the homicide thus induced. The court therefore correctly told the jury that, to make the offense manslaughter, the injury claimed as a provocation must have in fact been done. Our law of homicide recognizes no provocation as legally competent to so modify the cruelty of intentional, unlawful kiliing as to reduce the offense to manslaughter, except the provocation involved in an actual and adequate injury and insult. A

different rule of provocation applies when the killing is not intentional; as where it results from the use of force, not intended, and not naturally adapted, to cause death. But where the killing is both intentional and unlawful, the only legal provocation is that given by an actual injury and insult.

The decision of the majority of the court is based on the assertion that the intentional unlawful killing of an innocent person who has done the slayer no wrong may be manslaughter; or, in other words, an actual injury done to the slayer is not essential in order to reduce such killing from murder to manslaughter. I find no authority in our law for this assertion. During the three centuries in which the distinction between the crime of murder and that of manslaughter has been developed and established, there is, so far as I have been able to discover, no dictum of jurist, or decision of court which has failed to recognize the necessity of an actual injury and insult given by the killed and suffered by the killer as necessary to the reduction of intentional, unlawful killing from murder to manslaughter. It seems to me unquestionable that the decision involves a clean-cut and radical change of existing law. I think such a change would be unwise, and inconsistent with the considerations of public policy that underlie our law of homicide. It is, however, unnecessary to discuss the wisdom of the change, for it is one within the province of the Legislature, and not of the court to make.

I think there is no error, and that a new trial should be denied.1

1 Parts of the opinion of Baldwin, J., and Hamersley, J., are omitted. State v. Saxon, 87 Conn. 5, S6 A. 590 (1912).

Cr.

"The seventh request was: 'If the jury believed that the defendant assisted in killing Ouloosian, but under threats against the defendant by Kasper, as shown by the evidence, then they are to find the defendant guilty of manslaughter.' This request was refused. We have already seen that the intentional killing of another under threats is held to be murder. The only ground upon which the request is urged-indeed, the only one upon which it can be urged-is that fear, like passion, may so cloud the mind as to eliminate malice. The comparison of the two elements of action is not apt. One's own passion is not a defense to reduce a crime, unless it is caused by provocation, like a fight or a gross indignity, between the victim and the assailant. Passion induced by a third person would be no defense to a homicide. So fear induced by one person is no defense to a defendant who kills another under its influence. This, of course, is a general rule; but it applies to this case. There might be cases, like a panic, where a general fear might not only reduce, but even excuse, an unlawful act; but such is not this case. If one has sufficient power of mental action to put his own chances of safety against the life of an innocent third person, his act can neither be entitled to excuse nor reduction on the ground of fear. Something more, at least, must appear than is shown in this request or in this case." Stiness, C. J., in State v. Nargashian, 26 R. I. 299, 58 A. 953, 106 Am. St. Rep. 715 (1904). But see Commonwealth v. Colandro, 231 Pa. 343, 80 A. 571 (1911).

"It is only where there is ocular evidence of actual adultery, or facts justifying a reasonable belief that it is actually being committed, that a court will be justified in saying as matter of law that sudden passion aroused by such belief reduces the homicide to manslaughter. * * The accused saw no adultery or acts warranting a belief that it was being committed. His belief was, as stated in the finding, that his wife was about to commit the of

*

CHAPTER XII

LARCENY

SECTION 1.-PROPERTY THE SUBJECT OF LARCENY

It is to be known that theft is, according to the laws, the fraudulent handling of another person's property with the intention of stealing, against the will of the lord whose property it is. I say with the intention, for without the intention of stealing it is not committed.

Bracton, f. 134 b.

"The definitions of larceny are none of them complete; Mr. East's is the most so, but that wants some little explanation. His definition is 'the wrongful or fraudulent taking and carrying away by any person of the mere personal goods of another, from any place, with a felonious intent to convert them to his (the taker's) own use, and make them his own property, without the consent of the owner.' This is defective in not stating what the definition of 'felonious' in this definition is. It may be explained to mean that there is no color of right or excuse for the act; and the intent must be to deprive the owner, not temporarily, but permanently, of his property."

PARKE, B., in Reg. v. Holloway, 2 Car. & K. 946 (1849).

ANONYMOUS.

(King's Bench, 1478. Year Book, 18 Edw. IV, 8, pl. 7.)

A man was indicted in the King's Bench for having, on Monday next before the Feast of the Purification of the Blessed Virgin Mary, 10 E. 4, at C., in the county of M., with force and arms. broken into a dove cote and feloniously taken twenty young pig

fense, not that she was committing it." Thayer, J., in State v. Saxon, 87 Conn. 5, 86 A. 590 (1913).

In Rex v. Gross, 23 Cox, C. C. 455 (1913), Darling, J., held that, where defendant fired at another under such circumstances that, if he had killed the person at whom he fired, he would have been guilty of manslaughter, he would be guilty of manslaughter only if he accidentally killed a bystander.

For attempt to commit manslaughter, see State v. Murray, 83 Kan. 148, 110 P. 103 (1910).

For involuntary manslaughter, see ante, ch. 3, § 6.

eons. And this was adjudged a good indictment, notwithstanding the exception * * * because the property in the said pigeons would be at all times in him to whom the dove cote belonged, inasmuch as they could not go out, but he could take them at any time at his pleasure; but it is otherwise if he were indicted for the taking of old pigeons, because the law does not adjudge the property in them in any one, for they go about the country and he cannot take them at pleasure; and, therefore, if he were indicted for this the indictment is void. Also, if he be indicted for taking pike or tenches out of a pond or trunk feloniously the indictment is good causa qua supra, otherwise is it if they be taken in the river; the law is the same as to young goshawks which cannot go or fly, hatched in my own park, it is felony, but it is otherwise as to other goshawks; and so note the difference when the property is mine at my pleasure and when it is not.

REX v. SEARING.

(Court for Crown Cases Reserved, 1818. Russ. & R. 350.)

The prisoner was tried before Mr. Baron Wood, at the Lent assizes for Hertfordshire, in the year 1818, for larceny, in stealing "five live tame ferrets confined in a certain hutch," of the price of fifteen shillings, the property of Daniel Flower.

The jury found the prisoner guilty; but on the authority of 2 East, P. C. 614, where it is said that ferrets (among other things) are considered of so base a nature that no larceny can be committed of them, the learned judge respited the judgment until the opinion of the judges could be taken thereon.

It appeared in evidence that ferrets are valuable animals, and those in question were sold by the prisoners for nine shillings. In Easter term, 1818, the judges met and considered this case; they were of opinion that ferrets (though tame and salable) could not be the subject of larceny, and that the judgment ought to be arrested.

1 Accord: Rex v. Hudson, 2 East, P. C. 611 (1781); State v. Krider, 78 N. C. 481 (1878); State v. Johnson, 80 Wash. 522, 141 P. 1040 (1914).

2 "These pheasants, having been hatched by hens, and reared in a coop, were tame pheasants at the time they were taken, whatever might have been their destiny afterwards. Being thus, the prosecutor had such a property in them that they would become the subject of larceny." Channel, B., in Reg. v. Cory, 10 Cox, C. C. 23 (1864). Accord: Reg. v. Shickle, 11 Cox, C. C. 189 (1868).