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East's Crown Law, chapter 5, section 2 : - " Murder, in the sense
now understood, is the voluntary killing a person under the King's
peace,"-and, in my definition, I use, in place of that term, the words,
under the peace of the Commonwealth, - °1 of malice prepense or afore-
thought, either express or implied by law; the sense of which word
malice is not confined to a particular ill-will to the deceased, but it is
intended to denote, as Mr. Justice Foster expresses it, an action flow-
ing from a wicked and corrupt motive, a thing done malo animo,
where the fact has beeĢ attended with such circumstances as carry
in them the plain indications of a heart regardless of social duty, and
fatally bent upon mischief. And, therefore, malice is implied, from
any deliberate, cruel act against another, however sudden."
Section 12:-Ģ The implication of malice arises in every instance
of homicide amounting in point of law to murder; and in every charge
of murder, the fact of killing being first proved, all the circumstances
of accident, necessity, or infirmity, are to be satisfactorily proved by
the prisoner, unless they arise out of the evidence produced against
him. But it is intended here only to speak of the more deliberate
and depraved species of that offence, where a mind has brooded upon
its prey, and marked out the object of destruction in cool blood; and
not where there is heat of blood arising from provocation, or from
mutual combat." Where there is a use of a dangerous weapon,
where it is intended to destroy life, or to do some great bodily harm,
-and I use this qualification of some great bodily harm, because a
person may use a dangerous weapon, and say that he did not intend
to kill,-if he intended to do some great bodily harm, and death
ensue, it is not enough for him to say, ĢI meant merely to wound
him, but the blow unluckily killed him.:" it is no excuse: he intends
to do great bodily harm.
Then what is it that. will reduce murder to manslaughter? It is said,
in the passage that has been read, that it is out of regard for the frailty
of human passion. Every man, called upon suddenly to defend him-
self, is inspired with a principle which puts him upon resistance ;
and if, during that period, he attacks the party thus injuring him, by
blows, and death ensues, it is regarded as done through heat of pas-
sion, and not through malice, or that cold-blooded feeling of revenge,
which more properly constitutes the emotion, the feeling, the passion,
of malice.
And so, again, in an instance which may be presented of heat of
blood in mutual combat. Two persons come together, not intending
to quarrel; because, if they do intend to fight a duel, then it is mur-
der. But two persons come together. Angry words arise. Then
they come to blows. It is immaterial who strikes.first, supposing that
there is nothing unfair on either side, but it is a fair combat. One
seizes an instrument, and strikes a deadly blow. That is regarded as
heat of blood ; and, though not excusable, because a man is bound to
control his passions, yet it is not that higher offence, which is called
murder.
We have gone into these distinctions, though there is not much
necessity for it, because, where death ensues, and there is no evidence
of provocation, or of heat of blood, or mutual combat, the fact of
killing implies murder, and the Jury would be warranted in finding
a verdict of murder. There seems to have been little evidence, in
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