MANSLAUGHTER. The unlawful killing of another without malice either express or implied. 4 'Bla. Com. 190; 1 Hale, Pl. Cr. 466.
Any unlawful and wilful killing of a hu man being, without malice, is manslaughter, and thus defined, it, includes a negligent kill ing which is also wilful; U. S. v. Meagher, 37•Fed. 875. See 2 Bish. N. Cr. L. § 737.
The distinction between manslaughter and murder consists in the following. In the former, though the act which occasions the death be unlawful, or likely to be attended with bodily mischief, yet the malice, either express or implied, which is the very essence of murder, is presumed to be wanting in manslaughter ; 1 East, Pl. Cr. 218; Foster 290; Com. v. Webster, 5 Cush. (Mass.) 304, 52 Am. Dec. 711. To constitute the of fense, it is necessary that the circumstances should take away every evidence of cool depravity of heart or wanton cruelty ; Com. v. Paese, 220 Pa. 371, 69 Atl. 891, 17 L. R. A. (N. S.) 795, 123 Am. St. Rep. 699, 13 Ann. Cas. 1081.
It also differs from murder in this, that there can be no accessaries before the fact, there having been no time for premedita tion ; 1 Hale, Pl. Cr. 437.; 1 Russ. Cr. 485; but see 1 Bish. N. Cr. L. 678.
Cases of manslaughter have been divided into three classes : (1) Where there was an intent to take life and the killing would be murder but for mitigating circumstances. (2) Where death results from unintentional ly doing an unlawful act. (3) Where it re sults from the negligent doing or omission of an act which, though not itself wrong ful, was attended by circumstances which endangered life ; 1 McClain, Cr. L. § 335.
There is a not uncommon division of man slaughter into two degrees, voluntary and in voluntary ; and these degrees are distinctly recognized by statute in several states; in other states several distinct degrees of the crime are created by statute; in some as many as four.
Involuntary manslaughter is such as hap pens without the intention to inflict the in jury.
Voluntary manslaughter is such as hap pens voluntarily or with an intention to pro duce the Injury.
It has been said that the distinction between vol untary and involuntary manslaughter is now obso lete, and unless where the terms are used in statutes defining the crimes, they are not used in indict ment, verdict, or sentence. But where' tbe tion le made by statute, there can be no conviction of involuntary manslaughter on an indictment for Voluntary ; 1 Whart. Cr. L. 4 307. It would seem
however that it is incorrect to characterize as obso lete what is literally recognized by statute in several jurisdictions. See supra. It ie more accurate to say that the division is purely statutory in its or igin, not entering into the common-iaw definitions.
Homicide may become manslaughter in consequence of provocation ; mutual combat; in case of resistance to public officers, etc.; killing in the prosecution of an unlawful or wanton act ; or killing in the prosecution of a lawful act improperly performed, or perform ed without lawful authority.
The provocation which reduces the killing from murder to manslauglter is an answer to the presumption of malice, which the law raises in every case of homicide : it is, there fore, no answer when express malice is prov ed; 1 Russ. Cr. 440 ; Foster 132 ; 1 East, Pl. Cr. 239. And to be available the provocation must have been reasonable and recent ; for no words or slight provocation will be suffi cient, and if the party has had time to cool, malice will be inferred ; Shorter v. People, 2 N. Y. 193, 51 Am. Dec. 286; Preston v. State, 25 Miss. 383; McWhirt's Case, 3 Gratt. (Va.) 594, 46 Am. Dec. 196 ; Felix v. State, 18 Ala. 720; Ray v. State, 15 Ga. 223 ; 5 C. & P. 324; 6 How. St. Tr. 769 ; Norman v. State, 26 Tex. App. 221, 9 S. W. 606 ; Moore v. State, 26 Tex. App. 322, 9 S. W. 610 ; Collins v. U. S., 150 U. S. 62, 14 Sup. Ct. 9, 37 L. Ed. 998; Davis v. People, 114 Ill. 86, 29 N. E. 192 ; it is on the assumption that passion disturbs the sway of reason and makes one regardless of its admonition ; Smith v. State, 83 Ala. 26, 3 South. 551. Words alone, however provoking or insulting, will not reduce kill ing to manslaughter ; State v. Elliott, 98 Mo. 150, 11 S. W. 566 ; Kennedy v. State, 85 Ala. 326, 5 South. 300 ; Clore v. State, 26 Tex. App. 624, 10 S. W. 242 ; People v. Murback, 64 Cal. 369, 30 Pac. 608 ; State v. Sansone, 116 Mo. 1, 22 S. W. 617. Intent to kill can not be an element of involuntary manslaugh ter; Jackson v. State, 76 Ga. 473. It does not necessarily follow _that homicide was not murder bE cause done in sudden passion ; State v. Ashley, 45 La. Ann. 1036, 13 South. 738.