
    Pennsylvania v. James Honeyman.
    
      HONEYMAN was indicted for the murder of Benjamin Askins, on 23d November, 1793.—Askins, Honeyman, and two others, Ward and Faris, had been drinking together, and were dancing in Askin’s house. Ward shoved Faris, who complained of it.—Ward asked if he resented it. Askins said, if he did not, he would; and he threw off his cloaths, and struck at Ward, who kept off the blow, and left the house. Honeyman called after him to come back, and see it out, and he would see fair play. Ward would not. Honeyman turned to Askins, said, “ You are a damned rascal, to strike a man before he is ready,” knocked him down, stamped on him, and beat him. Two or three times, as Askins raised himself to his knee, Honeyman knocked him down, telling him, “Ben, if you know when you are well, lie still.” Askins died the next day of the bruises. He was a puny weak man; Honeyman was a stout young fellow.
    
      Brackenridge and Carson, for the defendant.
    Fighting on a sudden quarrel, and killing, is only manslaughter. We admit, this is manslaughter. Though implied malice be sufficient to make the killing murder, still there must be malice. If there be no circumstances of malignity, or, if the killing be sudden, or with a weapon not likely to kill, there is no ground for implying malice. Here there is no deliberate design. The parties were in liquor. Askins and Honeyman were in terms of friendship. Askins violated the peace in his own house. Honeyman wanted to repress him, and what he did was in defence of his friend.
    
      1 L. Ray. 143. 4 Comm. 191.
    
      Foster 255, 250.
    12 Co. 82.
    
      Galbraith, for the state,
    contended, that from the evidence, and the law arising out of it, the killing was murder.
   President.

The unfortunate ground of this crime, is that riotous intemperance, so dangerous, on all occasions, especially in ungarded and unprincipled company.

This is not justifiable homicide, not having happened in the discharge of any duty; nor is it excuseable, not having happened in self-defense, or by accident. It must, therefore, be felonious homicide: and the question is whether it is murder or manslaughter.

Hugget's case. L.Ray, 143. Kel 59. Thomson's ca. Kel 66. See Kel. 119, 136. L.Ray. 1485. Foster 313, 255, 765 1. L. Ray. 1488-9. 1. 93. Kel. 112, 115.

L.Ray. 1489. Kel. 127.

L.Ray.1488, 1493. 1 Hawk ch. 31 § 32. 41, 46 47 49. 1 Hale 472. Foster 259. L Ray 1487. Kel. 126-7.

25H 8 c.33 Foster 25 7 Kel. 127.

Prima facie, every killing is murder, for malice is presumed, unless the prisoner shew extenuating circumstances, which take away the presumption of malice. If there be no malice, it is but manslaughter. If there be express malice, or malice implied in the circumstances of the transaction, it is murder. The distinction between murder and manslaughter is nice; and cases lying on the borders of both have been often, and long and earnestly disputed, and doubtfully decided. Hence so many special verdicts, to find whether manslaughter or murder.

I have said, that every voluntary killing, or every act, which apparently must do harm, which is done with intent to do harm, and done without provocation, and of which death is the consequence, is murder; for provocation is not presumed, and malice is presumed: the law implies malice, and the defendant must shew provocation, to rebut the presumption of malice. But malice may be more than implied; it may be express. Malice express is a deliberate or formed design of taking away the life of another, or of doing him some bodily mischief: and this may be manifested either by words or actions. Implied malice is collected either from the manner of the killing, or from the person killed, or the person killing. In wilful poisoning, in killing, though undesignedly, by a voluntary act, apparently mischievous, or in killing without provocation, malice is implied from the manner of the act: and if is not necessary, that the malice should have existed long before, it is sufficient, if it exist at the time.—Malice, as used in the definition of murder, is a technical expression, and not to be taken in the common sense of that word. In common acceptation, malice is taken to be a settled anger in one person against another, and a desire of revenge. But in this legal or technical acceptance, it imports a wickedness, which includes a circumstance attending an act, that cuts off all excuse. It is used as synonymous to frowardness of mind; and means, that the fact hath been attended with such circumstances, as are the ordinary symptoms of a wicked, depraved, malignant spirit, the plain indications of a heart regardless of social duty, and fatally bent upon mischief. It is a design of doing mischief, a voluntary cruel act. Malice, therefore, is implied in every act of killing, for which there is no legal justification, excuse, or extenuation.

Kel.28, 64, 65,127 132-34. Foster 262. L.Ray. 344 1498. 1 Hale 473 4. 4 Com. Di. 20.

Kel 60, 61, 63, 13 ,119, 138 1 Hawk. c 31. § 23. 38, 39 L. Ray 1495.

12 Co. 87. Kel. 60-1.

Kel.50. L. Ray 1493-4. Foster 255.

The excuse for murder arises from authority not wantonly or cruelly exercised or abused, or from the infirmity of the human constitution. A father may correct his child, or a master his servant, apprentice, or scholar, in a reasonable manner; and if an accidental death ensue, it is only manslaughter, or perhaps homicide per infortunium. But if the correction be unreasonable, with unusual or improper weapons, or with extraordinary circumstances of cruelty, and if death be the consequence of it; such killing is murder. Such would be the case of a killing, by any person, in the preservation of the peace. If one, having no authority over another, but provoked to passion by an act of personal violence, in his passion, beat the person thus violently provoking him, and, by such beating, kill him, it is but manslaughter: passion excludes the presumption of malice. But if the provocation was not sufficient, or whatever it might have been, if there was no passion excited, or, though excited, if there was time for the passion to cool, and it had subsided; the killing is murder. Cool expressions, wanton, and deliberate or unusual cruelty, are evidences of want of passion, and are therefore evidences of malice. Suddenly interfering, in favour of a friend engaged in combat with another, and killing the other in defence of this friend, has been held but manslaughter. This must be on the supposition of passion excited by the danger of the person, in whose favour the killer interferes in the quarrel.

The jury are the judges whether the facts be true or not; the court must judge of what description the crime is, which those facts compose, whether murder, manslaughter, or inferior homicide: for that is defining or explaining what the law is; and this is the duty of the court.

It becomes our duty, therefore, to say, on the supposition, that the facts stated, and not contradicted here, were what really happened, whether they amount to manslaughter only or to murder. This depends on whether Honeyman acted with malice aforethought, in its legal sense. And this depends on whether he acted on sufficient provocation and in passion.

Foster 315.

He had no provocation. The provocation was to Ward. There was no occasion to interfere in favour of Ward, for he had left the house, and was out of the reach of danger, if he had ever been in any, from Askins. Askins was preserving (however improperly) the peace of his own house. Honeyman had no right to interfere; and we see no interest that he had in Ward more than in Askins, nor any motive, but the love of mischief. If even there had been provocation, (and there was none) Honeyman appears to have been cool, and without passion. As he knocks down Askins, he says, “If you know when you are well, Ben, lie still.” His acts are voluntary, wanton, deliberate, and cruel, to a poor weak man; they are the symptoms of a froward mind, of a wicked, depraved, and malignant spirit; the plain indications of a heart regardless of social duty, and fatally bent upon mischief: they therefore manifest malice aforethought; and this killing is murder.

The jury found him guilty of murder: and sentence of death was passed on him. An application was made for a pardon—and, on a reference to the attorney general, he suggested, as an error in the indictment, that the epithets, feloniously, wilfully, &c. applied to the assault, were not also applied to the stroke. On this a writ of error was brought. What the issue of this was, or whether Honeyman was pardoned, I know not. 
      
       See Walker's case, 4 Co. 41-2.
     
      
       See 2 Dall. Rep. 228, where the judgment in this case is reversed.
     