
    State v. Roberts.
    j-From Rutherford.
    A killing on sudden quarrel, to avoid great bodily harm, places a man under circujnstances amounting to legal provocation, and though such circumstances cannot justify or excuse the act, yet on account of human frailty, the homicide is extenuated, and is but manslaughter.
    This was an indictment for the murder of Hugh Allison, and the facts were these. The prisoner and one Freeman came to the house of the deceased, and at length commenced shooting at a mark for a wager, with the prisoner’s rifle; the deceased soon joined in the amusement with his own gun, and after concluding their sport and drinking together, the deceased went into his house, leaving the prisoner at the place where they had been shooting. Some time afterwards, the prisoner came to the door of the house, and proposed to his brother, who was in the house, to shoot with him P 'r a wager. The wife of the deceased then spoke to tiie prisoner, and ordered him to go away, telling him that he had been the cause of trouble enough already, that he knew she did not allow him to come there, and at the same time put her hand upon his forehead and pushed him. He refused to go, and site then told him if he did not go she would throw water in his face ; he still refused, when she did throw water, and struck his hat, and according to the statement of some of the witnesses, threw a part in his face. She then threatened, if he did not depart, to scald him, and accordingly poured some water from a kettle, and as she returned to the door, the deceased told her to let him alone, and as she stated, she threw the water out at the door by the side of the prisoner, without touching him, but according to the testimony of other witnesses, a part of it fell on his breast. At the instant of her throwing the water, the prisoner placed one of his feet within the door, and struck her a violent blow on the breast with his rifle, which passing down her body lodged on her left thigh. She sank down on the floor and fainted. At this moment the deceased exclaimed, “ Lord! how pale Sally is,” and immediately, in company with one Dunn, stepped out of the door and advanced upon the prisoner without speaking. The prisoner told them twice or thrice to stand off or he would shoot, but they still continued to advance, and the prisoner to retreat to the edge of the road, a distance of nineteen or twenty paces from the door, when he fired, and gave the mortal wound. At the time the gun was discharged, the deceased was endeavouring to catch the muzzle. It was in proof that the deceased said after he was shot, that he intended to have taken the gun from the prisoner, and to have beaten him, and shortly before his death he said he was convinced the prisoner intended to kill him when he shot the gun. The deceased was a stout, athletic man ; when irritated, he was violent, and by some deemed dangerous, and these facts the prisoner was well acquainted with.
    The Judge instructed the Jury, that if they considered the facts deposed to as proved by the evidence, in point of Law the Defendant was guilty of murder, and not of manslaughter 5 that the stroke given to the wife of the deceased with a rifle, under such circumstances, manifested a malicious and revengeful disposition, and the homicide having ensued from and in consequence of the stroke given by the Defendant to the wife of the deceased, he was answerable for the consequences.
    The Jury found the prisoner guilty, and a motion for a new trial having been refused, sentence of death was pronounced, whereupon the prisoner appealed.
    The Mtorney-General argued the case on behalf of the State, and Semu ell, (by request of the Court) argued for the prisoner.
   HeNUEusoN, Judge,

delivered the opinion of the Court. Murder is a homicide committed with malice aforethought. Manslaughter, as far as this case renders a dc-scription necessary, is homicide committed under the influence of sudden passion, for the law pays sucli regard to human frailty, as not to put a hasty and a deliberate act on the same footing, with regard to guilt: so also if a man be greatly provoked as by pulling Ins nose, or other great indignity, and he immediately kills the aggressor, this is manslaughter, and not murder. Manslaughter, therefore, on a sudden provocation, differs from excusable homicide, se defendeiulo in this, that in the one case there is an apparent necessity for self-preservation to kill the aggressor, in the other, no necessity at all, being only a sudden act of revenge, and this is manslaughter. Place the wife and the prisoner in the same grade, as to the commencement of the quarrel and affray, (and she certainly commenced it, and by her rudeness forfeited the protection due to her sex) and had she died of the blow, the prisoner would have been guilty of manslaughter, and not murder. The husband then places himself in her situation, and commenced an attack on the prisoner, aided by Dunn ; the prisoner retreats, and tells them to stand off, having the gun in his hands from the first; they approached so near as to get hold of the muzzle of the gun, and the prisoner discharges it and inflicts the mortal wound. If the foregoing definitions of murder and manslaughter be right, and they are taken from Justice Blackstonefs Commentaries^ {and I think there cannot be a doubt of their cor this is a killing upon a sudden quarrel, an great bodily harm ; for if we arc to take the acts as dence of the intent, the conduct of the decciMdfCihd Dunn shew their object to have been to chastise ftnd be the prisoner, and he was not bound to submit toV,v?h¡T ping — he was (to use an expression of Bemlle) in al .of legal provocation, which did not justify or excuse the act, but on account of human frailty extenuated the lio* t° manslaughter. There is but one possible view by which the transaction can be made to be murder, it is thig . the prisoner had inflicted an apparently dangerous wound, it was the duty of those present to arrest him, and it was his duty’to submit if required to do so ; if this had been the intent of the deceased and Dunn, and they had so declared it, and acted in such a manner as to cause it to be believed, and to avoid the arrest and not a beating, the mortal wound had been inflicted, it would have been murder and not manslaughter *, hut it was not put in this manner by the presiding Judge. The Jury were told, that the evidence, if believed, proved the offence of murder, without any regard to the question, What was the object of the deceased and Dunn in pressing on the prisoner ? and what from their conduct, would a person placed in the prisoner’s situation, conclude to be their motives ? I think the Jury was improperly instructed, and tiiat there should be a new trial.  