
    
      March Session, 1820, Hon. C. D. Colden, Mayor.
    
    The People vs. Robert M. Goodwin.
    Where th? intention is to wound, tW aot tok.lll,an<i danger of life °lyba°nd death ensue,it may be manslaughter, alceased struck the first blow, J"^counter between two; if a dagger fall from the hand of tlie Prison" er,and he was not defending [o^ofnfe0™ great person--Just^Tpprehension, and the deceased fall upon it, from a blow th^pvisoner^ wound,it may be manslaughter
    
    
      
      Manslaughter.
    
    CASE.
    Robert M. Goodwin was arraigned and tried on an indictment for manslaughter, for killing James on the 22d_day of December, 1819. The facts of the case were as follows : The deceased and the prisoner had a previous dispute, and on the day laid in the indictment, they met each other, by accident, m Broadway. The pns- . oner, m company with a friend, was walking for pleasure, and carried a sword cane in his hand. As they passed each other, the prisoner turned around andjiointed the cane at the deceased, and said, “ That is a rascal and a villain.” or “ There is a coward and a scoundrel.” The deceased stopped, turned around, and walked up to the prisoner, who had walked along the course he was going a few steps, and replied, “ What is that you say?” and struck the prisoner with his fist over the shoulder: a scuffle ensued, the prisoner striking the deceased with the but . - , , i i , end oí the cane over the head two or three times, and the deceased returning the blows with his, fist. During the ° rencounter, the sword or dagger was, either intentionally or by accident, separated from the scabbard, and the prisoner had, at one part of the affray, the blade part in his hand. The deceased retreated about eight paces, and fell; he was followed up by the prisoner, who continued to strike the deceased with the handle of the dagger. The scuffle ^ere terminated; the deceased got up, b,ut immediately fell and expired, and the dagger was found lying at the place where he first fell,
    The question was, whether this was manslaughter or . n°t'
    
      
      Note.—What shall be considered murder, manslaughter, or excusable homicide, is sometimes most difficult to determine. Manslaughter and other species of homicide are very closely allied ; the boundaries of each cannot always be distinctly marked. It is often perplexing to the jurist to decide among the numerous and complicated cases of homicide, whether they come within those rules laid down andpntended to apply to and govern those respective crimes. Ld. Ray. 143: Kel. 59—66: Ld. Ray. 1485.
      There is one important principle that runs through every description of homicide : it is, that every species of killing is supposed to be malicious and felonious—every homicide is prima facie murder, and is to be considered as such, until justified, excused, or palliated. Post. 255 : 4 Blac. Comm. 201. It lays, therefore, upon the prisoner to justify, excuse, or palliate the crime. Ibid. Homicide is either justifiable, excusable, or felonious. Felonious homicide is of two degreesi murder and manslaughter: but herein of the latter.
      Manslaughter has been defined to be the unlawful killing of another, without malice either expressed or implied. 4 Comm. 191 ; and therefore there can be no accessaries before the fact. Manslaughter is divided into— /
      *Vide Counsellor Sampson’s Report of Goodwin’s Trial, p. 178.
      
        , _ , 1 Voluntary manslaughter
      A voluntary killing, amounting to manslaughter, is where a man is insultedby spitting in his face, pulling his nose, or offering him any other similar indignity, and he immediately kills the aggressor. Kelyng. 135. Taking a stranger in adultery with one’s wife, will make the killing but manslaughter, if done in the heat of passion supposed to be excited from that circumstance. Fost. 296. And so it is if two go out in the field by previous agreement, and fight with swords, pistols, or other deadly weapons. ‘ 1 Háwk! P. C. 82. But it must be in the heat of blood. 10 St. Tr. 139 : for if it has time to cool, it will be murder. 1 Hale, 452. If two persons fight on a precedent quarrel where the passions 'have had time to cool, and one is killed, as if two persons quarrel over night and fight the next day, or quarrel in the morning and fight in the afternoon, and death ensue, it will be murder and not manslaughter. 9 St. Tr. 22 : Foster, 297 : 1 Roll. 360 : ICelyng. 129. If a person, being provoked, beats another in such a manner as^ is apparent he only meant to chastise him, and death happen to ensue, it is only manslaughter. 1 Hale, 456 : Fost. 295. It is no more than manslaughter if a man returns home and finds a person in bed with his wife, and in the heat of passion kills him because of the great provocation. Kely. 137. Nor is it murder if A, strikes B, and thereupon B, in the heat of blood, kills A, but only manslaughter, Kely. 135. To kill the assailant to prevent an unlawful arrest, is only manslaughter, Kely. 137. And it was only held manslaughter where a father seeing his son’s nose bloody, and on being told by him that he had been beaten by such a boy, ran three-quarters of a mile, and having found the boy, beat him with a small cudgel, whereby he afterwards died. Foster, 294, 295: Ld. Raym. 1498 : C. Jac. 296: 1 Hale, 453. Hawk. b. 1. c. 1. p. 125.' Where a woman threw a stool a$ her daughter-in-law and killed her, it was adjudged manslaughter only : although-the provocation was very slight, the instrument being an improper one, yet not such a one as might be supposed to produce death. 1 Leach, 368. If two officers arrest a man in his room, and he abuse, threaten, and actually strike them, and arm himself with pistols, declaring he will not be forced from his house, and on high words arising between them, and the officers being struck and provoked, they fall upon him and kill him, they will be guilty of manslaughter only. 6 St. Tr. 195. Fost. 292. 
        A quarrel between a party of keel-men and soldiers, one of the soldiers drew his sword to protect himself and his comrades from the assaults of the mob, and killed a person, dressed like one of the former, whom he mistook for one of the keel-men, held manslaughter, 1 Leach, 148. And where, after mutual provocation, the deceased and his opponent struggled, and in the course of the contest, the former received his mortal wounds from a knife, which the latter had previously in his hand in use, though the jury found the prisoner guilty of murder, the judges held the conviction wrong, and recommended him for a pardon. 1 Leach, 151. Chi tty, C. L. vol. 3. p. 167. If a wife stabs the officer whereby he dies, who is executing an illegal warrant upon her husband, it is the better opinion that the crime is only manslaughter. 1 Leach, 206. See also, Coxe’s Rep. 424 ; 18 Johns. 187 : 5 City-Hall Rec. 48, 49 : vol. 3, p. 145. vol. 4, 109. vol. 52.103. vol. 6, 59.
      It is a fixed principle, that if, from the weapon or the manner of striking, an intention to kill may be collected ; provocation by words only, is not sufficient to make the killing, but manslaughter. Addis, 163.
      Passion arising from sufficient provocation, is evidence of the absence of malice, reduces homicide to manslaughter; but passion without provocation, or provocation without passion, is not sufficient; and where there is both provocation and passion, the provocation must be sufficient. Addis. 149—162.
      Killing by a blow, in mutual conflict, without necessity either for the protection of life, or the possession of house, &c. is manslaughter. If necessary for such purpose, it is homicide in self-defence. Addis, 248.
      If one assuming the character of a physician, through ignorance administer medicine to his patient, with an honest intention, and expectation of a cure, but which causes the death of the patient, he is not guilty of felonious homicide. 6 Mass. T. R. 134.
      
        2 Involuntary manslaughter.
      This species of crime is said to happen in the commission of an unlawful act, or in a lawful act performed in an unlawful manner. The example of the first is, “ where two persons play at sword^and buckler, “ unless by the king’s command, and one of them kills the other, this “ is manslaughter, because the original act was unlawful, but it is “ not murder, for one had no intent to do the other any personal mis- “ chief:” Of the second, “ Where a workman throws down a piece “ of timber into the street and kills a man ; this may be either miáad- “ venture, manslaughter, or murder, according to the circumstances “ under which' the [original act was done ; if it were in a country “ village, where few passengers are, and he calls out to all people to “ have a care, it is misadventure only ; but if it was in London, or “ other populous town, where people are continually passing, it is “ manslaughter, though he gives loud warning ; and murder, if he “ knows of their passing, and gives no warning at all, for then it is “ malice against all mankind.” 4 Blac. Comm. p. 192.
    
   Colden, Mayor,

after recapitulating the principal points °f the testimony, and a brief analysis of the law of manslaughter, ruled the following

POINTS OF LAW:

1st. The law of homicide, and of course the law of manslaughter, is the same as it was in this State on the 19th of April, 1775, so far as it has not been altered by acts of the legislature, subsequent^, to the adoption of “ the State Constitution. And the Legislature has passed no act upon the subject that can affect this case, except “ in relation to the punishment, which the Jury ought not to take into consideration.”

2d. If the prisoner intentionally gave the mortal wound while he was fighting with the deceased, and the prisoner was not in danger of life or great bodily harm, “ the killing may be manslaughter, though death was not “ intended, and though the deceased struck the first blow.”

3d. If the dagger fell from the hand of the prisoner, “ or he threw it down after it was unsheathed, and he had 11 used it to beat the deceased, and while the prisoner was fighting! with the deceased ; and if; while the prisoner continued to fight with the deceased, and the prisoner ■“ was not necessarily defending himself from the loss of £t life, or great personal harm, or just apprehension there- “ of, the deceased fell upon the dagger in consequence of a blow or violence offered by the prisoner, and so receiv- ed the mortal wound, it may be

4th. “ That although the wound be charged in the in- dictment to have been given with a weapon held in the hand of the prisoner, yet he may be convicted of the offence charged in the indictment, though the Jury should believe he came to his death in the manner last sup- posed.”  