Odger's English Common Law

INTENTIONAL MANSLAUGHTER. 287
though it will not amount to murder
;
1
if, therefore, the officer had no
right to arrest B., killing him is at most manslaughter. But the illegal
arrest of B., though a provocation to him, is in law no provocation to a
friendly by-stander ; hence if such by-stander were to kill the officer, his
act would be murder.
Although the provocation- may be prima facie sufficient to
reduce the homicide from murder to manslaughter, yet if the
retaliation be not immediate, the prisoner may still be found
guilty of murder. If a person receives a blow and avenges it
at once with any instrument which he may happen to have in
his hand, then the offence will be only manslaughter, provided
the fatal blow is the result of anger arising from the previous
provocation. But if there was sufficient time between the
provocation and the fatal blow for the prisoner to regain his
self-control, or if his conduct in the interval shows method
and deliberation, the crime will remain murder. "The
circumstances of the case rebut the inference of malice, if they
show that the blow was given in the heat of passion arising
on a sudden provocation, and before the passion had time to
cool." 2 But if the passion has had time to cool, it is as
though no provocation had ever been offered.
Again, if there be evidence of express malice, the killing
may be found murder, however great the provocation. In
every case the question is : Was the prisoner deprived of his
self-control ? In answering that question the jury must have
regard to all the circumstances of the case. 3
If, for instance,
the prisoner himself contrived to bring about the provocation,
he cannot rely upon it as a defence ;
indeed, the manufacture
of such a provocation is in itself evidence of malice afore-
thought, as it shows a deliberate intention to kill.
If A. and B. are fighting with fists and B., who is getting the worst of
it, takes up a knife which happens to be lying on a table close by, and
stabs A., this will be manslaughter only, because the knife was lifted in the
heat of the moment. But if B., after getting the worst of the fight, left
the room and went to his own house and fetched a knife, and then returned
and stabbed A., this would be murder ; for B. had time to regain his self-
1 B. v. Carey (1878), 14 Cox, 214.
2 Per Brie, C. J., in R. v. Eagle (1862), 2 F. & F. at p. 830.
8 See ante, p. 2*5.