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WILLIAM WEMMS AND SEVEN OTHERS. 507

other soldiers, had a quarrel with Gray and others, at the
rope-walks, a few days before the fifth of March, yet it is not
certain that Killroy then knew Gray, or aimed at him in par-
ticular, But if Gray encouraged the assault by clapping the
assailants on their backs, as Hinckley swears he did, and Kil-
roy saw this, and knew him to be one of those that were con-
cerned in the affray at the rope-walks, this very cireumstance
would have a natarel tendency to raise Killroy’s passions, and
throw him off hia guard, much more than if the same things
had been done by another person, In the tumult of passion
the voice of reason is not heard, and it is owing to the allow-
ance the law makes for human frailty, that all unlawful vol-
untary homicide is not deemed morder. If there be ‘malice
between A and B, and they meet casually, A assaults B, and
drives him to the wall, B, in his own defense, kills A, this is
se defendendo, and shall not be heightened by the former
malice into murder or homicide at large, for it waa not a
Killing upon the account of the former malice, but upon a
necessity imposed upon him by the assault of A.’? So, upon
the same principle, where the assault is such as would make
the killing but manslaughter, if there had been no previous
quarrel, the killing ought to be attributed to the assault, an-
jeas the evidence clearly shows the contrary; an assault being
mown and allowed by law to be a provocation to kill, that
will free the party from the guilt of murder; whereas neither
words of reproach, nor actions expressive of contempt, “‘are
a provocation to use such violence,’’ that is, the law doth
not allow them to be, without an assault, such a provocation
ag will excuse the killing, or make it any thing lesa than
murder. Upon the same principle, where the assault is sueb,
as makes the killing manslaughter, the Killing ought to be
attributed to the assault, unless the evidence clearly shows
the contrary.

This meeting of Killroy and Gray was caanal upon the
part of Kiliroy at least; he was lawfully ordered to the place
where he was and had no right to quit his station without
the leave of Capt. Preston, nor were any of the party obliged

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