in law. The offence of mortally stabbing another, though done upon sudden provocation, is punished as murder; the benefit of clergy being taken away from it by statute. (See MURDER).

For by Ja. I. c. 8. when one thrusts or stabs another, not then having a weapon drawn, or who hath not then first thicken the party stabbing, so that he dies thereof within six months after, the offender shall not have the benefit of clergy, though he did it not of malice aforethought. This statute was made on account of the frequent quarrels and stabbings with short daggers between the Scotch and the English, at the accession cession of James I.; and being therefore of a temporary nature, ought to have expired with the mischief which it meant to remedy. For, in point of solid and substantial justice, it cannot be said that the mode of killing, whether by stabbing, strangling, or shooting, can either extenuate or enhance the guilt; unless where, as in the case of poisoning, it carries with it internal evidence of cool and deliberate malice. But the benignity of the law hath construed the statute so favourably in behalf of the subject, and so strictly when against him, that the offence of stabbing now stands almost upon the same footing as it did at the common law. Thus, (not to repeat the cases mentioned under Manslaughter, of stabbing an adulterer, &c. which are barely manslaughter, as at common law), in the construction of this statute it hath been doubted, whether, if the deceased had struck at all before the mortal blow given, this does not take it out of the statute, tho' in the preceding quarrel the stabber had given the first blow; and it seems to be the better opinion, that this is not within the statute. Also it hath been resolved, that the killing a man, by throwing a hammer or other weapon, is not within the statute; and whether a shot with a pistol be so or not is doubted. But if the party slain had a cudgel in his hand, or had thrown a pot or a bottle, or discharged a pistol at the party stabbing, this is a sufficient reason for having a weapon drawn on his side within the words of the statute.