John Marshall Harlan

“ We do not think that a verdict of guilty of manslaughter or murder should have turned alone upon an inquiry as to the way in which the killing was done. The inquiry, rather, should have been whether, at the moment the defendant shot, there were present such circumstances, taking all of them into consideration, including the mode of killing, as made the taking of the life of the deceased manslaughter, and not murder. ”

“ If, in resisting arrest, be showed such brutality and barbarity as indicated, in connection with other circumstances, that he did not shoot simply to avoid being wrongfully arrested, but in execution of a wicked or malignant purpose to take life unnecessarily, or pursuant to some previous understanding with Hampton that he would assist in the killing of Whitehead and Poorboy, or either of them, the court should have so modified the defendant's instruction as to express that idea. ”

“ Therefore, if unintentionally, or by mistake, believing him to be somebody else, they undertook to arrest the defendant, and the defendant resisted such arrest, and, in such resistance, killed the deceased, or killed the parties attempting such arrest, such killing would not be murder, but would be man-slaughter.' The court gave this instruction with this modification: 'Unless such killing was done in such a way as to show brutality, barbarity, and a wicked and malignant purpose. ”