every one that was thrown at the party of soldiers was an assault
upon them, whether it hit any of them or not. I am guilty of an
assault if I present a gun at any person; and if I insult him in
that manner and he shoots me, it is but manslaughter.

(Foster. 295, 396): "To what I have offered with regard to sudden
rencounters let me add, that the blood already too much heated,
kindleth afresh at every pass or blow. And in the tumult of the
passions, in which the mere instinct of self-preservation has no
inconsiderable share, the voice of reason is not heard; and
therefore the law, in condescension to the infirmities of flesh and
blood, doth extenuate the offense."

Insolent, scurrilous, or slanderous language, when it precedes an
assault, aggravates it.

(Foster, 316): "We all know that words of reproach, how grating and
offensive soever, are in the eye of the law no provocation in the
case of voluntary homicide: and yet every man who hath considered
the human frame, or but attended to the workings of his own heart
knoweth that affronts of that kind pierce deeper and stimulate in
the veins more effectually than a slight injury done to a third
person, though under the color of justice, possibly can."

I produce this to show the assault in this case was aggravated by
the scurrilous language which preceded it. Such words of reproach
stimulate in the veins and exasperate the mind, and no doubt if an
assault and battery succeeds them, killing under such provocation is
softened to manslaughter, but killing without such provocation makes
it murder.