CHAPTER XII.

[o. v. CH. CXCI.]

OF HOMICIDES AND OTHER OFFENCES AGAINST THE PERSON.

Duelling.

By previous agreement in this State, being engaged in a fatal duel out of the State; how and where prosecuted and punished.

For being engaged in a duel, when death does not occur; or for accepting or carrying a challenge or advising a duel. When party leaves the State to evade the law and engages in a duel.

Plea of former conviction or acquittal.

For posting or upbraiding another for not being engaged in a duel.

Duty of a justice having cause to suspect a duel is about to be fought.

Homicide and poisoning.

§ 1. Murder by poison, lying in wait, imprisonment, starving, or any willful, deliberate and premeditated killing,1 or in

1 According to the construction the courts have given the words “willful, deliberate and premeditated," it is surely useless to keep up the enumeration of particular modes of killing to which the feature of "deliberation" necessarily attaches. We have omitted, therefore, "willful and excessive whipping and cruel treatment," as the Legislature in 1848 omitted "beating and torture." We think the words "imprisonment and starving" may be also omitted. Rep. Rev. C. V. p. 939, note.

Although there may be doubt whether the construction which has been

the commission of, or attempt to commit arson, rape, robbery or burglary, is murder of the first degree. All other murder is murder of the second degree. (1 R. C. p. 616, § 2, 3. Acts 1847-8, p. 95, ch. 3, § 2.)

adopted of the words "willful, deliberate and premeditated," (as to the circumstances under which a purpose to kill should be deemed both premeditated and deliberate,) has been sound in all the cases in which the General Court has been called on to consider it; yet, as that construction was adopted early after the passage of the law, and has been adhered to steadily, without any change being made by the Legislature, we do not propose any alteration. Ibid.

The statute 1 Rev. Code, ch. 171, § 2, p. 616, from which this section was taken, was passed in the year 1796, and was copied from a Pennsylvania statute, enacted 22d April, 1794, with certain interpolations. For the construction given to the Pennsylvania statute by the courts of that State, see Resp. v. Bob, 4 Dallas 146; Penn'a v. Honeyman, Addison 148; Penn'a v. Lewis, Id. 283; Com. v. Green, 1 Ashmead 289; Com. v. Williams, 2 Id. 69; Com. v. Murray, 2 Id. 41; Com. v. Gable, 7 Serg. & Rawle 428; Com. v. Dougherty, 7 Smith's Laws of Penn. 695; and the cases collated in a note to King's case, 2 Va. Cas. 84-88. Also 4 Penn. Law Journ. 156, 157, 401; Whart. on Hom. 460, 461; Whart. Am. Cr. Law, 4th edi. § 1084-1108.

This act in no manner alters the common law crime of murder; every homicide which before constituted murder does so still; neither does it divide that crime into two distinct offences; but only to graduate the punishment of each case of murder, according to its atrocity, distinguishes the crime into two degrees. Davis' Cr. Law 110; Wicks v. Com., 2 Va. Cas. 387, 391-2; Livingston v. Com., 14 Gratt, 592-596. The statute does not define the crime of murder, but refers to it as a known offence; nor, so far as concerns murder in the first degree, does it alter the punishment, which was always death. All that it does is to define the different kinds of murder, which shall be ranked in different classes and be subject to different punishments. 3 Rob. Pr. (old edi.) 43.

In an indictment for murder, the omission of the word "deliberately," will not be fatal on general demurrer. Bull v. Com., 14 Gratt. 613.

2 Poison may reach the life of one or more not within the design of him who lays the bait; lying in wait, may be with a view to great injury, abuse and bodily harm, without the settled purpose to kill; imprisonment, or confinement, or starving, may be with a view to reduce the victim to the necessity of yielding to some proposed conditions, as well as a punishment for the failure of prompt obedience, without any certain and fixed determination to destroy life; and the same may be said of malicious or excessive whipping, beating, or other cruel torture. In all these enumerated cases, the Legislature has declared the law, that the perpetrator shall be

§ 2. Murder of the first degree shall be punished with death. (1 R. C. p. 617, § 4.)

§ 3. Murder of the second degree, by a free person, shall be punished by confinement in the penitentiary not less than five nor more than eighteen years. (Acts 1819-20, p. 18, ch. 20; 1847-8, p. 96, § 3, 4.)

held guilty of murder in the first degree, without further proof that the death was the ultimate result, which the will, deliberation and premeditation of the party accused sought. And the same authority has declared the law, that any other kind of killing, which is sought by the will, deliberation and premeditation of the party accused, shall also be murder in the first degree; but that, as to this other kind of killing, proof must be adduced to satisfy the mind, that the death of the party slain was the ultimate result which the concurring will, deliberation and premeditation, of the party accused, sought. But to this general rule the same authority adds an exception, which is, that any death consequent upon the perpetration or attempt to perpetrate any arson, rape, robbery, or burglary, shall be deemed murder in the first degree; and all other murder at common law shall be deemed murder in the second degree. So that the cases within the exception, as now put, and the cases enumerated as first mentioned, are, in fact, placed upon the same principle: there is no necessity of proof in either, to establish the fact that a homicide was intended. And it follows, of course, that all other homicide, which was murder at common law, is now murder in the second degree, except when it shall be proved that the homicide was the result of a "willful, deliberate and premeditated killing;" and it also follows, of necessity, that when, by the proof, the mind is satisfied that the killing was willful, deliberate and premeditated, such killing must be taken and held to be murder in the first degree. This construction of the act of Assembly is consistent with, and supported by the decisions of this court, in Burgess' case, 2 Va. Cas. 483, and Whiteford's case, 6 Rand. 731. Per Daniel, J. in Com. v. Jones, 1 Leigh 611–612.

To constitute murder in the first degree, it is not necessary that the premeditated design to kill should have existed for any particular length of time. If, therefore, the accused, as he approached the deceased, and first came within view of him, at a short distance, then formed the design to kill, and walked up with a quick pace, and killed him without any provocation then, or recently received, it is murder in the first degree. Whiteford V. Com., 6 Rand. 720.

The offence of homicide, by a workman throwing timber from a house into the street of a populous city, without warning, or of a person shooting at a fowl animo furandi, and killing a man, are instances of murder in the second degree. Ibid.

Case in which, under the circumstances, a conviction of murder in the second degree was sustained by the General Court; McCune v. Com., Cottrell v. Com., and Parsons v. Com., 2 Rob. R. 772. See also Com. v. Orane, 1 Va. Cas. 10; Com. v. Bristow, 15 Gratt. 634,

Case in which a conviction of murder in the first degree was held to be well warranted by the evidence. Bennett v. Com., 8 Leigh 745,

Question whether, on the circumstances of the case, homicide was murder in the second degree or manslaughter? Slaughter v. Com., 11 Leigh, 681.

S. having conceived and declared his design to kill P., the parties met afterwards in front of S.'s own house, and a quarrel ensued, in which S. gave the first offence; P. proposed a fight; upon which S. retired for a very brief time into his own house, armed himself with a loaded pistol, which he concealed in his pocket, and instantly returned so armed to the scene of the quarrel; then P. threw a brick-bat at S, which did not hit him, but falling short of him broke, and a small fragment struck S.'s child, standing within his own door, who cried out; and S, hearing his child cry out, but without looking to see whether he was hurt or not, exclaimed, "he has killed my child, and I will kill him," advanced towards P., deliberately aimed and fired the pistol at him, then retreating with his face towards S., and the shot took effect and killed P. Upon trial of indictment against S., verdict of guilty of murder in the second degree: Held, the jury might well impute the killing to the previous malice, and not to the sudden provocation of P.'s assault, and, therefore, the verdict was right. Ibid.

Two persons quarrel, and one person throws a brick-bat at the other, who has privately armed himself with a deadly weapon, and keeps it concealed, in expectation of the affray, and on such assault being made upon him, immediately draws forth the weapon and with it kills the assailant, though then retreating; jury finds this killing, murder in the second degree: Held, upon these circumstances, even without proof of any previous malice, the verdict could not be disapproved. Ibid.

Murder and manslaughter distinguished and defined. McWhirts Case, and Ferguson's Case, 3 Gratt. 595,

A father is informed in the evening of one day, that his son, a small boy, has been wantonly whipped by a man. He meets with the man on the evening of the next day, and then with his fists and feet, beats and stamps him whilst he is unresisting, with so much violence that the man dies from the effects of the beating on the next night. There is evidence of deliberation, and the beating is cruelly severe. This is murder. Ibid. See the case of Rowley, variously stated in 12 Rep. 87; 1 Hale 453; Fost. 294; Cro. Jac. 296; Godb. 182; 1 East's Cr. L. 232, 237-8.

A person neither assaulted nor threatened, gets down from his horse, arms himself with a club, interposes himself between two other persons who are about to engage in a fight, and kills one of them. It is murder. Johnson's case, 5 Gratt. 660.

The killing of a slave by his master and owner, by willful and excessive

1

whipping, is murder in the first degree; though it may not have been the purpose and intention of the master and owner to kill the slave. Souther's case, 7 Gratt. 673.

Deceased strikes the prisoner's father with his fist and a fight ensues, when the prisoner, who sees it, comes up, and catches the deceased by the collar of his coat behind, and strikes the deceased from behind with a pocket knife, wounding him in the right side. The prisoner, who was about seventeen years old, had lately left the school of the deceased, and had used language on more than one occasion before the affray, and also used langnage after it, but before it was known deceased was dangerously wounded, which evinced hostility to him. The killing is murder. Bristow v. Com., 15 Gratt., 634.

In Pennsylvania, New Jersey, Virginia, Alabama and Michigan, the killing, to commit murder in the first degree, must be "willful, deliberate and premeditated." By the general concurrence of each of the States in which the distinction has been the subject of examination, the practical workings of the statutes have been to divide murder, as limited by the common law, into two classes, leaving the original boundaries between murder and manslaughter unaltered. The statutes, it has been held, in requiring murder in the first degree to be deliberate, did not change the common law doctrine in that respect with regard to murder; the degree of deliberation requisite in both cases being the same. The distinctive peculiarity attached by the statutes to murder in the first degree, however, is, that it must necessarily be accompanied with a premeditated intention to take life. The "killing" must be "premeditated." Wherever, then, in cases of deliberate homicide, there is a specific intention to take life, the offence, if consummated, is murder in the first degree; if there is not a specific intention to take life, it is murder in the second degree. Wharton's Am. Crim. Law, 4th edi. § 1084, citing Resp. v. Bob., 4 Dallas 146; Penn'a v. Honeyman, Addison 148; Penn'a v. Lewis, Ibid 283; Com v. Green, 1 Ashmead 289; Com. v. Murray, 2 Ibid. 41; Com, v. Daley, Whar. on Hom. 466; Com, v. Hare, Ibid; Com. v. Gable, 7 Serg. & R, 428; Bennett v. Com. 8 Leigh 745; Slaughter v. Com., 11 Leigh 681; Com. v. King, 2 Va. Cas. 78, in note; Whiteford v. Com., 6 Rand. 721; Burger's case, 2 Va. Cas. 483; Com. v. Jones, 1 Leigh 610; Dale v. State, 10 Yerger 551; Mitchell v. State, 5 Yerger 340; State v. Anderson, 2 Tenn. R. 6; Davis v. State, 2 Humph. 439; Anthony v. State, 1 Meigs 265; Swann v. State, 4 Humph. 136; Com. v. Crause, 3 Amer. Law. Jour. 299; Clark v. State, 8 Humph. 671; Riley v. State, 9 Humph. 646; State v. Spencer, 1 Zabriskie 196.

Quære: If there be a presumption of law of a guilty intention in any prosecution for a criminal offence, except in the case of a prosecution for murder.

Wash v. Parrish, 16 Gratt. 530.

All homicide is, in presumption of law, malicious; and of course amounts to murder, unless justified, excused or alleviated; and it is incumbent upon the prisoner to make out, to the satisfaction of the court and jury, the circumstances of justification, excuse and alleviation. 4 Bl. Com. 201; FOB