Murder in the first degree.

slaughter, or, perhaps, murder in the second degree. 7 Blackf. 20. "Held in his hands." If it charges that the defendant held the instrument in "both hands," it is sufficient without inserting the word "his before hands. 8 Blackf. 101.

Not necessary to allege the defendant was of sound mind. An indictment for murder may be good without stating the person to be of sound memory and discretion, and though the killing must be shown to be unlawful, the word "unlawful" need not be used. 1 Blackf. 395; 23 Ind. 231; 9 Ind. 408; 50 Ind. 516.

The kind of gun and shot used need not be specified. 11 Ind. 557.

An indictment for murder, charging that the prisoner, in "some way and. manner, and by some weapon unknown to the jury, killed the deceased," is good. State v. Barke, 54 N. H. 92.

Poisoning-An indictment for murder by administering poison need not state the kind of poison administered. 2 Ind. 617.

If it do so state, the proof need not correspond. 2 Ind. 617. Murder committed in the perpetration of robbery is murder in the first degree, although not committed with a deliberate and premeditated design to kill. State v. Pike, 51 N. H. 105.

For an indictment for murder by beating with a shovel, held good by our supreme court, see 9 Ind. 408.

Premeditated malice.-In murder in the first degree, premeditated malice requires that there shall be time and opportunity for deliberate thought, and that, after the mind conceives the thought of taking the life, the conception is meditated upon, and a deliberate determination formed to do the act; that being done, then, no difference how soon the fatal resolve is carried into execution, it is murder in the first degree. 23 Ind. 231. See 27 Ind. 87.

In the perpetration of arson.-To kill a man purposely, and with premeditated malice, or to kill a man in the commission of or attempt to commit a crime-such as robbery or arson-is murder in the first degree. And it is no difference (in the attempt to commit arson) whether he is killed before the fire reaches him, or he is burned to death. 7 Ind. 326.

The statute authorizing capital punishment for the crime of murder is not unconstitutional. 7 Ind. 332, 338.

Joinder of counts.-Counts for murder and manslaughter may be joined in the same indictment, and on the trial the defendant may be convicted of either offense. 2 R. S. 389, sec. 74.

Murder in the first degree.

For a sufficient form of indictment for murder in the first degree by cutting and stabbing, see 22 Ind. 1.

For an indictment held sufficient as charging a murder by administration of poison, see 54 Ind. 128; but not sufficient of a murder in an attempt to commit a rape. Ibid.

Poison-Malice.- Where a purposed killing is charged in an indictment for murder by administering poison, it is not necessary to allege that it was done with malice, in order to constitute murder in the first degree. Ibid.

When the killing is effected by administering poison, a purpose to kill is an essential ingredient in the crime of murder in the first degree. Ibid.

The word "feloniously " should be used when the crime is a felony. 2 Hale, P. C. 187. And also, the words implying malice and purpose. Whart. Crim. Law, § 1071. Where the homicide is proved, and nothing else, the presumption will be that it was murder in the second degree. Bicknell's Crim. Pr. 258 and 259, and author-` ities.

Dueling. Independent of all local legislation, it is not only murder for one man to kill another in a duel, but his second also is guilty of murder; and it has been doubted whether this does not extend even to the second of him who was killed, because the death happened upon a compact in which all were engaged. Whart. Crim. Law, § 958.

Suicide. It has been settled that if a man encourages another to murder himself, and he is present, abetting him while he does so, such man is guilty of murder as principal. Ibid, § 963, and authorities.

Instrument of death-Variance.-The common law rule is, that where the instrument laid and the instrument proved are of the same nature and character, there is no variance; where they are of opposite nature and character, the contrary. Thus evidence of a dagger will support the averment of a knife, but evidence of a knife will not support the averment of a pistol. 1 Whart. Crim. Pr. 114, note (g). See Bicknell's Crim. Pr. 260.

Insanity-Knowledge of right and wrong.-Where a person is moved to the commission of an unlawful act by an insane impulse controlling his will and judgment, he is not guilty of a crime; and if he is a monomaniac on any subject, it is wholly immaterial upon what subject, so that the impulse leads him to the commission of the act. 31 Ind. 485.

Murder in the second degree.

The court instructed the jury, on a trial for murder in the first degree, that if they believed, from the evidence, "that the defendant knew the difference between right and wrong, in respect to the act. in question, if he was conscious that such act was one which he ought not to do, and if that act was, at that time, contrary to the law of the state, then he is responsible for his acts." Held, that this is not law. Ibid.

So far as a person acts under the influence of mental disease he is not criminally accountable, and the jury in a criminal case must be satisfied beyond a reasonable doubt of the defendant's mental capacity to commit the crime charged. Ibid.

The corpus delicti may be proved by circumstantial evidence. It is not essential that the body of the deceased should be found. 7 Ind. 326. See 48 Ind. 109.

Threats. As to proof of threats made by deceased, see 58 Ind. 182.

SEC. 2. MURDER IN THE SECOND DEGREE.

SEC. 7. If any person shall, purposely and maliciously, but without premeditation, kill any human being, every such person shall be deemed guilty of murder in the second degree, and on conviction thereof shall be imprisoned in the state prison during life. 2 R. S. 426.

CHARGES.

1. By shooting.

That A. B., on the day of, in the year at said county, feloniously, purposely, and maliciously, but without premeditation, unlawfully killed and murdered C. D., by then and there feloniously, purposely, and maliciously, but without premeditation, unlawfully shooting and mortally wounding the said C. D., with a certain gun, then and there loaded with gunpowder and leaden shot, which gun he, the said A. B., in his hands then and there had and held, and discharged and shot off at, against, to, and upon the said C. D. See 11 Ind. 557.

2. By obstructing railway track.

SEC. 29. If any person shall willfully and maliciously place any obstructions upon the track of any railroad, or change

Murder in the second degree.

any switch, or remove the fastenings thereof, so as to endanger the passage of trains, or break, destroy, steal, take, or carry away any lock or guard upon such switch, or willfully commit any other act to throw the engine or cars running upon such railroad from such track, he shall be imprisoned in the state prison not less than one nor more than seven years; and if from any accident on any such road, resulting from any such act, any person be so injured that death ensue as the immediate consequence thereof, the person so offending shall be deemed guilty of murder in the second degree, and upon conviction shall be imprisoned in the state prison during life. 2 R. S. 438, 439.

CHARGE.

That A. B., on the day of, in the year at said county, feloniously, willfully, and maliciously, intending to throw from the track of a certain railway, then and there situate, called ▾ the [here insert name of railway], a certain engine and a certain train of cars, then and there running upon and using said railway, then and there feloniously, willfully, and maliciously removed from the bed of the said railway a part of the iron roadway thereof, and thereby then and there feloniously, willfully, and maliciously threw from the track of said railway the said engine and train of cars, and by means thereof one C. D., who was then and there a passenger in said train of cars, was then and there violently bruised and crushed in his head and breast, and instantly killed. And so the jurors aforesaid, upon their oath aforesaid, say that the said A. B. did, in manner and form aforesaid, commit, in and upon the said C. D., the crime and felony of murder in the second degree. Bicknell's Crim. Pr. 356.

FORM AND CONTENTS.

Counts for murder in the first and second degree and for manslaughter may be joined in the same indictment, and on the trial. the defendant may be convicted of either offense. 2 R. S. 389, sec. 74.

Premeditation.-In murder in the second degree, the purpose or intention to kill is followed immediately by the act, and is not premeditated; the time and circumstances are not such as to allow of deliberate thought, yet there must be a formed design and purpose to kill. 23 Ind. 231.

Manslaughter.

Presumption of malice.-Where one person unlawfully and purposely kills another, malice, in the absence of rebutting evidence, is presumed from the act. 30 Ind. 197. See 5 Ind. 400; 24 Id. 151; 6 Blackf. 299.

"Feloniously, purposely, and of his malice aforethought."-Indictment for murder, charging the defendant with having committed the act feloniously, willfully, and of his malice aforethought." Held, that under the R. S. of 1843 the indictment only contained a charge of murder in the second degree. 5 Ind. 400.

Must aver malice.—An indictment to charge murder in the second degree must aver that the act was done maliciously. 8 Ind. 200.

SEC. 3. MANSLAUGHTER.

SEC. 8. If any person shall unlawfully kill any human being, without malice, express or implied, either voluntarily upon a sudden heat, or involuntarily, but in the commission of some unlawful act, such person shall be deemed guilty of manslaughter, and upon conviction thereof, shall be imprisoned in the state prison not more than twenty-one nor less than two years. 2 R. S. 426.

CHARGES.

1. Voluntary. By striking with stone.

That A. B., on the day of in the year at said county, did feloniously, unlawfully, and voluntarily, upon a sudden heat, without malice, kill and slay one C. D., by then and there feloniously, unlawfully, and voluntarily, without malice, striking, cutting, and mortally wounding the said C. D. with a certain stone, which stone he, the said A. B., then and there his hands had and held and cast and threw at, against, to, and upon the said C. D., from which mortal wounds the said C. D. did then and there instantly die. See 58 Ind. 159.

2. By cutting with a knife.
day of

in the year

That A. B., on the at said county, did unlawfully and feloniously kill one C. D., by then and there unlawfully and feloniously cutting, stabbing, and mortally wounding the said C. D. with a knife, which he the said A. B. then and there had and held in his hands. 46 Ind. 363.