DEGREES OF MURDER.

An unlawful, and unexplained, homicide is evidence of murder, but where murder is divided into two degrees, it is evidence of murder in the second degree.63

At the common law there were no grades or degrees of murder. But by statute now in most, if not all, of the states, murder is divided into murder in the first degree, and murder in the second degree. The Michigan statutes on this subject sufficiently illustrate the definition of the two degrees generally prevalent in this country. They are as follows (2 How. St., 9075, 9076):

"All murder which shall be perpetrated by means of poison, or lying in wait, or any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration of, or attempt to perpetrate, any arson, rape, robbery or burglary, shall be deemed murder of the first degree, and shall be punished by solitary confinement at hard labor in the State prison for life.

All other kinds of murder shall be deemed murder of the second degree, and shall be punished by imprisonment in the State prison for life, or any term of years, in the discretion of the court trying the same."

This statute is sufficient to indicate in a general way the distinctions which usually prevail in the United States between murder in the first degree and murder in the second degree. To constitute murder

"State vs. Underwood, 57 Mo., 40; Jones vs. Con., 75 Pa. St., 262; McCue vs. Com., 78 Pa. St., 185; prima facie murder is murder in the second degree; McDaniel vs. Com., 77 Va., 281; 4 Am. Cr., 369.

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in the first degree there must be express malice, as

this has been explained, or it must have been committed in the perpetration of one of the four felonies named, which, being` regarded as peculiarly atrocious in their nature, are placed in a class by themselves.

The words, "or any other kind of wilful, deliberate, and premeditated killing," deserve some attention, inasmuch as they serve to illustrate a general rule of statutory construction which is often applied in construing criminal statutes. These are what are called general words, following certain enumerated particulars. The general principle to which attention is now drawn is thus stated.

General words in a statute which follow enumerated or particular classes, are restrained by construction to mean other classes of the like general character of those enumerated 65

Very many criminal statutes have been subjected to the operation of this rule. A statute which provided that "every person who shall set fire to any building, or to any other material, with intent to cause any such building to be burned, or shall by any other means attempt to cause any building to be burned" was held not to include a case where the accused solicited another to set fire to a building, and furnished him matches and kerosene oil for that purpose, because the attempt by soliciting another was not of the same class as those enumerated, the enumerated classes covering only cases where something

"To constitute murder in the first degree there must be an express purpose to take life. Swan vs. State, 4 Humph., 136: State vs. Smith, 32 Me., 369; Hagan vs. State, 10 Ohio St., 459.

Sedgewick Stat. Constr., 360; State vs. Goetze, 22 Wis., 363; St. Louis vs. Laughlin, 49 Mo., 559.

was actually set on fire.66 Another statute providing "that no tradesman, artificer, workman, laborer, or other person" should exercise his ordinary calling on Sunday was held not to include a farmer, who is not of the same general class with those persons, specifically mentioned.67

DEADLY WEAPON.

The use of a deadly weapon is evidence of malice aforethought.67

Having once explained the rule that the intent with which an act is done is a question of fact, to be found as a fact, we adhere to our rule of discarding the phrase presumption. Many law writers and many cases say that the law presumes malice from the use of a deadly weapon, but this phrase is as confusing and misleading as the phrases by which we illustrated the proposition that the furthest the law can go in a criminal case is to say that a proven fact is evidence, to be weighed by the triers of fact, as to whether or not another allegation is true.

What is a deadly weapon is a question of fact and not a question of law.69 And whether or not a weapon used against another is, or is not, a deadly weapon in a particular case may depend upon the

"McDade vs. People, 29 Mich., 50; S. C. 1 Am. Cr., 81. "Reg vs. Whitmash, 7 B. & C., 596.

Green vs. State, 28 Miss., 687; Jones vs. State, 29 Geo., 594. Generally speaking, where no deadly weapon is used, nor any force set in motion likely to cause serious bodily harm, if death unexpectedly results from an unlawful assault, the offense is manslaughter and not murder. So held of blows with the naked fist. People vs. Mack, 65 Cal., 211; 6 Am. Cr., 431.

"People vs. Leyba, 74 Cal., 407; Dothing vs. State, 1 Am. Cr., 60; but see State vs. Collins, 8 Ired., 407.

manner in which it is used in the case in question. From these two propositions we deduce the rule as to what shall be regarded as a deadly weapon.

A deadly weapon is one which is dangerous to life when used in the manner in which it is capable of the most injurious results." 70

Some weapons are essentially deadly weapons, as, for instance, a loaded revolver.71 Others may or may not be, according to the manner in which they were used in the case in which the question arises. In one case it was left to the jury to say whether or not a stake thrown at another was a deadly weapon, considering the manner in which it was used.72

SUICIDE.

Suicide is self murder, and anciently the body of the suicide was buried in the highway with a stake through it, and the goods and chattels of the suicide were forfeited to the crown. This was because of its supposed deterrent effect. No such consequence follows now, but one who is present and counsels and abets a suicide is guilty of murder.73 And one who kills another at his own request is guilty of murder.74

MANSLAUGHTER.

Manslaughter is the unlawful killing of another without malice aforethought.

The absence of malice aforethought is the distinguishing characteristic of manslaughter. But this,

70U. S. vs. Small, 2 Curt. C. C., 241. "State vs. Collins, 8 Ired., 407.

"Rex vs. Wiggs, 1 Leach, 378.

78 Com. vs. Bowen, 13 Mass., 356; Rex vs. Hughes, 5 Car. & P., 126.

"Blackburn vs. State, 23 Ohio St., 146.

after all, is little more than a highly technical legal rule and is not to be understood without certain limitations and qualifications, as will be seen when we inquire more minutely into the distinction between murder and manslaughter.

PROVOCATION.

When one unlawfully slays another in the heat of passion, caused by adequate provocation, the crime is no more than manslaughter.

In voluntary manslaughter there is often a direct intent to kill.75 This is the very intent which constitutes that express malice which is an ingredient of the crime of murder. Yet where there is adequate provocation the offense may be manslaughter and not murder.76 If a homicide is committed under the influence of passion, or in heat of blood produced by an adequate or reasonable provocation, and before a reasonable time has elapsed for the blood to cool and reason to resume its sway, and is the result of the temporary excitement by which the control of reason was overthrown, rather than any wickedness of heart, or cruelty, or recklessness of disposition, the offense is manslaughter and not murder. By adequate or reasonable provocation is meant a provocation, under the influence of which, an ordinary man of fair average disposition is likely to act rashly, without due deliberation, or reflection and from passion rather than judgment.77 What is a reasonable t or adequate provocation is a question of fact, and not a question of law. But it is frequently stated as matter of law that mere words are never an adequate

"People vs. Lilley, 43 Mich., 521. Maher vs. People, 10 Mich., 212. "Maher vs. People, 10 Mich., 212.