$ 190.

Punishment of murder.

191. Petit treason abolished.

§ 192. Manslaughter-voluntary and involuntary.

§ 193. Punishment of manslaughter.

§ 194. Deceased must die within a year and a day.

$195. Excusable homicide.

§ 196. Justifiable homicide by public officers.

§ 197. Justifiable homicide by other persons.

§ 198. Bare fear not to justify killing.

§ 199. Justifiable and excusable homicide not punishable.

187. Murder is the unlawful killing of a human being, with malice aforethought.

Murder, defined-34 Cal. 200; 47 Cal. 102; at common law-1 Wash. C. C. 463; 2 Halst. 220; 1 Colo. 137; 44 Cal. 96; 9 Met. 93; 5 Cush. 295; see 4 Bl. Com. 195. It has but one meaning-the intentional killing of a human being, with malice aforethought-44 Cal. 96; 48 id. 85; 52 fd. 452. It is murder if the wound is inflicted with a felonious intent, and death ensue within a year and a day-9 Cal. 273:

The killing may be by any act, direct or indirect, which results in death-9 Met. 93; 63 N. Č. 1; 4 Mason, 105; 4 Dev. & B. 365.

The person killed must be "in being," and a child in its mother's womb is not a "human being," within the definition-6 Car. & P. 349; 1 Moody C. C. 346; but every part of it must have come from the mother-6 Car. & P. 349; 7 id. 814; id. 850; 5 id. 329; 7 id. 850.

Murder includes voluntary and involuntary manslaughter-5 Ga. 441; 10 id. 102; 17 id. 483; 1 id. 222; 5 id. 85; 15 id. 117; 5 id. 54; 19 id. 7; 14 Bush, 601.

In case of adultery.-It is only when the husband discovers his wife in the act of adultery that the law mitigates the killing of her or her paramour on the ground of passion-4 Mich. 83; 10 id. 212; 29 Ga. 724; 2 Brewst. 388; 8 Ired. 330; 3 Jones, (N. C.) 74; 6 id. 433; 54 Mo. 153; Manning's Case, 1 Vent. 212; S. C. Ld. Raym. 212; Pearson's Case, 2 Lewin, 216; or where there was no opportunity for the passion to subside-22 N. Y. 147; but to kill an adulterer deliberately, and upon revenge, is murder-54 Mo. 153; 35 Ind. 80; 62 N. Y. 229; 3 Jones, (N. C.) 74; 6 id. 433; 64 N. C. 608; 78 id. 515: 8 Car. & P. 182; or to kill because he has at some previous time committed adultery with his wife -6 Jones, (N. C. )433; 4 id. 74; 8 Ired. 330; or where he was a long time cognizant of the adulterous intercourse-35 Ind. 80; or to kill because

ne believed her paramour was about to commit another similar act, is murder-4 Jones, (N. C. ) 74; 6 id. 433.

Suicide.-At common law, if two agree to commit suicide together and one escapes, the other is guilty of murder-Russ. & R. C. C. 528; the survivor is principal in the murder of the other-13 Mass. 359; 123 id. 422; 23 Ohio St. 165; 8 Car. & P. 410; Russ. & R. C. C. 528.

Infanticide.-If a child be born alive and afterward dies from potions, or by bruises received in the womb, it is murder-49 N. Y. 86; 5 Car. & P. 329; 9 id. 754; 1 Moody C. C. 346; or, if it was born in a state in which it was more likely to die than if born in due time, it is murder-2 Car. & K. 784. There must have been an independent circulation, or it cannot be considered to be alive when born, so as to make it murder-43 Iowa, 519; S. C. 2 Am. Cr. R. 274; 2 Moody C. C. 260; 5 Car. & P. 539; 7 id. 850; 9 id. 754; and if the mother kill it while still alive, it is murder, though still attached by the umbilical cord-49 N. Y. 86; 8 Phila 623; 1 Car. & M. 650; 13 Cox C. C. 79; 7 Car. & P. 814; 9 id. 25. A child must be actually born in a living state before it can be a subject of murder-5 Car. & P. 329; 9 Up. Can. L. J. 138. A person charged with murder, committed in an attempt to produce an abortion, is entitled to be admitted to bail-6 Pac. C. L. J. 725.

In mutual combat.-Where parties by mutual understanding engage in a conflict and death ensues, the slayer is guilty of murder-57 Mo. 40; S. C. 1 Am. Cr. R. 251. So to enter into a combat with a deadly weapon, intending to use it, and in the contest to kill-32 Vt. 491; 1 Va. Cas. 10; or in a combat without weapons, to draw a knife and kill4 Ired. 409; or to prepare and conceal a weapon before going into the fight, and killing with it-36 Miss. 531; 4 Ired. 409; or to invite another to mortal combat, and killing him, while he is going for his weapon33 Ga. 4; see 2 Wheel. C. C. 471; or to bring about a deadly quarrel, and killing one of the combatants-22 Ga. 211; or if one of two combatants retreated and the other followed, overtook and stabbed him, it is murder-9 Ired. 485; 1 Spear, 384.

In resisting arrest.-When a person in resisting arrest under lawful process kills the officer, or one of the arresting party, it is murder-25 Ala. 15; 30 Ga. 426; 2 Houst. 585; 12 Cox C. C. 444; S. C. 1 Green C. R. 155; 6 Cold. 283. Where after the commission of a felony the wrongdoers flee, and are overtaken by the officer, who orders them to surrender, if they fire upon and kill him it is murder-27 Cal. 522. So where the accused were convicts and killed the guard to effect their escape, it was murder-1 Tex. Ct. App. 647. Private persons lawfully arresting offenders are under the same protection of the law as officers-61 Pa. St. 352; 1 East P. C. 298. But if an arrest be without authority-2 Houst. 585; 72 Ill. 37; S. C. 69 Ill. 111; 1 Am. Cr. R. 287; 12 Cush. 246; or if he exceed his authority, or if the process be defective -69 Ill. 111; S. C. 72 Ill. 37; 1 Am. Cr. R. 287; as attempting to arrest under a warrant without seal: the killing will be manslaughter-1 East P. C. ch. 5, § 58.

In committing other offenses.-If an unlawful act be done deliberately, and with the intention of doing mischief, and death ensues, it is murder-11 Humph. 150; as in the prosecution of an unlawful design, and using poison-5 Mich. 10, 22; or if he attack another with malice aforethought, and he kills to save his own life-4 Dev. & B. 491; or where he shot at another and killed a third person-2 Strob. 77; or if he provokes a fight and kills his adversary-10 Ga. 103; 18 id. 356. See Phill. (N. C.) 425; 65 N. C. 669.

188. Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow-creature. It

is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.

Malice express or implied.-Express malice means ill-will against a person, but in a legal sense it denotes a wrongful act done without just cause or excuse-34 Cal. 48; see cases cited in Desty's Crim. Law, §8a; an illegal act willfully done, which in its necessary consequence must injure another-12 Fla. 117; Law R. 1 C. C. 360. Implied malice is an inference deduced from particular facts and circumstances judicially ascertained-19 Conn. 398: 4 Jones, (N. C.) 100; 5 Blackf. 149; 12 Allen, 185; 39 Ind. 553; 2 Bay, 360; 10 Met. 259; 3 Cox C. C. 281; Bell C. C. 1; 8 Cox C. C. 74; while express malice is never to be inferred, but must be proved aliunde-18 Ind. 386; 2 Bailey, 569; Meigs, 84; 12 Tex. 540: 43 id. 108; 1 Curt. 364; 2 Bos. & P. 508; 7 Car. & P. 140; 1 Car. & K. 195; 2 Leach, 1033; Russ. & R. C. C. 310. See ante, § 7, subd. 4.

Legal malice.-Implied malice or malice in law is an evil design in general, where the circumstances manifest a wicked, depraved, wanton, and malignant spirit-43 Cal. 350; 2 Mason, 91; Wright, 20; 2 Strob. 77; 11 Humph. 150; 13 Smedes & M. 263; 13 Up. Can. Q. B. 542; 10 Low. Can. Jur. 97; and the intent is presumed-1 Parker Cr. R. 154; 1 Ired. 354; 5 Cush. 295; 2 Hill, 459; 18 Ala. 720; 57 Mo. 40; S. C. 1 Am. Cr. R. 251.

Malice aforethought, which is an ingredient of murder, is express or implied-48 Cal. 95. It includes all states of mind in which a homi. cide is committed without legal justification, extenuation, or excuse5 Tex. Ct. App. 163; 34 Cal. 48. It distinguishes murder from all other classes of homicide-48 Cal. 437; 6 Pac. C. L. J. 399; 6 Tex. Ct. App. 268; 2 Barn. & C. 268.

Malice and intent to kill, are essential elements in murder-Wright, 20; and they are to be inferred from the facts and circumstances of the case-8 Cal. 90; 58 Ga. 35; 30 Mich. 16; 29 Ohio St. 186; S. C. 2 Am. Cr. R. 251; 7 N. Y. 385; 58 Pa. St. 9; 2 Mason, 91; 54 Mo. 153; 23 Ind. 231; 30 Mich. 16; 83 Pa. St. 131; 5 Tex. Ct. App. 493; 15 Gratt. 634; 2 Rob. (Va.) 771; 1'Colo. 436.

189. All murder which is perpetrated by means of poison, or lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration or attempt to perpetrate arson, rape, robbery, burglary, or mayhem, is murder of the first degree; and all other kinds of murders are of the second degree. [Approved March 30th, in effect July 1st, 1874.]

Degrees of murder.-The statute dividing murder into degrees does not make murder of the second degree less than murder--44 Cal. 97. The difference in the degrees of murder results from the condition of the mind in which the design is created, and not from the speed with which it is executed-3 Tex. Ct. App. 656. The division into degrees seeks only to graduate the punishment. in proportion to the atrocity of the crime-2 Va. Cas. 387. The classification into degrees does not make the lesser less than murder-25 Cal. 361; 44 id. 98. The jury may find the party guilty of less than murder, say manslaughter-49 Cal.

Deliberation.-Unless it be in perpetrating a felony, there must be a deliberate, premeditated, preconceived design to take life to constitute murder in the first degree-39 Cal. 694; 12 Nev. 140; 12 id. 300; 43 Cal. 552; 5 Oreg. 216; 64 Mo. 591; S. C. 2 Am. Cr. R. 313; 61 Mo. 548; 64 id. 317 Deliberation implies some degree of reflection-75 Pa. St. 403; S. C. 1 Am. Cr. R. 262. No appreciable time need intervene between the premeditated intent and the homicidal act-17 Cal. 389; 24 id. 30; 34 id. 211; 43 id. 352; S. C. 1 Green C. R. 412; 44 Cal. 96; 43 id. 95; 49 id. 169; 6 Pac. C. L. J. 631; 54 Ala. 155; 75 Pa. St. 403; S. C. 1 Am. Cr. R. 262; 18 Mo. 419; 13 id. 382; 23 id. 287; 38 id. 270; 54 id. 153; 8 Iowa, 525; see 3 Nev. 409; 3 Head, 127; 66 Ind. 433; 6 Blackf. 299; 23 Ind. 231; 44 Pa. St. 55; 26 Ark. 334; 18 Mo. 435; 1 Tex. Ct. App. 159.

Fresumption of premeditation.-Premeditation may be inferred from the circumstances of the case, as from the use of a weapon likely to take life-31 Pa. St. 198; 4 Humph. 139; 4 Dall, 145; 2 Ashm. 69; 1 Zab. 196; or from deliberately procuring a weapon to take life-83 Pa. St. 75; 2 Va. Cas. 484; or concealing a weapon-8 Leigh, 749; or from a declared purpose-1 'Ohio St. 66; 5 Humph. 145; 2 Va. Cas. 484; or from preparations to conceal the body-84 Pa. St. 187.

Murder in the first degree.-Premeditation is presumed from pur. chasing poison and putting it in the way of others-45 Ala. 43; 40 Ind. 516; 2 Fost. & F. 833; 9 Car. & P. 356; 10 Cox C. C. 486. Murder by poi son-24 Cal. 17; 17 id. 394; 34 id. 211; 5 Oreg. 276; 23 Ohio St. 146; I Tex. Ct. App. 163; id. 605; 5 íd. 493; 7 Humph. 429; see 7 Cox C. C. 253; 28 Ga. 576; 33 id. 571. Poison means any substance which, when applied externally, or in any way introduced into the system, without acting mechanically, but by its own inherent qualities, is capable of destroying life-53 Cal. 147. Other noxious or destructible substances or liquids are such as act upon the system mechanically so as to destroy life-id. By lying in wait-24 Cal. 17; 34 id. 211; 4 Humph. 136; 7 id. 429; 9 id. 657; 4 Tex. Ct. App. 493. "Concealed" is not synonymous with "lying in wait"-55 Cal. 207. A person concealed may shoot another without committing murder-id.; but if he conceals himself for the purpose of shooting another, he is" lying in wait"-id. By cruelty and torture-7 Gratt. 673; 4 Dev. & B.365; 63 N. C.1; 68 Mo. 315; 4 Mason, 505; 80 N. C. 358; 10 Yerg. 551; 2 Humph. 439; 9 Ired. 429; 31 Ga. 40; 40 Ala.350; 101 Mass. 1; 8 Ohio, 131; 11 Fla. 247. Aside from the perpetration of a felony, murder in the first degree is any kind of unlawful, willful, and deliberate killing-48 Cal. 95; 17 id. 389; 43 id. 344; 34 id. 211; 24 id. 17; 39 id. 694; 43 id. 552; 12 Nev. 140; id. 300; 5 Oreg. 216; 64 Mo. 591; S. C. 2 Am. Cr. R. 313; 61 Mo. 548; 64 id. 317; which shows an abandoned and malignant heart-43 Cal. 350; 43 id. 556.

Murder in the perpetration of a felony-48 Cal. 94; 17 id. 389; 24 id. 17; 49 id. 563; 38 Ala. 213; 9 Met. 93; 118 Mass. 36; 7 Tex. Ct. App. 472; as arson, burglary, rape, or robbery-24 Cal. 17; 34 id. 211; 49 id. 563; 1 Tex. Ct. App. 591; 2 id. 369. In robbery-49 Cal. 563. Attempt at rape-18 Hun. 487. Nor is it necessary that the party himself should inflict the mortal wound, if he be present aiding and abetting the act-1 Gall. 624; 1 Ired. 76.

Murder in the second degree is the unlawful killing, with malice aforethought, but without deliberation, premeditation, or preconcerted design to kill-39 Cal. 694; 75 Pa. St. 403; S. C. 1 Am. Cr. R. 262. All murder not of the first degree is of the second degree-6 Baxt. (Tenn.) 610. If there was no deliberate preconcerted intention, excepting that implied from circumstances showing no considerable provocation, nor an abandoned and malignant heart, or if he did not intend to produce death, yet intended the blow, it is murder in the second degree-25 Cal. 361. If circumstances of malice and premeditation are not proved, the law presumes the murder in the second degree-54 Mo. 153. The court should not charge, that, killing being proved, the law implies that it was willful, deliberate, and premeditated, and in

the first degree, and thus ignore evidence tending to show mitigating or extenuating circumstances, or to show homicide, justifiable or excusable-45 Cal. 291.

190. Every person guilty of murder in the first degree, shall suffer death or confinement in the State prison for life, at the discretion of the jury trying the same; or upon a plea of guilty, the court shall determine the same; and every person guilty of murder in the second degree, is punishable by imprisonment in the State prison not less than ten years. [In effect March 28th, 1874.]

Discretion.-Under the amendment of 1874, the duty imposed on the court is to exercise the same discretion when defendant pleads guilty, and the court finds the crime murder in the first degree, as is to be exercised by the jury when they find defendant guilty of murder in the first degree-49 Cal. 178. The nature of that discretion is to be ascertained from the language of the statute-id.

191. The rules of the common law, distinguishing the killing of a master by his servant, and of a husband by his wife, as petit treason, are abolished, and these offenses are homicides, punishable in the manner prescribed by this chapter.

192. Manslaughter is the unlawful killing of a human being without malice. It is of two kinds:

1. Voluntary-upon a sudden quarrel or heat of passion. 2. Involuntary-in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.

Manslaughter defined.-3 Wash. C. C. 515; 2 Horr. & T. 2; 1 Hayw. (N. C.) 429; 6 Eng. 455. The absence of malice distinguishes it from murder-5 Cal. 127; 6 id. 543; 40 id. 436; 5 Sawy. 620; 3 Gratt. 594; Wright, 20; Addis. 279; 5 Cowen, 51; 4 Dall. 125; 2 Rice, 104; 2 Va. Cas. 78; Iid. 716; 2 Wheel. C. C. 506; Horr. & T. 2; 43 Me. 11; 1 Strob. 479; 16 B. Mon. 587; 1 Zab. 196; 37 Ill. 448; 3 Jones, (N. C.) 226; 28 Miss. 687; 53 Pa. St. 9; 10 Rich. 341; 31 Ind. 511; 43 Ala. 21; 18 Ga. 17; 29 Ohio St. 186; Kelly, 124; 2 St. Tri. 730. Neither malice nor deliberation is essential to unlawful shooting-5 Cush. 295; 7 Ga. 2; 2 Halst. 220; 1 Kelly, 222; Meigs, 106; 1 Parker Cr. R. 154; Thach. C. C. 471; 2 Va. Cas. 78; 1 id. 116; 59 Ga. 309. The unnecessary killing of another while resisting an attempt to commit a felony, or some other unlawful act-52 Miss. 23; or, if in the prosecution of a design no more was intended than a mere civil trespass, or an assault and battery-28 Ga. 200; 4 Mass. 391; 102 id. 155; 103 id. 458; 3 Cush. 181; 1 Leach, 6; or an attempt to commit a misdemeanor-33 Me. 43; 20 N. H. 160; 32 Me. 369. Where the weapon used is not likely to kill or maim-1 Raym. Ld. 144; 7 Humph. 479; 1 Ired. 76; or, where the act was not likely to cause death-30 Mich. 16; S. C. 1 Am. Cr. L. 276. Unless the unlawful act of