meaning of the last four sections." Rev. Stat., § 4411. This section merely establishes a rule of evidence whereby the scope of constructive breaking is enlarged so as to take in "any unlawful entry of a dwelling-house or other building with intent to commit a felony." See State v. Kane, 63 Wis. 262. It in no way narrows the scope of constructive breaking, as understood at common law, but merely enlarges it in the particulars named. In all other respects such constructive breaking signifies the same as at common law. It necessarily follows that as the word "break," used in section 4410, had obtained a fixed and definite meaning at common law when applied to a dwelling-house proper or other buildings within the curtilage, the legislature must be presumed to have used it in the same sense when therein applied to other statutory breakings. Ex parte Vincent, 26 Ala. 145, 62 Am. Dec. 714; Ducher v. State, 18 Ohio, 308; Bishop, Statutory Crimes, §§ 7, 88. That is to say they must be deemed to have used the word as understood at common law in relation to the same or a like subject-matter. Nicholls v. State, 68 Wis. 416, 60 Am. Rep. 870. § 470. Evidence of Former Attempts.-On a trial for burglary, it is no valid objection to evidence, tending to show the burglarious intent of defendant's act, that it proves another and distinct offense, but the intent with which he entered may be shown by proof of a felony committed in an adjoining store. Osborne v. People, 2 Park. Crim. Rep. 583; Phillips v. People, 57 Barb. 363. In Mason v. State, 42 Ala. 532, evidence was held admissible to show that the prisoners had committed other burglaries than that charged. The court says: "The evidence tended to show that there was a privity and community of design between the prisoners to commit offenses of the character charged against them." "Privity and community of design" is a larger phrase than "intent," but it means the same thing. To show their intent, written articles of agreement signed by the defendants, setting forth their intent of going into the burglary business, would be competent. And it would not be necessary that their agreement be reduced to writing. Their oral statements would be equally competent, as in the case of the dealer in counterfeit money, and the intent may be proved by other burglaries, as well as by written or oral statements; by acts, as well as by words written or spoken, by the executed, as well as by the exec utory agreement. And in the case of a single defendant, his intent may be shown by the same kind of evidence that would be admissible against several joint defendants, as in the case of the dealer in counterfeit money. Evidence that a man has often passed counterfeit money has a legal tendency to show that he intends to pass more of the same kind of money found in his possession. The number of his previous attempts to pass such money affects the weight, not the competency, of this kind of evidence. So, when A has broken and entered B's house, and the question is whether he broke and entered it with a burglarious intent, evidence of his having repeatedly broken and entered other houses for the purpose of stealing, tends to show the intent with which he broke and entered B's house. § 471. Partial Review of Late Decisions.-In People v. Ah Sing, 59 Cal. 400, the opinion of the court is as follows "The defendant was proceeded against by information, and convicted of the crime of burglary, and on the trial the court below instructed the jury that the possession of stolen property, supported by other circumstances and other evidence tending to show guilt, is a strong circumstance in the case. This was error, whether the possession was strong evidence, or only slight evidence, tending to show guilt, was a matter for the jury to pass upon, and not a question for the court to determine." In People v. Titherington, 59 Cal. 598, wherein the appellant was convicted of burglary, a similar instruction was held erroneous, the court below having said that "such possession, if proven to the satisfaction of the jury, and unexplained by the defendant, supported by other circumstances tending to show guilt, is a strong circumstance tending to show guilt." In People v. Cline, 74 Cal. 575, it appeared that the defendant was convicted of grand larceny, and the following instruction was given to the jury: "The possession of stolen property, supporting other evidence tending to show guilt, is a strong circumstance tending to show guilt." The court affirmed the case of People v. Ah Sing, supra, and Chief Justice Searls, in the opinion, says: "In other words, it is not a question of law, upon which the court should instruct the jury, but one of fact which is wholly within the province of the latter. In adducing the ultimate fact of guilt or innocence, they are the sole judges of the weight to be given to the probative fact of possession of property recently stolen, and of all the circumstances surrounding and stamping the character of such possession.” In Clary v. State, 33 Ark. 566, this court said: "Perhaps, on a trial for robbery, if the state fails to prove that the goods were taken from the person or party charged to have been injured, by putting him in fear, or by intimidation or violence, and proves that the goods were taken from his person furtively, the accused might be accused of larceny." In State v. Emerson, 48 Iowa, 174, substantially the same question arose, and the court said: "When a reasonable doubts exists as to the character of the recent possession, whether it be innocent or guilty, a reasonable doubt exists as to the defendant's guilt. If such doubt exists he cannot be convicted. Now, such a doubt may arise in the minds of the jury upon less than a preponderance of the evidence. It was therefore erroneous to direct the jury that they could find the defendant guilty, unless defendant, by a preponderance of the testimony, reasonably satisfied them that his possession of the cattle was innocent." See also State v. Henry, 48 Iowa, 403; State v. Merrick, 19 Me. 398; Hall v. State, 8 Ind. 439; Heed v. State, 25 Wis. 421. A family vault in a cemetery is a "building or erection or enclosure," as defined in the penal code, and a person who breaks and enters the same with intent to commit a crime therein, is guilty of burglary in the third degree." People v. Richards, 5 N. Y. Crim. Rep. 355. 48 CHAPTER LIV. MURDER AND MANSLAUGHTER. § 472. Distinction between Murder and Manslaughter. 474. When Justifiable. 475. Effect and Definition of Provocation. 476. Texas Code Provisions on the Subject of Homicide. 479. Intent to Kill is the Essence of the Crime. 480. How Death may be Accomplished. 481. Burden of Proving Mitigating Circumstances. 483. Evidence of Death by Poisoning. 484. Evidence of Blood Stains in Cases of Homicide. § 472. Distinction between Murder and Manslaughter.Voluntary manslaughter often so nearly approaches murder, it is necessary to distinguish it clearly. This difference is this: Manslaughter is never attended by legal malice or depravity of heart, that condition or frame of mind before spoken of, exhibiting wickedness of disposition, recklessness of consequences or cruelty, being sometimes a willful act, as the term "voluntarily" denotes. It is necessary that the circumstances should take away every evidence of cool depravity of heart or wanton cruelty. Therefore, to reduce an intentional blow, stroke or wounding, resulting in death, to voluntary manslaughter, there must be sufficient cause or provocation, and a state of rage or passion, without time to cool, placing the prisoner beyond the control of his reason, and suddenly impelling him to the deed. If any of these be wanting, if there be provocation without passion, or passion without a sufficient cause of provocation, or there be time to cool, and reason has resumed its sway, the killing will be murder. "Murder . . . is the voluntary killing of any person of malice pretense or aforethought, either express or implied, by law; the sense of which word malice is not only confined to a particular ill will to the deceased, but is intended to denote, as Mr. Justice Foster expresses it, an action flowing from a wicked and corrupt motive, a thing done malo animo, where the fact has been attended with such circumstances as carry in them the plain indications of a heart regardless of social duty and fatally bent upon mischief. And therefore malice is implied from any deliberate, cruel act against another, however sudden." § 2. "Manslaughter is principally distinguishable from murder in this: that though the act which occasions the death be unlawful, or likely to be attended with bodily mischief, yet the malice, either express or implied, which is the very essence of murder, is presumed to be wanting in manslaughter; and, the act being imputed to the infirmity of human nature, the correction ordained for it is proportionally lenient." § 4. "The implication of malice arises in every instance of homicide amounting, in point of law, to murder; and in every charge of murder, the fact of killing being first proved, all the circumstances of accident, necessity, or infirmity, are to be satisfactorily proved by the prisoner, unless they arise out of the evidence produced against him." 12. "Whenever death ensues from sudden transport of passion or heat of blood, if upon a reasonable provocation and without malice, or if upon sudden combat, it will be manslaughter; if without such provocation, or the blood has had reasonable time or opportunity to cool, or there be evidence of express malice, it will be murder." $19. "Words of reproach, how grievous soever, are not provocation sufficient to free the party killing from the guilt of murder; nor are contemptuous or insulting actions or gestures, without an assault upon the person; nor is any trespass against lands or goods. This rule governs every case, where the party killing upon such provocation made use of a deadly weapon, or otherwise manifested an intention to kill, or to do some great bodily harm. But if he had given the other a box on the ear, or had struck him with a stick, or other weapon not likely to kill, and had unluckily and against his intention killed him, it had been but manslaughter." 1 East, P. C. chap. 5, §§ 2, 4, 12, 19, 20. No person can be convicted of murder or manslaughter unless the death of the person alleged to have been killed and the fact |