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of killing by the defendant, as alleged, are each established as independent facts; the former by direct proof and the latter beyond a reasonable doubt.

§ 473. Degrees of the Offense.-"The killing of a human being, unless it is excusable or justifiable, is murder in the first degree when committed, either,

1. From a deliberate and premeditated design to effect the death of the person killed, or of another, or

2. By an act imminently dangerous to others, and evincing a depraved mind, regardless of human life, although without a premeditated design to effect the death of any individual; or without a design to effect death, by a person engaged in the commission of, or in an attempt to commit a felony, either upon or affecting the person killed or otherwise; or,

3. When perpetrated in committing the crime of arson in the first degree.

"Such killing of a human being is murder in the second degree, when committed with a design to affect the death of the person killed, or of another, but without deliberation and premeditation. "Such homicide is manslaughter in the first degree, when committed without a design to effect death, either

1. By a person engaged in committing, or attempting to commit, a misdemeanor, affecting the person or property, either of the person killed, or of another; or

2. In the heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon.

"Such homicide is manslaughter in the second degree, when committed without a design to effect death, either

1. By a person committing or attempting to commit a trespass, or other invasion of a private right, either of a person killed, or of another, not amounting to a crime; or,

2. In the heat of passion, but not by a dangerous weapon or by the use of means either cruel or unusual; or

3. By any act, procurement or culpable negligence of any person, which, according to the provisions of this chapter, does not constitute the crime of murder in the first or second degree, nor manslaughter in the first degree. See N. Y. Penal Code, §§ 183, 184, 189, 193.

In jurisdictions where murder is divided into two degrees, murder in the first degree requiring deliberation and premeditation,

in other words, actual malice, it has been frequently held that evidence of mental excitement resulting from drunkenness and, perhaps, also of other abnormal conditions of the mind not amounting to insanity, may reduce an unprovoked homicide to murder in the second degree; but it has always been held that such evidence cannot of itself reduce the crime to manslaughter. On this point see Jones v. Com. 75 Pa. 403; McIntyre v. People, 38 Ill. 320; Rafferty v. People, 66 Ill. 118, 18 Am. Rep. 601; People v. Rogers, 18 N. Y. 27, 72 Am. Dec. 484; Com. v. Harokins, 3 Gray, 463; People v. Belencia, 21 Cal. 544; Pirtle v. State, 9 Humph. 663; Haile v. State, 11 Humph. 155; Tidwell v. State, 70 Ala. 33; Willis v. Com. 32 Gratt. 929.

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"All peculiar traits may be put in evidence to lower the grade of the offense, although they do not amount to insanity. 1 Whart. Medical Jurisprudence.

"Partial insanity may be evidence to disprove the presence of the kind of malice required by the law to constitute the particular crime of which the prisoner is accused." Stephen, Dig. 1863, § 92.

In Pennsylvania, the legislature, considering that there is a manifest difference in the degree of guilt, where a deliberate intention to kill exists, and where none appears, distinguishes murder into two grades, murder of the first and murder of the second degree; and, provided that the jury before whom any person indicted for murder shall be tried, shall, if they find him guilty thereof, ascertain in their verdict whether it be murder of the first or murder of the second degree.

474. When Justifiable.-Homicide is declared to be justifiable, excusable or felonious. 4 Bl. Com. 176.

Every homicide which is neither justifiable nor excusable must of necessity be "felonious." Every felonious homicide must be and is either murder or manslaughter. 4 Bl. Com. 190.

Murder and manslaughter are each and both felonies. 2 Bishop, Crim. L. 617.

Therefore every assault feloniously committed with intent to "feloniously kill," must of necessity be and is a criminal assault, with intent to commit a felony, either murder or manslaughter. An assault with intent to commit either of these crimes is an assault with intent to commit a felony, and is indictable. 2 Bishop, Crim. L. 629.

All statutes providing for the punishment of assaults with intent to commit crime contemplate complete commission of the one offense, the assault, the misdemeanor, with the intent to commit the other complete crime, which would be a felony. Wilson v. People, 24 Mich. 410.

Where a party by one witness has introduced certain testimony, he is not necessarily bound thereby, but that he must give contradictory testimony by another witness or witnesses, and may thereafter in argument claim the benefit of the more favorable portion of such contradictory testimony. Bullard v. Pearsall, 53 N. Y. 230; Howard v. State, 32 Ind. 478; Melluish v. Collier, 15 Q. B. 878; 1 Stark. Ev. 216; 2 Phil. Ev. 985; 1 Greenl. Ev. § 444.

Homicide is also justifiable when committed, either—

1. In the lawful defense of the slayer, or of his or her husband, wife, parent, child, brother, sister, master or servant, or of any other person in his presence or company, when there is reasonable ground to apprehend a design on the part of the person slain to commit a felony, or to do some great personal injury to the slayer, or to any such person, that there is imminent danger of such design being accomplished; or,

2. In the actual resistance of an attempt to commit a felony upon the slayer, in his presence, or upon or in a dwelling or other place of abode in which he is.

The statute above quoted states the general doctrine of the cases.. Kingen v. State, 45 Ind. 518; Runyan v. State, 57 Ind. 80, 26 Am. Rep. 52; People v. Anderson, 44 Cal. 65; People v. Morine, 61 Cal. 367; State v. Newcomb, 1 Houst. Crim. Rep. 66; State v. Hollis, 1 Houst. Crim. Rep. 24; State v. Vines, 1 Houst. Crim. Rep. 424; Davison v. People, 90 Ill. 221; State v. Bohan, 19 Kan. 28, 55; State v. Rose, 30 Kan. 501; Kennedy v. Com. 14 Bush, 340; Farris v. Com. 14 Bush, 362; Minton v. Com. 79 Ky. 461; State v. Garic, 35 La. Ann. 970; State v. Matthews, 78 N. C. 523; Draper v. State, 4 Baxt. 246; Holt v. State, 9 Tex. App. 571; State v. Abbott, 8 W. Va. 741; State v. Cain, 20 W. Va. 679.

§ 475. Effect and Definition of Provocation.-"Homicide, which would otherwise be murder, is not murder, but manslaughter, if the act by which death is caused is done in the heat of passion, caused by provocation, as hereinafter defined, unless the provocation was sought or voluntarily provoked by the offender as an excuse for killing or doing bodily harm. The following acts

may

amount to provocation: (a) An assault and battery of such a nature as to inflict actual bodily harm, or great insult, is a provocation to the person assaulted. (b) If two persons quarrel and fight upon equal terms and upon the spot, whether with deadly weapons or otherwise, each gives provocation to the other whichever is right in the quarrel, and whichever strikes the first blow. (c) An unlawful imprisonment is a provocation to the person imprisoned, but not to the by-standers, though an unlawful imprisonment may amount to such a breach of the peace as to entitle a by-stander to prevent it by the use of force sufficient for that purpose. An arrest by officers of justice, whose character as such is known, but who are acting under a warrant so irregular as to make the arrest illegal, is provocation to the person illegally arrested, but not to by-standers. (d) The sight of the act of adultery committed with his wife is provocation to the husband of the adulteress on the part of both the adulterer and of the adulteress. (e) The sight of the act of sodomy committed upon a man's son is provocation to the father on the part of the person committing the offense. (f) Neither words, nor gestures, nor injuries to property, nor breaches of contract amount to provocation, except perhaps words expressing an intention to inflict actual bodily injury, accompanied by some act which shows that such injury is intended; but words used at the time of an assaultslight in itself—may be taken into account in estimating the degree of provocation given by a blow. (g) The employment of lawful force against the person of another is not a provocation to the person against whom it is employed.

"Provocation does not extenuate the guilt of homicide unless the person provoked is, at the time when he does the act, deprived of the power of self control by the provocation which he has received; and, in deciding the question whether this was or was not the case, regard must be had to the nature of the act by which the offender causes death, to the time which elapsed between the provocation and the act which caused death, to the offender's conduct during that interval, and to all other circumstances tending to show the state of his mind.

"Provocation to a person by an actual assault, or by a mutual combat, or by a false imprisonment, is in some cases provocation to those who are with that person at the time, and to his friends who, in the case of a mutual combat, take part in the fight for

his defense. But it is uncertain how far this principle extends.” Stephen, Dig. art. 224, 225, 226.

§ 476. Texas Code Provisions on the Subject of Homicide. -"Homicide is permitted in the necessary defense of person or property under the circumstances and subject to the rules herein set forth." Texas Penal Code, art. 567; Paschal, Dig. art. 2225.

"Homicide is permitted by law, and subject to no punishment, when inflicted for the purpose of preventing the offenses of murder, rape, robbery, maiming, arson, burglary, and theft at night, whether the homicide be permitted by the person about to be injured, or by some person in his behalf, when the killing takes place under the following circumstances:

"1. It must reasonably appear by the acts, or by the words. coupled with the acts of the person killed, that it was the purpose and intent of such person to commit one of the offenses above named. 2. The killing must take place while the person killed was in the act of committing the offense, or after some act done by him, showing evidently an intent to commit such offense. 3. It must take place before the offense committed by the party killed is actually completed, except that, in case of rape, the ravisher may be killed at any time before he has escaped from the presence of his victim, and except also in the cases hereinafter enumerated. 4. Where the killing takes place to prevent the murder of some other person, it shall not be deemed that the murder is complete so long as the offender is still inflicting violence, though the mortal wound may have been given. 5. If homicide takes place in preventing a robbery, it shall be justifiable, if done while the robber is in the presence of the person robbed, or is flying with the money or other article taken by him. 6. In case of maiming, the homicide may take place at any time while the the offender is mistreating with violence the person injured, though he may have completed the offense of maiming. 7. In case of arson, the homicide may be inflicted while the offender is in or at the building or other property burnt, or flying from the place before the destruction of the same. 8. In case of burglary and theft by night, the homicide is justifiable at any time while the offender is in the building, or at the place where the theft is committed, or is within gunshot from such place or building." Texas Penal Code, art. 568; Paschal, Dig. art. 2226.

"When the homicide takes place to prevent murder or maiming,

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