$497. arrest of the fugitive under the warrant of the executive Oct. 19, 1864, authority of the state on the requisition of the execu- When magistive authority of the state or territory in which he com- trate to mitted the crime, or until he be legally discharged, unless he give bail as provided in the next section. commit. $498. bail. § 1706. [498.] The magistrate may admit the person Oct. 19, 1864, arrested to bail by an undertaking, with sufficient sure- Admission of ties and in such an amount as he deems proper, for his fugitive to appearance before him at a time specified in the undertaking, and for his surrender to be arrested upon the warrant of the governor of this state. $499. Magistrate to governor of § 1707. [499.] Immediately upon the commitment Oct. 19, 1864, of the person charged, the magistrate must inform the governor of this state of the name of the person, the give notice to cause of the arrest, and his commitment; and the gov- commitment. ernor must thereupon give the like notice to the executive authority of the state or territory having jurisdiction of the crime, to the end that a demand may be made for the arrest and surrender of the person charged. $500. § 1708. [500.] The person arrested must be dis- Oct. 19, 1864, charged from custody or bail unless, before the expiration of the time designated in the warrant or undertaking, discharged, he be arrested under the warrant of the governor of this state. Fugitive to be unless. $ 501. Person caus issue liable. § 1709. [501.] The person making the complaint to Oct. 19, 1864, the magistrate is liable for the costs and expenses of the proceeding, and for the support in the jail of the person ing warrant to so committed; and unless he advance to the jailer, from week to week during the commitment, a sum sufficient for such support, the jailer may, upon the order of any Discharge of magistrate of the county, discharge such person from what. custody. fugitive, for TITLE II. OF CRIMES AND THEIR PUNISHMENTS. CHAPTER I.-OF THE CRIME OF TREASON. II. III. IV. V. OF CRIMES AGAINST THE PERSON. OF CRIMES AGAINST PROPERTY. OF FORGERY AND COUNTERFEITING. OF CRIMES AGAINST PUBLIC JUSTICE. OF CRIMES AGAINST THE PUBLIC PEACE. VII. OF CRIMES AGAINST PUBLIC DECENCY VI. AND GOOD MORALS. VIII. OF CRIMES AGAINST PUBLIC POLICY. X.-OF CRIMES AGAINST PUBLIC CONVE NIENCE. XI.-OF CRIMES AGAINST THE PUBLIC XII.-OF CRIMES AGAINST THE PUBLIC REVENUE. XIII. OF CRIMES RELATING TO THE MAN AGEMENT OF THE TELEGRAPH. § 1711. Oct. 21, 1864, 1. Definition of treason. Actual act of war necessary to constitute levying war. § 1712. Insurrection to force repeal of statute or prevent its execution is levying war; resistance to execution of statute, when not treason. § 1713. Punishment of person convicted of treason. § 1710. [502.] The following acts constitute the crime of treason against this state: 1. Levying war against this state within the bounda ries thereof; or, 2. A combination of two or more persons, by force, to usurp the government of this state or to overturn the Oct. 21, 1864, § 1. same, evidenced by a forcible attempt made within this Definition of state to accomplish such purpose; 3. Adhering to the enemies of this state while separately engaged in a war with a foreign enemy, in the cases prescribed in the constitution of the United States, and giving to such enemies aid and comfort in this state or elsewhere. Treason generally: See the two sections next following, and the notes thereto. Proof of treason must be made by two witnesses, and no conviction on less evidence will be upheld: U. S. Constitution, art. 3, § 3, ante, p. 36; Oregon Constitution, art. 1, § 24, ante, p. 81; Code Civ. Proc., $$ 681 [671] and 778 [768], ante. This, it seems, refers to the proofs on the trial, and not to the preliminary hearing before the committing magis trate, or the proceeding before the treason. - § 1711. [503.] To constitute levying war against this Oct. 21, 1864, § 2 state, an actual act of war must be committed. To con- What is levyspire merely to levy war is not enough. Levying war. To conspire to levy war and actually to levy war are distinct offenses: Ex parte Bollinau, 4 Cranch, 75. There must be an actual levying of war; a conspiracy to subvert the government by force is not treason; nor is the mere enlistment of men, who are not assembled, a levy. ing of war: Ex parte Bollman, 4 Cranch, 75; United States v. Hanway, 2 Wall. Jr. 140; there must be an assemblage of people, with force and arms, to overthrow the government or resist the laws: United States v. Greathouse, 2 Abb. 364. In 2 Burr's Trial, 401, 439, it is said that no one can be convicted of treason who was not present when and where the war was levied; but in other cases it is said that persons may be convicted of treason though they were not present in person, if they were leagued with the conspirators and performed any part: In re Bollman, 4 Cranch, 75; Druecker v. Salomon, 21 Wis. 621. An unnaturalized alien cannot be guilty of treason against the United States: United States v. Villato, 2 Dall. 370. An insurrection, to prevent by force and intimidation the execution of an act of Congress, is treason by levying war: United States v. Mitchell, Adhering to enemies, etc. — ing war. Oct. 21, 1864, §2. v. Pryor, 3 Wash. C. C. 234. So giving up prisoners and deserters to the enemy is treason: United States v. Hodges, 2 Wheel. C. C. 477. Aiding a rebellion constitutes levying war; and the buying of a vessel, guns, and Oct. 21, 1864, §3. in what case treason. ammunition, getting her ready for service, whether the vessel actually sails or not, in an overt act of treason: United States v. Greathouse, 2 Abb. 364; S. C., 4 Saw. 457. § 1712. [504.] Where persons rise in insurrection, Insurrection, with intent to prevent in general, by force and intimidation, the execution of a statute of this state, or to force its repeal, they are guilty of levying war. But an endeavor, although by numbers and force of arms, to resist the execution of a law in a single instance and for a private purpose is not levying war. See the preceding section and note. § 1713. [505.] Every person convicted of the crime of treason shall suffer death for the same. Punishment. For treason against the United States, there shall be not attainder, corruption of blood, or for feiture, except during the life of the person attainted: U. S. Constitution, art. 3, § 3, ante, p. 37. § 1727. Evidence of malice and premeditation in murder in the first degree. § 1728. When court to ascertain the degree of guilt on an indictment for murder. § 1729, 1730. When killing of a human being justifiable. § 1731. When killing of a human being excusable. § 1732. When killing justifiable or excusable, verdict must be not guilty. § 1741. § 1742. Assault and robbery, being armed with a dangerous weapon. weapon. § 1743. Attempt to kill or injure by means not constituting an assault. § 1744. Assault with a dangerous weapon. § 1745. Assault, or assault and battery, not being armed with a dangerous § 1746. Kidnaping, its punishment. § 1747. Child-stealing, its punishment. § 1748. Attempt to extort money or coerce another by threats. 889 § 1749. Libel, definition and punishment. $ 502. Definition of § 1714. [506.] If any person shall purposely, and of Oct. 19, 1864, deliberate and premeditated malice, or in the commission or attempt to commit any rape, arson, robbery, or murder in the burglary, kill another, such person shall be deemed guilty of murder in the first Degrees of murder. - Murder is divided into different degrees, distinguished from each other by the malice which accompanies the act. The difference in degrees results from the condition of the mind in which the design is executed, not from the speed with which it is executed: Halbert v. This State, 3 Tex. Ct. App. €56. division into degrees seeks only to graduate the punishment in proportion to the atrocity of the crime: Com. v. Wicke, 2 Va. Čas. 387. Presumptively every killing is murder, but so far as the degree is concerned, no presumption arises from the mere fact of the killing, considered apart from the circumstances: People v. Belencia, 21 Cal. 544. It is not the province of the court to instruct the jury as to the degree of murder established by the evidence, and it should be left to the jury to determine that question: People v. Hunt, 59 Id. 430; People v. Woody, 45 Id. 289; People v. Gibson, 17 Id. 283; but if there is no evidence of facts or circumstances such as would, under the law, reduce the crime charged to manslaughter, the judge may so inform the jury: State v. Garraud, 5 Or. 216. The jury may find the party guilty of less than murder, -say, manslaughter: People A party in v. Estrado, 49 Id. 171. dicted for murder in the first degree may be convicted of any included inferior offense: State v. Grant, 7 Id. 414; State v. Wintzingerode, 9 Id. 153. And such conviction acquits him of the higher offense: Morehead v. State, 34 Ohio St. 412. Plea of not guilty does not admit degree of crime charged if charge be proven: State v. Whitney, 7 Or. 386. degree. Murder in the first degree. — first degree. |