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PART FOURTH.

CODE OF CRIMINAL PROCEDURE.

TITLE XXIV.

OF CRIMES AND PUNISHMENTS.

CHAPTER 1.

OF OFFENSES AGAINST THE SOVEREIGNTY OF THE STATE.

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SECTION 3845. Whoever is guilty of treason, by levying war Treason. against the state, or adhering to its enemies, giving them aid and R. & 4188; comfort, shall be punished by imprisonment for life at hard labor 14 G. A. ch. 135. in the state penitentiary. Treason is not a bailable offense.

SEC. 3846. If any person have knowledge of the commission Misprision of of the crime of treason against the state and conceal the same,

7 R. 2 4189. and not as soon as inay be disclose such offense to the governor or C. '51, ê 2566. some judge within the state, he is guilty of misprision of treason, and shall be fined not exceeding one thousand dollars, or be imprisoned in the penitentiary not exceeding three years nor less than one year.

Sec. 3817. No person can be convicted of the crime of treas- Evidence. on, unless on the evidence of two witnesses to the same overt act, 8: 311.92367. or on confession in open court.

CHAPTER 2.

OFFENSES AGAINST THE LIVES AND PERSONS OF INDIVIDUALS.

SECTION 3848. Whoever kills any human being with malice Murder.

aforethought, either express or implied, is guilty of murder. R. 4191. c. '51, 2368. In an indictment for murder under cure an abortion, causes the death of

our statute, it is necessary to charge a woman, is guilty of murder in the
that the homicide was done with second degree: The State c. Moore,
malice aforethought: The State 1. 25-128.
Newburry, 26-467.

1 It is not necessary that an indictWords used in the indictment in a ment for murder should specifically particular case, held, to be equivalent charge, as at common law, that the to the expression “malice afore- defendant murdered the deceased. thought:" The State v. Neeley, 20- The use of other words of the ame 108.

import will be sufficient: The State v. In murder of either degree there O'Niel, 2:3-272. must be malice aforethought, express It is not necessary that an indictor implied: The State v. Johnson, ment for murder should allege that 8-525; Foute v. The State, 4 Gr. 500. the deceased was a human biny: The

To constitute the crime of murder, State 1. Stanley, 33-326, 3:31. malic?is necessary, but need not have An infant in ihe womb is not a huexisted for any considerable length of man being within the meaning of time: The State v. Decklotts, 19-447. this section; certainly not beiore it is

Homicide committed in sudden piis- quick: Abriums r. Fosher, 3-274. It sion, without deliberation, and with is not a subject of murder until an inout malice, is manslaughter and not dependent circulation has been estabmurder : The State v. Spangler, 40- lished: The State v. Winthrop, 43365.

519. What would be murder at common Instructions as to when the cansing law is murder under our statute. of death in the prosecution of a conMalice may, as at common law, be spiracy will amount to murder, conimplied in cases of homicide from any sid red: The State r. Shelledy, 8-477. act, unlawful and dangerous in its na. As to when killing is excisible in ture, unjustifiably commitied. There- self-defense, spe The State v. Benham. fore, hild, that independently of $ 2:3-151; The State v. Sullivan, 51-142. 3864, one who, in an attempt to pro- |

Sec. 3849. All murder which is perpetrated by means of poifirst degree. son, or lying in wait, or any other kind of wilful, deliberate and R. 4192.

premeditated killing, or which is committed in the pe: petration C. '51, 2569. 14 G. A. ch. 136. or attempt to perpetrate any arson, rape, robbery, maviem Or

burglary, is murder in the first degree, and shall be punished withi death or imprisonment for life, at hard labor, in the state penitentiary, as determined by the jury, or by the court if the de.er.dant pleads guilty.

A subs itute for the original section; 17th G. A., ch. 165, § 1, as amended by 18th G. A., ch. 2, § 1, which added the words at the end of the sectior, tollowing “jury' in next to the last line. The other sections of 17th G., A. ch. 165, are inserted followiny $ 3851. The original sectio: was as follows: “ All murder which is perpetrated by means of poison, or lying in wai., or any other kind of wilful, deliberate, and preditated killing, or which is committed in the perpetration or attempt to perpetrate any arson, rape, robbery, mayhem, or burglary, is murder of the first degree, and shall be punished by imprisonment for life at hard labor in the state penitentiary.'']

To constitute murder in the first fied, there must be willfulness, delibdegree, committed otherwise than by eration and premeditation (commentmeans of poison or lying in wait, oring upon Fouts v. The State, 4 lir. in the perpetration or attempt to per- 500): The State v. Johnson 8-525, petrate some one of the crimes speci- ! That the indictment charges the killing as wil.ful and premeditated only, , be charged as willful, etc , quære: Id. will not be sufficient: The State r. / Where the indictment charged that Boyle, 28-522.

the assault was made willfully, etc., l'he indictment must charge that and by lying in wait with intent to the killing was willful, deliberate and kill, and that death resulted therepremeditated. The allegation that from, helil, that it was sufficient to the assault was so, will not suffice: charge murder in the fir t degree, The State v. Kľnouse. 29-118; The although the charge was not specificState 1. Thompson, 31-393. So, an vlly made that the killing was done indictment charging that the assault wilfully, etc., and by lying in wait, or was willful, deliberate, and premedi- that it was committed at all : The tated, and that the blow from wh ch | Stite v. Stanley, 3:3-526. deceased died was willful, deliberate Facts from which malice and preand premeditated, but not charging meditation may be inferred, considthat it was de::lt for the purpose of ered: The State 1. Gillick, 7-287. killing, or that the killing itself was It is prejudicial error to put a party willful, does not charge murder in on trial for murder in the first degree the first degree: The State v. McCor- uncler an indictment charging only mick, 27-102; The State r. Watkins. murder in the second degree, although 27-415.

the party is only convicted of the To constitute the first degree of the lesser offense: The State v. Boyle, offense, there must be a specific in- 28-322; The State r. Knouse, 29-118. tent to take life, and the facts to Where on an indictment not sufficient bring the cas? within that degree to charge murder in the first degree, must be set out; naming the offense the defendant was found guilty in in the introductory and concluding that degree, and defenlånt on appeal portion of the indictment as murder asked that the sentence be modified in the first degree, will not cure the to one which would be proper under defect. Since at common law an the indictment for the second degree, indictment for wurder is good with the court so reduced the sentence: The out averrig that the killing was pre- State v. McCormick, 27-402; but meclitate i, an indictment for murder where, in a similar case, defendant which would be sufficient at common denied the sufficiency of the evidence law is not necessarily so for murder to establish his guilt in any degree, in the first degre under the statute: inel demanded a new trial, hell, that Ibid. (both cases), and Fouts v. The he wis entitled thereto: The State v. State, 4 Gr. 501).

| Watkins, 27-415. The proof of killing, without more, The crime of manslaughter is necdoes not raise the presumption that essarily included in that of murder, such k lling was willful, deliberate, and upon the trial for murder in the and premeditated; The State v. first degree, all the degrees of criminMcCormick, supra.

al homicide should be explaine land Whether in case the killing was submitted to the jury: The State v. committed in the perpetration or at- Clemons, 51-274; The State v. Glyntempt to perpetrate some of the felon-don, 51-463; a:id see notes to $ $ ies spec.fied in this section, it should 3818, 3850, 3851, and 35:56.

Sec. 3850. Whoever commits murder otherwise than is set Second degree. forth in the preceding section, is guilty of murder of the second

C. '51, 2 2570. degree, and shall be punished by imprisonment in the penitentiary for life, or for a term not less than ten years.

A specific intention to kill is not the second degree: The State v. essential to consti. ute murder at com- Derklotts, 19-447; The Stute v. Mors mon law, nor is it essential, under phy, 33–270. our statute, to constitute murder in See notes to two preceding sections.

Sec. 3851. Upon the trial of an indictment for murder, the Deeree jury, if they find the defendant guilty, must inquire, and by their determined. verdict ascertain, whether he be guilty of murder of the first or ĉ. 51, 22571. second degree; but if such defendant be convicted upon his own confession in open court, the court must proceed by the examination of witnesses to determine the degree of murder, and award sentence accordingly.

Where the jury, upon trial of an gree, found defendant “guilty as indictment for murder iu the first de- charged in the indictment,held,

that such verdict was fatally defective | fendant guilty of murder in either as not sufficiently ascertaining the degree, may, under $ 4466, convict degree of the offense: The State v. him of manslaughter: Gordon V. Moran, 7-236.

| The State, 3-4i0; and see notes to $ The jury, if they do not find de- 13849.

[Seventeenth General Assembly, Chapter 165.] (Sec. 1 amends $ 3849, which see.]

SEC. 2. Upon trial of an indictment for murder, the jury, if they Jury to fix find the defendant guilty of murder in the first degree, must punishment.

designate in their verdict whether he shall be punished by death, or imprisonment for life at hard labor in the penitentiary. But if such defendant be convicted upon a plea of "guilty," the court shall designate whether he shall be punished by death or imprisonment for life at hard labor in the penitentiary.

[As amended by 18th G. A., ch. 2, § 2, which inserted the words “ of murder in the first degree,” in the second line, and added the last sentence of the section.]

Sec. 3. Whenever the court or jury shall designate that a de. Judgment fendant shall be punished by death, the court pronouncing judgand execution.

ment shall fix the day of the execution thereot, which shall not be less than one year after the day on which the judgment is rendered, and not longer than fifteen months, during which time the defendant, against whom judgment of death has been pronounced, shall be imprisoned in the penitentiary of the state.

[As amended by 18th G. A., ch. 2. $ 3, which substituted the words at the beginning of the section, preceding the court" in the second line, for the corresponding portion of the original section.]

Sec. 4. Immediately after the entry of the judgment of death, Copy of papers the court rendering such judgment must transmit by mail to the

governor of the state, a copy of the indictinent, plea, verdict, governor.

judgment, and of the testimony in the case.

Sec. 5. When a judgment of death is pronounced, a certified Warrant of copy of the entry thereof in the record book must be furnished to

the officer whose duty. it is to execute the same, who shall proceed and execute accordingly, and no other warrant or authority is necessary to require or justify the execution.

Sec. 6. The only officer [s] who shall have power to reprieve Reprieve: or suspend the execution of a judgment of death, are the goverwho may.

nor and the sheriff, as provided in the next section, unless in case of an appeal to the supreme court, as provided in section eighteen of this act.

Sec. 7. When the sheriff is satisfied that there are reasonable Insanity or grounds for believing that the defendant is insane or pregnant, pregnancy :

he may summon a jury of twelve persons on the jury list, to be pended. drawn by the clerk, who shall be sworn by the sheriff well and

truly to inquire into the insanity of or pregnancy of the defendant and a true inquisition return, and they shall examine the defendant and hear any evidence that may be presented, and by written inquisition, signed by each of them, find as to the insanity or pregnancy, and unless the inquisition find the defendant insane or pregnant, the sheriff shall not suspend the execution. But if the inquisition find the defendant in one or pregnant, he shall suspend the execution and immediately transmit the inquisition to the governor.

to be sent the

execution.

sentence sus

Sec. 8. Whenever a judgment of death has not been executed subsequent on the day appointed by the court therefor, from any cause what- execution. ever, the governor, by a warrant under his hand and the seal of the state, shall fix the day of execution, which warrant shall be obeyed by the sheriff, and no one but the governor can then suspend its execution.

Sec. 9. A judgment of death must be executed by the sheriff Time and on the day fixed in the judgment, between sunrise and sunset, by execution. hanging the defendant by the neck until he is dead. SEC. 10. A judgment of death must be executed within the Place of exe

cution, walls of the jail of the county in which the judgment was rendered, or within a yard or enclosure adjoining thereto, unless as provided in the next two sections.

Sec. 11. If there be no jail in the county in which the judg- Same. ment was rendered, or if it becomes unfit or unsafe for the confinement of prisoners, or be destroyed by fire or otherwise, and the jail of any other county has been legally designated for the imprisonment of the defendant until the day fixed for his execution, the judgment must be executed within the walls of the jail of the county so designated, or within a yard or enclosure adjoining the same, and by the sheriff of such county.

Sec. 12. If there be two or more jails or prisons in the same Same. county, a judgment of death shall be executed within the walls of either of such jails or prisons, or within an enclosure adjoining thereto, as the court rendering such judgment shall therein direct.

Sec. 13. The sheriff executing a judgment of death, must, at Witnesses at least three clear days before inflicting the punishment of death, e

xecution. notify the judge of the district court of his county, the district attorney, the clerk of the district court, together with two physicians and twelve respectable citizens of his county, to be selected by him and the sheriff of the county in which the trial was had and the offense committed (if it be in a different county,) to be present as witnesses of such execution. He must also at the request of the defendant permit one or more ministers of the gospel, whom the defendant shall name, and any of his relations to attend the execution, and also such magistrates, peace officers, and guards as the sheriff shall deem proper, but no person other than those mentioned in this section can be present at the execution, nor shall any person under age be permitted to witness the same. SEC. 14. The sheriff or his deputy executing the judgment of Certificate of

sheritf and death, and the judges attending the execution must prepare and judges. sign with their name of office, a certificate, setting forth the time and place of the execution, and that judgment was executed upon the defendant according to the foregoing provisions, and must cause the certificate to be signed by the public officers, and at least twelve persons not relations of the defendant who witnessed the execution.

Sec. 15. The sheriff or his deputy executing such judgment of Must be filed death, must cause the certificate to be filed in the office of the and published. clerk of the district court of the county in which the judginent was rendered, and a copy thereof to be published in a newspaper printed at the capital of the state, and in one, if any, published in his county.

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