PART FOURTH. CODE OF CRIMINAL PROCEDURE. TITLE XXIV. OF CRIMES AND PUNISHMENTS. CHAPTER 1. OF OFFENSES AGAINST THE SOVEREIGNTY OF THE STATE. 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 C. '51, 2565. comfort, shall be punished by imprisonment for life at hard labor 14 G. A. ch. 133. in the state penitentiary. Treason is not a bailable offense. treason. SEC. 3846. If any person have knowledge of the commission Misprision of of the crime of treason against the state and conceal the same, re and not as soon as may be disclose such offense to the governor or C. '51, ¿ 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. R. 2 4190. SEC. 3847. No person can be convicted of the crime of treas- Evidence. on, unless on the evidence of two witnesses to the same overt act, C. 51, 2567. or on confession in open court. CHAPTER 2. Murder. C. '51, 2568. First degree. R. 24192. C. '51, 2569. OFFENSES AGAINST THE LIVES AND PERSONS OF INDIVIDUALS. SECTION 3848. Whoever kills any human being with malice aforethought, either express or implied, is guilty of murder. In an indictment for murder under our statute, it is necessary to charge that the homicide was done with malice aforethought: The State v. Newberry, 26-467. cure an abortion, causes the death of a woman, is guilty of murder in the second degree: The State v. Moore, 25-128. 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. O'Niel, 23–272. It is not necessary that an indictment for murder should allege that the deceased was a human being: The State v. Stanley, 33-526, 531. In murder of either degree there must be malice aforethought, express or implied: The State v. Johnson, 8-525; Fouts v. The State, 4 Gr. 500. To constitute the crime of murder, malice is necessary, but need not have An intant in the 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 before it is Homicide committed in sudden pas- quick: Abrams v. Foshee, 8-274. It sion, without deliberation, and with is not a subject of murder unti: an inout malice, is manslaughter and not dependent circulation has been estabmurder: The State v. Spangler, 40-fished: The State v. Winthrop, 43365. What would be murder at commen law is murder under our statute. Malice may, as at common law, be implied in cases of homicide from any act, unlawful and dangerous in its nature, unjustifiably committed. Therefore, held, that independently of § 3864, one who, in an attempt to pro 519. Instructions as to when the causing of death in the prosecution of a conspiracy will amount to murder, considered: The State v. Shelledy, 8–477, As to when killing is excusable in self-defense, see The State v. Benham. 23-154; The State v. Sullivan, 51–142. SEC. 3849. All murder which is perpetrated by means of poison, or lying in wait, or any other kind of wilful, deliberate and premeditated killing, or which is committed in the perpetration 14 G. A. ch. 136. or attempt to perpetrate any arson, rape, robbery, mayhem or burglary, is murder in the first degree, and shall be punished with death or imprisonment for life, at hard labor, in the state penitentiary, as determined by the jury, or by the court if the de.e.dant pleads guilty. [A substitute 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 section, following "jury" in next to the last line. The other sections of 17th G. A., ch. 165, are inserted following § 3851. The original section was as follows: All murder which is perpetrated by means of poison, or lying in wai, or any other kind of wilful, deliberate, and pr meditated 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, or ing upon Fouts v. The State, 4 Gr. 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 kill ing as wilful and premeditated only, will not be sufficient: The State v. Boyle, 28-522. be charged as willful, etc, quære: Id. Where the indictment charged that the assault was made willfully, etc., The 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, held, that it was sufficient to the assault was so, will not suffice: charge murder in the first degree, The State v. Knouse. 29-118; The although the charge was not specificState v. Thompson, 31-393. So, anlly 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 which State v. Stanley, 33-526. deceased died was willful, deliberate and premeditated, but not charging that it was dealt for the purpose of killing, or that the killing itself was willful, does not charge murder in the first degree: The State v. McCormick, 27-402; The State v. Watkins. 27-415. To constitute the first degree of the offense, there must be a specific intent to take life, and the facts to bring the case within that degree must be set out; naming the offense in the introductory and concluding portion of the indictment as murder in the first degree, will not cure the defect. Since at common law an indictment for Lurder is good without averring that the killing was premeditate i, an indictment for murder which would be sufficient at common law is not necessarily so for murder in the first degree under the statute: Ibid. (both cases), and Fouts v. The State, 4 Gr. 500. The proof of killing, without more, does not raise the presumption that such klling was willful, deliberate, and premeditated; The State v. McCormick, supra. Facts from which malice and premeditation may be inferred, considered: The State v. Gillick, 7–287. It is prejudicial error to put a party on trial for murder in the first degree under an indictment charging only murder in the second degree, although the party is only convicted of the lesser offense: The State v. Boyle, 28-522; The State r. Knouse, 29–118. Where on an indictment not sufficient to charge murder in the first degree, the defendant was found guilty in that degree, and defendant on appeal asked that the sentence be modified to one which would be proper under the indictment for the second degree, the court so reduced the sentence: The State v. McCormick, 27-402; but where, in a similar case, defendant denied the sufficiency of the evidence to establish his guilt in any degree, and demanded a new trial, hel, that he was entitled thereto: The State v. Watkins, 27-415. The crime of manslaughter is necessarily included in that of murder, and upon the trial for murder in the first degree, all the degrees of criminal homicide should be explainel and submitted to the jury: The State v. Clemons, 51-274; The State v. Glyn Whether in case the killing was committed in the perpetration or attempt to perpetrate some of the felon-don, 51-463; and see notes to § § ies spec.fied in this section, it should 3848, 3850, 3851, and 3856. .SEC. 3850. Whoever commits murder otherwise than is set Second degree. forth in the preceding section, is guilty of murder of the second R4193, degree, and shall be punished by imprisonment in the penitenti ary for life, or for a term not less than ten years. A specific intention to kill is not essential to consti. ute murder at common law, nor is it essential, under our statute, to constitute murder in the second degree: The State v. See notes to two preceding sections. C. '51, 2570. Degree: how R. 4194. SEC. 3851. Upon the trial of an indictment for murder, the 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 C. '51, 2571. 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 in the first de-charged in the indictment," held, Jury to fix punishment. Judgment and execution. that such verdict was fatally defective | fendant guilty of murder in either The jury, if they do not find de-3849. [Seventeenth General Assembly, Chapter 165.] [Sec. 1 amends § 3849, which see.] v. SEC. 2. Upon trial of an indictment for murder, the jury, if they find the defendant guilty of murder in the first degree, must 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 defendant shall be punished by death, the court pronouncing judgment shall fix the day of the execution thereof, 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 indictment, plea, verdict, judgment, and of the testimony in the case. to be sent the governor. Warrant of execution. Reprieve: who may. Insanity or pregnancy: sentence suspended. SEC. 5. When a judgment of death is pronounced, a certified 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 or suspend the execution of a judgment of death, are the governor 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. he SEC. 7. When the sheriff is satisfied that there are reasonable grounds for believing that the defendant is insane or pregnant, may summon a jury of twelve persons on the jury list, to be 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 insane or pregnant, he shall suspend the execution and immediately transmit the inquisition to the governor. warrant for execution. SEC. 8. Whenever a judgment of death has not been executed Subsequent on the day appointed by the court therefor, from any cause whatever, 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. manner of 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. cution. SEC. 10. A judgment of death must be executed within the Place of exewalls 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. execution. 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, 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. sheriff and SEC. 14. The sheriff or his deputy executing the judgment of Certificate of 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. and published. 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 clerk of the district court of the county in which the judgment 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. |