thought, either express or implied. State v.

By Pen. Code, § 350, "murder" is the unPepe (Del.) 76 Atl. 367, 369, 1 Boyce, 232; lawful killing of a human being with malice State v. Jackson (Del.) 82 Atl. 824, 825; State aforethought. State v. Hliboka, 78 Pac. 965, v. Stockley (Del.) 82 Atl. 1078, 1079; State 31 Mont. 455, 3 Ann. Cas. 934. v. Moore (Del.) 74 Atl. 1112, 1114, 1 Boyce, 142.

"Murder" is the killing of a human be ing by a person of sound memory and discretion with malice aforethought, either express or implied. State v. Mills (Del.) 69 Atl. 841, 842, 6 Pennewill, 497; State v. Wilson (Del.) 62 Atl. 227, 230, 5 Pennewill, 77;

State v. Di Guglielmo (Del.) 55 Atl. 350, 351, 4 Pennewill, 336; Smith v. State, 55 S. E. 475, 126 Ga. 544 (quoting and adopting the

definition in Pen. Code 1895, § 60.)

"Murder" is the unlawful killing of a human creature with malice aforethought, either express or implied, and is of the first or second degree, as the malice is express or implied. State v. De Paolo (Del.) 84 Atl. 213,

214.

Rev. St. 1887, § 6560, defines "murder" as the unlawful killing of a human being with malice aforethought. State v. Phinney, 89 Pac. 634, 13 Idaho, 307, 12 L. R. A. (N. S.) 935, 12 Ann. Cas. 1079.

An information charging that accused unlawfully, feloniously, willfully, premeditatedly, deliberately, and of his malice aforethought shot and killed decedent, a human by Rev. Codes, § 8290, defining murder as the being, sufficiently charges murder as defined unlawful killing of a human being with malice aforethought. State v. Crean, 114 Pac. 603, 605, 43 Mont. 47, Ann. Cas. 1912C, 424.

An information alleging that accused on a specified date did willfully, unlawfully, and feloniously and with malice aforethought assault S., with intent then and there to kill and murder her, was not fatally defective for failure to allege that S. was a human being, the term "murder" being defined as the unlawful killing of a human being with malice aforethought, under Pen. Code, § 950, subd.

"Murder,' at common law, was committed when a person of sound mind and discretion unlawfully killed any reasonable creature in being, in the peace of the sovereign, with malice aforethought, either expressed or implied. According to this rule, if one feloni-2, providing that an information shall conously and with malice aforethought wounded another, from which wound death ensued within a year and a day, it was murder, unless excuse or justification was shown. Under our statute, such act would not constitute an element of murder, unless perpetrated with a premeditated design, to effect the death of the person killed or of some other person, but would be embraced within some

one of the lower degrees of homicide." Morris v. Territory, 99 Pac. 760, 767, 1 Okl. Cr. 617 (quoting with approval from Jewell v. Territory, 4 Okl. 53, 43 Pac. 1075).

tain a statement of the acts constituting the offense in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended. People v. Vaughn, 111 Pac. 620, 622, 14 Cal. App. 201.

"Murder" in this state is the unlawful killing of a human being with malice afore

thought. Allegations sufficient for a commonlaw indictment are sufficient for an information under the statute defining murder as above. State v. McGowan, 93 Pac. 552, 555, 36 Mont. 422 (citing Territory v. Stears, 2 Mont. 324; State v. Lu Sing, 85 Pac. 521, 34 Mont. 31).

Under a statute defining "murder" as the unlawful killing of a human being, an indictment charging that the act was done "feloWhere the act of killing another is done niously," and which omits the word "unlaw-willfully, feloniously, and with malice aforefully," is sufficient, as the word "feloniously" thought, accused is guilty of murder. Combs includes that which would be charged by the v. Commonwealth (Ky.) 112 S. W. 658, 659. use of the word "unlawfully." People v. St. Clair, 91 N. E. 573, 244 Ill. 444..

A deliberate killing committed in revenge for an injury inflicted in the past, either near or remote, is "murder." Ex parte Fraley, 109 Pac. 295, 297, 3 Okl. Cr. 719, 139

"Murder" is the unlawful, willful, and felonious killing of another with malice aforethought, not in the necessary or apparently | Am. St. Rep. 988. necessary self-defense of the slayer. Commonwealth v. Mosser, 118 S. W. 915, 133 Ky.

609.

"The word 'murder' is a legal and technical term and implies something more than mere killing, though it includes all the eleIf the killing by a defendant or his aid-ments of the latter word, but there is nothing ing or abetting of the killing by another was technical about the word 'kill.' It means to done with malice unlawfully and willfully deprive of life; to put to death; to slay." in sudden affray, it was murder. Watkins An allegation that defendant did "kill and v. Commonwealth, 97 S. W. 740, 742, 123 Ky. murder" the deceased is a sufficient allega817. tion that the latter died. State v. Sly, 80 Pac. 1125, 1127, 11 Idaho, 110.

As expressly defined by Pen. Code, § 187, "murder" is the "unlawful killing of a human being with malice aforethought." People v. Frank, 83 Pac. 578, 579, 2 Cal. App. 283.

Homicide is "murder" when perpetrated without authority of law and with a premeditated design to effect the death of the

person killed.

“All voluntary felonious homicide, without a provocation, is undoubtedly 'murder.' The presumption of murder arises from proof of voluntary homicide, and, when the killing is admitted or proved, the burden of proof

Baysinger v. Territory, 82 | to kill and murder is practically the same as an assault with intent to commit murder, Pac. 728, 730, 15 Okl. 386. though the words "to kill" do not necessarily imply more than the destruction of life, which may have been caused without guilt, while to commit murder implies killing with malice aforethought. But the use of the word "kill" in the conjunctive with "murder" shows that it was intended to charge the commission of the crime of assault with intent to kill with malice aforethought. United States v. Piaza, 133 Fed. 998, 999.

is thenceforth on the defendant to excuse or

justify his act. Rutherford v. Foster, 125 Fed. 187, 190, 60 C. C. A. 129 (quoting and adopting definition in Fost. Crown Law, P. 313).

"Murder" is distinguishable from every other species of homicide by the absence of circumstances which reduce the offense to negligent homicide or manslaughter, or which Jones v. excuse or justify the homicide. State, 96 S. W. 930, 931, 50 Tex. Cr. R. 329.

The crime of "murder" includes the lesser crimes of second degree murder and manslaughter. State v. Pepoon, 114 Pac. 449,

451, 62 Wash. 635.

Under a statute providing that where an involuntary killing happens in the commission of an unlawful attack, which, in its consequences, naturally tends to destroy the life of a human being, or is committed in the prosecution of a riotous intent, or of a crime punishable by death or confinement in the penitentiary, the offense shall be deemed "murder," one indicted for murder may be convicted of involuntary manslaughter, where the evidence on the part of the state would Chatman v. authorize a verdict of murder. State, 65 S. E. 360, 6 Ga. App. 564.

In view of Pen. Code 1901, § 172, defining "murder" as the unlawful killing of a human being with malice aforethought, an indictment sufficiently charges murder by alleging facts showing the unlawful killing of a human being with malice aforethought, without alleging facts bringing it within one of the statutory degrees of murder; it being for the jury to determine the degree. Williams v. Territory, 114 Pac. 556, 13 Ariz. 306.

In view of Pen. Code 1901, § 172, defining murder as the unlawful killing of a human being with malice aforethought, an indictment charging that accused unlawfully, willfully, feloniously, and of his deliberately premeditated malice aforethought made an assault with a loaded revolver upon R., "a human being, with the intent, then and there, willfully, unlawfully, feloniously, and of his deliberately premeditated malice aforethought to kill and murder him, the said R.," sufficiently alleged the crime of assault with intent to murder. Williams v. Territory, 114 Pac. 556, 13 Ariz. 306.

Under Pen. Code, §§ 187, 189, defining murder as the unlawful killing of a human being with malice aforethought, and defining murder in the first and second degrees, and section 192, defining manslaughter as the unlawful killing of a human being without malice, and dividing manslaughter into voluntary and involuntary manslaughter, and section 274, making it a felony to perform a criminal abortion, an unlawful killing with malice aforethought is "murder," and is also "manslaughter," because it is the unlawful killing of a human being, though it cannot be logically classed as voluntary or involuntary manslaughter, and under a charge of murder by attempting a criminal abortion, a verdict of manslaughter may be returned. People v. Huntington, 97 Pac. 760, 762, 8 Cal. App. 612.

Under Pen. Code, §§ 242, 246, 254, declaring that a homicide is either murder, manslaughter, excusable homicide, or justifiable homicide, that homicide is "murder," when perpetrated with a premeditated design to effect the death of the person killed, and that homicide is "manslaughter," when perpetrat

"Murder," as defined in Pen. Code, § 187, declaring that "murder is the unlawful killing of a human being with malice aforethought," includes murder in the first degree and murder in the second degree. Ung Ting Bow, 75 Pac. 899, 142 Cal. 341 (cited ing People v. De la Cour Soto, 63 Cal. 166).

People v.

One is guilty of murder who by feloniously severing another's blood vessel causes him to bleed to death, where through want of assistance decedent is unable to prevent excessive loss of blood. Rigsby v. State, 91

N. E. 925, 927, 174 Ind. 284.

An information in extradition proceedings charging accused with "assault with intent to kill and murder" sufficiently brings the offense within article 10 of the treaty with Great Britain, authorizing extradition of persons charged with "assault with intent to commit murder." An assault with intent

without a design to effect death, and in heat of passion, etc., and Code Cr. Proc. § 409, authorizing a conviction of any offense necessarily included in the offense charged, the jury may find accused guilty of manslaughter in the first degree under an indictment charging murder. State v. Stumbaugh, 132 N. W. 666, 668, 28 S. D. 50.

An indictment which shows that the homicide complained of is the result of a pemeditated design to effect the death of the person killed, and is without authority of law, sufficiently alleges "murder." Cavett v. Territory, 98 Pac. 890, 893, 1 Okl. Cr. 493.

Under 2 Wilson's Rev. & Ann. St. 1903, § 2167, defining "murder" as "homicide when perpetrated without authority of law and with a premeditated design to effect the death of the person killed, or of any other human being," a killing of a human being, perpetrated without authority of law and with a premeditated design to effect the death of the person killed, is "murder." Walcher v. Territory, 90 Pac. 887, 888, 18 Okl. 528.

"Murder" must be committed by an act applied to or affecting the person either directly, as by inflicting a wound, or indirectly, as by exposing the person to a deadly

agency or influence, from which death ensues,

and the working upon the fancy of another, or treating him harshly or unkindly, by which he dies of fear or grief, would not constitute this offense. State v. McGowan, 93 Pac. 552, 554, 36 Mont. 422 (citing Commonwealth v. Webster, 5 Cush. [59 Mass.] 295, 52 Am. Dec. 711; State v. Turner [Ohio] Wright, 20).

If a man shoots at another with the intention of killing him (and such killing if consummated would be murder), and kills a bystander or another, he is guilty of the murder of the person killed, whether the killing of the latter was due to a mistake as to his or her identity, or to recklessness in 'the aim of the one doing the killing. United States v. Hart, 162 Fed. 192, 197.

Where one shoots with intent to kill an intended victim, it is immaterial, on a prose cution for killing a different person, whether he saw the person who was killed by the shot when he fired. Gater v. State, 37 South. 692, 695, 141 Ala. 10.

In an indictment for the murder of one person, committed with a premeditated design to effect the death of a different person, it is not necessary to allege an actual assault upon the person designed to be killed, under a statute defining murder as the killing of one human being by another, without authority of law, and with a premeditated design to effect the death of the person killed, or of any other human being. Fooshee V. State, 108 Pac. 554, 559, 560, 3 Okl. Cr. 666.

One who, as heir, would, under Civ. Code, § 1386, share in the estate of decedent, is not, by reason of his conviction of manslaughter for killing intestate, within section 1409, declaring that no one convicted of "murder" of deceased shall succeed to any of his estate; "murder" not only being a technical word within section 13, requiring such words to be construed according to their peculiar or technical meaning, but being precisely defined by Pen. Code, § 187, so as to exclude manslaughter, and Pol. Code, § 4480, requirsions of the four Codes to be construed as ing, with relation to each other, the provithough they were all parts of the same stat

ute.

Cal. 91, 39 L. R. A. (N. S.) 1088, Ann. Cas.

In re Kirby's Estate, 121 Pac. 370, 162

19130, 928.

The word "murder" is often used in the dual character of both a noun and a verb. When it is said that A. concealed himself with intent to murder B., it is understood that his purpose was to commit "murder" upon B., without the use of the verb, “commit." Hence a verdict finding defendant guilty of an assault with intent to "murder" is not objectionable for failure to use the verb "commit" before "murder." Nickles v. State, 37 South. 312, 313, 48 Fla. 46.

The statute dividing murder into two degrees has not added to or taken away any ingredients of murder at common law, and every murder at common law is murder under the statutes of Alabama. McMahan v. State, 53 South. 89, 90, 168 Ala. 70.

Deliberation and premeditation

Where, in a prosecution for homicide, there was evidence that defendant killed deceased deliberately, intending so to do, the length of time that such intention existed was immaterial to make the offense of murder. State v. Powell (Del.) 61 Atl. 966, 971, 5 Pennewill, 24.

killing, was immaterial. Deliberation and premeditation need not be alleged. State v. Nielson, 100 Pac. 229, 230, 38 Mont. 451.

der" as the unlawful killing of a human beUnder Rev. Codes, § 8290, defining "muring with malice aforethought, an information and feloniously, and of his "deliberately precharging accused with willfully, unlawfully, meditated" malice aforethought, killing anothUnder Rev. St. 1908, § 1624, the term er sufficiently charged that the killing was "murder" includes all killing perpetrated from with malice aforethought, and that the words a deliberate and premeditated design, unlaw-quoted characterized the malice, and not the fully and maliciously, to effect the death of any human being other than him who is killed, so that where defendant was damaged in an altercation with two others, and shortUnder White's Ann. Pen. Code, art. 708, ly thereafter, when a half dozen or more per-providing that though a homicide occurs unsons, including these two, were gathered, defendant came around the corner with a revolver in each hand, and fired five or six shots toward the crowd, resulting in the death of deceased, who was unknown to him and only accidentally there, the provision of the statute is expressly applicable. Ryan v. People, 114 Pac. 306, 308, 50 Colo. 99, Ann. Cas. 1912B, 1232.

der circumstances showing no deliberation, if the guilty person provoked a contest with the apparent intent of killing decedent, or doing him serious bodily harm, the offense is not manslaughter, if accused provoked the contest with the apparent intention of killing decedent, or doing him serious bodily injury, he is guilty of murder, though he may have killed him suddenly without deliberation and

to protect his own life, though, if he provoked which, if believed, showed justification, no the contest without intent to kill, or inflict presumption that the homicide was murder serious bodily injury and suddenly without arose from such admission. Perkins v. State, deliberation killed decedent, the offense might 52 S. E. 17, 124 Ga. 6. be a lower grade than murder. Keeton v. State, 128 S. W. 404, 413, 59 Tex. Cr. R. 316.

"Murder" is where a person of sound memory and discretion unlawfully kills any To constitute "murder," the homicide human being with malice aforethought, eimust be committed with the premeditated ther express or implied. The chief characdesign, on the part of the accused, to unlaw-teristic of this crime, as distinguished from fully take the life of the person slain or some other homicides, is malice aforethought. other person. Kent v. State, 126 Pac. 1040, State v. Wilson (Del.) 62 Atl. 227, 230, 5 1042, 8 Okl. Cr. 188. Pennewill, 77.

In its last analysis murder in Oklahoma consists in the unlawful killing of a human being with a premeditated design to effect his death, or the death of some other person. This premeditated design to effect death must be established either by direct evidence as a matter of fact, or it arises as a conclusive presumption of law in the class of cases mentioned in paragraphs 2 and 3 of section 2268, Comp. Laws 1909. These paragraphs do not state a rule of pleading to be followed in an indictment, but they establish a rule of evidence for the trial judge in the admission of testimony and in his instructions to the jury. Turner v. State, 126 Pac. 452, 457, 458, 8 Okl. Cr. 11.

As felonious homicide
See Felonious Homicide.
Malice

To constitute "murder," it is sufficient if the malice existed at the moment of the killing. State v. Heidelberg, 45 South. 256, 258,

120 La. 300.

At common law the reckless killing of another with a deadly weapon was murder; malice being implied. Ewing v. Commonwealth, 111 S. W. 352, 355, 129 Ky. 237.

Malice is the essence of "murder." In murder of the first degree such malice must be express, and may be indicated by all such facts and circumstances as show a deliberate ly formed design to take life. In murder of the second degree, malice may be shown by such cruel acts and conduct as indicate a reckless disregard of human life, although unaccompanied with a deliberate design to take life. In manslaughter there is no malice. State v. Collins (Del.) 62 Atl. 224, 226, 5 Pennewill, 263.

The crime of murder is the unlawful killing of a human creature in being with malice aforethought, either express or implied. If the killing is proved, it must be also proved that it was done with malice, either express or implied, before the person charged can be convicted of murder; but such malice may be implied from any unlawful act, such as in itself denotes a wicked heart fatally bent on mischief, or a reckless disregard of human life. The deliberate selection of a deadly weapon has been held to be evidence of malice, and where malice exists, together with the killing, the crime of murder is complete, State v. Scott (Del.) 57 Atl. 534, 535, 4 Pennewill, 538.

Under Revisal 1905, § 3631, providing that a murder which shall be perpetrated by means of poison, etc., or by any other kind of willful, deliberate, and premeditated killing, shall be deemed "murder in the first degree," and that all other kinds of murder shall be deemed murder in the second degree, malice is always an essential ingredient of murder. State v. Baldwin, 68 S. E. 148, 151, 152 N. C. 822.

To constitute "murder," the evidence must show that accused thought of it beforehand, though as to the time it is immaterial whether it was thought of an hour beforehand, or a day beforehand, or a minute beforehand. If the thought came to the mind of the accused, "I will kill," and he did kill immediately after that, the killing is “murder"; there being malice aforethought. Green v. United States, 104 S. W. 1159, 1160, 7 Ind. T. 733.

Both before and since the statute dividing the crime of “murder" into two degrees (Revisal 1905, § 3631), "murder" is the unlaw"Murder" is the unlawful killing of a thought. This malice may arise from perful killing of another with malice aforehuman creature in being with malice afore-sonal ill will or grudge but it may also be thought, either express or implied; it being said to exist whenever there has been a sufficient that the malice is implied from any wrongful and intentional killing of another unlawful act which in itself denotes a wicked heart, fatally bent on mischief, or a reckless disregard for human life, State v. Lee (Del.) 74 Atl. 4, 5, 1 Boyce, 18.

"Murder' does not consist merely in the killing of a human being. The killing must be done with malice." Where, on a trial for murder, the accused admitted the killing, but coupled such admission with declarations,

without lawful excuse or mitigating circumstances. The statute does not undertake to give any new definition of murder, but classi

fies the different kinds of murder as they existed at common law, and which were before the statute all included in one and the same degree. Thus all murder done by means of poison, lying in wait, etc., or by any other kind of willful, deliberate, or premeditated

killing, or murder done in the effort to per-viding for jail imprisonment where the sen petrate a felony, shall be murder in the first tence is for more than 6 months and not exdegree, and punished with death. All other ceeding a year, and for imprisonment in the kinds of murder shall be deemed murder in penitentiary where it exceeds a year. Unitthe second degree, and punished by imprison- ed States v. Evans, 28 App. D. C. 264, 265. ment in the state's prison. But the constitManslaughter distinguished uent definition of murder remains as it was, and in neither degree is it necessarily required that the unlawful killing should be from personal ill will or grudge. State v. Banks, 57 S. E. 174, 176, 143 N. C. 652 (citing Clark, Cr. Law, p. 187; State v. Wilcox, 23 S. E. 928, 118 N. C. 1131; State v. Finley, 24 S. E. 495, 118 N. C. 1161).