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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.

"Murder" is where a person of sound State, 128 S. W. 404, 413, 59 Tex. Cr. R. 316.

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 The crime of murder is the unlawful consists in the unlawful killing of a human killing of a human creature in being with being with a premeditated design to effect his malice aforethought, either express or imdeath, or the death of some other person, plied. If the killing is proved, it must be This premeditated design to effect death must also proved that it was done with malice, be established either by direct evidence as a either express or implied, before the person matter of fact, or it arises as a conclusive charged can be convicted of murder; but presumption of law in the class of cases men- such malice may be implied from any unlawtioned in paragraphs 2 and 3 of section 2268, ful act, such as in itself denotes a wicked Comp. Laws 1909. These paragraphs do not heart fatally bent on mischief, or a reckless state a rule of pleading to be followed in an disregard of human life. The deliberate seindictment, but they establish a rule of evi- | lection of a deadly weapon has been held dence for the trial judge in the admission to be evidence of malice, and where malice of testimony and in his instructions to the exists, together with the killing, the crime Jury. Turner v. State, 126 Pac. 452, 457, 458, of murder is complete State v. Scott (Del.) 8 Okl. Or. 11.

57 Atl. 534, 535, 4 Pennewill, 538. As felonious homicide

Under Revisal 1905, § 3631, providing

that a murder which shall be perpetrated by See Felonious Homicide.

means of poison, etc., or by any other kind Malice

of willful, deliberate, and premeditated killTo constitute “murder," it is sufficient if ing, shall be deemed “murder in the first dethe malice existed at the moment of the kill- gree,” and that all other kinds of murder ing. State v. Heidelberg, 45 South. 256, 258, shall be deemed murder in the second degree, 120 La. 300.

malice is always an essential ingredient of

murder. State v. Baldwin, 68 S. E. 148, 151, At common law the reckless killing of 152 N. C. 822. another with a deadly weapon was murder; malice being implied. Ewing v. Common

To constitute “murder," the evidence wealth, 111 S. W. 352, 355, 129 Ky. 237.

must show that accused thought of it before

hand, though as to the time it is immaterial Malice is the essence of “murder.” In whether it was thought of an hour beforemurder of the first degree such malice must band, or a day beforehand, or a minute bebe express, and may be indicated by all such forehand. If the thought came to the mind facts and circumstances as show a deliberate of the accused, “I will kill," and he did kill ly formed design to take life. In murder of immediately after that, the killing is "murthe second degree, malice may be shown by der"; there being malice aforethought. Green such cruel acts and conduct as indicate a

v. United States, 104 S. W. 1159, 1160, 7 Ind. reckless disregard of human life, although T. 733. unaccompanied with a deliberate design to take life. In manslaughter there is no mal

Both before and since the statute dividice. State v. Collins (Del.) 62 Atl. 224, 226, ing the crime of “murder” into two degrees 5 Pennewill, 263.

(Revisal 1905, § 3631), “murder" is the unlaw

ful killing of another with malice afore“Murder” is the unlawful killing of a thought. This malice may arise from perhuman 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 without lawful excuse or mitigating circumheart, fatally bent on mischief, or a reckless

stances. The statute does not undertake to disregard for human life, State v. Lee give any new definition of murder, but classi(Del.) 74 Atl. 4, 5, 1 Boyce, 18.

fies the different kinds of murder as they ex“Murder' does not consist merely in the isted at common law, and which were before killing of a human being. The killing must the statute all included in one and the same be done with malice." Where, on a trial for degree. Thus all murder done by means of murder, the accused admitted the killing, but poison, lying in wait, etc., or by any other coupled such admission with declarations, 'kind of willful, deliberate, or premeditated

killing, or murder done in the effort to per- , viding for jail imprisonment where the senpetrate 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 constituent definition of murder remains as it

Manslaughter distinguished was, and in neither degree is it necessarily

Voluntary manslaughter distinguished, required that the unlawful killing should be

see Voluntary Manslaughter. from personal ill will or grudge. State v. The unlawful killing of another with Banks, 57 S. E. 174, 176, 143 N. C. 652 (citing malice is “murder," as distinguished from Clark, Cr. Law, p. 187; State v. Wilcox, 23 “manslaughter,” which is an unlawful killing S. E. 928, 118 N. C. 1131; State v. Finley, without such malice. State v. Lee, 60 S. E. 24 S. E. 495, 118 N. C. 1161).

524, 525, 79 S. C. 223. An instruction that when a homicide oc- "Murder” and “manslaughter" are distin. curs, and the circumstances are absent which guished, in that malice is essential to the forwould excuse or justify the act or reduce it mer offense, and by absence of premeditation to manslaughter, the law implies malice, and or deliberation in the latter. Reed v. State, the killing would be murder, was a mere ab- 145 S. W. 206, 208, 102 Ark. 525. stract statement applicable to all degrees of

While, in one sense “murder" and "manmurder, as prescribed by St. 1898, 8 4365, and slaughter" are separate and distinct crimes, was not erroneous, the court having also yet, in a broader sense, they both involve but charged that the law presumes that every one offense and are simply different degrees person intends all the natural and probable of felonious homicide. On an indictment for consequences of his acts, and when one as-murder, defendant may be convicted of mansaults another with a dangerous weapon, slaughter. Rhea v. Territory, 105 Pac. 314, likely to kill, not in self-defense, nor in sud- 316, 3 Okl. Cr. 230. den heat of passion caused by provocation apparently sufficient to make passion irre

“ 'Homicide' is 'murder,' unless it be sistible or involuntary, and the life of the attended with extenuating circumstances, person assaulted is taken in consequence of which must appear to the satisfaction of the such assault, then the legal presumption is jury. If A. assaults B., giving him a severe that death was intended, and the law implies blow, or otherwise making the provocation malice making the killing murder, etc. Hedg- great, and B. strikes him with a deadly weaper v. State, 128 N. W. 80, 90, 144 Wis. 279. on, and death ensues, the law, in deference

to human passion, says this is 'manslaughKilling in commission of unlawful actter.'

If the provocation be slight, If an involuntary killing happens in the and it can be collected from the weapon used commission of an unlawful act, which, in its or any other circumstances that the prisoner consequences, naturally tends to destroy life intended to kill or do great bodily harm, and of a human being, the offense is murder, un- death follows, it is 'murder.'” State v. der Pen. Code 1895, § 67. Gadsden v. State, White, 51 S. E. 44, 48, 138 N. C. 704 (quoting 68 S. E. 497, 134 Ga. 785.

and adopting definition in State v. Smith, 77

N. C. 488).
Killing in perpetration of a felony
Under Code, & 4727, defining “murder"

If the slayer provoked the combat or proas the killing of a human being with malice duced the occasion in order to have a pre aforethought, and under section 4728 provid- tense for killing his adversary or doing him ing that all murder committed in the per- great bodily harm, the killing will be “murpetration or attempt to perpetrate any rob- der,” no matter to what extremity he may bery is murder in the first degree, one who, bave been reduced in the combat. But if he with intent to rob, displaced the rails of a had no felonious intent, intending, for inrailroad for the purpose of wrecking a train stance, an ordinary battery merely, the final is guilty of murder, where the train was killing in self-defense would be “manslaughwrecked in consequence of his act, and a ter” only; the distinction being between the person named was fatally injured. State v. right of perfect and the right of imperfect Von Kutzleben, 113 N. W. 484, 487, 136 Iowa, self-defense. State v. Kelleher, 100 S. W. 89.

470, 475, 201 Mo. 614 (citing State v. Partlow, An indictment for murder while com

4 S. W. 14, 90 Mo. 608, 59 Am. Rep, 31)., mitting robbery, under Code, $ 798 (31 Stat. “Manslaughter" is distinguished from 1321, c. 854), providing that one who kills an- “murder” by the absence of malice as a conother in perpetrating any offense punishable tingent element. If, under the influence of by imprisonment in the penitentiary is guilty some violent emotion, a sudden intent was of murder, is not demurrable on the ground formed, which on adequate provocation overthat robbery is not punishable by such im- whelmed the reason of the appellant, then prisonment; section 810 punishing robbery the killing was not murder, but manslaughter by imprisonment for not less than 6 months only. State v. Clark, 77 Pac. 287, 288, 69 or nore than 15 years, and section 934 pro-Kan. 576.

The chief distinction between “murder”, to reduce the offense to "manslaughter;" and and “manslaughter" is deliberation and mal, under the influence of a wicked or depraved ice in murder, and the want thereof in man-heart, or with cruel and wicked indifference slaughter, and, where the issue was whether to human life. “‘Manslaughter is where one accused or a third person inflicted the fatal | in a sudden affray, in the heat of blood, or in wound, the error in an instruction that if ac- a transport of passion, without malice, inflicts cused killed decedent without authority of a mortal wound, without time for reflection law, and not in necessary self-defense, he was or for the passions to cool. It is where one guilty of manslaughter, arising from the person unlawfully kills another without malomission of the words "without malice, and ice. In order to reduce the crime to 'manin the heat of passion," was not prejudicial. slaughter,' the provocation must be very Guest v. State, 52 South. 211, 212, 96 Miss. great, so great as to produce such a trans871.

port of passion as to render the person for Generally it is not “murder” but “man- the time being deaf to the voice of reason. slaughter" to kill an officer, or other person, While 'murder proceeds from a wicked and to prevent an illegal arrest. Consequently, depraved heart and is characterized by malshooting at an officer without killing him, if ice, ‘manslaughter' results, not from malice, done to prevent an illegal arrest, is prima fa- but from unpremeditated and unreflecting cie not an assault with intent to murder, but passion.” State v. Cephus (Del.) 67 Atl. 150, the statutory crime of shooting at another, 151, 6 Pennewill, 160. described in Code 1882, § 4370. Jenkins y.

When a killing is intentional and is not State, 59 S. E. 435, 436, 3 Ga. App. 146 (quot- lawful, it is generally “murder”; but under ing with approval from Thomas v. State, 18 circumstances of provocation, or of mutual S. E. 305, 91 Ga. 206).

combat, it may be reduced to "manslaughter." Under Pen. Code, 88 187, 189, defining State v. Goldsby, 114 S. W. 500, 503, 215 Mo. murder as the unlawful killing of a human be- 48 (citing 2 Bish. Cr. Law [6th Ed.) 8 695). ing with malice aforethought, and defining

Murder is where a person of sound memmurder in the first and second degrees, and

ory and discretion unlawfully kills any husection 192 defining manslaughter as the unlawful killing of a human being without mal- malice aforethought, either express or im

man being under the peace of the state, with ice, and dividing manslaughter into volunta

plied. The chief characteristic of this crime, ry and involuntary manslaughter, and section 274 making it a felony to perform a criminal distinguishing it from manslaughter and evabortion, an unlawful killing with malice ery other kind of homicide, and therefore inaforethought is “murder," and is also man- dispensably necessary to be proved, is malice

preconceived or aforethought. State v. Brinte slaughter," because it is the unlawful killing of a human being, though it cannot be logi- (Del.) 58 Atl. 258, 262, 4 Pennewill

, 551. cally classed as voluntary or involuntary A charge that, where an officer is shot manslaughter, and, under a charge of murder and killed by one whom he is seeking legally by attempting a criminal abortion, a verdict to arrest, the offense is “murder” and not of manslaughter may be returned. People v. manslaughter was not erroneous when taken Huntington, 97 Pac. 760, 762, 8 Cal. App. 612. in connection with the evidence, which was “Manslaughter" is an unlawful killing,

sufficient to show that defendant was violatwhich becomes “murder in the second degree” ing the law in the presence of the officer, and when it has the added element of malice. that, upon an effort to arrest him, he drew a State v. Fowler, 66 S. E. 567, 151 N. C. 731. pistol and shot the officer. Johnson v. State,

60 S. E. 160, 161, 130 Ga. 27. “Manslaughter" consists of the unlawful killing of a human being without malice,

In an instruction correctly defining murand so, in a prosecution for assault with in- der and manslaughter, the statement that, tent to commit murder, the accused cannot "You see by these definitions that in murder be convicted if, had his victim died, his malice must exist, but that manslaughter is crime would have only been manslaughter. the killing of a human being without malice,” State v. Stockley (Del.) 82 Atl. 1078, 1079.

made only to distinguish the two, is not re

versible error. Prince v. United States, 109 “Manslaughter" is an unlawful killing in anger without malice. Proof of prior provo

Pac. 241, 242, 3 Okl. Cr. 700. cation may exclude the idea of malice in the If two persons deliberately agree to fight homicide, but does not exclude the idea of with deadly weapons on a subsequent day at unlawfulness. It merely substitutes the ele- a definite time and place, and, both being ment of anger without malice for the element armed, meet by chance near the appointed of malice, thus distinguishing manslaughter place and near the appointed time, and withfrom “murder.” Cole v. State, 59 S. E. 24, 26, out any fresh cause of a quarrel or other al2 Ga. App. 734.

tercation one slays the other without justifi"Murder” in the second degree consists cation, the crime is “murder;" and not volunof the killing of another without a formed tary manslaughter. Bundrick v. State, 54 design to take life, and without provocations. E. 683, 685, 125 Ga. 753.

MURDER IN FIRST DEGREE

attempting to perpetrate a crime punishable As felonious homicide, see Felonious with death. State v. Reese (Del.) 79 Atl. 217, Homicide.

221, 2 Boyce, 434. “Murder in the first degree" is the will

Murder in the first degree consists in killful, deliberate, and premeditated killing of a ing a human being with malice aforethought, human being. State v. Briggs, 52 S. E. 218, or in perpetrating or attempting to perpetrate 219, 58 W. Va. 291.

a crime punishable with death, where the “Murder in the first degree" is the will

murder is committed with sedate deliberate ful, felonious, deliberate, and premeditated mind, and formed design to take life. State killing of a human being with malice afore- v. Adams (Del.) 65 Atl. 510, 511, 6 Pennewill,

178. thought. State v. Hottman, 94 S. W. 237, 239, 196 Mo. 110.

Murder in the first degree is the taking

of human life with express malice aforeWillful, deliberate, and premeditated thought or in perpetrating or attempting to killing, without any motive appearing at all, perpetrate a crime punishable with death, is murder in the first degree. State v. Jag- when the act is done deliberately and with a gers, 58 Atl. 1014, 1015, 71 N. J. Law, 281, formed design to take life or do some great 108 Am. St. Rep. 746.

bodily harm. State v. Collins (Del.) 62 Atl. “Murder of the first degree" is where 224, 226, 5 Pennewill, 263; Same v. Bell the killing was done with malice afore- (Del.) 62 Atl. 147, 148, 5 Pennewill, 192; thought. State v. Primrose (Del.) 77 Atl. 717, Same v. Brown (Del.) 61 Atl. 1077, 1078, 5 2 Boyce, 164; State v. Roberts (Del.) 78 Atl. Pennewill, 339. 305, 310, 2 Boyce, 140.

Under Code Iowa, $ 4728, killing shown To constitute murder in the first degree, not only to have been done in malice, but the offender's mind must be cool and sedate; with deliberation, premeditation, and with and there must be express malice afore- specific intent to kill, is "murder in the first thought. Dixon v. State, 103 S. W. 399-401, degree.” State v. Baldes, 110 N. W. 440, 442, 51 Tex. Cr. R. 555.

133 Iowa, 158. "Murder in the first degree" is defined An instruction on murder in the second in Rev. St. 1899, § 4950, as a purposeful and degree which fails to state that there must premeditated malicious killing. Hollibaugh be no circumstances of mitigation, justificav. Hehn, 79 Pac. 1044, 1047, 13 Wyo. 269. tion, or excuse is erroneous. Campbell v.

To constitute “murder in the first de-Territory (Ariz.) 125 Pac. 717, 721. gree," the killing must be done with malice Under L. O. L. $ 1893, defining “murder aforethought, express or implied, and with in the first degree" as a homicide with dewillful premeditation and determination. liberate and premeditated malice, or in the State v. McKay, 63 S. E. 1059, 1060, 150 N. commission or attempt to commit any rape, C. 813.

arson, robbery, or burglary, the state, chargA homicide committed with express mal- ing a killing while in the commission of such ice aforethought is "murder in the first de- other offenses, need not prove deliberate or gree." State v. Brooks (Del.) 84 Atl. 225, 227. premeditated malice; but, as malice is not An indictment charging that accused pur: in which homicide results, defendants can

necessarily excluded by such other offenses posely, feloniously, and with premeditated malice killed a person named charges murder

not complain if the state elects to predicate in the first degree. Stout v. State, 92 N. E. the murder upon a killing with deliberate

and premeditated malice. State v. Hum. 161, 162, 174 Ind. 395, Ann. Cas. 1912D, 37.

phrey, 128 Pac. 824, 827, 63 Or. 540. "Murder of the first degree" is a killing

Under the statute declaring that whoever done with express malice aforethought, or in

purposely and with premeditated malice perpetrating or attempting to perpetrate a crime punishable with death.

kills another is guilty of “murder in the first

State v. Wiggins (Del.) 76 Atl. 632, 634, 7 Pennewill

, 127; degree,” the intent to kill, the premeditation, State v. Brown (Del.) 61 Atl. 1077, 1078, 5 or deliberation, and malice are as much ele Pennewill, 339; State v. Powell (Del.) '61 ments of the crime as the act of killing, and Atl. 966, 971, 5 Pennewill, 24; State v. Russo each must exist and be established beyond (Del.) 77 Atl. 743, 745, 1 Boyce, 538; State a reasonable doubt. State v. Pressler, 92 v. Mills (Del.) 69 Atl. 841, 842, 6 Pennewill, Pac. 806, 808, 16 Wyo. 214, 15 Ann. Cas. 93. 497; State v. Samuels (Del.) 67 Atl. 164, 165, The statutes define "murder in the first 6 Pennewill, 36; State v. Johns (Del.) 65 Atl. degree" as follows: “Every person who shall 763, 764, 6 Pennewill, 174; State v. Tilghman purposely and in his deliberate and premedi(Del.) 63 Atl. 772, 773; State v. Roberts (Del.) tated malice kill another shall be deemed 78 Atl. 305, 310; State v. Blackburn (Del.) guilty in the first degree." State v. Lind75 Atl. 536, 539, 7 Pennewill, 479; State v. grind, 74 Pac. 565, 566, 33 Wash. 440. Bell (Del.) 62 Atl. 147, 148, 5 Pennewill, 192. The crime of “murder" is divided into two

“Murder in the first degree" occurs degrees in North Dakota, according to the where the killing was done in perpetrating or facts and circumstances attending the killing, depending upon the presence or absence, in the first degree,” is correct. Ransom v. of deliberation and premeditation. These de State (Tex.) 70 S. W. 960, 963. grees are not distinct crimes but are simply

An indictment charging the commission degrees of murder dependent upon the facts of murder by accused while engaged in perattending the killing. There are no degrees petrating a burglary charges murder in the of murder in the first degree; the elements first degree. Stout v. State, 92 N. E. 161, of murder in the second degree are necessa- 162, 174 Ind. 395, Ann. Cas. 1912D, 37. rily included in the charge of murder in the first degree State v. Noah, 124 N. W. 1121, lying in wait, or any other kind of willful

,

A murder which is perpetrated by poison, 1124, 20 N. D. 281.

deliberate, and premeditated killing is murUnder Rem. & Bal. Code, $ 2392, defining der in the first degree. State v. Abbott, 62 "murder in the first degree" as the killing of S. E. 693, 64 W. Va. 411. a human being with the premeditated design

All murder which is perpetrated by to effect death, an information alleging that

means of poison, or lying in wait, torture, or accused did, with a premeditated design to effect her death, kill and murder a specified by any kind of willful, deliberate, and preperson, is sufficient, without alleging that the the perpetration or attempt to perpetrate a

meditated killing, or which is committed in person died.

State v. Jahns, 112 Pac. 747, felony, is “murder of the first degree.” State 61 Wash. 636.

v. Hliboka, 78 Pac. 965, 31 Mont. 455, 3 Ann. Where death naturally ensues from the Cas. 934. force, manner, or instrumentality of a chas

Rev. St. § 6808, provides that whosotisement, and the chastisement is made re

ever purposely and either of deliberate and gardless of its probable result in death, the premeditated malice or by means of poison jury may convict of murder in the first de.

or in perpetrating or attempting to perpegree. Rosemond v. State, 110 S. W. 229, 230, trate any rape, arson, robbery or burglary 86 Ark. 160.

kills another is guilty of "murder in the Where accused entered into a plot with first degree." State v. Schiller, 70 N. E, 505, another, by which the latter was to do the 506, 70 Ohio St. 1. killing, while he was to wait at some little

Pen. Code 1901, § 173, providing that all distance from the house to allow the murder- "murder” which is perpetrated by means of er to escape, and then to set fire to the house, poison, etc., shall be murder in the first deand the plot was carried out, accused could gree, and all other kinds of murder are in the be convicted of murder in the first degree. second degree, does not prescribe that all Commonwealth v. Johnson, 66 Atl. 233, 235, “killing" perpetrated by means of poison is 217 Pa. 77.

murder in the first degree, but that all “murOne who kills another, who is approach- der” so perpetrated is so; the word "murder" ing in a friendly manner, with no weapon in being used to denote all that is covered by his hand, and making peaceable overtures, by section 172, defining murder as the unlawful shooting at him, both at close range and after killing of a human being with malice aforehe has fied across the street and into another's thought, etc. Eytinge v. Territory, 100 Pac. house, is guilty of murder in the first degree. 443, 445, 12 Ariz. 131. State v. Williams, 84 S. W. 924, 927, 186 Mo.

By Rev. St. 1887, 8 6562, "murder of the 128 (citing State v. Wieners, 66 Mo. 13; State first degree” includes all murder “which is v. Ellis, 74 Mo. loc. cit. 218, 219; State v. performed by means of poison, or lying in Robinson, 73 Mo. 306; State v. McKenzie, wait, torture, or by any other kind of will76 S. W. 1015, 177 Mo. 699).

ful, deliberate, and premeditated killing, or Where defendant, having manifested ex- which is committed in the perpetration or press antecedent malice against deceased, fol- attempt to perpetrate arson, robbery, burlowed him down a creek, in which he and his glary, or mayhem." State V. Phinney, 89 wife were fishing, and without any cause shot Pac. 634, 13 Idaho, 307, 12 L. R. A. (N. S.) him to death, and threw his body into the 935, 12 Ann. Cas. 1097. creek, and there were no mitigating circum

Pen. Code, $ 189, provides that murder stances, he was properly convicted of murder committed in the perpetration or attempt to in the first degree. Young v. State, 84 S. W. perpetrate arson, robbery, rape, burglary, or 822, 47 Tex. Cr. R. 530.

mayhem is murder in the first degree. Held, The killing of a human being in the that it is immaterial on a trial for such a perpetration of or attempt to perpetrate the murder whether the killing was willful, decrime of arson is “murder in the first degree.” liberate, and premeditated, or absolutely acLudwig v. State, 85 N. E. 345, 347, 170 Ind. cidental. People v. Milton, 78 Pac. 549, 145 648.

Cal. 169. An instruction that all murder commit- Where two persons acting together armted with express malice is "murder in the ed themselves and broke into a dwelling to first degree," and that all murder commit- rob it, and were, when discovered, engaged, ted in the perpetration of robbery is "murder one in robbing the house and the other in

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