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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,

Rev. St. 1887, § 6560, defines "murder" 142.

as the unlawful killing of a human being “Murder" is the killing of a human be with malice aforethought. State v. Phinney, ing by a person of sound memory and dis- 89 Pac. 634, 13 Idaho, 307, 12 L. R. A. (N. S.) cretion with malice aforethought, either ex- 935, 12 Ann. Cas. 1079. press or implied. State v. Mills (Del.) 69

An information charging that accused Atl. 841, 842, 6 Pennewill, 497; State v. Wilson (Del.) 62 Atl. 227, 230, 5 Pennewill, 77; edly, deliberately, and of his malice afore

unlawfully, feloniously, willfully, premeditatState v. Di Guglielmo (Del.) 55 Atl. 350, 351, 4 Pennewill, 336; Smith v. State, 55 S. E thought shot and killed decedent, a human 475, 126 Ga. 544 (quoting and adopting the being, sufficiently charges murder as defined definition in Pen. Code 1895, $ 60.)

by Rev. Codes, $ 8290, defining murder as the

unlawful killing of a human being with "Murder" is the unlawful killing of a malice aforethought. State v. Crean, 114 Pac. human creature with malice aforethought, 603, 605, 43 Mont. 47, Ann. Cas. 1912C, 424. either express or implied, and is of the first

An information alleging that accused on or second degree, as the malice is express or

a specified date did willfully, unlawfully, and implied. State v. De Paolo (Del.). 84 Atl. 213, feloniously and with malice aforethought 214.

assault S., with intent then and there to kill 'Murder,' at common law, was commit- and murder her, was not fatally defective for ted when a person of sound mind and dis- failure to allege that S. was a human being, cretion unlawfully killed any reasonable crea- the term “murder" being defined as the unture in being, in the peace of the sovereign, lawful killing of a human being with malice with malice aforethought, either expressed or aforethought, under Pen. Code, $ 950, subd. implied. According to this rule, if one feloni-2, providing that an information shall conously and with malice aforethought wounded tain a statement of the acts constituting the another, from which wound death ensued offense in ordinary and concise language, and within a year and a day, it was murder, un- in such a manner as to enable a person of less excuse or justification was shown. Un-common understanding to know what is inder our statute, such act would not consti- tended. People v. Vaughn, 111 Pac. 620, 622, tute an element of murder, unless perpetrat- 14 Cal. App. 201. ed with a premeditated design, to effect the death of the person killed or of some other killing of a human being with malice afore

"Murder" in this state is the unlawful person, but would be embraced within some one of the lower degrees of homicide.” Mor- thought. Allegations sufficient for a common

law indictment are sufficient for an informaris v. Territory, 99 Pac. 760, 767, 1 Okl. Cr. tion under the statute defining murder as 617 (quoting with approval from Jewell v.

above. State v. McGowan, 93 Pac. 552, 555, Territory, 4 Okl. 53, 43 Pac, 1075).

36 Mont. 422 (citing Territory v. Stears, 2 Under a statute defining "murder” as the Mont. 324; State v. Lu Sing, 85 Pac. 521, 34 unlawful killing of a human being, an indict. Mont. 31). ment charging that the act was done "felo

Where 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 re

venge for an injury inflicted in the past, ei. "Murder" is the unlawful, willful, and ther near or remote, is “murder." Ex parte felonious killing of another with malice afore- Fraley, 109 Pac. 295, 297, 3 Okl. Cr. 719, 139 thought, not in the necessary or apparently | Am. St. Rep. 988. necessary self-defense of the slayer. Com

"The word 'murder' is a legal and techmonwealth v. Mosser, 118 S. W. 915, 133 Ky. nical term and implies something more than 609.

mere killing, though it includes all the ele. If 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 As expressly defined by Pen. Code, $ 187, Pac. 1125, 1127, 11 Idaho, 110. “murder" is the “unlawful killing of a human Homicide is “murder” when perpetrated being with malice aforethought.” People v. without authority of law and with a preFrank, 83 Pac. 578, 579, 2 Cal. App. 283. meditated design to effect the death of the

person killed. Baysinger V. Territory, 82 to kill and murder is practically the same as Pac. 728, 730, 15 Okl. 386.

an assault with intent to commit murder, "All voluntary felonious homicide, with though the words “to kill” do not necessarily out a provocation, is undoubtedly 'murder.''

imply more than the destruction of life, The presumption of murder arises from proof which may have been caused without guilt, of voluntary homicide, and, when the killing while to commit murder implies killing with is admitted or proved, the burden of proof malice aforethought. But the use of the word is thenceforth on the defendant to excuse or “kill” in the conjunctive with “murder” justify his act. Rutherford v. Foster, 125 shows that it was intended to charge the comFed. 187, 190, 60 C. C. A. 129 (quoting and mission of the crime of assault with intent adopting definition in Fost. Crown Law, p. to kill with malice aforethought. United 313).

States v. Piaza, 133 Fed. 998, 999. "Murder" is distinguishable from every

In view of Pen. Code 1901, § 172, definother species of homicide by the absence of ing murder as the unlawful killing of a circumstances which reduce the offense to human being with malice aforethought, an negligent homicide or manslaughter, or which indictment charging that accused unlawfully, excuse or justify the homicide. Jones v. willfully, feloniously, and of his deliberately State, 96 S. W. 930, 931, 50 Tex. Cr. R. 329. premeditated malice aforethought made an The crime of “murder” includes the les- human being, with the intent, then and there,

assault with a loaded revolver upon R., "a ser crimes of second degree murder and man willfully, unlawfully, feloniously, and of his slaughter. State v. Pepoon, 114 Pac. 449, deliberately premeditated malice aforethought 451, 62 Wash. 635.

to kill and murder him, the said R.," suffiUnder a statute providing that where ciently alleged the crime of assault with inan involuntary killing happens in the com- tent to murder. Williams v. Territory, 114 mission of an unlawful attack, which, in its Pac. 556, 13 Ariz. 306. consequences, naturally tends to destroy the life of a human being, or is committed in

Under Pen. Code, &$ 187, 189, defining the prosecution of a riotous intent, or of a murder as the unlawful killing of a human crime punishable by death or confinement in being with malice aforethought, and defining the penitentiary, the offense shall be deemed murder in the first and second degrees, and “murder," one indicted for murder may be section 192, defining manslaughter as the unconvicted of involuntary manslaughter, where lawful killing of a human being without malthe evidence on the part of the state would ice, and dividing manslaughter into volunauthorize a verdict of murder. Chatman v.

tary and involuntary manslaughter, and secState, 65 S. E. 360, 6 Ga. App. 564.

tion 274, making it a felony to perform a

criminal abortion, an unlawful killing with In view of Pen. Code 1901, § 172, defin- malice aforethought is “murder," and is also ing “murder” as the unlawful killing of a “manslaughter,” because it is the unlawful human being with malice aforethought, an killing of a human being, though it cannot be indictment sufficiently charges murder by al- logically classed as voluntary or involuntary leging facts showing the unlawful killing of manslaughter, and under a charge of murder a human being with malice aforethought, by attempting a criminal abortion, a verdict without alleging facts bringing it within one of manslaughter may be returned. People v. of the statutory degrees of murder; it being Huntington, 97 Pac. 760, 762, 8 Cal. App. 612. for the jury to determine the degree. Williams v. Territory, 114 Pac. 556, 13 Ariz. 306. Under Pen. Code, &$ 242, 246, 254, declar

“Murder," as defined in Pen. Code, $ 187, ing that a homicide is either murder, mandeclaring that “murder is the unlawful kill- slaughter, excusable homicide, or justifiable ing of a human being with malice afore homicide, that homicide is “murder," when thought,” includes murder in the first degree effect the death of the person killed, and that

perpetrated with a premeditated design to and murder in the second degree. People v.

homicide is "manslaughter,” when perpetratUng Ting Bow, 75 Pac. 899, 142 Cal. 341 (cit- ed without a design to effect death, and in ing People v. De la Cour Soto, 63 Cal. 166).

heat of passion, etc., and Code Cr. Proc. & One is guilty of murder who by felonious- 409, authorizing a conviction of any offense ly severing another's blood vessel causes him necessarily included in the offense charged, to bleed to death, where through want of the jury may find accused guilty of manassistance decedent is unable to prevent ex. slaughter in the first degree under an incessive loss of blood, Rigsby V. State, 91

dictment charging murder. State y. StumN. E. 925, 927, 174 Ind. 284.

baugh, 132 N. W. 666, 668, 28 S. D. 50. An information in extradition proceedings charging accused with “assault with in

An indictment which shows that the tent to kill and murder” sufficiently brings homicide complained of is the result of a the offense within article 10 of the treaty pemeditated design to effect the death of the with Great Britain, authorizing extradition person killed, and is without authority of of persons charged with "assault with intent law, sufficiently alleges "murder.” Cavett v. to commit murder." An assault with intent Territory, 98 Pac. 890, 893, 1 Okl. Cr. 493.

Under 2 Wilson's Rev. & Ann. St. 1903, 8 One who, as heir, would, under Civ. Code, 2167, defining “murder" as "homicide when $ 1386, share in the estate of decedent, is perpetrated without authority of law and not, by reason of his conviction of manslaughwith a premeditated design to effect the death ter for killing intestate, within section 1409, of the person killed, or of any other human declaring that no one convicted of "murder" being," a killing of a human being, perpetrat- of deceased shall succeed to any of his esed without authority of law and with a pre- tate; “murder" not only being a technical meditated design to effect the death of the word within section 13, requiring such words person killed, "murder.” Walcher v. Ter- to be construed according to their peculiar ritory, 90 Pac. 887, 888, 18 Okl. 528.

or technical meaning, but being precisely de

fined by Pen. Code, $ 187, so as to exclude "Murder" must be committed by an act applied to or affecting the person either di- manslaughter, and Pol. Code, $ 4480, requir. rectly, as by inflicting a wound, or indirect- sions of the four Codes to be construed as

ing, with relation to each other, the provi. ly, as by exposing the person to a deadly though they were all parts of the same stat. agency or influence, from which death ensues, ute. In re Kirby's Estate, 121 Pac. 370, 162 and the working upon the fancy of another, Cal. 91, 39 L R. A. (N. s.) 1088, Ann. Cas. or treating him harshly or unkindly, by which

19130, 928. he dies of fear or grief, would not constitute this offense. State v. McGowan, 93 Pac. 552,

The word "murder" is often used in the 554, 36 Mont. 422 (citing Commonwealth v. dual character of both a noun and a verb. Webster, 5 Cush. [59 Mass.) 295, 52 Am. Dec. When it is said that A. concealed himself 711 ; State v. Turner (Ohio] Wright, 20). with intent to murder B., it is understood

that his purpose was to commit "murder" If a man shoots at another with the in- upon B., without the use of the verb, "comtention of killing him (and such killing if

mit." Hence a verdict finding defendant consummated would be murder), and kills a guilty of an assault with intent to “murder" bystander or another, he is guilty of the mur- is not objectionable for failure to use the der of the person killed, whether the killing verb "commit” before “murder." Nickles v. of the latter was due to a mistake as to his State, 37 South. 312, 313, 48 Fla. 46. or her identity, or to recklessness in 'the aim of the one doing the killing. United States

The statute dividing murder into two dev. Hart, 162 Fed. 192, 197.

grees has not added to or taken away any in

gredients of murder at common law, and Where one shoots with intent to kill an every murder at common law is murder under intended victim, it is immaterial, on a prose the statutes of Alabama. McMahan v. State, cution for killing a different person, whether 53 South. 89, 90, 168 Ala. 70. he saw the person who was killed by the shot

Deliberation and premeditation when he fired. Gater v. State, 37 South. 692, 695, 141 Ala. 10.

Where, in a prosecution for homicide,

there was evidence that defendant killed de In an indictment for the murder of one ceased deliberately, intending so to do, the person, committed with a premeditated de- length of time that such intention existed was sign to effect the death of a different person, immaterial to make the offense of murder, it is not necessary to allege an actual as- State v. Powell (Del.) 61 Atl. 966, 971, 5 Pensault upon the person designed to be killed, newill, 24. under a statute defining murder as the killiug of one human being by another, without der” as the unlawful killing of a human be

Under Rev. Codes, $ 8290, defining "murauthority of law, and with a premeditated ing with malice aforethought, an information design to effect the death of the person killed, or of any other human being. Fooshee v. and feloniously, and of his “deliberately pre

charging accused with willfully, unlawfully, State, 108 Pac. 554, 559, 560, 3 Okl. Cr. 666.

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 killing, was immaterial. Deliberation and any human being other than him who is premeditation need not be alleged. State v. killed, so that where defendant was damaged Nielson, 100 Pac. 229, 230, 38 Mont. 451. in an altercation with two others, and short- Under 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, de- der circumstances showing no deliberation, fendant came around the corner with a re- if the guilty person provoked a contest with volver in each hand, and fired five or six the apparent intent of killing decedent, or shots toward the crowd, resulting in the doing him serious bodily harm, the offense is death of deceased, who was unknown to him not manslaughter, if accused provoked the and only accidentally there, the provision of contest with the apparent intention of killing the statute is expressly applicable. Ryan v. decedent, or doing him serious bodily injury, People, 114 Pac. 306, 308, 50 Colo. 99, Ann. he is guilty of murder, though he may have Cas. 1912B, 1232.

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.

"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 indeath, 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 homioide

Under Revisal 1905, § 3631, providing

that a murder which shall 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."


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 aforethought, either express or implied; it being said to exist whenever there has been a

sonal ill will or grudge but it may also be 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 rischief, 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 constit

Manslaughter distinguished uent definition of murder remains as it 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 distincurs, 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 act ter.'

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 a forethought, 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, have 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. 851), 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 more than 15 years, and section 934 pro- Kan. 576.

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