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watching, and one of them killed an occu-, that the same was committed in the perpepant of the dwelling in their attempt to estration of arson and burglary. Jones v. State, cape, both were guilty of "murder in the 110 S., W. 741, 742, 53 Tex. Cr. R. 131, 126 first degree,” under Pen. Code, $ 183, defining Am. St. Rep. 776. murder in the first degree as murder commit

Where the evidence tends to prove that ted by a person "engaged in the commission of, or in an attempt to commit, a felony.” a murder was committed by means of poi. People v. Giro, 90 N. E. 432, 434, 197 N. Y. son, lying in wait, imprisonment, or torture 152.

or in perpetration or attempt to perpetrate “Murder in the first degree,” as defined felony, and where there is no evidence to

any arson, rape, robbery, burglary, or other by Comp. Laws 1897, § 1063, is “all murder prove murder in the second degree or manwhich shall be perpetrated by means of poi- slaughter, the trial judge should instruct the

or lying in wait, torture, or by any jury that it is their duty to render a verdict kind of willful, deliberate, and premeditated of guilty of “murder in the first degree," if killing, and which is committed in the perpe- they are satisfied beyond a reasonable doubt, tration or attempt to perpetrate any felony, or of not guilty. State v. Spivey, 65 S. E. or perpetrated from any deliberate design un- 995, 998, 999, 151 N. C. 676. lawfully and maliciously to effect the death of any human being, or perpetrated by any

P. L. 1898, p. 824, § 107, declares that act greatly dangerous to the lives of others, "murder which shall be perpetrated by means and indicating a depraved mind regardless of poison, or by lying in wait, or by any other of human life.” Territory v. Hendricks, 84 kind of willful, deliberate and premeditated Pac. 523, 524, 13 N. M. 300.

killing, or which shall be committed in per

petrating, or attempting to perpetrate, any Under Rev. St. 1899, § 1815 (Ann. St. arson, burglary, rape, robbery or sodomy, 1906, p. 1258), providing that every homicide shall be 'murder in the first degree'; and all committed in perpetration or attempt to per- other kinds of murder shall be murder in the petrate robbery shall be deemed murder in second degree.” In this statute the two conthe first degree, where poison was adminis- crete cases of murder in the first degree, and tered willfully and deliberately in the perpe- the general description of the cognate class tration of a robbery and death ensued, mal- that immediately follows, are all based upon ice aforethought and premeditation were not the existence of a certain condition of mind elements of the offense, and it was unnec- in the perpetrator of the murder, which, as essary for the court to define such terms in to the concrete instances, is described by refthe instructions. State v. Daly, 109 S. W. erence to the means employed or the meth53, 57, 210 Mo. 664.

od adopted, viz., by poison or by lying in Crimes and Punishments Act, § 17 (Comp. wait, and as to the general class that folLaws, § 4672), making all murder by poi- lows, by the use of descriptive words of which son, lying in wait, or torture, or any other the two concrete cases are something more kind of willful, deliberate, and premeditated than apt illustrations, being, by force of the killing, or committed in the perpetration or word "other,” criteria controlling the sense attempt to perpetrate any arson, rape, rob- in which the more general terms are employbery, or burglary, murder in the first degree, ed. It is clear, therefore, that murder, whethdoes not create separate statutory homicides, er resulting under the special circumstances but the killing of a human being in either first detailed or evincing the state of mind one of the methods described is “murder in afterwards described, is “murder in the first the first degree," and a felony and a homi- degree,” without regard to any extraneous cide committed in perpetrating or attempt. consideration, and that the determining eleing to perpetrate a felony constitute together ment in either case is the existence of the the one crime of murder in the first degree. reprobated state of mind in the murderer, State v. Mangana, 112 Pac. 693, 696, 33 Nev. and not the measure of success that attended 511.

its accomplishment. The court correctly inUnder Pen. Code 1895, art. 711, provid- from a pistol shot intended by the defendant

structed that, if the death of R. resulted ing that murder committed in the perpetra- for another person, defendant's guilt and the tion or in the attempt at the perpetration of degree of guilt was to be determined precisearson, rape, robbery, or burglary is “murder ly the same as if the bullet had killed the in the first degree,” etc., an indictment for person for whom it was intended. State v. murder which alleges in different counts that Bectsa, 58 Atl. 933, 935, 71 N. J. Law, 322. the murder was committed in the perpetration of arson and in the perpetration of bur

Ballinger's Ann. Codes & St. 8 6800 glary, and which alleges malice aforethought, (Pierce's Code, $ 2091), abolishes all forms of sufficiently advises accused of the character pleading in criminal acts theretofore existof the charge against him; and it is not nec. ing. Section 6850, subd. 6 (Pierce's Code, essary to define with particularity the con- 2103), provides that an information shall be stituent elements of the offenses of arson or sufficient if it can be understood therefrom burglary, or what accused was doing at the that the act or omission charged is clearly time he committed the murder, further than land distinctly set out in ordinary language,

without repetition, and so as to enable a per- , ing, and if accused deliberately drew a pisson of common understanding to know what tol and shot decedent with malice aforeis intended. Section 7035 (Pierce's Code, 8 thought, and with the intent to take his life, 1554) defines murder in the first degree as accused was guilty of "murder in the first the killing of another purposely and of de- degree" was not erroneous for failing to liberate and premeditated malice, or in the state the elements constituting murder in the perpetration or attempt to perpetrate rob first degree. Duckworth v. State, 97 S. W. bery, burglary, etc. Held that the words, 280, 281, 80 Ark. 360. "attempt," "robbery," "burglary," as used in

An instruction on a trial for homicide the statute, have a well-defined legal mean

that murder in the first degree consists in ing, and in drawing an information charg

the taking of a human life with intent to ing murder in the first degree, if the perpe

kill and with deliberation and premeditation; tration or attempt to perpetrate the included

that it is not necessary that deliberation and crimes is pleaded in the language of the stat

premeditation should continue for an hour ute without setting forth the acts constitut

or for a minute, but that it is enough that ing the crimes, it is a sufficient compliance

the design to kill be fully formed and purwith section" 6850 (Pierce's Code, $ 2103).

| posely executed; and that the elements conState v. Fillpot, 98 Pac. 659, 661, 51 Wash.

stituting the crime are an intent to kill and 223.

an execution of that intent with deliberation An information, on the oath of the pros and premeditation-properly defines murder ecuting attorney, alleging that on January in the first degree. State V. Lang, 66 Atl. 13, 1905, in P. county, Mo., defendants did | 942, 945, 75 N. J. Law, 1. make an assault on deceased, and did felo

An indictment for homicide charging that niously, willfully, deliberately, premeditated ly, and of their malice aforethought shoot de

de accused feloniously, willfully, deliberately, ceased with a pistol loaded with bullets and pre

lots and premeditatedly and of his malice aforegunpowder, thereby inflicting on deceased a

thought assaulted deceased with a pistol, mortal wound described, of which deceased

which he feloniously, willfully, deliberately, shortly thereafter died, was sufficient to

premeditatedly and of his malice aforecharge first-degree murder. State v. Barnett,

thought discharged against and upon him,

thereby feloniously, willfully, deliberately, 102 S. W. 506-509, 203 Mo. 640.

and premeditatedly striking, penetrating, and "Murder in the first degree," as defined

mortally wounding deceased, of which morby Pen. Code, g 1044, subd. 1, is the killing of tal wound he instantly died, sufficiently a human being when committed "from a de charges the offense of murder in the first deliberate and premeditated design to effect the gree. State v. Clay, 100 S. W. 439, 441, 201 death of the person killed, or of another," Mo. 679. is broad enough to embrace murder in the

An instruction that if the jury believes second degree, as defined in the same statute. People v. Schleiman, 90 N. E. 950, 952, 197

from the evidence that the defendant shot N. Y. 383.

and killed L. as charged, and that at the

time, or before the shot was fired, the deUnder Rev. Codes, $8 8290, 8292, 8295, fendant had formed in his mind the willful, defining murder as the unlawful killing of a premeditated, and deliberate design or purhuman being with malice aforethought, and pose to take the life of the deceased, and murder in the first degree as all murder per- that the shot was fired in furtherance of that petrated by any kind of willful, deliberate, design or purpose, and without any justifiand premeditated killing, and manslaughter able cause or legal excuse therefor, as exas the unlawful killing of a human being plained in these instructions, then the jury without malice, murder in the first degree should find the defendant guilty of "murder includes manslaughter, and an information in the first degree" sufficiently defines that charging murder justifies a conviction of offense. State v. McCarver, 92 S. W. 684, manslaughter within section 9326, authoriz- 691. 194 Mo. 717. ing the jury to convict of a lesser offense included in the offense charged. State v.

Comp. Laws 1907, & 4159, defines murder Crean, 114 Pac. 603, 605, 43 Mont. 47, Ann.

as "the unlawful killing of a human being Cas. 1912C, 424.

with malice aforethought." Section 4161

makes a killing committed in an attempt to Where, on a trial for homicide, the evi- | perpetrate robbery murder in the first degree. dence showed that decedent had assaulted An information for murder alleged that acaccused, and the court charged that willful, cused "unlawfully, willfully, feloniously, dedeliberate, malicious, and premeditated kill- liberately, premeditatedly, and of his malice ing is "murder in the first degree," and that aforethought, and with the specific intent to if the assault by decedent was sufficient to take the life" of a person named, shot and arouse in aceused passion, and that while un- killed him. The undisputed evidence at the der its influence he killed decedent, he was trial showed that the murder was committed guilty of voluntary manslaughter only, an during an attempt to perpetrate a robbery, instruction that if sufficient time elapsed for and the evidence of accused was to the efaccused's passion to subside before the kill. fect that the killing was due to an uninten

tional discharge of his pistol. The state ad. 1 by fear or hope of pardon. Article 555 produced evidence that the killing was willful vides that where a defendant in a case of and intentional, and occurred during the at- felony persists in pleading guilty, if the puntempt to perpetrate a robbery. Held, that it ishment of the offense is not absolutely fixed was not error for the court to instruct that by law, a jury shall be impaneled to assess though the killing was done in perpetrating the punishment on evidence submitted to or in an attempt to perpetrate a robbery, and enable them to decide thereon. Pen. Code, though the information contained nọ allega- 1895, art. 712, provides that, if a person tions of the killing under such circumstances, pleads guilty to murder, a jury shall be sumnevertheless the accused could, under the al- moned to find of what degree of murder he is legations contained in the information, be guilty. Held, that when an accused pleaded convicted of first degree murder. State v. guilty of murder, and his plea was accepted Thorne, 117 Pac. 58, 60, 39 Utah, 208. by the court after examination, and evidence

In a prosecution for statutory murder in was introduced before a jury which conthe first degree, the state claimed that accus-clusively showed that the murder was comed killed deceased with premeditated design. mitted in the perpetration of robbery, the The court charged that premeditated design court was not compelled to submit the issue was simply an intent to kill, that "design" of second degree murder, under article 712. meant “intent," and that both words implied Neither was the court in error in not defining premeditation, that premeditation did not ex. for the jury murder in the first degree. Miller clude sudden intent, and that whether it be v. State, 126 S. W. 864, 58 Tex. Cr. R. 600. described by the words "actual intent," "de- Deliberation and premeditation sign,” or “premeditated design" was immate- Deliberation, as an element of first derial; that the intent was understood to be gree murder, is established if accused had premeditated because without mental action time for thought, and, thinking, though but the purpose could not be formed; that, when for a moment, did intend to kill, and in fact there were no circumstances to prevent the did kill. State v. Russo (Del.) 77 Atl. 743, presumption, the law would presume that the 745, 1 Boyce, 538. inlawful act was intentional and malicious;

To constitute "murder in the first dethat, in the absence of evidence to the contrary, he who takes the life of another by to kill on the part of the slayer, but there

gree," there must be, not only an intention some act naturally calculated to produce must be a' premeditated design to kill or death would be presumed to have intended effect death. Keigans v. State, 41 South. 886, that result and to be guilty of murder in the

887, 52 Fla. 57. first degree, it being presumed that such person intended the result that followed, and

"Murder of the first degree" is where a must be guilty of murder in the absence of homicide is committed with sedate, deliberate evidence that the homicide was justifiable or mind and formed design to kill, though the excusable or such as to raise a reasonable deliberate and formed design exist only for a doubt on the question; thus that where ac- moment. State v. Harmon (Del.) 60 Atl. 866cused fired shot, the weapon being aimed 868, 4 Pennewill, 580; State v. Blackburn at a vital part of the body, and death ensued (Del.) 75 Atl. 536, 539, 7 Pennewill, 479. as a natural result, the presumption of fact A homicide committed under such ciras to the intention to take life, in the ab- cumstances that the law implies malice is not sence of any explanatory circumstances, always murder in the first degree, but is makes a prima facie case for the prosecution, such only where there exists at the time on the state not being required to negative any the part of accused a premeditated design to probability that there were circumstances re- effect the death of the person killed or of any ducing the homicide below that of murder human being. Hedger v. State, 128 N. W. 80, in the first degree, or excusing or justifying 90, 144 Wis. 279. it. Held, that such charge was correct in so "Murder in the first degree" is not de. far as it related to statutory murder in the termined by a design to kill, unless that de first degree, under the facts proved. Hedger sign originated in, or resulted from, a sedate, v. State, 128 N. W. 80, 90, 144 Wis. 279. deliberate mind, or in other words, at the

Pen, Code 1895, art. 710, provides that time the design is formed, the mind must be every person who shall unlawfully kill any calm, sedate, and deliberate. Wynne F. person with malice aforethought, either ex- State, 127 S. W. 197, 199, 59 Tex. Cr. R. 117 press or implied, shall be guilty of murder, (citing Farrer v. State, 42 Tex, 271). and that all murder committed in the per- To constitute "murder in the first degree," petration of robbery is murder in the first de- there must be both an intent to kill and a de: gree, and that all murder not of the first de- liberate and premeditated design to kill, gree is murder of the second degree. White's which design must precede the killing by Ann. Code Cr. Proc. art. 554, provides that, if some appreciable space of time. It need the defendant pleads guilty, he shall be ad- not be long, but it must be sufficient for some monished of the consequences of such plea, reflection on the matter and a choice to kill and no such plea shall be received unless it or not to kill. People v. Boggiano, 72 N. E. appears that he is sane and is uninfluenced '101, 179 N. Y. 267.

To constitute "murder in the first de It is not necessary, under our statute, in gree,” the killing must be willful, premeditat- order to constitute murder in the first degree, ed, and deliberate, but willful intent, pre that the murder should be committed by meditation, or deliberation need not exist for means of poison, or by lying in wait, or that any prescribed length of time before the it shall be committed in the perpetration or crime is committed; it is sufficient that there attempt to perpetrate arson, rape, robbery, is premeditation and design to kill distinctly burglary, or maybem; but any kind of willful, formed in the mind at any time before or deliberate, and premeditated killing, is "murat the time the shot is fired. State v. McMul- der in the first degree.” A murderous purlin, 71 S. W. 221, 224, 170 Mo. 608.

pose to draw some one into a dispute, and The law defining “murder in the first de- then strike him down with a deadly weapon, gree” does not fix any invariable rule as to the is sufficient to support a finding that the homlength of the time that must elapse between a icide was deliberate and premeditated. State formed design to kill and its execution, but v. Vinso, 71 S. W. 1034, 1037, 171 Mo. 576 only requires that the killing must have been (quoting and adopting State v. Fairlamb, 25 deliberate and that a formed design to kill S. W. 897, 121 Mo. loc. cit. 144). existed. Snowberger v. State, 126 S. W. 878, "To constitute 'murder in the first degree 882, 58 Tex. Cr. R. 530.

there must have been an unlawful killing If one actually forms the purpose mal- done, purposely and with deliberate and preiciously to kill another, and deliberates and meditated malice. If the person has actupremeditates upon it, and then does the act, ally formed the purpose maliciously to kill he commits “murder in the first degree," no and has deliberated and premeditated upon matter how short the time may have been, it before he performs the act, and then perif but the time necessary for one thought to forms it, he is guilty of murder in the first follow another between the purpose and its degree, however short the time may have execution. Wickham v. People, 93 Pac. 478, been between the purpose and its execution. 481, 41 Colo. 345.

It is not time that constitutes the distinctive To constitute “murder in the first degree” difference between murder in the first degree it is not essential that there should be any and murder in the second degree. An unappreciable space of time between the intent lawful killing with malice, deliberation, and to kill and the act of killing; i. e., any in- premeditation constitutes the crime of murterval "capable of being appreciated or duly der in the first degree. It matters not how estimated.” The intent to kill must be form-short the time, if the party has turned it ed deliberately and with premeditation; but, over in his mind and weighed and deliberated when so formed, there need be no apprecia- upon it.” Reed v. State, 106 N. W. 649, 651, ble space of time between the intent and 75 Neb. 509. the act. People v. Suesser, 75 Pac. 1093, "In order to warrant a verdict of 'mur1097, 142 Cal. 354.

der in the first degree,' malice must be shown To constitute "murder in the first de- by the evidence to have existed (that is, the gree,” there need be no appreciable space of jury must be satisfied from the evidence, time between the intention to kill and the beyond a reasonable doubt, that the killing act of killing—they may be as instantaneous was a consummation of a previously formed as successive thoughts of the mind-and it is design to take the life of the person killed, only necessary that the act of killing be pre- and that the design to kill was formed deceded by a concurrence of will, deliberation, liberately with a sedate mind; that is, at and premeditation; and where such is the the time when the design was formed, the case, the killing is murder in the first degree, mind of the person killing was self-possessed no matter how rapidly the acts of the mind and capable of contemplating the consequencmay succeed each other, or how quickly they es of the act proposed to be done). There is, may be followed by the act of killing. People however, no definite space of time necessary. v. Yee Foo, 89 Pac. 450, 452, 4 Cal. App. 730. to intervene between the formed design to

A killing in a combat which engenders kill and the actual killing; a single moment hot blood is not “murder in the first degree," of time may be sufficient; all that is required in the absence of premeditation. Osburn v. is that the mind be cool and deliberate in State, 73 N. E. 601, 604, 164 Ind. 262.

forming, its purpose, and that the design to “In order to constitute 'murder in the kill is formed." Gregg v. State (Tex.) 100 S. first degree,' where only the question of mal

W. 1161, 1163. ice is involved, and not robbery, or some of Rev. Laws, C. 207, § 1, declares that murthose extraneous matters made murder in the der committed with deliberately premeditatfirst degree by the statute, the intent to ed malice aforethought, or in the commission kill must be formed in a mind that is cool, or attempt to commit any crime punishable deliberate, and sedate. The intent to kill, with imprisonment for life, or committed formed in a mind that is not cool, deliberate, with extreme atrocity or cruelty, is murder and sedate, is not murder in the first degree." in the first degree, and punishable with death. Manning v. State, 85 S. W. 1149, 48 Tex. Cr. In a prosecution for such offense, the court

charged that the words "deliberately pre

R. 55.

18.

meditated malice aforethought” meant simply | tual combat, the offense was "murder of the "thought upon, resolved upon beforehand, not first degree." State v. Taylor, 50 S. E. 247, a thing done suddenly, not a thing that comes 252, 57 W. Va. 228. into the mind of a sudden, and is done be

To constitute "murder in the first defore there is time to think about it, but a gree,” the killing must be intentional, must thing thought upon or planned some time be- be deliberate and premeditated, and no killfore, or thought upon long enough before the ing can be murder in the first degree unless act is done so that it can reasonably be said the act of killing is preceded by a willful, deto have become a purpose of the mind,” that liberate, premeditated, and specific intent to "no particular length of time is necessary" kill. State v. Marx, 60 Atl. 690, 692, 78 Conn. and illustrated the same by stating that if a robber with a dirk or pistol turns a corner

Under Mills' Ann. St. $ 1176, providing and meets a bank messenger with a roll of that murder in the perpetration of robbery bills, and determines in one moment to get it, shall be deemed murder in the first degree, and the next shoots or stabs the messenger the intent is immaterial, so that, where sevdead, takes the package, and flees, his mal eral conspire to rob, and one of the conspiraice was deliberately premeditated, though it tors commits murder in the perpetration of occupied only a few seconds to accomplish. robbery, the others are responsible for his act, Held, that both the definition and illustration though murder was not originally intended. were proper. Commonwealth v. Tucker, 76 Andrews v. People, 79 Pac. 1031, 1033, 33 N. E. 127, 138, 140, 141, 189 Mass. 457, 7 L. Colo. 193, 108 Am. St. Rep. 76. R. A. (N. S.) 1056.

“Under Code, & 4728, all murder which An instruction that, to constitute “mur. is perpetrated by means of poison is ‘murder der in the first degree,” there must be proof in the first degree.' Hence a homicide comof malice and premeditation, and that if ei- mitted by the administration of poison, with ther of these elements is absent there can be a bad motive or intent, is murder in the first no conviction for that grade of homicide, that degree, no matter whether there was spea "premeditated design or purpose" is one cific intent to kill.” State v. Burns, 99 N. W. resulting from thought and reflection, a de- 721, 722, 124 Iowa, 207 (citing State v. Van sign conceived and afterwards so deliberately Tassel, 72 N. W. 497, 103 Iowa, 6; State considered as to become resolved and fixed, v. Wells, 17 N. W. 90, 61 Iowa, 629, 47 Am. that when the design to take human life is Rep. 822; State v. Bertoch, 83 N. W. 967, formed after deliberation, and there is ade 112 Iowa, 195). quate time and opportunity for deliberate thought, then, no matter how soon the felo

The distinctive feature of “murder in the nious killing follows the formation of the first degree" is a willful, deliberate, malicious, settled purpose, it is murder in the first de- and premeditated intent to take life, and, algree, that there need be no appreciable space though it is not indispensable that the preof time between the formation of the inten- meditated design should have existed in the tion to kill and the killing, but that it is as mind of the slayer for any particular length much "premeditation” if it enters into the of time before the killing, yet to constitute mind of the guilty agent a moment before murder in the first degree it is indispensable the act as if it entered years before, and that that the evidence should show that the killit is only necessary that the act of killing be ing was not only done with malice but that preceded by the concurrence of will, delibera- it was preceded by a clearly formed design to tion, and premeditation, but that, when there kill, a clear intent to take life. Howard v. is no time and opportunity for deliberate State, 100 S. W. 756, 757, 82 Ark. 97 (citing thought, the unlawful killing cannot be mur

Bivens v. State, 11 Ark. 460; Fitpatrick v. der in the first degree, is correct. Welty v.

State, 37 Ark. 239). State (Ind.) 100 N. E. 73, 81.

Under Code, 8 4728, providing that the

killing of a human being by means of a willIntent

ful, unlawful, and felonious administration of "Murder in the first degree” cannot be poison is “murder in the first degree,” an inpredicated on the mere existence of an in- dictment for homicide so committed is not tent to kill at the time of committing the objectionable for failing to allege a specific crime. State v. Mangano, 72 Atl. 366; 367, 77 intent. A homicide so committed cannot conN. J. Law, 544.

stitute murder in the second degree or manIt is not necessary that a prior intention slaughter, and hence a specific intent to kill to do the act of killing be conceived for any is not an essential allegation in the indictparticular period of time in order to consti- ment. State v. Robinson, 101 N. W. 634, 635, tute murder in the first degree. Ferguson v. 126 Iowa, 69 (citing State v. Van Tassel, 72 State, 122 S. W. 236, 237, 92 Ark. 120. N. W. 497, 103 Iowa, 9; State y. Wells, 7 N.

W. 90, 61 Iowa, 629, 47 Am. Rep. 822; Epps If there was a fixed, deliberate, and sedate purpose to kill, usually termed "specific v. State, 1 N. E. 491, 102 Ind. 539). intent to take life,” willful, deliberate, and If a person takes the life of another by premeditated, although in the course of mu-' an act naturally calculated to produce that

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