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The chief distinction between "murder" [ to reduce the offense to "manslaughter;" and and "manslaughter" is deliberation and mal. ice in murder, and the want thereof in man slaughter, and, where the issue was whether accused or a third person inflicted the fatal wound, the error in an instruction that if accused killed decedent without authority of law, and not in necessary self-defense, he was guilty of manslaughter, arising from the omission of the words "without malice, and in the heat of passion," was not prejudicial. Guest v. State, 52 South. 211, 212, 96 Miss. 871.

Generally it is not "murder" but "manslaughter" to kill an officer, or other person, to prevent an illegal arrest. Consequently, shooting at an officer without killing him, if done to prevent an illegal arrest, is prima facie not an assault with intent to murder, but the statutory crime of shooting at another, described in Code 1882, § 4370. Jenkins v. State, 59 S. E. 435, 436, 3 Ga. App. 146 (quoting with approval from Thomas v. State, 18 S. E. 305, 91 Ga. 206).

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.

"Manslaughter" is an unlawful killing, which becomes "murder in the second degree" when it has the added element of malice. State v. Fowler, 66 S. E. 567, 151 N. C. 731.

"Manslaughter" consists of the unlawful killing of a human being without malice, and so, in a prosecution for assault with intent to commit murder, the accused cannot be convicted if, had his victim died, his crime would have only been manslaughter. State v. Stockley (Del.) 82 Atl. 1078, 1079.

“Manslaughter" is an unlawful killing in anger without malice. Proof of prior provocation may exclude the idea of malice in the homicide, but does not exclude the idea of unlawfulness. It merely substitutes the element of anger without malice for the element of malice, thus distinguishing manslaughter from "murder." Cole v. State, 59 S. E. 24, 26, 2 Ga. App. 734.

under the influence of a wicked or depraved heart, or with cruel and wicked indifference to human life. "Manslaughter' is where one in a sudden affray, in the heat of blood, or in a transport of passion, without malice, inflicts a mortal wound, without time for reflection or for the passions to cool. It is where one person unlawfully kills another without malice. In order to reduce the crime to 'manslaughter,' the provocation must be very great, so great as to produce such a transport of passion as to render the person for the time being deaf to the voice of reason. While 'murder' proceeds from a wicked and depraved heart and is characterized by malice, 'manslaughter' results, not from malice, but from unpremeditated and unreflecting passion." State v. Cephus (Del.) 67 Atl. 150, 151, 6 Pennewill, 160.

When a killing is intentional and is not lawful, it is generally "murder"; but under circumstances of provocation, or of mutual combat, it may be reduced to "manslaughter." State v. Goldsby, 114 S. W. 500, 503, 215 Mo. 48 (citing 2 Bish. Cr. Law [6th Ed.] § 695).

Murder is where a person of sound memory and discretion unlawfully kills any human being under the peace of the state, with malice aforethought, either express or implied. The chief characteristic of this crime, distinguishing it from manslaughter and every other kind of homicide, and therefore indispensably necessary to be proved, is malice preconceived or aforethought. State v. Brinte (Del.) 58 Atl. 258, 262, 4 Pennewill, 551.

A charge that, where an officer is shot and killed by one whom he is seeking legally to arrest, the offense is "murder" and not manslaughter was not erroneous when taken in connection with the evidence, which was sufficient to show that defendant was violat

ing the law in the presence of the officer, and that, upon an effort to arrest him, he drew a pistol and shot the officer. Johnson v. State, 60 S. E. 160, 161, 130 Ga. 27.

In an instruction correctly defining murder and manslaughter, the statement that, "You see by these definitions that in murder malice must exist, but that manslaughter is the killing of a human being without malice," made only to distinguish the two, is not reversible error. Prince v. United States, 109 Pac. 241, 242, 3 Okl. Cr. 700.

If two persons deliberately agree to fight with deadly weapons on a subsequent day at a definite time and place, and, both being armed, meet by chance near the appointed place and near the appointed time, and without any fresh cause of a quarrel or other altercation 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 provocation S. E. 683, 685, 125 Ga. 753.

MURDER IN FIRST DEGREE

As felonious homicide, see Felonious
Homicide.

"Murder in the first degree" is the willful, deliberate, and premeditated killing of a human being. State v. Briggs, 52 S. E. 218, 219, 58 W. Va. 291.

"Murder in the first degree" is the willful, felonious, deliberate, and premeditated killing of a human being with malice aforethought. State v. Hottman, 94 S. W. 237, 239, 196 Mo. 110.

Willful, deliberate, and premeditated killing, without any motive appearing at all, is murder in the first degree. State v. Jaggers, 58 Atl. 1014, 1015, 71 N. J. Law, 281, 108 Am. St. Rep. 746.

"Murder of the first degree" is where the killing was done with malice aforethought. State v. Primrose (Del.) 77 Atl. 717, 2 Boyce, 164; State v. Roberts (Del.) 78 Atl. 305, 310, 2 Boyce, 140.

To constitute murder in the first degree, the offender's mind must be cool and sedate; and there must be express malice aforethought. Dixon v. State, 103 S. W. 399-401, 51 Tex. Cr. R. 555.

"Murder in the first degree" is defined in Rev. St. 1899, § 4950, as a purposeful and premeditated malicious killing. Hollibaugh v. Hehn, 79 Pac. 1044, 1047, 13 Wyo. 269.

To constitute "murder in the first degree," the killing must be done with malice aforethought, express or implied, and with willful premeditation and determination. State v. McKay, 63 S. E. 1059, 1060, 150 N. C. 813.

A homicide committed with express malice aforethought is "murder in the first degree." State v. Brooks (Del.) 84 Atl. 225, 227.

An indictment charging that accused purposely, feloniously, and with premeditated malice killed a person named charges murder in the first degree. Stout v. State, 92 N. E. 161, 162, 174 Ind. 395, Ann. Cas. 1912D, 37.

"Murder of the first degree" is a killing done with express malice aforethought, or in perpetrating or attempting to perpetrate a crime punishable with death. State v. Wiggins (Del.) 76 Atl. 632, 634, 7 Pennewill, 127; State v. Brown (Del.) 61 Atl. 1077, 1078, 5 Pennewill, 339; State v. Powell (Del.) 61 Atl. 966, 971, 5 Pennewill, 24; State v. Russo (Del.) 77 Atl. 743, 745, 1 Boyce, 538; State v. Mills (Del.) 69 Atl. 841, 842, 6 Pennewill, 497; State v. Samuels (Del.) 67 Atl. 164, 165, 6 Pennewill, 36; State v. Johns (Del.) 65 Atl. 763, 764, 6 Pennewill, 174; State v. Tilghman (Del.) 63 Atl. 772, 773; State v. Roberts (Del.) 78 Atl. 305, 310; State v. Blackburn (Del.) 75 Atl. 536, 539, 7 Pennewill, 479; State v. Bell (Del.) 62 Atl. 147, 148, 5 Pennewill, 192.

"Murder in the first degree" occurs where the killing was done in perpetrating or

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Murder in the first degree is the taking of human life with express malice aforethought or in perpetrating or attempting to perpetrate a crime punishable with death, when the act is done deliberately and with a formed design to take life or do some great bodily harm. State v. Collins (Del.) 62 Atl. 224, 226, 5 Pennewill, 263; Same v. Bell (Del.) 62 Atl. 147, 148, 5 Pennewill, 192; Same v. Brown (Del.) 61 Atl. 1077, 1078, 5 Pennewill, 339.

Under Code Iowa, § 4728, killing shown not only to have been done in malice, but with deliberation, premeditation, and with specific intent to kill, is "murder in the first degree." State v. Baldes, 110 N. W. 440, 442, 133 Iowa, 158.

An instruction on murder in the second degree which fails to state that there must be no circumstances of mitigation, justification, or excuse is erroneous. Campbell v. Territory (Ariz.) 125 Pac. 717, 721.

Under L. O. L. § 1893, defining "murder in the first degree" as a homicide with deliberate and premeditated malice, or in the commission or attempt to commit any rape, arson, robbery, or burglary, the state, charging a killing while in the commission of such other offenses, need not prove deliberate or premeditated malice; but, as malice is not in which homicide results, defendants cannecessarily excluded by such other offenses not complain if the state elects to predicate the murder upon a killing with deliberate and premeditated malice. State v. Hum. phrey, 128 Pac. 824, 827, 63 Or. 540.

Under the statute declaring that whoever purposely and with premeditated malice kills another is guilty of "murder in the first degree," the intent to kill, the premeditation, or deliberation, and malice are as much elements of the crime as the act of killing, and each must exist and be established beyond a reasonable doubt. State v. Pressler, 92 Pac. 806, SOS, 16 Wyo. 214, 15 Ann. Cas. 93.

The statutes define "murder in the first degree" as follows: "Every person who shall purposely and in his deliberate and premedi tated malice kill another shall be deemed guilty in the first degree." State v. Lindgrind, 74 Pac. 565, 566, 33 Wash. 440.

The crime of "murder" is divided into two degrees in North Dakota, according to the facts and circumstances attending the kill

ing, 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 degrees of murder dependent upon the facts attending the killing. There are no degrees of murder in the first degree; the elements of murder in the second degree are necessarily included in the charge of murder in the

An indictment charging the commission of murder by accused while engaged in perpetrating a burglary charges murder in the first degree. Stout v. State, 92 N. E. 161, 162, 174 Ind. 395, Ann. Cas. 1912D, 37.

A murder which is perpetrated by poison,

first degree. State v. Noah, 124 N. W. 1121, lying in wait, or any other kind of willful,

1124, 20 N. D. 281.

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One who kills another, who is approaching in a friendly manner, with no weapon in his hand, and making peaceable overtures, by shooting at him, both at close range and after he has fled across the street and into another's house, is guilty of murder in the first degree. State v. Williams, 84 S. W. 924, 927, 186 Mo. 128 (citing State v. Wieners, 66 Mo. 13; State v. Ellis, 74 Mo. loc. cit. 218, 219; State v. Robinson, 73 Mo. 306; State v. McKenzie, 76 S. W. 1015, 177 Mo. 699).

Where defendant, having manifested express antecedent malice against deceased, followed him down a creek, in which he and his wife were fishing, and without any cause shot him to death, and threw his body into the creek, and there were no mitigating circumstances, he was properly convicted of murder in the first degree. Young v. State, 84 S. W. 822, 47 Tex. Cr. R. 530.

The killing of a human being in the perpetration of or attempt to perpetrate the crime of arson is "murder in the first degree." Ludwig v. State, 85 N. E. 345, 347, 170 Ind. 648.

deliberate, and premeditated killing is murder in the first degree. State v. Abbott, 62 S. E. 693, 64 W. Va. 411.

All murder which is perpetrated by means of poison, or lying in wait, torture, or by any kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration or attempt to perpetrate a

felony, is "murder of the first degree." State v. Hliboka, 78 Pac. 965, 31 Mont. 455, 3 Ann. Caş. 934.

Rev. St. 8 6808, provides that whosoever purposely and either of deliberate and premeditated malice or by means of poison or in perpetrating or attempting to perpetrate any rape, arson, robbery or burglary kills another is guilty of "murder in the first degree." State v. Schiller, 70 N. E. 505, 506, 70 Ohio St. 1.

Pen. Code 1901, § 173, providing that all "murder" which is perpetrated by means of poison, etc., shall be murder in the first degree, and all other kinds of murder are in the second degree, does not prescribe that all "killing" perpetrated by means of poison is murder in the first degree, but that all "murder" so perpetrated is so; the word "murder" being used to denote all that is covered by section 172, defining murder as the unlawful killing of a human being with malice aforethought, etc. Eytinge v. Territory, 100 Pac. 443, 445, 12 Ariz. 131.

By Rev. St. 1887, § 6562, "murder of the first degree" includes all murder "which is performed by means of poison, or lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration or attempt to perpetrate arson, robbery, burState v. Phinney, 89 glary, or mayhem." Pac. 634, 13 Idaho, 307, 12 L. R. A. (N. S.) 935, 12 Ann. Cas. 1097.

Pen. Code, § 189, provides that murder committed in the perpetration or attempt to perpetrate arson, robbery, rape, burglary, or mayhem is murder in the first degree. Held, that it is immaterial on a trial for such a murder whether the killing was willful, deliberate, and premeditated, or absolutely accidental. People v. Milton, 78 Pac. 549, 145 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

watching, and one of them killed an occu- that the same was committed in the perpepant of the dwelling in their attempt.to es-tration 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 committed by a person "engaged in the commission of, or in an attempt to commit, a felony.'

People v. Giro, 90 N. E. 432, 434, 197 N. Y.

152.

"Murder in the first degree," as defined by Comp. Laws 1897, § 1063, is "all murder which shall be perpetrated by means of poison or lying in wait, torture, or by any kind of willful, deliberate, and premeditated killing, and which is committed in the perpetration or attempt to perpetrate any felony, or perpetrated from any deliberate design unlawfully and maliciously to effect the death of any human being, or perpetrated by any act greatly dangerous to the lives of others, and indicating a depraved mind regardless of human life." Territory v. Hendricks, 84 Pac. 523, 524, 13 N. M. 300.

Under Rev. St. 1899, § 1815 (Ann. St. 1906, p. 1258), providing that every homicide committed in perpetration or attempt to perpetrate robbery shall be deemed murder in the first degree, where poison was administered willfully and deliberately in the perpetration of a robbery and death ensued, malice aforethought and premeditation were not elements of the offense, and it was unnecessary for the court to define such terms in the instructions. State v. Daly, 109 S. W. 53, 57, 210 Mo. 664.

Crimes and Punishments Act, § 17 (Comp. Laws, § 4672), making all murder by poison, lying in wait, or torture, or any other kind of willful, deliberate, and premeditated killing, or committed in the perpetration or attempt to perpetrate any arson, rape, robbery, or burglary, murder in the first degree, does not create separate statutory homicides, but the killing of a human being in either one of the methods described is "murder in the first degree," and a felony and a homicide committed in perpetrating or attempting to perpetrate a felony constitute together the one crime of murder in the first degree. State v. Mangana, 112 Pac. 693, 696, 33 Nev.

511.

Under Pen. Code 1895, art. 711, providing that murder committed in the perpetration or in the attempt at the perpetration of arson, rape, robbery, or burglary is "murder in the first degree," etc., an indictment for murder which alleges in different counts that the murder was committed in the perpetration of arson and in the perpetration of burglary, and which alleges malice aforethought, sufficiently advises accused of the character of the charge against him; and it is not necessary to define with particularity the constituent elements of the offenses of arson or burglary, or what accused was doing at the time he committed the murder, further than

Where the evidence tends to prove that a murder was committed by means of poiSon, lying in wait, imprisonment, or torture

or in perpetration or attempt to perpetrate any arson, rape, robbery, burglary, or other felony, and where there is no evidence to prove murder in the second degree or manslaughter, the trial judge should instruct the jury that it is their duty to render a verdict of guilty of "murder in the first degree," if they are satisfied beyond a reasonable doubt, or of not guilty. State v. Spivey, 65 S. E. 995, 998, 999, 151 N. C. 676.

P. L. 1898, p. 824, § 107, declares that "murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in perpetrating, or attempting to perpetrate, any arson, burglary, rape, robbery or sodomy, shall be 'murder in the first degree'; and all other kinds of murder shall be murder in the second degree." In this statute the two concrete cases of murder in the first degree, and the general description of the cognate class that immediately follows, are all based upon the existence of a certain condition of mind in the perpetrator of the murder, which, as to the concrete instances, is described by reference to the means employed or the method adopted, viz., by poison or by lying in Wait, and as to the general class that follows, by the use of descriptive words of which the two concrete cases are something more than apt illustrations, being, by force of the word "other," criteria controlling the sense in which the more general terms are employed. It is clear, therefore, that murder, whether resulting under the special circumstances first detailed or evincing the state of mind afterwards described, is "murder in the first degree," without regard to any extraneous consideration, and that the determining element in either case is the existence of the reprobated state of mind in the murderer, and not the measure of success that attended its accomplishment. The court correctly instructed that, if the death of R. resulted from a pistol shot intended by the defendant for another person, defendant's guilt and the degree of guilt was to be determined precisely the same as if the bullet had killed the person for whom it was intended. State v. Bectsa, 58 Atl. 933, 935, 71 N. J. Law, 322.

Ballinger's Ann. Codes & St. § 6800 (Pierce's Code, § 2091), abolishes all forms of pleading in criminal acts theretofore existing. Section 6850, subd. 6 (Pierce's Code, § 2103), provides that an information shall be sufficient if it can be understood therefrom that the act or omission charged is clearly and 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, § 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 the statute, have a well-defined legal meaning, and in drawing an information charg ing murder in the first degree, if the perpetration or attempt to perpetrate the included crimes is pleaded in the language of the statute without setting forth the acts constitut-or for a minute, but that it is enough that ing the crimes, it is a sufficient compliance with section 6850 (Pierce's Code, § 2103). State v. Fillpot, 98 Pac. 659, 661, 51 Wash.

223.

An information, on the oath of the prosecuting attorney, alleging that on January 13, 1905, in P. county, Mo., defendants did make an assault on deceased, and did feloniously, willfully, deliberately, premeditatedly, and of their malice aforethought shoot deceased with a pistol loaded with bullets and gunpowder, thereby inflicting on deceased a mortal wound described, of which deceased shortly thereafter died, was sufficient to charge first-degree murder. State v. Barnett,

102 S. W. 506–509, 203 Mo. 640.

"Murder in the first degree," as defined by Pen. Code, § 1044, subd. 1, is the killing of a human being when committed "from a deliberate and premeditated design to effect the death of the person killed, or of another," is broad enough to embrace murder in the second degree, as defined in the same statute. People v. Schleiman, 90 N. E. 950, 952, 197

N. Y. 383.

Under Rev. Codes, §§ 8290, 8292, 8295, defining murder as the unlawful killing of a human being with malice aforethought, and murder in the first degree as all murder perpetrated by any kind of willful, deliberate, and premeditated killing, and manslaughter as the unlawful killing of a human being without malice, murder in the first degree includes manslaughter, and an information charging murder justifies a conviction of manslaughter within section 9326, authorizing the jury to convict of a lesser offense included in the offense charged. State v. Crean, 114 Pac. 603, 605, 43 Mont. 47, Ann. Cas. 1912C, 424.

An instruction on a trial for homicide that murder in the first degree consists in the taking of a human life with intent to kill and with deliberation and premeditation; that it is not necessary that deliberation and premeditation should continue for an hour

the design to kill be fully formed and purposely executed; and that the elements constituting the crime are an intent to kill and an execution of that intent with deliberation and premeditation-properly defines murder in the first degree. State v. Lang, 66 Atl. 942, 945, 75 N. J. Law, 1.

An indictment for homicide charging that accused feloniously, willfully, deliberately, premeditatedly and of his malice aforethought assaulted deceased with a pistol, which he feloniously, willfully, deliberately, premeditatedly and of his malice aforethought discharged against and upon him, thereby feloniously, willfully, deliberately, and premeditatedly striking, penetrating, and mortally wounding deceased, of which mortal wound he instantly died, sufficiently charges the offense of murder in the first degree. State v. Clay, 100 S. W. 439, 441, 201 Mo. 679.

An instruction that if the jury believes from the evidence that the defendant shot and killed L. as charged, and that at the time, or before the shot was fired, the defendant had formed in his mind the willful, premeditated, and deliberate design or purpose to take the life of the deceased, and that the shot was fired in furtherance of that design or purpose, and without any justifiable cause or legal excuse therefor, as explained in these instructions, then the jury should find the defendant guilty of "murder in the first degree" sufficiently defines that offense. State v. McCarver, 92 S. W. 684, 691, 194 Mo. 717.

Comp. Laws 1907, § 4159, defines murder as "the unlawful killing of a human being 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 arouse in accused passion, and that while under its influence he killed decedent, he was guilty of voluntary manslaughter only, an instruction that if sufficient time elapsed for accused's passion to subside before the kill

take the life" of a person named, shot and killed him. The undisputed evidence at the trial showed that the murder was committed during an attempt to perpetrate a robbery, and the evidence of accused was to the effect that the killing was due to an uninten

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