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result, in the absence of any explanatory cir- , material; that the intent was understood to cumstance or circumstances rendering the be premeditated because without mental achomicide excusable or justifiable, or criminaltion the purpose could not be formed; that, in some degree less than the highest, or cre- when there were no circumstances to prevent ating a reasonable doubt in regard to one of the presumption, the law would presume that such contingencies, the law presumes that he the unlawful act was intentional and maliintended the result effected, and he is guilty cious; that, in the absence of evidence to of murder in the first degree. Cupps v. State, the contrary, he who takes the life of another 97 N. W. 210, 214, 120 Wis. 504, 102 Am. St. by some act naturally calculated to produce Rep. 996.

death would be presumed to have intended Pen. Code 1901, $ 172, declares that "mur- that result and to be guilty of murder in the der" is the unlawful killing of a human be first degree, it being presumed that such pering with malice aforethought. Such malice son intended the result that followed, and is express or implied. Section 173 declares must be guilty of murder in the absence of that all murder perpetrated by poison or by evidence that the homicide was justifiable or any other kind of willful, deliberate, and pre-doubt on the question; thus that where ac

excusable or such as to raise a reasonable meditated killing, or which is committed in the perpetration of certain crimes, is murder cused fired a shot, the weapon being aimed at in the first degree, and all other kinds of a vital part of the body, and death ensued murder are in the second degree. Held, that as a natural result, the presumption of fact the word "other" in section 173 was used to as to the intention to take life, in the absence

of any explanatory circumstances, makes a supply the sense of addition to the enumera

prima facie case for the prosecution, the tion; and hence an instruction that it was not essential to a verdict of murder in the state not being required to negative any probfirst degree by poison that there should be ing the homicide below that of murder in the

ability that there were circumstances reducproof that defendant administered the poison first degree, or excusing or justifying it. to decedent with a specific intent to kill him Held, that such charge was correct in so far was proper; malice being implied. Eytinge v. Territory, 100 Pac. 443, 445, 12 Ariz. 131. degree under the facts proved. Hedger v.

as it related to statutory murder in the first Penal Law (Consol. Laws, c. 40) $ 1044, State, 128 N. W. 80, 90, 144 Wis. 279. subd. 1, provides that the killing of a human being is "murder in the first degree" when

Malice or motive committed from a deliberate and premeditat- Malice is an essential element of "mured design to effect the death of the person der in the first degree." State v. Reese (Del.) killed or of another. Subdivision 2 provides | 79 Atl. 217, 220, 2 Boyce, 434. it is murder in the first degree when committed without a design to effect death while it must be shown that the killing was com

To establish "murder of the first degree,” in the commission of a felony. Section 610 provides that, upon the trial of an indict- State v. Borrelli (Del.) 76 Atl. 605, 606, 1

mitted with express malice aforethought. ment, the prisoner may be convicted of the

Boyce, 349. crime charged therein or of a lesser degree of the same crime. Held, that although mur.

First degree murder is included within der in the first degree as defined by section the term “felonious homicide” and malice is 1044, subd. 1, is broad enough to embrace an essential ingredient thereof. State v. murder in the second degree or manslaughter Russo (Del.) 77 Atl. 743, 745, 1 Boyce, 538. in either degree, where accused was tried for "Murder of the first degree” is where the murder under section 1044, subd. 2, the power killing was done with malice aforethought. of the jury to convict of a lesser degree could State v. Primrose (Del.) 77 Atl. 717, 719, 2 not be exercised, since an intent to kill is not Boyce, 164. a necessary ingredient to the crime, and it

"Murder in the first degree" occurs where was enough to show beyond a reasonable the killing was done with express malice doubt that the killing was done in commit- aforethought. State v. Reese (Del.) 79 Atl. ting or attempting to commit a felony. Peo- 217, 221, 2 Boyce, 434. ple v. Schleiman, 90 N. E. 950, 951, 197 N. Y. 383, 27 L. R. A. (N. S.) 1075, 18 Ann. Cas.

“Murder of the first degree" exists where 588.

the killing is done with express malice aforeIn a prosecution for statutory murder in thought, and express malice aforethought exthe first degree, the state claimed that accus- ists where the killing is done with a sedate, ed killed deceased with premeditated design. State v. Brelawski (Del.) 84 Atl. 950, 952.

deliberate mind and formed design to kill. The court charged that premeditated design was simply an intent to kill, that "design" "Murder of the first degree” is committed meant "intent,” and that both words implied when the killing is done with express malice premeditation, that premeditation did not aforethought; that is, with a sedate, deliberexclude sudden intent, and that whether it ate mind, and formed design to kill. State v. be described by the words "actual intent," Miele (Del.) 74 Atl. 8, 9, 1 Boyce, 33; State “design," or "premeditated design” was im- v. Uzzo (Del.) 65 Atl. 775, 777, 6 Pennewill, 212; State v. Short (Del.) 82 Atl. 239, 241, , specific intent to kill is essential to the of2 Boyce, 491.

3 WDS. & P.20 SER.-32

fense in the first degree. Reed v. State, 145 If a person puts poison in flour with in- S. W. 206, 208, 102 Ark. 525. tent that it shall be cooked and eaten by B., The distinction between murder in the but it is eaten by C., who dies therefrom, first and second degrees is that in “murder in such person will be guilty of murder, though the first. degree" a specific intent to take life he had no malicé against C. Chelsey y. State, must be shown, while in murder in the second 49 S. E. 258, 259, 121 Ga. 340.

degree it is not necessary to prove such inAn instruction that, if any person in the tent. Petty v. State, 89 S. W. 465, 466, 76 perpetration, or in the attempt to perpetrate,

Ark. 515. a robbery shall take the life of the person in- Under Kirby's Dig. 8 1766, declaring that tended to be robbed, he is guilty of “murder all murder by means of poison, lying in wait, in the first degree" is erroneous as eliminat- or other malicious or premeditated killing, or ing malice. Oates v. State, 103 S. W. 859, which shall be committed in the perpetration 860, 51 Tex. Cr. R. 449.

or attempt to perpetrate arson, rape, rob"Murder," within Rev. St. 1908, § 1624, bery, burglary, or larceny, shall be deemed cl. 4, providing that murder perpetrated by murder in the first degree,” when the fact any act greatly dangerous to the lives of oth of killing alone is proved, it will be presumed ers, but indicating a depraved mind regard that the crime is murder in the second de less of human life, shall be “murder in the gree. Ferguson v. State, 122 S. W. 236, 237,

92 Ark. 120. first degree,” is such as is committed by an act greatly dangerous to the lives of persons Where there exists a design deliberately other than the one killed, and showing a formed in the mind of accused to take life, reckless disregard of human life; and it and death ensues from his act, the homicide therefore does not include a killing resulting is “murder in the first degree"; but where from intentional shooting of the individual there exists no design to take life, but death slain, and where there is no element of what results from an unlawful act of violence, and is termed "universal malice" shown. Longi- there is no adequate provocation, the hominotti v. People, 102 Pac. 165, 168, 46 Colo. 173 cide is murder in the second degree State (citing and adopting Darry v. People, 10 N. Y. v. Honey (Del.) 65 Atl. 764–766, 6 Pennewill

, 120; Mitchell v. State, 60 Ala. 26; Jewell v. 148. Territory, 43 Pac. 1075, 4 Okl. 53; and Gold- The statute, providing that all murder ing v. State, 8 South. 311, 26 Fla. 530). in robbery or in the perpetration of robbery

Revisal 1905, § 3631, declaring that mur- is “murder in the first degree,” eliminates der by means of poison, lying in wait, etc., murder in the second degree in homicide or by any other kind of willful, deliberate, or committed in robbery or in the perpetration premeditated killing, shall be murder in the of robbery, and the killing of one in the perfirst degree, and that all other kinds of mur- petration of the robbery of another is "murder shall be murder in the second degree, der in the first degree." Milo v. State, 127 classifies the different kinds of murder at S. W. 1025, 1029, 59 Tex. Cr. R. 196. common law, without giving any new defini- Revisal 1905, § 3631, declaring that mur. tion, and the malice essential to constitute der by means of poison, lying in wait, etc., murder in the first degree need not arise or by any other kind of willful, deliberate, from personal ill will, but may exist where or premeditated killing, shall be "murder in there has been a wrongful and intentional the first degree," and that all other kinds of killing without lawful excuse or mitigating murder shall be "murder in the second decircumstances. State v. Banks, 57 S. E. 174, gree," classifies the different kinds of mur176, 143 N. C. 652.

der at common law, without giving any new Murder may be committed without any

definition. State v. Banks, 57 S. E. 174, 176, motive. It is the intention, deliberately 143 N. C. 652. formed after premeditation, so that it be- The degree of murder under the statute comes a definite purpose to kill, and a conse declaring that murder perpetrated by any quent killing without legal provocation or ex- kind of willful, deliberate, and premeditated cuse, that constitutes “murder in the first de killing shall be "murder in the first degree," gree." The existence of a motive may be and all other kinds of murder shall be murevidence to show the degree of the offense, or der in the second degree, depends on the to establish the identity of the defendant as question whether the crime was willful, dethe slayer; but motive is not an essential liberate, and premeditated, and on that ques. element of the crime, nor is it indispensable tion it becomes material whether accused to a conviction of the person charged with was in such a condition of mind by reason its commission. State v. Adams, 50 S. E. of intoxication as to be incapable of delibera765, 768, 138 N. C. 688.

tion and premeditation. Brennan v. People, Murder in second degree distinguished 86 Pac. 79, 81, 37 Colo. 256.

"Murder in the first" and "murder in the The characteristic quality of "murder in second degree” are distinguished, in that the first degree," and that which distinguish

es it from murder in the second degree orsing." Held that, if the instructions stood any other homicide, is the existence of a set- alone, the latter part of the paragraph might tled purpose and fixed design on the part of be erroneous, but as it was followed by an the assailant that the act of assault should instruction defining malice as being that result in the death of the party assaulted; which the law Infers from certain acts, howthat death being the end aimed at, the ob- ever suddenly done, as when the fact of an ject sought for and wished. The distinctive unlawful killing is established and the facts characteristic of murder in the first degree do not establish malice beyond a reasonable is premeditation. When the act of killing is doubt, though they tend to excuse or justify not done in the commission or attempt to the act, then the law implies malice, and the commit some felony nor by poison, or lying murder is murder of the second degree, and in wait, the killing must be done willfully, also that if the killing is unlawful and done deliberately, maliciously, and with premedita- with implied malice aforethought, it would tion. Turner v. State, 108 S. W. 1139, 1142, be murder in the second degree, the instruc119 Tenn. 663, 15 L. R. A. (N. S.) 988, 123tions taken together were correct. EgglesAm. St. Rep. 758, 14 Ann. Cas. 990 (quoting ton v. State (Tex.) 128 S. W. 1105, 1109. Dale v. State, 10 Yerg. (18 Tenn.) 551 ; Swan

The next lower grade of culpable homiv. State, 4 Humph. [23 Tenn.) 136; Lewis v. cide than “murder in the first degree" is State, 3 Head [40 Tenn.) 148).

“murder in the second degree.” Malice is A willful, deliberate, and premeditated also a necessary ingredient of the offepse killing, or a killing done in the perpetration, of murder in the second degree. The disor attempted perpetration, of robbery, is tinguishing feature, however, so far as the "murder in the first degree.” Otherwise a element of malice is concerned, is that in killing is "murder in the second degree,” | murder in the first degree malice must be where accused unlawfully and with malice proved to the satisfaction of the jury beaforethought killed decedent, and in deter- yond a reasonable doubt as an existing fact, mining the degree any evidence of the men while in murder in the second degree malice tal status of accused is proper. State v. will be implied from the fact of an unlawJohnny, 87 Pac. 3, 8, 29 Nev. 203.

ful killing. Implied malice is that which the An unlawful killing, done purposely and law infers from or imputes to certain acts, with deliberate and premeditated malice, is however suddenly done. Thus, when the fact "murder in the first degree,” and it matters of an unlawful killing is established, and the not how short the time may be between the facts do not establish express malice beyond time of the formation of the purpose to kill a reasonable doubt, nor tend to mitigate, exand its execution, if the person committing cuse, or justify the act, then the law implies the crime has deliberated upon it. "Murder malice, and the murder is in the second dein the second degree" consists in an unlaw. gree, and the law does not further define ful killing done purposely and maliciously, murder in the second degree than if the killbut without deliberation and premeditation, ing is shown to be unlawful, and there is Hamblin v. State, 115 N. W. 850, 853, 81 nothing in evidence on the one hand showing Neb. 148, 16 Ann. Cas. 569.

express malice, and, on the other hand, there

is nothing that will reduce the killing below The only essential difference between the grade of murder, then the law implies "murder in the first degree" and "murder in malice, and the homicide is murder in the the second degree” is that the former is com- second degree. Dobbs v. State, 113 S. W. mitted after deliberation and premeditation, 923, 927, 54 Tex. Cr. R. 550. which elements do not inhere in the lower grade of the crime, but all the elements of MURDER IN SECOND DEGREE murder in the second degree are included in As felonious homicide, see Felonious the statutory definition of murder in the Homicide. first degree. To render one who is not pres

All murder not of the first degree is ent and does not aid or assist in a murder murder of the second degree.” Waters v. guilty thereof, by reason of a former con- State, 114 S. W. 628, 632, 54 Tex. Cr. R. 322. spiracy with the slayer, it must appear that the murder was within the contemplation of

By Pen. Code, $ 352, "murder of the secthe conspiracy, or was the natural and prob- ond degree" is all murder which does not able outcome thereof. State v. Keleher, 87 amount to murder of the first degree. State Pac. 738, 739, 74 Kan, 631.

v. Hliboka, 78 Pac. 965, 966, 31 Mont. 455, 3

Ann. Cas. 934. In a prosecution for murder, the court charged that “malice is also necessary to

"Murder of the second degree" is all murder in the first degree. The distinguish- murder not murder in the first degree, as ing feature, so far as malice is concerned, is defined by Rev. St. 1887, § 6562. State v. that, in murder of the first degree, malice Phinney, 89 Pac. 634, 13 Idaho, 307, 12 L. R. must be proven to your satisfaction beyond a A. (N. S.) 935, 12 Ann. Cas. 1079. reasonable doubt as an existing fact, while To render one guilty of "murder in the in murder of the second degree malice will second degree,” he must have inflicted an be implied from the fact of an unlawful kill-I act of violence on decedent which produced

death, with the intention to kill decedent or "Murder in the second degree" is constito do an act of violence from which ordina- tuted by the absence of express malice upon rily, in the usual course of events, death or one side and extenuating circumstances or great bodily harm might result. Fowler v. self-defense or adequate cause upon the other. State, 49 South. 788, 789, 790, 161 Ala. 1. Wheeler v. State, 121 S. W. 166, 167, 56 Tex.

“The law requires that, before a homi- Cr. R. 547. cide can be ‘murder in the second degree,' it “Murder in the second degree" consists must be unlawfully done, and upon malice design to take life, and without provocation aforethought." Thomas v. State, 74 S. W. of the killing of another without a forined 36, 38, 45 Tex. Cr. R. 111.

to reduce the offense to manslaughter, and

under the influence of a wicked or depraved Where one person unlawfully kills an

heart, or with cruel and wicked indifference other with implied malice, the crime is “mur

to human life. State v. Cephus (Del.) 67 Atl. der in the second degree." State v. Short

150, 151, 6 Pennewill, 160. (Del.) 82 Atl. 239, 241, 2 Boyce, 491.

Murder in the second degree is a killing Killing with implied malice constitutes with implied malice; that is, without design "murder in the second degree"; that is,

or premeditation, but under the influence of where the malice is not express, as in murder

a depraved heart and with a cruel and wickin the first degree, but is an inference or con- ed indifference to human life. State v. Uzzo clusion of law from facts proved, where there (Del.) 65 Atl. 775–777, 6 Pennewill, 212. is no deliberate mind and formed design to take life, but where the killing is done with

Murder of the second degree is where out justification or excuse, and without pro- there is no sedate, deliberate mind and formvocation, or without sufficient provocation to ed design to take life, but when the circumreduce the offense to manslaughter. State v. stances show that the homicide was commitBrooks (Del.) 84 Atl. 225, 227; Same v. Bre- ted under the influence of a wicked and delawski (Del.) 84 Atl. 950, 952; Same v. De praved heart, and with a cruel and reckless

indifference to human life. State v. Harmon Paolo (Del.) 84 Atl. 213, 214.

(Del.) 60 Atl. 866-868, 4 Pennewill, 580. Where the killing with a deadly weapon was established, or admitted, and the plea ing of a human being without a sedate, delib

“Murder in the second degree" is the killwas self-defense, the two presumptions that

erate purpose and formed design to take life, the killing was unlawful and that it was done with malice arose, and, where accused merely out justification or excuse, and without prov

but one which is committed suddenly, withrebutted the presumption of malice, the pre-ocation sufficient to reduce the crime to sumption that the killing was unlawful stood, manslaughter. State v. Mills (Del.) 69 Atl. justifying a conviction of "manslaughter,"

841, 812, 6 Pennewill, 497. which is an unlawful killing, which becomes "murder in the second degree" when it has "Murder in the second degree" is where the added element of malice. State v. Fowl- the killing is done with implied malice; that er, 66 S. E. 567, 151 N. C. 731.

is, without justification or excuse or with

out provocation or sufficient provocation to Murder in the second degree is the un- reduce it to manslaughter. State v. Tilghlawful killing of a human being with malice, man (Del.) 63 Atl. 772, 773. but without deliberation or premeditation. Miller v. State, 40 South. 47, 48, 145 Ala.

"Murder of the second degree" is where 677.

there is no deliberate mind and formed design

to take life, but where the killing is malicious, "Murder in the second degree" is the un

and without justification or excuse, without lawful killing of a human being with malice aforethought, but without deliberation, pre

provocation, or without sufficient provocation meditation, or preconcerted design to kill. to reduce the homicide to manslaughter. State v. Bradley, 24 Atl. 1053, 1055, 64 Vt. State v. Adams (Del.) 65 Atl. 510, 511, 6 Pen

newill, 178. 466. An instruction that “murder in the sec

"Murder of the second degree" is commitond degree” is the killing of a human being, ted when the killing is done with implied "willfully, premeditatedly, and with malice malice, where there is no deliberate mind or aforethought," is correct. State v. Myers,

formed design to take life or to perpetrate a 121 S. W. 131, 135, 221 Mo. 598.

crime punishable with death, but where the

killing is without justification or excuse, and "Murder in the second degree” is the kill- without sufficient provocation to reduce the ing of a human being willfully, premeditated- offense to manslaughter. State V. Miele ly, and with malice aforethought, but with (Del.) 74 Atl. 8, 9, 1 Boyce, 33; Same v. out deliberation. State v. West, 100 S. W. Brown (Del.) 61 Atl. 1077, 10-8, 5 Pennewill

, 478, 481, 202 Mo. 128.

339; Same v. Johns (Del.) 65 Atl. 763, 764, A killing with malice aforethought, but 6 Pennewill, 174. without express malice is "murder in the sec- "Murder of the second degree" occurs ond degree.” McMeans v. State, 114 S. w. where the killing is done with implied mal837, 839, 55 Tex. Cr. R. 69.

ice; that is, where there is no deliberate

mind or formed design to take life, but where shown to have been done suddenly, without the killing was done without justification or justification or excuse, and without provocaexcuse, or without provocation to reduce the tion sufficient to reduce the homicide to manoffense to manslaughter. State V. Reese slaughter or in the committing or attempting (Del.) 79 Atl. 217, 220, 2 Boyce, 434; Same v. to .commit a noncapital felony or an act Powell (Del.) 61 Atl. 966, 971, 5 Pennewill, 24. of violence from which malice is presumed.

“Murder of the second degree" is the kill- State v. Wilson (Del.) 62 Atl. 227, 230, 5 ing with implied malice, inferred from the Pennewill, 77. facts proved, where there is no deliberate "Murder in the second degree” is conmind or formed design to take life, but where stituted by the absence of express malice on the killing is done without justification or ex- one side and extenuating circumstances or cuse, and without provocation sufficient to re- self-defense or adequate cause on the other; duce the offense to manslaughter. State v. and where the one who killed another laid Russo (Del.) 77 Atl. 743, 746, 1 Boyce, 538; | in wait for him and shot him, adequate cause Same v. Roberts (Del.) 78 Atl. 305, 310, 2 and self-defense were not in the case, and the Boyce, 140.

killing could not be lower than murder in “Murder of the second degree” is when the second degree. Wheeler v. State, 121 S. the killing is done with implied malice, not W. 166, 167, 56 Tex. Cr. R. 547. with a deliberate or formed design, but with- “Murder in the second degree" is defined out justification or excuse, and without prov- in Comp. Laws 1897, § 1064, as “every murocation, or sufficient provocation to reduce der which shall be perpetrated without a dethe offense to manslaughter. State v. Prim- sign to effect the death, by a person while rose (Del.) 77 Atl. 717, 719, 2 Boyce, 164. engaged in the commission of a misdemeanor,

“Murder in the second degree" is where or which shall be perpetrated in the heat of there is no such deliberate mind and formed passion without design to effect death, but design to take life, but where, nevertheless, in a cruel and unusual manner or by means the killing is malicious and without justifica of a dangerous weapon, unless it is committion or excuse, without any provocation, or ted under such circumstances as constitute without sufficient provocation to reduce the excusable homicide or which shall be perpehomicide to the grade of manslaughter. trated unnecessarily either while resisting State v. Emory (Del.) 58 Atl. 1036, 1038, 5 an attempt by the person killed to commit Pennewill, 126.

any offense against person or property or

after such attempt shall have failed.” TerWhere there is no deliberate mind or ritory v. Hendricks, 84 Pac. 523, 524, 13 N. formed design to take life, or to perpetrate a M. 300. capital crime, but where the killing is done without justification or excuse, and without

"Murder in the second degree" is: First, provocation, or sufficient provocation to re

all murder which shall be perpetrated withduce the offense to manslaughter, it is "mur- out a design to effect death by a person while der of the second degree." State v. Borrelli engaged in the commission of a misdemean(Del.) 76 Atl. 605, 606, 1 Boyce, 349.

or; or, second, all murder which shall be

perpetrated in the heat of passion without "Murder in the second degree" is where design to effect death, but in a cruel and unthe killing was done with implied malice; usual manner, or by means of a dangerous where there was no deliberate mind or form- weapon, unless it is committed under such ed design to take life or to perpetrate a crime circumstances as constitute excusable or juspunishable with death; but where the killing tifiable homicide; or, third, all murder was done without justification or excuse and which shall be perpetrated unnecessarily, eiwithout provocation, or without sufficient ther while resisting an attempt by the person provocation to reduce the offense to man- killed to commit an offense against the perslaughter. State V. Brown (Del.) 61 Atl. son, or property, or after such attempt shall 1077, 1078, 5 Pennewill, 339.

have failed. Comp. Laws 1897, § 1064. An “Murder in the second degree” is the kill- instruction that premeditation and malice ing of a human being without a deliberately aforethought are not elements of the crime formed design to take life, or to perpetrate of murder in the second degree, and defining or attempt to perpetrate a crime punishable it as the kiling of a human being by the use with death, but without justification, excuse, of a dangerous weapon without premeditaor sufficient provocation to reduce the homi- tion and without malice aforethought, is ercide to manslaughter. State v. Collins (Del.) roneous. Territory v. Gutierez, 79 Pac. 716, 62 Atl. 224, 226, 5 Pennewill, 263; Same v. 718, 13 N. M. 138. Bell (Del.) 62 Atl. 147, 148, 5 Pennewill, 192. A killing in a combat which engenders

“Murder in the second degree” is proved hot blood is not “murder in the second dewhere it is satisfactorily shown that the gree," unless the elements of purpose and killing was done with a sedate, deliberate malice concur in the act. Osburn v. State, purpose and formed design to take life, or in 73 N. E. 601, 604, 164 Ind. 262. perpetrating or attempting to perpetrate any To constitute “murder in the second decrime punishable with death, but is usually gree" in Texas, the statute only requires that

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