in the woods while the parties were hunting. Both had whisky with them, and accused admitted that he was a little drunk at the time of the shooting. There was no motive for the killing. The evidence showed a quarrel between them after a deer had been killed.

Held to justify a finding of "murder in the second degree" within St. 1898, § 4339, defining murder in the second degree, as a killing perpetrated by any act imminently dangerous to others and evincing a depraved mind, though without any premeditated design to effect the death, instead of finding him guilty of murder in the first degree. Where the case was one where the jury might conclude from the evidence beyond a reasonable doubt that murder either in the first or second

degree had been committed, but, not being wholly convinced that the greater offense had been perpetrated, the jury properly gave accused the benefit of the doubt, and found him guilty of murder in the second degree. Lillystrom v. State, 132 N. W. 132, 133, 146 Wis. 525.

Malice

Pen. Code 1895, art. 710, provides that every person who shall unlawfully kill any person with malice aforethought, either press or implied, shall be guilty of murder, and that all murder committed in the perpetration of robbery is murder in the first degree, and that all murder not of the first degree is murder of the second degree. White's Ann. Code Cr. Proc. art. 554, provides that, if the defendant pleads guilty, he shall be admonished of the consequences of such plea, and no such plea shall be received unless it appears that he is sane and is uninfluenced by fear or hope of pardon. Article 555 provides that where a defendant in a case of felony persists in pleading guilty, if the punishment of the offense is not absolutely fixed by law, a jury shall be impaneled to assess the punishment on evidence submitted to enable them to decide thereon. Pen. Code 1895, art. 712, provides that, if a person pleads guilty to murder, a jury shall be summoned to find of what degree of murder he is guilty. Held, that when an accused pleaded guilty of murder, and his plea was accepted by the court after examination, and evidence was introduced before a jury which conclusively showed that the murder was committed in the perpetration of robbery, the court was not compelled to submit the issue of second degree murder, under article 712. Neither was the court in error in not defining for the jury murder in the first degree., Miller v. State, 126 S. W. 864, 865,

58 Tex. Cr. R. 600.

Intent

Where there was a fixed purpose to do bodily harm, without killing, and death resulted, it was "murder of the second degree." State v. Taylor, 50 S. E. 247, 252, 57 W. Va. 228.

A charge that, when an unlawful killing is established, and the facts neither show express malice nor tend to mitigate, excuse, or justify the act, the law implies malice, and the killing constitutes "murder in the second degree," is a correct definition of murder in the second degree. Burns v. State (Tex.) 145 S. W. 356, 364.

"The crime of 'murder in the second degree' necessarily involves an act done with malice aforethought, but that term, used in defining the crime, is technical rather than descriptive. It does not necessarily require an intent to murder. Malice aforethought may be implied where there is no intent to kill but an intent to commit a felony, from which death results, although that result is unintended. That death resulting from a criminal attempt to commit an abortion constitutes murder in the second degree is in this state well settled." State v. Gibbons, 120 N. W. 474, 475, 142 Iowa, 96.

An instruction with reference to "murder in the second degree" that malice was not an essential ingredient of that offense, the distinguishing feature being that in murder yond a reasonable doubt, while in murder in in the first degree malice must be proved bethe "second" degree malice will be implied from an unlawful killing, where the facts do not reduce it to manslaughter, that implied malice is that which the law infers from certain acts, however suddenly done, as when the fact of an unlawful killing is established, and there are no facts which establish the existence of express malice, and none which

designate in the statute, which meant the keeping of an instrument with the intention of the dramshop keeper to perform on it himself or engaging some one else to do so; the word "having" in the phrase "having the same performed on" not being synonymous with "permitting," but importing making an arrangement to have an act done. ThiebesStierlin Music Co. v. Weiss, 121 S. W. 1099,

1101, 142 Mo. App. 598.

A mechanical piano player is a "musical instrument." Eolian Co. v. Hallett & Davis Piano Co., 134 Fed. 872, 880.

MUSICIAN

As servant, see Servant.

MUST

Words like "may," "must," "shall," etc., are constantly used in statutes without intending that they shall be taken literally, and in their construction the object evidently designed to be reached limits and controls the literal import of the terms and phrases employed. Fields v. United States, 27 App. D. C. 433.

As mandatory

May construed as must, see May.

The word "must" is not always to be construed as mandatory. It has been construed as directory only. People ex rel. Jerome v. Goff, 98 N. Y. Supp. 66, 67, 49 Misc. Rep. 72 (citing In re Hennessy, 58 N. E. 446, 164 N. Y. 393).

"It is true the word 'must' is sometimes construed as 'may'-permissive-but this only when the context requires it. Where the context plainly shows the provision to be mandatory, the word 'must' is a command, and cannot be construed as permissive, but must be given the signification which it imparts." Gibbs v. Gibbs, 73 Pac. 641, 653, 26 Utah, 382.

Const. art. 2, § 20, declaring that "the style of the laws of this state shall be," etc., is mandatory and must be complied with; the word "shall" being equivalent to "must.' State ex rel. Gouge v. Burrow, 104 S. W. 526, 529, 119 Tenn. 376, 14 Ann. Cas. 809.

The word "must," in Code Civ. Proc. § 483, providing that, where the complaint sets forth two or more causes of action, the statement of the facts constituting each cause of action "must" be separate and numbered, and section 507 providing that defendant may set forth as many defenses as he has, and that each defense "must" be separately stated and numbered, is a mandatory word, and the provisions are mandatory, and the court cannot disregard them. Stern v. Marcuse, 103 N. Y. Supp. 1026, 1027, 119 App. Div. 478.

As used in Rev. St. 1899, § 2627, prescribing the order of trial in criminal cases, and providing that the prosecuting attorney

must first state the case, the word "must" is used in a mandatory or imperative sense. Hence it is not permissible for hired counsel to open and close to the jury on behalf of the state. State v. Price, 85 S. W. 922, 923, 111 Mo. App. 423.

In a statute providing for a hearing and determination of by the Supreme Court of an election contest, the provision that, on the presentation of the petition, the court "must' proceed to a summary canvass of the vote" should not be construed as depriving the court of its discretion to determine whether the petition presented facts justifying such action. Metz v. Maddox, 105 N. Y. Supp. 702, 708, 121 App. Div. 147 (concurring opinion of Judge Rich).

The word "must," in Municipal Court Act, § 25, subd. 5, providing that actions to recover a penalty or a fine for a violation of any provision of the Sanitary Code must be brought in the district where the violation happened or occurred, when that subdivision is read in connection with subdivision 4, providing that, if an action is brought in a different district, it may nevertheless be tried therein unless transferred to the proper district before trial on demand of the defendant made on or before joinder of issue, is not mandatory in the sense of taking away jurisdiction from a court other than the one specified as the place of trial, but simply gives the defendant an absolute right of removal to the proper district, if demand is made at the proper time and in the proper way. Department of Health of City of New York v. Halpin, 81 N. Y. Supp. 679, 681, 40 Misc. Rep. 243.

The word "must," as used in Pol. Code, court must give each juror, when excused § 4645, providing that the clerk of the district from service, a certificate, signed by himself under seal, stating the amount due him, etc., and on its presentation to the county treasurer the amount must be paid, etc., indicates that the duty of the clerk becomes imperative as soon as a juror is entitled to his pay, and that the duty of the treasurer is imperative as soon as a certificate properly issued by the district court is presented to him. Ex parte Farrell, 92 Pac. 785, 786, 36 Mont. 254.

Code Cr. Proc. § 466, provides that: "The application for a new trial 'must' be made before judgment, except an application made under subdivision 7 of section 465, which may be made at any time within one year, and except in case of a sentence of death, when the application may be made at any time before execution." The court says: "The learned judge at special term in his opinion herein said: Not always is the word 'must' to be construed as mandatory." "That is quite true, but, considering the history of these provisions, the prior state of the law, and that new trials in criminal cases are per

causes beyond control of the parties shall be "always mutually excepted," cannot be construed in the sense of reciprocal in respect to the same broken engagement, but should be understood as meaning that the exception was intended to protect the parties from liability to each other, whenever performance of any covenant was prevented or delayed by any exception. Pool Shipping Co. v. Samuel, 200 Fed. 36, 118 C. C. A. 264.

MUTUAL ACCOUNTS

An account of a miller for supplies furnished on the credit of a physician, pursuant to his orders, and an account of the physician for professional services rendered the miller and his family during the period of the furnishing of the supplies, consist of reciprocal demands constituting a mutual current account, within Code Civ. Proc. § 386, declaring that a cause of action on a mutual current account accrues from the time of the last item proved in the account on either side. Miller v. Longshore, 131 N. Y. Supp. 1041, 147 App. Div. 214.

An account of loans between the lender and the borrowing firm, kept on the firm's books or on slips of paper, did not constitute a "mutual, open, and current account," within Code Civ. Proc. N. Y. § 386, providing that in an action to recover a balance due on a mutual, open, and current account, where there have been reciprocal demands between the parties, the cause of action was deemed to have accrued from the time of the last item proved in the account on either side. In re Girvin, 160 Fed. 197.

That one party kept one side of the account and the other party the other side thereof is immaterial in determining whether there were mutual accounts. Lapham v. Kansas & Texas Oil, Gas & Pipe Line Co., 123 Pac. 863, 87 Kan. 65, Ann. Cas. 1913D, 813.

A current account kept by a husband of his transactions with his wife's money does not constitute a "mutual account," nor is an account mutual where it simply contains items of money, received and paid, nor one in which there were but three items of credit during a period of five years; cash items being also held to form no part of a mutual, open, and running account. In re Girvin, 160

Fed. 197.

counts are made up of matters of set-off, and there must be a mutual credit founded on a subsisting debt on the other side, or an express or an implied agreement for a setoff of mutual debts. Culver v. Newhart, 123 Pac. 975, 18 Cal. App. 614.

A bill alleging damages to property growing out of the laying of a pavement and change of grade and praying for an accounting, alleging that it was necessary to raise plaintiff's residence, surface her yard, and various other things, does not state a cause wherein "the accounts to be investigated are mutual," within Const. 1890, § 161, relating to causes of which the chancery court and circuit courts have concurrent jurisdiction. Murphy v. City of Meridian (Miss.) 60 South. 48.

Where an officer of a corporation, acting as general manager with the knowledge and consent of the other officers and others interested, kept the books of the corporation in the usual course of business, and during the period of his service as manager credited himself from time to time with salary and charged against such credits items of cash received from time to time during such period, the account between him and the corporation was a "mutual, open account," within Rem, & Bal. Code, § 166, declaring that in an action on a mutual, open account the cause of action accrues from the time of the last item proved in the account on either side; there being nothing to show that the officer had not actually received the amounts charged from time to time. Blom v. Blom Codfish Co., 127 Pac. 596, 71 Wash. 41.

Items on both sides required

Under Rev. St. § 4226, providing that the cause of action for the balance due on a mutual and open account current accrues at the time of the last item proved therein, it is proper to charge that such an account "is an account consisting of credits as well as debits, charges, and credits, between the par

ties. An account in which A. charges B. with a number of items extending through a considerable time, but in which B. has no credits, is not a 'mutual and open account current.'" Dunn v. Howard, 41 N. W. 707, 73 Wis. 545 (citing and adopting Hannon v. Engelmann, 5 N. W. 791, 49 Wis. 282; Fitzpatrick v. Estate of Phelan, 16 N. W. 606, 58 Wis. 254).

Payments alone insufficient

The claim for services and the 47 items of expenses set forth in the petition, with proper credits of payments thereon, constitute one account only. The answer challenges the correctness of the charge for services and of the items of expenses therein, and sets

correct, should have been included in the account. Held, that no "mutual accounts" were involved. Lapham v. Kansas & Texas Oil, Gas & Pipe Line Co., 123 Pac. 863, 87 Kan.