354. Defense of Others. 355. Defense of Property. 356. By an Officer Resisted 357. According to Lawful Sentence. 358. By Misadventure. 359. Other Defenses. 360. Defendant, when Discharged. 361. Burden of Proof. 362. Petit Treason. 363. Murder by Arson. 366. Murder by Producing a Miscarriage. 368. Murder by an Accessory. 369. Manslaughter-Defined. 370. Voluntary. 371. Involuntary. 372. Punishment. 373. Evidence in a Case of Manslaughter. 374. Cases Collected Illustrating the Difference between Murder and Manslaughter. 375. Unintentional Killing in doing an Unlawful Act. 376. Continued-Illustrations-Negligence. 1. MURDER. § 321. Provisions of the Statute. "Murder is the unlawful killing of a human being, in the peace of the people, with malice aforethought, either express or implied. The unlawful killing may be perpetrated by poisoning, striking, starving, drowning, stabbing, shooting, or any other of the various forins or means by which human nature may be overcome, and death thereby occasioned. Express malice is that deliberate intention unlawfully to take away the life of a fellow creature, which is manifested by external circumstances capable of proof. Malice shall be implied when no considerable provocation appears, or when all of the circumstances of the killing show an abandoned and malignant heart.” $322. Continued Punishment. "Whoever is guilty of murder, shall suffer the punishment of death, or imprison 'R. S., 374, § 140. ment in the penitentiary for his natural life, or for a term not less than fourteen years. If the accused is found guilty by a jury, they shall fix the punishment by their verdict. Upon a plea of guilty, the punishment shall be fixed by the court." $323. Continued - Time of Death. "In order to make the killing either murder or manslaughter, it is requisite that the party die within a year and a day after the stroke received or the cause of death administered, in the computation of which the whole of the day on which the hurt was done shall be reckoned the first."2 STATEMENT OF THE OFFENSE OF MURDER." (Commence as in form on page 35) that C. D.,' on, etc., at, etc., in the said county, did unlawfully, feloniously and willfully, with malice afore 'R. S., 374, $142. 2 3 Id., § 147. with force and arms." R. S., For form of an indictment for murder, by inoculating with the virus of small-pox, see Fairlee v. People, 11 Ills., 1; for another form for murder by striking, see Jackson v. People, 18 Ills., 269: State v. McCormick, 27 Iowa, 403; State v. Watkins, 27 Iowa, 415; State v. Boyle, 28 Iowa, 522. 'It is not necessary to insert the words 408, 411; 3 Chitty Cr. L., 733; 7 T. R.; 1 Keb, 652; 2 Hawks P. C. C., 25, $90; 1 Bish. Cr. P., § 502; or “not having the fear of God before his eyes," or "being moved and seduced by the instigation of the devil." 1 Chitty Cr L., 239, 240; 1 Bish. Cr. P., § 501. 'Possibly not necessary. Perry v. People, 14 Ills., 497; 1 Chitty Cr. L., 241; Rex v. Young, 1 Russ., 391; Jerry v. State, 1 Blackf., 396; State v. Bray, 1 Mo., 180; Curtis v. People, 1 Breese, 197, 2d Ed., 256; Fairlee v. People, 11 Ills., 1; but it is advisable to insert it in an indictment, Curtis v. People, Breese, 199, 2d Ed., 256; 1 Scam., 285; and it is used in the statute, R. S., 374, § 140. At common law the word "feloniously" was necessary. 2 Hale P. C., 184, 185; 3 Hale P. C., 187; 1 Arch. C. P. & Pl., 301; Rex v. Dearing, Cro. Eliz., 193; Fairlee v. People, 11 Ills., 1; Curtis v. People, 1 Breese, 199, 2d Ed., 256; 1 Scam., 288; Jackson v. People, 18 Ills., 269; Jane v. State, 3 Mo., 6; State v. Murdock, 9 Mo., 730; State v. Gilbert, 24 Mo., 380; Williams v. State, 8 Humph., 585. 15 thought,' assault and then and there unlawfully, feloniously and wilifully with malice aforethought did strike' one Flora Temple," a human being," in The word "willfully" is usually inserted in compliants, Barb. Cr. L., 521; Haines T., 276-7, and in indictments, 1 Arch. C. P. & Pl., 881; 3 Chitty Cr. L., 750; 2 Bish. Cr. P., $541; Jackson v. People, 18 Ills., 261; Lake v. People, 1 Park. Cr. R., 496. If, however, the word “feloniously" is inserted, it is said to be unnecessary to use the word "willfuliy," Rex. v. Haydon, 4 Co., 41a, but advisable to insert it, 2 Bish. Cr. P., $$ 543, 546. The omission of the words "with malice aforethought" will make the offense manslaughter" instead of murder. 3 Chitty Cr. L., 750, n. p. ; 1 Arch. C. P. & Pl. 301 ; State v. Nealy, 20 Iowa, 108; Sarah v. State, 27 Missis., 268; Com. v. Gibson, 2 Va. C., 70; State v. Duvall, 26 Wis., 415; Fouts v. State, 4 Greene Iowa, 500; but see Anderson v. State, 5 Pike, 445. Where the killing is charged to have been from a battery, it is said to be necessary in an indictment to aver an assault. 1 Arch. C. P. & Pl., 885; Lester v. State, 9 Mo., 665. Yet in one case, where the killing was by shooting, it was held that the word "assault" was not absolutely essential. 2 Bish. Cr. P., §513; Reed v. State, 8 Ind.. 200. The allegations "feloniously," etc., apply to the stroke as well as to the assault, and it is not necessary to repeat them before the word "strike." 1 Bish. Cr. P., § 574; Rex. v. Nicholson, 1 East P. C., 346; State v. Owen, 3 Murph., 7; State v. Rabon, 4 Rich., 260; Maile v. Com., 9 Leigh, 661; Heydon's Case, 4 Co., 41a; contra, Resp. v. Honeyman, 2 Dall., 228; State v. Watkins, 27 Iowa, 415; State v. McCormick, 27 Iowa, 402; State v. Knouse, 29 Iowa, 118, State v. Thompson, 31 Iowa, 393; and see Fairlee v. People, 11 Ills., 1. Where the death arises from any wounding by beating, or bruising, it is said that the word "struck" or "strike" is essential. 1 Chitty Cr. L., 213; 2 Bish. Cr. P., §516; Long's Case, 5 Co., 120a, 122b, 123a; State v. Owen, 1 Murph., 452; but where the blow was made with a dirk, the words "stab," "stick," and "thrust," Gibson v. Com.. 2 Va. C.. 111; or where the killing was by shooting, the words "did shoot off and discharge," State v. Freeman, 1 Speirs, 57, are equivalent to the word "strike," and sufficient. The Christian and surname of the person killed must be correctly stated if known. 2 Hawk P. C. C., 23, § 78; 2 Bish. Cr. P., 506; Davis v. People, 19 Ills., 74; Vandermark v. People, 47 Ills., 122; State v. Dudley, 7 Wis., 664; State v. Lincoln, 17 Wis., 581; State v. Kube, 20 Wis., 217; State v. Kroscher, 24 Wis., 64; contra, State v. Emigh, 18 Iowa, 123; or alleged to be unknown, or that the deceased "was not named," "not baptised," will not do, 2 Bish. Cr. P., $$ 506-511. But if described by the initials of his Christian name and he was as well known by his initials as his full name, it is sufficient. Vandermark v. People, 47 Ills., 122. It is sufficient to describe the deceased by the name by which he is commonly known. People . Freeland, 6 Cal., 96; State v. Angel, 7 Ired., 27. An error in the middle letter of the name has been held to be immaterial. People v. Lockwood, 6 Cal., 205; Miller e. People, 39 Ills., 458; Moore's Civil Justice, 436 n. 3; and see Humphrey v. Phillips, 57 Ills., 135; Erskine v. Davis, 25 Ills., 251. "None of the precedents contain the allegation that the person killed was the peace of the people, then and there being' with a certain stick, then and there held in his right hand, and did thereby then and there give her a mortal wound on the back side of her head, of which said mortal wound the said Flora Temple then and there instantly died (or “languished a short time, and then, on the day of —, A. D., 18 and there a human being, though the words are used in the statute defining the offense. In Iowa it has been held that such allegation is unnecessary. State v. Stanley, 33 Iowa, 530. 1 1 Under our statute it should be alleged that the deceased was in the peace of the people. R. S., 374, § 140; though at common law it was unnecessary, 3 Chitty Cr. L., 750, n. n; Heydon's Case, 4 Co., 40a; Com. v. Murphy, 11 Cush., 472. 'The length and thickness of the stick is sometimes stated. Jackson v. People, 18 Ills., 270; but it is not necessary or usually done. 3 Chitty Cr. L., 763. In an indictment it has been considered necessary, if the death was occasioned by an instrument in the hand of the party, to so allege, 1 Bish, Cr. P., § 515; 1 Arch. C. P. & Pl., 836, and to state the kind of instrument, and whether it was held in the right or left hand or in both, Id., Barb. Cr. L., 531. The words "in both hands" are sufficient without inserting the word "his" between the words "both" and "hands." Ward v. State, 8 Blackf., 101. It is not necessary to state the value of the instru ment used. 1 Arch. C. P. & Pl., 886; 2 Bish. Cr. P., § 505. The allegation of time and place "then and there" should be repeated to every material fact issuable and triable; 1 Chitty Cr. L., 198; Id., 218, 220; unless the fact stated necessarily refers to the time and place previously mentioned. Jackson v. People, 18 Ills., 270; Com. v. Baker, 12 Cush., 186. In an Indictment it must be alleged that the wound was mortal; 2 Bish. Cr. P., §521; 1 Hale P. C., 186; State v. Conley, 39 Me., 73; Rex v. Ladd, 1 Leach, 96; and it has been held that the length and depth of the wound must be averred, so that it may appear that it was mortal; 1 Arch. C. P. & Pl., 887; State v. Owen, 1 Murph., 452; but this doctrine has been overruled; Id.; State v. Moses, 2 Dev., 452; State v. Crank, 2 Bailey, 66; Lazier v. Com., 10 Grat., 708; Dias v. State, 7 Blackf., 20; Com. v. Woodward, 102 Mass., 155; People v. Stevenson, 9 Cal., 273; or at least it can only be urged on motion to quash the indictment, if at all; R. S., 408, § 411; Stone v. People, 2 Scam., 338. It must be alleged that the deceased died on account of the injuries inflicted. Fairlee v. People, 11 Ills., 1; Jackson v. People, 18 Ills., 269. But it is sufficient to allege that he died of the wound, and it need not be added that he died by the stroke. State v. Conley, 39 Me., 78; State v. Wimberley, 3 McCord, 190; People v. Loyd, 9 Cal., 54. died"): and so the said A. B., on his oath says that the said C. D.,' in manner and by means aforesaid, unlawfully, feloniously, and willfully, with malice aforethought, did willfully kill and murder3 the said Flora Temple' (conclude as in form on page 35). STATEMENT OF THE OFFENSE OF MURDER (WITH A KNIFE®). (Commence as in form on page 35) that C. D., on, etc., at, etc., in the said county, did unlawfully, feloniously and of his malice aforethought, with a knife then and there held in his right hand, assault and stab one G. H., a human being, in the peace of the people then and there being, and gave him several mortal wounds, of which said mortal wounds the said G. H. 'The time of both the stroke and death must be stated, that the death may appear to have taken place within a year and a day after the mortal injury, R. S., 374, § 147; 2 Hale P. C., 179; People v. Wallace, 9 Cal., 30; People v. Cox, 9 Cal., 32. And it has been said that where the killing is by a battery it is not sufficient to allege that “he instantly did die;" Whart. Cr. L., § 1065; contra, State v. Stanley, 33 Iowa, 530; but these words are used substantially in many of the approved precedents; 3 Chitty Cr. L., 752; 2 Bish. Cr. P., § 551; and we cannot see why they are not sufficient. It is said to be better to omit the averment of time and place in the conclusion where the stroke was on one day and the death on another; 2 Bish. Cr. P., § 549, 550; but in such case the insertion of the words, "then and there" has been held not to make the time uncertain; State v. Huggins, 12 Rich, 402; Woodsides v. State, 2 How, Missis., 655. The word" murder " was formerly said to be essential because used in the English statute defining the offense; 2 Bish. Cr. P., § 548; 1 Arch. C. P. & Pl., 391; 3 Chitty Cr. L., 750, n. u; Dias v. State, 7 Blackf., 20; and it would be safer to insert the word "murder" in the conclusion of an indictment, though since it is not used in our statute as in the English, it seems to be unnecessary. In another state, where the statute is like ours, it was held not to be necessary; Anderson v. State, 5 Pike Ark., 444. The omission of the name of the person killed in the conclusion has been held to vitiate the indictment. State v. Pemberton, 30 Mo., 376; Dias v. State, 7 Blackf., 20; but see State v. Moses, 2 Dev., 452. 'It is not necessary to conclude "against the statute." 2 Bish. Cr. P., SS 499, 548. For form of an indictment for murder by shooting held good, State v. Stanley, 33 Iowa, 527. While in an indictment it is considered necessary to state in what part of the body the wound was given, Jackson v. People, 18 Ills., 270; Dias v. State, 7 Blackf., 20, yet in a complaint this is not usually inserted, Barb. Cr. L., 665; Haines T., 377; and it has been held that an indictment which charged the wound to have been inflicted in and upon the body of the deceased was sufficient. Sanchez v. People, 24 N. Y., 147; 4 Park. Cr. R., 535; see State v. Green, 7 Ired., 39. |