either express or implied. Express malice is that deliberate intention unlawfully to take away the life of a fellowcreature, which is manifested by external circumstances capable of proof. Malice shall be implied when no considerable provocation appears, or when all the circumstances of the killing show an abandoned and malignant heart." Rev. Stats. (1877), § 140, p. 370. If the death of the mother results from an attempt to cause abortion or miscarriage, the person so attempting is guilty of murder. § 3, p. 349. If the life of any person be lost in consequence of an arson, the person guilty of such arson is guilty of murder. § 13, p. 351. Whoever willfully and maliciously obstructs or injures a railway or rolling-stock, or places a false signallight thereon, with intent to obstruct the use of the road or injure persons or property passing thereon, by reason whereof any person is killed, the person so offending is guilty of murder. § 186, p. 376. Whoever, by willful and corrupt perjury, or subornation of perjury, procures the conviction and execution of any innocent person, is guilty of murder. § 226, p. 383. Manslaughter is the unlawful killing, without malice express or implied, and without any mixture of deliberation whatever. It must be voluntary, upon a sudden heat of passion, caused by a provocation apparently sufficient to make the passion irresistible, or involuntary, in the commission of an unlawful act, or a lawful act, without due caution or circumspection. § 143, p. 370. The punishment of murder is death or imprisonment in the penitentiary for life, or for a term not less than fourteen years; of manslaughter, such imprisonment for life or for any term of years, the punishment to be determined by the jury, if a trial-by the court, upon a plea of guilty. SS 142, 146.

In Michigan, murder is not defined by statute; but all murder perpetrated by means of poison, or lying in wait, 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, is declared murder in the first degree; and all other kinds of murder, the second degree. Murder by reason of a duel is the same

as in Indiana. Manslaughter is not defined. The punish ment of murder in the first degree is solitary confinement at hard labor in the penitentiary for life; of murder in the second degree, imprisonment in penitentiary for life or such term of years as the court may determine; of manslaughter, imprisonment for not more than fifteen years, or fine not exceeding one thousand dollars or both. Rev. Stat. (1872), 2270-2272.

In Iowa, murder is killing any human being, with malice aforethought, either express or implied. The degrees are defined as in Michigan. Fighting a duel with deadly weapons, and inflicting a mortal wound on the antagonist, whereof death ensues, is murder in the first degree. Manslaughter is not defined. The punishment of murder in the first degree is imprisonment for life at hard labor in the penitentiary; in the second degree, imprisonment for life or for a term not less than ten years; of manslaughter, imprisonment for not more than eight years and fine not exceeding one thousand dollars.]

APPENDIX.

The importance of a clear apprehension of the state of the law as to what acts are murder, manslaughter, and nonfelonious homicide respectively, makes it not impertinent to insert the following compilation of distinctions judicially laid down on the subject, made by Sir James Stephen (Gen. View of Crim. Law, 116):—

"The following states of mind have been specifically determined to be wicked or malicious in the degree necessary to constitute murder:

"(a.) An intent to kill whether directed against the person killed or not, or against any specific person or not. "(b.) An intent to commit felony.

'(c.) An intent illegally to do great bodily harm.

(d.) Wanton indifference to life in the performance of

an act likely to cause death, whether lawful or not.

"(e.) A deliberate intent to fight with deadly weapons. "(f.) An intent to resist a lawful apprehension by any person legally authorized to apprehend.

"The following states of mind have been determined to constitute that lighter degree of malice which is necessary to the crime of manslaughter:

"(a.) An intent to kill under the recent provocation, either of considerable personal violence inflicted on the prisoner by the deceased, or of the sight of the act of adultery committed by the deceased with the prisoner's wife.

"(b.) An intent to inflict bodily injury, not likely to cause death, under a slight provocation; as when a man striking a trespasser with a slight stick, kills him.

"(c.) A deliberate intent to fight in a manner not likely to cause death, or an intent to use a deadly weapon in a fight begun without the intention to use it.

"(d.) An intent to resist an unlawful apprehension, or an apprehension of the lawfulness of which the prisoner had no notice.

"(e.) An intent to apprehend, or otherwise to execute, legal process executed with unnecessary violence.

"(f.) Negligence in doing a lawful act, or an unlawful act not amounting to felony.

"The following states of mind have been held not to be malicious or wicked at all, and when any of them exist at the time when death is caused, no crime is committed:

(a.) An intent to execute sentence of death.

"(b.) An intent to defend person, habitation, or property against one who manifestly intends, or endeavors by violence or surprise, to commit a known (i. e., apparent) felony, such as rape, robbery, arson, burglary, etc.

"(c.) An intent lawfully to apprehend or keep in custody a felon who can not otherwise be apprehended or kept in custody, or to keep the peace if it can not otherwise be kept.

"(d.) Absence of all unlawful and malicious intents or states of mind. (This is the case of accident.)"

CHAPTER II.

RAPE, ETC.

RAPE.

THE offense of carnal knowledge of a woman by force against her will.

Certain persons can not be convicted of this crime. An infant under the age of fourteen is deemed in law to be incapable of committing this offense, on account of his presumed physical incapacity. And this is a presumption which can not be rebutted by evidence of capacity in the particular case. (1) Neither can a husband be guilty of a rape upon his wife. But both a husband and a boy under fourteen may be convicted as principals in the second degree, and may be punished for being present aiding and abetting.

To constitute the offense, the act must be committed by force, and without the consent of the female. If, however, she yielded through fear of death or duress, it is nevertheless rape; for here the consent is at most imperfect. So also when she submitted under a false representation, such as that she was about to undergo medical treatment, she being ignorant of the nature of the act. (y) But the crime is not committed when the woman has consented to the act of connection under the belief that the man was her husband. In that case, however, the man may be convicted of an assault. (2) It is equally rape though the female is a common prostitute or the concubine of the prisoner; but circumstances of this nature will probably operate with the jury in their consideration as to whether there was consent. It is necessary to prove penetration, but not any thing fur

(1) This presumption can be rebutted in Ohio, by proof of actual puberty. Williams v. State, 14 Ohio, 222.

(y) R. v. Flattery, L. R. Q. B. 410; 46 L. J. (M. C.) 130.

(z) R. v. Barrow, L. R. 1 C. C. R. 156; 38 L. J. (M. C.) 20. It is doubtful whether, after the remarks of the judges in R. v. Flattery, R. v. Barrow would now be followed.

ther.(t) (1) If the prosecution fail to prove this, the prisoner may nevertheless be convicted of the attempt.

At almost every trial for this crime the words of Sir Matthew Hale are recalled: "It is an accusation easy to be made and hard to be proved, but harder to be defended by the party accused, though innocent." It will be well to estimate the decree of credibility of the testimony of the woman, for of course she is a competent witness. On this point we can not do better than remember the words of Blackstone.(u) The credibility of her testimony, and how far she is to be believed, must be left to the jury upon the circumstances of fact that concur in that testimony. For instance, if the witness be of good fame; if she presently discovered the offense and made search for the offender; if the party accused fled for it; these and the like are concurring circumstances, which give greater probability to her evidence. But, on the other side, if she be of evil fame, and stand unsupported by the testimony of others; if she concealed the injury for any considerable time after she had opportunity to complain; if the place where the fact was alleged to have been committed was where it was possible she might have been heard, and she made no outery; these and the like circumstances carry a strong, but not conclusive, presumption that her testimony is false or feigned. The prisoner may call evidence to her generally bad character for want of chastity or indecency, and of her having had connection with him previously, but not of her having had connection with others. As to the last point she may be asked the question, but is not compelled to answer it; if she denies it, the person referred to can not be called to contradict her.(x)

The punishment for this crime, which is a felony, is penal servitude to the extent of life.(y)

(t) 24 and 25 Vict., c. 100, 63. (u) 4 Bl. 213.

(x) R. v. Holmes, L. R., 1 C. C. R. 334; 41 L. J. (M. C.) 12.

(y) 24 and 25 Vict., c. 100, 8 48.

(1) It was otherwise before the statute. Penetration is made suf ficient by statute in Indiana, Rev. Stat. 1876, p. 430; Illinois, Rev. Stat. 1877, p. 384; Michigan, Rev. Stat. 1871, p. 2073; and Iowa, Rev. Stat. 1873, p. 9; 74 Ohio L. 349.