defendant, the punishment in this state is inflicted, “by hanging the defendant by the neck until he is dead." Post, secs. 1228, 1229. § 191. Petit treason abolished. The rules of the common law, distinguishing the killing of a master by his servant, and of a husband by his wife, as petit treason, are abolished, and these offenses are homicides, punishable in the manner prescribed by this chapter. En. February 14, 1872. § 192. Manslaughter-voluntary and involuntary. Manslaughter is the unlawful killing of a human being without malice. It is of two kinds: 1. Voluntary-upon a sudden quarrel or heat of passion. 2. Involuntary-in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. En. February 14, 1872. Cal.Rep.Cit. 58, 268; 58, 269; 65, 212; 72, 620; 80, 125; 118, 156. Subd. 2-129, 552. § 193. Punishment of manslaughter. Manslaughter is punishable by imprisonment in the state prison not exceeding ten years. En. February 14, 1872. $194. Deceased must die within a year and a day. 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 act was done shall be reckoned the first. En. February 14, 1872. Cal.Rep.Cit. 58, 268; 58, 269. § 195. Excusable homicide. the following cases: Homicide is excusable in 1. When committed by accident and misfortune, in lawfully correcting a child or servant, or in doing any other lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent. 2. When committed by accident and misfortune, in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat, when no undue advantage is taken, nor any dangerous weapon used, and when the killing is not done in a cruel or unusual manner. February 14, 1872. Cal.Rep.Cit. 49, 428; 58, 268; 58, 269; 80, 165. En. Burden of proving homicide excusable: Post, sec. 1105. § 196. Justifiable homicide by public officers. Homicide is justifiable when committed by public officers, and those acting by their command in their aid and assistance, either 1. In obedience to any judgment of a competent court; or, 2. When necessarily committed in overcoming actual resistance to the execution of some legal process, or in the discharge of any other legal duty; or, 3. When necessarily committed in retaking felons who have been rescued or have escaped, or when necessarily committed in arresting persons charged with felony, and who are fleeing from justice or resisting such arrest. En. February 14, 1872. Cal.Rep.Cit. 58, 268; 58, 269. As to escapes: See ante, sec. 105. Burden of proving homicide justifiable: Post, sec. 1105. § 197. Justifiable homiside by other persons. Homicide is also justifiable when committed by any person in either of the following cases: 1. When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person; or, 2. When committed in defense of habitation, property, or person, against one who manifestly intends or endeav ors, by violence or surprise, to commit a felony, or against one who manifestly intends and endeavors, in a violent, riotous, or tumultuous manner, to enter the habitation of another for the purpose of offering violence to any person therein; or, 3. When committed in the lawful defense of such person, or of a wife or husband, parent, child, master, mistress, or servant of such person, when there is reasonable ground to apprehend a design to commit a felony, or to do some great bodily injury, and imminent danger of such design being accomplished; but such person, or the person in whose behalf the defense was made, if he was the assailant or engaged in mortal combat must really and in good faith have endeavored to decline any further struggle before the homicide was committed; or, 4. When necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed or in lawfully suppressing any riot, or in lawfully keeping and preserving the peace. En. February 14, 1872. Cal. Rep. Cit. 58, 268; 58, 269; 60, 74; 61, 187; 61, 546; 65, 133; 65, 134; 67, 649; 82, 40; 93, 488; 106, 631; 133, 160. Subd. 1-118, 443. Subd. 289, 170; 109, 461; 111, 626; 117, 196. Subd. 358, 250; 67, 650; 70, 523; 74, 645; 93, 488; 117, 190; 118, 269. Burden of proving homicide justifiable: 1105. See post, sec. Defense of habitation: See post, sec. 198. Lawful resistances, by whom and when may be made: See post, secs. 692-694. Duty to assist in arrest of felon: See post, sec. 837. § 198. Bare fear not to justify killing. A bare fear of the commission of any of the offenses mentioned in subdivisions two and three of the preceding section, to prevent which homicide may be lawfully committed, is not sufficient to justify it. But the circumstances must be sufficient to excite the fears of a reasonable person, and the party killing must have acted under the influence of such fears alone. En. February 14, 1872. Cal.Rep.Cit. 58, 268; 58, 269; 61, 546; 65, 233; 118, 443. § 199. Justifiable and excusable homicide not punishable. The homicide appearing to be justifiable or excusable, the person indicted must, upon his trial, be fully acquitted and discharged. En. February 14, 1872. § 203. Mayhem defined. Every person who unlawfully and maliciously deprives a human being of a member of his body, or disables, disfigures, or renders it useless, or cuts or disables the tongue, or puts out an eye, or slits the nose, ear, or lip, is guilty of mayhem. En. February 14, 1872. Am'd. 1873-4, 427. Cal.Rep.Cit. 62, 542; 93, 565; 93, 567; 105, 673. § 204. Mayhem, how punishable. Mayhem is punishable by imprisonment in the state prison not exceeding fourteen years. En. February 14, 1872. Punishment of kidnaping. Kidnaping defined. Every person who forcibly § 207. steals, takes, or arrests any person in this state, and carries him into another country, state, or county, or who forcibly takes or arrests any person, with a design to take him out of this state, without having established a claim, according to the laws of the United States, or of this state, or who hires, persuades, entices, decoys, or seduces by false promises, misrepresentations, or the like, any person to go out of this state, or to be taken or removed therefrom, for the purpose and with the intent to sell such person into slavery or involuntary servitude, or otherwise to employ him for his own use, or to the use of another, without the free will and consent of such persuaded person, is guilty of kidnaping. En. February 14, 1872. Cal.Rep. Cit. 85, 310; 89, 150. § 208. Punishment of kidnaping. Kidnaping is punish able by imprisonment in the state prison not less than one nor more than ten years. En. February 14, 1872. § 209. Penalty for kidnaping. Every person who maliciously, forcibly, or fraudulently takes or entices away any person with intent to restrain such person and thereby to commit extortion or robbery, or exact from the relatives or friends of such person any money or valuable thing, is guilty of a felony, and shall be punished therefor by imprisonment in the state's prison for life, or any number of years not less than ten. En. Stats. 1901, 98. CHAPTER IV. ROBBERY. § 211. § 212. § 213. Robbery defined. What fear may be an element in robbery. § 211. Robbery defined. Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence and against his will, accomplished by means of force or fear. En. February 14, 1872. Cal. Rep.Cit. 53, 59; 56, 80; 59, 439; 80, 207; 100, 439; 116, 586; 118, 26. 67, 422; 75, 99; § 212. What fear may be an element in robbery. The fear mentioned in the last section may be either |