Attack cannot be anticipated when the law can be resorted to, & 487. Otherwise when there is no or rea ganized government, ¿ 487 a. Whether the danger is apparent is to be determined from the defendant's standpoint, & 488. Impracticable to take ideal " sonable man as a standard, 2 489. Analogy from cases of interference in others' conflicts, % 490. On principle, the test is the defendant's honest belief, 491. But although the defendant believes he is in danger of life, he is guilty of manslaughter if this belief is imputable to his negligence, 492. Apparent attack, to be an excuse, must have actually begun, and must be violent, & 493. Right extends to parent and child, husband and wife, and master and servant, 494. 2. Prevention of Felony, & 495. Bona fide non-negligent belief that a felony is about to be perpetrated excuses homicide in its prevention, ? 495. Right cannot usually be exer cised when there is an opportunity to secure offender's arrest, & 496. If felonious attempt is abandoned and offender escapes, killing him without warrant in pursuit is murder, 497. No killing is excusable if the crime resisted could be prevented by less violent action, 8498. Felonies and riots may be thus prevented, 499. Trespass no excuse for killing trespasser, 500. Owner may resist violent removal of property, or attack upon his rights, but not attack on his honor, & 501. 3. Protection of Dwelling-house, 502. A person when attacked in dwelling-house need retreat no further, & 502. House may be defended by taking life, & 503. But right is only of self-defence and prevention, & 504. Friends may unite in such a de- Right does not excuse killing in- 4 Execution of Laws, & 508. 5. Superior Duty, & 509. Risk of killing another to be, in extreme cases, preferred to certain death, 509. 6. Necessity, 510. Defence only good when danger XIV. INDICTMENT. Venue must aver jurdisdiction, 8 512. Deceased must be individuated, Averment of relationship between "In the peace of God," etc., is not a necessary averment, 515. Deceased must have been living at time of blow, ? 516. "Feloniously and "of malice aforethought" are necessary at common law, 8 517. Term "wound" to be used in a popular sense, & 533. Exactness no longer necessary in description of wound, 534. When two mortal wounds are averred, either may be proved, 8 535. Death must be averred, 536. Must have been within a year and a day, 537. Place of death must be averred, ? 538. Omission of "malice aforethought" and "murder" reduces offence to manslaughter, 2 539. Varying counts may be joined, 8 540. § 302. HOMICIDE, at common law, is divided into the following heads: I. Murder. II. Manslaughter. III. Excusable Homicide. IV. Justifiable Homicide. I. DEFINITIONS. § 303. Murder, as defined at common law, is where a person of sound memory and discretion unlawfully and feloniously Murder is kills any human being, in the peace of the sovereign, with malwith malice prepense or aforethought; either express or ice afore killing thought. implied.' So far, however, as this definition is distinctive it is inconclusive. Murder is distinguished from other kinds of killing by the condition of malice aforethought; but malice is a term which requires, as has been already seen, peculiar exposition and limitation. Nor do the words "prepense" or "aforethought" relieve the definition from ambiguity. What is "prepense" or "aforethought"? Can the mental processes by which conclusions are reached be measured by the flow of time? Does not intention itself logically include prior thought? Under these circumstances we must hold that the definition just given, authoritative as it is, does not exhaustively describe the offence of murder. And we must reach, also, a second conclusion: if the sagacity of our jurists working on this important topic for so long a series of years has been unable to construct a terse, satisfactory definition of murder, this is because such a definition cannot, from the nature of the thing to be defined, be constructed. In order, therefore, to understand what murder is, we must study the subject in the concrete. When each particular case is presented to the jury, terms can readily be found, in aid of the common law or statutory definition, to reach the merits of such case. But a definition which is large enough to cover all cases in advance must be necessarily so general that each of its leading terms will require a new definition to make it exact.* 1 Inst. 47, 51; 2 Ld. Raymond, 1487; 1 Hale, 425; 1 Hawk. c. 13, ss. 3, 8; Kel. 3d ed. p. 171; Fost. 256; 4 Bl. Com. 198; Lewis C. L. 353, 394. See State v. Thomas, 78 Mo. 327, 1883; People v. Schmidt, 63 Cal. 28, 1882. As to malice, see supra, 106. 2 Supra, 22 106 et seq. death of, or grievous bodily harm to, any person, whether such person is the person actually killed or not. "(b) Knowledge that the act which causes death will probably cause the death of, or grievous bodily harm to, some person, whether such person is the person actually killed or not, although such knowledge is accompa 3 As to malice, see supra, ?? 106 et nied by indifference whether death or seq.; infra, 313, 314. See Whart. on Hom. 2, and notes; and see Firty v. State, 3 Baxt. 358, 1869. grievous bodily harm is caused or not, or by a wish that it may not be caused. (c) An intent to commit any felony whatever. "(d) An intent to oppose by force any officer of justice on his way to, in, or returning from the execution of the duty of arresting, keeping in custody, or imprisoning any person whom he is lawfully entitled to arrest, keep in custody, or imprison, or the duty According to Sir J. F. Stephen, "Malice aforethought means any one or more of the following states of mind preceding or coexisting with the act or omission by which death is caused, and it may exist where that act is unpremeditated. "(a) An intention to cause the of keeping the peace or dispersing an man § 304. Manslaughter is defined to be the unlawful and felonious killing of another, without malice aforethought. Voluntary manslaughter is an intentional killing in hot blood, Voluntary and differs from murder in this, that though the act which slaughter occasions the death be unlawful, or likely to be attended tional killing in hot with bodily mischief, yet the malice aforethought, which is the essence of murder, is presumed to be wanting; and the act being imputed to the infirmity of human nature, the punishment is proportionately lenient." is inten blood. § 305. Involuntary manslaughter, according to the old writers, is where death results unintentionally, so far as the de- Involunfendant is concerned, from an unlawful act on his part, tary manslaughter not amounting to felony, or from a lawful act negli- is negligently performed. Hence it is involuntary manslaugh- gent killter where the death of another occurs through the defend unlawful assembly, provided that the offender has notice that the person killed is such an officer so employed. "The expression 'officer of justice' in this clause includes every person who has a legal right to do any of the acts mentioned, whether he is an officer or a private person." Dig. C. L. 5th ed. art. 244; Stout v. State, 90 Ind. 1, 1883. 11 Bl. Com. 191; 1 Hale, 449; 1 Hawk. c. 12, ss. 1, 2. See Bailey v. State, 70 Ga. 617, 1883; People v. Jamarillo, 57 Cal. 111, 1880. See State v. Spendlove, 47 Kans. 160, 1891, for manslaughter under statutes of Kansas. See, also, State v. Munchrath, 78 Iowa, 268, 1889. 21 East P. C. 232. R. v. Mawgridge, Kel. 3d ed. 166, 1709; Lord Cornwallis's Case, Dom. Proc. 1678; 2 St. Tr. 730; Parker, J., Selfridge's Case, 158; Ex parte Tayloe, 5 Cow. 39, 1825; Com. v. Buron, 4 Dall. 125, 1792; Pennsylvania v. Lewis, Addis. 279, 1796; Com. v. Drum, 58 Pa. 9, 1868; Erwin v. State, 29 Ohio St. 186, 1876; Stout v. State, 90 Ind. 1, 1883; Com. v. Mitchell, 1 Va. Cas. 716, 1817; State ing. Perry v. State, 43 Ala. 21, 1870; Murphy v. State, 31 Ind. 511, 1869; People v. Freel, 40 Cal. 436, 1871; Williams v. State, 15 Tex. App. 617, 1884; Smith v. People, 142 Ill. 117, 1892; Davis v. People, 114 Ill. 86, 1885; Sullivan v. State, (Ala.) 15 So. Rep. 264, 1894; Boatwright v. State, 89 Ga. 140, 1892; Von Gundy v. Com., (Ky.) 12 S. W. Rep. 386, 1889. By 189 of the New York Penal Code of 1882 only two degrees of manslaughter are recognized: 1st. Homicides in commission of misdemeanors or in the heat of passion, but in a cruel or unusual manner; 2d. All other forms of homicide not murder, or excusable, or justifiable. It is no defence to an indictment for manslaughter that the homicide therein alleged appears by the evidence to have been committed with malice aforethought, and was, therefore, murder; but the defendant in such case may, notwithstanding, be properly convicted of the offence of manslaughter. Com. v. M'Pike, 3 Cush. 181, 1849. Infra, 329 et seq., 371 et seq. v. Smith, 10 Rich. (Law) 341, 1855; See Buckner v. Com., 14 Bush, 601, Stokes v. State, 18 Ga. 17, 1853; 1878. ant's negligent use of dangerous agencies; and so where death incidentally but unintentionally results in the execution of a trespass." The distinction, however, between voluntary and involuntary manslaughter is now obsolete, in most jurisdictions, so far as concerns the common law. Unless it should be required by statute, the terms "voluntary" and "involuntary" are not now introduced either in indictment, verdict, or sentence. But where the distinction is made by statute, there can be no conviction of involuntary manslaughter on an indictment for voluntary manslaughter.* homicide is either fence or § 306. Excusable homicide is of three kinds: 1st. Where a man Excusable doing a lawful act, without any intention of hurt, nonnegligently kills another; as, for instance, where a man non-negli is hunting in a park, and unintentionally kills a person gent, nonmalicious concealed. concealed. This is called homicide per infortuniam, or killing kor by misadventure. 2d. Se defendendo, or in self-defence, in self-de- which exists where one is suddenly assaulted, and, in the defence of his person, where immediate and great bodily cessity. harm would be the apparent consequence of waiting for the assistance of the law, and there is no other probable means of escape, he kills the assailant. By the older text-writers this species of homicide is sometimes called chance medley or chaud medley, words of nearly the same import. As will hereafter be explained more fully, the same right of self-defence is extended to the relations of master and servant, parent and child, and husband and from ne 1 v. 33 34 3 See, however, contra, Price v. Com., Infra, 22 329 et seq. R. v. Murray, Center, 35 Vt. 378, 1862. That there 5 Cox C. C. 509, 1852; R. v. Cham- can be no aiders or abettors in inberlain, 10 Ibid. 486, 1867; R. v. Rig- voluntary manslaughter, see Adams maidon, 1 Lewin, 180, 1833; R. v. State, 65 Ind. 565, 1879. Timmins, 7 C. & P. 499, 1836; R. v. Dalloway, 2 Cox C. C. 273; R. v. Swindall, 2 C. & K. 229, 1846; R. v. Pargeter, 3 Cox C. C. 191, 1848; R. v. Lowe, 4 Ibid. 449, 1850; R. v. Smith, 11 Ibid. 210, 1869; State v. O'Brien, 3 Vroom, 169, 1867; Adams v. State, 65 Ind. 565, 1879; Smith v. Com., (Ky.) 20 S. W. Rep. 229, 1892; Com. v. Matthews, 89 Ky. 287, 1889. 1 Hale, 449; Fost. 270; R. v. Archer, 1 F. & F. 351, 1858; State v. Turner, Wright, 20, 1801; State v. Smith, 32 Me. 369, 1851; State v. Com. v. Gable, 7 S. & R. 423, 1821; Walters v. Com., 44 Pa. 135, 1862; Bruner v. State, 58 Ind. 159, 1878. See Lyman v. State, 89 Ga. 337, 1892; Handly v. State, (Ky.) 24 S. W. Rep. 609, 1894; State v. Gile, 8 Wash. 12, 1894. 5 Infra, 329 et seq. Burden is upon defendant. People v. Olsen, 80 Cal. 122, 1889. " |