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Attack cannot be anticipated rights, but not attack on his

when the law can be resorted honor, & 501. to, & 487.

3. Protection of Dwelling-house, 8 502. Otherwise when there is no or- A person when attacked in dwellganized government, & 487 a.

ing-house need retreat no fur. Whether the danger is apparent ther, 2 502.

is to be determined from the House may be defended by taking defendant's standpoint, & 488.

life, & 503. Impracticable to take ideal “rea- But right is only of self-defence

sonable man as a standard, and prevention, & 504. $ 489.

Friends may unite in such a deAnalogy from cases of interference fence, & 505. in others' conflicts, % 490.

Right does not excuse killing inOn principle, the test is the de- truder in house, 8 506.

fendant's honest belief, 8 491. Killing by spring-guns, when neBut although the defendant be

cessary to exclude burglars, lieves he is in danger of life, excusable, & 507. he is guilty of manslaughter if 4 Execution of Laws, % 508. this belief is imputable to his Killing under mandate of law negligence, & 492.

justifiable, 2 508. Apparent attack, to be an excuse, 5. Superior Duty, & 509.

must have actually begun, and Risk of killing another to be, in must be violent, & 493.

extreme cases, preferred to cerRight extends to parent and child, tain death, 2 509.

husband and wife, and master 6. Necessity, & 510. and servant, & 494.

Defence only good when danger 2. Prevention of Felony, & 495.

is immediate, and when the life Bonâ fide non-negligent belief of the defendant can only be

that a felony is about to be saved by the sacrifice of the perpetrated excuses homicide deceased, & 510. in its prevention, & 495.

Self-preservation in shipwreck, Right cannot usually be exer- 8511.

cised when there is an oppor- XIV. INDICTMENT. tunity to secure offender's ar- Venue must aver jurdisdiction, rest, & 496.

% 512. If felonious attempt is abandoned Deceased must be individuated,

and offender escapes, killing 8 512 a. him without warrant in pursuit Averment of relationship between is murder, & 497.

deceased and defendant when No killing is excusable if the such is necessary, & 513.

crime resisted could be pre- When variance as to intent to kill vented by less violent action, is fatal, % 514. % 498.

"In the peace of God,” etc., is Felonies and riots may be thus not a necessary averment, 8515. prevented, & 499.

Deceased must have been living Trespass no excuse for killing at time of blow, $ 516. trespasser, & 500.

“Feloniously” and “of malice Owner may resist violent removal aforethought” are necessary at of property, or attack upon his common law, & 517.


Allegation of assault necessary in Term wound" to be used in a violent homicides, % 518.

popular sense, & 533. At common law general character Exactness no longer necessary in

of instrument of death must be description of wound, & 534. correctly given, & 519.

When two mortal wounds are Variance in this respect is fatal, averred, either may be proved, 4520.

$ 535. When death is alleged to have Death must be averred, 8 536.

been by compulsion, circum- Must have been within a year and

stances must be averred, 8521. a day, 2537. Acts of agent or associate may be Place of death must be averred,

averred as acts of principal, & 538.
$ 522.

Omission of malice aforeVariance in description of poison thought” and “murder” renot fatal, X 523.

duces offence to manslaughter, Scienter requisite in poisoning,

2 539. 8524.

Varying counts may be joined, Unknown instrument need not be 2 540. averred, 2 525.

XV. VERDICT. When counts are inconsistent, Conviction or acquittal of man

verdict should be taken on good slaughter acquits of murder, counts, % 526.

2541. Value of instrument need not be Jury may convict of minor degree, proved, 8 527.

2 542. Allegation of hand of defendant Verdict must specify degree, 8543. need not be made, & 528.

At common law can be no conAverment of time need not be viction of assault on indictment repeated, $ 529.

for murder, & 544. Word “struck" is essential when In excusable homicide verdict is there has been a blow, & 530.

not guilty, & 545. But not necessary in cases of poi- May be accessary to murder in soning. & 531.

second degree, & 546. General description of place of When requisite verdict must deswound is sufficient, % 532.

ignate punishment, $ 547. § 302. HOMICIDE, at common law, is divided into the following heads :

I. Murder.
II. Manslaughter.
III. Excusable Homicide.
IV. Justifiable Homicide.


$ 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.


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.'

Inst. 47, 51; 2 Ld. Raymond, death of, or grievous bodily harm to, 1487; 1 Hale, 425; 1 Hawk. c. 13, any person, whether such person is ss. 3, 8; Kel. 3d ed. p. 171; Fost. 256; the person actually killed or not. 4 Bl. Com. 198; Lewis C. L. 353, “(6) Knowledge that the act which 394. See State v. Thomas, 78 Mo. causes death will probably cause the 327, 1883; People v. Schmidt, 63 Cal. death of, or grievous bodily harm to, 28, 1882. As to malice, see supra, some person, whether such person is & 106.

the person actually killed or not, al? Supra, 8% 106 et seq.

though such knowledge is accompa3 As to malice, see supra, 88 106 et nied by indifference whether death or seq.; infra, 8% 313, 314.

grievous bodily harm is caused or not, * See Whart. on Hom. & 2, and or by a wish that it may not be caused. notes; and see Firty v. State, 3 Baxt. (c) An intent to commit any fel. 358, 1869.

ony whatever. According to Sir J. F. Stephen, (d) An intent to oppose by force “Malice aforethought means any one any officer of justice on his way to, or more of the following states of in, or returning from the execution of mind preceding or coexisting with the duty of arresting, keeping in custhe act or omission by which death is tody, or imprisoning any person whom caused, and it may exist where that he is lawfully entitled to arrest, keep act is unpremeditated.

in custody, or imprison, or the duty “(a) An intention to cause the of keeping the peace or dispersing an



$ 304. Manslaughter is defined to be the unlawful and felonious killing of another, without malice aforethought. Volun

Voluntary tary manslaughter is an intentional killing in hot blood, and differs from murder in this, that though the act which slaughter occasions the death be unlawful, or likely to be attended tional kill

ing in hot with bodily mischief, yet the malice aforethought, which blood. 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.?

$ 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 mannot 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 defendunlawful assembly, provided that the Perry v. State, 43 Ala. 21, 1870; Muroffender has notice that the person phy v. State, 31 Ind. 511, 1869; Peokilled is such an officer so employed. ple v. Freel, 40 Cal. 436, 1871; Wil

“The expression officer of justice' liams v. State, 15 Tex. App. 617, 1884 ; in this clause includes every person Smith v. People, 142 Ill. 117, 1892 ; who has a legal right to do any of the Davis v. People, 114 Ill. 86, 1885 ; acts mentioned, whether he is an of- Sullivan v. State, (Ala.) 15 So. Rep. ficer or a private person.” Dig. C. L. 264, 1894; Boatwright v. State, 89 Ga. 5th ed. art. 244; Stout v. State, 90 140, 1892; Von Gundy v. Com., (Ky.) Ind. 1, 1883.

12 S. W. Rep. 386, 1889. 11 Bl. Com. 191; 1 Hale, 449; 1 By 8 189 of the New York Penal Hawk. c. 12, ss. 1, 2. See Bailey v. Code of 1882 only two degrees of manState, 70 Ga. 617, 1883; People v. slaughter are recognized : 1st. HomiJamarillo, 57 Cal. 111, 1880. See cides in commission of misdemeanors State v. Spendlove, 47 Kans. 160, 1891, or in the heat of passion, but in a for manslaughter under statutes of cruel or unusual manner; 2d. All Kansas. See, also, State v. Munch- other forms of homicide not murder, rath, 78 Iowa, 268, 1889.

or excusable, or justifiable. 21 East P. C. 232. R. v. Maw- It is no defence to an indictment gridge, Kel. 3d ed. 166, 1709; Lord for manslaughter that the homicide Cornwallis's Case, Dom. Proc. 1678; therein alleged appears by the evi2 St. Tr. 730; Parker, J., Selfridge's dence to have been committed with Case, 158; Ex parte Tayloe, 5 Cow. 39, malice aforethought, and was, there1825; Com. v. Buron, 4 Dall. 125, 1792; fore, murder; but the defendant in Pennsylvania v. Lewis, Addis. 279, such case may, notwithstanding, be 1796 ; Com. v. Drum, 58 Pa. 9, 1868; properly convicted of the offence of Erwin v. State, 29 Ohio St. 186, 1876; manslaughter. Com. v. M'Pike, 3 Stout v. State, 90 Ind. 1, 1883; Com. v. Cush. 181, 1849. Mitchell, 1 Va. Cas. 716, 1817; State Infra, 3329 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 trt spass.?

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.

§ 306. Excusable homicide is of three kinds : 1st. Where a man Excusable doing a lawful act, without any intention of hurt, nonhomicide negligently kills another; as, for instance, where a man non-negli- is hunting in a park, and unintentionally kills a person malicious concealed. This is called homicide per infortuniam, or homicide by misadventure. 2d. Se defendendo, or in self-defence, in self-de- which exists where one is suddenly assaulted, and, in the from ne- 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

fence or


| Infra, 28 329 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. v. State, 65 Ind. 565, 1879. Timmins, 7 C. & P. 499, 1836; R. v. See, however, contra, Price v. Com., Dalloway, 2 Cox C. C. 273; R. v. 33 Gratt. 819, 1879; Brown v. State, Swindall, 2 C. & K. 229, 1846; R. v. 34 Ark. 232, 1879. Pargeter, 3 Cox C. C. 191, 1848; R. + Com, v. Gable, 7 S. & R. 423, v. Lowe, 4 Ibid. 449, 1850; R. v. 1821 ; Walters v. Com., 44 Pa. 135, Smith, 11 Ibid. 210, 1869; State v. 1862; Bruner v. State, 58 Ind. 159, O'Brien, 3 Vroom, 169, 1867; Adams 1878. See Lyman v. State, 89 Ga. v. State, 65 Ind. 565, 1879; Smith v. 337, 1892; Handly v. State, (Ky.) 24 Com., (Ky.) 20 S. W. Rep. 229, 1892; S. W. Rep. 609, 1894; State v. Gile, 8 Com. v. Matthews, 89 Ky. 287, 1889. Wash. 12, 1894.

? 1 Hale, 449; Fost. 270; R. v. 5 Infra, 8329 et seq. Burden is Archer, 1 F. & F. 351, 1858 ; State v. upon defendant. People v. Olsen, 80 Turner, Wright, 20, 1801 ; State v. Cal. 122, 1889. Smith, 32 Me. 369, 1851; State v.

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