wife; and to those cases where homicide is committed in the defence of important rights; and where no more force is used and no other instrument or mode is employed, than is necessary and proper for such purpose.1 3d. Killing from necessity, which is elsewhere discussed.2

§ 307. Justifiable homicide is that which is committed, either,

is homi

cide in dis

charge of a

duty.

1st. In discharge of a duty, such as by an officer exe- Justifiable cuting a criminal pursuant to the death warrant and in homicide strict conformity to the law; 2dly. In prosecution of public justice, as where officers or their assistants kill as a necessary incident to an arrest; or 3dly. For the prevention of any atrocious crime, attempted to be committed by force, such as murder, robbery, house-breaking in the night-time, rape, mayhem, or any violent act of felony against the person. But in such cases the attempt must be not merely suspected but apparent, and the danger must be apparently imminent, and the opposing force or resistance apparently necessary to avert the danger or defeat the attempt.

5

In verdict

distinction

§ 308. The distinction, in result, between justifiable and excusable homicide is now practically abandoned. In former times, in the latter case, as the law presumed that the slayer was not wholly free from blame, he was punished, at least by there is no forfeiture of goods. But in this country such a rule between is not known ever to have been recognized; it having excusable been the practice here, as it now is in England, where able homithe grade does not reach manslaughter, for the jury, under the direction of the court, to acquit of the homicide.

U. S. v.

Wiltberger, 3 Wash. C.

and justifi

cide.

8

strictly justifiable, the jury might acquit, but that in cases of homicide per infortuniam and se defendendo, they were to give a special verdict, and the prisoner was to be pardoned as of

C. 515, 1818; and see State v. Ruth- course, the reason being that the erford, 1 Hawks, 78, 457, 1822; State party forfeited his goods at common

v. Roane, 2 Dev. 58, 1829.

4 Bl.

Com. 182; 1 Russ. on

law." 3 Steph. Hist. Crim. Law, 76. But this gave way early in the last

Crimes, 9th Am. ed., 893-899. Infra, century to the practice of taking

8484.

"general verdicts of acquittal in plain

According to Sir J. F. Stephen, cases of death per infortuniam, and "the ancient law was that in cases also, it seems, of se defendendo." Ibid.

where homicide

Deceased

been living at mortal blow.

II. CERTAIN REQUISITES OF HOMICIDE IN GENERAL.

§ 309. It is essential in all cases to show that the deceased was living at the time when the alleged mortal blow was struck.' must have Thus where it was doubtful, in a case where a mother was charged with throwing a child overboard, whether it was living or dead at the time, it was held that it rested on the government to show it was living at the time, it appearing that the mother was laboring under puerperal fever, and the idea of malice being thereby excluded. The presumption that a person proved to have been alive at a particular time is still so, holds until it is rebutted by the lapse of time, or other satisfactory proof.3 Hence it follows that in cases of infanticide it must be shown that the child was born alive. And for this purpose proof of an independent circulation on the part of the child is necessary.5

Death

must be imputable to de

fendant's act.

Accelerating death

§ 309 a. As has been already fully illustrated, the death must be traced to the blow charged to the defendant."

§ 309 b. It follows from what has been said that accelof dying is erating a death of a person diseased or wounded is homi

homicide.

cide must

cide."

§ 310. The words, "in the peace of God and the said Commonwealth, then and there being," as used in the indictment, The homi- and in the definition of murder, mean merely that it is not murder to kill an alien enemy in course of war; at legitimate the same time it must be remembered that killing even public an alien enemy, unless such killing occur in the actual exercise of war, is murder."

not have been in

war.

1 See supra, ? 155; infra, ? 516; and Ind. 317, 1892; State v. Hambright, see Whart. on Crim. Ev. 327. As 111 N. C. 707, 1892; McDaniel v. to assaults on a dead body supposed State, 76 Ala. 1, 1884; Denman v. to be alive, see supra, ? 128. State, 15 Nebr. 138, 1883.

2 U. S v. Hewson, 7 Boston Law Rep. 361, per Story, J., 1844.

3 Com. v. Harman, 4 Barr, 269, 1846; Whart. on Crim. Ev. 22 324, 810. See Whart. on Crim. Ev. ¿ 327. 5 State v. Winthrop, 43 Iowa, 519, 1876. See infra, ? 445.

6

7

Supra, 155 a. See State v. Castello, 62 Iowa, 404, 1883; Baker v. State, 30 Fla. 41, 1892; People v. Lanagan, 81 Cal. 142, 1889.

8 Whart. Conf. of Laws, 911; 3 Inst. 50; 1 Hale, 433. Supra, § 271; infra, & 575.

Supra, 153 et seq., 159; and see 9

1 Hale, 433; 3 Inst. 50; State v.

infra, 340. See People v. Ah Luck, Gut, 13 Minn. 341, 1867.

62 Cal. 503, 1882; Hall v. State, 132

The plea of an Indian war with the United States cannot avail as an excuse for murder committed by "friendly" Indians, of "Indians at war," and in a part of the country not involved in hostilities.1

But homicide by any person forming part of a belligerent army, recognized as such, is not murder when committed in due course of war. In such case the rule respondeat superior applies. And this immunity has been extended to acts done within the territory of one sovereign, under command of a foreign sovereign, in time of peace.1

There

§ 311. The corpus delicti, in all cases of homicide, must be proved as an essential condition of conviction. To the corpus delicti, in this sense, as is elsewhere seen, it is requisite: 1st, must be that the deceased should be shown to have died from the effect of a wound; 2d, that it should appear that this

proof of

corpus delicti.

Jim v. Territory, 1 Wash. Ter. 76, ercise it, and only against recognized 1859; and see proceedings in the soldiers in arms. It is, therefore, Modocs' Case, June, 1873. In Penn- homicide for a soldier to kill a citizen sylvania v. Robertson, Addis. 246, 1794, unarmed, or even a disarmed enemy; the defendant, who was charged with and, on the other hand, it is homicide killing an Indian, was permitted to for a private citizen to kill a soldier set up, as showing that he had ap- belonging to a hostile army. But parent ground for self-defence, that when a nation is roused to guerilla the Indian belonged to a hostile tribe resistance to an invader, and when and was himself hostile. Whether a the public passion is in continuous subject of a foreign State is indictable excitement, the offence may be but for hostile acts directed by his sov- manslaughter. Whether or no a State ereign is elsewhere considered. Supra, can call forth its citizens as individ94, 283. uals to resist an invasion or rebellion, Supra, & 283; Buron v. Denman, so as to justify such citizens in killing, 2 Ex. 167, 1848; Secretary of State v. otherwise than in open battle, memKamachee, 13 Moore P. C. 22, 1859; bers of the hostile army, is a question Brazleton, 1 Heisk. 44, that will be decided one way if it 1870; Sequestration Cases, 30 Texas, comes up before the military tribu688, 1868, and other cases cited in an nals of the army thus assailed, and interesting review of this topic in another way if it comes up before a Southern Law Rev. Ap. 1873, 337.

2

Smith v.

8

This

Supra, 94 et seq., 283. question is discussed in 2 Steph. Hist.

Crim. Law, PP. 63 et seq.

jury of the country that invokes this private warfare. On general prin

ciples, it has been argued, such killing is felonious homicide, though as

The right to kill in war is limited committed in hot blood, not murder to combatants in contending armies. unless it were the cover for the wreak

None but a

recognized soldier can ex

ing of private revenge. But the better

wound was unlawfully inflicted, and that the defendant was implicated in the crime. The evidence on these points is discussed in another volume.1

been

The death § 312. By the English common law the death must have must have occurred within a year and a day from the date of the injury received; and, hence, an indictment which does not aver the death to have occurred within this limit is fatally the injury. defective.3

within a year and a day from

Malice to

§ 313. The old distinction between express and implied malice cannot be logically maintained. There is no case of malicious homicide in which the malice is not inferred from the attendant circumstances; no case in which it is demonstrated as express. We have no power to ascertain the cer

be inferred from cir

cum

stances.

opinion, as is shown by Holtzendorff, 633; State v. Flanagan, 26 W. Va. is, that however a State may violate the law of nations by calling all its subjects to join in destroying an invader by private as well as by public warfare, yet as the subject is bound to obey his sovereign, and as the home law overrules, intra territorially, the law of nations, such command is an absolute defence before the home tribunals, unless personal malice be shown. Holtz. Straf. iii. 423.

116, 1885; Zoldoske v. State, 82 Wis. 580, 1892; Dreessen v. State, 38 Nebr. 375, 1893; McBride v. People, (Colo.) 37 Pac. Rep. 953, 1894. Motive need not be shown in first instance. State v. Schieler, (Idaho) 37 Pac. Rep. 272, 1894; Harris v. State, 30 Tex. App. 549, 1891; Jackson v. State, 29 Tex. App. 458, 1891; Melcik v. State, (Tex.) 24 S. W. Rep. 417, 1893. See Com. v. Johnson, (Pa.) 29 Atl. Rep. 280, 1894; People v. Downs, 123 N. Y. 558, 1890; State v. Roberts, 63 Vt. 139, 1890; Welsh v. State, 97 Ala. 1, 1893.

23 Inst. 53. Infra, § 537. & See Clark v. Com., (Va.) 18 S. E. Rep. 440, 1893; Thomas v. State, 67 Ga. 460, 1881.

1 Whart. on Crim. Ev. ? 324-25. See, also, 3 Whart. & St. Med. Jur. ?? 776 et seq. This definition of corpus delicti has been contested, it being assumed that corpus delicti means the dead body of the deceased. But the true meaning of the words is not "body of the deceased," but "body of the crime;" and this involves the essential features of the crime as bearing on the issue. Any other meaning of the term would render nugatory the limitations that the burden of the corpus delicti is on the prosecution, and that accomplices are to be corroborated as to the corpus delicti. As adopting the definition of the text, see State v. Dickson, 78 Mo. 439, 1883; Lovelady v. State, 14 Tex. App. Supra, 113. As to what malice 518, 1883; State v. Stowell, 60 Iowa, is, see supra, 2 106 et seq. See State 535, 1883; Whart. Crim. Ev. ?? 324-5, v. Scheele, 57 Conn. 307, 1889; Lovett

3 State v. Orrell, 1 Dev. 139, 1828; State v. Mayfield, 66 Mo. 125, 1877; People v. Aro, 6 Cal. 207, 1856; People v. Kelley, 6 Cal. 210, 1856. See Whart. on Hom. 15, for notes. This limitation is not contained in the definition of murder in the New York Penal Code of 1882.

As to causal relations, see supra, 153, 157-58.

4

tain condition of a man's heart. The best we can do is to infer his intent, more or less satisfactorily, from his acts.'

Malice in this sense may be considered under the following heads: 1. Intent to kill.

2. Intent to do bodily harm.

When

there is

unlawful

malice is

§ 314. Where there is a deliberate intent to kill, unless it be in the discharge of a duty imposed by the public authorities, or in self-defence, or in necessity, and killing follows, the offence is murder at common law. And, as will hereafter deliberate, be more fully seen, an intermediate provocation just prior killing, to the offence forms no defence." The reason of this is ob- inferred. vious. If all that was necessary for a man to do to relieve himself from the guilt of murder were such provocation, there would rarely be a case of homicide without such provocation being intentionally provoked.3

The mode of proving malice, as is elsewhere more fully shown,* is that of the ordinary inductive syllogism: from certain facts, malice

v. State, 30 Fla. 142, 1892; Moon v. Com., 83 Pa. 131, 1876; People v. State, 68 Ga. 687, 1882; Taylor v. Harris, 136 N. Y. 423, 1893; People State, (Tex) 26 S. W. Rep. 627, 1894; v. Sliney, 137 N. Y. 570, 1893; People Powell v. State, 28 Tex. App. 393, v. Martell, 138 N. Y. 595, 1893; Com. 1890; Page v. State, (Tex.) 24 S. W. v. Holmes, 157 Mass. 233, 1892; Com. Rep. 420, 1893; Boyd v. State, 28 v. Buccieri, 153 Pa. 535, 1893; WeathTex. App. 137, 1889; Gallaher v. erman v. Com., (Va.) 19 S. E. Rep. State, 28 Tex. App. 247, 1889; People 778, 1894; Johnson v. State, 90 Ga. *. Bruggy, 93 Cal. 476, 1892; Carr v. 441, 1892; Gallery v. State, 92 Ga. State, 23 Nebr. 749, 1888. "Express 463, 1893; State v. Ariel, 38 S. C. 221, malice" and "malice aforethought" 1893; Sterling v. State, 89 Ga. 807, have same meaning. Smith v. State, 1892; Grissom v. State, 62 Miss. 167, 31 Tex. Cr. 14, 1892; Moody v. State, 1884; State v. Levelle, 34 S. C. 120, 30 Tex. App. 422, 1891; Ellis v. State, 1891; State v. Deschamps, 41 La. An. 30 Tex. App. 601, 1892; Martinez v. 1051, 1890; Whitaker v. Com., (Ky.) State, 30 Tex. App. 129, 1891. See 17 S. W. Rep. 358, 1891; State v. Ingram, 23 Oreg. 434, 1893; Territory v. Bryson, 9 Mont. 32, 1889; State v. Rose, 47 Minn. 47, 1891; State v. Lentz, 45 Minn. 177, 1891; Harris v. State, 8 Tex. App. 90, 1880; State v. Ching Ling, 16 Oreg. 419, 1888; Mur

Gonzalez v.

State, 30 Tex. App. 203, 1891, for definition of express malice. State, 30 Tex. App. 275,

Callahan v.

State, 30 Tex. App.

1891; Sherar v.
349, 1891; Baltrip

App. 545, 1891.

1

v. State, 30 Tex.

Supra, 122. See, for a full dis- phy v. People, 9 Colo. 435, 1887.

cussion of this question, Whart. Crim.

Ev. 734; and as to inference to be

drawn from

Crim. Ev. 30; and see Meyers v.
VOL. I.-22

other crimes, Whart.

2 Infra, & 476.

3 Mason's Case, Fost. 132; East P. C. c. 5, s. 53.

4 Whart. Crim. Ev. 2 734.
337