Statutory division of murder into degrees.-The common law recognizes no distinction between different kinds of murder. In most of the United States, however, the offense has by statute been divided into degrees, only one of which, if either, is punished capitally: Whart. on Homicide, secs. 170, 171. Where the distinction is thus made, the statute usually divides the crime into two degrees; in Florida, Minnesota, and Wisconsin, however, murder is divided into three degrees. In Colorado, Dakota, Georgia, Illinois, Kentucky, Louisiana, Mississippi, North Carolina, Rhode Island, and South Carolina there is no division of murder into degrees, but in some of these states the same object is accomplished by giving the jury power to fix the penalty at death or imprisonment, in their discretion.

The object intended to be accomplished by the statute is plain. The supreme court of California has said: "In dividing murder into two degrees, the legislature intended to assign to the first, as deserving of greater punishment, all murders of a cruel and aggravated character; and to the second, all other kinds of murder which are murder at common law, and to establish a test by which the degree of every case of murder may be readily ascertained. That test may be thus stated: Is the killing willful (that is to say, intentional), deliberate, and premeditated? If it is, the case falls within the first, and if not, within the second degree. There are certain kinds of murder which carry with them conclusive evidence of premeditation. These the legislature has enumerated in the statute, and has taken upon itself the responsibility of saying that they shall be deemed and held to be murder of the first degree. These cases are of two classes: First, where the killing is perpetrated by means of poison, etc. Here the means used is held to be conclusive evidence of premeditation. The second is, where the killing is done in the perpetration, or the attempt to perpetrate, some one of the felonies enumerated in the statute. Here the occasion is made conclusive evidence of premeditation. Where the case comes within either of these classes, the test question, 'Is the killing willful, deliberate, and premediated?' is answered by the statute itself, and the jury have no option but to find the prisoner guilty in the first degree. Hence, so far as these two classes are concerned, all difficulty as to the question of degree is removed by the statute. But there is another and much larger class of cases included in the definition of murder in the first degree, which are of equal cruelty and aggravation with those enumerated, and which, owing to the different and count less forms which murder assumes, it is impossible to describe in the statute. In this class the legislature leaves the jury to determine, from all the evidence before them, the degree of crime, but prescribes, for the government of their deliberations, the same test which has been used by itself in determining the degree of the other two classes, to wit, the deliberate and preconceived intent to kill. Thus the three classes of cases which constitute murder of the first degree are made to stand upon the same principle. It is only in the latter class of cases that any difficulty is experienced in drawing the distinction between murder of the first and murder of the second degree, and this difficulty is apparent than real. The unlawful kill

more

ing must be accompanied with a deliberate and clear intent to take life in order to constitute murder of the first degree. The intent to kill must be the result of deliberate premeditation; it must be formed upon a pre-existing reflection, and not upon a sudden heat of passion sufficient to preclude the idea of deliberation. There need be no appreciable space of time between the intention to kill and the act of killing; they may be as instantaneous as successive thoughts of the mind. It is only necessary that the act of killing be preceded by a concurrence of will, deliberation, and premeditation on the part of the slayer; and if such is the case, the killing is murder of the first degree, no matter how rapidly these acts of the mind may succeed each other, or how quickly they may be followed by the act of killing:" People v. Sanchez, 24 Cal. 17. The distinction between murder in the first and murder in the second degree is also pointed out in People v. Bealoba, 17 Id. 389; People v. Foren, 25 Id. 361; People v. Barry, 31 Id. 357; People v. Nichol, 34 Id. 211; People v. Long, 39 Id. 694; People v. Doyell, 48 Id. 85; People v. Welch, 49 Id. 174; People v. Cotta, Id. 166; People v. Hunt, 59 Id. 430, 435; People v. Hong Ah Duck, 61 Id. 387. The following instruction is erroneous: "If you find from the evidence, beyond a reasonable doubt, that the defendant did, on the twenty-eighth of February, 1880, with malice aforethought, unlawfully kill Vivian Torres, then you will find the defendant guilty of murder in the first degree.' The court said: "If the instruction is correct, murder of the second degree is the unlawful killing of a human being without malice:" People v. Grigsby, 62 Id. 482. So also in People v. Guance, 57 Id. 154. For a sufficient instruction as to the degrees of murder, see People v. Raten, 63 Id. 424.

▼. Long, 39 Id. 694; People v. Williams, 43 Id. 344; People v. Cotta, 49 Id. 166; State v. Ah Mook, 12 Nev. 369; McAdams v. State, 25 Ark. 405. If the court's instruction ignore the question of deliberation and intention, it will be erroneous, and the use of the word "conceal" is not the same as 66 lying in wait:" People v. Miles, 55 Cal. 207. Where on an attempt to commit an abortion the woman dies, the accused may be admitted to bail, there being no evidence of an intent to kill: Ex parte Wolff, 57 Id. 94. The statute, in specifying certain kinds of homicide as constituting murder in the first degree, as where it is perpetrated by poison, lying in wait, etc., and then adds "or any other willful, deliberate, and premeditated killing," does not import that the instances enumerated shall furnish the standard of deliberation and premeditation, and that no murder is of the first degree unless perpetrated with equal forethought and calculation: Burgess v. Commonwealth, 2 Va. Cas. 483; Commonwealth v. Jones, 1 Leigh, 610; Whiteford v. Commonwealth, 6 Rand. 721; S. C., 18 Am. Dec. 771. Deliberation and premeditation are not presumed from the mere fact of unlawful homicide, but they may be inferred from the circumstances surrounding the killing. The question of the premeditation and deliberation of the defendant is one which it is peculiarly the province of the jury to determine: People v. Valencia, 43 Cal. 552. Evidence of threats, of preparation of weapons, search for the victim, nature of the instrument used, the manner of using it, etc., is competent to prove the premeditation: See Respublica v. Bob, 4 Dall. 145; Commonwealth v. Williams, 2 Ashm. 69; Bivens v. State, 11 Ark. 455; Fields v. State, 52 Ala. 348.

Insanity of defendant: See sec. 26, and note. Insanity occasioned by wife's confession of adultery: People v. Hurtado, 63 Cal. 288.

The indictment should not state the degree of murder with which the defendant is charged. It is not the province of the grand jury to determine the degree; that duty is by statute expressly cast upon the trial jury. But if the indictment does state the degree, it does not vitiate it the statement of the degree will be treated as surplusage: People v. King, 27 Cal. 507; People v. Nichol, 34 11. 211. The trial jury in their verdict should expressly state the degree of murder of which they find the defendant guilty: People v. Campbell, 40 Id. 129; see sec. 959.

The indictment should allege the malice aforethought: People v. Schmidt, 63 Cal. 28, citing People v. Urias, 12 Id. 325; People v. King, 27 Id. 507; and People v. Bonilla, 38 Id. 699.

Drunkenness.-Where the homicide is not committed by means of poison, lying in wait, or torture, or in the perpetration, or attempt to perpetrate, arson, rape, robbery, burglary, or mayhem, the degree of the offense depends entirely upon the question whether the killing was willful, deliberate, and premeditated; and upon that question it is proper for the jury to consider evidence of intoxication, not upon the ground that drunkenness renders a criminal act less criminal, or can be received in extenuation or excuse, but upon the ground that the condition of the defendant's mind at the time the act was committed may be inquired after, in order to justly determine the question whether at the time his mind was capable of that delib

eration and premeditation which, according as they are present or absent, determine the degree of the crime. As between murder in the second degree and manslaughter, however, the árunkenness of the defendant can form no legitimate matter of inquiry: People v. Nichol, 34 Cal. 211; People v. Williams, 43 Id. 344; see sec. 22, note.

Charge in respect to drunkenness sustained: See People v. De la Cour Soto, 63 Cal. 165.

The corpus delicti in all cases of homicide must be proved as an essential condition to conviction. In other words, it is necessary to establish: 1. That the deceased died from the effect of a wound; 2. That this wound was unlawfully inflicted. "I would never," says Lord Hale, "convict any person of murder or manslaughter unless the fact were proved to be done, or at least the body found dead:” 2 Hale P. C. 290. The death should be distinctly proved, either by direct evidence of the fact, as by inspection of the body, or by circumstantial evidence strong enough to leave no ground for reasonable doubt. "The sudden disappearance of a man of known and established habits, without apparent cause, and the failure to find him, or any trace of him, after diligent search, although they may lead to a strong suspicion. that he has come to an untimely end, yet are not alone sufficient proof of his death, because the fact may be accounted for on the hypothesis (however improbable) that he may have absconded and eluded all inquiry, or be kidnaped and concealed, and be still alive. But if his dead body be found, it is a fact in its nature conclusive. It has sometimes been said by judges that a jury ought never to convict in a case of homicide unless the dead body be found and identified. This, as a general proposition, is undoubtedly true and correct; and disastrous and lamentable consequences have resulted from disregarding the rule. But, like other rules, it is to be taken with some qualification. It may sometimes happen that the dead body cannot be produced, although the proof of the death is clear and satisfactory. As in a case of murder at sea, where the body is thrown overboard in a dark and stormy night, at a great distance from land or any vessel; although the body cannot be found, nobody can doubt that the author of that crime is chargeable with murder. But if the body can be found and identified, it goes conclusively to one of the facts necessary to be proved-the death of the person alleged to have been killed:" Per Shaw, C. J., Burns' Webster Case, 479; see Whart. on Homicide, secs. 628-641. In a late case, where the evidence tended to show that the defendants went to the house of the deceased for the purpose of killing him, and appropriating his sheep to their own use; that in pursuance of that object one of them shot him at least twice, once in the head and once in the back, either of the shots being likely to produce death; that the person thus shot was never again seen or heard of; that that night—a dark one-defendants built a large fire, and that subsequently remnants of a few bones were found in the ashes; that one of the defendants stated that they had burned the body; that the sheep were taken possession of by the defendants, the wool sold, and the proceeds applied to their own use--it was held that this was evidence sufficient to establish the corpus delicti, viz.,

the fact of death, and that it occurred by criminal agency: People v. Alviso, 55 Cal. 230; see also People v. Dick, 37 Cal. 277.

190. Punishment for murder.

Burden of proving justification or excuse: See sec. 1105, post.

Showing that defendant is already a life convict-In People v. Hong Ah Duck, 61 Cal. 387, after much deliberation, it was ruled that the prosecution may show that the defendant in a trial for murder is already a life convict, not for the purpose of affecting the question of guilt, but that the jury might know that if they brought in a verdict of guilty, and affixed as a punishment imprisonment for life, it would be no punishment at all.

Death penalty, how executed.-Whenever, in a proper case, the judgment of the court directs the death of the defendant, the punishment in this state is inflicted "by hanging the defendant by the neck until he is dead:" See secs. 1228, 1229.

If the judgment directs that defendant be taken to the "place of public execution," it is surplusage to that extent. Sections 1228 and 1229 provide for the execution. "The place of execution is prescribed by the law-adjudging that it be public does not vitiate: People v. Brown, 59 Cal. 345, 357.

Discretion of the jury.—If the jury agree

191. Petit treason abolished.

that the defendant is guilty of murder in the first degree, but cannot agree that the punishment shall be imprisonment for life, or if they do not declare that the punishment shall be such imprisonment, it is the duty of the court to pronounce judgment of death. The jury need not declare that death shall be inflicted; if the verdict is silent in respect to the penalty, the court must pronounce the death sentence: People v. Welch, 49 Cal. 174.

Instruction as to exercise of discretion.-It is not error "to instruct the jury that if they found the defendant guilty of murder in the first degree with some extenuating fact or circumstance in the case, it was within their discretion to pronounce such a sentence as would relieve the defendant from the extreme penalty of the law. Section 190 of the Penal Code invests a jury in a criminal case for murder with that discretion; but the discretion is not an arbitrary one, and it was proper for the court to instruct them as to its exercise:" People v. Jones, 63 Cal. 168, 170; see also People v. Murback, 64 Id. 369.

"Petit treason, according to the statute of 25 Edw. III., c. 2, might happen three ways: by a servant killing his master, a wife her husband, or an ecclesiastical person (either secular or regular) his superior, to whom he owed faith and obedience. Petit treason was but an aggravated degree of murder. The distinction

between it and murder was abolished in England by statute of 9 Geo. IV., c. 31, sec. 2. The punishment of petit treason in a man was to be drawn and quartered; in a woman to be drawn and burned: 4 Bla. Com. 204:" Commissioners' note.

"This section embodies the material portions of sections 22, 23, 24, and 25 of the crimes and punishment act of 1850, Stats. 1850, 229:" From commissioners' note.

Murder and manslaughter, distinction between. The presence or absence of malice is the distinguishing feature between murder and manslaughter: People v. Crowey, 56 Cal. 36. If malice enter into the unlawful act by

which the death is caused, it is murder; but if malice be wanting, it is but manslaughter: 1 Whart. Crim. L., Sth ed., sec. 304; 1 Russell on Crimes, 667, 783. For definition and illustrations of what constitutes legal malice, see notes to sections 187 and 188. Manslaughter is a homicide not excusable, not justifiable, but yet not intentional; a homicide which results from wrong conduct. but not from the cool intent to

kill; from misbehavior; from misconduct which results differently from what the party had reason to expect from the act which was done. Murder is a homicide which has been caused intentionally-intentionally, either from the express purpose to commit the murder, or from a wrongful act of violence, with such means and in such a manner as might reasonably be supposed would cause death. There must be in murder what is called "malice;" namely, either a purpose to kill, or else a purpose to do an act of violence which might reasonably be supposed would cause death, and which does cause death: Commonwealth v. Sturtevant, 117 Mass. 122; S. C., Whart. on Homicide, 742. The law, in consideration of human weakness, makes the offense manslaughter when it is committed under the influence of passion caused by an insult or provocation sufficient to excite an irresistible passion in a reasonable person; one of ordinary self-control. "If defendant was so far in possession of his mental faculties as to be capable of knowing that the act of killing was wrong, any partial defect of understanding which might cause him more readily to give way to passion than a man ordinarily reasonable cannot be considered for any purpose. To reduce the offense to manslaughter, the provocation must at least be such as would stir the resentment of a reasonable man:" People v. Hurtado, 63 Cal. 288.

Whether a killing is murder or manslaughter does not depend upon the fact whether or not a dangerous weapon was used; and an instruction which makes the character of the crime depend, not upon the intention with which an act was done, but upon the nature of the instrument used, is error: People v. Crowey, 56 Cal. 36.

Voluntary manslaughter.—“If, upon a sudden quarrel, two persons fight, and one of them kills the other, this is manslaughter; and so it is if they, upon such an occasion, go out and fight in a field, for this is one continued act of passion, and the law pays that regard to human frailty as not to put a hasty and a deliberate act upon the same footing with regard to guilt. So also if a man be greatly provoked, as by pulling his nose or other great indignity, and

193. Punishment of manslaughter.

immediately kills his aggressor, though this action is not excusable se defendendo, since there is no absolute necessity for doing it to preserve himself, yet neither is it murder, for there is no previous malice, but it is manslaughter. So if a man takes another in the act of adultery with his wife, and kills him directly upon the spot, it is manslaughter:" 4 Bla. Com. 191. Voluntary manslaughter differs from homicide in self-defense in this, that in the one case there is an apparent necessity for selfpreservation to kill the aggressor, while in the other there is no such necessity at all, it being only a sudden act of revenge: Id. In cases of mutual combat, to reduce the offense to manslaughter it must appear that the contest was waged on equal terms, and no undue advantage sought or taken by the defendant; for if such was the case, malice may be inferred, and the killing will be murder: People v. Sanchez, 24 Cal. 17. See People v. Barry, 31 Id. 357, and People v. Crowey, 56 Id. 36.

No words of reproach, however grievous, are sufficient provocation to reduce the offense of intentional homicide from murder to manslaughter: People v. Murback, 64 Cal. 369; People v. Tampkin, 62 Id. 472; People v. Turley, 50 Id. 469; People v. Butler, 8 Id. 435; Commonwealth v. Webster, 5 Cush. 295; East P. C., sec. 20.

Involuntary manslaughter is where death results unintentionally, so far as the defendant is concerned, from an unlawful act on his part not amounting to felony, or from a lawful act negligently performed. Hence it is manslaughter where the death of another occurs through the defendant's negligent use of dangerous agencies; so also where death incidentally but unintentionally results in the execution of a trespass: Whart. on Homicide, sec. 6. Almost all the cases of involuntary manslaughter will be found to fall under one of two classes: 1. Where the killing takes place in the prosecution of some criminal, unlawful, or wanton act, not a felony; 2. Where the killing takes place in consequence of some lawful act being criminally or improperly performed, or of some act performed without lawful authority.

"This section affirms the common-law rule: 2 Bish. Crim. Law., sec. 655; State v. Orrell, 1 Dev. L. 139. 'Fractions of a day are not regarded, consequently it makes no difference in

195. Excusable homicide.

the computation whether the stroke or death is in the morning or afternoon:' Id:" Commis

sioners' note.