properly punished as having attempted to | commit the crime. Whenever the acts of a person have gone to the extent of placing it in his power to commit the offense unless interrupted, and nothing but such interruption prevents his present commission of the offense, at least then he is guilty of an attempt to commit the offense, whatever may be the rule as to his conduct before it reached that stage. This is clearly illustrated by Judge Daniels in People v. O'Connell, 60 Hun, 109, 14 N. Y. Supp. 485, where the defendant was convicted of an attempt to commit an assault in the first degree. There it was said: "Whether the assault charged be made by means of a firearm or any other deadly weapon, it is necessary for the creation of the crime that the murder, though the discharge of the gun is accidental. Epps v. State, 19 Ga. 102. So, an instruction in a prosecution for murder against one who pointed a gun at another, when the gun was discharged killing the latter, that, if the jury have a reasonable doubt as to whether the shooting was accidental or not the defendant is entitled to an acquittal, is improper and should not be given, since the jury might find that the shooting was accidental, and yet also believe that the fatal shot was fired by the defendant in the course of the unlawful act of presenting a gun at the person of the deceased. Sanders v. State, 105 Ala. 4, 16 So. 935. But where two persons enter into a conflict, and afterwards discontinue it, and after the conflict is ended a pistol in the hands of one of the defendants is accidentally fired killing a person, resulting from his recklessly careless use of it, he is guilty of manslaughter, and not of murder. Minton v. Com. 79 Ky. 461. So, where a person without lawful excuse intentionally fires a gun or pistol into a crowd of people, though not with the design of killing anyone, but for his own diversion merely, killing one of the crowd, he is guilty of murder, since such conduct establishes general malignity and recklessness of human life. Brown V. Com. 13 Ky. L. Rep. 372, 17 S. W. 220; Golliher v. Com. 2 Duv. 163, 87 Am. Dec. 493; Mitchell v. State, 60 Ala. 26; Washington v. State, 60 Ala. 10, 31 Am. Rep. 28; Bailey v. State, 133 Ala. 155, 32 So. 57; Golding v. State, 26 Fla. 530, 8 So. 311; State v. Edwards, 71 Mo. 312; State v. Young, 50 W. Va. 96, 88 Am. St. Rep. 846, 40 S. E. 334. It being murder in the first degree under the Alabama statute. Mitchell v. State, 60 Ala. 26; Washington v. State, 60 Ala. 10, 31 Am. Rep. 28; Bailey v. State, 133 Ala. 155, 32 So. 57. And murder in the second degree under the Missouri statute. State v. Edwards, 71 Mo. 312. And one who intentionally and recklessly fires a pistol into a private residence and kills a person is guilty of murder in the second degree, and not merely of negligent homicide. Russell v. State, 38 Tex. Crim. Rep. 590, 44 S. W. 159. And an instruction in a prosecution for homicide that a ruffian, who fires into a crowd out of mere wantonness, upon a sudden motion, is person intended to be assailed shall not be so far from the intended assailant as to be beyond all possibility of injury from him. But that is not an essential circumstance in the case of an attempt. For the assailant may load a firearm, and then start towards the person to be assailed in order to attain reaching distance of him; or, when the assault is intended to be made with an axe, which is the weapon mentioned in the indictment, the accused may obtain and raise it, intending to strike with it, when too far away from the person intended to be struck, and then approach towards that person and be intercepted before he can reach a position of danger to him, which would be at attempt to commit the crime charged. . . For a person who provides himself with an axe as guilty as if he had lain in wait for his victim is not subject to objection as prejudicial to the accused, where it was used by the court in stating hypothetical cases in defining the crime of which he was charged, and not as a direction to determine whether the facts of the case constituted such crime. State v. Kelly, 1 Nev. 224. But one who shoots off a revolver aiming it at a stove, when the ball accidentally glances therefrom and hits and kills a person in the same room, cannot be held guilty of murder in the third degree under Wis. Rev. Stat. § 4345, since in such case it cannot be said that he intended to do deceased great bodily harm. Terrill v. State, 74 Wis. 278, 42 N. W. 243. And the act of a person having a pistol at a church in violation of the statute prohibiting the bearing of arms at such a place, and of handling the pistol negligently and discharging it unintentionally, thereby accidentally committing a homicide, is not necessarily murder; it may be involuntary manslaughter in the commission of an unlawful act; the question would depend upon whether it was a reckless, or only a negligent, shooting. Pool v. State, 87 Ga. 526, 13 S. E. 556. An instruction in a prosecution for murder, however, that, if the appellant, in the commission of an act imminently dangerous to others, evinces a depraved heart regardless of human life, and without a premeditated design to kill, shoots and kills another, he is guilty of murder, is not inconsistent with another instruction, with reference to murder deliberately and wilfully committed with malice aforethought. Gordon v. State (Miss.) 29 So. 529. And where one of the questions in grading a homicide is as to whether the pistol with which the killing was done was recklessly fired with criminal indifference to the consequences. it is not necessary, in order to constitute the offense of murder, that the accused should have been engaged in an unlawful act at the time of firing it. Pool v. State, 87 Ga. 526, 13 S. E. 556. As to improper use of firearms of a less grossly negligent character, a killing from which would be manslaughter only, see infra, IV. d, 2 3. Assaults. Cases of felonious assault tending naturally to destroy life are here collected only so far as tified by the evidence, and that this court is not called upon to interfere with it. The judgment should be affirmed. with which he intends to kill another, and | or liberty. The jury has found the defendafterwards approaches towards him to make ant guilty. I believe that verdict to be justhat use of it, but is prevented from doing so by the flight of the other, or by being himself disarmed, or otherwise prevented from reaching his intended victim, commits acts tending to effect the commission of the crime within the language of this section of the Code." The objection to the sufficiency of the indictment is disposed of in the opinion of Judge O'Brien. There are no other questions raised on this appeal that require discussion. The case was submitted to the jury by the learned trial judge in a charge eminently fair, in which attention was called to every rule of law which safeguards the rights of a person on trial for his life they are of the class in which the unlawful act, consisting of the assault, is not an element or ingredient of the act of killing, but constitutes an independent crime not merged in it; and so far as they turn upon, or determine, questions with reference to the effect of the unlawful act upon the crime involved in the killing. Thus, a felonious attack by a husband upon his wife with brickbats and rocks, by reason of which she was knocked into a ditch and her neck was broken by the fall, producing death, constitutes murder, if the attack is the primary cause of the death, although it may have directly resulted from the fall; and contains no element of involuntary manslaughter. Thornton v. State, 107 Ga. 683, 33 S. E. 673. And such an attack with apparent malice warrants an inference that there was an intention on the part of the husband to kill; and, though the theory of involuntary manslaughter might be predicated upon his statement, it is not error to omit to charge the jury as to the form of their verdict, in the event of their finding the defendant guilty of involuntary manslaughter, no request to charge on that subject having been made. Ibid. And where a woman seeking to escape from a murderous attack by a man, believing that he intended to kill her, falls into a canal and is drowned, it is not necessary for the prosecution to establish the actual existence of a malicious intent. Norman v. United States, 20 App. D. C. 495. And a man who threw a beer glass at his wife, and thereby broke a lamp which she was carrying, having oil and a wick, and which was lighted and burning, and by means of such breaking the oil was spilled and pouted upon her, by reason of which it became ignited and her clothing and person were burned so that she died, is guilty of murder, whether he intended the glass should strike her, his motherin-law, or his child, or whether he had any specific intent, or acted solely from general malicious recklessness, disregarding any and all consequences. Mayes v. People, 106 Ill. 306, 46 Am. Rep. 698. So, where a man and his wife were fighting in the house of another, and the latter, seeing them fighting, came in and endeavored to part them, whereupon the husband thrust him away and threw him down upon the iron bar in a chimney, by which one of his ribs was broken, Gray, Martin, Vann and Werner, JJ., concur. O'Brien, J., dissenting: The defendant has been convicted of murder in the first degree upon an indictment charging him with having, on the 27th day of November, 1900, shot and killed Matthew Wilson, a policeman, with the deliberate and premeditated design to effect his death. About 2 o'clock on the morning of the day and his death was afterwards caused, it is murder. Tomson's Case, Kelyng, 66. And where a man pursued his housekeeper along the street, shooting at her, and followed her into the house of a stranger, and there shot the stranger, who interfered, the purpose he had in pursuing the woman will be deemed to have entered into the purpose with which he shot deceased; and a complaint, warrant of arrest, and minutes of the police court in the matter of the charge brought against him by his housekeeper, for disturbing the peace, are admissible in evidence in a prosecution for the murder. People v. Miller, 121 Cal. 343, 53 Pac. 816. And where three persons, pursuant to a conspiracy to beat another into insensibility and then rob him, continued their beating until he was dead, and then set fire to him, a charge on manslaughter in a prosecution for the killing is not called for on the theory that their objeet was to rob and not to murder, and that it was not shown that they used an instrument likely to produce death. Hatcher v. State, 43 Tex. Crim. Rep. 237, 65 S. W. 97. So, one who commits an assault and battery on another, knowing, or having reasonable cause to believe, that the other is sick and suffering from disease and in such a weak and feeble condition that his attack will endanger her life, or inflict on her great bodily harm, or hasten her death, which ensues, may be found guilty of murder, since this would justify the jury in finding implied malice, though it would not if he was aware of her sickness, and had no reason to suppose that his acts would do her any harm beyond that which would be occasioned by similar acts to persons in health. Com. v. Fox, 7 Gray, 585. Likewise, where a public highway is obstructed by a heavy fall of snow, so as to become impassable, travelers have the right to enter upon and travel across adjoining lands; and where, in such case, the owner of such lands prepares himself beforehand with arms, and goes to a place where a traveler would enter upon his lands, for the purpose, if necessary, of using such arms to prevent the traveler from so entering, he is a wrongdoer; and if he kills the traveler in the encounter, the killing is murder. State v. Talley, 9 Houst. (Del.. 417, 33 Atl. 181. And where, in a prosecution for homicide, it appears that the man was whipped to death; der the left nipple, obliquely from backwards, forwards, and upwards, as described by the medical testimony. The bullet when located was 1 or 5 inches higher up in the body than the point where it first entered. This, upon all the testimony, was the fatal wound, sufficient to, produce instant death; and the indictment is framed and the prosecution based upon the theory that the deseizes the offender, and, being encouraged by a concourse of people, throws him into an adjoining pond by way of avenging the wrong by ducking him, but without any apparent intention on his part of taking the thief's life, is guilty of manslaughter only, when the thief is drowned. Rex v. Fray, 1 East P. C. 236. above named, Wilson was found dead upon | deep in the muscles of the right shoulder the stone steps of a store in the village of from behind. None of these wounds was Cobleskill, the body resting upon a plat- serious, or of a character to produce death. form or stoop in front of the store which | The bullet that produced death entered the was reached by two stone steps. He was right side at the seventh rib from behind, evidently standing upon the platform when obliquely passing through the rib and the killed, as the body was found there with the middle lobe of the right lung, thence feet resting lower down upon the steps. through the pericardium of the heart to the It appeared upon the post mortem exam-right auricle, and lodged in the muscles unination that there were four wounds upon the body inflicted by bullets fired from a pistol or revolver. One of the bullets passed through the left wrist, another was found in the left arm about 2 inches below the shoulder. This was a mere flesh wound, and the bullet was readily extracted. The third wound was in the shoulder directly back of the scapular, and had penetrated and that the accused and others, went from one store to another in order to purchase a cowhide, he hiding it by thrusting it in his bosom, and walking along with his victim through the streets of the town; and that he attracted the attention of persons by previous threats against him, and by borrowing a pair of manacles, and by going several times for a fresh supply of whisky and water while perpetrating the deed; and that they hid the body under brush to conceal it; and that nearly half a day was taken in the transaction, an instruction that, if the jury believe from the evidence that it was not the intention of those concerned in lynching deceased to kill him, but that they did intend to do him great bodily harm, and that in so doing death ensued, such killing is murder in the first degree, is correcting from the jury the question of degree in the under Mo. crimes and punishments act 1845, § 38, making the person by whose act or procurement great bodily harm has been received by another guilty of a felony, and § 1 thereof, making homicide committed in the attempt to perpetrate said felony murder in the first degree. State v. Jennings, 18 Mo. 435. Where, however, a man repeatedly demanded of the proprietress of a saloon that she give him liquor, and upon her refusal struck her with his cienched fist a severe blow which caused premature labor and convulsions, followed by death about fourteen hours afterwards, the act was one which would not constitute murder at common law. People v. McKeon, 31 Hun, 449. And while, if two persons met casually in the night, having had no previous acquaintance, and one of them took offense at some trifling remark made by the other, not understood by others to have referred to him, and stabbed the person making the remark and killed him, the killing, though groundless and probably without intent to take life, is by an act imminently dangerous to others and evincing a depraved mind regardless of human life, and would justify a verdict of murder in the first degree; it is not within the definition of murder in the second degree as given in N. Y. Laws 1862, chap. 197, § 6, to be the killing of a human being by a person engaged in the commission of any felony where it is not murder in the first degree, or one of the different degrees of manslaughter, or justifiable or excusable homicide. People v. Skeehan, 49 Barb. 217. And refusal to charge the jury, in a prosecution for homicide in which it appears that the deceased sought to gain admittance into a house of ill fame by violence and against the will of the keeper, who made an attack upon him, and death ensued, that, if the mortal wound was given in an attempt to commit an offense less than felony, the accused should not be convicted of murder, is erroneous, as withdraw homicide; since a homicide occasioned by a misdemeanor, or an attempt to commit one, though murder at common law, is but manslaughter in the first degree under 2 N. Y. Rev. Stat. 661, § 6. People v. Rector, 19 Wend. 569. 4. Dueling. Independently of statutory enactment, one who kills another in a duel, whether formal or suddenly improvised, and however fairly conducted, is legally a murderer. Thomas v. State, 61 Miss. 60; People v. Bush, 65 Cal. 129, 3 Pac. 590; People er rel. Terry v. Bartlett, 14 Cal. 651; State v. Underwood, 57 Mo. 40; Reg. v. Young, 8 Carr. & P. 644. And the seconds are also equally guilty, and so are others present, if they give their aid, assistance, and encouragement to the contest. Reg. v. Young, 8 Car. & P. 644. And the fact, that such an encounter comes within a statute against dueling does not render erroneous an instruction and conviction under the general rule. People v. Bush, 65 Cal. 129, 3 Pac. 590. And where a person arranges with his adversary, hours before the fight, that it shall take place, or authorizes his friends to make such arrangement for him, it is not "sudden combat" within the meaning of a statute declaring a homicide to be excusable when committed upon sudden combat, without any undue advantage being taken and without any dangerous weapons being used, and not done in a cruel or unusual manner; and in such a case And one who, having had his pockets picked, it is for the jury to say whether the evidence fendant either feloniously fired the shot himself, or is legally responsible for the act if committed by someone else. The People attempted to connect the defendant with the homicide by circumstantial evidence and by the testimony of an accomplice. There is very little information in the record with respect to the defendant's antecedent history, until we come to the 26th of November, 1900, the day prior to the homicide, when he and five other persons were at the house of a Mrs. Peters in Albany. One of the other persons was a man named Harris, who was the accomplice that testified at the trial under an arrangement with the district attorney made while he was in prison charged with this or some other offense. The defendant was identified showed that the prisoner made the previous arrangements for the fight, or whether they were made by his friends in his behalf without his knowledge. People v. Tannan, 4 Park. Crim. Rep. 514. as one of the six persons present at the 5. Derailing railway train. People But proof that the deceased and the defendant had an altercation; and that the deceased insisted that they step aside and fight; and that later in the day the accused suggested to deceased that they retire to the suburbs of the town and settle the matter; and that they No act could be more naturally designed to went, the accused protesting that he did not destroy life than the derailing of a railway want to fight; and that deceased was killed in train, and nothing could evince a more dethe fight, does not show that prearrangement | praved mind regardless of human life. to fight with deadly weapons which would constitute a duel within the meaning of Texas Penal Code, art. 715, declaring that, if either of the combatants in a duel be killed, the survivor shall be deemed guilty of murder in the first degree, and be punished accordingly. Guerrero v. State, 39 Tex. Crim. Rep. 662, 47 S. W. 655. So, one who enters into a contest dangerously armed, and fights under an unfair advantage, though mutual blows pass, killing his opponent, is guilty of murder, and not of manslaughter. State v. Hildreth, 31 N. C. (9 Ired. L.) 429, 51 Am. Dec. 364. And the rule is the same when at the beginning of the conflict one of the parties prepares a deadly weapon so as to have power to use it, and afterwards kills the other party with it, the killing being murder. State v. Christian, 66 Mo. 138; State v. Vance, 29 Wash. 435, 70 Pac. 34. And where two men fight as the result of a sudden quarrel, with deadly weapons, and one strikes the other a mortal blow before the person so struck is prepared to use his weapon, the killing is murder. State v. Ellick, 60 N. C. (2 Winst. L.) 56, 86 Am. Dec. 442. But mere presence at the time and place of fighting a duel is not sufficient to render a person guilty of murder with one of the principals in the duel, if the person thus present does not sustain the principal either by advice or assistance, and did not go to the place for the purpose of encouraging and forwarding the unlawful conflict. Reg. v. Young, 8 Car. & P. 644. And dueiing is a special offense under a statute providing that, if any person shall, by previous appointment or agreement, fight a duel, and in so doing shall kill his antagonist or any person or persons, or shall inflict such And a railway train is thrown from the track by an obstruction wrongfully placed upon it, and a human being is killed, the person committing the act is guilty of murder in the first degree. Presley v. State, 59 Ala. 98; Mitchell v. State, 60 Ala. 26. A person who displaced fixtures of a railway track so as to derail a train, whereby a passenger was killed, is an enemy to the human race, and his liberty is a menace to society, and a verdict of murder in the first degree in a prosecution for such killing is properly sus tained, though he intended afterwards to signal the train and stop it, and advise the persons on the train that the fixtures of the track had been displaced, in the hope that for his conduct the railway company would give him employment, or that the passengers on the train would give him money, not intending to cause the derailment of the train, or the death of the person killed. Davis v. State, 51 Neb. 301, 70 N. W. 984. In State v. Brown, Houst. Crim. Rep. (Del.) 539, however, it was held that one who deliberately places an obstruction upon a railroad track, from which great bodily harm to some of those on an approaching train is liable to ensue, doing it for the purpose of informing the conductor of an approaching train of the obstruction, with a view of thus obtaining employment from the railroad, but who fails to give notice in time, so that a train runs against the obstruction and several are killed, there being no premeditated wickedness in his act, may be found guilty of manslaughter only. Where a railway train is wrecked and death ensues it is not essential that the persons accused of the crime should have been convicted of the crime of wrecking the train before indictment for the murder of a party who met to commit some crime, the precise nature of which is not clearly disclosed by the evidence. But their subsequent movements, culminating in the death of Wilson, so far as there is any direct testimony upon the subject, must rest almost wholly upon the testimony of Harris, the accomplice. He tells us that he was present at the meeting in Albany; that he and two other persons boarded or took meals at the house where they were, but did not disclose the plan of action agreed upon, if any; that at about 7 o'clock in the evening of the 26th of November the whole party boarded a freight train that ran from Albany to Cobleskill, about 45 miles distant. It appears that they rode on the top of the cars as tramps, and were seen by the conductor, who did not his death by the unlawful interference with the railroad; and it is competent to prove the wrecking of the train upon the indictment for the murder, as the means by which the accused produced death. State v. Thibodeaux, 48 La. Ann. 600, 19 So. 680. interfere with them, so far as appears. They had bottles of whisky, which they imbibed quite freely on the journey, and the proof shows, or tends to show, that some or all of them, including the defendant, were drunk. The train stopped some time at the first station after leaving Albany, and the party all got off, but boarded the train again when it was about to start, and it arrived at Cobleskill about 11 o'clock. Harris relates the movements of the party from that time substantially as follows: After landing they walked on the railroad to a small shanty, broke the door, went in and remained there until about 1 o'clock in the morning smoking and drinking. Then they went to a coal house on the railroad in process of construction. There they broke open person or persons, the person so offending shall be deemed guilty of murder in the first or second degree, or manslaughter according to the nature of the offense, and, on conviction thereof, shail be punished as in other cases.-creates a new offense only in its first provisions; so far as the crimes of murder and manslaughter are concerned, they are left to be governed by the same rules that pertain in other cases. State v. Brooks, 1 Ohio Dec. Reprint, 407. See also Williams v. State, 30 Tex. App. 354, 17 S. W. 408, infra, XII. b. And testimony showing hostile feelings of the defendant, and continued acts of hostility by him toward a railway, are to be considered in a prosecution against him for homicide, in placing an obstruction upon the track and throwing a train of cars therefrom causing death, as well to show that he is the person who placed the obstruction on the track, as the maiice which prompted the act; though the IV. Homicide in the commission of unlawful commission of the offense shown by other testimony. 1 Ohio Dec. Reprint, 407. must be clearly State v. Brooks, So, since Ga. Penal Code, § 513, provides that, if death ensues from the wrecking of a railway train by certain designated acts the offender shall be guilty of murder, it is not error, on the trial of an indictment for a homicide resulting from such wrecking, for the trial judge to charge the jury as to the offense of murder as defined generally in § 60 of the Penal Code, and such an instruction is not subject to the objection that its only effect would be to inflame the minds of the jury against the accused and prevent them from giving proper consideration to the real questions made in the case. Shaw v. State, 102 Ga. 660, 29 S. E. 477. And the use of the word "inculpating," in an instruction in a prosecution for homicide caused by the wrecking of a railroad train that, if the jury believe from the evidence, and find, that there was evidence that the defendant, without any information from anyone else, pointed out the place where the tools were found, and they were the tools that were used in wrecking the train, that would be an inculpating circumstance that they might consider with reference to the guilt of the accused in connection with other evidence,-is not objectionable as amounting to an expression, or intimation, or confession by the court with respect to the guilt or innocence of the accused. Ibid. The Ohio statute providing for the punishment, by imprisonment, etc., of any person obstructing a railway train; provided, however, that, if any person shall, by the commission of the aforesaid offense, cause the death of any acts not felonies. a. General and common-law rules. An unlawful killing done without any design, intention, or purpose of killing, but in the commission of some unlawful act not amounting to a felony, is involuntary manslaughter. Adams v. State, 65 Ind. 565; Bias v. United States (Ind. Terr.) 53 S. W. 471. If an act is unlawful, but not a felony, though dangerous, but not directly so, yet sufficiently so to come under the condemnation of the law, and death, unintended, resuits from it, the homicide is manslaughter. People v. Holmes, 118 Cal. 444, 50 Pac. 675; Johnson v. State, 94 Ala. 35, 10 So. 667; Boykin v. People, 22 Colo. 496, 45 Pac. 419. And involuntary manslaughter at common law is where death resulted unintentionally, so far as the defendant was concerned, from an unlawful act on his part, not amounting to a felony, or from a lawful act negligently performed. United States v. Meagher, 37 Fed. 875. It is the intentional application of unlawful force whereby death ensued, though without specific intent to kill, and though the instru ment used was not calculated to produce death. McManus v. State, 36 Ala. 285. It is the killing of a person against or beside the will of the person who kills him. York v. Com. 82 Ky. 360. And it includes all those homicides which were below the grade of murder, and were neither justifiable nor excusable, and which were the accidental result of some unlawful act, less than a felony, not aimed or directed against the person slain. McManus v. State, 36 Ala. 285. |