And where an officer saw a person running at night pursued by another, crying, "Stop, thief," and he shot the person pursued, claiming to have intended to shoot over his head, to determine whether his act was excusable or not it is necessary for the jury to consider, first, whether the defendant was justified in attempting to arrest such person at all, and if so, second, whether the act of shooting merely for the purpose of intimidating him, thus causing him to stop, and without any intention of killing or wounding him, was or was not criminal negligence. Sanders v. State, 105 Ala. 4, 16 So. 935.

So, where one shot another in the act of illustrating to him the use of a pistol, when shooting from the pocket through his coat, and while so illustrating that manner of using the pistol, it was pointed toward the deceased and discharged, killing him, a verdict of guilty of manslaughter is proper. Weller v. State, 19 Ohio C. C. 166.

And where the shooting was an accident, evidence of ownership of other revolvers, and instances connected with them, and with such ownership, is competent and pertinent in a prosecution for the homicide, as touching his familiarity with weapons of that kind and their use, and the dangers if not carefully handled. Ibid.

And it may be shown on cross-examination that he was entirely familiar with firearms of this class, and how they might be pointed or aimed at another while secreted in the coat pocket, Ibid.

So, where a man found a pistol in the street which he had reason to believe was not loaded, and, after having tried it with the rammer, which had gone down into the muzzle of the pistol, the rammer in fact being too short, he carried the pistol home and snapped it at his wife, on which the pistol went off killing her, the act is manslaughter; since he had not used ordinary precaution to learn if the pistol was unloaded. Rampton's Case, 1 East P. C. 267.

But when death resulted to one from the discharge of a gun in the hands of another who had no intention to kill and no intention to discharge the gun, the discharge being caused by the reckless manner in which the gun was handled, the slayer is guilty of involuntary manslaughter only; and the particular grade

The proof must show that at some appreciable space of time prior to the firing of the fatal shot the defendant and his associates, confederating together, and, acting in concert, formed a deliberate and premeditated design to effect the death of the person killed, or some human being. People v. Wilson, 145 N. Y. 628, 40 N. E. 392. Considering all the circumstances of this case from the interview between the parties in Albany, the journey on the freight train, the arrival at Cobleskill, the condition that the party were in, the alleged separation of two of them from the rest when the crowbar was left behind, the firing when the deceased was standing on a platform in front of a store upon which it is not claimed they of that crime would be dependent upon whether at the time and place of the killing it was lawful for the slayer to be in possession of a deadly weapon. Austin v. State, 110 Ga. 748, 78 Am. St. Rep. 134, 36 S. E. 52.

One who draws a pistol and places it in the palm of his hand, and collectedly waits to see whether another about to attack him intends to force upon him the necessity of using it to protect himself, can only be guilty of involuntary manslaughter in the commission or performance of a lawful act, in which necessary discretion or caution has not been observed, where, after the emergency has apparently passed away, the pistol goes off, seemingly by accident, while still resting in the palm of his left hand, killing a man. Aaron v. State, 31 Ga. 167.

And one who, with others, seizes an intoxicated and violent person for the purpose of taking a pistol from him, and after securing it the pistol goes off, killing the person from whom it is taken, is only guilty, if at all, of involuntary manslaughter. Adams v. State, 65 Ind. 565.

And evidence in a prosecution against a husband for killing his wife, that he waved his pistol and cursed and endeavored to intimidate two of his neighbors, and that while doing so his wife came out and grabbed the pistol, and that it went off killing her, calls for a charge on negligent homicide of the second degree, where it appears that, if he had intended killing his neighbors, he could have shot at either of them before the interference of his wife, and that, while he had had previous difficulties with her, they apeared to be on good terms at the time. Howard v. State, 25 Tex. App. 686, 8 S. W. 929.

And where a husband takes a gun away from his wife, and she is killed in the scuffle for possession thereof, he is not guilty of negligent homicide where he apprehends danger either to himself or her from her use thereof, although the muzzle is held by her and turned toward her at the time; and a refusal to charge with reference to negligent homicide in a prosecution for such killing is not error. Blalock v. State, 40 Tex. Crim. Rep. 154, 49 S. W. 100.

So, if a killing is wholly accidental, the person doing it should be acquitted. Com. v. Matthews, 89 Ky. 287, 12 S. W. 333.

And the highest degree of care and prudence in handling a dangerous and deadly weapon is not required to relieve the person thus handling

had any design, or intended to enter, it cannot, I think, be said that there was such proof of all these elements of murder in the first degree as to sustain the verdict. The identity of the person who fired the first shot is an important element in the determination of the question. The only direct proof on that point is to be found in the testimony of the accomplice as to the statement of the party that the policeman fired first, when they refused to stop, and then they returned the fire. It is suggested that the jury could have rejected these statements as untrue, and, assuming that they could, the question arises, What could they have substituted in its place? Nothing except the theory which seems to me to be without any support in the proof at all, and it from responsibility for manslaughter in accidentally killing another with it, but only such care as a reasonably prudent man should or ought to use under like circumstances. State v. Hardie, 47 Iowa, 647, 29 Am. Rep. 496. And it does not necessarily follow that, where one of two persons remote from other people killed the other during the process of voluntarily exchanging loaded weapons, or by an accidental discharge of his own weapon while they were both engaged in shooting at a mark or in the clouds, that such act was of such a reck less and wanton nature as to be felonious or criminal; and whether the party killing the other was guilty, or not, of manslaughter must depend upon the time, place, and actual circumstances under which it occurred. Smith v. Com. 93 Ky. 318, 20 S. W. 229.

And where, in such a case, the one killed was a prisoner and the other was his guard, the question of the guard's criminality should be determined without reference to the relation of guard and prisoner; and an instruction in a prosecution therefor, that it was the duty of the guard, not only to prevent an escape, but also, so far as he reasonably could, to protect the prisoner from violence, is erroneous and calculated to mislead the jury. Ibid.

And where, on a prosecution for homicide, the evidence tended to show that a bartender asked the defendant to pay for drinks that he had ordered, and that, in response thereto, the defendant took a revolver from his pocket, which was immediately discharged and a fatal wound inflicted, evidence that the defendant carried his revolver and money in the same pocket, and when about to use money that same day, at other places, he had taken the revolver out of his pocket, and testimony as to whether he pointed the revolver at the time the shot was fired, are admissible as bearing upon the theory of accident. State v. Wright, 112 Iowa, 436, 84 N. W. 541.

3. Assaults.

Here, as under the head of assaults with relation to homicide in the commission of a felony, the cases are collected only so far as they are of the class in which the assault is not an element or ingredient of the act of killing, but constitutes an independent criminal act not merged in it, and so far as they determine questions with reference to the effect of the

that is that the defendant, or some one of the party of which he was one, fired the first shot. That proposition must be made out, if at all, by pure conjecture and speculation. Certainly no one can say that it is established beyond a reasonable doubt. What the accomplice testified to on this point is quite as reasonable and probable as anything else that he said, and to reject it without anything but inference or presumption to substitute in its place is rather an extreme principle to apply in a capital case. If the conviction must rest upon the fact that the party of which the defendant was one were engaged in an attempt to commit a felony, namely, the burglary of the post office, that proposition is not free from doubt. In or'der to establish it within the meaning of assault upon the crime involved in the killing.

When one strikes or assaults another, causing death, but not intending thereby to kill, he is guilty of manslaughter, and not murder; death resulting from an unlawful act not amounting to a felony. People v. Munn, 65 Cal. 211, 3 Pac. 650; Pence v. Com. 21 Ky. L. Rep. 500, 51 S. W. 801.

And the court, in a prosecution for homicide in which the accused struck the deceased with a stake on his head and killed him, not intending to kill him, but just to knock him down, should instruct the jury as to what constitutes involuntary manslaughter, consisting of the killing of a person in the performance of an unlawful act. Bruner v. State, 58 Ind. 159.

So, an unlawful assault and battery upon the person of another without any intention or purpose to kill him, by reason of which a mortal wound is inflicted, constitutes involuntary manslaughter within the meaning of ind. Rev. Stat. 1881, § 1908. State v. Johnson, 102 Ind. 247, 1 N. E. 297.

And a person committing an assault and battery upon another, from which death results, may be convicted of manslaughter in the first degree, under Wis. Rev. Stat. chap. 164, § 8, provided that kind of malice aforethought existed which would make the killing murder at common law. Rowan v. State, 30 Wis. 129, 11 Am. Rep. 559; State v. Hammond, 35 Wis. 315.

But a refusal to charge on manslaughter in the fourth degree consisting, under the Wisconsin statute, of an involuntary killing, is not error, where the prosecution contended that the defendant either struck deceased with a lamp intentionally, or intentionally struck a lamp carried by her, thus causing the fire which occasioned her death, and the defendant claimed to have struck the lamp accidentally while throwing up his hands under the belief that she was about to throw it at him. Bliss v. State, 117 Wis. 596, 94 N. W. 325.

So, one who, without previous acquaintance, takes an insulting remark made to another as addressed to himself, and strikes him several heavy blows, causing rupture of the heart and the death of the person struck, though he has no intention of killing him, is guilty of manslaughter, the killing being the result of an unlawful act without due caution and circumspec

charged in an indictment for murder in the first degree, and may be proved under such indictment. State v. Weems, 96 Iowa, 426, 65 N. W. 385.

And when a murder by violence upon express malice aforethought is charged, the prosecution may show, as part of the res gestæ, that it was done in the perpetration of, or in the attempt to perpetrate, either arson, rape, robbery, or burgiary. Reyes v. State, 10 Tex. App. 1; Roach V. State, 8 Tex. App. 479; State V. Weems, 96 Iowa, 426, 65 N. W. 387; State v. Foster, 136 Mo. 653, 38 S. W. 721.

In Roach v. State, 8 Tex. App. 479, supra, Tooney v. State, 5 Tex. App. 163, infra, XIV. b, was distinguished upon the ground that there the accused was charged with murder by poison, while here the accused is charged with the ordinary form of murder committed with express malice aforethought, the former being a special, and the latter a general, charge; the distinction between the two being the usual one in pleading, that, if a specific substantive matter be alleged, the pleader will be confined to that matter, and cannot introduce, in support of it, other grounds of which the defendant was not put upon notice.

And a charge as to murder thus perpetrated is proper under an indictment in the commonlaw form. Roach v. State, 8 Tex. App. 479; Williams v. State (Tex. Crim. App.) 64 S. W. 1042; Nite v. State, 41 Tex. Crim. Rep. 340, 54 S. W. 763; Sharpe v. State, 17 Tex. App. 487; State v. King, 24 Utah, 482, 91 Am. St. Rep. 808, 68 Pac. 418; State v. McGinnis, 158 Mo. 105, 59 S. W. 83.

In Rayburn v. State, 69 Ark. 177, 63 S. W. 356, however, it was held that an indictment charging the accused with wilfully, maliciously, and of his malice aforethought, and after premeditation and deliberation, killing and murdering another, will not support an instruction with reference to the killing of deceased in the perpetration of, or attempt to perpetrate, a robbery upon him.

So, a person indicted for murder in the first degree under a charge of deliberation and premeditation may be convicted of homicide committed while in the perpetration of a felony, or of one of the designated felonies, though 1ts commission while in the perpetration of felony was not specially pleaded. People v. Flanigan, 174 N. Y. 357, 66 N. E. 988; Cox v. People, 19 Hun, 430, Affirmed in 80 N. Y. 500; People v. Giblin, 115 N. Y. 196, 4 L. R. A. 757, 21 N. E. 1062; Mitchell v. State, 1 Tex. App. 195; Wall v. State, 18 Tex. 682, 70 Am. Dec. 302; State v. Johnson, 72 Iowa, 39, 34 N. W. 177. And see PEOPLE V. SULLIVAN.

An indictment charging murder committed with malice aforethought warrants a conviction of murder in the first degree upon proof of murder committed in perpetration of a robbery, the words "malice aforethought" in their legal sense properly describing the motive necessary to be proved in such a case, which does not involve the idea of a deliberate, premeditated, designed killing. State v. Pike, 49 N. H. 399, 6 Am. Rep. 533.

And if an indictment charges murder to have been committed wilfully, deliberately, and premeditatedly, or in perpetrating, or attempting to perpetrate, any arson, rape, robbery, or burglary under the provisions of Pa. act April 22, 1794, § 2, defining murder in the first degree,

a verdict of guilty sufficiently ascertains the murder to be in the first degree within the provision of that statute, that the jury shall ascertain in their verdict whether the murder be in the first or second degree. Johnson v. Com. 24 Pa. 386.

A conviction for an involuntary manslaughter, consisting of a killing caused by some unlawful act, or lawful act done in an unlawful manner, however, cannot be found under an indictment charging a felony alone, since such manslaughter is a misdemeanor under the statute. Com. v. Bilderback, 2 Pars. Sel. Eq. Cas. 447.

And an indictment containing three counts, the first charging murder to have been committed feloniously by pushing and throwing the deceased into a building on fire, which had been wilfully and feloniously set on fire by the prisoner and his associates; and the second and third counts charging arson, and then charging that the deceased was mortally burned and killed by the prisoner and his associates while engaged in the commission of such felony does not warrant a conviction for manslaughter, defined by the revised Statutes to be the killing of a human being without design to effect death, while engaged in the commission of a crime or misdemeanor not amounting to a felony. Morrisett v. People, 21 How. Pr. 203.

So, it is expressly provided by W. Va. Stat. 1882, chap. 118, amending chap. 144 of the Code, that it shall not be necessary, in an indictment for murder, to set forth the manner in which, or the means by which, the death of the deceased was caused; and it is sufficient to charge that the defendant did feloniously, wilfully, maliciously, deliberately, and unlawfully kill and murder the deceased. State v. Schnelle, 24 W. Va. 767.

And where an indictment charges murder in two counts, the first of which charges it to have been committed in the perpetration of a rape, and the second of which is in the common form, the second count will answer for all purposes which could have been answered by the first as an indictment for murder, though the first count would not be demurrable. Thompson v. Com. 20 Gratt. 724.

So. an indictment charging the defendant with killing a woman in an unlawful attempt forcibly and feloniously to ravish her by giv ing her a deadly poison known as cantharides, mingled with wine, intending thereby to excite her passions so as to cause her to yield herself to him, charges a murder by the administration of poison, and not murder in an attempt to commit a rape, and sufficiently charges a purpose to kill; the allegations in respect to attempted rape being regarded as surplusage. Bechtelheimer v. State, 54 Ind. 128.

In Sharpe v. State, 17 Tex. App. 487, however, it was said by Willson, J., that it seemed to him that where a pleader unnecessarily alleges that a murder is one committed with express malice, he thereby alleges one of the distinct species of murder in the first degree, and to that particular kind of murder the charge of the court should be confined.

And Gay v. State, 40 Tex. Crim. Rep. 242, 49 S. W. 612, holds that an instruction in a prosecution for homicide, with reference to murder in the perpetration of a robbery, is erroneous, in the absence of a direct or immediate taking of property from the person or posses