malice, the killing is not manslaughter, but murder 303

(C) Suicide.

250. In General.-Suicide, or self-murder, was a felony at common law, and it is still regarded as unlawful and criminal, though it is no longer punished.

By the common law of England, suicide was considered a crime. The lands and goods of the offender were forfeited to the king, as in the case of other felonies, and his body was ignominiously buried in the highway. He was deemed a murderer of himself and a felon.304 Suicide is no longer punishable either in England or in this country, but it has not for that reason ceased to be criminal.305 One who persuades another to kill himself, and is present when he does so, is guilty of murder as principal

St. Rep. 454; Rex v. Thompson, 1 Mood. C. C. 80, Beale's Cas. 477; Mockabee v. Com., 78 Ky. 380; Fleetwood v. Com., 80 Ky. 1.

303 Post, § 260 c.

304 3 Inst. 54; 1 Hale, P. C. 411; 2 Hale, P. C. 62; 1 Hawk. P. C. c. 27; 4 Bl. Comm. 189; State v. Levelle, 34 S. C. 120, 27 Am. St. Rep. 799; Com. v. Mink, 123 Mass. 422, 25 Am. Rep. 109, Beale's Cas. 206.

305 Com. v. Mink, supra.

in the second degree, or, if absent, he is guilty as an accessary before the fact.306 And if two persons agree to kill themselves together, and the means employed take effect upon one only, the survivor is guilty of murder of the one who dies.3 307 An attempt to commit suicide is indictable, unless the statutes make it otherwise.308 And if a person unintentionally kills another in attempting to commit suicide, he is guilty of manslaughter at least, and, according to a decision in South Carolina, of murder.309

306 4 Bl. Comm. 189; Rex v. Dyson, Russ. & R. 523; Com. v. Mink, supra; Com. v. Bowen, 13 Mass. 356, 7 Am. Dec. 154. But an accessary could not be punished because the principal could not be tried and convicted. Id.; Rex v. Russell, 1 Mood. C. C. 356; Reg. v. Leddington, 9 Car. & P. 79.

307 Rex v. Tyson, Russ. & R. 523; Reg. v. Alison, 8 Car. & P. 418.

308 Reg. v. Doody, 6 Cox, C. C. 463, Beale's Cas. 261; Reg. v. Burgess, Leigh & C. 258, 9 Cox, C. C. 247.

An attempt to commit suicide is not punishable under the Massachusetts statutes. Com. v. Dennis, 105 Mass. 162.

309 Com. v. Mink, 123 Mass. 422, 25 Am. Rep. 109, Beale's Cas. 206; State v. Levelle, 34 S. C.

(D) Statutory Degrees of Murder.

251. In General.-In many of the states, murder has by statute been divided into degrees, according to the state of mind of the person committing the same, or of the circumstances attending its commission. In most states, murder in the first degree is where there is an actual intent to kill and deliberation or premeditation, or where the homicide is committed, though unintentionally, in the perpetration of certain felonies. Murder in the second degree includes other homicides which would be punished as murder at common law. The statutes, however, vary in the different states, and what is murder in the first degree in one state may be murder in the second degree in another. In some states there is a third degree of murder. 252. Particular Statutes.

At common law there were no degrees of murder. All homicide with malice aforethought, whether express or implied, was simply murder. And all murder was punished by death. It has been thought that many cases of homicide which the common law regarded as murder, and punished by death, should not be punished so severely, and in many of the states statutes have been enacted from time to time dividing murder

120, 27 Am. St. Rep. 799; ante, § 248 b; post, §

into degrees, and punishing murder in the first degree by death, and murder in the second degree by confinement in the penitentiary for life or for a less term. The first state to pass such a statute was Pennsylvania. By the act of March 31, 1860, it was provided that all murder which should be perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate, and premeditated killing, or which should be committed in the perpetration of, or attempt to perpetrate, any arson, rape, robbery, or burglary, should be deemed murder of the first degree; and all other kinds of murder should be deemed murder of the second degree.310

In New York, the statute is somewhat different. It is there declared that the killing of a human being, unless it is excusable or justifiable, is murder in the first degree, when committed either from a deliberate and premeditated design to effect the death of the person killed, or of another; or by an act imminently dangerous to others, and

310 Act. Pa. March 31, 1860, No. 375; Com. v. Drum, 58 Pa. St. 9.

evincing a depraved mind, regardless of human life, although without the premeditated design to effect the death of any individual; or without a design to effect death, by a person engaged in the commission of, or in an attempt to commit, a felony, either upon or affecting the person killed or otherwise; or when perpetrated in committing arson in the first degree. Such killing of a human being is murder in the second degree when committed with a design to effect the death of the person killed, or of another, but without deliberation or premeditation.311

In Massachusetts, the statute is not exactly like either of the above. It is there declared that murder committed with deliberately premeditated malice aforethought, or in the commission of, or in the attempt to commit, a crime punishable with death or imprisonment for life, or committed with extreme atrocity or cruelty, is murder in the first degree. Murder not appearing to be in the first degree is murder in the second degree.

312

311 Pen. Code N. Y. §§ 183, 184; Leighton v. People, 88 N. Y. 117.

312 Pub. St. Mass. c. 202, §§ 1-3.