Subd. 4. To cheat-9 Mass. 415; 9 Pa. St. 211; 4 id. 210; 2 Har. (Del.) 327; 2 Allen, 168; Thach. C. C. 609; 1 Cush. 190; 4 Iowa, 29; 1 Mich. 216; 108 Mass. 309; 4 Pa. St. 210; 3 Zab. 33; 3 Q. B. 292; 12 Cox C. C. 338; id. 316; 2 Day,205; 64 Me. 369; 9 Cowen, 578; 4 Dill. 407; 4 Strob. 266; 7 Tex. 173; 12 R. I. 124; 25 Vt. 458; 16 Wend.546; 4 Met. 111; 1 Dev. 357; 8 Rich. 72; 15 N. H. 396; 1 Cush. 111; 39 N. J. L. 324; 5 Har. & J. 317; 4 Halst. 293; 10 Mich. 310; 4 Cox C. C. 390; 8 id. 305. See Desty's Crim. Law, § 11 d. Subd. 5. Public health-2 Ld. Raym. 1179. See 12 Conn. 101. Public peace-2 Camp. 358; 6 Term Rep. 623.

Public justice-8 Moody, 11; 6 Mod. 185; 25 Vt. 415.

Public trade-4 Met. 111; 82 Mass. 221; 75 id. 127; 1 Strange, 144; 1 Leach, 274; 13 East, 228. See Desty's Crim. Law, § 11 b.

183. No conspiracies, other than those enumerated in the preceding section, are punishable criminally.

184. No agreement, except to commit a felony upon the person of another, or to commit arson, or burglary, amounts to a conspiracy, unless some act, beside such agreement, be done to effect the object thereof, by one or more of the parties to such agreement.

An agreement to commit an act, if it amounts to a conspiracy, is in general complete without an overt act-50 Ind. 186; 1 Am. Cr. R. 105; 42 Ñ. H. 393; 12 Minn. 164; 1 Cush. 189; 25 Vt. 415; 9 Mass. 415; 4 Halst. 293; 4 Wend. 229; 4 Mich. 414; 31 Me. 386; 23 Pa. St. 355; 48 Miss. 234; as it is itself an overt act-1 Cush. 189; 1 Strange, 193; and see 2 Mass. 329; 5 Har. & J. 317. The gist of the offense is the fraudulent and corrupt combination with intent that injury shall result-2 Ashm. 247; 7 Barb. 391; 4 Halst. 283; 5 Har. & J. 317; 2 Mass. 329; 23 Pa. St. 355; 5 McLean, 513; 16 Up. Can. Q. B. 543; 1 Ad. & E. 706; 1 Moody & R. 402; 5 Q. B. 49; 9 Coke, 55; Salk. 174; as any act done in pursuance of it is no constituent part of the offense, but merely an aggravation of it-2 Mass. 329; 4 Halst. 293; 5 Har. & J. 217; and see cases cited in Desty's Crim. Law, § 11 g.

Merger.-A conspiracy to commit a felony, when executed, is merged in the felony-1 Duval, 4; 5 Mass. 106; 4 Wend. 265; 2 Pars. Cas. 341; 1 Mich. 216; 5 Watts.& S. 345; 25 Vt. 415; 48 Me. 218; when to commit a higher crime, it is merged, but not when the conspiracy and the crime are of the same grade-48 Me. 218; 15 id. 100; 5 Mass. 106; 105 id. 53; 108 id. 309; 109 id. 349; 2 Met. 193; 1 Mich. 216; 2 Pars. Cas. 341; 5 Pa. St. 60; 19 Pick. 479; 25 Vt. 415; 5 Pa. St. 60; 4 Wend. 265. But see 66 Mass. 84; 9 Cowen, 577; 6 Ala. 765; 3 Cox C. C. 229.

185. It shall be unlawful for any person to wear any mask, false whiskers, or any personal disguise (whether complete or partial) for the purpose of—

1. Evading or escaping discovery, recognition, or iden tification in the commission of any public offense.

2. Concealment, flight, or escape, when charged with, arrested for, or convicted of, any public offense. Any person violating any of the provisions of this section shall be deemed guilty of a misdemeanor. [Approved March 30th, in effect July 1st, 1874.]

VI. ASSAULTS WITH INTENT TO COMMIT FELONY,

OTHER THAN ASSAULTS WITH INTENT TO
MURDER.

VII. DUELS AND CHALLENGES.

VIII. FALSE IMPRISONMENT.

§ 192. Manslaughter-voluntary and involuntary.
§ 193. Punishment of manslaughter.

§ 194. Deceased must die within a year and a day.

§ 195. Excusable homicide.

§ 196.

Justifiable homicide by public officers.

§ 197. Justifiable homicide by other persons.

§ 198. Bare fear not to justify killing.

§ 199. Justifiable and excusable homicide not punishable.

187. Murder is the unlawful killing of a human being, with malice aforethought.

Murder, defined-34 Cal. 200; 47 Cal. 102; at common law-1 Wash. C. C. 463; 2 Halst. 220; 1 Colo. 137; 44 Cal. 96; 9 Met. 93; 5 Cush. 295; see 4 Bl. Com. 195. It has but one meaning-the intentional killing of a human being, with malice aforethought-44 Cal. 96; 48 id. 85; 52 id. 452. It is murder if the wound is inflicted with a felonious intent, and death ensue within a year and a day-9 Cal. 273.

The killing may be by any act, direct or indirect, which results in death-9 Met. 93; 63 N. Č. 1; 4 Mason, 105; 4 Dev. & B. 365.

The person killed must be "in being," and a child in its mother's womb is not a "human being," within the definition-6 Car. & P. 349; 1 Moody C. C. 346; but every part of it must have come from the mother-6 Car. & P. 349; 7 id. 814; id. 850; 5 id. 329; 7 id. 850.

Murder includes voluntary and involuntary manslaughter-5 Ga. 441; 10 id. 102; 17 id. 483; 1 id. 222; 5 id. 85; 15 id. 117; 5 id. 54; 19 id. 7; 14 Bush, 601.

In case of adultery.-It is only when the husband discovers his wife in the act of adultery that the law mitigates the killing of her or her paramour on the ground of passion-4 Mich. 83; 10 id. 212; 29 Ga. 724; 2 Brewst. 388; 8 Ired. 330; 3 Jones, (N. C.) 74; 6 id. 433; 54 Mo. 153; Manning's Case, 1 Vent. 212; S. C. Ld. Raym. 212; Pearson's Case, 2 Lewin, 216; or where there was no opportunity for the passion to subside-22 N. Y. 147; but to kill an adulterer deliberately, and upon revenge, is murder-54 Mo. 153; 35 Ind. 80; 62 N. Y. 229; 3 Jones, (N. C.) 74; 6 id. 433; 64 N. C. 608; 78 id. 515: 8 Car. & P. 182; or to kill because he has at some previous time committed adultery with his wife -6 Jones, (N. C.) 433; 4 id. 74; 8 Ired. 330; or where he was a long time cognizant of the adulterous intercourse-35 Ind. 80; or to kill because

ne believed her paramour was about to commit another similar act, is murder-4 Jones, (N. C.) 74; 6 id. 433.

Suicide.-At common law, if two agree to commit suicide together and one escapes, the other is guilty of murder-Russ. & R. C. C. 528; the survivor is principal in the murder of the other-13 Mass. 359; 123 id. 422; 23 Ohio St. 165; 8 Car. & P. 410; Russ. & R. C. C. 528.

Infanticide.-If a child be born alive and afterward dies from potions, or by bruises received in the womb, it is murder-49 N. Y. 86; 5 Car. & P. 329; 9 id. 754; 1 Moody C. C. 346; or, if it was born in a state in which it was more likely to die than if born in due time, it is murder-2 Car. & K. 784. There must have been an independent circulation, or it cannot be considered to be alive when born, so as to make it murder-43 Iowa, 519; S. C. 2 Am. Cr. R. 274; 2 Moody C. C. 260; 5 Car. & P. 539; 7 id. 850; 9 id. 754; and if the mother kill it while still alive, it is murder, though still attached by the umbilical cord-49 N. Y. 86; 8 Phila. 623; 1 Car. & M. 650; 13 Cox C. C. 79; 7 Car. & P. 814; 9 id. 25. A child must be actually born in a living state before it can be a subject of murder-5 Car. & P. 329; 9 Up. Can. L. J. 138. A person charged with murder, committed in an attempt to produce an abortion, is entitled to be admitted to bail-6 Pac. C. L. J.725.

In mutual combat.-Where parties by mutual understanding engage in a conflict and death ensues, the slayer is guilty of murder-57 Mo. 40; S. C. 1 Am. Cr. R. 251. So to enter into a combat with a deadly weapon, intending to use it, and in the contest to kill-32 Vt. 491; 1 Va. Cas. 10; or in a combat without weapons, to draw a knife and kill4 Ired. 409; or to prepare and conceal a weapon before going into the fight, and killing with it-36 Miss. 531; 4 Ired. 409; or to invite another to mortal combat, and killing him, while he is going for his weapon33 Ga. 4; see 2 Wheel. C. C. 471; or to bring about a deadly quarrel, and killing one of the combatants-22 Ga. 211; or if one of two combatants retreated and the other followed, overtook and stabbed him, it is murder-9 Ired. 485; 1 Spear, 384.

In resisting arrest.-When a person in resisting arrest under lawful process kills the officer, or one of the arresting party, it is murder-25 Ala. 15; 30 Ga. 426; 2 Houst. 585; 12 Cox C. C. 444; S. C. 1 Green C. R. 155; 6 Cold. 283. Where after the commission of a felony the wrongdoers flee, and are overtaken by the officer, who orders them to surrender, if they fire upon and kill him it is murder-27 Cal. 522. So where the accused were convicts and killed the guard to effect their escape, it was murder-1 Tex. Ct. App. 647. Private persons lawfully arresting offenders are under the same protection of the law as officers-61 Pa. St. 352; 1 East P. C. 298. But if an arrest be without authority-2 Houst. 585; 72 Ill. 37; S. C. 69 Ill. 111; 1 Am. Cr. R. 287; 12 Cush. 246; or if he exceed his authority, or if the process be defective -69 III. 111; S. C. 72 Ill. 37; 1 Am. Cr. R. 287; as attempting to arrest under a warrant without seal: the killing will be manslaughter-1 East P. C. ch. 5, § 58.

In committing other offenses.-If an unlawful act be done deliberately, and with the intention of doing mischief, and death ensues, it is murder-11 Humph. 150; as in the prosecution of an unlawful design, and using poison-5 Mich. 10, 22; or if he attack another with malice aforethought, and he kills to save his own life-4 Dev. & B. 491; or where he shot at another and killed a third person-2 Strob. 77; or if he provokes a fight and kills his adversary-10 Ga. 103; 18 id. 356. See Phill. (N. C.) 425; 65 N. C. 669.

188. Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow-creature.

It

98888

is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.

Malice express or implied.-Express malice means ill-will against a person, but in a legal sense it denotes a wrongful act done without just cause or excuse-34 Cal. 48; see cases cited in Desty's Crim. Law, §8a; an illegal act willfully done, which in its necessary consequence must injure another-12 Fla. 117; Law R. 1 C. C. 360. Implied malice is an inference deduced from particular facts and circumstances judicially ascertained-19 Conn. 398: 4 Jones, (N. C.) 100; 5 Blackf. 149; 12 Allen, 185; 39 Ind. 553; 2 Bay, 360; 10 Met. 259; 3 Cox C. C. 281; Bell C. C. 1; 8 Cox C. C. 74; while express malice is never to be inferred, but must be proved aliunde-18 Ind. 386; 2 Bailey, 569; Meigs, 84; 12 Tex. 540: 43 id: 108; 1 Curt. 364; 2 Bos. & P. 508; 7 Car. & P. 140; 1 Car. & K. 195; 2 Leach, 1033; Russ. & R. C. C. 310. See ante, § 7, subd. 4.

Legal malice.-Implied malice or malice in law is an evil design in general, where the circumstances manifest a wicked, depraved, wanton, and malignant spirit-43 Cal. 350; 2 Mason, 91; Wright, 20; 2 Strob. 77; 11 Humph. 150; 13 Smedes & M. 263; 13 Up. Can. Q. B. 542; 10 Low. Can. Jur. 97; and the intent is presumed-1 Parker Cr. R. 154; 1 Ired. 354; 5 Cush. 295; 2 Hill, 459; 18 Ala. 720; 57 Mo. 40; S. C. 1 Am. Cr. R. 251.

Malice aforethought, which is an ingredient of murder, is express or implied-48 Cal. 95. It includes all states of mind in which a homicide is committed without legal justification, extenuation, or excuse5 Tex. Ct. App. 163; 34 Cal. 48. It distinguishes murder from all other classes of homicide-48 Cal. 437; 6 Pac. C. L. J. 399; 6 Tex. Ct. App. 268; 2 Barn. & C. 268.

Malice and intent to kill, are essential elements in murder-Wright, 20; and they are to be inferred from the facts and circumstances of the case-8 Cal. 90; 58 Ga. 35; 30 Mich. 16; 29 Ohio St. 186; S. C. 2 Am. Cr. R. 251; 7 N. Y. 385; 58 Pa. St. 9; 2 Mason, 91; 54 Mo. 153; 23 Ind. 231; 30 Mich. 16; 83 Pa. St. 131; 5 Tex. Ct. App. 493; 15 Gratt. 634; 2 Rob. (Va.) 771; 1 Colo. 436.

189. All murder which is perpetrated by means of poison, or lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration or attempt to perpetrate arson, rape, robbery, burglary, or mayhem, is murder of the first degree; and all other kinds of murders are of the second degree. [Approved March 30th, in effect July 1st, 1874.]

Degrees of murder.-The statute dividing murder into degrees does not make murder of the second degree less than murder-44 Cal. 97. The difference in the degrees of murder results from the condition of the mind in which the design is created, and not from the speed with which it is executed-3 Tex. Ct. App. 656. The division into degrees seeks only to graduate the punishment, in proportion to the atrocity of the crime-2 Va. Cas. 387. The classification into degrees does not make the lesser less than murder-25 Cal. 361; 44 id. 98. The jury may find the party guilty of less than murder, say manslaughter-4) Cal.