deceased fell; the prisoner then got down on deceased and stabbed him twice, the deceased dying in five or six minutes. Shortly afterwards the prisoner stated to one person that he had "cut a damned nigger over yonder at the dance," and showed his bloody hand and knife, and to another person, after his arrest, he said that he "aimed to kill him": Held, that there was evidence of murder in the first degree to be submitted to the jury. Conley, 130-685.

Where all the evidence shows a killing by shooting from ambush, and there is nothing to contradict this, it is not error to instruct the jury to find the prisoner guilty of murder in the first degree or not guilty. Dixon, 131809.

There was evidence of threats made by the prisoner against the deceased, and a desire expressed by the prisoner to get the deceased out of the way so that the prisoner could get employment on the steamer of which the deceased was foreman; the presence of the prisoner on the steamer the night of the homicide was shown by tracks which fit by measurement the tracks of the prisoner, and the prisoner voluntarily stated that he was near by and heard the scrimmage and heard the deceased when he went overboard; he professed knowledge of the homicide, but failed to disclose it until after his imprisonment, and he burned his trousers before being arrested without explaining the cause: Held, that the evidence was sufficient to be left to the jury. Vaughn, 129-502.

Where there is a conviction of murder in the first degree a failure to instruct as to murder in the second degree is error, although counsel for the prisoner admitted the guilt as to second degree. Foster, 130–666.

Where the deceased was shot from ambush and a witness testifies that immediately after the shot he looked and saw the prisoner run with a gun in his hand from the stump from whence the shot came, and there is no evidence of a killing under other circumstances, it is proper to charge that the prisoner is guilty of murder in the first degree or nothing. Rose, 129576

Associate counsel for the state, in the absence of the solicitor, and with the consent of the court, may pray judgment upon a conviction for murder in the first degree. Conley, 130–683.

The grand jury have no power to degree when the bill charges murder. If the slaying is on a principle of revenge for a fancied wrong, trival in its nature, the prisoner is guilty of the capital felony. Daniel, 139–549. The entry of "guilty of the felony of murder in the first degree" is a substantial compliance with the statute. Kinsauls, 126-1097.

return a bill for murder in the second Ewing, 127-555.

Where the defendants were acquitted of murder in the first degree, an exception to the charge of the court relating to that feature of the case is without merit. Worley, 141-764.

2. MURDER IN SECOND DEGREE.

There was evidence tending to prove that the prisoner stood behind a tree and shot the deceased. There was also evidence that the deceased had a gun beside him when his body was found, and the report of more than one gun was heard about the time it was supposed deceased was shot: Held, that the evidence did not warrant an instruction that there was no evidence from which the jury could bring in a verdict of murder in the second degree. Locklear, 118-1154.

The evidence was that witness and the deceased were standing on opposite sides of the fence engaged in conversation, when the prisoner approached and told deceased he wished to see him a minute, to which deceased replied, "Come on and see me now"; thereupon witness turned to go into the house,

and as she did so, she heard prisoner say, "What you put your hand back there for?" then she heard a noise like running, and then a pistol fired and a body fall, after which she heard some one running off. Deceased was found next morning near the spot with a bullet hole in his breast: Held, that the court properly instructed the jury that the prisoner was guilty of murder or nothing. Cox, 110-503.

Where the bill charges murder on the 9th of February, 1893, prior to the ratification of the act of February 11th, 1893, dividing murder into two degrees, and the evidence was that the killing was "on a Thursday night" in that month, and the 9th was Thursday, but there were two Thursdays in that month preceding and two succeeding the 9th, it will be assumed, in favorem vitæ, that the crime was committed after the ratification of the act. Gilchrist, 113-673.

When it appeared that in a mutual affray and an unequal contest between the deceased, who was unarmed, and the two defendants, one of the latter threw deceased to the ground and held him there while the other procured an axe and crushed his skull, it was not error to instruct the jury that defendants were guilty of murder, the circumstances of the holding by one and the hitting by the other defendant being inconsistent with the legal conception of a killing in the heat of passion engendered in an encounter. Coley, Î14— 879.

A killing with a deadly weapon implies malice, and, when admitted or proved, the prisoner is guilty of murder in the second degree, and the burden rests upon him to prove the facts upon which he relies for mitigation or excuse to the satisfaction of the jury. Worley, 141–764.

The doctrine that when men fight upon a sudden quarrel and one kills the other in the heat of passion aroused by the combat the law considers the killing a case of manslaughter, has this limitation-that the combatants must fight on equal terms, at least at the outset, and no unfair advantage must be taken. White, 138-704.

On an indictment for murder a charge that "If the defendant aided and abetted his co-defendant (his brother) in an assault on the deceased, then he would be guilty of murder in the second degree, manslaughter, or excusable homicide, according as his brother was guilty or excusable. But to convict defendant the jury must be satisfied beyond a reasonable doubt that he aided and abetted his brother. If his purpose was to extricate his brother, he would not be guilty of any offense," was correct. Worley, 141-764.

3. PREMEDITATION AND DELIBERATION.

PREMEDITATION.-No particular time is necessary to constitute premeditation and deliberation. Fuller, 114-885. Rollins, 113-722.

The mental process may require but a moment of thought. Thomas, 118

1113.

The law lays down no rule as to the time which must elapse between the moment when the person premeditates, or reaches the determination to kill, and the moment when he does the killing. Dowden, 118–1145.

The jury may find premeditation no matter how soon after resolving to do so the killing is done. Norwood, 115—789.

The want of provocation, the preparation of a weapon, or the fact that there was no quarrel just before the killing, may be treated as some evidence of premeditation. McCormac, 116-1033.

The use of a weapon likely to produce death raises a presumption of malice only, and not of premeditation and deliberation. Fuller, 114-885.

Where the judge, in defining the two degrees of murder, inadvertently instructed the jury that the fact of killing with a deadly weapon, when admitted, raised the presumption or justified the inference that there was premeditation, instead of malice, it was an erroneous instruction that could not

be cured by any subsequent proposition that did not clearly remove from the minds of the jury the impression created by such instruction. Fuller, 114885.

If the purpose to kill has been deliberately formed the interval which elapses before its execution is immaterial. McCormac, 116–1033.

In order to constitute deliberation and premeditation something more must appear than the prior existence of actual malice, or the presumption of malice which arises from the use of a deadly weapon. Though the mental process may require but a moment of thought, it must be shown, so as to satisfy the jury beyond a reasonable doubt, that the prisoner weighed and balanced the subject of killing in his mind long enough to consider the reason or motive which impelled him to the act, and to form a fixed design to kill in furtherance of such purpose or motive. Thomas, 118—1113.

Premeditation is thought beforehand for any length of time, however short. Thomas, 118-1113.

A special prayer for instruction that "to convict of murder in the first degree the prisoner must have used the same degree of deliberation and premeditation as would have been used if he had killed the deceased with starvation," etc., is properly refused. Booker, 123–713.

Where the circumstances of the killing do not bring it within the classes which by the statute are made per se murder in the first degree, the state must prove deliberation and premeditation, but this it may do circumstantially, and not by express and positive evidence. Booker, 123-713.

The intent to kill in other degrees of unjustifiable homicide, but to constitute murder in the first degree that intent must be formed into a fixed purpose by deliberation and premeditation. Thomas, 118-1113.

The statute simply divides murder into two classes; murder with a specific deliberate intent to take life being murder in the first degree; murder without such intent, being murder in the second degree. Thomas, 118-1113.

Where a husband beat his wife and she died in consequence her neck being broken somehow in the scuffle-and during the beating the husband said he would "take something and kill her," but in fact used no deadly weapon, the use of the expression under the circumstances is not evidence of such a specific premeditated intent to take life as will constitute murder in the first degree. Thomas, 118-1113.

It is not necessary that the prosecution in order to show prima facie premeditation and deliberation, should offer evidence tending to prove a preconceived purpose to kill formed at a time anterior to the meeting when it was carried into execution. McCormac, 116-1033.

In order to warrant submitting the question of defendant's guilt in the first degree it must appear in some aspect of the evidence that defendant deliberately determined to kill the deceased before inflicting the mortal wound. McCormac, 116-1033.

In an indictment for murder, where it appears that about sunset of the day of the homicide a serious affray occurred, in which the prisoner participated; that a warrant was issued for his arrest; that the prisoner armed himself after the affray, and that the deceased, an officer, and his posse, met the prisoner, and the deceased, with a warrant in his possession, told the prisoner that he had a warrant for his arrest and to consider himself under arrest, and that immediately, without injury, the prisoner shot the officer, who had presented no weapon, nor attempted to seize the prisoner: Held, that there was sufficient evidence of premeditation. Barrett, 142—565.

Where the prisoner weighs the purpose to kill long enough to form a final design, and then puts it into execution, it is murder in the first degree. But where the intent to kill is formed simultaneously with the act of killing, the homicide is not murder in the first degree. Barrett, 142—565.

The burden is on the state not only to establish the killing beyond a reasonable doubt, but to show that it was done with premeditation and deliberation, or by lying in wait, poison or starvation. Teachy, 138–588.

An instruction that if "the prisoner weighed the purpose of killing long enough to form a fixed design to kill and at a subsequent time, no matter how soon or how remote, put it into execution and killed the deceased in pursuance of such fixed design, then there was sufficient premeditation and deliberation to warrant finding him guilty of murder in the first degree," is proper. Teachy, 138-588.

Where the evidence shows that just as the prisoner was withdrawing from the scene of the killing he was met by the brother of the deceased, drew his pistol on the brother and made him stand off so that he could withdraw without hindrance, an instruction that "in determining the question of premeditation and deliberation it is competent for the jury to take into their consideration the conduct of the prisoner before and after, as well as at the time of the homicide, and all of the circumstances connected with the homicide," is not erroneous. Exum, 138-601.

Where the judge gives a full explanation of both the statutory terms "deliberate" and "premeditate" in words which express both ideas and excludes all idea of a killing from passion suddenly aroused, and directs the jury that before they can convict of the higher crime the killing must be from a fixed determination, previously formed, after weighing the matter, it is correct, though the judge did not define each term separately. Exum, 138–602.

Where defendant deliberately shot into a house and killed an inmate, evidence that he was on friendly relations with the family is not competent. Capps, 134-622.

Where the jury found that the killing was with premeditation, an instruction that under certain circumstances the prisoner was guilty at least of murder in the second degree, if erroneous, is harmless. Lipscomb, 134–689. A requested instruction that if there was an opportunity to use a deadly weapon, but one was not used, it was strong evidence against premeditation, is properly modified by striking out the word "strong." Hunt, 134-684.

Deliberation and premeditation may be inferred from ill-will, previous difficulties between the parties, and declarations of an intent to kill after or before the crime. Hunt, 134-684.

Whether certain evidence shows premeditation and deliberation is a fact to be found by the jury, and not a conclusion of law to be drawn by the court. Daniels, 134-671. Hunt, 134-684.

Where there is deliberation and premeditation it is not necessary that such design or purpose should be formed any definite time before the killing. Spivey, 132-989.

An indictment for murder need not contain the words "premeditation" and "deliberation." Cole, 132-1069.

Flight does not tend to prove premeditation and deliberation.

130-666.

Foster,

Evidence that the prisoner threatened to "fix" the deceased after a quarrel with him about a month before the homicide, is some evidence, though not sufficient, or premeditation and deliberation. Foster, 130-669.

There was evidence that the prisoner and deceased had trouble about a bridle about a month before the homicide, and that the prisoner then said "he would fix" the deceased; that they had not been on. friendly terms since, and that the prisoner complained to his employer that deceased had cursed him, and that the prisoner picked up the rock with which he killed deceased before he got to the barn where the difficulty occurred: Held, that the evidence as to premeditation and deliberation was sufficient to go to the jury. Foster, 130-666.

An instruction as to murder in the first degree which fails to explain the meaning of "premeditation" and "deliberation" is incomplete. Foster, 130– 666.

Where a prisoner who has killed a person displayed thought, contrivance and design in the manner of securing and handling his weapon, such exercise of contrivance and design denotes deliberation-the exercise of judgment and reason rather than violent and ungovernable passion. Daniel, 139--549.

The existence of premeditation and deliberation is a fact to be found by the jury where there is any evidence to warrant the finding. Daniel, 139–—

549.

Where the prisoner, without any provocation, took his pistol from his left pocket and transferred it behind his back to his right-hand, and then raised it and pointed it at deceased, warning him to "look out," and fired, the evidence of premeditation and deliberation was sufficient to be submitted to the jury. Daniel, 139–549.

Express malice, or hatred, as a motive for the homicide, from which premeditation can be inferred, can not be established by proof which directly established abject terror and fear on the part of the prisoner for his personal safety. Smith, 125-615.

Evidence that the prisoner made a sudden and unexpected assault with a knife eight inches long on three masked persons who were discharging Roman candles and pistols near prisoner's house, and that a difficulty occurred in front of his gate in which the prisoner killed one of the revelers with the knife and dangerously wounded another, and that the prisoner picked up the knife and started out on hearing them coming, furnished more than a scintilla to show premeditation and deliberation. Smith, 126-1116.

Where mental incapacity is the defense and the evidence is conflicting upon this point the whole case goes to the jury for them to say whether there was deliberation and premeditation. Jones, 126-1099.

4. DEGREE DEPENDS UPON THE FACTS.

It is not in the discretion of the jury to render a verdict of murder in the first or second degree, since the degree depends upon the facts as the jury find them to be, applying the law thereto as laid down by the court. Freeman, 122–1013.

FLIGHT. While flight may be evidence of guilt, it can not be evidence of the degree of the crime. Rhyne, 124-847.

5. MANSLAUGHTER.

Sec. 434 (3632). Homicide; manslaughter.

If any person shall commit the crime of manslaughter he shall be punished by imprisonment in the county jail or state's prison not less than four months nor more than twenty years.

Code, s. 1055; 1879, c. 255; R. C., c. 34, s. 24; 4 Hen. VII., c. 13; 1816, c. 918.

Sec. 435 (3633). Homicide; manslaughter, second offense.

If any person, having been convicted of the crime of manslaughter and sentenced thereon, shall be convicted of a second crime of the like nature, he shall be imprisoned in the state's prison not less than five nor more than sixty years; and in every such case of con