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2. IT MUST BE SHOWN THAT THE DECEASED WAS LIVING WHEN THE ALLEGED MORTAL BLOW WAS STRUCK, § 940.

3. THE DEATH MUST BE TRACED TO THE BLOW, § 941.

4. IF AN INFANT, THE CHILD MUST HAVE BEEN BORN ALIVE, § 942.

5. THE HOMICIDE MUST BE OTHER THAN

IN THE COURSE OF LEGITIMATE PUBLIC

WAR, § 943.

III. HOMICIDE VIEWED IN RESPECT TO THE INTENT, § 944.

1. FROM MALICE AFORETHOUGHT EXPRESS, WHERE THE DELIBERATE PURPOSE OF THE PERPETRATOR IS TO DEPRIVE ANOTHER OF LIFE, OR TO DO HIM SOME GREAT BODILY HARM, § 944. (a.) From a particular malice to the person killed, § 950.

(b.) Homicide from a particular malice

to one, which falls by mistake or accident upon another, § 965.

(c.) Homicide from a general malice or depraved inclination to do evil, fall where it may, § 967.

2. HOMICIDE FROM TRANSPORT OF PASSION, IN HEAT OF BLOOD, § 969. (a.) What is a sufficient provocation and up to what extent, to extenuate the guilt of homicide, § 970.

(b.) How far the law regards heat of blood in mitigation of homicide, independently of the question of reasonable provocation, as in case of mutual combat, § 987.

(c.) How long the law will allow for the blood continuing heated under the circumstances, and what shall be considered as evidence of its having cooled before the mortal blow given, § 990.

3. HOMICIDE IN THE PROSECUTION OF AN UNLAWFUL ACT, WHEN THE DEATH IS

COLLATERAL, § 997.

4. HOMICIDE ARISING FROM IMPROPRIETY, NEGLIGENCE, OR ACCIDENT, IN THE PROSECUTION OF AN ACT LAWFUL IN ITSELF, OR INTENDED AS A SPORT OR RECEATION, § 1002.

(a.) General rule as to negligence, § 1002.

(b.) Death from carelessness, where the death was by no means a likely consequence of the careless act, § 1003. (c). Carelessness on the public road, § 1005.

(d.) Acts of omission, as well as com-
mission, on the part of those charged
with specific duties, § 1011.

(e.) Unlawful or dangerous sports,
§ 1012.

(f.) Undue correction by persons in
authority, § 1014.

(g.) Medical malpractice, § 1015. (h.) Negligence on both sides, § 1016. 5. HOMICIDE FROM NECESSITY IN DEFENCE OF A MAN'S OWN PERSON OR PROPERTY, OR OF THE PERSON OR PROPERTY OF OTHERS, § 1019. (a.) General nature of right, § 1019. (b.) As a general rule, the danger must be actual and urgent, § 1020. (c.) Where the defendant may slay, without retreating to the wall, § 1021. (d.) An attack provoked or renewed by

the defendant will be no defence, § 1022.

(e.) Right extends to defence of master, servant, parent, child, husband, wife, or property, against a felonious attack, § 1024.

(f.) But not to a defence against a tres-
pass, § 1025.

(g.) If the apprehension of an imme-
diate and actual danger to life be
sincere, though unreal, it is in like
manner a defence, § 1026.
(h.) Where one or more persons must
be sacrificed in order to preserve the
lives of others, § 1028.

6. HOMICIDE of OR BY OFFICERS OF JUSTICE, OR OTHERS KEEPING THE PEACE, $1030.

(a.) Of officers under legal process, § 1030.

(b.) By officers under legal process, §1031.

(c.) Of officers or others when the arrest is illegal, § 1034.

(d.) By officers of a foreign government,
§ 1038.

(e.) By or of private citizens when at-
tempting to prevent felony, § 1039.
(f.) What is sufficient notice of ar
officer's authority, § 1041.

IV. HOMICIDE AS AFFECTED
SLAVERY, § 1043.

V. INDICTMENTS, § 1052.

1. TIME AND PLACE, § 1052.

BY

2. "IN THE PEACE OF GOD," § 1055.

3. NAME, § 1056.

4. "FORCE AND ARMS," § 1057.

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[The statutes on this topic, in this edition, are given only so far as they are necessary to explain the adjudications upon them.] UNITED STATES.

§ 884. Murder on high seas. If any person commit, upon the high seas, or in any river, haven, basin, or bay, out of the jurisdiction of any particular state, murder a or robbery, or any other offence, which, if committed within the body of a county, would, by the laws of the United States, b be punishable with death; or if any captain or mar

a The term murder as used in this act, is to be understood as defined at common law. U. S. v. Magill, 1 Wash. C. C. R. 463.

The third article of the Constitution of the United States, which declares that "the judicial power shall extend to all cases of admiralty and maritime jurisdiction," vests in the United States exclusive jurisdiction of all such cases; and a murder committed in the waters of a state where the tide ebbs and flows, is a case of admiralty and maritime jurisdiction. U. S. v. Bevans, 3 Wheat. 336; 4 Cond. R. 275.

Congress having provided in the 8th section of the act of April 30th, 1790, "for the punishment of murder, &c., committed upon the high seas, or in any river, haven, basin, or bay, out of the jurisdiction of any particular state," it is not the offence committed, but the bay, &c., in which it is committed, that must be out of the jurisdiction of the state. Ibid.

Congress have not, in the 8th section of the act of April 30th, 1790,

chap. 36, for the punishment of certain offences against the United States, exercised the power, if any such be given by the Constitution of the United States, of conferring jurisdiction on the courts of the United States of a murder commited in the waters of a state where the tide ebbs and flows. Ibid.

The courts of the United States have jurisdiction of a murder committed on the high seas, from a vessel belonging to the United States, by a foreigner being on board of such vessel, upon another foreigner being on board of a foreign vessel. U. S. v. Furlong, 5 Wheat. 184. They have not jurisdiction, however, of a murder committed by one foreigner on another foreigner, on board of a foreign vessel on the high seas. But they have jurisdiction of a piracy thus committed. Ibid.

They have also jurisdiction, under the act of April 30th, 1790, chap. 37, of murder or robbery committed on the high seas; although not committed on a vessel belonging to the citizens of the United States, as if she

iner of any vessel shall piratically and feloniously run away with such vessel, or any goods or merchandise to the value of fifty dollars, or yield up such vessel voluntarily to a pirate; or if any seaman shall lay violent hands upon his commander, thereby to hinder and prevent his fighting in defence of his ship, or goods committed to his trust, or shall make a revolt in the ship, every such offender shall be deemed, taken, and adjudged to be a pirate and felon, and being thereof convicted shall suffer death; and the trial of crimes committed on the high seas, or in any place out of the jurisdiction of any particular state, shall be in the district where the offender is apprehended or into which he may be brought. (Act 30th April, 1790, sect. 8; Brightly's Dig. in loco.) § 885. Manslaughter on high seas. [See same act, § 12.] § 886. Murder, &c., on high seas where death is on land. [See act of March 3, 1825, § 4, and also post, § 2692.]

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§ 887. Murder or manslaughter on dock-yard, &c. c.- [See act of April 30, 1790.]

§ 888. Manslaughter through negligence by officer of steamboat, d. e. [See act of July 7, 1838, sect. 12; 5 Statutes at Large, 306; Brightly's Dig. in loco.].

had no national character, but was held by pirates or persons not lawfully sailing under the flag of any foreign nation. U. S. v. Holmes et al. 5 Wheat. 412; 4 Cond. Rep. 708.

The laws of the United States declare, that murder committed on the high seas shall be tried in the district where the offender is apprehended, or into which he is first brought; and therefore each circuit court has jurisdiction in cases arising on the high seas, in which the offender is first brought within its particular district. U. S. v. Magill, 1 Wash. C. C. R. 463.

It was necessary under the act of 30th April, 1790, to bring the case in the federal courts, that not only the stroke, but the death should happen on the high seas. Ibid. By the act of 3d March, 1825, sect. 4, however, as given above, this defect is remedied, and jurisdiction, in such cases, given to the federal courts.

c The Constitution of the United

States declares that congress shall have power to exercise exclusive legislation, in all cases whatever, over places purchased by the consent of the legislatures of the states in which the same shall be, for the erection of forts, &c.

The right of exclusive legislation carries with it the right of exclusive jurisdiction; and when a murder is committed in a fort so purchased with such consent, the circuit court of the United States has jurisdiction over the offence, under the act of 1790; although in the cession the state reserved a right to execute civil and criminal process issuing under the state authority in such places. U. S. v. Cornell, 2 Mason's C. C. R. 91. d Under this act, every person who assumes to perform the duties of any important officer on board a steamboat is guilty of manslaughter, if loss of life occurs through his ignorance or negligence in respect of his duties. U. S. v. Taylor, 5 McLean, 242.

e Malicious intent need neither be

MASSACHUSETTS.

[See for Massachusetts statutes on homicide, the 6th edition of this work, § 889; and also Com. v. Gardiner, 11 Gray, 438; Com. v. Webster, Bemis's Rep. 436; Com. v. Macloon, 101 Mass. 1.]

NEW YORK.

§ 894. Murder. [See for statutes 6th edition of this work, 894; and subsequent editions of the revised statutes; and see also People v. Sheriff, 1 Parker C. R. 659; Wilson v. People, 4 Parker C. R. 619; People v. Walworth, infra; People v. Sheehan, 49 Barbour, 217; Fitzgerald v. People, 49 Barbour, 122; People v. Campbell, 1 Edm. Sel. Cas. 307; People v. Divine, Ibid. 594; People v. Stokes, infra; Lanergan v. People, 50 Barbour 266; People v. Rector, 19 Wend. 569; People v. Johnson, 1 Parker C. R. 290; People v. Enoch, 13 Wend. 159; Darry v. People, 2 Parker C. R. 606; People v. Wright, 24 Wend. 520, reversing S. C. 22 Wend. 169; Sullivan v. People, 1 Parker C. R. 347; 3 Selden R. 385; People v. Tannan, 4 Parker C. R. 514; People v. Butler, 3 Parker C. R. 377 ; People v. Jackson, 3 Hill, 92; Lohman v. People, 1 Comstock, 379.]

PENNSYLVANIA.

§ 913. Murder in the first and second degrees. - [See post, § 1078-1123.]

VIRGINIA.

§ 919. Murder in the first and second degrees. - [See post, § 1078-1123.]

averred or proved under this act. U. of a steamboat, for manslaughter, unS. v. Warner, 4 McLean, 463.

See for cases under this act, U. S. v. Taylor, 5 McLean, 242; 3 West. L. J. N. S. 481. And see, also, U. S. v. Warner, 4 McLean, 464, cited at large in Wh. on Homicide, 101, and U. S. v. Collyer, reported in same, Appendix,

483.

der the 12th section of the act 7th July, 1838 (203, pl. 10), it is not necessary to show wilful misconduct, negligence, or inattention. The omission to give order for raising the safety valve, when the boat stops, is legal evidence to support an indictment against him. United States v. Farnham, 2 Blatch.

In an indictment against the captain 528-9.

OHIO.

§ 924. Murder. - [See the 6th edition of this work, § 924, for statutes; and also Mr. Warren's excellent treatise on Ohio law. For cases construing the statutes, see Shoemaker v. State, 12 Ohio, 43; State v. Turner, Wright, 30; State v. Gardiner, Wright, 100; State v. Town, Wright, 76; State v. Thompson, Wright, 622; Stewart v. State, 19 Ohio, 302; Robbins v. State, 8 Ohio St. R. (N. S.) 131; State v. Williams, Wright, 198; Fouts v. State, Ohio St. Rep. (N. S.) 98; Kain v. State, 8 Ohio State Rep. (N. S.) 306; Hagan v. State, 10 Ohio St. R. 459; Loeffner v. State, 10 Ohio St. R. 599; Beaudein v. State, 8 Ohio St. 834; Montgomery v. State, 11 Ohio, 426; Wolf v. State, 19 Ohio St. 248 ; Dick v. State, 3 Ohio St. 90; Parks v. State, 3 Ohio St. 101.]

B. HOMICIDE AT COMMON LAW.r

I. GENERAL DEFINITIONS.

1. Murder.

§ 930. Murder is where a person of sound memory and discretion unlawfully kills any reasonable creature in being, and in the peace of the commonwealth, with malice prepense or afore

r For forms of indictment, see Wharton's Precedents, as follows: Homicide, general form of indict. 114; same in U. S. courts, 177; general requisites of indict. 114; malice aforethought, 114; instrument of death, 114; time of death, 114; death occurring in another state, 153; accessaries, how to be charged, 114; principals in, how to be charged, 114; conclusion, Ibid. Indictments: Shooting with a pistol, 115; against principal, in first and second degrees, for shooting slave, with same, 117; against principals, in first and second degrees, for shooting with gun, 156; striking on the hip with knife, the death occurring in another state, 153; cutting throat with knife, 116; stabbing on belly with same, 155; striking neck with axe, 152; against slave for murder with axe,

154; striking with a hatchet on high seas, 177; against principal, in first and second degrees, for hanging, 118; second count, beating and hanging, 119; stamping, kicking, and beating, 145; beating with fists and kicking, no mortal wound being found, 146 ; striking with a poker, 120; striking with a handspike, on the high seas, 178. Homicide, striking with a glass bottle (in a foreign jurisdiction), 179; drowning, 122; stabbing and drowning on high seas, 147; against a mother for drowning her infant child, 180; strangling, 160; choking, against principals in first and second degrees, 123-4, 8; suffocating infant, 144; poisoning with arsenic, 125, 130, 1-6; placing poison so as to be mistaken for medicine, 133; poisoning child by laudanum, 134 ; mixing arsenic with wine and sending it to

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