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pass, § 1025.
2. IT MUST BE SHOWN THAT THE DE- (d.) Acts of omission, as well as com
CEASED WAS LIVING WHEN THE AL- mission, on the part of those charged LEGED MORTAL BLOW WAS STRUCK, with specific duties, $ 1011. § 940.
(e.) Unlawful dangerous sports, 3. THE DEATH MUST BE TRACED TO THE
§ 1012. BLOW, § 941.
(f.) Undue correction by persons in 4. IF AN INFANT, THE CHILD MUST HAVE authority, § 1014. BEEN BORN ALIVE, S 942.
(g.) Medical malpractice, $ 1015. 5. THE HOMICIDE MUST BE OTHER THAN (h.) Negligence on both sides, $ 1016. IN THE COURSE OF LEGITIMATE PUBLIC
5. HOMICIDE FROM NECESSITY IN DEWAR, $ 943.
FENCE OF A MAN'S OWN PERSON OR III. HOMICIDE VIEWED IN RESPECT
PROPERTY, OR OF THE PERSON OR TO THE INTENT, $ 944.
PROPERTY OF OTHERS, $ 1019. 1. FROM MALICE AFORETHOUGHT EX- (a.) General nature of right, $ 1019.
PRESS, WHERE THE DELIBERATE PUR- (6.) As a general rule, the danger must POSE OF THE PERPETRATOR IS TO
be actual and urgent, $ 1020. DEPRIVE ANOTHER OF LIFE, OR TO DO (c.) Where the defendant may slay, HIM SOME GREAT BODILY HARM, $ 944. without retreating to the wall, $ 1021. (a.) From a particular malice to the (d.) An attack provoked or renewed by person killed, $ 950.
the defendant will be no defence, (6.) Homicide from a particular malice
$ 1022. to one, which falls by mistake or ac- (e.) Right extends to defence of master, cident upon another, $ 965.
servant, parent, child, husband, wife, (c.) Homicide from a general malice or or property, against a felonious atdepraved inclination to do evil, fall
tack, $ 1024. where it may, $ 967.
(f.) But not to a defence against a tres2. HOMICIDE FROM TRANSPORT OF PASSION, IN HEAT OF BLOOD, 969.
(9.) If the apprehension of an imme(a.) What is a sufficient provocation diate and actual danger to life be
and up to what extent, to extenuate sincere, though unreal, it is in like the guilt of homicide, $ 970.
manner a defence, $ 1026. (6.) How far the law regards heat of (h.) Where one or more persons must
blood in mitigation of homicide, in- be sacrificed in order to preserve the
6. HOMICIDE OF OR BY OFFICERS OF combat, $ 987.
JUSTICE, OR OTHERS KEEPING THE (c.) How long the law will allow for the
PEACE, $ 1030. blood continuing heated under the
(a.) Of officers under legal process, circumstances, and what shall be con
§ 1030. sidered as evidence of its having (6.) By officers under legal process, cooled before the mortal blow given,
§ 1031. § 990.
(c.) Of officers or others when the ar3. HOMICIDE IN THE PROSECUTION OF AN rest is illegal, $ 1034.
UNLAWFUL ACT, WHEN THE DEATH IS (d.) By officers of a foreign government, COLLATERAL, $ 997.
$ 1038. 4. HOMICIDE ARISING FROM
(e.) By or of private citizens when atPRIETY, NEGLIGENCE, OR ACCIDENT, IN tempting to prevent felony, § 1039. THE PROSECUTION OF AN ACT LAWFUL (f.) What is sufficient notice of an IN ITSELF, OR INTENDED AS A SPORT officer's authority, 1041. OR RECEATION, $ 1002. (a.) General rule to negligence,
IV. HOMICIDE AS AFFECTED BY $ 1002.
SLAVERY, $ 1043. (6.) Death from carelessness, where the V. INDICTMENTS, $ 1052.
death was by no means a likely con- 1. TIME AND PLACE, S 1052.
sequence of the careless act, $ 1003. 2. “IN THE PEACE OF GOD," $ 1055. (c). Carelessness on the public road, 3. NAME, $ 1056. $ 1005.
4. “FORCE AND ARMS," $ 1057.
5. CLERICAL AND GRAMMATICAL ER
RORS, § 1058. 6. INSTRUMENT OF DEATH, $ 1059. 7. ASSAULT, S 1065. 8. SCIENTER IN POISONING, $ 1066. 9. "STRIKE AND BEAT," § 1067. 10. DESCRIPTION OF WOUND, § 1069. 11. " FELONIOUSLY" AND MALICE
AFORETHOUGHT," $ 1071.
12. AVERMENT OF TIME AND MANNER
OF DEATH, § 1073. 13. PRINCIPALS AND
SECOND DEGREES, $ 1075.
A. - STATUTORY HOMICIDE. [The statutes on this topic, in this edition, are given only 80 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 chap. 36, for the punishment of certain act, is to be understood as defined offences against the United States, at common law. U. S. v. Magill, 1 exercised the power, if any such be Wash. C. C. R. 463.
given by the Constitution of the United 1 The third article of the Consti- States, of conferring jurisdiction on tution of the United States, which de- the courts of the United States of a clares that “ the judicial power shall murder commited in the waters of a extend to all cases of admiralty and state where the tide ebbs and flows. maritime jurisdiction,” vests in the Ibid. United States exclusive jurisdiction of The courts of the United States all such cases; and a murder commit- have jurisdiction of a murder committed in the waters of a state where the ted on the high seas, from a vessel betide ebbs and flows, is a case of ad- longing to the United States, by a miralty and maritime jurisdiction. U. foreigner being on board of such ves$. v. Bevans, 3 Wheat. 336 ; 4 Cond. sel, upon another foreigner being on R. 275.
U. S. v. Congress having provided in the 8th Furlong, 5 Wheat. 184. They have section of the act of April 30th, 1790, not jurisdiction, however, of a murder " for the punishment of murder, &c., committed by one foreigner on another committed upon the high seas, or in any foreigner, on board of a foreign vessel river, haven, basin, or bay, out of the on the high seas. But they have jujurisdiction of any particular state,” risdiction of a piracy thus committed. it is not the offence committed, but the Ibid. They have also jurisdiction, bay, &c., in which it is committed, that under the act of April 30th, 1790, must be out of the jurisdiction of the chap. 37, of murder or robbery comstate. Ibid.
board of a foreign vessel.
mitted on the high seas; although not Congress have not, in the 8th sec- committed on a vessel belonging to the tion of the act of April 30th, 1790, 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, fc., on high seas where death is on land. [See act of March 3, 1825, § 4, and also post, $ 2692.]
$ 887. Murder or manslaughter on dock-yard, fc.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 States declares that congress shall held by pirates or persons not law- have power to exercise exclusive legfully sailing under the flag of any for- islation, in all cases whatever, over eign nation. U. S. v. Holmes et al. 5 places purchased by the consent of the Wheat. 412; 4 Cond. Rep. 708. legislatures of the states in which the
The laws of the United States de- same shall be, for the erection of forts, clare, that murder committed on the &c. The right of exclusive legislation high seas shall be tried in the district carries with it the right of exclusive where the offender is apprehended, or jurisdiction; and when a murder is into which he is first brought; and committed in a fort so purchased with therefore each circuit court has juris- such consent, the circuit court of the diction in cases arising on the high United States has jurisdiction over the seas, in which the offender is first offence, under the act of 1790; al brought within its particular district. though in the cession the state re U. S. v. Magill, 1 Wash. C. C. R. served a right to execute civil an 463.
criminal process issuing under the sta It was necessary under the act of authority in such places. U. S. 30th April, 1790, to bring the case in Cornell, 2 Mason's C. C. R. 91. the federal courts, that not only the
d Under this act, every person w stroke, but the death should happen assumes to perform the duties of a on the high seas. Ibid. By the act. important officer on board a steamb of 3d March, 1825, sect. 4, however, is guilty of manslaughter, if loss as given above, this defect is remedied, life occurs through his ignorance and jurisdiction, in such cases, given negligence in respect of his duties. to the federal courts.
S. v. Taylor, 5 McLean, 242. c The Constitution of the United & Malicious intent need neithe
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
$ 891. 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. Dieine, 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.]
$ 913. Murder in the first and second degrees. — [See post, § 1078–1123.]
$ 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. . Warner, 4 McLean, 463. der the 12th section of the act 7th July,
See for cases under this act, U. S. 1838 (203, pl. 10), it is not necessary 0. Taylor, 5 McLean, 242; 3 West. L. to show wilful misconduct, negligence, J. X. S. 481.
And see, also, U. S. v. or inattention. The omission to give Warner, 4 McLean, 464, cited at large order for raising the safety valve, when in Wh. on Homicide, 101, and U. S. v. the boat stops, is legal evidence to Collyer, reported in same, Appendix, support an indictment against him. 483.
United States v. Farnham, 2 Blatch. In an indictment against the captain 528–9.
$ 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..
I. GENERAL DEFINITIONS.
$ 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
p For forms of indictment, see 154 ; striking with a hatchet on high Wharton's Precedents, as follows: seas, 177 ; against principal, in first Homicide, general form of indict. 114; and second degrees, for hanging, 118; same in U. S. courts, 177; general second count, beating and hanging, requisites of indict. 114; malice afore- 119; stamping, kicking, and beating, thought, 114 ; instrument of death, 145; beating with fists and kicking, no 114; time of death, 114 ; death occur- mortal wound being found, 146 ; strikring in another state, 153 ; accessaries, ing with a poker, 120; striking with a how to be charged, 114; principals in, handspike, on the high seas, 178. Homhow to be charged, 114; conclusion, icide, striking with a glass bottle (in Ibid. Indictments : Shooting with a a foreign jurisdiction), 179; drowning, pistol, 115; against principal, in first 122 ; stabbing and drowning on high and second degrees, for shooting slave, seas, 147; against a mother for drownwith same, 117; against principals, in ing her infant child, 180; strangling, first and second degrees, for shooting 160; choking, against principals in first with gun, 156; striking on the hip and second degrees, 123–4,8 ; suffocatwith knife, the death occurring in ing infant, 144 ; poisoning with arsenic, another state, 153 ; cutting throat with 125, 130, 1-6; placing poison so as to knife, 116; stabbing on belly with be mistaken for medicine, 133 ; poisonsame, 155 ; striking neck with axe, ing child by laudanum, 134 ; mixing 152; against slave for murder with axe, arsenic with wine and sending it to