Murder

8 The unlawful killing of another with malice. 8 When a person of sound memory and dis^ cretion unlawfully killeth any reasonable creature in being, and under the king's peace, with malice aforethought, either express or implied.ll The killing of any person in the peace of the commonwealth, with malice aforethought, either express or implied by law." ' Coke, Litt. 267. » Pike V. Witt, 104 Mass. 597 (1870). 8 L. municipium, a free town, — 1 HI. Com. 44. * [1 Bl. Com. 44. See generally Horton v. School Commissioners, 43 Ala. 607 (1869); Winspearr. District Township, 37 Iowa, 544 (1873). ' [Kilgore v. Magee, ^a. 411 (1877). S^^ •° L. munire^ to foiiiifyT"^^^ ^_^ — -" '95 U.S. 161. 'Tent, moerda, secret killing,— 4 Bl. Com. 195. Morth, secret,— 3 Steph. Hist. Cr. L. Eng. 25-26. A. S. ■morthor, morth; Mid. Eng. morthre, mordre: L. mart-, death,

— Skeat. Ary. mar, dust: die, kill,— 2 Miiller, Science Lang. 3S6. » United States v. Magill, 1 Wash. 465 (1806). '» Coke, 3 Inst. 47; 4 Bl. Com. 195; Harrison v. Commonwealth, 79 Va. 377 (1884). The unlawful killing of a human being in the peace of the people, with malice aforethought, either express or implied. ' There are three degrees of murder in Minnesota and Wisconsin; and two in Alabama, Arkansas, California, Connecticut, Delaware, Florida, Indiana, Iow,a, Maine, Maryland, Massachusetts, Michigan. Minnesota, Missouri, New Hampshire, New Jersey, Ohi^, Oregon, Pennsylvania, Tennessee, Texas, and Virginia. In Pennsylvania, which was the first State to esfjiblish degrees, " all murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration of, or attempt to perpetrate any arson, rape, robbery, or burglary, shall be deemed murder of the first degree; and all other kinds of murder shall be deemed murder of the second degree." ^ Similar statutes have been passed in many other States. Their common object is to class the more deliberate and atrocious forms of homicide as murder in the first degree, punishable with death; while forms which exhibit an instantaneous intent, or which are marked by circumstances extenuating guilt, are classed as murder in the second degree, punishable with fine and long imprisonment.^ A premeditated intention to destroy life is indispensable to murder in the first degree. An unlawful killing may be presumed to be murder, but not in the first degree. The burden of proof lies on the State.' In California, a killing, in the first degree, must be premeditated, except when done in the perpetration of certain felonies. There must be manifested express malice, proved by circumstances independent of the killing, — a deliberate intention " to take away the life of a fellow-creature. " Where such intention is proved by the circumstances preceding or connected with the homicide, there is no question of " implied " malice; and, unless the express malice is afi Srmatively proved, a defendant cannot be convicted of murder in the first degree, even though his commission of the homicide is proved, and there is no evidence that it is manslaughter or that the killing was justifiable or excusable; but in such ease the verdict should be murder in the second degree," ^ Illinois Crim. Code, sec. 140. "Act 31 Mhrch, 1860, § 74: 1 Purd. Dig. 428, pi. 141. See Hogan v. State, 36 Wis. 238 (1874), Eyan, C. J.; State V. Baldwin, 36 Kan. 19 (1886). "See United States u. Guiteau, lOF. E. 163,165(1882); 52 Ala. S4S; 29 Ark. 248; 39 Cal. 694; 44 id. 96; 48 id. 85; 49 id. 167; 69 id. 430; 40 Conn. 136; 1 Dak. 468; 14 ria. 499; 18 id. 496; 33 Ga. 303; 49 id. 482; 65 id. 31; 5 Ind. 400; S3 id. 231; 54 id. 128; 83 id. 26; 33 Iowa, 870; 101 Mass. 1; 30 Mich. 16; 35 id. 16: 16 Minn. 75; 54 Mo. 153; 61 id. 349; 64 id. 191, 319, 391; 8 Neb. 138; 49 N. H, 399; 16 N. Y. 68; 63 id. 164; Wright (O.), 20; 5 Oreg. 216; 31 Pa. 56; 44 id. 66; 68 id. 9; 8 Phila. 401; 33 Tex. 633; 36 A. 623; 77 Va. 283-84; 36 Wis. 238. ' Johnson v. Commonwealth, Hi Pa. 389 (1866), Lewis, Chief Justice. Malice is always presumed where one person deliberately injures another. It is the deliberation with which the act is performed that gives it character. It is the opposite of an act performed under uncontrollable passion, which prevents cool reflection in forming a purpose.' Malice aforethought, or a wicked intention to kill, previously and deliberately formed, is an essential ingredient, and must be plainly charged in the information or indictment. It is not necessary, however, that these identical words, or any particular form of words, be used. Any words clearly expressing this element are suflioient." See Abortion; Accessary; Anarchist Case; Blood, 2; Corpus, Delicti; Defense, 2; Death, Penalty; Deliberation, 3; Drunkenness; Duel; Homicide; Indictment; Insanity, 2 (6); Intent; Jeopardy, 2; Malice; Manslaughter; Place, 1; Premeditate; Punishment, Capital; Suicide; Will, 1; Wound; Tear AND Day.