Murder

The wilful killing of any subject whatever, with malice aforet Jaought, whether the person slain shall be an Englishman or a foreigner. Hawk. PI.

0. b. 1, c. 13, s. 8.

The killing of any person under the king's peace, with malice prepense or aforethought, either express, or implied by law.

1 Russ. Or. 421; Qom. v. Webster, 6 Cush. (Mass.) 804, 62 Am. Dec. 711; Archb. Cr. Pr. & Pi. 727 note; Whart. Cr. L. 303.

When a person of sound mind and discretion unlawfully killeth any reasonable creature in being, and under the king’s peace, with malice aforethought, either express or implied. Co. 3d Inst. 47. ■ The latter definition, which has been adopted by Blackstone, 4 Com. 195; 2 Chttty, Cr. Law, 724, and others, has been severely criticised. What, it has been asked, are sound mind and discretion? What has soundness of memory to do with the act? be it ever so Imperfect, how does it effect the guilt? If discretion la necessary, can the crime ever be committed? for is it not the highest indiscretion in a man to take the life of another, and thereby expose bis own? If the person killed be an idiot or a newborn infant, is he a reasonable creature? Who is in the king’s peace? What is malice aforethought? Can there be malice aforethought? Livingston, Pen. Law, 186. It is, however, apparent that some of the criticisms are merely verbal, and others are answered by the construction given In the various cases to the requirements of the deflnltioh.

See, especially, Com. V. Webster, 6 Cush. Mass. 304, 62 Am. Dec. 711.

According to Coke’s definition, there must be, sound mind and memory in the agent. By this is understood there must be a will and legal discretion. Second, an actual killing; but it is not necessary that it should be caused by direct violence; it is suflicient if the acts done apparently endanger life, and eventually prove fatal; Hawk. PI. Cr. b.

1, c. 31, s. 4; 1 Hale, PI. Cr. 431; 9 C. & P. 366.

Third, the party killed must have been a reasonable being, alive in the king’s peace. To constitute a birth, so as to make the killing of a child murder, the whole body must be detaqhed from that of the mother; but if it has come fully forth, but Is still connected by the umbilical cord, such killing wili be murder; 2 Bouvier, Inst n.

1722, note.

Pmticide would not be such a killing; he must have been in rerum nature. Fourth, malice, either express or implied. It is this circumstance which distinguishes murder from every description of homicide; Smith V. State, 83 Ala. 26, 3 South. 661. See Malics. Murder may be committed as the result of some illegal act, whether the design to take life is actually present or not; State v. Alexander, SO S. C. 74, 8 S. E. 440, 14 Am. St Rep. 879. Wilful omission of duty resulting in death is murder, where the exposure or neglect clearly shows danger to life; Territory V. Manton, 8 Mont. 96, 19 ^ac.

887.

It and agree so to do, and one of them dies, the other is guilty of murder; 10 Crlm. L. Mag. 862. One who fires with deliberate purpose of killing A,, and kills B., is as guilty as if he had killed A.; Com. v. Breyessee, 160 Pa. 451, 28 Atl. 824,. 40 Am. St. Rep. 729; State V. Gilman, 69 Me. 163, 31 Am. Rep. 257; State V. Dugan, Houst Cr. Cas. (Del.) 563; but see People v. Gordon, 100 Mich. 618, 69 N. W. 322; obstructing a railroad track, by which a human being is killed, is murder in the first degree; Presley v. State, 69 Ala. 98. In some of the states, by legislative enactments, murder has been divided into degrees. In Pennsylvania, by the act of April 22, 1794, “all murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate, and premeditated killing, or which shall be committed in the perpetration 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; and the Jury before whom any person indicted for murder shall be tried shall, if they find the person guilty 'thereof, ascertain in their verdict whether it be murder of the first or second degree; but if such person shall be convicted by confession, the court shall proceed, by examination of' witnesses, to determine the degree of the crime, and give sentence accordingly.’’ Similar enactments have been made in many other states; Fahnestock v. State, 23 Ind. 231; State v. Pike, 49 N. H. 399, 6 Am. Rep. 533; Territory v. Rowand, 8 Mont 110, 19 Pac. 595; State v. Woods, 97 Mo. 31, 10 S. W. 157; State v. Smith, 73 la.

32, 34 N. W. 697; Trumble v. State, 25 Tex. App. 631, 8 S. W. 814; Mai’shall v. State, 32 Fla. 402, 14 South. 92; Mc Daniel v. Com., 77 Va. 284.

The power of a state to punish crimes is limited to such as are committed within its territory, and consequently it cannot provide for the punishment, as crimes, of acts committed beyond the state boundary; People V. Merrill, 2 Park. Or. Rep. (N. Y.) 690; Watson V. State, 36 Miss. 593; Cooley, Const. Lim. [128]; but if the ultimate and injurious result of an unlawful act committed outside of a state is effected within it, the perpetrator may be punished by it as an offender; id.; and it was held constitutional to punish in Michigan a homicide committed by a mortal blow in Canada waters from which death resulted In the state; Tyler v. People, 8 Mich. 820.

See Cooley, Const Lim. [128]. See 86 U. C. 603.

A murder committed on a United States battleship lying within territory ceded to tbe United States by New York, is triable in the United States court for the Southern District of New York; U. S. v. Carter, 84 Fed. 622. See Ju-