murder

Murder is a technical term, of known and settled meaning; and, when used by the legislature, it imports the same, as if they had said, that the Court shall have jurisdiction, in a case of felonious killing upon the high seas. We have no doubt, therefore, that the death, as well as the mortal stroke, must happen on the high seas, to constitute a murder there.

In criminal law. The willful killing of any subject whatever, with malice aforethought, whether the person slain shall be an Englishman or a foreigner. Hawk. P. C. bk. 1, c. 13, S 3. Russell says, the killing of any person under the king's peace, with malice prepense or aforethought, either express or implied by law. 1 Russ. Crimes, 421; 5 Cush. (Mass.) 304. When a person of sound mind and discretion unlawfully killeth any reasonable creature in being, and under the king's with malice afore- This latter definition, which has been adopted by Blackstone (4 Comm. 195), Chitty (2 Crim. Law, 724), and others, has been severely criticized. What, it has been asked, are "sound memory and understanding?" What has soundness of memory to do with the act? Be it ever so imperfect, how does it affect the guilt? If discretion is 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 his own? If the person killed be an idiot or a new-born infant, is he a reasonable creature? Who is in the king's peace? What is malice aforethought? Can there be any malice afterthought? 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 definition. See, especially, 5 Cush. (Mass.) 304. According to Coke's definition, there must be: First, 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 sufficient if the acts done apparently endanger life and eventually prove fatal. Hawk. P. C. bk. 1, c. 31, § 4; 1 Hale, P. C. 431; 1 Ashm. (Pa.) 289; 9 Car. & P. 356; 2 Palmer, 545. Third, the party killed must have been a reasonable being, alive and in the king's peace. To constitute a birth, so as to make the killing of a child murder, the whole body must be detached from that of the mother; but if it has come wholly forth, but is still connected by the umbilical cord, such killing will be murder. 2 Bouv. Inst, note 1722. Foeticide would not be such a killing; he must have been in rerum natura. Fourth, malice, either express or implied. It is this circumstance which distingushes murder from every description of homicide. See "Malice." In some of the states, by legislative enactments, murder has been divided into degrees, according to the degree of premeditation. MURDRARE (Law Lat.)

In old criminal law. To murder. 3 Bl. Comm. 321. Murdravit, murdered. A necessary word in old indictments for murder. 4 Bl. Comm. 307; 5 Coke, 122b; Lord Kenyon, 2 East, 30. To hide, conceal, or stifle. Nullam veritatem celabo, nee celari permittam, vel murdrari, I will conceal no truth, nor will I permit it to be concealed or stifled. Fleta, lib. 1, c. 18, § 4. Words of the oath of an inquisitor or juror. And see Id. §§8, 10. MURDRE (Law Fr.) Murder. LL. GuL Conq. lib. 26. A fine so called. Id. See "Murdrum." MURDRITOR (Law Lat. from murdrare,

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-

The killing of one human being by another, with malice aforethought, express or implied. Murder, murdered: necessary words in indictments for murder, as murdrum and murdravit were anciently.

In old English law. The secret killing of one human being by another; the homicide of a Norman as distinguished from that of an Englishman, v. Englecery; Murdrum.

In criminal law. The willful killing of any subject whatever, with malice aforethought, whether the person slain shall be an Englishman or a foreigner. Hawk. P. C. b. 1, c. 13, § 3. 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. 3 Inst. 47. Murder is the unlawful killing of a human being, with malice aforethought. Pen. Code Cal. § 187. Whoever kills any human being with malice aforethought, either express or implied, is guilty of murder. Rev. Code Iowa 1880, § 3848. Murder is the unlawful killing of a human being, in the peace of the state, by a person of sound memory and discretion, with malice aforethought, either express or implied. Code Ga. 1882, § 4320. The killing of a human being, without the authority of law, by any means, or in any manner, shall be murder in the following cases: When done with deliberate design to effect the death of the person killed, or of any human being; when done in the commission of an act eminently dangerous to others, and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual; when done without any design to effect death, by any person engaged in the commission of the crime of rape, burglary, arson, or robbery, or in any attempt to commit such felonies. Rev. Code Miss. 1880, § 2875. Every homicide, perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or the attempt to perpetrate, any arson, rape, robbery, or burglary; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed; or perpetrated by any act greatly dangerous to the lives of others, and evidencing a depraved mind, regardless of human life, although without any preconceived purpose to deprive any particular person of life, — is murder in the first degree; and every other homicide committed under such circumstances as would have constituted murder at common law is murder in the second degree. Code Ala. 1886, § 3725.

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.

1. Malicious homicide; v. Malice. 2. Anciently, secret homicide; the homicide of a Norman as distinct from that of an Englishman; v. Bnglecery, Murdrum.

pleadiazs: In an indictment for murder, it must be charged that the prisoner “ did kill and murder,” the deceased, and unless the word murder be introduced m the charge, the indictment will be taken to charge manslaughter only. Foster, 424; Yelv. 205; 1 Chit. Cr. Law, *243, and the authorities and cases there cited.